EXHIBIT 10.1
EXECUTION COPY
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CREDIT AGREEMENT
among
DHM HOLDING COMPANY, INC.,
XXXX HOLDING COMPANY, LLC,
XXXX FOOD COMPANY, INC.,
SOLVEST, LTD.,
VARIOUS LENDING INSTITUTIONS,
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent,
BANC OF AMERICA SECURITIES LLC,
and
THE BANK OF NOVA SCOTIA,
as Co-Syndication Agents,
and
FORTIS CAPITAL CORPORATION,
XXXXXX TRUST AND SAVINGS BANK
and
RABOBANK INTERNATIONAL,
as Co-Documentation Agents
Dated as of March 28, 2003
and
Amended and Restated as of April 18, 2005
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DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC
and
THE BANK OF NOVA SCOTIA,
as Joint Lead Arrangers and Book Runners
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CREDIT AGREEMENT, dated as of March 28, 2003 and amended and restated
as of April 18, 2005, among DHM HOLDING COMPANY, INC., a Delaware corporation
("Holdings"), XXXX HOLDING COMPANY, LLC, a Delaware limited liability company
("Intermediate Holdco"), XXXX FOOD COMPANY, INC., a Delaware corporation (the
"U.S. Borrower"), SOLVEST, LTD., a company organized under the laws of Bermuda
(the "Bermuda Borrower" and, together with the U.S. Borrower, the "Borrowers"),
the Lenders from time to time party hereto, DEUTSCHE BANK AG NEW YORK BRANCH, as
Administrative Agent (in such capacity, the "Administrative Agent"), BANC OF
AMERICA SECURITIES LLC and THE BANK OF NOVA SCOTIA, as Co-Syndication Agents (in
such capacity, each, a "Co-Syndication Agent" and, collectively, the
"Co-Syndication Agents"), FORTIS CAPITAL CORPORATION, XXXXXX TRUST AND SAVINGS
BANK and RABOBANK INTERNATIONAL, as Co-Documentation Agents (in such capacity,
each, a "Co-Documentation Agent" and, collectively, the "Co-Documentation
Agents") and DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA SECURITIES LLC and
THE BANK OF NOVA SCOTIA, as Joint Lead Arrangers and Book Runners (in such
capacity, each, a "Joint Lead Arranger" and, collectively, the "Joint Lead
Arrangers"). Unless otherwise defined herein, all capitalized terms used herein
and defined in Section 11 are used herein as so defined.
WITNESSETH:
WHEREAS, Holdings, Intermediate Holdco, the Borrowers, the Original
Lenders, the Administrative Agent, the Co-Syndication Agents, the
Co-Documentation Agents and the Joint Lead Arrangers are party to a Credit
Agreement, dated as of March 28, 2003 (as the same has been amended, modified
and/or supplemented to, but not including, the Restatement Effective Date, the
"Original Credit Agreement");
WHEREAS, the parties hereto wish to amend and restate the Original Credit
Agreement in the form of this Agreement; and
NOW, THEREFORE, the parties hereto agree that, effective as of the
Restatement Effective Date, the Original Credit Agreement shall be, and hereby
is, amended and restated in its entirety as follows:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (a) Tranche A Term Loans. Subject to and upon the
terms and conditions set forth herein, each Lender with a Tranche A Term Loan
Commitment severally agrees to make a term loan (each, a "Tranche A Term Loan"
and, collectively, the "Tranche A Term Loans") to the Bermuda Borrower, which
Tranche A Term Loans:
(i) shall be incurred by the Bermuda Borrower pursuant to a single
drawing on the Restatement Effective Date for the purposes described in
Section 7.05(a);
(ii) shall (subject to Section 1.14) be denominated in Yen;
(iii) except as hereafter provided, shall, at the option of the
Bermuda Borrower, be incurred and maintained as one or more Borrowings of
Yen Denominated Term Loans; provided that unless the Administrative Agent
has determined that the Syndication Date has occurred (at which time this
proviso shall no longer be applicable), only a single Borrowing of Tranche
A Term Loans may be incurred prior to the 30th day after the Restatement
Effective Date (which Borrowing of Tranche A Term Loans shall have an
Interest Period of one month); and
(iv) shall be made by each Lender in that initial aggregate principal
amount as is equal to the Tranche A Term Loan Commitment of such Lender on
the Restatement Effective Date (before giving effect to the termination
thereof on such date pursuant to Section 3.03(b)).
Once repaid, Tranche A Term Loans incurred hereunder may not be reborrowed.
(b) Tranche B Term Loans. (A) Subject to and upon the terms and
conditions set forth herein, (I) each Original Tranche D Term Loan Lender
severally agrees that, on the Restatement Effective Date, the Original Tranche D
Term Loan made by such Original Tranche D Term Loan Lender to the Bermuda
Borrower pursuant to the Original Credit Agreement and outstanding on the
Restatement Effective Date (immediately prior to giving effect thereto) shall
convert (the "Term Loan Conversion") into a new term loan to the Bermuda
Borrower (each such term loan, a "Converted Tranche B Term Loan"), and (II) each
Lender with a Tranche B Term Loan Commitment severally agrees to make, on the
Restatement Effective Date, a term loan or term loans to the Bermuda Borrower
(each, an "Additional Tranche B Term Loan" and, collectively, the "Additional
Tranche B Term Loans", and, together with the Converted Tranche B Term Loans,
the "Tranche B Term Loans"), which Tranche B Term Loans:
(i) shall, in the case of Additional Tranche B Term Loans, be incurred
by the Bermuda Borrower pursuant to a single drawing on the Restatement
Effective Date for the purposes described in Section 7.05(a);
(ii) shall be denominated in Dollars;
(iii) except as hereinafter provided, shall, at the option of the
Bermuda Borrower, be incurred and maintained as, and/or converted into one
or more Borrowings of Base Rate Loans or Eurodollar Loans, provided that
(A) except as otherwise specifically provided in Section 1.10(b), all
Tranche B Term Loans made as part of the same Borrowing shall at all times
consist of Tranche B Term Loans of the same Type and (B) unless the
Administrative Agent has determined that the Syndication Date has occurred
(at which time this clause (B) shall no longer be applicable), no more than
four Borrowings of Tranche B Term Loans to be maintained as Eurodollar
Loans may be incurred prior to the 30th day after the Restatement Effective
Date (or, if later, the last day of the Interest Period applicable to the
fourth Borrowing of Eurodollar Loans referred to below), each of which
Borrowings of Eurodollar Loans may only have an Interest Period of one
week, and the first of which Borrowings may be made no earlier than the
third Business Day, and no later than the fifth Business Day, after the
Restatement Effective Date, the second of which Borrowings may only be made
on the last day of the Interest Period of the first such Borrowing, the
third of which Borrowings may only be made on the last day of the Interest
Period of the second such Borrowing and the fourth of which Borrowings may
only be made on the last day of the Interest Period of the third such
Borrowing; and
(iv) shall not exceed for any Lender, in initial principal amount,
that amount which equals the sum of (x) the aggregate principal amount of
the Tranche B Term Loans, if any, made (or deemed made) by such Lender and
outstanding on the Restatement Effective Date (immediately prior to giving
effect thereto) as set forth on Schedule I hereto under the heading
"Converted Tranche B Term Loans" plus (y) the Tranche B Term Loan
Commitment of such Lender (if any) as in effect on the Restatement
Effective Date (before giving effect to any reductions thereto on such date
pursuant to Section 3.03(c)).
In connection with the Term Loan Conversion and the incurrence of Additional
Tranche B Term Loans pursuant to this Section 1.01(b), (i) the Interest Period
applicable to each Borrowing of Original Tranche D Term Loans existing on the
Restatement Effective Date immediately prior to the Term Loan
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Conversion and maintained as Eurodollar Loans under the Original Credit
Agreement shall, simultaneously with the occurrence of the Term Loan Conversion,
be broken, (ii) the Administrative Agent shall (and is hereby authorized to)
take all appropriate actions to ensure that all Lenders with outstanding Tranche
B Term Loans (after giving effect to the Term Loan Conversion and the incurrence
of Additional Tranche B Term Loans pursuant to this Section 1.01(b)) participate
in each new Borrowing of Tranche B Term Loans on a pro rata basis (based upon
their respective Tranche B Term Loan Borrowing Amounts as in effect on the
Restatement Effective Date) and (iii) the Bermuda Borrower shall be obligated to
pay to the respective Original Lenders breakage or other costs of the type
referred to in Section 1.11 of the Original Credit Agreement (if any) incurred
in connection with the Term Loan Conversion and/or the actions taken pursuant to
preceding clause (ii) of this Section 1.01(b). Once repaid, Tranche B Term Loans
may not be reborrowed.
(c) Multicurrency Facility Revolving Loans. Subject to and upon the
terms and conditions set forth herein (including, on and after the occurrence of
the first Incremental Multicurrency Facility RL Commitment Date, Section 1.16),
(I) each Original Multicurrency Facility Revolving Loan Commitment (as in effect
on the Restatement Effective Date immediately prior to giving effect thereto) of
each Original Multicurrency Facility RL Lender is hereby converted on the
Restatement Effective Date into a Multicurrency Facility Revolving Loan
Commitment of such Original Multicurrency Facility RL Lender, and (II) each
Multicurrency Facility RL Lender severally agrees (A) that, on the Restatement
Effective Date, each Original Multicurrency Facility Revolving Loan made by such
Multicurrency Facility RL Lender to the Bermuda Borrower or the U.S. Borrower,
as the case may be, pursuant to the Original Credit Agreement and outstanding on
the Restatement Effective Date shall convert into a revolving loan to the
Bermuda Borrower or the U.S Borrower, as the case may be (each, a "Converted
Multicurrency Facility Revolving Loan" and, collectively, the "Converted
Multicurrency Facility Revolving Loans") and (B) to make, at any time and from
time to time on or after the Restatement Effective Date and prior to the
Revolving Loan Maturity Date, (1) a revolving loan or revolving loans to the
U.S. Borrower (together with each Converted Multicurrency Facility Revolving
Loan made to the U.S Borrower, each a "U.S. Borrower Multicurrency Facility
Revolving Loan" and, collectively, the "U.S. Borrower Multicurrency Facility
Revolving Loans") and (2) a revolving loan or revolving loans to the Bermuda
Borrower (together with each Converted Multicurrency Facility Revolving Loan
made to the Bermuda Borrower, each, a "Bermuda Borrower Multicurrency Facility
Revolving Loan" and, collectively, the "Bermuda Borrower Multicurrency Facility
Revolving Loans" and with the revolving loans made to the U.S. Borrower or the
Bermuda Borrower pursuant to this clause (B) and the Converted Multicurrency
Facility Revolving Loans being each called a "Multicurrency Facility Revolving
Loan" and, collectively, the "Multicurrency Facility Revolving Loans"), which
Multicurrency Facility Revolving Loans:
(i) shall (subject to Section 1.14) be made and maintained in the
respective Available Currency elected by the U.S. Borrower or the Bermuda
Borrower, as the case may be (or, in the case of Converted Multicurrency
Facility Revolving Loans resulting from conversions pursuant to preceding
clause (II)(A) and not yet prepaid or repaid pursuant to the terms of this
Agreement, the respective Available Currency in which the Original
Multicurrency Revolving Loans being converted were denominated immediately
prior to such conversion);
(ii) except as hereafter provided, shall, at the option of the U.S.
Borrower or the Bermuda Borrower, be incurred and maintained as, and/or
converted into, one or more Borrowings of Base Rate Loans, Eurodollar Loans
or Euro Denominated Revolving Loans, provided that except as otherwise
specifically provided in Section 1.10(b), all Multicurrency Facility
Revolving Loans made as part of the same Borrowing shall at all times
consist of Multicurrency Facility Revolving Loans of the same Type;
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(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not be made (including by way of conversion pursuant to
clause (II)(A) of this Section 1.01(c) above), and shall not be required to
be made, by any Multicurrency Facility RL Lender in any instance where the
incurrence thereof (after giving effect to the use of the proceeds thereof
on the date of the incurrence thereof to repay any amounts theretofore
outstanding pursuant to this Agreement) would cause the Individual
Multicurrency Facility RL Exposure of such Multicurrency Facility RL Lender
to exceed the amount of its Multicurrency Facility Revolving Loan
Commitment at such time;
(v) shall not be made (including by way of conversion pursuant to
clause (II)(A) of this Section 1.01(c) above), and shall not be required to
be made, by any Multicurrency Facility RL Lender if the making of same
would cause the Aggregate Multicurrency Facility RL Exposure (after giving
effect to the use of the proceeds thereof on the date of the incurrence
thereof to repay any amounts theretofore outstanding pursuant to this
Agreement) to exceed the Total Multicurrency Facility Revolving Loan
Commitment as then in effect; and
(vi) in the case of any Borrowing of U.S. Borrower Multicurrency
Facility Revolving Loans, shall not be made (including by way of conversion
pursuant to clause (II)(A) of this Section 1.01(c) above), and shall not be
required to be made, by any Multicurrency Facility RL Lender if the making
of same would cause the Aggregate U.S. Borrower Multicurrency Facility RL
Exposure (after giving effect to the use of the proceeds thereof on the
date of the incurrence thereof to repay any amounts theretofore outstanding
pursuant to this Agreement) to exceed 50% of the Total Multicurrency
Facility Revolving Loan Commitment as then in effect.
The aggregate principal amount of the Original Multicurrency Facility Revolving
Loans of each Multicurrency Facility RL Lender converted into Multicurrency
Facility Revolving Loans as provided pursuant to clause (II)(A) of this Section
1.01(c) above and outstanding on the Restatement Effective Date (for this
purpose, showing separately the amounts outstanding in each Available Currency)
is accurately set forth in Schedule I hereto under the column entitled "Original
Multicurrency Facility Revolving Loans Converted Into Multicurrency Facility
Revolving Loans." The Bermuda Borrower shall have no liability with respect to
any U.S. Borrower Multicurrency Facility Revolving Loans which may be extended
to, and which shall constitute obligations of, the U.S. Borrower.
(d) Dollar Facility Revolving Loans. Subject to and upon the terms and
conditions set forth herein (including, on and after the occurrence of the first
Incremental Dollar Facility RL Commitment Date, Section 1.17), (I) each Original
Dollar Facility Revolving Loan Commitment (as in effect on the Restatement
Effective Date immediately prior to giving effect thereto) of each Original
Dollar Facility RL Lender is hereby converted on the Restatement Effective Date
into a Dollar Facility Revolving Loan Commitment of such Original Dollar
Facility RL Lender, and (II) each Dollar Facility RL Lender severally agrees (A)
that, on the Restatement Effective Date, each Original Dollar Facility Revolving
Loan made by such Dollar Facility RL Lender to the Bermuda Borrower or the U.S.
Borrower, as the case may be, pursuant to the Original Credit Agreement and
outstanding on the Restatement Effective Date shall convert into a revolving
loan to the Bermuda Borrower or the U.S Borrower, as the case may be (each, a
"Converted Dollar Facility Revolving Loan" and, collectively, the "Converted
Dollar Facility Revolving Loans") and (B) to make, at any time and from time to
time on or after the Restatement Effective Date and prior to the Revolving Loan
Maturity Date, (1) a revolving loan or revolving loans to the U.S. Borrower
(together with each Converted Dollar Facility Revolving Loan made to the U.S
Borrower, each, a "U.S. Borrower Dollar Facility Revolving Loan" and,
collectively, the "U.S. Borrower Dollar Facility Revolving Loans") and (2) a
revolving loan or revolving loans to the Bermuda Borrower (together with each
Converted Dollar Facility Revolving Loan made to the Bermuda Borrower,
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each, a "Bermuda Borrower Dollar Facility Revolving Loan" and, collectively, the
"Bermuda Borrower Dollar Facility Revolving Loans" and with the revolving loans
made to the U.S. Borrower or the Bermuda Borrower pursuant to this clause (B)
and the Converted Dollar Facility Revolving Loans being each called a "Dollar
Facility Revolving Loan" and, collectively, the "Dollar Facility Revolving
Loans" and, together with the Multicurrency Facility Revolving Loans, the
"Revolving Loans"), which Dollar Facility Revolving Loans:
(i) shall be made and maintained in Dollars;
(ii) except as hereafter provided, shall, at the option of the U.S.
Borrower or the Bermuda Borrower, be incurred and maintained as, and/or
converted into, one or more Borrowings of Base Rate Loans or Eurodollar
Loans provided that except as otherwise specifically provided in Section
1.10(b), all Dollar Facility Revolving Loans made as part of the same
Borrowing shall at all times consist of Dollar Facility Revolving Loans of
the same Type;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not be made (including by way of conversion pursuant to
clause (II)(A) of this Section 1.01(d) above), and shall not be required to
be made, by any Dollar Facility RL Lender in any instance where the
incurrence thereof (after giving effect to the use of the proceeds thereof
on the date of the incurrence thereof to repay any amounts theretofore
outstanding pursuant to this Agreement) would cause the Individual Dollar
Facility RL Exposure of such Dollar Facility RL Lender to exceed the amount
of its Dollar Facility Revolving Loan Commitment at such time;
(v) shall not be made (including by way of conversion pursuant to
clause (II)(A) of this Section 1.01(d) above), and shall not be required to
be made, by any Dollar Facility RL Lender if the making of same would cause
the Aggregate Dollar Facility RL Exposure (after giving effect to the use
of the proceeds thereof on the date of the incurrence thereof to repay any
amounts theretofore outstanding pursuant to this Agreement) to exceed the
Total Dollar Facility Revolving Loan Commitment as then in effect; and
(vi) in the case of any Borrowing of Bermuda Borrower Dollar Facility
Revolving Loans, shall not be made (including by way of conversion pursuant
to clause (II)(A) of this Section 1.01(d) above), and shall not be required
to be made, by any Dollar Facility RL Lender if the making of same would
cause the Aggregate Bermuda Borrower Dollar Facility RL Exposure (after
giving effect to the use of the proceeds thereof on the date of the
incurrence thereof to repay any amounts theretofore outstanding pursuant to
this Agreement) to exceed 50% of the Total Dollar Facility Revolving Loan
Commitment as then in effect.
The aggregate principal amount of the Original Dollar Facility Revolving Loans
of each Dollar Facility RL Lender converted into Dollar Facility Revolving Loans
as provided pursuant to clause (II)(A) of this Section 1.01(d) above and
outstanding on the Restatement Effective Date is accurately set forth in
Schedule I hereto under the column entitled "Original Dollar Facility Revolving
Loans Converted Into Dollar Facility Revolving Loans." The Bermuda Borrower
shall have no liability with respect to any U.S. Borrower Dollar Facility
Revolving Loans which may be extended to, and which shall constitute obligations
of, the U.S. Borrower.
(e) Multicurrency Facility Swingline Loans. Subject to and upon the
terms and conditions set forth herein, the Swingline Lender agrees to make, at
any time and from time to time on or after the Restatement Effective Date and
prior to the Swingline Expiry Date, (I) a revolving loan or
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revolving loans to the U.S. Borrower (each, a "U.S. Borrower Multicurrency
Facility Swingline Loan" and, collectively, the "U.S. Borrower Multicurrency
Facility Swingline Loans") and (II) a revolving loan or revolving loans to the
Bermuda Borrower (each, a "Bermuda Borrower Multicurrency Facility Swingline
Loan" and, collectively, the "Bermuda Borrower Multicurrency Facility Swingline
Loans" and with the revolving loans made to the U.S. Borrower or the Bermuda
Borrower pursuant to this Section 1.01(e) being each called a "Multicurrency
Facility Swingline Loan" and, collectively, the "Multicurrency Facility
Swingline Loans"), which Multicurrency Facility Swingline Loans:
(i) shall (subject to Section 1.14) be made and maintained in the
respective Available Currency elected by the U.S. Borrower or the Bermuda
Borrower, as the case may be;
(ii) shall be made and maintained as Base Rate Loans or Euro
Denominated Swingline Loans;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not be made (and shall not be required to be made) if the
making of same would cause the Aggregate Multicurrency Facility RL Exposure
(after giving effect to the use of the proceeds thereof on the date of the
incurrence thereof to repay any amounts theretofore outstanding pursuant to
this Agreement) to exceed the Total Multicurrency Facility Revolving Loan
Commitment at such time;
(v) shall not exceed in aggregate principal amount at any time
outstanding (taking the Dollar Equivalents of all amounts in Euros), when
added to the aggregate principal amount of Dollar Facility Swingline Loans
then outstanding, the Maximum Swingline Amount; and
(vi) in the case of any Borrowing of U.S. Borrower Multicurrency
Facility Swingline Loans, shall not be made (and shall not be required to
be made) if the making of same would cause the Aggregate U.S. Borrower
Multicurrency Facility RL Exposure (after giving effect to the use of the
proceeds thereof on the date of the incurrence thereof to repay any amounts
theretofore outstanding pursuant to this Agreement) to exceed 50% of the
Total Multicurrency Facility Revolving Loan Commitment as then in effect.
Notwithstanding anything to the contrary contained in this Section 1.01(e), (x)
the Swingline Lender shall not be obligated to make any Multicurrency Facility
Swingline Loans at a time when a Lender Default exists with respect to any
Multicurrency Facility RL Lender unless the Swingline Lender has entered into
arrangements satisfactory to it to eliminate the Swingline Lender's risk with
respect to the Defaulting Lender's or Defaulting Lenders' refunding obligations
(through the requirement that Mandatory Multicurrency Facility RL Borrowings be
made from time to time) in respect of such Multicurrency Facility Swingline
Loans, including by cash collateralizing (in the relevant currency or
currencies) such Defaulting Lender's or Defaulting Lenders' Multicurrency
Facility RL Percentages of the outstanding Multicurrency Facility Swingline
Loans and (y) the Swingline Lender shall not make any Multicurrency Facility
Swingline Loan after it has received written notice from any Credit Agreement
Party or the Required Lenders stating that a Default or an Event of Default
exists and is continuing until such time as the Swingline Lender shall have
received written notice (A) of rescission of all such notices from the party or
parties originally delivering such notice or notices or (B) of the waiver of
such Default or Event of Default by the Required Lenders. The Bermuda Borrower
shall have no liability with respect to any U.S. Borrower Multicurrency Facility
Swingline Loans which may be extended to, and shall constitute obligations of,
the U.S. Borrower.
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(f) Dollar Facility Swingline Loans. Subject to and upon the terms and
conditions set forth herein, the Swingline Lender agrees to make, at any time
and from time to time on or after the Restatement Effective Date and prior to
the Swingline Expiry Date, (I) a revolving loan or revolving loans to the U.S.
Borrower (each, a "U.S. Borrower Dollar Facility Swingline Loan" and,
collectively, the "U.S. Borrower Dollar Facility Swingline Loans") and (II) a
revolving loan or revolving loans to the Bermuda Borrower (each, a "Bermuda
Borrower Dollar Facility Swingline Loan" and, collectively, the "Bermuda
Borrower Dollar Facility Swingline Loans" and with the revolving loans made to
the U.S. Borrower or the Bermuda Borrower pursuant to this Section 1.01(f) being
each called a "Dollar Facility Swingline Loan" and, collectively, the "Dollar
Facility Swingline Loans" and, together with Multicurrency Facility Swingline
Loans, the "Swingline Loans"), which Dollar Facility Swingline Loans:
(i) shall be made and maintained in Dollars;
(ii) shall be made and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not be made (and shall not be required to be made) if the
making of same would cause the Aggregate Dollar Facility RL Exposure (after
giving effect to the use of the proceeds thereof on the date of the
incurrence thereof to repay any amounts theretofore outstanding pursuant to
this Agreement) to exceed the Total Dollar Facility Revolving Loan
Commitment as then in effect;
(v) shall not exceed in aggregate principal amount at any time
outstanding, when added to the aggregate principal amount of Multicurrency
Facility Swingline Loans then outstanding (taking the Dollar Equivalents of
all amounts in Euros), the Maximum Swingline Amount; and
(vi) in the case of any Borrowing of Bermuda Borrower Dollar Facility
Swingline Loans, shall not be made (and shall not be required to be made)
if the making of same would cause the Aggregate Bermuda Borrower Dollar
Facility RL Exposure (after giving effect to the use of the proceeds
thereof on the date of the incurrence thereof to repay any amounts
theretofore outstanding pursuant to this Agreement) to exceed 50% of the
Total Dollar Facility Revolving Loan Commitment as then in effect.
Notwithstanding anything to the contrary contained in this Section 1.01(f), (x)
the Swingline Lender shall not be obligated to make any Dollar Facility
Swingline Loans at a time when a Lender Default exists with respect to any
Dollar Facility RL Lender unless the Swingline Lender has entered into
arrangements satisfactory to it to eliminate the Swingline Lender's risk with
respect to the Defaulting Lender's or Defaulting Lenders' refunding obligations
(through the requirement that Mandatory Dollar Facility RL Borrowings be made
from time to time) in respect of such Dollar Facility Swingline Loans, including
by cash collateralizing such Defaulting Lender's or Defaulting Lenders' Dollar
Facility RL Percentages of the outstanding Dollar Facility Swingline Loans and
(y) the Swingline Lender shall not make any Dollar Facility Swingline Loan after
it has received written notice from any Credit Agreement Party or the Required
Lenders stating that a Default or an Event of Default exists and is continuing
until such time as the Swingline Lender shall have received written notice (A)
of rescission of all such notices from the party or parties originally
delivering such notice or notices or (B) of the waiver of such Default or Event
of Default by the Required Lenders. The Bermuda Borrower shall have no liability
with respect to any U.S. Borrower Dollar Facility Swingline Loans which may be
extended to, and shall constitute obligations of, the U.S. Borrower.
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(g) Refunding of Multicurrency Facility Swingline Loans. On any
Business Day, the Swingline Lender may, in its sole discretion, give notice to
the Multicurrency Facility RL Lenders that the outstanding U.S. Borrower
Multicurrency Facility Swingline Loans or Bermuda Borrower Multicurrency
Facility Swingline Loans in a given Available Currency shall be funded with a
Borrowing of U.S. Borrower Multicurrency Facility Revolving Loans or Bermuda
Borrower Multicurrency Facility Revolving Loans, as the case may be, in such
Available Currency (provided that (x) such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default
under Section 10.05 or upon the exercise of any of the remedies provided in the
last paragraph of Section 10 and (y) if a Sharing Event shall have occurred, all
such Multicurrency Facility Swingline Loans shall be denominated in Dollars in
accordance with the provisions of Section 1.14, and refunded through a Mandatory
Multicurrency Facility RL Borrowing denominated in Dollars as provided below),
in which case a Borrowing of U.S. Borrower Multicurrency Facility Revolving
Loans or Bermuda Borrower Multicurrency Facility Revolving Loans, as the case
may be, denominated in the respective Available Currency (subject to the
provisions of clause (y) of the immediately preceding parenthetical sentence)
(each such Borrowing, a "Mandatory Multicurrency Facility RL Borrowing") shall
be made on the third succeeding Business Day by all Multicurrency Facility RL
Lenders pro rata based on each such Multicurrency Facility RL Lender's
Multicurrency Facility RL Percentage and the proceeds thereof shall be applied
directly to the Swingline Lender to repay the Swingline Lender for such
outstanding Multicurrency Facility Swingline Loans. Each Multicurrency Facility
RL Lender hereby irrevocably agrees to make U.S. Borrower Multicurrency Facility
Revolving Loans (in the case of a refunding of U.S. Borrower Multicurrency
Facility Swingline Loans) and Bermuda Borrower Multicurrency Facility Revolving
Loans (in the case of a refunding of Bermuda Borrower Multicurrency Facility
Swingline Loans) in the relevant Available Currency upon three Business Days'
notice pursuant to each Mandatory Multicurrency Facility RL Borrowing in the
amount and in the manner specified in the preceding sentence and on the date
specified in writing by the Swingline Lender notwithstanding (i) that the amount
of the Mandatory Multicurrency Facility RL Borrowing may not comply with the
minimum amount for Borrowings otherwise required hereunder, (ii) whether any
conditions specified in Sections 6A and 6B are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) the date of such Mandatory
Multicurrency Facility RL Borrowing, (v) the amount of the Total Multicurrency
Facility Revolving Loan Commitment at such time and (vi) the amount of the
Multicurrency Facility Revolving Loan Commitment of such Multicurrency Facility
RL Lender at such time. In the event that any Mandatory Multicurrency Facility
RL Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under any bankruptcy, reorganization, dissolution, insolvency, receivership,
administration or liquidation or similar law with respect to either Borrower),
then each Multicurrency Facility RL Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Multicurrency Facility RL Borrowing would
otherwise have occurred, but adjusted for any payments received from either
Borrower on or after such date and prior to such purchase) from the Swingline
Lender such participations in such outstanding Multicurrency Facility Swingline
Loans as shall be necessary to cause such Multicurrency Facility RL Lenders to
share in such Multicurrency Facility Swingline Loans ratably based upon their
respective Multicurrency Facility RL Percentages, provided that (x) all interest
payable on the Multicurrency Facility Swingline Loans shall be for the account
of the Swingline Lender until the date as of which the respective participation
is required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Multicurrency Facility RL Lender shall be required
to pay the Swingline Lender interest on the principal amount of the
participation purchased for each day from and including the day upon which the
Mandatory Multicurrency Facility RL Borrowing would otherwise have occurred to
but excluding the date of payment for such participation, at the rate otherwise
applicable to Multicurrency Facility Revolving Loans made in the relevant
Available Currency. Notwithstanding anything to the contrary contained above in
this Section 1.01(g), upon the occurrence of a Sharing Event, all outstanding
Multicurrency Facility Swingline Loans shall, as provided
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in Section 1.14, be automatically converted into U.S. Dollar denominated
Multicurrency Facility Swingline Loans and, to the extent the respective
Mandatory Multicurrency Facility RL Borrowing has not already occurred in
respect of such Multicurrency Facility Swingline Loans, a Mandatory
Multicurrency Facility RL Borrowing shall be effected with respect thereto in
accordance with the provisions of this Section 1.01(g).
(h) Refunding of Dollar Facility Swingline Loans. On any Business Day,
the Swingline Lender may, in its sole discretion, give notice to the Dollar
Facility RL Lenders that the outstanding U.S. Borrower Dollar Facility Swingline
Loans or Bermuda Borrower Dollar Facility Swingline Loans shall be funded with a
Borrowing of U.S. Borrower Dollar Facility Revolving Loans or Bermuda Borrower
Dollar Facility Revolving Loans, as the case may be, in Dollars (provided that
such notice shall be deemed to have been automatically given upon the occurrence
of a Default or an Event of Default under Section 10.05 or upon the exercise of
any of the remedies provided in the last paragraph of Section 10), in which case
a Borrowing of U.S. Borrower Dollar Facility Revolving Loans or Bermuda Borrower
Dollar Facility Revolving Loans, as the case may be (each such Borrowing, a
"Mandatory Dollar Facility RL Borrowing") shall be made on the third succeeding
Business Day by all Dollar Facility RL Lenders pro rata based on each such
Dollar Facility RL Lender's Dollar Facility RL Percentage and the proceeds
thereof shall be applied directly to the Swingline Lender to repay the Swingline
Lender for such outstanding Dollar Facility Swingline Loans. Each Dollar
Facility RL Lender hereby irrevocably agrees to make U.S. Borrower Dollar
Facility Revolving Loans (in the case of a refunding of U.S. Borrower Dollar
Facility Swingline Loans) and Bermuda Borrower Dollar Facility Revolving Loans
(in the case of a refunding of Bermuda Borrower Dollar Facility Swingline Loans)
upon one Business Day's notice pursuant to each Mandatory Dollar Facility RL
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Lender notwithstanding (i)
that the amount of the Mandatory Dollar Facility RL Borrowing may not comply
with the minimum amount for Borrowings otherwise required hereunder, (ii)
whether any conditions specified in Sections 6A and 6B are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) the date of such
Mandatory Dollar Facility RL Borrowing, (v) the amount of the Total Dollar
Facility Revolving Loan Commitment at such time and (vi) the amount of the
Dollar Facility Revolving Loan Commitment of such Dollar Facility RL Lender at
such time. In the event that any Mandatory Dollar Facility RL Borrowing cannot
for any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under any
bankruptcy, reorganization, dissolution, insolvency, receivership,
administration or liquidation or similar law with respect to either Borrower),
then each Dollar Facility RL Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Dollar Facility RL Borrowing would
otherwise have occurred, but adjusted for any payments received from either
Borrower on or after such date and prior to such purchase) from the Swingline
Lender such participations in such outstanding Dollar Facility Swingline Loans
as shall be necessary to cause such Dollar Facility RL Lenders to share in such
Dollar Facility Swingline Loans ratably based upon their respective Dollar
Facility RL Percentages, provided that (x) all interest payable on the Dollar
Facility Swingline Loans shall be for the account of the Swingline Lender until
the date as of which the respective participation is required to be purchased
and, to the extent attributable to the purchased participation, shall be payable
to the participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Dollar
Facility RL Lender shall be required to pay the Swingline Lender interest on the
principal amount of the participation purchased for each day from and including
the day upon which the Mandatory Dollar Facility RL Borrowing would otherwise
have occurred to but excluding the date of payment for such participation, at
the overnight Federal Funds Rate for the first three days and at the rate
otherwise applicable to Dollar Facility Revolving Loans maintained as Base Rate
Loans hereunder for each day thereafter.
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(i) Subject to and upon the terms and conditions set forth herein,
each Lender with an Incremental Term Loan Commitment for a given Tranche of
Incremental Term Loans severally agrees, at any time and from time to time
on and after the date that such Incremental Term Loan Commitment is
obtained pursuant to Section 1.15 and prior to the Incremental Term Loan
Commitment Termination Date for such Tranche of Incremental Term Loans, to
make a term loan (each, an "Incremental Term Loan" and, collectively, the
"Incremental Term Loans") to the Incremental Term Loan Borrower for such
Tranche, which Incremental Term Loans:
(ii) shall be incurred on an Incremental Term Loan Borrowing Date for
the purposes described in Section 7.05(a);
(iii) shall be denominated in Dollars;
(iv) except as hereinafter provided, shall, at the option of the
Incremental Term Loan Borrower for such Tranche, be incurred and maintained
as, and/or converted into one or more Borrowings of Base Rate Loans or
Eurodollar Loans, provided that except as otherwise specifically provided
in Section 1.10(b), all Incremental Term Loans of a given Tranche made as
part of the same Borrowing shall at all times consist of Incremental Term
Loans of the same Type; and
(v) shall not exceed for any such Incremental Term Loan Lender at any
time of any incurrence thereof, the Incremental Term Loan Commitment of
such Incremental Term Loan Lender for such Tranche at such time (before
giving effect to any reductions thereto on such date pursuant to Section
3.03(f)).
Once repaid, Incremental Term Loans may not be reborrowed.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount of
each Borrowing of Loans shall not be less than the Minimum Borrowing Amount
applicable to Borrowings of the respective Type and Tranche of Loans to be made
or maintained pursuant to the respective Borrowing provided that Mandatory
Multicurrency Facility RL Borrowings and Mandatory Dollar Facility RL Borrowings
shall be made in the amounts required by Section 1.01(g) or (h), as applicable.
More than one Borrowing may be incurred on any day, but at no time shall there
be outstanding more than 35 Borrowings of Euro Rate Loans.
1.03 Notice of Borrowing. (a) Whenever a Borrower desires to make a
Borrowing of Loans hereunder (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), an Authorized Officer of such Borrower shall give the
Administrative Agent at its Notice Office at least one Business Day's prior
written (or telephonic notice promptly confirmed in writing) notice of each Base
Rate Loan and at least three Business Days' prior written (or telephonic notice
promptly confirmed in writing) notice of each Euro Rate Loan to be made
hereunder, provided that any such notice shall be deemed to have been given on a
certain day only if given before 2:00 P.M. (New York time) on such day. Each
such written notice or written confirmation of telephonic notice (each, a
"Notice of Borrowing"), except as otherwise expressly provided in Section 1.10,
shall be irrevocable and shall be given by or on behalf of the respective
Borrower in the form of Exhibit A-1, appropriately completed to specify: (i) the
aggregate principal amount of the Loans to be made pursuant to such Borrowing
(stated in the relevant currency), (ii) the date of such Borrowing (which shall
be a Business Day), (iii) whether the respective Borrowing shall consist of
Tranche A Term Loans, Tranche B Term Loans, U.S. Borrower Incremental Term
Loans, Bermuda Borrower Incremental Term Loans, U.S. Borrower Multicurrency
Facility Revolving Loans, Bermuda Borrower Multicurrency Facility Revolving
Loans, U.S. Borrower Dollar Facility Revolving Loans or Bermuda Borrower Dollar
Facility Revolving Loans, (iv) in the case of Dollar Denominated
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Loans, whether the Dollar Denominated Loans being made pursuant to such
Borrowing are to be initially maintained as Base Rate Loans or Eurodollar Loans
and (v) in the case of Euro Rate Loans, the initial Interest Period to be
applicable thereto. The Administrative Agent shall promptly give each Lender
which is required to make Loans of the Tranche specified in the respective
Notice of Borrowing notice of such proposed Borrowing, of such Lender's
proportionate share thereof (determined in accordance with Section 1.07) and of
the other matters required by the immediately preceding sentence to be specified
in the Notice of Borrowing.
(b) (i) Whenever either Borrower desires to make a Borrowing of
Swingline Loans hereunder, an Authorized Officer of such Borrower shall give the
Swingline Lender, (i) not later than 1:00 P.M. (New York time) on the date that
a Dollar Denominated Swingline Loan is to be made and (ii) not later than 1:00
P.M. (New York time) on the Business Day prior to the date that a Euro
Denominated Swingline Loan is to be made, written notice or telephonic notice
promptly confirmed in writing of each Swingline Loan to be made hereunder. Each
such notice shall be irrevocable and shall be given by or on behalf of the
respective Borrower in the form of Exhibit A-1, appropriately completed to
specify: (A) the date of Borrowing (which shall be a Business Day), (B) the
aggregate principal amount of the Swingline Loans to be made pursuant to such
Borrowing (stated in the relevant currency) and (C) whether the respective
Swingline Loans shall constitute U.S. Borrower Multicurrency Facility Swingline
Loans, Bermuda Borrower Multicurrency Facility Swingline Loans, U.S. Borrower
Dollar Facility Swingline Loans or Bermuda Borrower Dollar Facility Swingline
Loans.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(g) or (h), as applicable, with each Borrower irrevocably agreeing,
by its incurrence of any Swingline Loan, to the making of the Mandatory
Borrowings as set forth in Section 1.01(g) or (h), as applicable.
(c) Without in any way limiting the obligation of either Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or the Swingline Lender (in the case of a Borrowing of
Swingline Loans), the respective Issuing Lender (in the case of the issuance of
Letters of Credit) or the respective Bank Guaranty Issuer (in the case of the
issuance of Bank Guaranties), as the case may be, may, prior to receipt of
written confirmation, act without liability upon the basis of such telephonic
notice, believed by the Administrative Agent, the Swingline Lender, such Issuing
Lender or such Bank Guaranty Issuer, as the case may be, in good faith to be
from an Authorized Officer of such Borrower. In each such case, the
Administrative Agent's, the Swingline Lender's, the respective Issuing Lender's
or the respective Bank Guaranty Issuer's record of the terms of such telephonic
notice shall be conclusive evidence of the contents of such notice, absent
manifest error.
1.04 Disbursement of Funds. Not later than 1:00 P.M. (New York time)
on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 3:00 P.M. (New York time) on the date specified
pursuant to Section 1.03(b)(i) and (y) in the case of Mandatory Borrowings, not
later than 10:00 A.M. (New York time) on the date specified in Section 1.01(g)
or (h), as applicable), each Lender with a Commitment under the respective
Tranche (or each Lender required to make Loans pursuant to the respective
Mandatory Borrowing), will make available its pro rata portion (determined in
accordance with Section 1.07) of each such Borrowing requested to be made on
such date (or, (I) in the case of Swingline Loans, the Swingline Lender shall
make available the full amount thereof and (II) in the case of Additional
Tranche B Term Loans, each Lender with a Tranche B Term Loan Commitment will
make available an amount thereof equal to its Tranche B Term Loan Commitment on
the Restatement Effective Date (prior to the termination thereof pursuant to
Section 3.03(c) on such date). All such amounts shall be made available in
Dollars (in the case of Dollar Denominated Loans), in Euros (in the case of Euro
Denominated Loans) or in Yen (in the case of Yen Denominated Term Loans), as the
case may be, and in immediately available funds at the Payment Office of the
Administrative Agent, and the Administrative Agent will make available to the
respective Borrower the Payment Office or such
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other location as may be reasonably satisfactory to the Administrative Agent and
specified in the relevant Notice of Borrowing (or to the Swingline Lender in the
case of a Mandatory Borrowing) the aggregate of the amounts so made available by
the Lenders prior to (x) 3:00 P.M. (New York time) on such day (excluding
Swingline Loans and Revolving Loans made pursuant to Mandatory Borrowings) and
(y) 4:00 P.M. (New York time) on such day, in the case of any Swingline Loan, in
each case to the extent of funds actually received by the Administrative Agent
prior to such times on such day. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of Borrowing that such Lender does not
intend to make available to the Administrative Agent such Lender's portion of
any Borrowing to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date of Borrowing and the Administrative Agent may, in reliance upon such
assumption, make available to the relevant Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the relevant Borrower
to pay immediately such corresponding amount to the Administrative Agent and
such Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
on demand from such Lender or the U.S. Borrower or the Bermuda Borrower, as the
case may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Administrative
Agent to the respective Borrower until the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (i) if
recovered from such Lender, the overnight Federal Funds Rate and (ii) if
recovered from the respective Borrower, the rate of interest applicable to the
respective Borrowing, as determined pursuant to Section 1.08. Nothing in this
Section 1.04 shall be deemed to relieve any Lender from its obligation to make
Loans hereunder or to prejudice any rights which the relevant Borrower may have
against any Lender as a result of any failure by such Lender to make Loans
hereunder.
1.05 Notes. (a) Subject to the provisions of Section 1.05(n), the
Bermuda Borrower's (in the case of Tranche A Term Loans, Tranche B Term Loans,
Bermuda Borrower Incremental Term Loans, Bermuda Borrower Multicurrency Facility
Revolving Loans, Bermuda Borrower Multicurrency Facility Swingline Loans,
Bermuda Borrower Dollar Facility Revolving Loans and Bermuda Borrower Dollar
Facility Swingline Loans) and the U.S. Borrower's (in the case of U.S. Borrower
Incremental Term Loans, U.S. Borrower Multicurrency Facility Revolving Loans,
U.S. Borrower Multicurrency Facility Swingline Loans, U.S. Borrower Dollar
Facility Revolving Loans and U.S. Borrower Dollar Facility Swingline Loans)
obligation to pay the principal of, and interest on, the Loans made by each
Lender shall be evidenced (i) if Tranche A Term Loans, by a promissory note duly
executed and delivered by the Bermuda Borrower substantially in the form of
Exhibit B-1 with blanks appropriately completed in conformity herewith (each, a
"Tranche A Term Note" and, collectively, the "Tranche A Term Notes"), (ii) if
Tranche B Term Loans, by a promissory note duly executed and delivered by the
Bermuda Borrower substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each, a "Tranche B Term Note"
and, collectively, the "Tranche B Term Notes"), (iii) if Incremental Term Loans,
by a promissory note duly executed and delivered by the Incremental Term Loan
Borrower for such Tranche substantially in the form of Exhibit B-3, with blanks
appropriately completed in conformity herewith (each, an "Incremental Term Note"
and, collectively, the "Incremental Term Notes"), (iv) if U.S. Borrower
Multicurrency Facility Revolving Loans, by a promissory note duly executed and
delivered by the U.S. Borrower substantially in the form of Exhibit B-4, with
blanks appropriately completed in conformity herewith (each, a "U.S. Borrower
Multicurrency Facility Revolving Note" and, collectively, the "U.S. Borrower
Multicurrency Facility Revolving Notes"), (v) if Bermuda Borrower Multicurrency
Facility Revolving Loans, by a promissory note duly executed and delivered by
the Bermuda Borrower substantially in the form of Exhibit B-5, with blanks
appropriately completed in conformity herewith (each, a "Bermuda Borrower
Multicurrency Facility Revolving Note" and, collectively, the "Bermuda Borrower
Multicurrency Facility Revolving Notes"), (vi) if U.S. Borrower Dollar Facility
Revolving Loans, by a promissory note duly executed and delivered by the U.S.
Borrower substantially in the form of Exhibit B-6, with blanks appropriately
completed in conformity herewith (each, a "U.S. Borrower Dollar Facility
Revolving Note" and, collectively, the "U.S. Borrower Dollar Facility Revolving
Notes"), (vii) if Bermuda Borrower Dollar Facility Revolving Loans, by a
promissory note duly executed and delivered by the Bermuda Borrower
substantially in the form of Exhibit B-7, with blanks appropriately completed in
conformity herewith (each, a "Bermuda Borrower Dollar Facility Revolving Note"
-12-
and, collectively, the "Bermuda Borrower Dollar Facility Revolving Notes"),
(viii) if U.S. Borrower Multicurrency Facility Swingline Loans, by a promissory
note duly executed and delivered by the U.S. Borrower substantially in the form
of Exhibit B-8, with blanks appropriately completed in conformity herewith (the
"U.S. Borrower Multicurrency Facility Swingline Note"), (ix) if Bermuda Borrower
Multicurrency Facility Swingline Loans, by a promissory note duly executed and
delivered by the Bermuda Borrower substantially in the form of Exhibit B-9, with
blanks appropriately completed in conformity herewith (the "Bermuda Borrower
Multicurrency Facility Swingline Note"), (x) if U.S. Borrower Dollar Facility
Swingline Loans, by a promissory note duly executed and delivered by the U.S.
Borrower substantially in the form of Exhibit B-10, with blanks appropriately
completed in conformity herewith (the "U.S. Borrower Dollar Facility Swingline
Note"), and (xi) if Bermuda Borrower Dollar Facility Swingline Loans, by a
promissory note duly executed and delivered by the Bermuda Borrower
substantially in the form of Exhibit B-11, with blanks appropriately completed
in conformity herewith (the "Bermuda Borrower Dollar Facility Swingline Note").
(b) The Tranche A Term Note issued to each Lender with a Tranche A
Term Loan Commitment or outstanding Tranche A Term Loans shall (i) be executed
by the Bermuda Borrower, (ii) be payable to such Lender or its registered
assigns and be dated the Restatement Effective Date (or, in the case of any
Tranche A Term Note issued after the Restatement Effective Date, the date of
issuance thereof), (iii) be in a stated principal amount (expressed in Yen)
equal to the Tranche A Term Loan Commitment of such Lender on the Restatement
Effective Date before giving effect to any reductions thereto on such date (or,
in the case of any Tranche A Term Note issued after the Restatement Effective
Date, in a stated principal amount (expressed in Yen) equal to the outstanding
principal amount of the Tranche A Term Loan of such Lender on the date of the
issuance thereof) and be payable (in Yen) in the principal amount of the Tranche
A Term Loan evidenced thereby from time to time, provided that the obligations
evidenced by each Tranche A Term Loan shall be subject to conversion into Dollar
Denominated Loans as provided (and in the circumstances contemplated by) Section
1.14, (iv) mature on the Tranche A Term Loan Maturity Date, (v) bear interest as
provided in the appropriate clauses of Section 1.08 in respect of the Yen
Denominated Term Loans (or, after the incurrence of a Sharing Event, the Base
Rate Loans), evidenced thereby, (vi) be subject to voluntary repayment as
provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(c) The Tranche B Term Note issued to each Lender with a Tranche B
Term Loan Commitment or outstanding Tranche B Term Loans shall (i) be executed
by the Bermuda Borrower, (ii) be payable to such Lender (or an affiliate
designated by such Lender) or its registered assigns and be dated the
Restatement Effective Date (or, in the case of any Tranche B Term Note issued
after the Restatement Effective Date, the date of issuance thereof), (iii) be in
a stated principal amount (expressed in Dollars) equal to the sum of the Tranche
B Term Loan Commitment of such Lender on the Restatement Effective Date (before
giving effect to any reductions thereto on such date) plus the aggregate
principal amount of the Converted Tranche B Term Loan of such Lender on the
Restatement Effective Date (or, in the case of any Tranche B Term Note issued
after the Restatement Effective Date, in a stated principal amount (expressed in
Dollars) equal to the outstanding principal amount of the Tranche B Term Loan of
such Lender on the date of the issuance thereof) and be payable (in Dollars) in
the principal amount of the Tranche B Term Loan evidenced thereby from time to
time, (iv) mature on the Tranche B Term Loan
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Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary repayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) The U.S. Borrower Multicurrency Facility Revolving Note issued to
each Multicurrency Facility RL Lender shall (i) be executed by the U.S.
Borrower, (ii) be payable to the order of such Multicurrency Facility RL Lender
(or an affiliate designated by such Multicurrency Facility RL Lender) or its
registered assigns and be dated the Restatement Effective Date (or, if issued
thereafter, the date of issuance thereof), (iii) be in a stated principal amount
(expressed in Dollars) equal to the Multicurrency Facility Revolving Loan
Commitment of such Multicurrency Facility RL Lender on the date of issuance
thereof (or, if issued after the termination of such Multicurrency Facility
Revolving Loan Commitment, in an amount equal to the Individual U.S. Borrower
Multicurrency Facility RL Exposure of the respective Multicurrency Facility RL
Lender), provided that if, because of fluctuations in exchange rates after the
date of issuance thereof, the U.S. Borrower Multicurrency Facility Revolving
Note of any Multicurrency Facility RL Lender would not be at least as great as
the outstanding principal amount (taking the Dollar Equivalent of all Euro
Denominated Loans evidenced thereby) of the U.S. Borrower Multicurrency Facility
Revolving Loans made by such Multicurrency Facility RL Lender at any time
outstanding, the respective Multicurrency Facility RL Lender may request (and in
such case the U.S. Borrower shall promptly execute and deliver) a new U.S.
Borrower Multicurrency Facility Revolving Note in an amount equal to the
aggregate principal amount (taking the Dollar Equivalent of all Euro Denominated
Loans evidenced thereby) of the U.S. Borrower Multicurrency Facility Revolving
Loans of such Multicurrency Facility RL Lender outstanding on the date of the
issuance of such new U.S. Borrower Multicurrency Facility Revolving Note, (iv)
with respect to each U.S. Borrower Multicurrency Facility Revolving Loan
evidenced thereby, be payable in the respective Available Currency in which such
U.S. Borrower Multicurrency Facility Revolving Loan was made, provided that the
obligations with respect to each Euro Denominated Loan evidenced thereby shall
be subject to conversion into Dollar Denominated Loans as provided in (and in
the circumstances contemplated by) Section 1.14, (v) mature on the Revolving
Loan Maturity Date, (vi) bear interest as provided in the appropriate clauses of
Section 1.08 in respect of the U.S. Borrower Multicurrency Facility Revolving
Loans evidenced thereby from time to time, (vii) be subject to voluntary
prepayment as provided in Section 4.01 and mandatory repayment as provided in
Section 4.02 and (viii) be entitled to the benefits of this Agreement and the
other Credit Documents.
(e) The Bermuda Borrower Multicurrency Facility Revolving Note issued
to each Multicurrency Facility RL Lender shall (i) be executed by the Bermuda
Borrower, (ii) be payable to the order of such Multicurrency Facility RL Lender
(or an affiliate designated by such Multicurrency Facility RL Lender) or its
registered assigns and be dated the Restatement Effective Date (or, if issued
thereafter, the date of issuance thereof), (iii) be in a stated principal amount
(expressed in Dollars) equal to the Multicurrency Facility Revolving Loan
Commitment of such Multicurrency Facility RL Lender on the date of issuance
thereof (or, if issued after the termination of such Multicurrency Facility
Revolving Loan Commitment, in an amount equal to the Individual Bermuda Borrower
Multicurrency Facility RL Exposure of the respective Multicurrency Facility RL
Lender), provided that if, because of fluctuations in exchange rates after the
date of issuance thereof, the Bermuda Borrower Multicurrency Facility Revolving
Note of any Multicurrency Facility RL Lender would not be at least as great as
the outstanding principal amount (taking the Dollar Equivalent of all Euro
Denominated Loans evidenced thereby) of the Bermuda Borrower Multicurrency
Facility Revolving Loans made by such Multicurrency Facility RL Lender at any
time outstanding, the respective Multicurrency Facility RL Lender may request
(and in such case the Bermuda Borrower shall promptly execute and deliver) a new
Bermuda Borrower Multicurrency Facility Revolving Note in an amount equal to the
aggregate principal amount (taking the Dollar Equivalent of all Euro Denominated
Loans evidenced thereby) of the Bermuda Borrower
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Multicurrency Facility Revolving Loans of such Multicurrency Facility RL Lender
outstanding on the date of the issuance of such new Bermuda Borrower
Multicurrency Facility Revolving Note, (iv) with respect to each Bermuda
Borrower Multicurrency Facility Revolving Loan evidenced thereby, be payable in
the respective Available Currency in which such Bermuda Borrower Multicurrency
Facility Revolving Loan was made, provided that the obligations with respect to
each Euro Denominated Loan evidenced thereby shall be subject to conversion into
Dollar Denominated Loans as provided in (and in the circumstances contemplated
by) Section 1.14, (v) mature on the Revolving Loan Maturity Date, (vi) bear
interest as provided in the appropriate clauses of Section 1.08 in respect of
the Bermuda Borrower Multicurrency Facility Revolving Loans evidenced thereby
from time to time, (vii) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (viii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(f) The U.S. Borrower Dollar Facility Revolving Note issued to each
Dollar Facility RL Lender shall (i) be executed by the U.S. Borrower, (ii) be
payable to the order of such Dollar Facility RL Lender or its registered assigns
and be dated the Restatement Effective Date (or, if issued thereafter, the date
of issuance thereof), (iii) be in a stated principal amount (expressed in
Dollars) equal to the Dollar Facility Revolving Loan Commitment of such Dollar
Facility RL Lender on the date of issuance thereof (or, if issued after the date
of the termination of such Dollar Facility Revolving Loan Commitment, in a
stated principal amount equal to the Individual U.S. Borrower Dollar Facility RL
Exposure of the respective Dollar Facility RL Lender) and be payable in Dollars
in the outstanding principal amount of Dollar Facility Revolving Loans evidenced
thereby, (iv) mature on the Revolving Loan Maturity Date, (v) bear interest as
provided in the appropriate clauses of Section 1.08 in respect of Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(g) The Bermuda Borrower Dollar Facility Revolving Note issued to each
Dollar Facility RL Lender shall (i) be executed by the Bermuda Borrower, (ii) be
payable to the order of such Dollar Facility RL Lender or its registered assigns
and be dated the Restatement Effective Date (or, if issued thereafter, the date
of issuance thereof), (iii) be in a stated principal amount (expressed in
Dollars) equal to the Dollar Facility Revolving Loan Commitment of such Dollar
Facility RL Lender on the date of issuance thereof (or, if issued after the date
of the termination of such Dollar Facility Revolving Loan Commitment, in a
stated principal amount equal to the Individual Bermuda Borrower Dollar Facility
RL Exposure of the respective Dollar Facility RL Lender) and be payable in
Dollars in the outstanding principal amount of Dollar Facility Revolving Loans
evidenced thereby, (iv) mature on the Revolving Loan Maturity Date, (v) bear
interest as provided in the appropriate clauses of Section 1.08 in respect of
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(h) The U.S. Borrower Multicurrency Facility Swingline Note issued to
the Swingline Lender shall (i) be executed by the U.S. Borrower, (ii) be payable
to the order of the Swingline Lender and be dated the Restatement Effective Date
(or, if issued thereafter, the date of the issuance thereof), (iii) be in a
stated principal amount (expressed in Dollars) equal to the Maximum Swingline
Amount, provided that if, because of fluctuations in exchange rates after the
date of issuance thereof, the U.S. Borrower Multicurrency Facility Swingline
Note would not be at least as great as the outstanding principal amount (taking
the Dollar Equivalent of all U.S. Borrower Multicurrency Facility Swingline
Loans denominated in Euros) of U.S. Borrower Multicurrency Facility Swingline
Loans at any time outstanding, the Swingline Lender may request that the U.S.
Borrower (and in such case the U.S. Borrower shall) promptly execute and deliver
a new U.S. Borrower Multicurrency Facility Swingline Note in an amount equal to
the aggregate principal amount (taking the Dollar Equivalent of all U.S.
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Borrower Multicurrency Facility Swingline Loans outstanding in Euros) of U.S.
Borrower Multicurrency Facility Swingline Loans outstanding, (iv) be payable
with respect to each U.S. Borrower Multicurrency Facility Swingline Loan in the
respective Available Currency in which such U.S. Borrower Multicurrency Facility
Swingline Loan was made, provided that the obligations evidenced by the U.S.
Borrower Multicurrency Facility Swingline Note with respect to U.S. Borrower
Multicurrency Facility Swingline Loans incurred in Euros shall be subject to
conversion into Dollar Denominated Loans as provided in (and in the
circumstances contemplated by) Section 1.14, (v) mature on the Swingline Expiry
Date, (vi) bear interest as provided in the appropriate clause of Section 1.08
in respect of the U.S. Borrower Multicurrency Facility Swingline Loans evidenced
thereby from time to time, (vii) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02 and (viii)
be entitled to the benefits of this Agreement and the other Credit Documents.
(i) The Bermuda Borrower Multicurrency Facility Swingline Note issued
to the Swingline Lender shall (i) be executed by the Bermuda Borrower, (ii) be
payable to the order of the Swingline Lender and be dated the Restatement
Effective Date (or, if issued thereafter, the date of the issuance thereof),
(iii) be in a stated principal amount (expressed in Dollars) equal to the
Maximum Swingline Amount, provided that if, because of fluctuations in exchange
rates after the date of issuance thereof, the Bermuda Borrower Multicurrency
Facility Swingline Note would not be at least as great as the outstanding
principal amount (taking the Dollar Equivalent of all Bermuda Borrower
Multicurrency Facility Swingline Loans denominated in Euros) of Bermuda Borrower
Multicurrency Facility Swingline Loans at any time outstanding, the Swingline
Lender may request that the Bermuda Borrower (and in such case the Bermuda
Borrower shall) promptly execute and deliver a new Bermuda Borrower
Multicurrency Facility Swingline Note in an amount equal to the aggregate
principal amount (taking the Dollar Equivalent of all Bermuda Borrower
Multicurrency Facility Swingline Loans outstanding in Euros) of Bermuda Borrower
Multicurrency Facility Swingline Loans outstanding, (iv) be payable with respect
to each Bermuda Borrower Multicurrency Facility Swingline Loan in the respective
Available Currency in which such Bermuda Borrower Multicurrency Facility
Swingline Loan was made, provided that the obligations evidenced by the Bermuda
Borrower Multicurrency Facility Swingline Note with respect to Bermuda Borrower
Multicurrency Facility Swingline Loans incurred in Euros shall be subject to
conversion into Dollar Denominated Loans as provided in (and in the
circumstances contemplated by) Section 1.14, (v) mature on the Swingline Expiry
Date, (vi) bear interest as provided in the appropriate clause of Section 1.08
in respect of the Bermuda Borrower Multicurrency Facility Swingline Loans
evidenced thereby from time to time, (vii) be subject to voluntary prepayment as
provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and
(viii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(j) The U.S. Borrower Dollar Facility Swingline Note issued to the
Swingline Lender shall (i) be executed by the U.S. Borrower, (ii) be payable to
the order of the Swingline Lender or its registered assigns and be dated the
Restatement Effective Date, (iii) be in a stated principal amount (expressed in
Dollars) equal to the Maximum Swingline Amount and be payable in Dollars in the
principal amount of the outstanding Dollar Facility Swingline Loans evidenced
thereby from time to time, (iv) mature on the Swingline Expiry Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(k) The Bermuda Borrower Dollar Facility Swingline Note issued to the
Swingline Lender shall (i) be executed by the Bermuda Borrower, (ii) be payable
to the order of the Swingline Lender or its registered assigns and be dated the
Restatement Effective Date, (iii) be in a stated principal amount (expressed in
Dollars) equal to the Maximum Swingline Amount and be payable in Dollars in the
principal amount of the outstanding Dollar Facility Swingline Loans evidenced
thereby from time to time,
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(iv) mature on the Swingline Expiry Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(l) The Incremental Term Note issued to each Lender with an
Incremental Term Loan Commitment or outstanding Incremental Term Loans under a
given Tranche shall (i) be executed by the Incremental Term Loan Borrower for
such Tranche, (ii) be payable to such Lender (or an affiliate designated by such
Lender) or its registered assigns and be dated the date of issuance thereof,
(iii) be in a stated principal amount (expressed in Dollars) equal to the
Incremental Term Loan Commitment of such Lender on the effective date of the
respective Incremental Term Loan Commitment Agreement (prior to the incurrence
of any Incremental Term Loans pursuant thereto on such date) (or, if issued
thereafter, be in a stated principal amount (expressed in Dollars) equal to the
sum of the then remaining amount of the Incremental Term Loan Commitment of such
Lender plus the outstanding principal amount of the Incremental Term Loans of
such Lender on the date of issuance thereof) and be payable (in Dollars) in the
principal amount of the Incremental Term Loans evidenced thereby from time to
time, (iv) mature on the respective Incremental Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02 and (vi) be entitled to the
benefits of this Agreement and the other Credit Documents.
(m) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation or endorsement shall not affect either
Borrower's obligations in respect of any Loans.
(n) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement, Notes shall only be delivered to Lenders that at
any time specifically request the delivery of such Notes. No failure of any
Lender to request or obtain a Note evidencing its Loans to either Borrower shall
affect or in any manner impair the obligations of the respective Borrower to pay
the Loans (and all related Obligations) which would otherwise be evidenced
thereby in accordance with the requirements of this Agreement, and shall not in
any way affect the security or guaranties therefor provided pursuant to the
various Credit Documents. Any Lender that does not have a Note evidencing its
outstanding Loans shall in no event be required to make the notations otherwise
described in preceding clause (m). At any time when any Lender requests the
delivery of a Note to evidence any of its Loans, the relevant Borrower shall
promptly execute and deliver to the respective Lender the requested Note or
Notes in the appropriate amount or amounts to evidence such Loans.
1.06 Conversions. Each Borrower shall have the option to convert, on
any Business Day occurring after the Restatement Effective Date, all or a
portion equal to at least the applicable Minimum Borrowing Amount (and, if
greater, in an integral multiple of $500,000) of the outstanding principal
amount of Dollar Denominated Loans (other than Dollar Denominated Swingline
Loans, which shall at all times be maintained as Base Rate Loans) made pursuant
to one or more Borrowings of one or more Types of Dollar Denominated Loans under
a single Tranche into a Borrowing or Borrowings of another Type of Dollar
Denominated Loan under such Tranche, provided that (i) except as otherwise
provided in Section 1.10(b) or unless the respective Borrower pays all amounts
owing pursuant to Section 1.11 concurrently with any such conversion, Eurodollar
Loans may be converted into Base Rate Loans only on the last day of an Interest
Period applicable to the Eurodollar Loans being converted and no such partial
conversion of Eurodollar Loans shall reduce the outstanding principal amount of
such Eurodollar Loans made pursuant to a single Borrowing to less than the
applicable Minimum Borrowing Amount
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applicable thereto, (ii) unless the Required Lenders otherwise agree, Base Rate
Loans may only be converted into Eurodollar Loans if no Default or Event of
Default is in existence on the date of conversion, (iii) unless the
Administrative Agent has determined that the Syndication Date has occurred (at
which time this clause (iii) shall no longer be applicable), prior to the 30th
day after the Restatement Effective Date, conversions of Base Rate Loans into
Eurodollar Loans may only be made if any such conversion is effective on the
first day of the first, second, third or fourth Interest Period referred to in
clause (B) of the proviso appearing in Section 1.01(b)(iii) and so long as such
conversion does not result in a greater number of Borrowings of Eurodollar Loans
prior to the 30th day after the Restatement Effective Date as are permitted
under Section 1.01(b)(iii), and (iv) no conversion pursuant to this Section 1.06
shall result in a greater number of Borrowings of Euro Rate Loans than is
permitted under Section 1.02. Each such conversion shall be effected by a
Borrower by giving the Administrative Agent at its Notice Office prior to 2:00
P.M. (New York time) at least three Business Days' prior notice (each, a "Notice
of Conversion/Continuation") in the form of Exhibit A-2, appropriately completed
to specify the Dollar Denominated Loans to be so converted, the Borrowing or
Borrowings pursuant to which such Dollar Denominated Loans were made and, if to
be converted into Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Lender prompt
notice of any such proposed conversion affecting any of its Dollar Denominated
Loans.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A Term Loans,
Tranche B Term Loans, Incremental Term Loans of a given Tranche, Multicurrency
Facility Revolving Loans (including U.S. Borrower Multicurrency Facility
Revolving Loans, Bermuda Borrower Multicurrency Facility Revolving Loans and
Mandatory Multicurrency Facility RL Borrowings) and Dollar Facility Revolving
Loans (including U.S. Borrower Dollar Facility Revolving Loans, Bermuda Borrower
Dollar Facility Revolving Loans and Mandatory Dollar Facility RL Borrowings)
under this Agreement shall be incurred from the Lenders pro rata on the basis of
such Lenders' Tranche A Term Loan Commitments, Tranche B Term Loan Borrowing
Amounts, Incremental Term Loan Commitments, Multicurrency Facility RL
Percentages or Dollar Facility RL Percentages, as the case may be. All
Borrowings of Swingline Loans shall be incurred from the Swingline Lender. It is
understood that no Lender shall be responsible for any default by any other
Lender of its obligation to make Loans hereunder and that each Lender shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to make its Loans hereunder.
1.08 Interest. (a) The U.S. Borrower hereby agrees to pay (in the case
of U.S. Borrower Incremental Term Loans, U.S. Borrower Multicurrency Facility
Revolving Loans, U.S. Borrower Multicurrency Facility Swingline Loans and U.S.
Borrower Dollar Facility Revolving Loans, in each case maintained as Base Rate
Loans, and U.S. Borrower Dollar Facility Swingline Loans (including any Euro
Denominated Loan made to the U.S. Borrower and converted into a Dollar
Denominated Loan pursuant to Section 1.14)) and the Bermuda Borrower hereby
agrees to pay (in the case of Tranche A Term Loans converted into Dollar
Denominated Loans pursuant to Section 1.14, Tranche B Term Loans, Bermuda
Borrower Incremental Term Loans, Bermuda Borrower Multicurrency Facility
Revolving Loans, Bermuda Borrower Multicurrency Facility Swingline Loans and
Bermuda Borrower Dollar Facility Revolving Loans, in each case maintained as
Base Rate Loans, and Bermuda Borrower Dollar Facility Swingline Loans (including
any Euro Denominated Loan made to the Bermuda Borrower and converted into a
Dollar Denominated Loan pursuant to Section 1.14)), interest in respect of the
unpaid principal amount of each Base Rate Loan made to it from the date of the
Borrowing thereof (or, in the case of a conversion of any Yen Denominated Term
Loan or Euro Denominated Loan into a Dollar Denominated Loan pursuant to Section
1.14, from the date of the conversion of such Loan) until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Base Rate Loan and (ii)
the conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section
1.06, at a rate per annum which shall be equal to the sum of the Base Rate in
effect from time to time during the period such Base Rate Loan is outstanding
plus the relevant Applicable Margin as in effect from time to time.
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(b) The U.S. Borrower hereby agrees to pay (in the case of U.S.
Borrower Incremental Term Loans, U.S. Borrower Multicurrency Facility Revolving
Loans and U.S. Borrower Dollar Facility Revolving Loans maintained as Eurodollar
Loans) and the Bermuda Borrower hereby agrees to pay (in the case of Tranche B
Term Loans, Bermuda Borrower Incremental Term Loans, Bermuda Borrower
Multicurrency Facility Revolving Loans and Bermuda Borrower Dollar Facility
Revolving Loans maintained as Eurodollar Loans), interest in respect of the
unpaid principal amount of each Eurodollar Loan made to it from the date of the
Borrowing thereof until the earlier of (i) the maturity (whether by acceleration
or otherwise) of such Eurodollar Loan and (ii) the conversion of such Eurodollar
Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable,
at a rate per annum which shall, during each Interest Period applicable thereto,
be equal to the sum of the Eurodollar Rate for such Interest Period plus the
relevant Applicable Margin as in effect from time to time.
(c) Each Borrower hereby agrees to pay interest in respect of the
unpaid principal amount of each Euro Denominated Revolving Loan made to it from
the date of the Borrowing thereof until the maturity thereof (whether by
acceleration, prepayment or otherwise) at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of the relevant
Applicable Margin as in effect from time to time plus Euro LIBOR for such
Interest Period plus any Mandatory Costs.
(d) Each Borrower hereby agrees to pay interest in respect of the
unpaid principal amount of each Euro Denominated Swingline Loan made to it from
the date of the Borrowing thereof until the maturity thereof (whether by
acceleration, prepayment or otherwise) at a rate per annum which shall be equal
to the sum of the Applicable Margin for Euro Denominated Revolving Loans as in
effect from time to time plus the Overnight Euro Rate in effect from time to
time during the period such Euro Denominated Swingline Loan is outstanding plus
any Mandatory Costs.
(e) The Bermuda Borrower hereby agrees to pay interest in respect of
the unpaid principal amount of each Yen Denominated Term Loan made to it from
the date of the Borrowing thereof until the maturity thereof (whether by
acceleration, prepayment or otherwise) at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of the relevant
Applicable Margin as in effect from time to time plus Yen LIBOR for such
Interest Period plus any Mandatory Costs.
(f) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum (1) in the case of
overdue principal of, and interest or other overdue amounts owing with respect
to, Euro Denominated Revolving Loans and overdue amounts owing with respect to
Euro Denominated Letter of Credit Outstandings and Euro Denominated Bank
Guaranty Outstandings, equal to 2% per annum in excess of the relevant
Applicable Margin as in effect from time to time plus Euro LIBOR for such
successive periods not exceeding three months as the Administrative Agent may
determine from time to time in respect of amounts comparable to the amount not
paid plus any Mandatory Costs, (2) in the case of overdue principal of, and
interest or other amounts owing with respect to, Euro Denominated Swingline
Loans, equal to 2% per annum in excess of the Applicable Margin for Euro
Denominated Revolving Loans as in effect from time to time plus the Overnight
Euro Rate as in effect from time to time plus any Mandatory Costs, (3) in the
case of overdue principal of, and interest or other overdue amounts owing with
respect to, Yen Denominated Term Loans, equal to 2% per annum in excess of the
relevant Applicable Margin as in effect from time to time plus Yen LIBOR for
such successive periods not exceeding three months as the Administrative Agent
may determine from time to time in respect of amounts comparable to the amount
not paid plus any Mandatory Costs and (4) in all other cases, equal to the
greater of (x) 2% per annum in excess of the rate otherwise applicable to Base
Rate Loans maintained pursuant to the respective Tranche (or, if the overdue
amount owing does not relate to any specific Tranche, the rate otherwise
applicable to Dollar Facility Revolving Loans which are
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maintained as Base Rate Loans) from time to time and (y) the rate which is 2% in
excess of the rate then borne by such Loans, in each case with such interest to
be payable on demand.
(g) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan and each Swingline Loan, quarterly in arrears on
each Quarterly Payment Date, (ii) in respect of each Euro Rate Loan (other than
a Euro Denominated Swingline Loan), on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in excess of three
months, on each date occurring at three month intervals after the first day of
such Interest Period and (iii) in respect of each Loan, on any repayment or
prepayment (on the amount repaid or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(h) Upon each Interest Determination Date, the Administrative Agent
shall determine the Euro Rate for the respective Interest Period or Interest
Periods and shall promptly notify the respective Borrower and the respective
Lenders thereof. Each such determination shall, absent manifest error, be final
and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time a Borrower gives any Notice of
Borrowing or Notice of Conversion/Continuation in respect of the making of, or
conversion into, any Euro Rate Loan (other than a Euro Denominated Swingline
Loan) (in the case of the initial Interest Period applicable thereto) or on the
third Business Day prior to the expiration of an Interest Period applicable to
such Euro Rate Loan (in the case of any subsequent Interest Period), the
respective Borrower shall have the right to elect, by having an Authorized
Officer of such Borrower give the Administrative Agent notice thereof, the
interest period (each, an "Interest Period") applicable to such Euro Rate Loan,
which Interest Period shall, at the option of such Borrower (but otherwise
subject to the proviso appearing in Section 1.01(a)(iii) and clause (B) of the
proviso appearing in Section 1.01(b)(iii) and clause (iii) of the proviso
appearing in Section 1.06) be (x) in the case of a Eurodollar Loan, a one, two,
three or six-month period or, to the extent agreed to by all Lenders required to
make Loans under the respective Tranche, a nine or twelve-month period (or, if
required by clause (B) of the proviso appearing in Section 1.01(b)(iii), a
one-week period) or (y) in the case of any Euro Denominated Loan (other than a
Euro Denominated Swingline Loan) or any Yen Denominated Term Loan, a one, two,
three or six-month period; provided that:
(i) all Euro Rate Loans comprising the same Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Euro Rate Loan shall commence
on the date of Borrowing of such Euro Rate Loan (including, in the case of
Dollar Denominated Loans, the date of any conversion thereto from a
Borrowing of Base Rate Loans) and each Interest Period occurring thereafter
in respect of such Euro Rate Loan shall commence on the day on which the
next preceding Interest Period applicable thereto expires;
(iii) if any Interest Period relating to a Euro Rate Loan begins on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end on
the last Business Day of such calendar month;
(iv) if any Interest Period for a Euro Rate Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, however, that if any
Interest Period for a Euro Rate Loan would otherwise expire on a day which
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;
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(v) no Interest Period in respect of any Borrowing under a given
Tranche of Loans shall be selected which extends beyond the respective
Maturity Date for such Tranche of Loans;
(vi) unless the Required Lenders otherwise agree, no Interest Period
for a Eurodollar Loan may be selected at any time when a Default or Event
of Default is then in existence; and
(vii) no Interest Period in respect of any Borrowing of any Tranche of
Term Loans shall be elected which extends beyond any date upon which a
Scheduled Repayment for the respective Tranche of Term Loans will be
required to be made under Section 4.02(b) if, after giving effect to the
election of such Interest Period, the aggregate principal amount of such
Tranche of Term Loans which have Interest Periods which will expire after
such date will be in excess of the aggregate principal amount of such
Tranche of Term Loans then outstanding less the aggregate amount of such
required Scheduled Repayment.
With respect to any Non-Dollar Denominated Loans (other than Euro Denominated
Swingline Loans), at the end of any Interest Period applicable to a Borrowing
thereof, the U.S. Borrower or the Bermuda Borrower, as applicable, may elect to
split the respective Borrowing into two or more Borrowings of the same Type or
combine two or more Borrowings of the same Type into a single Borrowing, in each
case, by having an Authorized Officer of the relevant Borrower give notice
thereof together with its election of one or more Interest Periods, in each case
so long as each resulting Borrowing (x) has an Interest Period which complies
with the foregoing requirements of this Section 1.09, (y) has a principal amount
which is not less than the Minimum Borrowing Amount applicable to Borrowings of
the respective Type and Tranche, and (z) does not cause a violation of the
requirements of Section 1.02. If upon the expiration of any Interest Period
applicable to a Borrowing of Euro Rate Loans, the U.S. Borrower or the Bermuda
Borrower, as applicable, has failed to elect, or is not permitted to elect, a
new Interest Period to be applicable to such Euro Rate Loans as provided above,
the relevant Borrower shall be deemed to have elected (x) if Eurodollar Loans,
to convert such Eurodollar Loans into Base Rate Loans and (y) if Non-Dollar
Denominated Loans, to select a one-month Interest Period for such Non-Dollar
Denominated Loans, in any such case effective as of the expiration date of such
current Interest Period.
1.10 Increased Costs; Illegality; etc. (a) In the event that any
Lender shall have determined in good faith (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto but,
with respect to clauses (i) and (iv) below, may be made only by the
Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes
arising after the Original Effective Date affecting the applicable
interbank market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of the
respective Euro Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Euro Rate Loan because of (x) any change since the Original Effective
Date in any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of
any new law or governmental rule, regulation, order, guideline or request,
such as, for example, but not limited to (A) a change in the basis of
taxation of payments to a Lender of the principal of or interest on the
Loans or any other amounts payable hereunder (except for changes in the
rate of tax on, or determined by reference to, the net income or net
profits of such Lender imposed by the jurisdiction in which its principal
office or applicable lending office is located), or (B) a change in
official reserve requirements,
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but, in all events, excluding reserves required under Regulation D to the
extent included in the computation of the Eurodollar Rate and/or (y) other
circumstances arising since the Original Effective Date affecting such
Lender, the interbank market or the position of such Lender in such market
(whether or not such Lender was a Lender at the time of such occurrence);
or
(iii) at any time after the Original Effective Date, that the making
or continuance of any Euro Rate Loan has been made unlawful by any law or
governmental rule, regulation or order (or would conflict with any
governmental rule, regulation, guideline, request or order not having the
force of law but with which such Lender customarily complies even though
the failure to comply therewith would not be unlawful), or impracticable as
a result of a contingency occurring after the Original Effective Date which
materially and adversely affects the applicable interbank market; or
(iv) at any time that a Non-Dollar Currency is not available in
sufficient amounts, as determined in good faith by the Administrative
Agent, to fund any Borrowing of Non-Dollar Denominated Loans requested
pursuant to Section 1.01;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clauses (i) or (iv) above) shall promptly give notice (by telephone
confirmed in writing) to the affected Borrower, and, except in the case of
clauses (i) and (iv) above, to the Administrative Agent of such determination
(which notice the Administrative Agent shall promptly transmit to each of the
other Lenders). Thereafter (w) in the case of clause (i) above, (A) in the event
Eurodollar Loans are so affected, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies Holdings, any affected
Borrower and the Lenders that the circumstances giving rise to such notice by
the Administrative Agent no longer exist, and any Notice of Borrowing or Notice
of Conversion/Continuation given by either Borrower with respect to Eurodollar
Loans which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by such Borrower and (B) in the event that any Non-Dollar
Denominated Loan is so affected, the relevant Euro Rate shall be determined on
the basis provided in the proviso to the definition of the relevant Euro Rate,
(x) in the case of clause (ii) above, the respective Borrower or Borrowers
agrees to pay to such Lender, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as shall be required to compensate such Lender for such increased
costs or reductions in amounts received or receivable hereunder (with the
written notice as to the additional amounts owed to such Lender, submitted to
the respective Borrower or Borrowers by such Lender in accordance with the
foregoing to be, absent manifest error, final and conclusive and binding on all
the parties hereto, although the failure to give any such notice shall not
release or diminish any of the respective Borrower's or Borrowers' obligations
to pay additional amounts pursuant to this Section 1.10(a) upon the subsequent
receipt of such notice), (y) in the case of clause (iii) above, the respective
Borrower or Borrowers shall take one of the actions specified in Section 1.10(b)
as promptly as possible and, in any event, within the time period required by
law and (z) in the case of clause (iv) above, Non-Dollar Denominated Loans
denominated in the affected Non-Dollar Currency (exclusive of any such
Non-Dollar Denominated Loans which have theretofore been funded) shall no longer
be available until such time as the Administrative Agent notifies the respective
Borrower or Borrowers and the Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist, and any Notice of Borrowing
or notice pursuant to Section 1.03(b)(i) given by the respective Borrower or
Borrowers with respect to such Non-Dollar Denominated Loans which have not been
incurred shall be deemed rescinded by such Borrower or Borrowers. Each of the
Administrative Agent and each Lender agrees that if it gives notice to either
Borrower of any of the events described in clause (i), (ii), (iii) or (iv)
above, it shall promptly notify such Borrower and, in the case of any such
Lender, the Administrative Agent, if such event ceases to exist.
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(b) At any time that any Euro Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the affected Borrower
may (and in the case of a Euro Rate Loan affected by the circumstances described
in Section 1.10(a)(iii) shall) either (x) if the affected Euro Rate Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that such Borrower was notified by the affected Lender
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Euro Rate Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent, (A) in the case of a
Eurodollar Loan, require the affected Lender to convert such Eurodollar Loan
into a Base Rate Loan (which conversion, in the case of the circumstance
described in Section 1.10(a)(iii), shall occur no later than the last day of the
Interest Period then applicable to such Eurodollar Loan or such earlier day as
shall be required by applicable law) and (B) in the case of any Euro Rate Loan
(other than a Eurodollar Loan), repay all outstanding Borrowings which include
such affected Euro Rate Loans in full in accordance with the applicable
requirements of Section 4.01; provided that, (i) if the circumstances described
in Section 1.10(a)(iii) apply to any Non-Dollar Denominated Loan, the U.S.
Borrower or the Bermuda Borrower, as the case may be, may, in lieu of taking the
actions described above, maintain such Non-Dollar Denominated Loan outstanding,
in which case, (x) in the case of Euro Denominated Revolving Loans, the
applicable Euro Rate shall be determined on the basis provided in the proviso to
the definition of Euro LIBOR, (y) in the case of Euro Denominated Swingline
Loans, the applicable interest rate shall be determined on the basis provided in
the proviso to the definition of Overnight Euro Rate or (z) in the case of Yen
Denominated Term Loans, the applicable Euro Rate shall be determined on the
basis provided in the proviso to the definition of Yen LIBOR, as the case may
be, unless the maintenance of such Non-Dollar Denominated Loan outstanding on
such basis would not stop the conditions described in Section 1.10(a)(iii) from
existing (in which case the actions described above, without giving effect to
the proviso, shall be required to be taken) and (ii) if more than one Lender is
affected at any time, then all affected Lenders must be treated the same
pursuant to this Section 1.10(b).
(c) If any Lender shall have determined after the Original Effective
Date that the adoption or effectiveness after the Original Effective Date of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change after the Original Effective Date in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by such Lender or any corporation controlling such Lender 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 such other
corporation's capital or assets as a consequence of such Lender's Commitment or
Commitments hereunder or its obligations hereunder to a level below that which
such Lender or such other corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's or
such other corporation's policies with respect to capital adequacy), then from
time to time, upon written demand by such Lender (with a copy to the
Administrative Agent), accompanied by the notice referred to in the next
succeeding sentence of this clause (c), the Borrowers jointly and severally
agree to pay to such Lender such additional amount or amounts as will compensate
such Lender or such other corporation for such reduction in the rate of return
to such Lender or such other corporation. Each Lender, upon determining in good
faith that any additional amounts will be payable pursuant to this Section
1.10(c), will give prompt written notice thereof to the relevant Borrower (a
copy of which shall be sent by such Lender to the Administrative Agent), which
notice shall set forth such Lender's basis for asserting its rights under this
Section 1.10(c) and the calculation, in reasonable detail, of such additional
amounts claimed hereunder, although the failure to give any such notice shall
not release or diminish either Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A
Lender's good faith determination of compensation owing under this Section
1.10(c) shall, absent manifest error, be final and conclusive and binding on all
the parties hereto. For the avoidance of
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doubt, nothing in this Section 1.10(c) shall require any Credit Agreement Party
to pay to any Lender any amount for which such Lender is compensated by way of
payment of Mandatory Costs.
(d) In the event that any Lender shall in good faith determine (which
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto) at any time that such Lender is required to maintain
reserves (including, without limitation, any marginal, emergency, supplemental,
special or other reserves required by applicable law) which have been
established by any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body with jurisdiction over
such Lender (including any branch, Affiliate or funding office thereof) in
respect of any Non-Dollar Denominated Loans or any category of liabilities which
includes deposits by reference to which the interest rate on any Non-Dollar
Denominated Loan is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
non-United States residents, then, unless such reserves are included in the
calculation of the interest rate applicable to such Non-Dollar Denominated Loans
or in Section 1.10(a)(ii), such Lender shall promptly notify Holdings, the U.S.
Borrower and/or the Bermuda Borrower in writing specifying the additional
amounts required to indemnify such Lender against the cost of maintaining such
reserves (such written notice to provide in reasonable detail a computation of
such additional amounts) and the U.S. Borrower (in the case of U.S. Borrower
Multicurrency Facility Revolving Loans and U.S. Borrower Multicurrency Facility
Swingline Loans owing by it and, in each case, denominated in Euros) shall pay,
and the Bermuda Borrower (in the case of (x) Yen Denominated Term Loans and (y)
Bermuda Borrower Multicurrency Facility Revolving Loans and Bermuda Borrower
Multicurrency Facility Swingline Loans owing by it and, in each case,
denominated in Euros) shall pay, to such Lender such specified amounts as
additional interest at the time that the U.S. Borrower or the Bermuda Borrower
is otherwise required to pay interest in respect of such Non-Dollar Denominated
Loan or, if later, on written demand therefor by such Lender.
1.11 Compensation. The Borrowers jointly and severally agree to
compensate each Lender, upon its written request (which request shall set forth
in reasonable detail the basis for requesting such compensation), for all
losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of
deposits or other funds required by such Lender to fund its Euro Rate Loans but
excluding any loss of anticipated profit) which such Lender may sustain: (i) if
for any reason (other than a default by such Lender or any Agent) a Borrowing
of, or conversion from or into, Euro Rate Loans does not occur on a date
specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation
(whether or not withdrawn by the respective Borrower or Borrowers or deemed
withdrawn pursuant to Section 1.10(a)); (ii) if any repayment (including any
repayment made pursuant to Section 4.01 or 4.02 or as a result of an
acceleration of the Loans pursuant to Section 10 or as a result of the
replacement of a Lender pursuant to Section 1.13, 4.01 or 13.12(b)), conversion
or permitted "realignment" of any of its Euro Rate Loans occurs on a date which
is not the last day of an Interest Period applicable thereto; (iii) if any
prepayment of any of its Euro Rate Loans is not made on any date specified in a
notice of prepayment given by the respective Borrower or Borrowers; or (iv) as a
consequence of (x) any other default by the respective Borrower to repay its
Loans when required by the terms of this Agreement or any Note held by such
Lender or (y) any election made pursuant to Section 1.10(b). Each Lender's
calculation of the amount of compensation owing pursuant to this Section 1.11
shall be made in good faith. A Lender's basis for requesting compensation
pursuant to this Section 1.11 and a Lender's calculation of the amount thereof,
shall, absent manifest error, be final and conclusive and binding on all parties
hereto.
1.12 Change of Lending Office. (a) Each Lender may at any time or from
time to time designate, by written notice to the Administrative Agent to the
extent not already reflected on Schedule II, one or more lending offices (which,
for this purpose, may include Affiliates of the respective Lender) for the
various Loans made, Letters of Credit participated in, by such Lender
(including, without
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limitation, by designating a separate lending office (or Affiliate) to act as
such with respect to Dollar Denominated Loans, Dollar Denominated Letter of
Credit Outstandings and Dollar Denominated Bank Guaranty Outstandings versus
Non-Dollar Denominated Loans, Non-Dollar Denominated Letter of Credit
Outstandings and Non-Dollar Denominated Bank Guaranty Outstandings); provided
that, for designations made after the Restatement Effective Date (unless such
designation is made after the occurrence of a Sharing Event as a result of any
Lender's purchase of Loans pursuant to Section 1.14), to the extent such
designation shall result in increased costs under Section 1.10, 2A.06, 2B.06 or
4.04 in excess of those which would be charged in the absence of the designation
of a different lending office (including a different Affiliate of the respective
Lender), then the Borrowers shall not be obligated to pay such excess increased
costs (although if such designation results in increased costs, the Borrowers
shall be obligated to pay the costs which would have applied in the absence of
such designation and any subsequent increased costs of the type described above
resulting from changes after the date of the respective designation). Except as
provided in the immediately preceding sentence, each lending office and
Affiliate of any Lender designated as provided above shall, for all purposes of
this Agreement, be treated in the same manner as the respective Lender (and
shall be entitled to all indemnities and similar provisions in respect of its
acting as such hereunder).
(b) Each Lender agrees that upon the occurrence of any event giving
rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section
2A.06, Section 2B.06 or Section 4.04 with respect to such Lender, it will, if
requested by the applicable Borrower by notice to such Lender, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans, Letters of Credit or Bank Guaranties
affected by such event, provided that such designation is made on such terms
that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of such Section. Nothing in this Section 1.12 shall affect
or postpone any of the obligations of either Borrower or the rights of any
Lender provided in Sections 1.10, 2A.06, 2B.06 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a Defaulting
Lender, (y) upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c) or (d), Section 2A.06, Section
2B.06 or Section 4.04 with respect to any Lender which results in such Lender
charging to either Borrower increased costs materially in excess of the average
costs being charged by the other Lenders in respect of such contingency or (z)
in the case of a refusal by a Lender to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Lenders as provided in Section 13.12(b), the U.S. Borrower shall
have the right, in accordance with the requirements of Section 13.04(b), if no
Event of Default then exists or would exist after giving effect to such
replacement, to replace such Lender (the "Replaced Lender") with one or more
Eligible Transferees (collectively, the "Replacement Lender"), none of whom
shall constitute a Defaulting Lender at the time of such replacement and each of
whom shall be reasonably acceptable to the Administrative Agent or, in the case
of a replacement as provided in Section 13.12(b) where the consent of the
respective Lender is required with respect to less than all Tranches of its
Loans or Commitments, at the option of Holdings, to replace only the Commitments
and/or outstanding Loans of such Lender in respect of each Tranche where the
consent of such Lender would otherwise be individually required, with identical
Commitments and/or Loans of the respective Tranche provided by the Replacement
Lender; provided that:
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant
to said Section 13.04(b) to be paid by the Replacement Lender) pursuant to
which the Replacement Lender shall acquire all of the Commitments and all
then outstanding Loans (or, in the case of the replacement of less than all
the Tranches of Commitments and outstanding Loans of the respective
Replaced Lender, all the
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Commitments and/or all then outstanding Loans relating to the Tranche or
Tranches with respect to which such Lender is being replaced) of, and all
participations in all then outstanding Letters of Credit and Bank
Guaranties issued pursuant to the respective Tranche or Tranches where the
respective Lender is being replaced by, the Replaced Lender and, in
connection therewith, shall pay to (w) the Replaced Lender in respect
thereof an amount equal to the sum (in the relevant currency or currencies)
of (A) an amount equal to the principal of, and all accrued interest on,
all then outstanding Loans of the respective Replaced Lender under each
Tranche with respect to which such Replaced Lender is being replaced, (B)
an amount equal to all Unpaid Drawings (if any) under each Tranche with
respect to which the respective Replaced Lender is being replaced, in each
case that have been funded by (and not reimbursed to) such Replaced Lender
at such time, together with all then unpaid interest with respect thereto
at such time, (C) an amount equal to all Unreimbursed Payments (if any)
under each Tranche with respect to which the respective Replaced Lender is
being replaced, in each case that have been funded by (and not reimbursed
to) such Replaced Lender at such time, together with all then unpaid
interest with respect thereto at such time, and (D) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Lender (but
only with respect to the relevant Tranche or Tranches, in the case of the
replacement of less than all Tranches then held by the respective Replaced
Lender) pursuant to Section 3.01, (x) in the case of the replacement of any
Multicurrency Facility Revolving Loan Commitment and/or Dollar Facility
Revolving Loan Commitment, the respective Issuing Lender amounts equal to
such Replaced Lender's Multicurrency Facility RL Percentage and/or Dollar
Facility RL Percentage, as the case may be, of any Unpaid Drawings pursuant
to Letters of Credit issued pursuant to the respective Tranche evidenced by
such Commitments (which at such time remain Unpaid Drawings) with respect
to Letters of Credit issued by such Issuing Lender to the extent such
amount was not theretofore funded by such Replaced Lender, (y) in the case
of the replacement of any Multicurrency Facility Revolving Loan Commitment,
the respective Bank Guaranty Issuer amounts equal to such Replaced Lender's
Multicurrency Facility RL Percentage of any Unreimbursed Payments pursuant
to Bank Guaranties (which at such time remain Unreimbursed Payments) with
respect to Bank Guaranties issued by such Bank Guaranty Issuer to the
extent such amount was not theretofore funded by such Replaced Lender and
(z) in the case of any replacement of Multicurrency Facility Revolving Loan
Commitments or Dollar Facility Revolving Loan Commitments, the Swingline
Lender, an amount equal to such Replaced Lender's pro rata share of any
Mandatory Multicurrency Facility RL Borrowing and/or Mandatory Dollar
Facility RL Borrowing (as appropriate) (determined in accordance with
Sections 1.01(g) and/or (h), as appropriate, and 1.07), to the extent such
amount was not theretofore funded by such Replaced Lender, without
duplication; and
(ii) all obligations of the Borrowers owing to the Replaced Lender in
respect of each Tranche where such Replaced Lender is being replaced (other
than those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid)
shall be paid in full to such Replaced Lender concurrently with such
replacement.
Upon the execution of the respective Assignment and Assumption Agreement, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section 13.17
and, if so requested by the Replacement Lender (when applicable), delivery to
the Replacement Lender of the appropriate Note or Notes executed by the
respective Borrower, (x) the Replacement Lender shall become a Lender hereunder
and, unless the respective Replaced Lender continues to have outstanding Term
Loans or any Commitment hereunder, the Replaced Lender shall cease to constitute
a Lender hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2A.06, 2B.06,
4.04, 13.01 and 13.06), which shall survive as to such Replaced Lender and (y)
in the case of the replacement of any Multicurrency Facility Revolving Loan
Commitment or Dollar Facility Revolving Loan
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Commitment pursuant to this Section 1.13, the Multicurrency Facility RL
Percentages and/or Dollar Facility RL Percentages, as the case may be, of the
Lenders shall be automatically adjusted at such time to give effect to such
replacement. In connection with any replacement of Lenders pursuant to, and as
contemplated by, this Section 1.13, each of the U.S. Borrower and the Bermuda
Borrower hereby irrevocably authorizes Holdings to take all necessary action, in
the name of the U.S. Borrower or the Bermuda Borrower, as the case may be, as
described above in this Section 1.13 in order to effect the replacement of the
respective Lender or Lenders in accordance with the preceding provisions of this
Section 1.13.
1.14 Special Provisions Applicable to Lenders Upon the Occurrence of a
Sharing Event. (a) On the date of the occurrence of a Sharing Event,
automatically (and without the taking of any action) (x) all then outstanding
Non-Dollar Denominated Loans, all Unpaid Drawings in respect of Letters of
Credit issued for either Borrower's account owed in Euros and all Unreimbursed
Payments in respect of Bank Guaranties issued for the Bermuda Borrower's account
owed in Euros, shall be automatically converted into Loans of the respective
Tranche maintained in, Unpaid Drawings of the respective Tranche owing in, or
Unreimbursed Payments owing in, Dollars (in an amount equal to the Dollar
Equivalent of the aggregate principal amount of the respective Loans, Unpaid
Drawings or Unreimbursed Payments on the date such Sharing Event first occurred,
which Loans, Unpaid Drawings and Unreimbursed Payments (i) shall continue to be
owed by the U.S. Borrower or the Bermuda Borrower, as the case may be, (ii)
shall at all times thereafter be deemed to be Base Rate Loans and (iii) shall be
immediately due and payable on the date such Sharing Event has occurred) and (y)
all principal, accrued and unpaid interest and other amounts owing with respect
to such Non-Dollar Denominated Loans, Unpaid Drawings and Unreimbursed Payments
shall be immediately due and payable in Dollars, taking the Dollar Equivalent of
such principal, accrued and unpaid interest and other amounts. The occurrence of
any conversion of Non-Dollar Denominated Loans, Unpaid Drawing or Unreimbursed
Payments to Base Rate Loans as provided above in this Section 1.14(a) shall be
deemed to constitute, for purposes of Section 1.11, a prepayment of Loans before
the last day of any Interest Period relating thereto.
(b) On the date of the occurrence of any Sharing Event, (i) if any
Multicurrency Facility Swingline Loans are outstanding, a Mandatory
Multicurrency Facility RL Borrowing shall be made by the respective
Multicurrency Facility Lenders in accordance with the provisions of Section
1.01(g), (ii) if any Dollar Facility Swingline Loans are outstanding, one or
more Mandatory Dollar Facility RL Borrowings shall be made in accordance with
the requirements of Section 1.01(h), (iii) if there have been any Drawings
pursuant to Letters of Credit which have not yet been reimbursed to the
respective Issuing Lender pursuant to Section 2A, the various L/C Participants
in the respective Letters of Credit shall make payments to the Issuing Lender
therefor in accordance with the requirements of Section 2A.04 and (iv) if there
have been any Bank Guaranty Payments pursuant to Bank Guaranties which have not
yet been reimbursed to the respective Bank Guaranty Issuer pursuant to Section
2B, the various B/G Participants in the respective Bank Guaranties shall make
payments to the Bank Guaranty Issuer therefor in accordance with the
requirements of Section 2B.04. Each Lender which is required to make payments
pursuant to the immediately preceding sentence shall be obligated to do so in
accordance with the terms of this Agreement. For purposes of making calculations
pursuant to the following provisions of this Section 1.14, such payments shall
be deemed to have been made on the date of the occurrence of the Sharing Event,
before making such calculations. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, any Lender which has failed, or
fails, to make any payments required to be made by it as described in this
clause (b) (and/or the other relevant Sections of this Agreement) shall remain
obligated to make such payments, together with interest thereon, and shall be
obligated to the Swingline Lender, the respective Issuing Lender or the
respective Bank Guaranty Issuer, as the case may be, for any damages caused by
its delay or failure in making any payments required to be made by it as
described above.
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(c) On the date of the occurrence of a Sharing Event, the following
actions shall be required to occur: (i) the participations of the RL Lenders in
all then outstanding Letters of Credit shall be automatically adjusted so that
each RL Lender shall participate in each outstanding Letter of Credit (whether a
Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit) in
accordance with their RL Percentages, rather than their Multicurrency Facility
RL Percentages or their Dollar Facility RL Percentages, as the case may be, (ii)
the participations of the RL Lenders in all then outstanding Bank Guaranties
shall be automatically adjusted so that each RL Lender shall participate in each
outstanding Bank Guaranty in accordance with their RL Percentages, rather than
their Multicurrency Facility RL Percentages and (iii) if the outstanding
principal of all then outstanding Revolving Loans, and Unpaid Drawings and
Unreimbursed Payments theretofore paid, and owing to, the respective RL Lender
(after giving effect to the conversions and events required by Sections 1.14(a)
and (b)), is less than its RL Percentage of the outstanding principal amount of
all Revolving Loans and the aggregate amount of all Unpaid Drawings and
Unreimbursed Payments at such time, then such RL Lender shall purchase, for cash
in Dollars, participations from other RL Lenders in their outstanding Revolving
Loans, Unpaid Drawings and/or Unreimbursed Payments so that, after giving effect
to such purchases by all RL Lenders which are in such position, each RL Lender
shall have the same credit exposure (with respect to Revolving Loans, Unpaid
Drawings and Unreimbursed Payments), as a percentage of its Revolving Loan
Commitment (before giving effect to any termination or reduction thereof at or
prior to the occurrence of the respective Sharing Event), as each other RL
Lender. Any payments made after the date of the respective Sharing Event
pursuant to the preceding sentence shall be required to be accompanied by
payments of interest (which shall be distributed by the Administrative Agent to
the respective Lender or Lenders entitled to receive the respective cash
payments) at the greater of the Federal Funds Rate or such rate as may be
determined by the Administrative Agent in accordance with banking industry
practice on interbank compensation. The foregoing purchases shall be
accomplished through purchases and sales of participations in the relevant
obligations as required above, and each Lender hereby agrees, at the request of
the Administrative Agent, to enter into customary participation agreements
approved by the Administrative Agent to effect the foregoing. All purchases of
sales of participating interests pursuant to this Section 1.14(c) shall be made
in Dollars. Promptly following the occurrence of a Sharing Event, the
Administrative Agent shall notify each RL Lender and shall specify the amount of
Dollars required from each RL Lender to effect the purchases and sales by the
various RL Lenders of participating interests in the amounts required above
(together with accrued interest with respect to the period for the most recent
payment date through the date of the Sharing Event plus any additional amounts
payable by the Borrowers pursuant to Section 4.04 in respect of such accrued and
unpaid interest). Promptly upon receipt of such request, each RL Lender required
to purchase participations as specified above shall deliver to the
Administrative Agent (in immediately available funds) Dollars in the amounts
specified by the Administrative Agent. The Administrative Agent shall promptly
deliver the amounts so received to the various RL Lenders who are selling
participations in such amounts as are needed to effect the purchases of
participations as provided above. Promptly following receipt thereof, each RL
Lender which had sold participations as provided above (through the
Administrative Agent) will deliver to each RL Lender (through the Administrative
Agent) which so purchased a participating interest in its Loans, Unpaid Drawings
or Unreimbursed Payments a participation certificate dated the date of such
purchase and in such amounts.
(d) In the event that upon the occurrence of a Sharing Event any
Letter of Credit shall be outstanding and undrawn in whole or in part, or there
shall exist any Bank Guaranty Outstandings representing credit exposure for
events which have not then occurred, each RL Lender shall on the date of the
occurrence of such Sharing Event, and after giving effect to the purchases and
sales of participations on such date pursuant to preceding Section 1.14(c), but
before giving effect to the purchases and sales of participations on such date
pursuant to Section 1.14(e), promptly pay over to the Administrative Agent, in
immediately available funds in the currency in which such Letter of Credit is,
or Bank Guaranty Outstandings are, denominated, an amount equal to such RL
Lender's RL Percentage of such undrawn
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face amount or Bank Guaranty Outstandings, as applicable, together with interest
thereon (denominated in the relevant currency) from the date of the Sharing
Event to the date on which such amount shall be paid to the Administrative Agent
at a rate per annum equal to that rate determined by the Administrative Agent in
accordance with banking industry rules or practice on interbank compensation.
The Administrative Agent shall establish a separate account or accounts for each
RL Lender in an amount equal to the amount received from such Lender pursuant to
the preceding sentence. The Administrative Agent shall have sole dominion and
control over each such account (each, a "Special Reserve Account"), and the
amounts deposited in each Special Reserve Account shall be held in such Special
Reserve Account until withdrawn as provided in clause (f), (g) or (h) below in
this Section 1.14. The Administrative Agent shall maintain records enabling it
to determine the amounts paid over to it and deposited in the Special Reserve
Accounts. As amounts are drawn under outstanding Letters of Credit or Bank
Guaranties in respect of which amounts have been paid into the various Special
Reserve Accounts pursuant to this Section 1.14(d), amounts shall be drawn
ratably from the Special Reserve Accounts of the various RL Lenders (in
accordance with their RL Percentages) to pay such amounts. The amounts paid to
the Administrative Agent pursuant to this clause (d) shall be held as a reserve
against the Letter of Credit Outstandings and/or Bank Guaranty Outstandings, as
the case may be, shall not constitute Loans or extensions of credit to either
Borrower and shall not give rise to any obligation on the part of either
Borrower to pay interest to any Lender, it being agreed that the Borrowers'
reimbursement obligations (x) in respect of Letters of Credit shall arise only
at such times as drawings or payments are made thereunder as provided in Section
2A.04 and (y) in respect of Bank Guaranties shall arise only at such times as
drawings or payments are made thereunder as provided in Section 2B.04.
(e) Upon the occurrence of a Sharing Event, but after giving effect to
the actions required to be taken pursuant to preceding clause (a) through (d)
(although any failure by any Lender to take the actions required of it pursuant
to said clauses shall not prevent the actions required hereby, but the
respective Lender shall continue to be obligated to perform its obligations as
required above and the Administrative Agent shall be authorized to make any
equitable adjustments as may be deemed necessary or desirable pursuant to
following clause (i) of this Section 1.14), the Lenders shall purchase
participations from other Lenders in the respective Tranches of Loans
(including, in the case of the Total Revolving Loan Commitment, participations
in each outstanding Letter of Credit, each Unpaid Drawing, each Bank Guaranty
and each Unreimbursed Payment)so that, after giving effect to such purchases,
each Lender shall have the same credit exposure in each Tranche at such time
(including, (x) in the case of the Total Revolving Loan Commitment, an interest
in each outstanding Letter of Credit, each Unpaid Drawing, each Bank Guaranty
and each Unreimbursed Payment and (y) a participation in each Special Reserve
Account established pursuant to Section 1.14(d) and all amounts deposited
therein from time to time or to be returned to the Lenders in accordance with
the provisions of Section 1.14(g)), whether or not such Lender shall previously
have participated therein, equal to such Lender's Exchange Percentage thereof.
The foregoing actions shall be accomplished pursuant to this clause (e) through
purchases and sales of participations in the various Tranches as required
hereby, and at the request of the Administrative Agent each Lender hereby agrees
to enter into customary participation agreements approved by the Administrative
Agent to evidence same. All purchases and sales of participations pursuant to
this Section 1.14(e) shall be made in Dollars. At the request of the
Administrative Agent, each Lender which has sold participations in any of its
Tranches and/or Special Reserve Accounts as provided above (through the
Administrative Agent) will deliver to each Lender (through the Administrative
Agent) which has so purchased a participation therein a participation
certificate in the appropriate amount as determined in conjunction with the
Administrative Agent. It is understood that the amount of funds delivered by
each Lender shall be calculated on a net basis, giving effect to both the sales
and purchases of participations by the various Lenders as required above.
(f) In the event that after the occurrence of a Sharing Event any
drawing or payment shall be made in respect of a Letter of Credit or Bank
Guaranty, the Administrative Agent shall, at the
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request of the respective Issuing Lender or Bank Guaranty Issuer, withdraw from
the Special Reserve Account of each of the Lenders (in accordance with each
Lender's RL Percentage) any amounts, up to the amount of such drawing or
payment, deposited in the respective Special Reserve Account and remaining on
deposit and deliver such amounts to such Issuing Lender or Bank Guaranty Issuer,
as the case may be, in satisfaction of the reimbursement obligations of the
various RL Lenders under Section 2A.04(c) or 2B.04(c), as the case may be (but
not of the applicable Borrower under Section 2A.05(a) or Section 2B.05(a), as
the case may be). In the event that any Lender shall default on its obligation
to pay over any amount to the Administrative Agent in respect of any Letter of
Credit or Bank Guaranty as provided in Section 1.14(d), the respective Issuing
Lender or Bank Guaranty Issuer shall, in the event of a drawing or payment
thereunder, have a claim against such Lender to the same extent as if such
Lender had defaulted on its obligations under Section 2A.04(c) or 2B.04(c), as
the case may be, but shall have no claim against any other Lender,
notwithstanding the exchange of interests in the applicable Borrower's
reimbursement obligations pursuant to Section 1.14(e). Each other Lender shall
have a claim against such defaulting Lender for any damages sustained by it as a
result of such default.
(g) In the event that after the occurrence of a Sharing Event any
Letter of Credit or Bank Guaranty shall terminate or expire undrawn or unpaid
upon, then, if and so long as the Administrative Agent determines (in its
reasonable discretion) that adequate funds remain on deposit in the Special
Reserve Accounts of the various RL Lenders to fund (without giving effect to the
purchases of participation pursuant to Section 1.14(e)) all remaining drawings
or payments which could come due in respect of outstanding Letters of Credit
and/or Bank Guaranties, the Administrative Agent shall withdraw from the Special
Reserve Account of each Lender the amount remaining on deposit therein in
respect of such Letter of Credit or Bank Guaranty (or in any case, such lesser
amount as the Administrative Agent reasonably determines can be distributed
without causing the amount on deposit from the various RL Lenders to be less
than the remaining exposure on outstanding Letters of Credit and Bank
Guaranties) and distribute such amount to such Lender, provided that, if such
amount is not denominated in Dollars, the Administrative Agent shall distribute
to each such Lender the Dollar Equivalent of such amount. All amounts received
by any Lender pursuant to this clause (g) shall, to the extent it has sold
participations therein in accordance with the requirements of Section 1.14(e),
be distributed by it to the various participants therein in accordance with
their participating interests.
(h) Pending the withdrawal of any amounts from its Special Reserve
Account as contemplated above in this Section 1.14, the Administrative Agent
may, and shall, at the direction of the Required Lenders and subject to such
rules as the Administrative Agent may prescribe for the avoidance of
inconvenience, invest such amounts in Cash Equivalents.
(i) All determinations by the Administrative Agent pursuant to this
Section 1.14 shall be made by it in accordance with the provisions herein and
with the intent being to equitably share the credit risk for all Tranches
hereunder in accordance with the provisions hereof. Absent manifest error, all
determinations by the Administrative Agent hereunder shall be binding on the
Borrowers and each of the Lenders. The Administrative Agent shall have no
liability to either Borrower or Lender hereunder for any determinations made by
it hereunder except to the extent resulting from the Administrative Agent's
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
(j) Upon, and after, the occurrence of a Sharing Event (i) no further
Credit Events shall be made or occur, (ii) all amounts from time to time
accruing with respect to, and all amounts from time to time payable on account
of, Non-Dollar Denominated Loans (including, without limitation, any interest
and other amounts which were accrued but unpaid on the date of such Sharing
Event) shall be payable in Dollars (taking the Dollar Equivalents of all such
amounts on the date of the occurrence of the respective Sharing Event, with all
calculations for periods after the Sharing Event being made as if the
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respective such Loan had originally been made in Dollars) and shall be
distributed by the Administrative Agent for the account of the Lenders which
made such Loans or are participating therein and (iii) all Revolving Loan
Commitments of all the RL Lenders shall be automatically terminated.
Notwithstanding anything to the contrary contained above, the failure of any
Lender to purchase its participating interests as required above in any
extensions of credit upon the occurrence of a Sharing Event shall not relieve
any other Lender of its obligation hereunder to purchase its participating
interests in a timely manner, but no Lender shall be responsible for the failure
of any other Lender to purchase the participating interest to be purchased by
such other Lender on any date.
(k) If any amount required to be paid by any Lender pursuant to this
Section 1.14 is not paid to the Administrative Agent on the date upon which the
Sharing Event occurred, such Lender shall, in addition to such aforementioned
amount, also pay to the Administrative Agent on demand an amount equal to the
product of (i) the amount so required to be paid by such Lender for the purchase
of its participations, (ii) the daily average Federal Funds Rate, during the
period from and including the date of request for payment to the date on which
such payment is immediately available to the Administrative Agent and (iii) a
fraction the numerator of which is the number of days that elapsed during such
period and the denominator of which is 360. A certificate of the Administrative
Agent submitted to any Lender with respect to any amounts payable under this
Section 1.14 shall be conclusive in the absence of manifest error. Amounts
payable by any Lender pursuant to this Section 1.14 shall be paid to the
Administrative Agent for the account of the relevant Lenders, provided that, if
the Administrative Agent (in its sole discretion) has elected to fund on behalf
of such other Lender the amounts owing to such other Lenders, then the amounts
shall be paid to the Administrative Agent for its own account.
(l) Whenever, at any time after the relevant Lenders have received
from any other Lenders purchases of participations pursuant to this Section
1.14, the various Lenders receive any payment on account thereof, such Lenders
will distribute to the Administrative Agent, for the account of the various
Lenders participating therein, such Lenders' participating interests in such
amounts (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such participations were outstanding) in like
funds as received, provided, however, that in the event that such payment
received by any Lenders is required to be returned, the Lenders who received
previous distributions in respect of their participating interests therein will
return to the respective Lenders any portion thereof previously so distributed
to them in like funds as such payment is required to be returned by the
respective Lenders.
(m) Each Lender's obligation to purchase participating interests
pursuant to this Section 1.14 shall be absolute and unconditional and shall not
be affected by any circumstance including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against any other Lender, Holdings, either Borrower or any other Person for any
reason whatsoever, (ii) the occurrence or continuance of an Event of Default,
(iii) any adverse change in the condition (financial or otherwise) of Holdings,
either Borrower or any other Person, (iv) any breach of this Agreement by
Holdings, either Borrower, any Lender or any other Person, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(n) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, upon any purchase of participations as required above, (i) the
relevant Borrower shall pay to each Lender granting any participations as
required above, for the account of the respective Lender which has purchased
such participations, any increased costs and indemnities (including, without
limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) directly
from such Borrower to the same extent as if such Lender which has purchased such
participations were the direct Lender as opposed to a participant therein, which
increased costs shall be calculated without regard to Section 1.13, Section
13.04(a) or the penultimate sentence of Section 13.04(b) and (ii) each Lender
which has sold such participations shall be
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entitled to receive from the relevant Borrower indemnification from and against
any and all taxes imposed as a result of the sale of the participations pursuant
to this Section 1.14. Each Borrower acknowledges and agrees that, upon the
occurrence of a Sharing Event and after giving effect to the requirements of
this Section 1.14, increased Taxes may be owing by it pursuant to Section 4.04,
which Taxes shall be paid (to the extent provided in Section 4.04) by the
respective Borrower or Borrowers, without any claim that the increased Taxes are
not payable because same resulted from the participations effected as otherwise
required by this Section 1.14.
1.15 Incremental Term Loan Commitments. (a) So long as the Incremental
Loan Commitment Request Requirements are satisfied at the time of the delivery
of the request referred to below, each Borrower shall have the right, in
consultation and coordination with the Administrative Agent as to all of the
matters set forth below in this Section 1.15, but without requiring the consent
of any of the Lenders, to request at any time and from time to time after the
Restatement Effective Date and prior to the date which is 12 months prior to the
Tranche B Term Loan Maturity Date, that one or more Lenders (and/or one or more
other Persons which are Eligible Transferees and which will become Lenders)
provide Incremental Term Loan Commitments to such Borrower and, subject to the
terms and conditions contained in this Agreement and in the respective
Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant
thereto; it being understood and agreed, however, that (i) no Lender shall be
obligated to provide an Incremental Term Loan Commitment as a result of any such
request by such Borrower, and until such time, if any, as such Lender has agreed
in its sole discretion to provide an Incremental Term Loan Commitment and
executed and delivered to the Administrative Agent an Incremental Term Loan
Commitment Agreement as provided in clause (b) of this Section 1.15, such Lender
shall not be obligated to fund any Incremental Term Loans, (ii) any Lender
(including any Eligible Transferee who will become a Lender) may so provide an
Incremental Term Loan Commitment without the consent of any other Lender, (iii)
each Tranche of Incremental Term Loan Commitments shall be made available to a
single Incremental Term Loan Borrower and shall be denominated in Dollars, (iv)
the amount of each Tranche of Incremental Term Loan Commitments shall be in a
minimum aggregate amount for all Lenders which provide an Incremental Term Loan
Commitment under such Tranche of Incremental Term Loans (including Eligible
Transferees who will become Lenders) of at least (I) $25,000,000, in the case of
Incremental Term Loans to be made pursuant to a new Tranche of Incremental Term
Loans and (II) $5,000,000, in the case of Incremental Term Loans to be made
pursuant to (and to constitute a part of) an existing Tranche of Incremental
Term Loans or to the outstanding Tranche of Tranche B Term Loans as contemplated
by the proviso in the first sentence of Section 1.15(c) below, (v) the aggregate
amount of all Incremental Term Loan Commitments provided pursuant to this
Section 1.15, when combined with the aggregate amount of all Incremental
Multicurrency Facility Revolving Loan Commitments provided pursuant to Section
1.16 and the aggregate amount of all Incremental Dollar Facility Revolving Loan
Commitments provided pursuant to Section 1.17, shall not exceed the Maximum
Incremental Commitment Amount (it being understood and agreed, however, to the
extent that any such Incremental Term Loan Commitments are obtained but later
expire, terminate or are voluntarily reduced in each case without being
utilized, the amount of such Incremental Term Loan Commitments so expired,
terminated or voluntarily reduced may again be available to be obtained under
this Section 1.15 within the limits set forth herein), (vi) the up-front fees
and, if applicable, any unutilized commitment fees and/or other fees, payable in
respect of each Incremental Term Loan Commitment shall be separately agreed to
by Holdings, the respective Incremental Term Loan Borrower and each Incremental
Term Loan Lender (and with all such fees to be disclosed by Holdings to the
Administrative Agent), (vii) each Tranche of Incremental Term Loans shall have
(I) an Incremental Term Loan Maturity Date of no earlier than the Tranche B Term
Loan Maturity Date and (II) a Weighted Average Life to Maturity of no less than
the Weighted Average Life to Maturity as then in effect for the Tranche B Term
Loans, (viii) the proceeds of all Incremental Term Loans shall be used only for
the purposes permitted by Section 7.05(a), (ix) each Incremental Term Loan
Commitment Agreement shall specifically designate, with the approval of the
Administrative Agent, the Tranche of the Incremental Term Loan Commitments being
provided
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thereunder (which Tranche shall be a new Tranche (i.e., not the same as any
existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or
other Term Loans) unless the requirements of Section 1.15(c) are satisfied), (x)
all Incremental Term Loans (and all interest, fees and other amounts payable
thereon) shall be Obligations under this Agreement and the other applicable
Credit Documents and shall be secured by the relevant Security Agreements, and
guaranteed under each relevant Guaranty, on a pari passu basis with all other
Loans secured by each such Security Agreement and guaranteed under each such
Guaranty, and (xi) each Lender (including any Eligible Transferee who will
become a Lender) agreeing to provide an Incremental Term Loan Commitment
pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the
satisfaction of the relevant conditions set forth in this Agreement, make
Incremental Term Loans under the Tranche specified in such Incremental Term Loan
Commitment Agreement as provided in Section 1.01(i) and such Loans shall
thereafter be deemed to be Incremental Term Loans under such Tranche for all
purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments
pursuant to this Section 1.15, the respective Incremental Term Loan Borrower,
the Administrative Agent and each such Lender or other Eligible Transferee which
agrees to provide an Incremental Term Loan Commitment (each, an "Incremental
Term Loan Lender") shall execute and deliver to the Administrative Agent an
Incremental Term Loan Commitment Agreement substantially in the form of Exhibit
P (appropriately completed), with the effectiveness of the Incremental Term Loan
Commitment provided therein to occur on the date set forth in such Incremental
Term Loan Commitment Agreement, which date in any event shall be no earlier than
the date on which (w) all fees required to be paid in connection therewith at
the time of such effectiveness shall have been paid (including, without
limitation, any agreed upon up-front or arrangement fees owing to the
Administrative Agent), (x) all Incremental Loan Commitment Requirements are
satisfied, (y) all other conditions set forth in this Section 1.15 shall have
been satisfied, and (z) all other conditions precedent that may be set forth in
such Incremental Term Loan Commitment Agreement shall have been satisfied. The
Administrative Agent shall promptly notify each Lender as to the effectiveness
of each Incremental Term Loan Commitment Agreement, and at such time, (i)
Schedule I shall be deemed modified to reflect the revised Incremental Term Loan
Commitments of the affected Lenders and (ii) to the extent requested by any
Incremental Term Loan Lender, Incremental Term Notes will be issued at the
respective Incremental Term Loan Borrower's expense, to such Incremental Term
Loan Lender, to be in conformity with the requirements of Section 1.05 (with
appropriate modification) to the extent needed to reflect the new Incremental
Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this
Section 1.15, the Incremental Term Loan Commitments provided by an Incremental
Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant
to each Incremental Term Loan Commitment Agreement shall constitute a new
Tranche, which shall be separate and distinct from the existing Tranches
pursuant to this Agreement (with a designation which may be made in letters
(i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e.,
X-0, X-0, X-0, X-0, X-0, X-0, etc.), provided that, with the consent of the
Administrative Agent, the parties to a given Incremental Term Loan Commitment
Agreement may specify therein that the respective Incremental Term Loans made
pursuant thereto shall constitute part of, and be added to, an existing Tranche
of Incremental Term Loans or to the outstanding Tranche of Tranche B Term Loans,
in either case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental
Term Loan Commitment Agreement shall have the same Borrower, shall have the
same Maturity Date and shall have the same Applicable Margins as the
Tranche of Term Loans to which the new Incremental Term Loans are being
added;
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(ii) the new Incremental Term Loans shall have the same Scheduled
Repayment dates as then remain with respect to the Tranche to which such
new Incremental Term Loans are being added (with the amount of each
Scheduled Repayment applicable to such new Incremental Term Loans to be the
same (on a proportionate basis) as is theretofore applicable to the Tranche
to which such new Incremental Term Loans are being added, thereby
increasing the amount of each then remaining Scheduled Repayment of the
respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans,
and notwithstanding anything to the contrary set forth in Section 1.09,
such new Incremental Term Loans shall be added to (and form part of) each
Borrowing of outstanding Term Loans of the respective Tranche on a pro rata
basis (based on the relative sizes of the various outstanding Borrowings),
so that each Lender will participate proportionately in each then
outstanding Borrowing of Term Loans of the respective Tranche.
To the extent the provisions of preceding clause (iii) require that Lenders
making new Incremental Term Loans add such Incremental Term Loans to the then
outstanding Borrowings of Eurodollar Loans of such Tranche, it is acknowledged
that the effect thereof may result in such new Incremental Term Loans having
short Interest Periods (i.e., an Interest Period that began during an Interest
Period then applicable to outstanding Eurodollar Loans of such Tranche and which
will end on the last day of such Interest Period). In connection therewith, the
respective Incremental Term Loan Borrower may agree, in the respective
Incremental Term Loan Commitment Agreement, to compensate the Lenders making the
new Incremental Term Loans of the respective Tranche for funding Eurodollar
Loans during an existing Interest Period on such basis as may be agreed by such
Incremental Term Loan Borrower and the respective Lender or Lenders.
1.16 Incremental Multicurrency Facility Revolving Loan Commitments.
(a) So long as the Incremental Loan Commitment Request Requirements are
satisfied at the time of the delivery of the request referred to below, the
Borrowers shall have the right, in consultation and coordination with the
Administrative Agent as to all of the matters set forth below in this Section
1.16, but without requiring the consent of any of the Lenders, to request at any
time and from time to time after the Restatement Effective Date and prior to the
date which is 12 months prior to the Revolving Loan Maturity Date, that one or
more Lenders (and/or one or more other Persons which are Eligible Transferees
and which will become Lenders as provided below) provide Incremental
Multicurrency Facility Revolving Loan Commitments and, subject to the applicable
terms and conditions contained in this Agreement, make Multicurrency Facility
Revolving Loans pursuant thereto; it being understood and agreed, however, that
(i) no Lender shall be obligated to provide an Incremental Multicurrency
Facility Revolving Loan Commitment as a result of any such request by the
Borrowers, and until such time, if any, as such Lender has agreed in its sole
discretion to provide an Incremental Multicurrency Facility Revolving Loan
Commitment and executed and delivered to the Administrative Agent an Incremental
Multicurrency Facility RL Commitment Agreement in respect thereof as provided in
clause (b) of this Section 1.16, such Lender shall not be obligated to fund any
Multicurrency Facility Revolving Loans in excess of its Multicurrency Facility
Revolving Loan Commitment as in effect prior to giving effect to such
Incremental Multicurrency Facility Revolving Loan Commitment provided pursuant
to this Section 1.16, (ii) any Lender (including any Eligible Transferee who
will become a Lender) may so provide an Incremental Multicurrency Facility
Revolving Loan Commitment without the consent of any other Lender, (iii) each
provision of Incremental Multicurrency Facility Revolving Loan Commitments on a
given date pursuant to this Section 1.16 shall be in a minimum aggregate amount
(for all Lenders (including any Eligible Transferee who will become a Lender))
of at least $5,000,000, (iv) the aggregate amount of all Incremental
Multicurrency Facility Revolving Loan Commitments provided pursuant to this
Section 1.16, when combined with the aggregate amount of all Incremental Term
Loan Commitments provided pursuant to Section 1.15 and the aggregate amount of
all Incremental Dollar Facility Revolving
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Loan Commitments provided pursuant to Section 1.17, shall not exceed the Maximum
Incremental Commitment Amount, (v) all Multicurrency Facility Revolving Loans
made pursuant to an Incremental Multicurrency Facility RL Commitment (and all
interest, fees and other amounts payable thereon) shall be Obligations under
this Agreement and the other applicable Credit Documents and shall be secured by
the relevant Security Agreements, and guaranteed under each relevant Guaranty,
on a pari passu basis with all other Obligations secured by each such Security
Agreement and guaranteed under each such Guaranty and (vi) all actions taken by
the Borrowers pursuant to this Section 1.16 shall be done in coordination with
the Administrative Agent.
(b) At the time of the provision of Incremental Multicurrency Facility
Revolving Loan Commitments pursuant to this Section 1.16, each Borrower, the
Administrative Agent and each such Lender or other Eligible Transferee which
agrees to provide an Incremental Multicurrency Facility Revolving Loan
Commitment (each, an "Incremental Multicurrency Facility RL Lender") shall
execute and deliver to the Administrative Agent an Incremental Multicurrency
Facility RL Commitment Agreement substantially in the form of Exhibit Q
(appropriately completed), with the effectiveness of such Incremental RL
Lender's Incremental Multicurrency Facility Revolving Loan Commitment to occur
on the date set forth in such Incremental Multicurrency Facility RL Commitment
Agreement, which date in any event shall be no earlier than the date on which
(w) all fees required to be paid in connection therewith at the time of such
effectiveness shall have been paid (including, without limitation, any agreed
upon up-front or arrangement fees owing to the Administrative Agent), (x) all
Incremental Loan Commitment Requirements are satisfied, (y) all other conditions
set forth in this Section 1.16 shall have been satisfied, and (z) all other
conditions precedent that may be set forth in such Incremental Multicurrency
Facility RL Commitment Agreement shall have been satisfied. The Administrative
Agent shall promptly notify each Lender as to the effectiveness of each
Incremental Multicurrency Facility RL Commitment Agreement, and at such time,
(i) the Total Multicurrency Facility Revolving Loan Commitment under, and for
all purposes of, this Agreement shall be increased by the aggregate amount of
such Incremental Multicurrency Facility Revolving Loan Commitments, (ii)
Schedule I shall be deemed modified to reflect the revised Multicurrency
Facility Revolving Loan Commitments of the affected Lenders and (iii) to the
extent requested by any Incremental RL Lender, Multicurrency Facility Revolving
Notes will be issued at the Borrowers' expense, to such Incremental RL Lender,
to be in conformity with the requirements of Section 1.05 (with appropriate
modification) to the extent needed to reflect the new Incremental Multicurrency
Facility RL Commitment provided by such Incremental RL Lender.
(c) At the time of any provision of Incremental Multicurrency Facility
Revolving Loan Commitments pursuant to this Section 1.16, the Borrowers shall,
in coordination with the Administrative Agent, repay outstanding Multicurrency
Facility Revolving Loans of certain of the Multicurrency Facility RL Lenders,
and incur additional Multicurrency Facility Revolving Loans from certain other
Multicurrency Facility RL Lenders (including the Incremental Multicurrency
Facility RL Lenders), in each case to the extent necessary so that all of the
Multicurrency Facility RL Lenders participate in each outstanding Borrowing of
Multicurrency Facility Revolving Loans pro rata on the basis of their respective
Multicurrency Facility Revolving Loan Commitments (after giving effect to any
increase in the Total Multicurrency Facility Revolving Loan Commitment pursuant
to this Section 1.16) and with the Borrowers being jointly and severally
obligated to pay to the respective Multicurrency Facility RL Lenders any costs
of the type referred to in Section 1.11 in connection with any such repayment
and/or Borrowing.
1.17 Incremental Dollar Facility Revolving Loan Commitments. (a) So
long as the Incremental Loan Commitment Request Requirements are satisfied at
the time of the delivery of the request referred to below, the Borrowers shall
have the right, in consultation and coordination with the Administrative Agent
as to all of the matters set forth below in this Section 1.17, but without
requiring the consent of any of the Lenders, to request at any time and from
time to time after the Restatement
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Effective Date and prior to the date which is 12 months prior to the Revolving
Loan Maturity Date, that one or more Lenders (and/or one or more other Persons
which are Eligible Transferees and which will become Lenders as provided below)
provide Incremental Dollar Facility Revolving Loan Commitments and, subject to
the applicable terms and conditions contained in this Agreement, make Dollar
Facility Revolving Loans pursuant thereto; it being understood and agreed,
however, that (i) no Lender shall be obligated to provide an Incremental Dollar
Facility Revolving Loan Commitment as a result of any such request by the
Borrowers, and until such time, if any, as such Lender has agreed in its sole
discretion to provide an Incremental Dollar Facility Revolving Loan Commitment
and executed and delivered to the Administrative Agent an Incremental Dollar
Facility RL Commitment Agreement in respect thereof as provided in clause (b) of
this Section 1.17, such Lender shall not be obligated to fund any Dollar
Facility Revolving Loans in excess of its Dollar Facility Revolving Loan
Commitment as in effect prior to giving effect to such Incremental Dollar
Facility Revolving Loan Commitment provided pursuant to this Section 1.17, (ii)
any Lender (including any Eligible Transferee who will become a Lender) may so
provide an Incremental Dollar Facility Revolving Loan Commitment without the
consent of any other Lender, (iii) each provision of Incremental Dollar Facility
Revolving Loan Commitments on a given date pursuant to this Section 1.17 shall
be in a minimum aggregate amount (for all Lenders (including any Eligible
Transferee who will become a Lender)) of at least $5,000,000, (iv) the aggregate
amount of all Incremental Dollar Facility Revolving Loan Commitments provided
pursuant to this Section 1.17, when combined with the aggregate amount of all
Incremental Term Loan Commitments provided pursuant to Section 1.15 and the
aggregate amount of all Incremental Multicurrency Facility Revolving Loan
Commitments provided pursuant to Section 1.16, shall not exceed the Maximum
Incremental Commitment Amount, (v) all Dollar Facility Revolving Loans made
pursuant to an Incremental Dollar Facility RL Commitment (and all interest, fees
and other amounts payable thereon) shall be Obligations under this Agreement and
the other applicable Credit Documents and shall be secured by the relevant
Security Agreements, and guaranteed under each relevant Guaranty, on a pari
passu basis with all other Obligations secured by each such Security Agreement
and guaranteed under each such Guaranty and (vi) all actions taken by the
Borrowers pursuant to this Section 1.17 shall be done in coordination with the
Administrative Agent.
(b) At the time of the provision of Incremental Dollar Facility
Revolving Loan Commitments pursuant to this Section 1.17, each Borrower, the
Administrative Agent and each such Lender or other Eligible Transferee which
agrees to provide an Incremental Dollar Facility Revolving Loan Commitment
(each, an "Incremental Dollar Facility RL Lender") shall execute and deliver to
the Administrative Agent an Incremental Dollar Facility RL Commitment Agreement
substantially in the form of Exhibit R (appropriately completed), with the
effectiveness of such Incremental RL Lender's Incremental Dollar Facility
Revolving Loan Commitment to occur on the date set forth in such Incremental
Dollar Facility RL Commitment Agreement, which date in any event shall be no
earlier than the date on which (w) all fees required to be paid in connection
therewith at the time of such effectiveness shall have been paid (including,
without limitation, any agreed upon up-front or arrangement fees owing to the
Administrative Agent), (x) all Incremental Loan Commitment Requirements are
satisfied, (y) all other conditions set forth in this Section 1.17 shall have
been satisfied, and (z) all other conditions precedent that may be set forth in
such Incremental Dollar Facility RL Commitment Agreement shall have been
satisfied. The Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Dollar Facility RL Commitment Agreement, and
at such time, (i) the Total Dollar Facility Revolving Loan Commitment under, and
for all purposes of, this Agreement shall be increased by the aggregate amount
of such Incremental Dollar Facility Revolving Loan Commitments, (ii) Schedule I
shall be deemed modified to reflect the revised Dollar Facility Revolving Loan
Commitments of the affected Lenders and (iii) to the extent requested by any
Incremental RL Lender, Dollar Facility Revolving Notes will be issued at the
Borrowers' expense, to such Incremental RL Lender, to be in conformity with the
requirements of Section 1.05 (with appropriate modification) to the extent
needed to
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reflect the new Incremental Dollar Facility RL Commitment provided made by such
Incremental RL Lender.
(c) At the time of any provision of Incremental Dollar Facility
Revolving Loan Commitments pursuant to this Section 1.17, the Borrowers shall,
in coordination with the Administrative Agent, repay outstanding Dollar Facility
Revolving Loans of certain of the Dollar Facility RL Lenders, and incur
additional Dollar Facility Revolving Loans from certain other Dollar Facility RL
Lenders (including the Incremental Dollar Facility RL Lenders), in each case to
the extent necessary so that all of the Dollar Facility RL Lenders participate
in each outstanding Borrowing of Dollar Facility Revolving Loans pro rata on the
basis of their respective Dollar Facility Revolving Loan Commitments (after
giving effect to any increase in the Total Dollar Facility Revolving Loan
Commitment pursuant to this Section 1.17) and with the Borrowers being jointly
and severally obligated to pay to the respective Dollar Facility RL Lenders any
costs of the type referred to in Section 1.11 in connection with any such
repayment and/or Borrowing.
1.18 European Monetary Union. The following provisions of this Section
1.18 shall come into effect on and from the date on which the United Kingdom
becomes a Participating Member State. Each obligation under this Agreement which
has been denominated in Sterling shall be redenominated into Euros in accordance
with the relevant EMU Legislation. However, if and to the extent that the
relevant EMU Legislation provides that an amount which is denominated in
Sterling can be paid by the debtor either in Euros or in that national currency
unit, each party to this Agreement shall be entitled to pay or repay any amount
denominated or owing in Sterling hereunder either in Euros or in Sterling.
Without prejudice and in addition to any method of conversion or rounding
prescribed by any relevant EMU Legislation, (i) each reference in this Agreement
to a minimum amount (or an integral multiple thereof) in Sterling shall be
replaced by a reference to such reasonably comparable and convenient amount (or
an integral multiple thereof) in Euros as the Administrative Agent may from time
to time specify and (ii) except as expressly provided in this Section 1.18, this
Agreement shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify to be necessary or
appropriate to reflect the introduction of or changeover to Euros in the United
Kingdom, provided that this Section 1.18 shall not reduce or increase any actual
or contingent liability arising under this Agreement.
SECTION 2A. Letters of Credit.
2A.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, a Borrower may request an Issuing Lender, at any
time and from time to time on and after the Restatement Effective Date and prior
to the fifth Business Day (or the 30th day in the case of Trade Letters of
Credit) preceding the Revolving Loan Maturity Date, to issue, (x) for the
account of the U.S. Borrower (in the case of requests made by it) or the account
of the Bermuda Borrower (in the case of requests made by it) and for the benefit
of any holder (or any trustee, agent or other similar representative for any
such holders) of L/C Supportable Indebtedness of the respective Account Party or
any of its or their Subsidiaries, irrevocable standby letters of credit in a
form customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such standby letter of credit, a "Standby
Letter of Credit") in support of such L/C Supportable Indebtedness and (y) for
the account of the respective Account Party and for the benefit of sellers of
goods to the respective Account Party or any of its or their Subsidiaries in the
ordinary course of business, irrevocable sight trade letters of credit in a form
customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such trade letter of credit, a "Trade
Letter of Credit", and each such Standby Letter of Credit and Trade Letter of
Credit, a "Letter of Credit" and collectively, the "Letters of Credit"). All
Letters of Credit shall be issued on a sight basis only. Each Letter of Credit
shall constitute either (x) a Multicurrency Facility Letter of Credit, in which
case such Letter of Credit shall be deemed to constitute a
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utilization of the Multicurrency Facility Revolving Loan Commitments and shall,
subject to the provisions of Section 1.14 if a Sharing Event occurs, be
participated in (as more fully described in following Section 2A.04(a)) by the
Multicurrency Facility RL Lenders in accordance with their respective
Multicurrency Facility RL Percentages or (y) a Dollar Facility Letter of Credit,
in which case such Letter of Credit shall be deemed to constitute a utilization
of the Dollar Facility Revolving Loan Commitments and shall, subject to the
provisions of Section 1.14 if a Sharing Event occurs, be participated in (as
more fully described in following Section 2A.04(a)) by the Dollar Facility RL
Lenders in accordance with their respective Dollar Facility RL Percentages. All
Multicurrency Facility Letters of Credit shall be denominated in Dollars, Euros
or Sterling and shall be issued for the account of the U.S. Borrower or the
Bermuda Borrower. All Dollar Facility Letters of Credit shall be denominated in
Dollars and shall be issued for the account of the U.S. Borrower or the Bermuda
Borrower. Each Multicurrency Facility Letter of Credit shall constitute either a
U.S. Borrower Multicurrency Facility Letter of Credit or a Bermuda Borrower
Multicurrency Facility Letter of Credit. Each Dollar Facility Letter of Credit
shall constitute either a U.S. Borrower Dollar Facility Letter of Credit or a
Bermuda Borrower Dollar Facility Letter of Credit. The Bermuda Borrower shall
have no liability with respect to any U.S. Borrower Multicurrency Facility
Letter of Credit or any U.S. Borrower Dollar Facility Letter of Credit which may
be issued to the U.S. Borrower.
(b) Subject to and upon the terms and conditions set forth herein,
each Issuing Lender hereby agrees that it will, at any time and from time to
time on and after the Restatement Effective Date and prior to the fifth Business
Day (or the 30th day in the case of Trade Letters of Credit) preceding the
Revolving Loan Maturity Date, following its receipt of the respective Letter of
Credit Request, issue for the account of the respective Account Party one or
more Letters of Credit, (x) in the case of Trade Letters of Credit, in support
of trade obligations of the respective Account Party or any of its or their
Subsidiaries that arise in the ordinary course of business or (y) in the case of
Standby Letters of Credit, in support of such L/C Supportable Indebtedness as is
permitted to remain outstanding without giving rise to a Default or Event of
Default hereunder; provided that the respective Issuing Lender shall be under no
obligation to issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Lender is not otherwise
compensated) not in effect on the Original Effective Date, or any
unreimbursed loss, cost or expense which was not applicable, in effect or
known to such Issuing Lender as of the Original Effective Date and which
such Issuing Lender in good xxxxx xxxxx material to it;
(ii) such Issuing Lender shall have received written notice from any
Credit Agreement Party or the Required Lenders prior to the issuance of
such Letter of Credit of the type described in clause (ix) of Section
2A.01(c) or the last sentence of Section 2A.03(b); or
(iii) a Lender Default exists with respect to any RL Lender, unless
the Issuing Lender has entered into arrangements satisfactory to it and the
respective Account Party to eliminate such Issuing Lender's risk with
respect to the Lender which is the subject of the Lender Default, including
by cash collateralizing (in Dollars or Euros, as appropriate) such Lender's
relevant Dollar Facility RL Percentage or Multicurrency Facility RL
Percentage, as the case may be, of
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the Dollar Facility Letter of Credit Outstandings or Multicurrency Facility
Letter of Credit Outstandings, as the case may be.
(c) Notwithstanding the foregoing, (i) no Multicurrency Facility
Letter of Credit shall be issued the Stated Amount of which, when added to the
sum of (x) the Multicurrency Facility Letter of Credit Outstandings (exclusive
of Unpaid Drawings which are repaid on the date of, and prior to the issuance
of, the respective Multicurrency Facility Letter of Credit) at such time and (y)
the Bank Guaranty Outstandings (exclusive of Unreimbursed Payments which are
repaid on the date of, and prior to the issuance of, the respective Bank
Guaranty) at such time, would exceed 80% of the Total Multicurrency Facility
Revolving Loan Commitment as in effect on such date, (ii) no Dollar Facility
Letter of Credit shall be issued the Stated Amount of which, when added to the
Dollar Facility Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid on the date of, and prior to the issuance of, the respective
Dollar Facility Letter of Credit) at such time, would exceed 75% of the Total
Dollar Facility Revolving Loan Commitment as in effect on such date, (iii) no
Multicurrency Facility Letter of Credit shall be issued at any time when the
Aggregate Multicurrency Facility RL Exposure exceeds (or would after giving
effect to such issuance exceed) the Total Multicurrency Facility Revolving Loan
Commitment at such time, (iv) no Dollar Facility Letter of Credit shall be
issued at any time when the Aggregate Dollar Facility RL Exposure exceeds (or
would after giving effect to such issuance exceed) the Total Dollar Facility
Revolving Loan Commitment at such time, (v) no Bermuda Borrower Dollar Facility
Letter of Credit shall be issued at any time when the Aggregate Bermuda Borrower
Dollar Facility RL Exposure exceeds (or would after giving effect to such
issuance exceed) 50% of the Total Dollar Facility Revolving Loan Commitment as
then in effect, (vi) no U.S. Borrower Multicurrency Facility Letter of Credit
shall be issued at any time when the Aggregate U.S. Borrower Multicurrency
Facility RL Exposure exceeds (or would after giving effect to such issuance
exceed) 50% of the Total Multicurrency Facility Revolving Loan Commitment as
then in effect, (vii) (x) each Standby Letter of Credit shall by its terms
terminate on or before the date which occurs 12 months after the date of the
issuance thereof (although any such Standby Letter of Credit may be extendable
for successive periods of up to 12 months, but not beyond the fifth Business Day
preceding the Revolving Loan Maturity Date, on terms acceptable to the Issuing
Lender thereof), provided that a Standby Letter of Credit issued to support
obligations under any Specified Existing Ship Lease may terminate by its terms
on or prior to the earlier to occur of (1) the date which occurs 24 months after
the date of the issuance thereof and (2) the fifth Business Day preceding the
Revolving Loan Maturity Date and (y) each Trade Letter of Credit shall by its
terms terminate on or before the date occurring not later than 180 days after
such Trade Letter of Credit's date of issuance, (viii) (x) no Standby Letter of
Credit shall have an expiry date occurring later than the fifth Business Day
preceding the Revolving Loan Maturity Date and (y) no Trade Letter of Credit
shall have an expiry date occurring later than 30 days prior to the Revolving
Loan Maturity Date, (ix) (x) each Multicurrency Facility Letter of Credit shall
be denominated in Euros, Dollars or Sterling and (y) each Dollar Facility Letter
of Credit shall be denominated in Dollars and (x) no Issuing Lender will issue
any Letter of Credit after it has received written notice from any Credit
Agreement Party or the Required Lenders stating that a Default or an Event of
Default exists until such time as such Issuing Lender shall have received a
written notice of (x) rescission of such notice from the party or parties
originally delivering the same or (y) a waiver of such Default or Event of
Default by the Required Lenders.
(d) Part A of Schedule XI hereto contains a description of certain
letters of credit issued (or deemed issued) pursuant to the Original Credit
Agreement and outstanding on the Restatement Effective Date (and setting forth,
with respect to each such letter of credit, (i) the name of the issuing lender,
(ii) the letter of credit number, (iii) the name(s) of the account party or
account parties, (iv) the stated amount (including the currency in which such
letter of credit is denominated, which shall be Dollars, Euros or Sterling), (v)
the name of the beneficiary, (vi) the expiry date and (vii) whether such letter
of credit constitutes a standby letter of credit or a trade letter of credit).
Each such letter of credit,
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including any extension or renewal thereof (each, as amended from time to time
in accordance with the terms thereof and hereof, an "Existing Letter of Credit")
shall constitute a "U.S. Borrower Dollar Facility Letter of Credit", a "Bermuda
Borrower Dollar Facility Letter of Credit", a "Bermuda Borrower Multicurrency
Facility Letter of Credit" or a "U.S. Borrower Multicurrency Facility Letter of
Credit" (as set forth on Part A of Schedule XI) for all purposes of this
Agreement, issued, for purposes of Section 2A.04(a), on the Restatement
Effective Date. Any Lender hereunder which has issued an Existing Letter of
Credit shall constitute an "Issuing Lender" for all purposes of this Agreement.
2A.02 Minimum Stated Amount. The Stated Amount of each Letter of
Credit upon issuance shall be not less than (x) in the case of a Dollar
Denominated Letter of Credit, $250,000, (y) in the case of a Euro Denominated
Letter of Credit, E150,000 and (z) in the case of a Sterling Denominated
Letter of Credit, L150,000, or in each case such lesser amount as is
reasonably acceptable to the respective Issuing Lender.
2A.03 Letter of Credit Requests. (a) Whenever an Account Party desires
that a Letter of Credit be issued for its account, such Account Party shall give
the Administrative Agent (at the appropriate Notice Office) and the respective
Issuing Lender at least 3 days' (or such shorter period as is acceptable to such
Issuing Lender in any given case) written notice prior to the proposed date of
issuance (which shall be a Business Day). Each notice shall be in the form of
Exhibit C-1 (each, a "Letter of Credit Request"), including without limitation
by specifying whether the requested Letter of Credit shall constitute a U.S.
Borrower Multicurrency Facility Letter of Credit, a Bermuda Borrower
Multicurrency Facility Letter of Credit, a U.S. Borrower Dollar Facility Letter
of Credit or a Bermuda Borrower Dollar Facility Letter of Credit and the
Available Currency in which the requested Letter of Credit is to be denominated.
Each Letter of Credit Request shall include any other documents as such Issuing
Lender customarily requires in connection therewith.
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the U.S. Borrower or the Bermuda Borrower, as
the case may be, that such Letter of Credit may be issued in accordance with,
and will not violate the requirements of, Section 2A.01(c). Unless the
respective Issuing Lender has received notice from the Required Lenders before
it issues a Letter of Credit that one or more of the applicable conditions
specified in Section 5 or 6, as the case may be, are not then satisfied, or that
the issuance of such Letter of Credit would violate Section 2A.01(c), then such
Issuing Lender may issue the requested Letter of Credit for the account of the
respective Account Party in accordance with such Issuing Lender's usual and
customary practices.
2A.04 Letter of Credit Participations. (a) Immediately upon the
issuance by any Issuing Lender of any Letter of Credit, such Issuing Lender
shall be deemed to have sold and transferred to (i) in the case of a
Multicurrency Facility Letter of Credit, each Multicurrency Facility RL Lender
and (ii) in the case of a Dollar Facility Letter of Credit, each Dollar Facility
RL Lender (each such Lender with respect to any Letter of Credit, in its
capacity under this Section 2A.04, a "L/C Participant"), and each such L/C
Participant shall be deemed irrevocably and unconditionally to have purchased
and received from such Issuing Lender, without recourse or warranty, an
undivided interest and participation, in a percentage equal to (x) in the case
of a Multicurrency Facility Letter of Credit, such L/C Participant's
Multicurrency Facility RL Percentage or (y) in the case of a Dollar Facility
Letter of Credit, such L/C Participant's Dollar Facility RL Percentage, in such
Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit, as
the case may be, each Drawing made thereunder and the obligations of the
respective Borrower under this Agreement with respect thereto (although Letter
of Credit Fees shall be payable directly to the Administrative Agent for the
account of the Multicurrency Facility RL Lenders or Dollar Facility RL Lenders,
as the case may be, as provided in Section 3.01(b) and the L/C Participants
shall have no right to receive any portion of any Facing Fees with respect to
any such Letters of Credit) and any security therefor or guaranty pertaining
thereto. Upon any change in (x) the Multicurrency
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Facility Revolving Loan Commitments and, as a result thereof the Multicurrency
Facility RL Percentages, of the Multicurrency Facility RL Lenders pursuant to
Section 1.13, 1.16 or 13.04, it is hereby agreed that, with respect to all
outstanding Multicurrency Facility Letters of Credit and Unpaid Drawings
relating thereto, there shall be an automatic adjustment to the participations
pursuant to this Section 2A.04 to reflect the new Multicurrency Facility RL
Percentages of the Multicurrency Facility RL Lenders and (y) the Dollar Facility
Revolving Loan Commitments and, as a result thereof the Dollar Facility RL
Percentages, of the Dollar Facility RL Lenders pursuant to Sections 1.13, 1.17
or 13.04, it is hereby agreed that with respect to all outstanding Dollar
Facility Letters of Credit and Unpaid Drawings relating thereto, there shall be
an automatic adjustment to the participations pursuant to this Section 2A.04 to
reflect the new Dollar Facility RL Percentages of the Dollar Facility RL
Lenders. With respect to each Letter of Credit from time to time outstanding,
the percentage participations therein of the various Multicurrency Facility RL
Lenders (in the case of a Multicurrency Facility Letter of Credit) or Dollar
Facility RL Lenders (in the case of a Dollar Facility Letter of Credit)
calculated as provided above in this Section 2A.04(a) are herein called the "L/C
Participation Percentages" of the various Multicurrency Facility RL Lenders or
Dollar Facility RL Lenders, as the case may be, in such Letters of Credit. All
calculations of the L/C Participation Percentages shall be made from time to
time by the Administrative Agent, which calculations shall be conclusive absent
manifest error. In addition to the adjustments contemplated above, upon the
occurrence of a Sharing Event, in accordance with the provisions of Section
1.14(d), the "L/C Participation Percentages" of the RL Lenders shall be
adjusted, so that each RL Lender shall participate in each outstanding Letter of
Credit (whether a Multicurrency Facility Letter of Credit or a Dollar Facility
Letter of Credit) in accordance with its RL Percentage, in each case as more
fully described in Section 1.14(d). In any instance described in the immediately
preceding sentence, each RL Lender shall be a L/C Participant with respect to
each Letter of Credit and its L/C Participation Percentage in each Letter of
Credit shall be determined by the Administrative Agent in accordance with the
relevant provisions of Section 1.14(d). Furthermore, upon the occurrence of a
Sharing Event and as more fully set forth in Section 1.14, additional
sub-participations may be required to be granted by the various RL Lenders in
their participations in outstanding Letters of Credit, in each case in
accordance with, and subject to the provisions of, Section 1.14.
(b) In determining whether to pay under any Letter of Credit, the
respective Issuing Lender shall have no obligation relative to the other Lenders
other than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Lender under or
in connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision), shall not create
for such Issuing Lender any resulting liability to any Account Party or any
Lender.
(c) In the event that any Issuing Lender makes any payment or
disbursement under any Letter of Credit issued by it and the respective Account
Party shall not have reimbursed such amount in full to such Issuing Lender
pursuant to Section 2A.05(a), such Issuing Lender shall promptly notify the
Administrative Agent, which shall promptly notify each L/C Participant therein
(i.e., (A) if no Sharing Event has occurred, either (x) the Multicurrency
Facility RL Lenders in the case of a Multicurrency Facility Letter of Credit or
(y) the Dollar Facility RL Lenders in the case of a Dollar Facility Letter of
Credit or (B) if a Sharing Event has occurred, each RL Lender) of such failure,
and each L/C Participant therein shall promptly and unconditionally pay to the
Administrative Agent for the account of such Issuing Lender the amount of such
L/C Participant's L/C Participation Percentage (as relates to the respective
Letter of Credit) of the respective Unpaid Drawing (with the amount thereof and
the currency in which same is owing to be calculated in accordance with the
provisions of Section 2A.05(a)) in Dollars (or, to the extent the respective
Unpaid Drawing is, in accordance with Section 2A.05(a), to be reimbursed by the
respective Account Party in Euros, in Euros) and in same day funds. If the
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Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any
Business Day, any L/C Participant required to fund an Unpaid Drawing under a
Letter of Credit, such L/C Participant shall make available to the
Administrative Agent at the Payment Office for the account of the respective
Issuing Lender, in Dollars (or in Euros to the extent the respective Unpaid
Drawing is required to be paid by the respective Account Party in Euros pursuant
to the provisions of Section 2A.05(a)), such L/C Participant's L/C Participation
Percentage (as relates to the respective Letter of Credit) of the amount of such
payment on such Business Day in same day funds. If and to the extent that, for
any reason, such L/C Participant shall not have made its L/C Participation
Percentage of the amount of such payment available to the Administrative Agent
for the account of the respective Issuing Lender, such L/C Participant agrees to
pay to the Administrative Agent for the account of such Issuing Lender,
forthwith on demand such amount, together with interest thereon, for each day
from the date the respective Unpaid Drawing occurred until the date such amount
is paid to the Administrative Agent for the account of such Issuing Lender at
the overnight Federal Funds Rate (or, in the case of amounts owed in Euros, at
the Overnight Euro Rate), provided that if any L/C Participant does not make
available to the Administrative Agent any amounts required to be made available
by it as described above within 2 Business Days after the respective L/C
Participant has been notified by the Administrative Agent or the respective
Issuing Lender to make such amounts available, then the respective L/C
Participant shall pay interest on the amounts demanded of it at the same rates
payable from time to time by the respective Account Party on the respective
Unpaid Drawings pursuant to Section 2A.05(a). The failure of any L/C Participant
to make available to the Administrative Agent for the account of the respective
Issuing Lender its relevant L/C Participation Percentage of any payment under
any Letter of Credit issued by it shall not relieve any other L/C Participant in
the respective Letter of Credit of its obligation hereunder to make available to
the Administrative Agent for the account of such Issuing Lender its relevant L/C
Participation Percentage of any such Letter of Credit on the date required, as
specified above, but no L/C Participant shall be responsible for the failure of
any other L/C Participant to make available to the Administrative Agent for the
account of such Issuing Lender such other L/C Participant's relevant L/C
Participation Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement
obligation as to which the Administrative Agent has received for the account of
such Issuing Lender any payments from the L/C Participants pursuant to clause
(c) above, such Issuing Lender shall pay to the Administrative Agent and the
Administrative Agent shall promptly pay each L/C Participant which has paid its
relevant L/C Participation Percentage thereof, in Dollars (or in Euros in the
case of payments to be made in Euros pursuant to Section 2A.05(a)) and in same
day funds, an amount equal to such L/C Participant's share (based on the
proportionate aggregate amount funded by such L/C Participant to the aggregate
amount funded by all L/C Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective participations.
(e) Each Issuing Lender shall, promptly after the issuance of, or
amendment or modification to, a Standby Letter of Credit, give the
Administrative Agent and the respective Account Party written notice of such
issuance, amendment or modification, as the case may be, and such notice shall
be accompanied by a copy of such Standby Letter of Credit, such amendment or
such modification, as the case may be. Promptly upon receipt of such notice, the
Administrative Agent shall notify each L/C Participant, in writing, of such
issuance, amendment or modification and if any L/C Participant shall so request,
the Administrative Agent shall furnish said L/C Participant with a copy of such
Standby Letter of Credit, such amendment or such modification, as the case may
be.
(f) Each Issuing Lender (other than DBAG) shall deliver to the
Administrative Agent, promptly on the first Business Day of each week, by
facsimile transmission, the aggregate daily Stated Amount available to be drawn
under the outstanding Trade Letters of Credit issued by such Issuing Lender for
the previous week.
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(g) The obligations of the L/C Participants to make payments to the
Administrative Agent for the account of the respective Issuing Lender with
respect to Letters of Credit issued by it shall be irrevocable and not subject
to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
any Credit Party or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), any
Agent, any Lender, any Issuing Lender, any L/C Participant, or any other
Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between any Credit Party or any of
its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any
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;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
provided that the L/C Participants shall not be obligated to reimburse such
Issuing Lender for any wrongful payment made by such Issuing Lender under a
Letter of Credit issued by it as a result of deliberate acts or omissions
constituting willful misconduct or gross negligence on the part of such Issuing
Lender (as determined by a court of competent jurisdiction in a final and
non-appealable decision). Any action taken or omitted to be taken by any Issuing
Lender under or in connection with any Letter of Credit shall not create for
such Issuing Lender any resulting liability to the L/C Participants or any other
Person unless such action is taken or omitted to be taken with gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
2A.05 Agreement to Repay Letter of Credit Drawings. (a) The U.S.
Borrower hereby agrees (in the case of U.S. Borrower Multicurrency Facility
Letters of Credit and U.S. Borrower Dollar Facility Letters of Credit), and the
Bermuda Borrower hereby agrees (in the case of Bermuda Borrower Multicurrency
Facility Letters of Credit and Bermuda Borrower Dollar Facility Letters of
Credit), to reimburse the respective Issuing Lender, by making payment in
Dollars (in the case of all Dollar Denominated Letters of Credit and Sterling
Denominated Letters of Credit or, after a Sharing Event, all Letters of Credit)
or Euros (in the case of Euro Denominated Letters of Credit at any time prior to
a Sharing Event) to the Administrative Agent in immediately available funds at
the Payment Office (or by making the payment directly to such Issuing Lender at
such location as may otherwise have been agreed upon by the respective Account
Party and such Issuing Lender), for any payment or disbursement (in the case of
any such payment or disbursement under (x) any Sterling Denominated Letter of
Credit, taking the Dollar Equivalent of the amount of the respective payment or
disbursement on the date upon which the respective payment or disbursement is
made and (y) any Euro Denominated Letter of Credit which is unpaid on the date
of the occurrence of a Sharing Event, or which payments or disbursements are
made thereafter, taking the Dollar Equivalent of the amount of the respective
payment or disbursement made in Euros as such Dollar Equivalent is determined on
the first date upon which the respective Sharing Event
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occurs or, if later, the date upon which the respective payment or disbursement
is made) made by such Issuing Lender under any Letter of Credit issued by it
(each such amount so paid until reimbursed, an "Unpaid Drawing"), not later than
the third Business Day after the Administrative Agent or the Issuing Lender
notifies the respective Borrower of such payment or disbursement, with interest
on the amount so paid or disbursed by such Issuing Lender, to the extent not
reimbursed prior to 1:00 P.M. (New York time), on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding the
date such Issuing Lender is reimbursed by the U.S. Borrower or the Bermuda
Borrower, as the case may be, therefor at a rate per annum which shall be (x) in
the case of Dollar Denominated Letters of Credit, Sterling Denominated Letters
of Credit and other amounts owing in Dollars after the occurrence of a Sharing
Event, the Base Rate in effect from time to time plus the Applicable Margin for
Multicurrency Facility Revolving Loans (in the case of Multicurrency Facility
Letters of Credit) or Dollar Facility Revolving Loans (in the case of Dollar
Facility Letters of Credit) in each case maintained as Base Rate Loans, as in
effect from time to time and (y) in the case of Euro Denominated Letters of
Credit for periods occurring prior to the occurrence of a Sharing Event, the
Overnight Euro Rate in effect from time to time plus the Applicable Margin for
Euro Denominated Revolving Loans as in effect from time to time plus any
Mandatory Costs, provided, however, to the extent such amounts are not
reimbursed prior to 1:00 P.M. (New York time) on the third Business Day
following notice to the respective Account Party by the Administrative Agent or
the respective Issuing Lender of such payment or disbursement, interest shall
thereafter accrue on the amounts so paid or disbursed by such Issuing Lender
(and until reimbursed by the respective Account Party) at a rate per annum which
shall be (x) in the case of Dollar Denominated Letters of Credit, Sterling
Denominated Letters of Credit and other amounts owing in Dollars after the
occurrence of a Sharing Event, the Base Rate in effect from time to time plus
the Applicable Margin for Multicurrency Facility Revolving Loans (in the case of
Multicurrency Facility Letters of Credit) or Dollar Facility Revolving Loans (in
the case of Dollar Facility Letters of Credit) in each case maintained as Base
Rate Loans, as in effect from time to time plus 2% and (y) in the case of Euro
Denominated Letters of Credit for periods occurring prior to the occurrence of a
Sharing Event, the Overnight Euro Rate in effect from time to time plus the
Applicable Margin for Euro Denominated Revolving Loans as in effect from time to
time plus any Mandatory Costs plus 2%, in each such case, with interest to be
payable on demand, provided further, that it is understood and agreed, however,
that the notices referred to above in this clause (a) and in the immediately
preceding proviso shall not be required to be given if a Default or an Event of
Default under Section 10.05 shall have occurred and be continuing (in which case
the Unpaid Drawings shall be due and payable immediately without presentment,
demand, protest or notice of any kind (all of which are hereby waived by each
Credit Party) and shall bear interest at the rate provided in the foregoing
proviso on and after the third Business Day following the respective Drawing).
The respective Issuing Lender shall give the respective Account Party prompt
notice of each Drawing under any Letter of Credit, provided that the failure to
give, or any delay in giving, any such notice shall in no way affect, impair or
diminish the respective Account Party's obligations under this Agreement.
(b) The obligations of the U.S. Borrower (with respect to U.S.
Borrower Multicurrency Facility Letters of Credit and U.S. Borrower Dollar
Facility Letters of Credit) and the obligations of the Bermuda Borrower (with
respect to Bermuda Borrower Multicurrency Facility Letters of Credit and Bermuda
Borrower Dollar Facility Letters of Credit) under this Section 2A.05 to
reimburse the respective Issuing Lender with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the respective Account Party may have or have had
against any Lender (including in its capacity as Issuing Lender or as L/C
Participant), including, without limitation, any defense based upon the failure
of any drawing under a Letter of Credit (each, a "Drawing") to conform to the
terms of such Letter of Credit or any nonapplication or misapplication by the
beneficiary of the proceeds of such Drawing, the respective Issuing Lender's
only obligation to the respective Account Party being to confirm that any
documents required to be delivered under such Letter of Credit appear to have
been delivered and that they appear to substantially comply on their face with
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requirements of such Letter of Credit; provided, however, that no Account Party
shall be obligated to reimburse any Issuing Lender for any wrongful payment made
by such Issuing Lender under a Letter of Credit issued by it as a result of
deliberate acts or omissions constituting willful misconduct or gross negligence
on the part of such Issuing Lender (as determined by a court of competent
jurisdiction in a final and non-appealable decision). Any action taken or
omitted to be taken by any Issuing Lender under or in connection with any Letter
of Credit shall not create for such Issuing Lender any resulting liability to
any Account Party unless such action is taken or admitted to be taken with gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
2A.06 Increased Costs. If after the Original Effective Date, any
Issuing Lender or any L/C Participant determines in good faith that the adoption
or effectiveness after the Original Effective Date of any applicable law, rule
or regulation, order, guideline or request or any change therein, or any change
after the Original Effective Date in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Issuing
Lender or any L/C Participant with any request or directive (whether or not
having the force of law) by any such authority, central bank or comparable
agency shall either (i) impose, modify or make applicable any reserve, deposit,
capital adequacy or similar requirement against Letters of Credit issued by such
Issuing Lender or such L/C Participant's participation therein, or (ii) impose
on any Issuing Lender or any L/C Participant any other conditions directly or
indirectly affecting this Agreement, any Letter of Credit or such L/C
Participant's participation therein; and the result of any of the foregoing is
to increase the cost to such Issuing Lender or such L/C Participant of issuing,
maintaining or participating in any Letter of Credit, or to reduce the amount of
any sum received or receivable by such Issuing Lender or such L/C Participant
hereunder or reduce the rate of return on its capital with respect to Letters of
Credit, then, upon written demand to the U.S. Borrower or the Bermuda Borrower,
as the case may be, by such Issuing Lender or such L/C Participant (a copy of
which notice shall be sent by such Issuing Lender or such L/C Participant to the
Administrative Agent), accompanied by the certificate described in the last
sentence of this Section 2A.06, the U.S. Borrower or the Bermuda Borrower, as
the case may be, shall pay to such Issuing Lender or such L/C Participant for
such increased cost or reduction. A certificate submitted to the relevant
Borrower by such Issuing Lender or such L/C Participant, as the case may be (a
copy of which certificate shall be sent by such Issuing Lender or such L/C
Participant to the Administrative Agent), setting forth in reasonable detail the
basis for the determination of such additional amount or amounts necessary to
compensate such Issuing Lender or such L/C Participant as aforesaid shall be
final and conclusive and binding on such Borrower absent manifest error,
although the failure to deliver any such certificate shall not release or
diminish such Borrower's obligations to pay additional amounts pursuant to this
Section 2A.06 upon subsequent receipt of such certificate.
SECTION 2B. Bank Guaranties.
2B.01 Bank Guaranties. (a) Subject to and upon the terms and
conditions herein set forth, a Borrower may request a Bank Guaranty Issuer, at
any time and from time to time on and after the Restatement Effective Date and
prior to the tenth Business Day preceding the Revolving Loan Maturity Date, to
issue, for the account of the U.S. Borrower (in the case of requests made by it)
or the account of the Bermuda Borrower (in the case of requests made by it) and
for the benefit of any holder (or any trustee, agent or other similar
representative for any such holders) of B/G Supportable Indebtedness of the
respective Account Party or any of its or their Wholly-Owned Subsidiaries, a
bank guaranty in a form customarily used by such Bank Guaranty Issuer or in such
other form as has been approved by such Bank Guaranty Issuer (each such bank
guaranty, a "Bank Guaranty" and collectively, the "Bank Guaranties") in support
of such B/G Supportable Indebtedness (it being understood and agreed that (i)
the form of Bank Guaranties shall be subject to the respective Bank Guaranty
Issuer's internal policies and procedures for the issuance of bank guaranties
and to applicable local law restrictions and regulations and (ii) each Bank
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Guaranty Issuer may request the respective Account Party to accept such Bank
Guaranty Issuer's general business conditions specifically applicable to its
bank guaranty business prior to the issuance of any Bank Guaranty). Each Bank
Guaranty shall constitute a utilization of the Multicurrency Facility Revolving
Loan Commitments and shall, subject to the provisions of Section 1.14 if a
Sharing Event occurs, be participated in (as more fully described in following
Section 2B.04(a)) by the Multicurrency Facility RL Lenders in accordance with
their respective Multicurrency Facility RL Percentages. All Bank Guaranties
shall be denominated in Dollars, Euros or Sterling and shall expressly provide
the maximum amount that may be paid thereunder. Each Bank Guaranty shall
constitute either a U.S. Borrower Bank Guaranty or a Bermuda Borrower Bank
Guaranty. The Bermuda Borrower shall have no liability with respect to any U.S.
Borrower Bank Guaranty which may be issued to the U.S. Borrower.
(b) Subject to and upon the terms and conditions set forth herein,
each Bank Guaranty Issuer hereby agrees that it will, at any time and from time
to time on and after the Restatement Effective Date and prior to the tenth
Business Day preceding the Revolving Loan Maturity Date, following its receipt
of the respective Bank Guaranty Request, issue for the account of the U.S.
Borrower or the Bermuda Borrower, as the case may be, one or more Bank
Guaranties, in support of such B/G Supportable Indebtedness as is permitted to
remain outstanding without giving rise to a Default or Event of Default
hereunder; provided that the respective Bank Guaranty Issuer shall be under no
obligation to issue any Bank Guaranty if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Bank
Guaranty Issuer from issuing such Bank Guaranty or any requirement of law
applicable to such Bank Guaranty Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Bank Guaranty Issuer shall prohibit, or request
that such Bank Guaranty Issuer refrain from, the issuance of bank
guaranties generally or such Bank Guaranty in particular or shall impose
upon such Bank Guaranty Issuer with respect to such Bank Guaranty any
restriction or reserve or capital requirement (for which such Bank Guaranty
Issuer is not otherwise compensated) not in effect on the Original
Effective Date, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Bank Guaranty Issuer as of the
Original Effective Date and which such Bank Guaranty Issuer in good xxxxx
xxxxx material to it;
(ii) such Bank Guaranty Issuer shall have received written notice from
any Credit Agreement Party or the Required Lenders prior to the issuance of
such Bank Guaranty of the type described in clause (vii) of Section
2B.01(c) or the last sentence of Section 2B.03(b); or
(iii) a Lender Default exists with respect to any RL Lender, unless
the Bank Guaranty Issuer has entered into arrangements satisfactory to it
and the respective Account Party to eliminate such Bank Guaranty Issuer's
risk with respect to the Lender which is the subject of the Lender Default,
including by cash collateralizing (in Dollars or Euros, as appropriate)
such Lender's Multicurrency Facility RL Percentage of the Bank Guaranty
Outstandings.
(c) Notwithstanding the foregoing, (i) no Bank Guaranty shall be
issued the Face Amount of which, when added to the sum of (x) the Bank Guaranty
Outstandings (exclusive of Unreimbursed Payments which are repaid on the date
of, and prior to the issuance of, the respective Bank Guaranty) at such time and
(y) the Multicurrency Facility Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid on the date of, and prior to the issuance of,
the respective Multicurrency Facility Bank Guaranty) at such time, would exceed
80% of the Total Multicurrency Facility Revolving Loan Commitment as then in
effect, (ii) no Bank Guaranty shall be issued at any time when the Aggregate
Multicurrency Facility RL Exposure exceeds (or would after giving effect to such
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issuance exceed) the Total Multicurrency Facility Revolving Loan Commitment at
such time, (iii) no U.S. Borrower Bank Guaranty shall be issued at any time when
the Aggregate U.S. Borrower Multicurrency Facility RL Exposure exceeds (or would
after giving effect to such issuance exceed) 50% of the Total Multicurrency
Facility Revolving Loan Commitment as then in effect, (iv) each Bank Guaranty
shall by its terms terminate on or before the date which occurs 12 months after
the date of the issuance thereof (although any such Bank Guaranty may be
extendable for successive periods of up to 12 months, but not beyond the tenth
Business Day preceding the Revolving Loan Maturity Date, on terms acceptable to
the Bank Guaranty Issuer thereof), provided, however, that a Bank Guaranty shall
not be required to terminate by its terms on or before the twelve month
anniversary of the date of issuance thereof if the respective Account Party
reasonably determines that the intended beneficiary of such Bank Guaranty will
not permit same to terminate as otherwise provided above, (v) no Bank Guaranty
shall have an expiry date occurring later than the tenth Business Day preceding
the Revolving Loan Maturity Date, provided, however, that a Bank Guaranty shall
not be required to have an expiry date as otherwise required above if the
respective Account Party reasonably determines that the beneficiary of such Bank
Guaranty will not accept a Bank Guaranty with an expiry date, (vi) each Bank
Guaranty shall be denominated in Euros, Dollars or Sterling and (vii) no Bank
Guaranty Issuer will issue any Bank Guaranty after it has received written
notice from any Credit Agreement Party or the Required Lenders stating that a
Default or an Event of Default exists until such time as such Bank Guaranty
Issuer shall have received a written notice of (x) rescission of such notice
from the party or parties originally delivering the same or (y) a waiver of such
Default or Event of Default by the Required Lenders.
(d) Part B of Schedule XI hereto contains a description of certain
bank guaranties issued (or deemed issued) pursuant to the Original Credit
Agreement and outstanding on the Restatement Effective Date (and setting forth,
with respect to each such bank guaranty, (i) the name of the bank guaranty
issuer, (ii) the face amount (including the currency in which such bank guaranty
is denominated, which shall be Dollars, Euros or Sterling), (iii) the name of
the beneficiary, and (iv) the expiry date (if any)). Each such bank guaranty,
including any extension or renewal thereof (each, as amended from time to time
in accordance with the terms thereof and hereof, an "Existing Bank Guaranty")
shall constitute either a "Bermuda Borrower Bank Guaranty" or a "U.S. Borrower
Bank Guaranty" (as set forth on Part B of Schedule XI) for all purposes of this
Agreement, issued, for purposes of Section 2B.04(a), on the Restatement
Effective Date. Any Lender hereunder (and any of such Lender's Affiliates and/or
branches) which has issued an Existing Bank Guaranty shall constitute a "Bank
Guaranty Issuer" for all purposes of this Agreement.
2B.02 Minimum Face Amount. The Face Amount of each Bank Guaranty upon
issuance shall be not less than (x) in the case of a Dollar Denominated Bank
Guaranty, $250,000, (y) in the case of a Euro Denominated Bank Guaranty,
E150,000 and (z) in the case of a Sterling Denominated Bank Guaranty, L150,000,
or in each case such lesser amount as is acceptable to the respective Bank
Guaranty Issuer.
2B.03 Bank Guaranty Requests. (a) Whenever an Account Party desires
that a Bank Guaranty be issued for its account, such Account Party shall give
the Administrative Agent (at the appropriate Notice Office) and the respective
Bank Guaranty Issuer at least 3 days' (or such shorter period as is acceptable
to such Bank Guaranty Issuer in any given case) written notice prior to the
proposed date of issuance (which shall be a Business Day). Each notice shall be
in the form of Exhibit C-2 (each, a "Bank Guaranty Request"), including without
limitation whether the requested Bank Guaranty shall constitute a U.S. Borrower
Bank Guaranty or a Bermuda Borrower Bank Guaranty and by specifying the
Available Currency in which the requested Bank Guaranty is to be denominated.
Each Bank Guaranty Request shall include any other documents as such Bank
Guaranty Issuer customarily requires in connection therewith.
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(b) The making of each Bank Guaranty Request shall be deemed to be a
representation and warranty by the the U.S. Borrower or the Bermuda Borrower, as
the case may be, that such Bank Guaranty may be issued in accordance with, and
will not violate the requirements of, Section 2B.01(c). Unless the respective
Bank Guaranty Issuer has received notice from the Required Lenders before it
issues a Bank Guaranty that one or more of the applicable conditions specified
in Section 5 or 6, as the case may be, are not then satisfied, or that the
issuance of such Bank Guaranty would violate Section 2B.01(c), then such Bank
Guaranty Issuer may issue the requested Bank Guaranty for the account of the the
U.S. Borrower or the Bermuda Borrower, as the case may be, in accordance with
such Bank Guaranty Issuer's usual and customary practices.
2B.04 Bank Guaranty Participations. (a) Immediately upon the issuance
by any Bank Guaranty Issuer of any Bank Guaranty, such Bank Guaranty Issuer
shall be deemed to have sold and transferred to each Multicurrency Facility RL
Lender (each such Lender with respect to any Bank Guaranty, in its capacity
under this Section 2B.04, a "B/G Participant"), and each such B/G Participant
shall be deemed irrevocably and unconditionally to have purchased and received
from such Bank Guaranty Issuer, without recourse or warranty, an undivided
interest and participation, in a percentage equal to such B/G Participant's
Multicurrency Facility RL Percentage, in such Bank Guaranty, each Bank Guaranty
Payment made thereunder and the obligations of the respective Account Party
under this Agreement with respect thereto (although Bank Guaranty Fees shall be
payable directly to the Administrative Agent for the account of the
Multicurrency Facility RL Lenders as provided in Section 3.01(e) and the B/G
Participants shall have no right to receive any portion of any administrative
fees with respect to any such Bank Guaranties) and any security therefor or
guaranty pertaining thereto. Upon any change in the Multicurrency Facility
Revolving Loan Commitments and, as a result thereof the Multicurrency Facility
RL Percentages, of the Multicurrency Facility RL Lenders pursuant to Section
1.13, 1.16 or 13.04, it is hereby agreed that, with respect to all outstanding
Bank Guaranties and Unreimbursed Payments relating thereto, there shall be an
automatic adjustment to the participations pursuant to this Section 2B.04 to
reflect the new Multicurrency Facility RL Percentages of the Multicurrency
Facility RL Lenders. With respect to each Bank Guaranty from time to time
outstanding, the percentage participations therein of the various Multicurrency
Facility RL Lenders calculated as provided above in this Section 2B.04(a) are
herein called the "B/G Participation Percentages" of the various Multicurrency
Facility RL Lenders in such Bank Guaranties. All calculations of the B/G
Participation Percentages shall be made from time to time by the Administrative
Agent, which calculations shall be conclusive absent manifest error. In addition
to the adjustments contemplated above, upon the occurrence of a Sharing Event,
in accordance with the provisions of Section 1.14(d), the "B/G Participation
Percentages" of the RL Lenders shall be adjusted, so that each RL Lender shall
participate in each outstanding Bank Guaranty in accordance with its RL
Percentage, in each case as more fully described in Section 1.14(d). In any
instance described in the immediately preceding sentence, each RL Lender shall
be a B/G Participant with respect to each Bank Guaranty and its B/G
Participation Percentage in each Bank Guaranty shall be determined by the
Administrative Agent in accordance with the relevant provisions of Section
1.14(d). Furthermore, upon the occurrence of a Sharing Event and as more fully
set forth in Section 1.14, additional sub-participations may be required to be
granted by the various RL Lenders in their participations in outstanding Bank
Guaranties, in each case in accordance with, and subject to the provisions of,
Section 1.14.
(b) In determining whether to pay under any Bank Guaranty, the
respective Bank Guaranty Issuer shall have no obligation relative to the other
Lenders other than to confirm that any documents required to be delivered under
such Bank Guaranty appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Bank Guaranty.
Any action taken or omitted to be taken by any Bank Guaranty Issuer under or in
connection with any Bank Guaranty issued by it if taken or omitted in the
absence of gross negligence or willful misconduct (as
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determined by a court of competent jurisdiction in a final and non-appealable
decision), shall not create for such Bank Guaranty Issuer any resulting
liability to the respective Account Party or any Lender.
(c) In the event that any Bank Guaranty Issuer makes any payment or
disbursement under any Bank Guaranty issued by it and the respective Account
Party shall not have reimbursed such amount in full to such Bank Guaranty Issuer
pursuant to Section 2B.05(a), such Bank Guaranty Issuer shall promptly notify
the Administrative Agent, which shall promptly notify each B/G Participant
therein (i.e., (A) if no Sharing Event has occurred, the Multicurrency Facility
RL Lenders or (B) a Sharing Event has occurred, each RL Lender) of such failure,
and each B/G Participant therein shall promptly and unconditionally pay to the
Administrative Agent for the account of such Bank Guaranty Issuer the amount of
such B/G Participant's B/G Participation Percentage (as relates to the
respective Bank Guaranty) of the respective Unreimbursed Payment (with the
amount thereof and the currency in which same is owing to be calculated in
accordance with the provisions of Section 2B.05(a)) in Dollars (or, to the
extent the respective Unreimbursed Payment is, in accordance with Section
2B.05(a), to be reimbursed by the respective Account Party in Euros, in Euros)
and in same day funds. If the Administrative Agent so notifies, prior to 11:00
A.M. (New York time) on any Business Day, any B/G Participant required to fund
an Unreimbursed Payment under a Bank Guaranty, such B/G Participant shall make
available to the Administrative Agent at the Payment Office for the account of
the respective Bank Guaranty Issuer, in Dollars (or in Euros to the extent the
respective Unreimbursed Payment is required to be paid by the respective Account
Party in Euros pursuant to the provisions of Section 2B.05(a)), such B/G
Participant's B/G Participation Percentage (as relates to the respective Bank
Guaranty) of the amount of such payment on such Business Day in same day funds.
If and to the extent that, for any reason, such B/G Participant shall not have
made its B/G Participation Percentage of the amount of such payment available to
the Administrative Agent for the account of the respective Bank Guaranty Issuer,
such B/G Participant agrees to pay to the Administrative Agent for the account
of such Bank Guaranty Issuer, forthwith on demand such amount, together with
interest thereon, for each day from the date the respective Unreimbursed Payment
occurred until the date such amount is paid to the Administrative Agent for the
account of such Bank Guaranty Issuer at the overnight Federal Funds Rate (or, in
the case of amounts owed in Euros, at the Overnight Euro Rate), provided that if
any B/G Participant does not make available to the Administrative Agent any
amounts required to be made available by it as described above within 2 Business
Days after the respective B/G Participant has been notified by the
Administrative Agent or the respective Bank Guaranty Issuer to make such amounts
available, then the respective B/G Participant shall pay interest on the amounts
demanded of it at the same rates payable from time to time by the respective
Account Party on the respective Unreimbursed Payments pursuant to Section
2B.05(a). The failure of any B/G Participant to make available to the
Administrative Agent for the account of the respective Bank Guaranty Issuer its
relevant B/G Participation Percentage of any payment under any Bank Guaranty
issued by it shall not relieve any other B/G Participant in the respective Bank
Guaranty of its obligation hereunder to make available to the Administrative
Agent for the account of such Bank Guaranty Issuer its B/G Participation
Percentage of any such Bank Guaranty on the date required, as specified above,
but no B/G Participant shall be responsible for the failure of any other B/G
Participant to make available to the Administrative Agent for the account of
such Bank Guaranty Issuer such other B/G Participant's B/G Participation
Percentage of any such payment.
(d) Whenever any Bank Guaranty Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Bank Guaranty Issuer any payments from the B/G Participants
pursuant to clause (c) above, such Bank Guaranty Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay each B/G
Participant which has paid its B/G Participation Percentage thereof, in Dollars
(or in Euros in the case of payments to be made in Euros pursuant to Section
2B.05(a)) and in same day funds, an amount equal to such B/G Participant's share
(based on the proportionate aggregate amount funded by such B/G
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Participant to the aggregate amount funded by all B/G Participants) of the
principal amount of such reimbursement obligation and interest thereon accruing
after the purchase of the respective participations.
(e) Each Bank Guaranty Issuer shall, promptly after the issuance of,
or amendment or modification to, a Bank Guaranty, give the Administrative Agent
and the respective Account Party written notice of such issuance, amendment or
modification, as the case may be, and such notice shall be accompanied by a copy
of such Bank Guaranty, such amendment or such modification, as the case may be.
Promptly upon receipt of such notice, the Administrative Agent shall notify each
B/G Participant, in writing, of such issuance, amendment or modification and if
any B/G Participant shall so request, the Administrative Agent shall furnish
said B/G Participant with a copy of such Bank Guaranty, such amendment or such
modification, as the case may be. Each Bank Guaranty Issuer shall deliver to the
Administrative Agent, promptly on the first Business Day of each week, by
facsimile transmission, the aggregate daily Face Amount available to be drawn
under each outstanding Bank Guaranty issued by such Bank Guaranty Issuer for the
previous week.
(f) The obligations of the B/G Participants to make payments to the
Administrative Agent for the account of the respective Bank Guaranty Issuer with
respect to Bank Guaranties issued by it shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
any Credit Party or any of its Subsidiaries may have at any time against a
beneficiary named in a Bank Guaranty, any transferee of any Bank Guaranty
(or any Person for whom any such transferee may be acting), any Agent, any
Lender, any Bank Guaranty Issuer, any B/G Participant, or any other Person,
whether in connection with this Agreement, any Bank Guaranty, the
transactions contemplated herein or any unrelated transactions (including
any underlying transaction between any Credit Party or any of its
Subsidiaries and the beneficiary named in any such Bank Guaranty);
(iii) any draft, certificate or any other document presented under any
Bank Guaranty proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
provided that the B/G Participants shall not be obligated to reimburse such Bank
Guaranty Issuer for any wrongful payment made by such Bank Guaranty Issuer under
a Bank Guaranty issued by it as a result of deliberate acts or omissions
constituting willful misconduct or gross negligence on the part of such Bank
Guaranty Issuer (as determined by a court of competent jurisdiction in a final
and non-appealable decision). Any action taken or omitted to be taken by any
Bank Guaranty Issuer under or in connection with any Bank Guaranty shall not
create for such Bank Guaranty Issuer any resulting liability to the B/G
Participants or any other Person unless such action is taken or omitted to be
taken with gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision).
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2B.05 Agreement to Repay Bank Guaranty Payments. (a) The U.S. Borrower
hereby agrees (in the case of U.S. Borrower Bank Guaranties) and the Bermuda
Borrower hereby agrees (in the case of Bermuda Borrower Bank Guaranties) to
reimburse the respective Bank Guaranty Issuer, by making payment in Dollars (in
the case of all Dollar Denominated Bank Guaranties and Sterling Denominated Bank
Guaranties or, after a Sharing Event, all Bank Guaranties) or Euros (in the case
of Euro Denominated Bank Guaranties at any time prior to a Sharing Event) to the
Administrative Agent in immediately available funds at the Payment Office (or by
making the payment directly to such Bank Guaranty Issuer at such location as may
otherwise have been agreed upon by the respective Account Party and such Bank
Guaranty Issuer), for any payment or disbursement (in the case of any such
payment or disbursement under (x) any Sterling Denominated Bank Guaranty, taking
the Dollar Equivalent of the amount of the respective payment or disbursement on
the date upon which the respective payment or disbursement is made and (y) any
Euro Denominated Bank Guaranty which is unpaid on the date of the occurrence of
a Sharing Event, or which payments or disbursements are made thereafter, taking
the Dollar Equivalent of the amount of the respective payment or disbursement
made in Euros as such Dollar Equivalent is determined on the first date upon
which the respective Sharing Event occurs or, if later, the date upon which the
respective payment or disbursement is made) made by such Bank Guaranty Issuer
under any Bank Guaranty issued by it (each such amount so paid until reimbursed,
an "Unreimbursed Payment"), not later than the third Business Day after the
Administrative Agent or the Bank Guaranty Issuer notifies the respective Account
Party of such payment or disbursement, with interest on the amount so paid or
disbursed by such Bank Guaranty Issuer, to the extent not reimbursed prior to
1:00 P.M. (New York time), on the date of such payment or disbursement, from and
including the date paid or disbursed to but excluding the date such Bank
Guaranty Issuer is reimbursed by the respective Account Party therefor at a rate
per annum which shall be (x) in the case of Euro Denominated Bank Guaranties for
periods occurring prior to the occurrence of a Sharing Event, the Overnight Euro
Rate in effect from time to time plus the Applicable Margin for Euro Denominated
Revolving Loans as in effect from time to time plus any Mandatory Costs and (y)
in the case of Dollar Denominated Bank Guaranties, Sterling Denominated Bank
Guaranties and other amounts owing in Dollars after the occurrence of a Sharing
Event, the Base Rate in effect from time to time plus the Applicable Margin for
Multicurrency Facility Revolving Loans maintained as Base Rate Loans, in each
case as in effect from time to time, provided, however, to the extent such
amounts are not reimbursed prior to 1:00 P.M. (New York time) on the third
Business Day following notice to the respective Account Party by the
Administrative Agent or the respective Bank Guaranty Issuer of such payment or
disbursement, interest shall thereafter accrue on the amounts so paid or
disbursed by such Bank Guaranty Issuer (and until reimbursed by the respective
Account Party) at a rate per annum which shall be (x) in the case of Euro
Denominated Bank Guaranties for periods occurring prior to the occurrence of a
Sharing Event, the Overnight Euro Rate in effect from time to time plus the
Applicable Margin for Euro Denominated Revolving Loans as in effect from time to
time plus any Mandatory Costs plus 2%, and (y) in the case of Dollar Denominated
Bank Guaranties, Sterling Denominated Bank Guaranties and other amounts owing in
Dollars after the occurrence of a Sharing Event, the Base Rate in effect from
time to time plus the Applicable Margin for Multicurrency Facility Revolving
Loans maintained as Base Rate Loans, in each case as in effect from time to time
plus 2%, in each such case, with interest to be payable on demand, provided
further, that it is understood and agreed, however, that the notices referred to
above in this clause (a) and in the immediately preceding proviso shall not be
required to be given if a Default or an Event of Default under Section 10.05
shall have occurred and be continuing (in which case the Unreimbursed Payments
shall be due and payable immediately without presentment, demand, protest or
notice of any kind (all of which are hereby waived by each Credit Party) and
shall bear interest at the rate provided in the foregoing proviso on and after
the third Business Day following the respective Bank Guaranty Payment). The
respective Bank Guaranty Issuer shall give the respective Account Party prompt
notice of each Bank Guaranty Payment under any Bank Guaranty, provided that the
failure to give, or any delay in giving, any such notice shall in no way affect,
impair or diminish the respective Account Party's obligations under this
Agreement.
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(b) The obligations of the U.S. Borrower (in the case of U.S. Borrower
Bank Guaranties) and the Bermuda Borrower (in the case of Bermuda Borrower Bank
Guaranties) under this Section 2B.05 to reimburse the respective Bank Guaranty
Issuer with respect to Unreimbursed Payments (including, in each case, interest
thereon) shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
respective Account Party may have or have had against any Lender (including in
its capacity as Bank Guaranty Issuer or as B/G Participant), including, without
limitation, any defense based upon the failure of any payment under a Bank
Guaranty (each, a "Bank Guaranty Payment") to conform to the terms of such Bank
Guaranty or any nonapplication or misapplication by the beneficiary of the
proceeds of such Bank Guaranty Payment, the respective Bank Guaranty Issuer's
only obligation to the respective Account Party being to confirm that any
documents required to be delivered under such Bank Guaranty appear to have been
delivered and that they appear to substantially comply on their face with
requirements of such Bank Guaranty; provided, however, that no Account Party
shall be obligated to reimburse any Bank Guaranty Issuer for any wrongful
payment made by such Bank Guaranty Issuer under a Bank Guaranty issued by it as
a result of deliberate acts or omissions constituting willful misconduct or
gross negligence on the part of such Bank Guaranty Issuer (as determined by a
court of competent jurisdiction in a final and non-appealable decision). Any
action taken or omitted to be taken by any Bank Guaranty Issuer under or in
connection with any Bank Guaranty shall not create for such Bank Guaranty Issuer
any resulting liability to any Account Party unless such action is taken or
admitted to be taken with gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final and non-appealable decision).
2B.06 Increased Costs. If after the Original Effective Date, any Bank
Guaranty Issuer or any B/G Participant determines in good faith that the
adoption or effectiveness after the Original Effective Date of any applicable
law, rule or regulation, order, guideline or request or any change therein, or
any change after the Original Effective Date in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank Guaranty Issuer or any B/G Participant with any request or directive
(whether or not having the force of law) by any such authority, central bank or
comparable agency shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Bank
Guaranties issued by such Bank Guaranty Issuer or such B/G Participant's
participation therein, or (ii) impose on any Bank Guaranty Issuer or any B/G
Participant any other conditions directly or indirectly affecting this
Agreement, any Bank Guaranty or such B/G Participant's participation therein;
and the result of any of the foregoing is to increase the cost to such Bank
Guaranty Issuer or such B/G Participant of issuing, maintaining or participating
in any Bank Guaranty, or to reduce the amount of any sum received or receivable
by such Bank Guaranty Issuer or such B/G Participant hereunder or reduce the
rate of return on its capital with respect to Bank Guaranties, then, upon
written demand to the U.S. Borrower or the Bermuda Borrower, as the case may be,
by such Bank Guaranty Issuer or such B/G Participant (a copy of which notice
shall be sent by such Bank Guaranty Issuer or such B/G Participant to the
Administrative Agent), accompanied by the certificate described in the last
sentence of this Section 2B.06, the U.S. Borrower or the Bermuda Borrower, as
the case may be, shall pay to such Bank Guaranty Issuer or such B/G Participant
for such increased cost or reduction. A certificate submitted to the relevant
Account Party by such Bank Guaranty Issuer or such B/G Participant, as the case
may be (a copy of which certificate shall be sent by such Bank Guaranty Issuer
or such B/G Participant to the Administrative Agent), setting forth in
reasonable detail the basis for the determination of such additional amount or
amounts necessary to compensate such Bank Guaranty Issuer or such B/G
Participant as aforesaid shall be final and conclusive and binding on such
Account Party absent manifest error, although the failure to deliver any such
certificate shall not release or diminish such Account Party's obligations to
pay additional amounts pursuant to this Section 2B.06 upon subsequent receipt of
such certificate.
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2B.07 Cash Collateralization. No later than the date occurring ten
Business Days prior to the Revolving Loan Maturity Date, the U.S. Borrower or
the Bermuda Borrower, as the case may be, shall either (i) terminate each Bank
Guaranty issued to it without an expiry date (and cause each such terminated
Bank Guaranty to be surrendered for termination to the respective Bank Guaranty
Issuer) or (ii) enter into cash collateral arrangements with each Bank Guaranty
Issuer which shall have issued a Bank Guaranty to it without an expiry date on
terms satisfactory to such Bank Guaranty Issuer and the Administrative Agent,
with the U.S. Borrower or the Bermuda Borrower, as the case may be, depositing
cash and/or Cash Equivalents (in the respective currency or currencies of the
respective Bank Guaranties, and in such amounts as will fully cash collateralize
the maximum future payments that could be made under the respective Bank
Guaranties) pursuant to such cash collateral arrangements to be held as security
for all Bank Guaranty Outstandings of the U.S. Borrower or the Bermuda Borrower,
as the case may be, in respect of such Bank Guaranties.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) (x) The Borrowers jointly and severally agree to pay to
the Administrative Agent for distribution to each Non-Defaulting Lender with a
Multicurrency Facility Revolving Loan Commitment a commitment commission, in
Dollars, for the period from the Restatement Effective Date to but excluding the
Revolving Loan Maturity Date (or such earlier date as the Total Multicurrency
Facility Revolving Loan Commitment shall have been terminated), computed at a
rate per annum equal to the relevant Applicable Margin as in effect from time to
time on the daily average Unutilized Multicurrency Facility Revolving Loan
Commitment of such Non-Defaulting Lender as in effect from time to time and (y)
the Borrowers jointly and severally agree to pay to the Administrative Agent for
distribution to each Non-Defaulting Lender with a Dollar Facility Revolving Loan
Commitment a commitment commission, in Dollars, for the period from the
Restatement Effective Date to but excluding the Revolving Loan Maturity Date (or
such earlier date as the Total Dollar Facility Revolving Loan Commitment shall
have been terminated), computed at a rate per annum equal to the relevant
Applicable Margin as in effect from time to time on the daily average Unutilized
Dollar Facility Revolving Loan Commitment of such Non-Defaulting Lender as in
effect from time to time (with all commitment commissions payable as described
in this clause (a) being herein referred to as "RL Commitment Commission").
Accrued RL Commitment Commission shall be due and payable, in Dollars, quarterly
in arrears on each Quarterly Payment Date and on the Revolving Loan Maturity
Date or (i) in the case of RL Commitment Commission payable pursuant to
preceding clause (x), such earlier date upon which the Total Multicurrency
Facility Revolving Loan Commitment is terminated and (ii) in the case of RL
Commitment Commission payable pursuant to preceding clause (y), such earlier
date upon which the Total Dollar Facility Revolving Loan Commitment is
terminated.
(b) (w) The U.S. Borrower agrees to pay to the Administrative Agent
for distribution to each Multicurrency Facility RL Lender (or, after Sharing
Event has occurred, each RL Lender) (based on their respective L/C Participation
Percentages as from time to time in effect in the outstanding U.S. Borrower
Multicurrency Facility Letters of Credit) in Dollars (or, in the case of Euro
Denominated Letters of Credit, for periods prior to the occurrence of a Sharing
Event, in Euros) a fee in respect of each U.S. Borrower Multicurrency Facility
Letter of Credit issued hereunder, (x) the Bermuda Borrower agrees to pay to the
Administrative Agent for distribution to each Multicurrency Facility RL Lender
(or, after Sharing Event has occurred, each RL Lender) (based on their
respective L/C Participation Percentages as from time to time in effect in the
outstanding Bermuda Borrower Multicurrency Facility Letters of Credit) in
Dollars (or, in the case of Euro Denominated Letters of Credit, for periods
prior to the occurrence of a Sharing Event, in Euros) a fee in respect of each
Bermuda Borrower Multicurrency Facility Letter of Credit issued hereunder, (y)
the U.S. Borrower agrees to pay to the Administrative Agent for distribution to
each Dollar Facility RL Lender (or, after Sharing Event has occurred, each RL
Lender) (based on their respective L/C Participation Percentages in the
outstanding U.S. Borrower Dollar Facility Letters of Credit) in Dollars a fee in
respect of each U.S. Borrower Dollar Facility Letter of Credit issued hereunder
and (z) the Bermuda Borrower agrees to pay to the Administrative Agent for
distribution to each Dollar Facility RL Lender (or, after Sharing Event has
occurred, each RL Lender) (based on their respective L/C Participation
Percentages in the outstanding Bermuda Borrower Dollar Facility Letters of
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Credit) in Dollars a fee in respect of each Bermuda Borrower Dollar Facility
Letter of Credit issued hereunder (with all fees payable as described in this
clause (b) being herein referred to as "Letter of Credit Fees"), in each case,
for the period from and including the date of issuance of such Letter of Credit
through the termination of such Letter of Credit, computed at a rate per annum
equal to the Applicable Margin for Multicurrency Facility Revolving Loans (in
the case of determinations pursuant to preceding clauses (w) and (x)) or Dollar
Facility Revolving Loans (in the case of determination pursuant to preceding
clauses (y) and (z)), in either case maintained as Euro Rate Loans, as in effect
from time to time, on (i) the daily Stated Amount of such Letter of Credit (in
the case of a Dollar Denominated Letter of Credit and a Sterling Denominated
Letter of Credit and, for periods occurring after a Sharing Event, for all
Letters of Credit) and (ii) the daily Euro L/C Stated Amount of such Letter of
Credit (in the case of a Euro Denominated Letter of Credit for all periods prior
to the occurrence of a Sharing Event). Accrued Letter of Credit Fees shall be
due and payable quarterly in arrears on each Quarterly Payment Date and, in the
case of Letter of Credit Fees owing pursuant to preceding clause (x), on the
first day on or after the termination of the Total Multicurrency Facility
Revolving Loan Commitment upon which no Multicurrency Facility Letters of Credit
remain outstanding and, in the case of Letter of Credit Fees payable pursuant to
preceding clauses (y) and (z), on the first day on or after the termination of
the Total Dollar Facility Revolving Loan Commitment upon which no Dollar
Facility Letters of Credit remain outstanding.
(c) Each Account Party agrees to pay to the respective Issuing Lender,
for its own account, in Dollars (in the case of each Dollar Denominated Letter
of Credit and each Sterling Denominated Letter of Credit and, for all periods
after the occurrence of a Sharing Event, each Letter of Credit) or in Euros (in
the case of Euro Denominated Letters of Credit for periods prior to the
occurrence of a Sharing Event), a facing fee in respect of each Letter of Credit
issued to it hereunder (the "Facing Fee") for the period from and including the
date of issuance or renewal of such Letter of Credit to and including the
termination or expiration of such Letter of Credit, computed at a rate equal to
1/8 of 1% per annum of (x) the daily Stated Amount of such Letter of Credit (in
the case of a Dollar Denominated Letter of Credit and a Sterling Denominated
Letter of Credit, and, for all periods occurring after a Sharing Event, all
Letters of Credit) and (y) the daily Euro L/C Stated Amount of such Letter of
Credit (in the case of a Euro Denominated Letter of Credit at any time prior to
a Sharing Event), provided that in no event shall the annual Facing Fee with
respect to any Letter of Credit be less than the Minimum Applicable Facing Fee;
it being agreed that (i) on the date of issuance of any Letter of Credit and on
each anniversary thereof prior to the termination of such Letter of Credit, if
the Minimum Applicable Facing Fee will exceed the amount of Facing Fees that
will accrue with respect to such Letter of Credit for the immediately succeeding
12-month period, the full Minimum Applicable Facing Fee shall be payable on the
date of issuance of such Letter of Credit and on each such anniversary thereof
prior to the termination of such Letter of Credit and (ii) if on the date of the
termination of any Letter of Credit, the Minimum Applicable Facing Fee actually
exceeds the amount of Facing Fees paid or payable with respect to such Letter of
Credit for the period beginning on the date of the issuance thereof (or, if the
respective Letter of Credit has been outstanding for more than one year, the
date of the last anniversary of the issuance thereof occurring prior to the
termination of such Letter of Credit) and ending on the date of the termination
thereof, an amount equal to such excess shall be paid as additional Facing Fees
with respect to such Letter of Credit on the next date upon which Facing Fees
are payable in accordance with the immediately succeeding sentence. Except as
provided in the immediately preceding sentence, accrued Facing Fees shall be due
and payable quarterly in arrears on each Quarterly Payment Date and upon the
first day on or after the termination of the Total Revolving Loan Commitment
upon which no Letters of Credit remain outstanding. Notwithstanding anything to
the contrary contained in this Agreement, (x) to the extent that
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any Account Party has paid advance facing fees to any Issuing Lender with
respect to any Existing Letter of Credit pursuant to the Original Credit
Agreement, there shall be credited against the Facing Fees due to such Issuing
Lender under this Agreement the amount of such advance facing fees which related
to periods after the Restatement Effective Date.
(d) The respective Account Party agrees to pay to the respective
Issuing Lender, in Dollars, for its own account, upon each payment under,
issuance of, or amendment to, any Letter of Credit, such amount as shall at the
time of such event be the administrative charge which such Issuing Lender is
customarily charging for issuances of, payments under or amendments of, Letters
of Credit issued by it.
(e) (x) The U.S. Borrower agrees to pay to the Administrative Agent
for distribution to each Multicurrency Facility RL Lender (or, after Sharing
Event has occurred, each RL Lender) (based on their respective B/G Participation
Percentages as from time to time in effect in the outstanding U.S. Borrower Bank
Guaranties) in Dollars (or, in the case of Euro Denominated Bank Guaranties, for
periods prior to the occurrence of a Sharing Event, in Euros) a fee in respect
of each U.S. Borrower Bank Guaranty issued hereunder and (y) the Bermuda
Borrower agrees to pay to the Administrative Agent for distribution to each
Multicurrency Facility RL Lender (or, after Sharing Event has occurred, each RL
Lender) (based on their respective B/G Participation Percentages as from time to
time in effect in the outstanding Bermuda Borrower Bank Guaranties) in Dollars
(or, in the case of Euro Denominated Bank Guaranties, for periods prior to the
occurrence of a Sharing Event, in Euros) a fee in respect of each Bermuda
Borrower Bank Guaranty issued hereunder (with all fees payable as described in
this clause (e) being herein referred to as "Bank Guaranty Fees"), in each case,
for the period from and including the date of issuance of such Bank Guaranty
through the termination of such Bank Guaranty, computed at a rate per annum
equal to the Applicable Margin for Multicurrency Facility Revolving Loans
maintained as Euro Rate Loans, as in effect from time to time, on (i) the daily
Face Amount of such Bank Guaranty (in the case of a Dollar Denominated Bank
Guaranty and a Sterling Denominated Bank Guaranty and, for periods occurring
after a Sharing Event, for all Bank Guaranties) and (ii) the daily Euro B/G Face
Amount of such Bank Guaranty (in the case of a Euro Denominated Bank Guaranty
for all periods prior to the occurrence of a Sharing Event). Accrued Bank
Guaranty Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and on the first day on or after the termination of the Total
Multicurrency Facility Revolving Loan Commitment upon which no Bank Guaranties
remain outstanding.
(f) Each Account Party agrees to pay to the respective Bank Guaranty
Issuer, for its own account, in Dollars (in the case of each Dollar Denominated
Bank Guaranty and each Sterling Denominated Bank Guaranty and, for all periods
after the occurrence of a Sharing Event, each Bank Guaranty) or in Euros (in the
case of each Euro Denominated Bank Guaranty for periods prior to the occurrence
of a Sharing Event), a fronting fee in respect of each Bank Guaranty issued to
it hereunder (the "Fronting Fee") for the period from and including the date of
issuance or renewal of such Bank Guaranty to and including the termination or
expiration of such Bank Guaranty, computed at a rate equal to 1/8 of 1% per
annum of (x) the daily Face Amount of such Bank Guaranty (in the case of a
Dollar Denominated Bank Guaranty and a Sterling Denominated Bank Guaranty, and,
for all periods occurring after a Sharing Event, all Bank Guaranties) and (y)
the daily Euro B/G Face Amount of such Bank Guaranty (in the case of a Euro
Denominated Bank Guaranty at any time prior to a Sharing Event), provided that
in no event shall the annual Fronting Fee with respect to any Bank Guaranty be
less than the Minimum Applicable Fronting Fee; it being agreed that (i) on the
date of issuance of any Bank Guaranty and on each anniversary thereof prior to
the termination of such Bank Guaranty, if the Minimum Applicable Fronting Fee
will exceed the amount of Fronting Fees that will accrue with respect to such
Bank Guaranty for the immediately succeeding 12-month period, the full Minimum
Applicable Fronting Fee shall be payable on the date of issuance of such Bank
Guaranty and on each such anniversary thereof
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prior to the termination of such Bank Guaranty and (ii) if on the date of the
termination of any Bank Guaranty, the Minimum Applicable Fronting Fee actually
exceeds the amount of Fronting Fees paid or payable with respect to such Bank
Guaranty for the period beginning on the date of the issuance thereof (or, if
the respective Bank Guaranty has been outstanding for more than one year, the
date of the last anniversary of the issuance thereof occurring prior to the
termination of such Bank Guaranty) and ending on the date of the termination
thereof, an amount equal to such excess shall be paid as additional Fronting
Fees with respect to such Bank Guaranty on the next date upon which Fronting
Fees are payable in accordance with the immediately succeeding sentence. Except
as provided in the immediately preceding sentence, accrued Fronting Fees shall
be due and payable quarterly in arrears on each Quarterly Payment Date and upon
the first day on or after the termination of the Total Multicurrency Facility
Revolving Loan Commitment upon which no Bank Guaranties remain outstanding.
Notwithstanding anything to the contrary contained in this Agreement, (x) to the
extent that any Account Party has paid advance fronting fees to any Bank
Guaranty Issuer with respect to any Existing Bank Guaranty pursuant to the
Original Credit Agreement, there shall be credited against the Fronting Fees due
to such Bank Guaranty Issuer under this Agreement the amount of such advance
fronting fees which related to periods after the Restatement Effective Date.
(g) The respective Account Party agrees to pay to the respective Bank
Guaranty Issuer, for its own account, upon each payment under, issuance of, or
amendment to, any Bank Guaranty, such amount as shall at the time of such event
be the administrative charge which such Bank Guaranty Issuer is customarily
charging for issuances of, payments under or amendments of, Bank Guaranties
issued by it.
(h) The Borrowers shall pay to the Administrative Agent for
distribution to each Incremental Loan Lender such fees and other amounts, if
any, as are specified in the relevant Incremental Loan Commitment Agreement,
with the fees and other amounts, if any, to be payable on the respective
Incremental Loan Commitment Date.
(i) Each Borrower agrees to pay to each Agent, for its own account,
such other fees as have been agreed to in writing by such Borrower and the
Agents.
(j) All computations of Fees shall be made in accordance with Section
13.07(b).
3.02 Voluntary Termination or Reduction of Revolving Loan Commitments
and Adjustments of Multicurrency Facility Revolving Loan Commitments. (a) (I)
Upon at least three Business Days' prior notice from an Authorized Officer of
Holdings to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), Holdings
shall have the right, at any time or from time to time, without premium or
penalty, to terminate the Total Unutilized Revolving Loan Commitment at such
time, in whole or in part, in aggregate minimum amounts of at least $1,000,000
in the case of partial reductions, with the amount of each reduction pursuant to
this Section 3.02(a)(I) to apply to reduce, on a pro rata basis (based upon the
relative amounts of the Total Multicurrency Facility Revolving Loan Commitment
and the Total Dollar Facility Revolving Loan Commitment, in each case as in
effect before giving effect to the respective reduction), the Total
Multicurrency Facility Revolving Loan Commitment and the Total Dollar Facility
Revolving Loan Commitment, provided that no such reduction shall be permitted to
be made pursuant to this Section 3.02(a)(I) if the effect thereof is to cause
either (x) the Aggregate Multicurrency Facility RL Exposure to exceed the Total
Multicurrency Facility Revolving Loan Commitment after giving effect to the
reduction thereto pursuant to this Section 3.02(a)(I) or (y) the Aggregate
Dollar Facility RL Exposure to exceed the Total Dollar Facility Revolving Loan
Commitment after giving effect to the reduction thereto pursuant to this Section
3.02(a)(I). Each reduction to (x) the Total Multicurrency Facility Revolving
Loan Commitment pursuant to this Section 3.02(a)(I) shall apply to
proportionately and
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permanently reduce the Multicurrency Facility Revolving Loan Commitment of each
Multicurrency Facility RL Lender (based on their respective Multicurrency
Facility RL Percentages) and (y) the Total Dollar Facility Revolving Loan
Commitment pursuant to this Section 3.02(a)(I) shall apply to proportionally and
permanently reduce the Dollar Facility Revolving Loan Commitment of each Dollar
Facility RL Lender (based on their respective Dollar Facility RL Percentages).
(II) Upon at least three Business Days' prior notice from an
Authorized Officer of Holdings to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Lenders), Holdings shall have the right, at any time and from time to time,
without premium or penalty, to terminate the Total Incremental Term Loan
Commitment at such time, in whole or in part, in aggregate minimum amounts of at
least $1,000,000 in the case of partial reductions, with the amount of each
reduction pursuant to this Section 3.02(a)(II) to apply proportionately and
permanently reduce the Incremental Term Loan Commitments of each Lender with
such a Commitment. Each reduction to the Total Incremental Term Loan Commitment
pursuant to this Section 3.02(a)(II) shall be applied to reduce the then
remaining Incremental Term Loan Scheduled Repayments of the respective Tranche
of Incremental Term Loans on a pro rata basis (based upon the then remaining
principal amount of the Incremental Term Loan Scheduled Repayments of such
Tranche after giving effect to all prior reductions thereto).
(b) In the event of certain refusals by a Lender as provided in
Section 4.01 or 13.12(b) to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders, Holdings may, subject to the applicable
requirements of said Sections 4.01 and/or 13.12(b), upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
terminate the Incremental Term Loan Commitments, if any, the Multicurrency
Facility Revolving Loan Commitment, if any, and/or the Dollar Facility Revolving
Loan Commitment, if any, of such Lender, so long as (x) all Loans, together with
accrued and unpaid interest, Fees and all other amounts, owing to such Lender
(excluding amounts owing in respect of Loans of any Tranche maintained by such
Lender which are not being repaid pursuant to Section 13.12(b)) are repaid
concurrently with the effectiveness of such termination (at which time Schedule
I shall be deemed modified to reflect such changed amounts) and (y) after giving
effect to such termination (and the adjustments to the Multicurrency Facility RL
Percentages, Dollar Facility RL Percentages and/or related L/C Participation
Percentages of the remaining Lenders as contemplated below), neither the
Individual Multicurrency Facility RL Exposure nor the Individual Dollar Facility
RL Exposure of any remaining Lender shall exceed its Multicurrency Facility
Revolving Loan Commitment or Dollar Facility Revolving Loan Commitment, as the
case may be. After giving effect to the termination of the Commitments of any
Lender pursuant to the provisions of this Section 3.02(b), unless the respective
Lender continues to have outstanding Term Loans or other Commitments (if any)
hereunder, such Lender shall no longer constitute a "Lender" for purposes of
this Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2A.06, 2B.06, 4.04, 13.01
and 13.06), which shall survive as to such repaid Lender. In cases where the
Multicurrency Facility Revolving Loan Commitment and/or the Dollar Facility
Revolving Loan Commitment of any Lender is terminated pursuant to this Section
3.02(b), except in cases where the respective Commitments are replaced in full,
after giving effect to the termination of any such Commitments of a given Lender
pursuant to this Section 3.02(b), there shall occur automatic adjustments (as
determined by the Administrative Agent) in the Multicurrency Facility RL
Percentages and/or Dollar Facility RL Percentages, as the case may be (and as a
result thereof in the related L/C Participation Percentages) of the remaining
Multicurrency Facility RL Lenders and/or Dollar Facility RL Lenders, as the case
may be, after giving effect to the modifications to the Multicurrency Facility
RL Percentages and Dollar Facility RL Percentages of the various remaining
Lenders as a result of the termination of the Multicurrency Facility Revolving
Loan Commitment and/or Dollar Facility Revolving Loan Commitment, as the case
may be, of the respective Replaced Lender.
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Each reduction to the Total Incremental Term Loan Commitment pursuant to this
Section 3.02(b) shall be applied to reduce the then remaining Incremental Term
Loan Scheduled Repayments of the respective Tranche of Incremental Term Loans on
a pro rata basis (based upon the then remaining principal amount of the
Incremental Term Loan Scheduled Repayments of such Tranche after giving effect
to all prior reductions thereto).
(c) In connection with any reduction or termination of the Total
Incremental Term Loan Commitment, the Total Unutilized Revolving Loan Commitment
and/or the Multicurrency Facility Revolving Loan Commitment and/or the Dollar
Facility Revolving Loan Commitment of any Lender pursuant to this Section 3.02
and Section 3.03, as the case may be, each of the U.S. Borrower and the Bermuda
Borrower hereby irrevocably authorizes Holdings to take all necessary action, in
the name of the U.S. Borrower or the Bermuda Borrower, as the case may be, as
described in this Section 3.02 or Section 3.03 in order to effect the reduction
or termination of the Total Incremental Term Loan Commitment, the Total
Unutilized Revolving Loan Commitment and/or the Multicurrency Facility Revolving
Loan Commitment and/or the Dollar Facility Revolving Loan Commitment of such
Lender in accordance with the provisions of this Section 3.02 or Section 3.03,
as the case may be.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment
(other than the Total Incremental Term Loan Commitment under a given Tranche)
(and the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment and
the Revolving Loan Commitment of each Lender with such a Commitment) shall
terminate in its entirety on April 15, 2005 unless the Restatement Effective
Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche A Term Loan Commitment (and the Tranche
A Term Loan Commitment of each Lender with such a Commitment) shall terminate in
its entirety on the Restatement Effective Date (after giving effect to the
making of Tranche A Term Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche B Term Loan Commitment (and the Tranche
B Term Loan Commitment of each Lender with such a Commitment) shall terminate in
its entirety on the Restatement Effective Date (after giving effect to the
making of Tranche B Term Loans on such date).
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Multicurrency
Facility Revolving Loan Commitment and the Dollar Facility Revolving Loan
Commitment of each Lender with such a Commitment) shall terminate in its
entirety on the earlier to occur of (i) the Revolving Loan Maturity Date and
(ii) unless the Required Lenders shall otherwise consent in writing in their
sole discretion, a Change of Control.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Multicurrency Facility Revolving Loan Commitment
and the Total Dollar Facility Revolving Loan Commitment shall be permanently
reduced from time to time to the extent required by Section 4.02.
(f) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Incremental Term Loan Commitment under a given
Tranche shall (i) be permanently reduced (x) on each Incremental Term Loan
Borrowing Date in respect of such Tranche in an amount equal to the aggregate
principal amount of Incremental Term Loans of such Tranche incurred on each such
date, (ii) terminate in its entirety (to the extent not theretofore terminated)
on the Incremental Term Loan Commitment Termination Date for such Tranche of
Incremental Term Loans
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(after giving effect to any Incremental Term Loans of such Tranche to be made on
such date) and (iii) prior to the termination of the Total Incremental Term Loan
Commitment in respect of such Tranche, be permanently reduced from time to time
to the extent required by Section 4.02.
(g) Each reduction to the Total Tranche A Term Loan Commitment, the
Total Tranche B Term Loan Commitment, the Total Incremental Term Loan Commitment
under a given Tranche, the Total Multicurrency Facility Revolving Loan
Commitment and the Total Dollar Facility Revolving Loan Commitment pursuant to
this Section 3.03 as provided above (or pursuant to Section 4.02) shall be
applied proportionately to reduce the Tranche A Term Loan Commitment, the
Tranche B Term Loan Commitment, the Incremental Term Loan Commitment under such
Tranche, the Multicurrency Facility Revolving Loan Commitment or the Dollar
Facility Revolving Loan Commitment, as the case may be, of each Lender with such
a Commitment.
SECTION 4. Prepayments; Repayments; Taxes.
4.01 Voluntary Prepayments. Each Borrower shall have the right to
prepay the Loans made to such Borrower, without premium or penalty except as
otherwise provided in this Agreement, and the right to allocate such prepayments
to Tranche A Term Loans, Tranche B Term Loans, Incremental Term Loans of a given
Tranche, Revolving Loans and/or Swingline Loans as such Borrower elects, in
whole or in part, at any time and from time to time on the following terms and
conditions:
(i) an Authorized Officer of such Borrower shall give the
Administrative Agent at its Notice Office written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay the Loans,
whether such Loans are Tranche A Term Loans, Tranche B Term Loans, U.S.
Borrower Incremental Term Loans under a given Tranche, Bermuda Borrower
Incremental Term Loans under a given Tranche, U.S. Borrower Multicurrency
Facility Revolving Loans, Bermuda Borrower Multicurrency Facility Revolving
Loans, U.S. Borrower Dollar Facility Revolving Loans, Bermuda Borrower
Dollar Facility Revolving Loans, U.S. Borrower Multicurrency Facility
Swingline Loans, Bermuda Borrower Multicurrency Facility Swingline Loans,
U.S. Borrower Dollar Facility Swingline Loans and/or Bermuda Borrower
Dollar Facility Swingline Loans, the amount and currency (or currencies) of
the Loans to be prepaid, the Types of Loans to be repaid and, in the case
of Euro Rate Loans (other than Swingline Loans), the specific Borrowing or
Borrowings pursuant to which made, which notice shall be given by the
Authorized Officer of such Borrower (x) prior to 2:00 P.M. (New York time)
at least one Business Day prior to the date of such prepayment in the case
of Loans maintained as Base Rate Loans (other than Dollar Facility
Swingline Loans), (y) the date of such prepayment in the case of Swingline
Loans, provided such notice is given prior to 10:00 A.M. (New York time)
and (z) prior to 10:00 A.M. (New York time) at least three Business Days
prior to the date of such prepayment in the case of Euro Rate Loans (other
than Euro Denominated Swingline Loans) and shall, except in the case of
Swingline Loans, be promptly transmitted by the Administrative Agent to
each of the Lenders;
(ii) each partial prepayment applied to any Tranche of Loans shall be
in an aggregate principal amount of at least $1,000,000 (or, (I) in the
case of Swingline Loans, the applicable Minimum Borrowing Amount, (II) in
the case of Euro Denominated Revolving Loans, E1,000,000 and (III) in the
case of Yen Denominated Term Loans, Y100,000,000), provided that (x) if any
partial prepayment of Eurodollar Loans made pursuant to any Borrowing shall
reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to
an amount less than the Minimum Borrowing Amount applicable thereto, then
such Borrowing may not be continued as a Borrowing of Eurodollar Loans
beyond the Interest Period applicable thereto and any election of an
Interest Period with respect thereto given by such Borrower shall have no
force or effect and
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(y) in the case of partial prepayments of any Borrowing of Euro Rate Loans
(other than Euro Denominated Swingline Loans) denominated in currencies
other than Dollars, such Borrower shall use reasonable efforts to allocate
such prepayments in a manner so that Borrowings do not remain outstanding
in amounts less than the Minimum Borrowing Amount applicable thereto (and,
to the extent such Borrowings would remain outstanding in amounts which are
less than the Minimum Borrowing Amount applicable thereto, in the case of
Multicurrency Facility Revolving Loans, such Borrower shall repay any
Borrowings which are less than the Minimum Borrowing Amount applicable
thereto at the end of the then current Interest Period);
(iii) at the time of any prepayment of Euro Rate Loans (other than
Euro Denominated Swingline Loans) pursuant to this Section 4.01 on any date
other than the last day of the Interest Period applicable thereto, such
Borrower shall pay the amounts required pursuant to Section 1.11;
(iv) except as provided in clause (vi) below, each prepayment in
respect of any Loans made pursuant to a Borrowing shall be applied pro rata
among such Loans made pursuant to such Borrowing, provided, that at such
Borrower's election in connection with any prepayment of Multicurrency
Facility Revolving Loans or Dollar Facility Revolving Loans pursuant to
this Section 4.01, such prepayment shall not be applied to the prepayment
of the respective Revolving Loans of a Defaulting Lender;
(v) each prepayment of principal of Tranche A Term Loans, Tranche B
Term Loans and Incremental Term Loans of a given Tranche pursuant to this
Section 4.01 shall, subject to the immediately succeeding proviso, be
applied to reduce the then remaining Scheduled Repayments of the respective
Tranche of Term Loans on a pro rata basis (based upon the then remaining
principal amounts of the Scheduled Repayments of such Tranche of Term Loans
after giving effect to all prior reductions thereto); provided that
repayments of any Tranche of Term Loans pursuant to clause (vi) below shall
only apply to reduce the then remaining Scheduled Repayments of such
Tranche to the extent the Term Loans so repaid are not replaced (and are
not required to be replaced) pursuant to Section 13.12(b), with any such
application to reduce the then remaining Scheduled Repayments of the
respective Tranche in the manner provided above in this clause (v), unless
otherwise specifically agreed by the Required Lenders;
(vi) in the event of certain refusals by a Lender as provided in
Section 13.12(b) to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders, such Borrower may, upon five Business
Days' written notice by an Authorized Officer of such Borrower to the
Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Lenders), repay all Loans and
pay all accrued and unpaid interest, Fees, and other amounts, in each case
owing to such Lender (or owing to such Lender with respect to each Tranche
which gave rise to the need to obtain such Lender's individual consent) in
accordance with, and subject to the requirements of, said Section 13.12(b)
so long as (A) in the case of the repayment of Multicurrency Facility
Revolving Loans of any Lender pursuant to this clause (vi), the
Multicurrency Facility Revolving Loan Commitment of such Lender is
terminated concurrently with such repayment (at which time Schedule I shall
be deemed modified to reflect the changed Multicurrency Facility Revolving
Loan Commitments), (B) in the case of the repayment of Dollar Facility
Revolving Loans of any Lender pursuant to this clause (vi), the Dollar
Facility Revolving Loan Commitment of such Lender is terminated
concurrently with such repayment (at which time Schedule I shall be deemed
modified to reflect the changed Dollar Facility Revolving Loan
Commitments), (C) in the case of the repayment of Incremental Term Loans of
any Lender under a given Tranche, the Incremental Term Loan Commitment of
such Lender under such Tranche (if any) is terminated concurrently with
such repayment pursuant to Section 3.02(b) (at which time
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Schedule I shall be deemed modified to reflect the changed Incremental Term
Loan Commitments of such Tranche) and (D) the consents required by Section
13.12(b) in connection with the repayment pursuant to this clause (vi) have
been obtained; and
(vii) in the case of any prepayment of Tranche A Term Loans, Tranche B
Term Loans or Bermuda Borrower Incremental Term Loans by the Bermuda
Borrower with the proceeds of an Investment in the Bermuda Partnership and
the prepayment by the Bermuda Partnership of an intercompany loan to the
Bermuda Borrower as contemplated by Section 9.05(xix) at any time U.S.
Borrower Incremental Term Loans are outstanding, such prepayment shall be
accompanied by a prepayment of U.S. Borrower Incremental Term Loans by the
U.S. Borrower in such amount so that the voluntary prepayments of Term
Loans at such time is made on a pro rata basis (based upon the TL Repayment
Percentages of each such Tranche of Term Loans and the then outstanding
principal amounts of each such Tranche of Term Loans).
4.02 Mandatory Repayments and Commitment Reductions. (a) (i) If on any
date the Aggregate Multicurrency Facility RL Exposure exceeds the Applicable
Prepayment Percentage of the Total Multicurrency Facility Revolving Loan
Commitment as then in effect, the U.S. Borrower shall prepay on such date the
principal of outstanding U.S. Borrower Multicurrency Facility Revolving Loans
and/or U.S. Borrower Multicurrency Facility Swingline Loans, and/or the Bermuda
Borrower shall prepay on such date the principal of outstanding Bermuda Borrower
Multicurrency Facility Revolving Loans and/or Bermuda Borrower Multicurrency
Facility Swingline Loans, in an amount (in the case of payments made with
respect to Euro Denominated Loans, taking the Dollar Equivalent of the amounts
paid in Euros in which payments on such Loans are owing) equal to such excess
(with such repayment of Multicurrency Facility Revolving Loans and Multicurrency
Facility Swingline Loans to be allocated among U.S. Borrower Multicurrency
Facility Revolving Loans, U.S. Borrower Multicurrency Facility Swingline Loans,
Bermuda Borrower Multicurrency Facility Revolving Loans and Bermuda Borrower
Multicurrency Facility Swingline Loans as the Borrowers may elect). If, after
giving effect to the prepayment of all outstanding Multicurrency Facility
Swingline Loans and Multicurrency Facility Revolving Loans, the aggregate amount
of the Multicurrency Facility Letter of Credit Outstandings and Bank Guaranty
Outstandings exceeds the Applicable Prepayment Percentage of the Total
Multicurrency Facility Revolving Loan Commitment as then in effect, the U.S.
Borrower agrees (as to U.S. Borrower Multicurrency Facility Letters of Credit
and U.S. Borrower Bank Guaranties), and the Bermuda Borrower agrees (as to
Bermuda Borrower Multicurrency Facility Letters of Credit and Bermuda Borrower
Bank Guaranties), to pay to the Administrative Agent at the Payment Office on
such date an amount of cash or Cash Equivalents (in Dollars or in the respective
currencies in which the Multicurrency Facility Letter of Credit Outstandings or
Bank Guaranty Outstandings are denominated) equal to the amount of such excess
(up to a maximum amount equal to (x) in the case of the U.S. Borrower, the
Multicurrency Facility Letter of Credit Outstandings with respect to U.S.
Borrower Multicurrency Facility Letters of Credit and the Bank Guaranty
Outstandings with respect to U.S. Borrower Bank Guaranties at such time and (y)
in the case of the Bermuda Borrower, the Multicurrency Facility Letter of Credit
Outstandings with respect to Bermuda Borrower Multicurrency Facility Letters of
Credit and the Bank Guaranty Outstandings with respect to Bermuda Borrower Bank
Guaranties at such time), such cash or Cash Equivalents to be held as security
for all obligations of the U.S. Borrower or the Bermuda Borrower, as the case
may be, hereunder in a cash collateral account to be established by the
Administrative Agent.
(ii) If on any date the Aggregate Dollar Facility RL Exposure exceeds
the Total Dollar Facility Revolving Loan Commitment as then in effect, the U.S.
Borrower shall prepay on such date the principal of outstanding U.S. Borrower
Dollar Facility Revolving Loans and/or U.S. Borrower Dollar Facility Swingline
Loans, and/or the Bermuda Borrower shall prepay on such date the principal of
outstanding Bermuda Borrower Dollar Facility Revolving Loans and/or Bermuda
Borrower Dollar Facility Swingline Loans, in an amount equal to such excess
(with such repayment of Dollar Facility
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Revolving Loans and Dollar Facility Swingline Loans to be allocated among U.S.
Borrower Dollar Facility Revolving Loans, U.S. Borrower Dollar Facility
Swingline Loans, Bermuda Borrower Dollar Facility Revolving Loans and Bermuda
Borrower Dollar Facility Swingline Loans as the Borrowers may elect). If, after
giving effect to the prepayment of all outstanding Dollar Facility Swingline
Loans and Dollar Facility Revolving Loans, the aggregate amount of the Dollar
Facility Letter of Credit Outstandings exceeds the Total Dollar Facility
Revolving Loan Commitment as then in effect, the U.S. Borrower agrees (as to
U.S. Borrower Dollar Facility Letters of Credit), and the Bermuda Borrower
agrees (as to Bermuda Borrower Dollar Facility Letters of Credit), to pay to the
Administrative Agent at the appropriate Payment Office on such date an amount of
cash or Cash Equivalents (in Dollars) equal to the amount of such excess (up to
a maximum amount equal to (x) in the case of the U.S. Borrower, the Dollar
Facility Letter of Credit Outstandings with respect to U.S. Borrower Dollar
Facility Letters of Credit at such time and (y) in the case of the Bermuda
Borrower, the Dollar Facility Letter of Credit Outstandings with respect to
Bermuda Borrower Dollar Facility Letters of Credit at such time), such cash or
Cash Equivalents to be held as security for all obligations of the U.S. Borrower
or the Bermuda Borrower, as the case may be, hereunder in a cash collateral
account to be established by the Administrative Agent.
(b) (i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Bermuda Borrower shall be required to repay that principal amount of Tranche A
Term Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be reduced as provided in Sections 4.01
and 4.02(g), a "Tranche A Term Loan Scheduled Repayment"):
Tranche A Scheduled Repayment Date Amount
---------------------------------- ------------------
Last day of 2nd Fiscal Quarter of Fiscal Year 2005 Y 632,362,500.00
Last day of 3rd Fiscal Quarter of Fiscal Year 2005 Y 632,362,500.00
Last day of 4th Fiscal Quarter of Fiscal Year 2005 Y 632,362,500.00
Last day of 1st Fiscal Quarter of Fiscal Year 2006 Y 474,271,875.00
Last day of 2nd Fiscal Quarter of Fiscal Year 2006 Y 474,271,875.00
Last day of 3rd Fiscal Quarter of Fiscal Year 2006 Y 474,271,875.00
Last day of 4th Fiscal Quarter of Fiscal Year 2006 Y 474,271,875.00
Last day of 1st Fiscal Quarter of Fiscal Year 2007 Y 948,543,750.00
Last day of 2nd Fiscal Quarter of Fiscal Year 2007 Y 948,543,750.00
Last day of 3rd Fiscal Quarter of Fiscal Year 2007 Y 948,543,750.00
Last day of 4th Fiscal Quarter of Fiscal Year 2007 Y 948,543,750.00
Last day of 1st Fiscal Quarter of Fiscal Year 2008 Y 948,543,750.00
Last day of 2nd Fiscal Quarter of Fiscal Year 2008 Y 948,543,750.00
Last day of 3rd Fiscal Quarter of Fiscal Year 2008 Y 948,543,750.00
Last day of 4th Fiscal Quarter of Fiscal Year 2008 Y 948,543,750.00
Last day of 1st Fiscal Quarter of Fiscal Year 2009 Y 948,543,750.00
Last day of 2nd Fiscal Quarter of Fiscal Year 2009 Y 948,543,750.00
Last day of 3rd Fiscal Quarter of Fiscal Year 2009 Y 948,543,750.00
Last day of 4th Fiscal Quarter of Fiscal Year 2009 Y 948,543,750.00
Tranche A Term Loan Maturity Date Y22,765,050,000.00
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(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Bermuda Borrower shall be required to repay that principal amount of Tranche B
Term Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be reduced as provided in Sections 4.01
and 4.02(g), a "Tranche B Term Loan Scheduled Repayment"):
Tranche B Scheduled Repayment Date Amount
---------------------------------- ------------
Last day of 2nd Fiscal Quarter of Fiscal Year 2005 $ 1,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2005 $ 1,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2005 $ 1,000,000
Last day of 1st Fiscal Quarter of Fiscal Year 2006 $ 1,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2006 $ 1,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2006 $ 1,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2006 $ 1,000,000
Last day of 1st Fiscal Quarter of Fiscal Year 2007 $ 1,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2007 $ 1,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2007 $ 1,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2007 $ 1,000,000
Last day of 1st Fiscal Quarter of Fiscal Year 2008 $ 1,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2008 $ 1,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2008 $ 1,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2008 $ 1,000,000
Last day of 1st Fiscal Quarter of Fiscal Year 2009 $ 1,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2009 $ 1,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2009 $ 1,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2009 $ 1,000,000
Last day of 1st Fiscal Quarter of Fiscal Year 2010 $ 1,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2010 $ 1,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2010 $ 1,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2010 $ 1,000,000
Last day of 1st Fiscal Quarter of Fiscal Year 2011 $ 1,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2011 $ 1,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2011 $ 1,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2011 $ 1,000,000
Tranche B Term Loan Maturity Date $373,000,000
(iii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, each Incremental Term Loan Borrower
shall be required to make, with respect to each Tranche of Incremental Term
Loans of such Incremental Term Loan Borrower, to the extent then outstanding,
scheduled amortization payments of such Tranche of Incremental Term Loans on the
dates and in the principal amounts set forth in the respective Incremental Term
Loan Commitment Agreement (each such repayment, as the same may be reduced as
provided in Sections 3.02, 4.01 and 4.02(g), an "Incremental Term Loan Scheduled
Repayment"; provided that, if any Incremental Term
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Loans are incurred which will be added to (and form part of) an existing Tranche
of Incremental Term Loans, the amount of the then remaining Incremental Term
Loan Scheduled Repayments of the respective Tranche shall be proportionally
increased (with the aggregate amount of increases to the then remaining
Incremental Term Loan Scheduled Repayments to equal the aggregate principal
amount of such new Incremental Term Loans then being incurred) in accordance
with the requirements of clause (ii) of Section 1.15(c).
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Original
Effective Date upon which Holdings or any of the its Subsidiaries receives Net
Sale Proceeds from any Asset Sale (other than the California Disposition, to the
extent the Net Sale Proceeds therefrom received by a Subsidiary of the U.S.
Borrower (exclusive of any portion thereof which is distributed to a minority
shareholder of such Subsidiary in accordance with the requirements of Section
9.06) are promptly on-loaned to an Affiliate of the U.S. Borrower in accordance
with the requirements of Section 9.05 and 9.07), an amount equal to 100% of the
Net Sale Proceeds from such Asset Sale shall be applied as a mandatory repayment
and/or commitment reduction in accordance with the requirements of Sections
4.02(g) and (h); provided that Net Sale Proceeds from any Asset Sale (other than
(x) Net Sale Proceeds from any Contemplated Asset Sale consummated in accordance
with the requirements of Section 9.02(xviii) and (y) any Net Sale Proceeds from
the sale of any Principal Property pursuant to Section 9.02(xix)) shall not give
rise to a mandatory repayment and/or commitment reduction on such date as
otherwise required above, so long as no Specified Default and no Event of
Default exists at the time such Net Sale Proceeds are received and an Authorized
Officer of Holdings or the U.S. Borrower has delivered a certificate to the
Administrative Agent on or prior to such date stating that such Net Sale
Proceeds shall be used (or contractually committed to be used) to purchase
capital assets used or to be used in a Permitted Business (other than inventory)
within 360 days following the date of receipt of such Net Sale Proceeds from
such Asset Sale (which certificate shall set forth the estimates of the proceeds
to be so expended); provided, however, that (I) if all or any portion of such
Net Sale Proceeds are not so used within such 360-day period (or contractually
committed within such period to be used), such remaining portion shall be
applied on the last day of such period as a mandatory repayment as provided
above (without giving effect to the immediately preceding proviso) and (II) if
all or any portion of such Net Sale Proceeds are not required to be applied on
the last day of such 360-day period referred to in clause (I) of this proviso
because such amount is contractually committed within such period to be used and
then either (A) subsequent to such date such contract is terminated or expires
without such portion being so used or (B) such contractually committed portion
is not so used within six months after the last day of such 360-day period
referred to in clause (I) of this proviso, such remaining portion, in the case
of either of the preceding clauses (A) or (B), shall be applied as a mandatory
repayment as provided above (without giving effect to the immediately preceding
proviso). Notwithstanding anything to the contrary contained in this Section
4.02(c), (x) if any Permitted Senior Notes Document (after the execution and
delivery thereof), any Permitted Refinancing Senior Notes Document (after the
execution and delivery thereof), the Holdings Senior Notes Documents (after the
execution and delivery thereof), the Intermediate Holdco Senior Notes Documents
or the Existing Senior Notes Documents permit a lesser amount to be retained or
reinvested, or have a shorter reinvestment period, than is provided above with
respect to any Asset Sales, then such lesser permitted retained or reinvestment
amount, and/or shorter reinvestment period, as the case may be, shall be
applicable for purposes of this Section 4.02(c) so long as such Permitted Senior
Notes, Permitted Refinancing Senior Notes, Holdings Senior Notes, Intermediate
Holdco Senior Notes or Existing Senior Notes, as the case may be, remain
outstanding, and (y) in no event shall Holdings or any of its Subsidiaries use
any proceeds from any Asset Sale to make any voluntary or mandatory repayment or
prepayment of Permitted Senior Notes, Permitted Refinancing Senior Notes,
Holdings Senior Notes, Intermediate Holdco Senior Notes or Existing Senior Notes
and, before any such obligation to use such proceeds to make such repayment
shall arise, Holdings or the respective Subsidiary shall reinvest the
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respective amounts as permitted above in this Section 4.02(c) or apply such
proceeds as a mandatory prepayment in accordance with requirements of Sections
4.02(g) and (h).
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the
Restatement Effective Date on which Holdings or any of its Subsidiaries receives
any cash proceeds from any incurrence of Indebtedness (other than Indebtedness
permitted to be incurred pursuant to Section 9.04 as in effect on the
Restatement Effective Date), an amount equal to 100% of the Net Cash Proceeds of
the respective incurrence of Indebtedness shall be applied as a mandatory
repayment in accordance with the requirements of Sections 4.02(g) and (h).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Original Effective Date on which Holdings or any of its
Subsidiaries receives any proceeds from any Recovery Event (other than proceeds
from Recovery Events in an amount less than $2,500,000 per Recovery Event), an
amount equal to 100% of the proceeds of such Recovery Event (net of reasonable
costs (including, without limitation, legal costs and expenses) and taxes
incurred in connection with such Recovery Event and the amount of such proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Lenders pursuant to this Agreement) which is secured by the respective assets
subject to such Recovery Event) shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(g) and
(h); provided that so long as no Specified Default and no Event of Default then
exists, such proceeds shall not be required to be so applied on such date to the
extent that an Authorized Officer of Holdings or the U.S. Borrower has delivered
a certificate to the Administrative Agent on or prior to such date stating that
such proceeds shall be used (or contractually committed to be used) within 360
days following the date of receipt of such proceeds from such Recovery Event to
replace or restore any properties or assets in respect of which such proceeds
were paid (which certificate shall set forth the estimates of the proceeds to be
so expended), and provided further, that (I) if all or any portion of such
proceeds are not so used (or contractually committed to be used) within such
360-day period, such remaining portion shall be applied as a mandatory repayment
and/or commitment reduction as provided above (without giving effect to the
immediately preceding proviso) and (II) if all or any portion of such proceeds
are not required to be applied on the last day of such 360-day period referred
to in clause (I) of this proviso because such amount is contractually committed
to be used and then either (A) subsequent to such date such contract is
terminated or expires without such portion being so used or (B) such
contractually committed portion is not so used within six months after the last
day of such 360-day period referred to in clause (I) of this proviso, such
remaining portion, in the case of either of the preceding clauses (A) or (B),
shall be applied as a mandatory repayment and/or commitment reduction as
provided above (without giving effect to the immediately preceding proviso).
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each Excess Cash Payment Date, an
amount equal to the remainder (if positive) of (x) the Applicable Prepayment
Percentage of the Excess Cash Flow for the relevant Excess Cash Flow Payment
Period minus (y) the aggregate amount of principal repayments of Loans (and
Original Loans to the extent (and only to the extent) that such repayments were
made as a voluntary prepayment pursuant to Section 4.01 hereof (or the Original
Credit Agreement, as applicable) with internally generated funds (but in a case
of a voluntary prepayment of Revolving Loans or Swingline Loans (or Original
Revolving Loans or Original Swingline Loans) only to the extent accompanied by a
voluntary reduction to the Total Revolving Loan Commitment in an amount equal to
such prepayment) during the relevant Excess Cash Flow Payment Period, shall be
applied as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Sections 4.02(g) and (h).
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(g) (I) Each amount required to be applied pursuant to Sections
4.02(c), (d), (e), and (f) in accordance with this Section 4.02(g) shall be
applied (i) first, to repay the outstanding principal amount of Term Loans, (ii)
second, to the extent in excess of the amounts applied pursuant to preceding
clause (i), as a mandatory reduction to the Total Incremental Term Loan
Commitment in effect at such time (if any) and (iii) third, to the extent in
excess of the amounts required to be applied pursuant to preceding clauses (i)
and (ii), to permanently reduce the Total Revolving Loan Commitment.
(II) Each amount required to be applied to repay outstanding Term
Loans pursuant to this Section 4.02(g) shall, subject to the immediately
succeeding proviso, be applied pro rata to each Tranche of Term Loans (based
upon the TL Repayment Percentages of the various Tranches of Term Loans and the
then outstanding principal amounts of the respective Tranches of Term Loans);
provided that (i) the Net Sale Proceeds from any Asset Sale effected by Holdings
or any of its Domestic Subsidiaries and required to be applied to the repayment
of Term Loans pursuant to clause (I) of this Section 4.02(g), shall be applied
(x) first, to repay principal of outstanding U.S. Borrower Incremental Term
Loans, if any (on a pro rata basis to each Tranche of U.S. Borrower Incremental
Term Loans based on the TL Repayment Percentages of such Tranches of U.S.
Borrower Incremental Term Loans and the then outstanding principal amount of
such Tranches of U.S. Borrower Incremental Term Loans (but, for such purposes,
as if no Tranche A Term Loans, no Tranche B Term Loans and no Bermuda Borrower
Incremental Term Loans were then outstanding)) and (y) second, after the
repayment in full of all outstanding U.S. Borrower Incremental Term Loans, to
repay principal of outstanding Tranche A Term Loans, Tranche B Term Loans and
Bermuda Borrower Incremental Term Loans (on a pro rata basis to each such
Tranche of Term Loans, based upon the TL Repayment Percentages of such Tranches
of Term Loans and the then outstanding principal amounts of such Tranches of
Term Loans) and (ii) the Net Sale Proceeds from any Asset Sale effected by any
Foreign Subsidiary of Holdings and required to be applied to the repayment of
Term Loans pursuant to clause (I) of this Section 4.02(g), shall be applied (x)
first, to repay principal of outstanding Tranche A Term Loans, Tranche B Term
Loans and Bermuda Borrower Incremental Term Loans (on a pro rata basis to each
such Tranche of Term Loans, based upon the TL Repayment Percentages of such
Tranches of Term Loans and the then outstanding principal amounts of such
Tranches of Term Loans (but, for such purposes, as if no U.S. Borrower
Incremental Term Loans were then outstanding)) and (y) second, after the
repayment in full of all outstanding Tranche A Term Loans Tranche B Term Loans
and Bermuda Borrower Incremental Term Loans, to repay principal of outstanding
U.S. Borrower Incremental Term Loans, if any (on a pro rata basis to each
Tranche of U.S. Borrower Incremental Term Loans based on the TL Repayment
Percentages of such Tranches of U.S. Borrower Incremental Term Loans and the
then outstanding principal amount of such Tranches of U.S. Borrower Incremental
Term Loans (but, for such purposes, as if no Tranche A Term Loans, no Tranche B
Term Loans and no Bermuda Borrower Incremental Term Loans were then
outstanding)).
(III) The amount of each reduction to the Total Revolving Loan
Commitment pursuant to this Section 4.02(g) shall be applied to reduce the Total
Multicurrency Facility Revolving Loan Commitment and the Total Dollar Facility
Revolving Loan on a pro rata basis (based on the relative amounts of the Total
Multicurrency Facility Revolving Loan Commitment and the Total Dollar Facility
Revolving Loan Commitment, in each case as in effect before giving effect to the
respective reduction). In addition, (x) the amount of any reduction to the
Incremental Term Loan Commitments and the Revolving Loan Commitments as provided
in subclause (I)(ii) or (iii), as the case may be, of this Section 4.02(g) above
shall be deemed to be an application of proceeds for purposes of this Section
4.02(g) even though cash may not be required to actually be applied, (y) in
connection with any reduction to the Total Incremental Term Loan Commitment or
the Total Revolving Loan Commitment, any cash received by Holdings or any
Subsidiary of the U.S. Borrower in connection with the event giving rise to such
reduction will be retained by such Person, except, in the case of a reduction to
the Total Revolving Loan Commitment, to the extent that such cash is otherwise
required to be applied as provided in Section 4.02(a) as a result of any such
reduction to the Total Revolving Loan Commitment and (z) each reduction
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to the Total Incremental Term Loan Commitment, the Total Multicurrency Facility
Revolving Loan Commitment or the Total Dollar Facility Revolving Loan Commitment
shall apply to reduce the respective underlying Commitments of the Lenders with
such Commitments on a pro rata basis as provided in Section 3.03(g).
(IV) All repayments or commitment reductions, as the case may be, of
outstanding Term Loans or Incremental Term Loan Commitments of a given Tranche,
as the case may be, pursuant to Section 4.02(c), (d), (e) or (f) shall be
applied to reduce the then remaining Scheduled Repayments of the respective
Tranche of Term Loans on a pro rata basis (based upon the then remaining
principal amounts of the Scheduled Repayments of such Tranche of Term Loans
after giving effect to all prior reductions thereto); provided that if
Incremental Term Loan Commitments of a given Tranche are not included as part of
the Incremental Term Loan Scheduled Repayments for such Tranche set forth in the
respective Incremental Term Loan Commitment Agreement (e.g., because the
Incremental Term Loan Scheduled Repayments are set forth on a percentage basis
rather in a dollar amount), no such reduction to the respective Incremental Term
Loan Scheduled Repayments shall be required as a result of a reduction in the
Incremental Term Loan Commitments of such Tranche.
(h) With respect to each repayment of Loans required by this Section
4.02, the respective Borrower may (subject to the requirements of preceding
clause (g)) designate the Types of Loans of the respective Tranche which are to
be repaid and, in the case of Euro Rate Loans (other than Euro Denominated
Swingline Loans), the specific Borrowing or Borrowings of the respective Tranche
pursuant to which made, provided that: (i) in the case of repayments of Euro
Rate Loans (other than Euro Denominated Swingline Loans), repayments of such
Loans pursuant to this Section 4.02 on any day other than the last day of an
Interest Period applicable thereto shall be accompanied by payment by the
respective Borrower of all amounts owing in connection therewith pursuant to
Section 1.11; (ii) if any repayment of Euro Rate Loans (other than Euro
Denominated Swingline Loans) made pursuant to a single Borrowing shall reduce
the outstanding Euro Rate Loans made pursuant to such Borrowing to an amount
less than the Minimum Borrowing Amount applicable to the respective Euro Rate
Loans, such Borrowing (x) in the case of Eurodollar Loans, shall be converted at
the end of the then current Interest Period into a Borrowing of Base Rate Loans,
(y) in the case of Euro Denominated Revolving Loans, shall be repaid in full at
the end of the then current Interest Period and (z) in the case of Yen
Denominated Term Loans, shall be realigned as promptly as practicable with the
Interest Period applicable to one or more other Borrowings of Yen Denominated
Term Loans (such realignment to be coordinated by the Administrative Agent with
the cooperation of the Bermuda Borrower); and (iv) each repayment of any Tranche
of Loans made pursuant to a Borrowing shall be applied pro rata among such
Tranche of Loans. In the absence of a designation by the respective Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under Section 1.11.
(i) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date, (ii) all other then outstanding Loans shall be
repaid in full on the respective Maturity Date for such Loans and (iii) unless
the Required Lenders shall otherwise agree in writing in their sole discretion,
all outstanding Loans shall be repaid in full upon the occurrence of a Change of
Control.
(j) Notwithstanding anything to the contrary contained above, all
payments owing with respect to each Tranche pursuant to this Section 4.02 shall
be made in the respective currency or currencies in which the respective
obligations are owing in accordance with the terms of this Agreement. For
purposes of making calculations pursuant to this Section 4.02, the
Administrative Agent shall be entitled to use the Dollar Equivalent or Euro
Equivalent, as the case may be, of any such amounts
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required to be converted into other currencies for purposes of making
determinations pursuant to this Section 4.02.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Lender or Lenders entitled
thereto not later than 2:00 P.M. (New York time) on the date when due and shall
be made in (x) Dollars in immediately available funds at the Payment Office of
the Administrative Agent in respect of any obligation of the Borrowers under
this Agreement except as otherwise provided in the immediately following clauses
(y) and (z), (y) Euros in immediately available funds at the Payment Office of
the Administrative Agent, if such payment is made in respect of (i) principal of
or interest on Euro Denominated Loans, (ii) Letter of Credit Fees, Facing Fees
and Unpaid Drawings (and interest thereon) in respect of Euro Denominated
Letters of Credit at any time prior to the occurrence of a Sharing Event, (iii)
Bank Guaranty Fees and Unreimbursed Payments (and interest thereon) in respect
of Euro Denominated Bank Guaranties at any time prior to the occurrence of a
Sharing Event or (iv) any increased costs, indemnities or other amounts owing
with respect to Euro Denominated Loans (or Commitments relating thereto), Euro
Denominated Letters of Credit or Euro Denominated Bank Guaranties at any time
prior to the occurrence of a Sharing Event and (z) Yen in immediately available
funds at the Payment Office of the Administrative Agent, if such payment is made
in respect of (i) principal of or interest on Tranche A Term Loans at any time
prior to the occurrence of a Sharing Event or (ii) any increased costs,
indemnities or other amounts owing with respect to Tranche A Term Loans (or
Commitments relating thereto) at any time prior to the occurrence of a Sharing
Event. The Administrative Agent will thereafter cause to be distributed on the
same day (if payment was actually received by the Administrative Agent prior to
2:00 P.M. (New York time) like funds relating to the payment of principal,
interest or Fees ratably to the Lenders entitled thereto. Any payments under
this Agreement which are made later than 2:00 P.M. (New York time) shall be
deemed to have been made on the next succeeding Business Day. Whenever any
payment to be made hereunder or under any Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest shall be payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by any Credit Party under any
Credit Document (including, in the case of a Credit Agreement Party, in its
capacity as a guarantor pursuant to Section 14) or under any Note will be made
without setoff, counterclaim or other defense. Except as provided in Section
4.04(b), all such payments will be made free and clear of, and without deduction
or withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax imposed on or measured by the net income of
a Lender pursuant to the laws of the jurisdiction in which it is organized or
the jurisdiction in which the principal office or applicable lending office of
such Lender is located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect thereto (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as "Taxes"). If any Taxes are so levied or imposed, the
respective Borrower (and any other Credit Party making the payment) agrees to
pay the full amount of such Taxes, and such additional amounts as may be
necessary so that every payment of all amounts due under this Agreement or under
any Note, after withholding or deduction for or on account of any Taxes, will
not be less than the amount provided for herein or in such Note. If any amounts
are payable in respect of Taxes pursuant to the preceding sentence, then the
respective Borrower (and any other Credit Party making the payment) shall be
obligated to reimburse each Lender, upon the written request of such Lender, for
the net additional taxes (after taking into account available credits with
respect to such withholding taxes) imposed on or measured by the net income of
such Lender pursuant to the laws of the jurisdiction in which such Lender is
organized or in which the principal office or applicable
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lending office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction in which such Lender is
organized or in which the principal office or applicable lending office of such
Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence, the respective Borrower (or Credit Party) will
furnish to the Administrative Agent within 45 days after the date of the payment
of any Taxes due pursuant to applicable law certified copies of tax receipts
evidencing such payment by such Borrower (or the respective other Credit Party).
The Credit Agreement Parties jointly and severally agree (and each Subsidiary
Guarantor pursuant to its respective Subsidiary Guaranty, and the incorporation
by reference therein of the provisions of this Section 4.04, shall agree) to
indemnify and hold harmless each Lender, and reimburse such Lender upon its
written request, for the amount of any Taxes so levied or imposed and paid by
such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the U.S.
Borrower and the Administrative Agent on or prior to the Restatement Effective
Date, or in the case of a Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 13.04 (unless the
respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) (or successor forms) certifying to such Lender's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio
interest exemption) (or successor form) certifying to such Lender's entitlement
as of such date to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Lender agrees that from time to time after the
Restatement Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, it will deliver to the U.S. Borrower and the Administrative Agent two
new accurate and complete original signed copies of Internal Revenue Service
Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax
treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a
Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the U.S. Borrower and the Administrative Agent of its inability to
deliver any such Form or Certificate, in which case such Lender shall not be
required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a),
but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the
U.S. Borrower shall be entitled, to the extent it is required to do so by law,
to deduct or withhold income or similar taxes imposed by the United States (or
any political subdivision or taxing authority thereof or therein) from interest,
fees or other amounts payable by the U.S. Borrower hereunder for the account of
any Lender which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Lender has not provided to the U.S. Borrower U.S. Internal
Revenue Service Forms that establish a complete exemption from such deduction or
withholding and (y) the U.S. Borrower shall not be obligated pursuant to Section
4.04(a) hereof to gross-up payments to be made to a Lender in respect of income
or similar taxes imposed by the United States if (I) such Lender has not
provided to the U.S. Borrower the
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Internal Revenue Service Forms required to be provided to the U.S. Borrower
pursuant to this Section 4.04(b) or (II) in the case of a payment, other than
interest, to a Lender described in clause (ii) above, to the extent that such
forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 4.04 and except as set forth in Section 13.04(b), the
U.S. Borrower agrees to pay additional amounts and to indemnify each Lender in
the manner set forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence
(x) as a result of any changes after the Restatement Effective Date (or, if
later, the date such Lender became party to this Agreement) in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar taxes or (y) as a result of the purchase of a participation as required
by Section 1.14 following the occurrence of a Sharing Event.
SECTION 5. Conditions Precedent to Credit Events on the Restatement
Effective Date. The occurrence of the Restatement Effective Date and the
obligation of each Lender to make Loans hereunder (including by way of the
conversion of Original Loans on the Restatement Effective Date as contemplated
by Sections 1.01(b), (c) and (d)), the obligation of each Issuing Lender to
issue Letters of Credit (including any Existing Letters of Credit deemed issued
on the Restatement Effective Date as contemplated by Section 2A.01(d)), and the
obligation of each Bank Guaranty Issuer to issue each Bank Guaranty hereunder
(including any Existing Bank Guaranties deemed issued on the Restatement
Effective Date as contemplated by Section 2B.01(d)), in each case on the
Restatement Effective Date, is subject at the time of the occurrence of the
Restatement Effective Date to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Restatement
Effective Date, (i) this Agreement shall have been executed and delivered as
provided in Section 13.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each Lender which has requested the same
the appropriate Tranche A Term Note, Tranche B Term Note, Multicurrency Facility
Revolving Note, U.S. Borrower Dollar Facility Revolving Note and/or Bermuda
Borrower Dollar Facility Revolving Note and to the Swingline Lender, if so
requested by it, the Multicurrency Facility Swingline Note, the U.S. Borrower
Dollar Facility Swingline Note and the Bermuda Borrower Dollar Facility
Swingline Note, in each case executed by the relevant Borrower and in the
amount, maturity and as otherwise provided herein.
5.02 Officer's Certificate. On the Restatement Effective Date, the
Administrative Agent shall have received a certificate from the U.S. Borrower,
dated such date and signed by an Authorized Officer of the U.S. Borrower,
certifying that all of the applicable conditions set forth in Sections 5.05
through 5.09, inclusive, Section 5.13 and Sections 6A.01 and 6B.01 (other than
such conditions that are expressly subject to the satisfaction of the Agents
and/or the Required Lenders), have been satisfied on such date.
5.03 Opinions of Counsel. On the Restatement Effective Date, the
Administrative Agent shall have received (i) from Paul, Hastings, Xxxxxxxx &
Xxxxxx LLP, special counsel to the Credit Parties, an opinion addressed to each
Agent, the Collateral Agent and each of the Lenders and dated the Restatement
Effective Date substantially in the form of Exhibit E-1, (ii) from Xxxxxxx,
Xxxxxxxx Xxxxxx, special Bermuda counsel to the Credit Parties organized under
the laws of Bermuda, an opinion addressed to each Agent, the Collateral Agent
and each of the Lenders and dated the Restatement Effective Date substantially
in the form of Exhibit E-2, and (iii) if requested by the Agents from foreign
counsel to the Credit Parties and/or the Agents in each Qualified Non-U.S.
Jurisdiction and the Philippines, in each case reasonably satisfactory to the
Agents, opinions which shall (x) be addressed to each Agent, the Collateral
Agent and each of the Lenders and be dated the Restatement Effective Date, (y)
cover various matters
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regarding the execution, delivery and performance of the Credit Documents to
which Subsidiaries of Holdings organized in the relevant such jurisdiction are
party, the perfection and priority of security interests granted by Credit
Parties organized in such jurisdiction or granted in respect of entities
organized in such jurisdiction, and/or such other matters incident to the
transactions contemplated herein as the Agents may reasonably request and (z) be
in form, scope and substance reasonably satisfactory to the Agents.
5.04 Company Documents; Proceedings. (a) On the Restatement Effective
Date, the Administrative Agent shall have received from (i) each New U.S. Credit
Party a certificate, dated the Restatement Effective Date, signed by the
chairman, a vice-chairman, the president or any vice-president of such New U.S.
Credit Party, and attested to by the secretary, any assistant secretary or other
senior officer of such New U.S. Credit Party, in the form of Exhibit F with
appropriate insertions, together with copies of the certificate of
incorporation, by-laws or equivalent organizational documents of such New U.S.
Credit Party and the resolutions of such New U.S. Credit Party referred to in
such certificate and (ii) the U.S. Borrower a certificate, dated the Restatement
Effective Date, attaching copies of the certificates of incorporation, by-laws
or equivalent organizational documents of each Foreign Subsidiary of Holdings
(x) which is a New Foreign Subsidiary Guarantor or (y) in respect of which
security interests are being (or have been) granted by a New Foreign Subsidiary
Guarantor, and all of the foregoing (including each such certificate of
incorporation, by-laws or other organizational document) shall be reasonably
satisfactory to the Agents.
(b) On the Restatement Effective Date, the Administrative Agent shall
have received a certificate from each Credit Agreement Party and each U.S.
Subsidiary Guarantor (other than the New U.S. Credit Parties) (x) certifying
that there were no changes, or providing the text of any changes, to the
certificate of incorporation, by-laws or equivalent organizational documents of
such Credit Agreement Party or such U.S. Subsidiary Guarantor as delivered
pursuant to Section 5.04(a) of the Original Credit Agreement (and, in the case
of the certificate from the U.S. Borrower, of each Foreign Subsidiary Guarantor
(other than a New Foreign Subsidiary Guarantor) as delivered pursuant to Section
5.04(a) of the Original Credit Agreement), and (y) providing the resolutions
adopted by such Credit Agreement Party or such U.S. Subsidiary Guarantor (and,
in the case of the certificate from the U.S. Borrower, each Foreign Subsidiary
Guarantor specifically requested by the Administrative Agent based on advice of
local counsel) with respect to the actions contemplated by this Agreement, and
all of the foregoing shall be acceptable to the Administrative Agent.
(c) On the Restatement Effective Date, all Company and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Agents, and the
Administrative Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates,
bring-down certificates and any other records of Company proceedings and
governmental approvals, if any, which the Agents reasonably may have requested
in connection therewith, such documents and papers, where appropriate, to be
certified by proper Company or governmental authorities.
(d) On the Restatement Effective Date and after giving effect to the
Transaction, the capital structure (including, without limitation, the terms of
any capital stock, options, warrants or other securities issued by Holdings and
its Subsidiaries) and management of Holdings, the U.S. Borrower and their
respective Subsidiaries shall be in form and substance reasonably satisfactory
to the Agents.
5.05 Adverse Change, etc. On the Restatement Effective Date, nothing
shall have occurred since January 1, 2005 (and the Agents and Lenders shall have
become aware of no facts, conditions or other information not previously known)
which any Agent or the Required Lenders shall
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reasonably determine has had, or could reasonably be likely to have,
individually or in the aggregate, (i) a Material Adverse Effect or (ii) material
adverse effect on the Transaction.
5.06 Litigation. On the Restatement Effective Date, there shall be no
actions, suits, proceedings or investigations pending or threatened (a) with
respect to the Transaction or any documentation executed in connection therewith
(including any Credit Document) or the transactions contemplated hereby and
thereby, (b) with respect to any Existing Indebtedness or (c) which any Agent or
the Required Lenders shall determine has had, or could reasonably be expected to
have, individually or in the aggregate, (i) a Material Adverse Effect or (ii) a
material adverse effect on the Transaction.
5.07 Approvals. On or prior to the Restatement Effective Date, (i) all
necessary governmental (domestic and foreign), regulatory and third party
approvals and/or consents in connection with any Existing Indebtedness, the
Transaction, the transactions contemplated by the Documents and otherwise
referred to herein or therein shall have been obtained and remain in full force
and effect as of the Restatement Effective Date and evidence thereof shall have
been provided to the Administrative Agent, and (ii) all applicable waiting
periods shall have expired without any action being taken by any competent
authority which restrains, prevents or imposes materially adverse conditions
upon the consummation of the Transaction, the making of the Loans and the
transactions contemplated by the Documents or otherwise referred to herein or
therein. Additionally, there shall not exist any judgment, order, injunction or
other restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse
conditions upon, or materially delaying, or making economically unfeasible, the
consummation of the Transaction or the making of the Loans or the other
transactions contemplated by the Documents or otherwise referred to herein or
therein.
5.08 Refinancing; Original Credit Agreement; etc. (a) Prior to the
Restatement Effective Date and the Credit Events then occurring, the U.S.
Borrower shall have commenced tender offers with respect to each issue of
outstanding Existing Tender Offer Notes (collectively, the "Tender Offer")
pursuant to which the U.S. Borrower shall offer, subject to the terms,
conditions and acceptance priorities specified therein, (I) to purchase
outstanding Existing Tender Offer Notes in an aggregate principal amount of up
to $325,000,000 at a cash price equal to (x) in the case of the Existing 2011
Senior Notes, $1072.50 per $1000 principal amount, (y) in the case of the
Existing 2009 Senior Notes, $1050.00 per $1000 principal amount and (z) in the
case of the Existing 2010 Senior Notes, $1017.50 per $1000 principal amount
plus, in the case of the Existing 2011 Senior Notes and the Existing 2009 Senior
Notes, accrued and unpaid interest thereon, and (II) to pay to each holder of
Existing Tender Offer Notes which validly tenders (and does not subsequently
withdraw) its Existing Tender Offer Notes prior 5:00 P.M. (New York City time)
on March 31, 2005 an early tender payment in an amount not to exceed $30.00 for
each $1,000 principal amount of such holder's Existing Tender Offer Notes. On
the Restatement Effective Date, (x) the Administrative Agent shall have received
true and correct copies of all Refinancing Documents relating to the Tender
Offer, certified as such by an appropriate officer of the U.S. Borrower, (y) all
terms and conditions of the Tender Offer and the Refinancing Documents governing
the same shall be reasonably satisfactory to the Agents and (z) in any event,
the Tender Offer shall provide that the period for tendering Existing Tender
Offer Notes pursuant thereto shall terminate on or prior to the Restatement
Effective Date.
(b) On or prior to the Restatement Effective Date, holders of the
Existing Tender Offer Notes in an aggregate outstanding principal amount equal
to $325,000,000 million shall have validly tendered, and not withdrawn, their
Existing Tender Offer Notes pursuant to, and in accordance with the requirements
of, the Tender Offer.
(c) On the Restatement Effective Date (and concurrently with the
Credit Events occurring on such date), (i) the Borrowers shall have paid all
breakage or similar costs (if any) in
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accordance with the provisions of Section 1.11 of the Original Credit Agreement
in the amounts that would have been payable thereunder if all outstanding
Original Dollar Facility Revolving Loans, Original Multicurrency Facility
Revolving Loans, Original Tranche D Term Loans, Original Tranche E Term Loans
and Original Swingline Loans had been prepaid on the Restatement Effective Date,
(ii) the principal of all outstanding Original Tranche E Term Loans and Original
Swingline Loans shall be repaid in full, and (iii) all accrued interest on all
outstanding extensions of credit pursuant to the Original Credit Agreement, and
all regularly accruing fees pursuant to the Original Credit Agreement, shall be
paid in full on, and through, the Restatement Effective Date (whether or not
same would otherwise then be due and payable pursuant to the Original Credit
Agreement).
5.09 Outstanding Indebtedness and Preferred Equity. On the Restatement
Effective Date and after giving effect to the consummation of the Transaction
(including the Tender Offer Consummation as if the same had occurred on such
date), Holdings and its Subsidiaries shall have no outstanding Preferred Equity
or Indebtedness, except for (i) Indebtedness pursuant to or in respect of the
Credit Documents, (ii) Existing Tender Offer Notes not repurchased pursuant to
the Tender Offer Consummation in an aggregate outstanding principal amount not
to exceed $950,000,000, (iii) Indebtedness pursuant to or in respect of the
Existing 2013 Senior Notes Documents, (iv) intercompany Indebtedness incurred by
the Bermuda Borrower pursuant to the Intercompany Distribution Transactions, (v)
Intercompany Scheduled Existing Indebtedness, (vi) existing Indebtedness of the
U.S. Borrower and its Subsidiaries of the type described in clauses (viii),
(xiii) and (xviii) of Section 9.04 in an aggregate principal amount not to
exceed the principal amount of such Indebtedness permitted by such Section,
(vii) Synthetic Lease obligations arising under the lease entered into in
connection with the Sale-Leaseback Transaction, (viii) Indebtedness pursuant to
the Intermediate Holdco Senior Notes Documents and (ix) such other existing
indebtedness of Holdings and its Subsidiaries, if any, as shall be permitted by
the Agents and Required Lenders to remain outstanding (all of which Indebtedness
described in this clause (ix) (other than immaterial Contingent Obligations of
Subsidiaries of the U.S. Borrower that represent guaranties of obligations other
than Indebtedness) shall be required to be specifically listed as Third Party
Scheduled Existing Indebtedness on Part A of Schedule IV). On and as of the
Restatement Effective Date, all Indebtedness described in the immediately
preceding sentence shall remain outstanding after giving effect to the
Transaction and the other transactions contemplated hereby without any breach,
required repayment, required offer to purchase, default, event of default or
termination rights existing thereunder or arising as a result of the Transaction
and the other transactions contemplated hereby and there shall not be any
amendments or modifications to the Existing Indebtedness Agreements (other than
as requested or approved by the Agents and the Required Lenders). On and as of
the Restatement Effective Date, the Agents and the Required Lenders shall be
satisfied with the amount of and the terms and conditions of all Indebtedness
described above in this Section 5.09.
5.10 Subsidiaries Guaranties Acknowledgments; Intercompany
Subordination Agreement Acknowledgement. (a) On the Restatement Effective Date,
each Subsidiary of Holdings party to the U.S. Subsidiaries Guaranty shall have
duly authorized, executed and delivered an acknowledgment and amendment in the
form of Exhibit G-1 (the "U.S. Subsidiaries Guaranty Acknowledgement and
Amendment"), which U.S. Subsidiaries Guaranty Acknowledgment and Amendment shall
contain, among other things, (i) an acknowledgment of this Agreement and the
transactions contemplated hereby, (ii) an acknowledgement that the "Obligations"
(as defined in the U.S. Subsidiaries Guaranty) include all of the Obligations
under this Agreement (or, in the case of the Bermuda Partnership Partners, all
of the Obligations of the U.S. Borrower) after giving effect to the Restatement
Effective Date, and (iii) an acknowledgment that, after giving effect to the
Restatement Effective Date, the U.S. Subsidiaries Guaranty shall remain in full
force and effect in accordance with its terms. On the Restatement Effective
Date, the U.S. Subsidiaries Guaranty shall be in full force and effect.
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(b) On the Restatement Effective Date, each Wholly-Owned Foreign
Subsidiary of Holdings party to the Foreign Subsidiaries Guaranty shall have
duly authorized, executed and delivered an acknowledgment in the form of Exhibit
G-2 (the "Foreign Subsidiaries Guaranty Acknowledgement"), which Foreign
Subsidiaries Guaranty Acknowledgment shall contain, among other things, (i) an
acknowledgment of this Agreement and the transactions contemplated hereby, (ii)
an acknowledgement that the "Obligations" (as defined in the Foreign
Subsidiaries Guaranty) include all of the Obligations of the Bermuda Borrower
under this Agreement after giving effect to the Restatement Effective Date, and
(iii) an acknowledgment that, after giving effect to the Restatement Effective
Date, the Foreign Subsidiaries Guaranty shall remain in full force and effect in
accordance with its terms. On the Restatement Effective Date, the Foreign
Subsidiaries Guaranty shall be in full force and effect.
(c) On the Restatement Effective Date, each Credit Party and each
other Subsidiary of Holdings which is an obligee or obligor with respect to any
Intercompany Debt (other than those Non-Wholly-Owned Subsidiaries listed on Part
D of Schedule XIII) shall have duly authorized, executed and delivered an
acknowledgment in the form of Exhibit O-1 (the "Intercompany Subordination
Agreement Acknowledgement and Amendment"), and the Intercompany Subordination
Agreement shall be in full force and effect.
5.11 U.S. Security Documents. (a) On the Restatement Effective Date,
each U.S. Credit Party shall have (x) duly authorized, executed and delivered an
assumption, acknowledgement and amendment in the form of Exhibit H-1 (the "U.S.
Security Documents Acknowledgment and Amendment") with respect to the U.S.
Pledge Agreement, the U.S Security Agreement and the Mortgages covering U.S.
Mortgaged Properties, which U.S. Security Documents Acknowledgment and Amendment
shall contain, among other things (i) an acknowledgment that the "Obligations"
(as defined in each of such Security Documents) include all of the Obligations
under this Agreement after giving effect to the Restatement Effective Date, (ii)
an acknowledgment that, after giving effect to the Restatement Effective Date,
each of the U.S. Pledge Agreement, the U.S. Security Agreement and each of the
Mortgages covering U.S. Mortgaged Properties shall remain in full force and
effect in accordance with their respective terms, and (iii) all information
required to be set forth as of the Restatement Effective Date on each Annex to
the U.S. Pledge Agreement and the U.S. Security Agreement to cause such Annexes
to be complete and accurate as of the Restatement Effective Date and (y) taken
all actions reasonably required by the Administrative Agent (including, without
limitation, the obtaining of UCC-11's or equivalent reports and the filing of
UCC-1's or UCC-3's) in connection with the granting of liens pursuant to the
U.S. Pledge Agreement, the U.S. Security Agreement and the Mortgages covering
U.S. Mortgaged Properties.
(b) On the Restatement Effective Date, (i) the Collateral Agent, as
Pledgee under the U.S. Pledge Agreement, shall have in its possession all of the
certificated U.S. Pledge Agreement Collateral, if any, referred to therein and
then owned by each U.S. Credit Party, (x) endorsed in blank in the case of
promissory notes constituting U.S. Pledge Agreement Collateral and (y) together
with executed and undated transfer powers in the case of certificated Equity
Interests constituting U.S. Pledge Agreement Collateral, and (ii) the U.S.
Pledge Agreement shall be in full force and effect.
(c) On the Restatement Effective Date, (i) the U.S. Security
Agreement, the Intercompany Receivables Documents and each of the Mortgages
covering U.S. Mortgaged Properties shall be in full force and effect and (ii) no
filings, recordings, registrations or other actions shall be necessary or
desirable to maintain (x) the perfection and priority of the security interests
granted pursuant to the U.S. Security Agreement in the Security Agreement
Collateral covered thereby and (y) first priority mortgage Liens on each U.S.
Mortgaged Property in favor of the Collateral Agent for the benefit of the
Secured Creditors, free and clear of all defects and encumbrances except
Permitted Encumbrances.
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(d) On the Restatement Effective Date, the U.S. Borrower shall have
delivered to the Collateral Agent, or caused to be delivered to the Collateral
Agent, fully executed counterparts of amendments, in form and substance
satisfactory to the Administrative Agent, to each of the Mortgages covering a
U.S. Mortgaged Property, together with evidence that counterparts of each such
mortgage amendment has been delivered to the title company insuring the Lien on
the Mortgages for recording in all places to the extent necessary or desirable,
in the judgment of the Collateral Agent, effectively to maintain a valid and
enforceable first priority mortgage lien on the U.S. Mortgaged Properties in
favor of the Collateral Agent for the benefit of the Secured Creditors securing
all of the Obligations (including the Additional Tranche B Term Loans and the
maximum amount of Incremental Term Loans which may be incurred).
5.12 Foreign Security Document Acknowledgements and Amendments. (a) On
the Restatement Effective Date, (i) each of the Credit Parties listed on Part F
of Schedule XIII shall have duly authorized, executed and delivered an
acknowledgement and/or amendment with respect to each Foreign Security Document
to which it is a party (each a "Foreign Security Document Acknowledgement and/or
Amendment"), which acknowledgement and/or amendment shall (w) be prepared by
local counsel reasonably satisfactory to the Agents, (x) be sufficient to
maintain a valid and enforceable first priority lien on the Collateral covered
by such Foreign Security Document in favor of the Collateral Agent for the
benefit of the Secured Creditors securing all of the relevant Obligations
(including any incremental Obligations resulting from the provision of Tranche A
Term Loans, Additional Tranche B Term Loans and Incremental Loan Commitments to
the Bermuda Borrower), (y) be in full force and effect (and, if applicable,
properly recorded) and (z) otherwise be in form and substance satisfactory to
the Administrative Agent, (ii) such Credit Parties shall have taken such actions
as may be necessary or desirable under local law (as advised by local counsel)
to create, maintain, effect, perfect, preserve, maintain and protect the
security interests granted (or purported to be granted) by each such Foreign
Security Document and (iii) each Foreign Security Document shall be in full
force and effect. Part E of Schedule XIII sets forth a list of all Foreign
Security Document Acknowledgements and/or Amendments to be executed and
delivered on the Restatement Effective Date.
(b) On the Restatement Effective Date, each Foreign Credit Party
listed on Part G of Schedule XIII shall have duly authorized, executed and
delivered such amended and restated and/or replacement security agreements,
documents and instruments as may be required by the Agents (based on advice of
local counsel), with the intent being that the Lenders receive valid and
enforceable first priority, perfected security interests in the assets owned by
such Foreign Credit Party and originally covered by the Foreign Security
Agreements entered into by such Foreign Credit Party pursuant to the Original
Credit Agreement, securing all of the relevant Obligations (including such
Foreign Credit Party's guaranty obligations with respect to the Tranche A Term
Loans and the Additional Tranche B Term Loans). All such security documentation
to be executed and delivered by the Foreign Credit Parties pursuant to the
immediately preceding sentence (each, as amended, modified, restated and/or
supplemented from time to time, a "Replacement Foreign Security Agreement" and,
collectively, the "Replacement Foreign Security Agreements") shall (i) be
prepared by local counsel reasonably satisfactory to the Agents, (ii) be in form
and substance reasonably satisfactory to the Agents and (iii) be in full force
and effect on the Restatement Effective Date. In connection with the execution
and delivery of the Replacement Foreign Security Agreements, the respective
Foreign Credit Parties shall take such actions as may be necessary or desirable
under local law (as advised by local counsel) to create, maintain, effect,
perfect, preserve, maintain and protect the security interests granted (or
purported to be granted) thereby, in each case to the extent customary in
connection with secured transactions under the laws of the respective
jurisdiction
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or deemed necessary or desirable by the Agents based on advice of local counsel.
Part G of Schedule XIII sets forth all Replacement Foreign Security Agreements
to be executed and delivered on the Restatement Effective Date.
5.13 Shareholders' Agreements; Management Agreements; Existing
Indebtedness Agreements; and Tax Allocation Agreements. (a) On or prior to the
Restatement Effective Date, there shall have been made available to the
Administrative Agent by the U.S. Borrower true and correct copies of the
following documents as same will be in effect on the Restatement Effective Date
after the consummation of the Transaction, in each case, except to the extent
already delivered or made available for review by the Administrative Agent
pursuant to Section 5.19 of the Original Credit Agreement), certified as such by
the U.S. Borrower (in the case of the agreements referred to in clause (i), (ii)
and (iv) below):
(i) all written agreements (including, without limitation,
shareholders' agreements, subscription agreements and registration rights
agreements) entered into by Holdings or any of its Subsidiaries governing
the terms and relative rights of its capital stock or other Equity
Interests and any agreements entered into by shareholders relating to any
such entity with respect to its capital stock or other Equity Interests
(collectively, together with any agreements referred to in Section 5.19(ii)
of the Original Credit Agreement that continue to be in effect on the
Restatement Effective Date, and any amendments thereto referred to in
Section 5.13(b), the "Shareholders' Agreements");
(ii) all material written agreements (including employment agreements
but limited to those of executive management and division presidents)
entered into by Holdings or any of its Subsidiaries with respect to the
management of Holdings or any of its Subsidiaries after giving effect to
the Transaction (including consulting agreements and other management
advisory agreements) (collectively, together with any agreements referred
to in Section 5.19(iii) of the Original Credit Agreement that continue to
be in effect on the Restatement Effective Date, and any amendments thereto
referred to in Section 5.13(b), the "Management Agreements");
(iii) all agreements evidencing or relating to any material Existing
Indebtedness of Holdings or any of its Subsidiaries (collectively, together
with any agreements referred to in Section 5.19(v) of the Original Credit
Agreement that continue to be in effect on the Restatement Effective Date,
and any amendments thereto referred to in Section 5.13(b), the "Existing
Indebtedness Agreements"); and
(iv) any tax sharing or tax allocation agreements entered into by
Holdings or any of its Subsidiaries (collectively, together with any
agreements referred to in Section 5.19(vi) of the Original Credit Agreement
that continue to be in effect on the Restatement Effective Date, and any
amendments thereto referred to in Section 5.13(b), the "Tax Allocation
Agreements");
all of which Shareholders' Agreements, Management Agreements, Existing
Indebtedness Agreements and Tax Allocation Agreements shall be in form and
substance reasonably satisfactory to the Agents and shall be in full force and
effect on the Restatement Effective Date.
(b) On or prior to the Restatement Effective Date, the Administrative
Agent shall have received (i) a certification from an Authorized Officer of the
U.S. Borrower that all agreements referenced in clauses (ii), (iii), (v) and
(vi) of Section 5.19 of the Original Credit Agreement previously delivered (or
made available) to the Administrative Agent by the U.S. Borrower and/or any of
its Subsidiaries, remain in full force and effect (or specifying which of such
agreements do not remain in full
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force and effect) and (ii) any amendments to the agreements referred to in
clauses (ii), (iii), (v) and (vi) of Section 5.19 of the Original Credit
Agreement that remain in effect on the Restatement Effective Date.
5.14 Solvency Certificate. On or before the Restatement Effective
Date, the Administrative Agent shall have received a solvency certificate in the
form of Exhibit I from the chief financial officer of Holdings, dated the
Restatement Effective Date, and supporting the conclusion that, after giving
effect to the Transaction and the incurrence of all financings contemplated
herein, each Borrower (on a stand-alone basis), the U.S. Borrower and its
Subsidiaries (on a consolidated basis), the Bermuda Borrower and its
Subsidiaries (on a consolidated basis) and Holdings and its Subsidiaries (on a
consolidated basis), in each case, are not insolvent and will not be rendered
insolvent by the indebtedness incurred in connection herewith, will not be left
with unreasonably small capital with which to engage in its or their respective
businesses and will not have incurred debts beyond its or their ability to pay
such debts as they mature and become due.
5.15 Financial Statements; Pro Forma Financial Statements;
Projections. (a) On or prior to the Restatement Effective Date, there shall have
been delivered to the Administrative Agent (i) true and correct copies of the
financial statements referred to in Section 7.10(b)(i) and (ii) an unaudited pro
forma (calculated as if the Transaction had occurred on such date) consolidated
balance sheet of the U.S. Borrower and its Consolidated Subsidiaries as of
January 1, 2005 and the related pro forma (calculated as if the Transaction had
occurred on the first day of the period covered thereby) statement of income for
the twelve-month period ended as of such date, after giving effect to the
Transaction and the incurrence of all Indebtedness contemplated herein (the "Pro
Forma Financial Statements"), together with a related funds flow statement,
which financial statements, Pro Forma Financial Statements and funds flow
statement shall be reasonably satisfactory to the Agents and the Required
Lenders.
(b) On or prior to the Restatement Effective Date, there shall have
been delivered to the Administrative Agent detailed projected consolidated
financial statements of the U.S. Borrower and its Consolidated Subsidiaries
certified by the Chief Financial Officer of the U.S. Borrower for the five
Fiscal Years ended after the Restatement Effective Date (the "Projections"),
which Projections (x) shall reflect the forecasted consolidated financial
conditions and income and expenses of the U.S. Borrower and its Consolidated
Subsidiaries after giving effect to the Transaction and the related financing
thereof and the other transactions contemplated hereby and (y) shall be
reasonably satisfactory in form and substance to the Agents and the Required
Lenders.
5.16 Payment of Fees. On the Restatement Effective Date, all costs,
fees and expenses, and all other compensation due to the Agents and the Lenders
(including, without limitation, legal fees and expenses) shall have been paid to
the extent then due.
5.17 Consent Letter. On the Restatement Effective Date, the
Administrative Agent shall have received a letter from Corporation Service
Company, presently located at 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx, 00000,
substantially in the form of Exhibit N, indicating its consent to its
appointment by each New Foreign Subsidiary Guarantor as its agent to receive
service of process as specified in the Foreign Subsidiaries Guaranty.
SECTION 6A. Special Condition Precedent to Incurrence of Revolving
Loans and Swingline Loans. The obligation of each RL Lender to make Revolving
Loans (including Revolving Loans made (or deemed made) on the Restatement
Effective Date (including Converted Multicurrency Facility Loans and Converted
Dollar Facility Revolving Loans), on each Incremental Multicurrency Facility RL
Commitment Date and on each Incremental Dollar Facility RL Commitment Date, but
excluding Mandatory Borrowings made after the Restatement Effective Date, which
shall be made as provided in Sections 1.01(g) and (h)) and of the Swingline
Lender to make Swingline Loans is subject, at
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the time of each such making of a Revolving Loan or Swingline Loan (except as
hereinafter indicated), to the satisfaction of the following condition:
6A.01 Limitation on Cash on Hand. The aggregate amount of Unrestricted
Cash owned or held by Holdings and its Subsidiaries (determined after giving pro
forma effect to the making of each such Revolving Loan and/or Swingline Loan and
the application of proceeds therefrom and from any other Unrestricted Cash on
hand (to the extent such proceeds and/or other Unrestricted Cash are actually
utilized by the respective Borrower and/or any other Subsidiary of Holdings on
the date of the incurrence of the respective such Revolving Loan and/or
Swingline Loan for a permitted purpose under this Agreement other than an
investment in Cash Equivalents)) shall not exceed $100,000,000 (for purposes of
Unrestricted Cash denominated in a currency other than Dollars, taking the
Dollar Equivalent of such Unrestricted Cash as determined on the date of the
incurrence of the respective such Revolving Loan and/or Swingline Loan).
SECTION 6B. Conditions Precedent to All Credit Events. The obligation
of each Lender to make Loans (including Loans made on the Restatement Effective
Date (including Converted Tranche B Term Loans, Converted Multicurrency Facility
Revolving Loans and Converted Dollar Facility Revolving Loans) and on each
Incremental Loan Commitment Date, but excluding Mandatory Borrowings made after
the Restatement Effective Date, which shall be made as provided in Sections
1.01(g) and (h)), the obligation of an Issuing Lender to issue any Letter of
Credit and the obligation of a Bank Guaranty Issuer to issue any Bank Guaranty,
is subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:
6B.01 No Default; Representations and Warranties. At the time of each
such Credit Event and immediately after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6B.02 Notice of Borrowing; Letter of Credit Request; etc. (a) Prior to
the making of each Loan (excluding Swingline Loans and Mandatory Borrowings),
the Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03(a). Prior to the making of any Swingline Loan, the
Swingline Lender shall have received the notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the Administrative
Agent and the respective Issuing Lender shall have received a Letter of Credit
Request meeting the requirements of Section 2A.03(a).
(c) Prior to the issuance of each Bank Guaranty, the Administrative
Agent and the respective Bank Guaranty Issuer shall have received a Bank
Guaranty Request meeting the requirements of Section 2B.03(a).
6B.03 Incremental Term Loans. Prior to the incurrence of any
Incremental Term Loans, Holdings shall have satisfied (or caused to be
satisfied) all of the applicable conditions set forth in Section 1.15.
The occurrence of the Restatement Effective Date and the acceptance of
the benefits or proceeds of each Credit Event shall constitute a representation
and warranty by each Credit Agreement Party to each Agent and each of the
Lenders that all the conditions specified in Section 5 (with respect to
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Credit Events occurring on the Restatement Effective Date), Section 6A (with
respect to the Credit Event specifically described in said Section) and Section
6B (with respect to Credit Events on and after the Restatement Effective Date)
and applicable to such Credit Event (other than such conditions that are
expressly subject to the satisfaction of the Agents and/or the Required Lenders)
exist as of that time. All of the Notes, certificates, legal opinions and other
documents and papers referred to in Sections 5, 6A and 6B, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office
for the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance reasonably satisfactory to the Lenders (as evidenced by their
execution and delivery of this Agreement).
SECTION 7. Representations and Warranties. In order to induce the
Lenders to enter into this Agreement, to make (and/or continue) the Loans and
issue and/or participate in the Letters of Credit and Bank Guaranties as
provided for herein, each Credit Agreement Party makes the following
representations, warranties and agreements with the Lenders, in each case after
giving effect to the Transaction, all of which shall survive the execution and
delivery of this Agreement, the making of the Loans and the issuance (or deemed
issuance)of the Letters of Credit and Bank Guaranties (with the occurrence of
the Restatement Effective Date and each Credit Event on or after the Restatement
Effective Date being deemed to constitute a representation and warranty that the
matters specified in this Section 7 are true and correct in all material
respects on and as of the Restatement Effective Date and on and as of the date
of each such Credit Event, unless stated to relate to a specific earlier date in
which case such representations and warranties shall be true and correct in all
material respects as of such earlier date):
7.01 Company Status. Each of Holdings and each of its Subsidiaries (i)
is a duly organized and validly existing Company in good standing (or its
equivalent) under the laws of the jurisdiction of its organization, (ii) has the
Company power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good standing (or its
equivalent) in all jurisdictions where it is required to be so qualified (or its
equivalent) and where the failure to be so qualified has had, or could
reasonably be expected to have, a Material Adverse Effect.
7.02 Company Power and Authority. Each Credit Party and each
Subsidiary thereof has the Company power and authority to execute, deliver and
carry out the terms and provisions of the Documents to which it is a party and
has taken all necessary Company action to authorize the execution, delivery and
performance of the Documents to which it is a party. Each Credit Party and each
Subsidiary thereof has duly executed and delivered each Document to which it is
a party and each such Document constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws generally
affecting creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party or any Subsidiary thereof of the Documents to which it is a
party, nor compliance by any Credit Party or any such Subsidiary with the terms
and provisions thereof, nor the consummation of the transactions contemplated
herein or therein, (i) will contravene any material provision of any applicable
law, statute, rule or regulation, or any order, writ, injunction or decree of
any court or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or (other than pursuant to the
Security Documents) result in the creation or imposition of (or the obligation
to create or impose) any Lien upon any of the material property or assets of
Holdings or any of its Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement, credit agreement or any other material
agreement, contract or instrument to which Holdings or any of its Subsidiaries
is a party or by which it or
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any of its material property or assets are bound or to which it may be subject
(including, without limitation, the Existing Senior Notes Documents, the
Intermediate Holdco Senior Notes Indenture, the other Existing Indebtedness
Agreements, and, on and after the execution and delivery thereof, the Holdings
Senior Notes Indenture, any Permitted Senior Notes Indenture and any Permitted
Refinancing Senior Notes Document) or (iii) will violate any provision of the
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of limited liability company, limited liability company
agreement or equivalent organizational document, as the case may be, of Holdings
or any of its Subsidiaries.
7.04 Litigation. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of any Senior Officer, threatened
(i) with respect to any Credit Document, (ii) with respect to the Transaction or
any other Document or (iii) that have had, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. Additionally,
there does not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon the occurrence of any Credit Event.
7.05 Use of Proceeds; Margin Regulations. (a) The proceeds of the
Tranche A Term Loans and the Additional Tranche B Term Loans shall be utilized
by the Bermuda Borrower on the Restatement Effective Date (by way of the
Intercompany Refinancing Distributions) solely to finance the Refinancing and to
pay fees and expenses incurred in connection with the Transaction. All proceeds
of Incremental Term Loans incurred by each Incremental Term Loan Borrower shall
be used (i) to finance Permitted Acquisitions (and to pay the fees and expenses
related thereto) and to refinance any Indebtedness assumed as part of any such
Permitted Acquisitions (and to pay all accrued and unpaid interest thereon, any
prepayment premium associated therewith and the fees and expenses related
thereto), (ii) to prepay outstanding Loans in accordance with the terms of this
Agreement, (iii) for the Incremental Term Loan Borrowers' and their respective
Subsidiaries' ongoing working capital requirements and general corporate
purposes and (v) in the case of Incremental Term Loans incurred by the U.S.
Borrower, to (x) make intercompany loans to Intermediate Holdco pursuant to
Section 9.05(xxv) to be utilized for the purposes described in subclause (v)
thereof and/or (y) pay Dividends to Intermediate Holdco pursuant to Section
9.06(x) to be utilized for the purposes described in subclause (v) thereof.
(b) All proceeds of Revolving Loans and Swingline Loans shall be used
for the Borrowers' and their respective Subsidiaries' ongoing working capital
requirements and general corporate purposes (including (x) to effect Permitted
Acquisitions (to the extent permitted by this Agreement) and (y) in the case of
U.S. Borrower Dollar Facility Revolving Loans and U.S. Borrower Multicurrency
Facility Revolving Loans, to (i) make intercompany loans to Intermediate Holdco
pursuant to Section 9.05(xxv) to be utilized for the purposes described in
subclause (v) thereof and/or (ii) pay Dividends to Intermediate Holdco pursuant
to Section 9.06(x) to be utilized for the purposes described in subclause (v)
thereof but (z) excluding payments in connection with the Transaction, except as
set forth in the immediately succeeding proviso); provided that the aggregate
principal amount of all Revolving Loans and Swingline Loans (taking the U.S.
Dollar Equivalent of any such Loans denominated in Euros) incurred to finance
the Transaction shall not exceed $15,000,000.
(c) At the time of each Credit Event occurring on or after the
Restatement Effective Date, the aggregate value of all Margin Stock (other than
treasury stock) owned by Holdings and its Subsidiaries (for such purpose, using
the initial purchase price paid by Holdings or such Subsidiary for the
respective shares of Margin Stock) does not exceed $10,000,000. In addition, at
the time of each Credit Event occurring on or after the Restatement Effective
Date, the value of the Margin Stock at any time owned by Holdings and its
Subsidiaries does not exceed 25% of the value of the assets of Holdings and its
Subsidiaries taken as a whole. Neither the making of any Loan nor the use of the
proceeds thereof
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nor the occurrence of any other Credit Event will violate or be inconsistent
with the provisions of Regulation T, Regulation U or Regulation X.
7.06 Governmental Approvals. Except as may have been obtained or made
on or prior to the Restatement Effective Date (and which remain in full force
and effect on the Restatement Effective Date), no order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with, or exemption by, any foreign or domestic governmental or public body or
authority, or any subdivision thereof, is required to authorize or is required
in connection with (i) the execution, delivery and performance of any Document
or (ii) the legality, validity, binding effect or enforceability of any
Document.
7.07 Investment Company Act. Neither Holdings nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.08 Public Utility Holding Company Act. Neither Holdings nor any of
its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7.09 True and Complete Disclosure. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of Holdings or
any of its Subsidiaries in writing to any Agent or any Lender (including,
without limitation, all information contained in the Documents) for purposes of
or in connection with this Agreement, the other Documents or any transaction
contemplated herein or therein is, and all other such factual information (taken
as a whole) hereafter furnished by or on behalf of any such Persons in writing
to any Agent or any Lender will be, true and accurate in all material respects
on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading in any material respect at such
time in light of the circumstances under which such information was provided, it
being understood and agreed that for purposes of this Section 7.09, such factual
information shall not include the Projections or any projected financial
information contained in any financial projections delivered pursuant to Section
8.01(c).
7.10 Financial Condition; Financial Statements. (a) On and as of the
Restatement Effective Date, on a pro forma basis after giving effect to the
Transaction and to all Indebtedness (including the Loans) incurred, and to be
incurred, and Liens created, and to be created, by each Credit Party in
connection therewith, with respect to each Borrower (on a stand-alone basis),
Holdings and its Subsidiaries (on a consolidated basis) and each Borrower and
its Subsidiaries (on a consolidated basis) (x) the sum of the assets, at a fair
valuation, of each Borrower (on a stand-alone basis), Holdings and its
Subsidiaries (on a consolidated basis) and each Borrower and its Subsidiaries
(on a consolidated basis) will exceed its or their debts, (y) it has or they
have not incurred nor intended to, nor believes or believe that it or they will,
incur debts beyond its or their ability to pay such debts as such debts mature
and (z) it or they will have sufficient capital with which to conduct its or
their business. For purposes of this Section 7.10(a), "debt" means any liability
on a claim, and "claim" means (i) right to payment, whether or not such a right
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (ii)
right to an equitable remedy for breach of performance if such breach gives rise
to a payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual
or matured liability.
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(b) (i) The audited consolidated statements of financial condition of
the U.S. Borrower and its Consolidated Subsidiaries at December 28, 2002,
January 3, 2004 and January 1, 2005 and the related consolidated statements of
income and cash flows and changes in shareholders' equity of the U.S. Borrower
and its Consolidated Subsidiaries for the fiscal years of the U.S. Borrower
ended on such dates, in each case furnished to the Lenders prior to the
Restatement Effective Date, present fairly in all material respects the
consolidated financial position of the U.S. Borrower and its Consolidated
Subsidiaries at the date of said financial statements and the results for the
respective periods covered thereby and (ii) the Pro Forma Financial Statements
present a good faith estimate of the consolidated pro forma financial condition
of the U.S. Borrower and its Consolidated Subsidiaries and the pro forma results
of operations of the U.S. Borrower and its Consolidated Subsidiaries for the
respective periods covered thereby (after giving effect to the Transaction at
the date thereof or for the period covered thereby). All of the financial
statements referred to in clause (i) of the immediately preceding sentence have
been prepared in accordance with U.S. GAAP consistently applied except to the
extent provided in the notes to said financial statements.
(c) Since January 1, 2005 (but after giving effect to the Transaction
as if same had occurred immediately prior thereto), nothing has occurred that
has had, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(d) Except as fully reflected in the financial statements described in
Section 7.10(b) and as otherwise permitted by Section 9.04, (i) there were as of
the Restatement Effective Date (and after giving effect to any Loans made on
such date), no liabilities or obligations with respect to Holdings or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in the
aggregate, could reasonably be expected to be material to Holdings and its
Subsidiaries taken as a whole and (ii) no Credit Agreement Party knows of any
basis for the assertion against Holdings or any of its Subsidiaries of any such
liability or obligation which, either individually or in the aggregate, has had,
or could reasonably be expected to have, a Material Adverse Effect.
(e) The Projections have been prepared on a basis consistent with the
financial statements referred to in Section 7.10(b) and are based on good faith
estimates and assumptions made by the management of Holdings, and on the
Restatement Effective Date, the Borrowers believe that the Projections are
reasonable and attainable, it being recognized by the Lenders that such
projections of future events are not to be viewed as facts and that actual
results during the period or periods covered by any such Projections may differ
from the projected results contained therein. There is no fact known to any
Credit Agreement Party or any of its Subsidiaries which has had, or could
reasonably be expected to have, a Material Adverse Effect, which has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Lenders for use in connection with the transactions
contemplated hereby.
7.11 Security Interests. On and after the Restatement Effective Date,
each of the Security Documents creates (or after the execution and delivery
thereof will create), as security for the Obligations covered thereby, a valid
and enforceable perfected security interest in and Lien on all of the Collateral
subject thereto, superior to and prior to the rights of all third Persons, and
subject to no other Liens (except that (i) the Security Agreement Collateral may
be subject to Permitted Liens, (ii) the Pledge Agreement Collateral may be
subject to the Liens described in clauses (i) and (v) of Section 9.03 and (iii)
the security interest and mortgage lien created on any Mortgaged Property may be
subject to the Permitted Encumbrances related thereto), in favor of the
Collateral Agent (or such other trustee or sub-agent as may be required or
desired under local law). No filings or recordings are required in order to
perfect and/or render enforceable as against third parties the security
interests created under any Security Document except for filings or recordings
required in connection with any such Security Document which
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shall have been made on or prior to the Restatement Effective Date or on or
prior to the execution and delivery thereof as contemplated by Sections 8.11,
8.12, 8.15 and 9.14.
7.12 Compliance with ERISA. (a) Schedule V sets forth, as of the
Restatement Effective Date, each Plan and each Multiemployer Plan. Each Plan
(and each related trust, insurance contract or fund) is in compliance in all
respects with its terms and in all respects with all applicable laws, including,
without limitation, ERISA and the Code and in compliance with the following,
except to the extent that any such noncompliances, individually or in the
aggregate, would not result in a Material Adverse Effect; each Plan (and each
related trust, if any) which is intended to be qualified under Section 401(a) of
the Code has received a determination letter from the Internal Revenue Service
to the effect that it meets the requirements of Sections 401(a) and 501(a) of
the Code (or the sponsor has applied for such determination letter within the
remedial amendment period); (1) no Reportable Event has occurred; (2) to the
knowledge of any Senior Officer, no Multiemployer Plan is insolvent or in
reorganization; (3) no Plan has an Unfunded Current Liability; (4) no Plan which
is subject to Section 412 of the Code or Section 302 of ERISA has an accumulated
funding deficiency, within the meaning of such sections of the Code or ERISA, or
has applied for or received a waiver of an accumulated funding deficiency or an
extension of any amortization period, within the meaning of Section 412 of the
Code or Section 303 or 304 of ERISA; (5) all required contributions with respect
to a Plan and a Multiemployer Plan have been made; (6) neither Holdings nor any
Subsidiary of Holdings nor any ERISA Affiliate has incurred any outstanding
material liability (including any indirect, contingent or secondary liability)
to or on account of a Plan or a Multiemployer Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such
material liability under any of the foregoing sections with respect to any Plan
or a Multiemployer Plan; (7) no condition exists which presents a material risk
to Holdings or any Subsidiary of Holdings or any ERISA Affiliate of incurring a
material liability to or on account of a Plan or a Multiemployer Plan pursuant
to the foregoing provisions of ERISA and the Code; (8) no involuntary
proceedings have been instituted to terminate or appoint a trustee to administer
any Plan which is subject to Title IV of ERISA; (9) no action, suit, proceeding,
hearing, audit or investigation with respect to the administration, operation or
the investment of assets of any Plan (other than routine claims for benefits) is
pending, expected or threatened; (10) using actuarial assumptions and
computation methods consistent with Part 1 of subtitle E of Title IV of ERISA,
the aggregate liabilities of Holdings and its Subsidiaries and ERISA Affiliates
to any Multiemployer Plans in the event of a withdrawal therefrom, as of the
close of the most recent fiscal year of each such Multiemployer Plan ended prior
to the date of the most recent Credit Event would not exceed $10,000,000; (11)
each group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of Holdings, any Subsidiary of Holdings, or any ERISA Affiliate has at
all times been operated in compliance with the provisions of Part 6 of subtitle
B of Title I of ERISA and Section 4980B of the Code other than any
non-compliance which would not result in a material liability to Holdings or any
Subsidiary of Holdings; (12) no lien imposed under the Code or ERISA on the
assets of Holdings or any Subsidiary of Holdings or any ERISA Affiliate exists,
is likely to arise on account of any Plan or any Multiemployer Plan; and (13)
and neither Holdings nor any Subsidiary of Holdings maintains or contributes to
(a) any employee welfare benefit plan (as defined in Section 3(1) of ERISA)
which provides benefits to retired employees and/or other former employees
(other than as required by Section 601 of ERISA) or (b) any Plan, the
obligations with respect to which could reasonably be expected to have a
Material Adverse Effect.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities, except to the
extent that such noncompliances, individually or in the aggregate, would not
result in a Material Adverse Effect. All required contributions with respect to
a Foreign Pension Plan have been made. Neither Holdings nor any of its
Subsidiaries has incurred any material outstanding obligation in connection
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with the termination of or withdrawal from any Foreign Pension Plan. The present
value of the accrued benefit liabilities (whether or not vested) under each
Foreign Pension Plan, determined as of the end of Holdings' most recently ended
fiscal year on the basis of actuarial assumptions, each of which is reasonable,
did not exceed the current value of the assets of such Foreign Pension Plan
allocable to such benefit liabilities or alternatively, the Foreign Pension Plan
is funded in compliance with applicable law in all material respects and
Holdings and its Subsidiaries have established adequate reserves for the present
value of such accrued benefit liabilities under such Foreign Pension Plan in the
financial statements delivered pursuant to Section 8.01(a) and (b).
7.13 Capitalization. (a) On the Restatement Effective Date and after
giving effect to the Transaction, the authorized capital stock of Holdings shall
consist of 1,000 shares of common stock, $.001 par value per share (such
authorized shares of common stock, together with any subsequently authorized
shares of common stock of Holdings, the "Holdings Common Stock"), of which 1000
shares are issued and outstanding. All such outstanding shares have been duly
and validly issued, are fully paid and nonassessable and free of preemptive
rights. As of the Restatement Effective Date, except as set forth on Part A of
Schedule X hereto, Holdings does not have outstanding any securities convertible
into or exchangeable for its capital stock or outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock or any
stock appreciation or similar rights.
(b) On the Restatement Effective Date and after giving effect to the
Transaction, all of the Equity Interests of Intermediate Holdco are owned by
Holdings and pledged pursuant to the U.S. Pledge Agreement. Intermediate Holdco
does not have outstanding any securities convertible into or exchangeable for
its Equity Interests or outstanding any rights to subscribe for or to purchase,
or any options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its Equity Interests or any equity appreciation or
similar rights.
(c) On the Restatement Effective Date and after giving effect to the
Transaction, the authorized capital stock of the U.S. Borrower shall consist of
1000 shares of common stock, $.001 par value per share, of which 1000 shares
were issued and outstanding, owned by Intermediate Holdco and delivered for
pledge pursuant to the U.S. Pledge Agreement. All such outstanding shares have
been duly and validly issued, are fully paid and nonassessable and free of
preemptive rights. The U.S. Borrower does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock or any
stock appreciation or similar rights.
(d) On the Restatement Effective Date and after giving effect to the
Transaction, the authorized capital stock of the Bermuda Borrower shall consist
of 2,319,640,170 shares of common stock, $.10 par value per share, of which
2,319,640,170 shares are issued and outstanding and owned indirectly by the
Bermuda Partnership. All such outstanding shares have been duly and validly
issued, are fully paid and nonassessable and free of preemptive rights. The
Bermuda Borrower does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreement providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its capital stock or any stock appreciation or
similar rights.
7.14 Subsidiaries. On and as of the Restatement Effective Date and
after giving effect to the Transaction, Holdings has no Subsidiaries other than
Westlake Wellbeing Company and
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Intermediate Holdco and its Subsidiaries, and Intermediate Holdco has no
Subsidiaries other than those Subsidiaries listed on Schedule VII. Schedule VII
correctly sets forth, as of the Restatement Effective Date and after giving
effect to the Transaction, (i) the percentage ownership (direct and indirect) of
Intermediate Holdco in each class of capital stock or other Equity Interests of
each of its Subsidiaries and also identifies the direct owner thereof and (ii)
the jurisdiction of organization of each such Subsidiary. All outstanding shares
of capital stock or other Equity Interests of each Subsidiary of Intermediate
Holdco have been duly and validly issued, are fully paid and non-assessable and,
in the case of Non-Wholly Owned Subsidiaries of the U.S. Borrower, have been
issued free of preemptive rights. Except as set forth on Part B of Schedule X
attached hereto, no Subsidiary of Intermediate Holdco has outstanding any
securities convertible into or exchangeable for its capital stock or other
Equity Interests or outstanding any right to subscribe for or to purchase, or
any options or warrants for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of or any calls, commitments or claims of any
character relating to, its capital stock or other Equity Interests or any stock
appreciation or similar rights. Except for the existing investments described on
Schedule VI, as of the Restatement Effective Date, neither Holdings nor any of
its Subsidiaries owns or holds, directly or indirectly, any capital stock or
equity security of, or any other Equity Interests in, any Person other than its
Subsidiaries indicated on Schedule VII.
7.15 Intellectual Property, etc. Each of Holdings and each of its
Subsidiaries owns or has the right to use all domestic and foreign patents,
trademarks, permits, domain names, service marks, trade names, copyrights,
licenses, franchises, inventions, trade secrets, proprietary information and
know-how of any type, whether or not written (including, but not limited to,
rights in computer programs and databases) and formulas, or other rights with
respect to the foregoing, and has obtained assignments of all leases, licenses
and other rights of whatever nature, in each case necessary for the conduct of
its business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, individually or in the aggregate,
has had, or could reasonably be expected to have, a Material Adverse Effect.
7.16 Compliance with Statutes; Agreements, etc. Each of Holdings and
each of its Subsidiaries is in compliance with (i) all applicable statutes,
regulations, rules and orders of, and all applicable restrictions imposed by,
all governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property and (ii) all contracts and agreements
to which it is a party, except such non-compliances as have not had, and could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
7.17 Environmental Matters. (a) Each of Holdings and each of its
Subsidiaries has complied with, and on the date of each Credit Event is in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws and neither Holdings nor any of its
Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing. There are no pending or past or, to
the knowledge of any Senior Officer, threatened Environmental Claims against
Holdings or any of its Subsidiaries or any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries (including any such claim
arising out of the ownership, lease or operation by Holdings or any of its
Subsidiaries of any Real Property formerly owned, leased or operated by Holdings
or any of its Subsidiaries but no longer owned, leased or operated by Holdings
or any of its Subsidiaries). There are no facts, circumstances, conditions or
occurrences on any Real Property owned, leased or operated by Holdings or any of
its Subsidiaries (including, to the knowledge of a Senior Officer, any Real
Property formerly owned, leased or operated by Holdings or any of its
Subsidiaries but no longer owned, leased or operated by Holdings or any of its
Subsidiaries) or on any property adjoining or in the vicinity of any such Real
Property that would reasonably be expected (i) to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries or any such Real
Property or (ii) to cause any such Real Property to be subject to any
restrictions on the ownership,
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occupancy, use or transferability of such Real Property by Holdings or any of
its Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned, leased
or operated by Holdings or any of its Subsidiaries except in compliance with all
applicable Environmental Laws and in connection with the operation, use and
maintenance of such Real Property by Holdings' or such Subsidiary's business.
Hazardous Materials have not at any time been Released on or from any Real
Property owned, leased or operated by Holdings or any of its Subsidiaries or by
any person acting for or under contract to Holdings or any of its Subsidiaries,
or to the knowledge of any Credit Agreement Party, by any other Person in
respect of Real Property owned, leased or operated by Holdings or any of its
Subsidiaries (including, to the knowledge of any Credit Agreement Party, any
Real Property owned, leased or operated by Holdings or any of its Subsidiaries
but no longer owned, leased or operated by Holdings or any of its Subsidiaries),
except in compliance with all applicable Environmental Laws in all material
respects.
(c) Notwithstanding anything to the contrary in this Section 7.17, the
representations made in this Section 7.17 shall only be untrue if the aggregate
effect of all conditions, failures, noncompliances, Environmental Claims,
Hazardous Materials, Releases and presence of underground storage tanks, in each
case of the types described above, has had, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
7.18 Properties. All Real Property and vessels owned by Holdings or
any of its Subsidiaries, and all material leaseholds leased by Holdings or any
of its Subsidiaries, in each case as of the Restatement Effective Date and after
giving effect to the Transaction, and the nature of the interest therein, is
correctly set forth in Schedule III. Each of Holdings and each of its
Subsidiaries has good and marketable title to, or a validly subsisting leasehold
interest in, all material properties owned or leased by it, including all Real
Property and vessels reflected in Schedule III and in the financial statements
(including the Pro Forma Financial Statements) referred to in Section 7.10(b)
(except (x) such properties sold in the ordinary course of business since the
dates of the respective financial statements referred to therein, (y) such
properties otherwise sold as permitted by the terms of this Agreement and (z)
such Real Properties owned by the U.S. Borrower or any of its Subsidiaries which
may be subject to immaterial defects of title which do not impair the use of
such Real Property or the business conducted by the U.S. Borrower or such
Subsidiary thereon), free and clear of all Liens, other than Permitted Liens.
7.19 Labor Relations. Neither Holdings nor any of its Subsidiaries is
engaged in any unfair labor practice that has had, or could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect. There is (i) no unfair labor practice complaint pending against Holdings
or any of its Subsidiaries or, to the knowledge of any Senior Officer,
threatened against any of them, before the National Labor Relations Board or any
similar foreign tribunal or agency, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against Holdings or any of its Subsidiaries or, to the knowledge of any Senior
Officer, threatened against any of them, (ii) no strike, labor dispute, slowdown
or stoppage pending against Holdings or any of its Subsidiaries or, to the
knowledge of any Senior Officer, threatened against Holdings or any of its
Subsidiaries and (iii) no union representation question existing with respect to
the employees of Holdings or any of its Subsidiaries and no union organizing
activities are taking place, except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate) such
as has not had, or could reasonably be expected to have, a Material Adverse
Effect.
7.20 Tax Returns and Payments. Holdings and each of its Subsidiaries
has timely filed (including applicable extensions) with the appropriate taxing
authority, all material returns, statements, forms and reports for taxes (the
"Returns") required to be filed by or with respect to the
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income, properties or operations of Holdings and each of its Subsidiaries. The
Returns accurately reflect in all material respects all liability for taxes of
Holdings and each of its Subsidiaries as a whole for the periods covered
thereby. Holdings and each of its Subsidiaries have paid all material taxes
payable by them other than those contested in good faith and adequately
disclosed and for which adequate reserves have been established in accordance
with U.S. GAAP. Except as set forth on Schedule XVIII hereto, there is no
action, suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of any Senior Officer, threatened by any authority regarding any taxes
relating to Holdings and each of its Subsidiaries. Except as set forth on
Schedule XVIII hereto, neither Holdings nor any of its Subsidiaries has entered
into an agreement or waiver or been requested to enter into an agreement or
waiver extending any statute of limitations relating to the payment or
collection of taxes of Holdings or any of its Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods of
Holdings or any of its Subsidiaries not to be subject to the normally applicable
statute of limitations.
7.21 Scheduled Existing Indebtedness. Schedule IV sets forth a true
and complete list of all Indebtedness of Holdings and its Subsidiaries as of the
Restatement Effective Date and which is to remain outstanding after giving
effect to the Transaction and the incurrence of Loans on such date (exclusive of
(i) Indebtedness pursuant to this Agreement and the other Credit Documents, (ii)
Indebtedness pursuant to the Existing Senior Notes Documents and the
Intermediate Holdco Senior Notes Documents, (iii) intercompany Indebtedness
pursuant to the Intercompany Distribution Transactions, (iv) Indebtedness of
Holdings and/or any of its Subsidiaries of the types described in clauses
(viii), (xiii) and (xviii) of Section 9.04, (v) Synthetic Lease obligations
arising under the lease entered into in connection with the Sale-Leaseback
Transaction, and (vi) immaterial Contingent Obligations of Subsidiaries of the
U.S. Borrower that represent guaranties of obligations other than Indebtedness),
in each case showing the aggregate principal amount thereof (and the aggregate
amount of any undrawn commitments with respect thereto) and the name of the
respective borrower and any other entity which directly or indirectly guarantees
such debt. Part A of Schedule IV lists all Indebtedness as described in the
immediately preceding sentence which is owed to Persons other than Holdings or
any of its Subsidiaries (after giving effect to the consummation of the
Transaction) (with all such Indebtedness being herein called "Third Party
Scheduled Existing Indebtedness") and Part B of Schedule IV lists all
Indebtedness as described in the immediately preceding sentence which is owed to
Holdings and its Subsidiaries (after giving effect to the Transaction) (with all
of such Indebtedness being herein called "Intercompany Scheduled Existing
Indebtedness").
7.22 Insurance. Set forth on Schedule VIII hereto is a true, correct
and complete summary of all insurance maintained by Holdings and its
Subsidiaries on and as of the Restatement Effective Date, with the amounts
insured (and any deductibles) set forth therein.
7.23 [Reserved].
7.24 Transaction. At the time of consummation thereof, each element of
the Transaction shall have been consummated in all material respects in
accordance with the terms of the relevant Documents therefor and all applicable
laws. At the time of consummation thereof, all consents and approvals of, and
filings and registrations with, and all other actions in respect of, all
governmental agencies, authorities or instrumentalities required in order to
make or consummate each element of the Transaction in accordance with the terms
of the relevant Documents therefor and all applicable laws have been obtained,
given, filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained). Additionally, there
does not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon any element of the Transaction, the occurrence
of any Credit Event, or the performance by Holdings or any of its Subsidiaries
of their respective obligations under the Documents and in accordance with all
applicable laws.
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7.25 Special Purpose Corporations. (a) [Reserved].
(b) Holdings has no significant assets (other than (w) the Equity
Interests of Intermediate Holdco, (x) after the issuance thereof, the Equity
Interests of each of the Unrestricted Wellbeing Joint Ventures, (y) Intercompany
Notes evidencing intercompany loans permitted to be made by Holdings pursuant to
Section 9.05, and (z) immaterial assets used for the performance of those
activities permitted to be performed by Holdings pursuant to Section 9.01(b)) or
liabilities (other than under this Agreement and the other Documents to which it
is a party (including, on and after the execution and delivery thereof, the
Holdings Senior Notes Documents), those liabilities permitted to be incurred by
Holdings pursuant to Section 9.01(b) and, as and when issued from time to time
in accordance with the terms of this Agreement, under Shareholder Subordinated
Notes).
(c) The Bermuda Partnership has no significant assets (other than
Equity Interests of its Subsidiaries and the immaterial assets used for the
performance of those activities permitted to be performed by it pursuant to
Section 9.01(c)) or liabilities (other than under this Agreement and the other
Credit Documents to which it is a party and those liabilities permitted to be
incurred by it pursuant to Section 9.01(c)); provided that notwithstanding the
foregoing, the Bermuda Partnership shall be permitted to (i) provide treasury,
accounting, logistic and other administrative support services to its Affiliates
on an arm's length basis and hold and retain cash earned in connection with the
provision of such services and (ii) receive and hold additional cash and Cash
Equivalents from its Subsidiaries and/or Affiliates, so long as, in the case of
this clause (ii), same are promptly (and in any event within one Business Day of
receipt thereof) loaned, distributed and/or contributed, subject to Section
9.01(d), to its Subsidiaries and/or Affiliates in accordance with the
requirements of Section 9.05 of this Agreement.
(d) Intermediate Holdco has no significant assets (other than the
capital stock of the U.S. Borrower and Corporate Holdco, Intercompany Notes
evidencing intercompany loans permitted to be made by Intermediate Holdco
pursuant to Section 9.05 and immaterial assets used for the performance of those
activities permitted to be performed by Intermediate Holdco pursuant to Section
9.01(j)) or liabilities (other than under this Agreement and the other Documents
to which it is a party (including the Intermediate Holdco Senior Notes
Documents) and those liabilities permitted to be incurred by Intermediate Holdco
pursuant to Section 9.01(j)).
(e) Corporate Holdco has no significant assets (other than immaterial
assets used for the performance of those activities permitted to be performed by
Corporate Holdco pursuant to Section 9.01(k)) or liabilities (other than under
this Agreement and the other Documents to which it is a party (including the
Intermediate Holdco Senior Notes Documents) and those liabilities permitted to
be incurred by Corporate Holdco pursuant to Section 9.01(k)).
7.26 Subordination. (a) The subordination provisions contained in the
Existing Senior Notes Documents and, on and after the execution and delivery
thereof, the Permitted Senior Notes Documents and the Permitted Refinancing
Senior Notes Documents are enforceable against (i) the U.S. Subsidiary
Guarantors party thereto, (ii) in the case of any Permitted Senior Notes
Document or Permitted Refinancing Senior Notes Document providing for
subordination of the U.S. Borrower's obligations thereunder, the U.S. Borrower
and (iii) the holders of the Existing Senior Notes, the Permitted Senior Notes
or the Permitted Refinancing Senior Notes, as the case may be. All Guaranteed
Obligations (as defined in the U.S. Subsidiaries Guaranty) of the U.S.
Subsidiary Guarantors and, in the case of any Permitted Senior Notes Document or
Permitted Refinancing Senior Notes Document providing for subordination of the
U.S. Borrower's obligations thereunder, all Obligations of the Borrower under
the Credit Documents to which it is a party, are within the definitions of
"Guarantor Senior Debt" and "Designated Guarantor Senior Debt" or "Senior Debt"
and "Designated Senior Debt", as applicable, included in such subordination
provisions.
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(b) On and after the execution and delivery of the Shareholder
Subordinated Notes, the subordination provisions contained therein will be
enforceable against Holdings and the holders of the Shareholder Subordinated
Notes, and all Obligations of Holdings hereunder and under the other Credit
Documents to which it is a party are within the definitions of "Senior Debt"
included in such subordination provisions.
SECTION 8. Affirmative Covenants. Each Credit Agreement Party hereby
covenants and agrees that as of the Restatement Effective Date and thereafter
for so long as this Agreement is in effect and until the Total Commitment and
all Letters of Credit and Bank Guaranties have been terminated, and the Loans,
Notes, Unpaid Drawings and Unreimbursed Payments, together with interest, Fees
and all other Obligations (other than any indemnities described in Section 13.13
which are not then due and payable) incurred hereunder, are paid in full:
8.01 Information Covenants. Holdings or the U.S. Borrower will
furnish, or will cause to be furnished, to the Administrative Agent (who shall
furnish to each Lender):
(a) Quarterly Financial Statements. Within 3 Business Days following
the 45th day after the close of the first three quarterly accounting periods in
each Fiscal Year of the U.S. Borrower, (i) (x) the consolidated balance sheet of
the U.S. Borrower and its Consolidated Subsidiaries as at the end of such
quarterly accounting period and the related consolidated statements of income
and of cash flows for such quarterly accounting period and for the elapsed
portion of the Fiscal Year ended with the last day of such quarterly accounting
period, in each case setting forth comparative figures for the corresponding
quarterly accounting period in the prior Fiscal Year and the budgeted figures
for such quarterly period as set forth in the respective financial projections
theretofore delivered pursuant to Section 8.01(c), (y) the consolidated balance
sheet of each Business Segment as at the end of such quarterly accounting period
and the related consolidated statement of income of such Business Segment for
such quarterly accounting period and for the elapsed portion of the Fiscal Year
ended with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the corresponding quarterly accounting
period in the prior Fiscal Year, and (z) the consolidated balance sheets of the
U.S. Xxxx Group and the Non-U.S. Xxxx Group as at the end of such quarterly
accounting period and the related consolidated statements of income of each such
group for such quarterly accounting period and for the elapsed portion of the
Fiscal Year ended with the last day of such quarterly accounting period, all of
the foregoing of which shall be in reasonable detail and, in the case of the
financial statements described in subclause (x) above, be certified by the
senior financial officer or other Authorized Officer of Holdings or the U.S.
Borrower that they fairly present in all material respects in accordance with
U.S. GAAP the financial condition of the U.S. Borrower and its Consolidated
Subsidiaries as of the dates indicated and the results of their operations
and/or changes in their cash flows for the periods indicated, subject to normal
year-end audit adjustments and the absence of footnotes and (ii) management's
discussion and analysis of the important operational and financial developments
during such quarterly accounting period; provided, however, that for any
quarterly accounting period for which the U.S. Borrower has filed a Form 10-Q
Report with the SEC and the Chief Financial Officer or other Authorized Officer
of Holdings has delivered to the Administrative Agent a certificate certifying
that the Parent Business Condition has been satisfied for such quarterly
accounting period, the furnishing of (I) the U.S. Borrower's Form 10-Q Report
filed with the SEC for such quarterly accounting period and (II) the
consolidated balance sheet of each Business Segment as at the end of such
quarterly accounting period and the related consolidated statement of income of
such Business Segment for such quarterly accounting period, shall satisfy the
requirements of subclause (i) and (ii) of this Section 8.01(a).
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(b) Annual Financial Statements. Within 3 Business Days following the
90th day after the close of each Fiscal Year of the U.S. Borrower, (i) (x) the
consolidated balance sheet of the U.S. Borrower and its Consolidated
Subsidiaries as at the end of such Fiscal Year and the related consolidated
statements of income and stockholders' equity and of cash flows for such Fiscal
Year and setting forth comparative consolidated figures for the preceding Fiscal
Year and comparable budgeted figures for such Fiscal Year as set forth in the
respective financial projections delivered pursuant to Section 8.01(c), (y) the
consolidated balance sheet of each Business Segment as at the end of such Fiscal
Year and the related consolidated statements of income of each Business Segment
for such Fiscal Year and setting forth comparative consolidated figures for the
preceding Fiscal Year and (z) the consolidated balance sheet of each of the U.S.
Xxxx Group and the Non-U.S. Xxxx Group as at the end of such Fiscal Year and the
related consolidated statements of income of each such group for such Fiscal
Year and setting forth comparative consolidated figures for the preceding Fiscal
Year, (ii) in the case of the financial statements referred to in subclause
(i)(x) above (except for such comparable budgeted figures), together with a
certification by Deloitte & Touche LLP or such other independent certified
public accountants of recognized national standing as shall be acceptable to the
Administrative Agent, in each case to the effect that (I) such statements fairly
present in all material respects the financial condition of the U.S. Borrower
and its Consolidated Subsidiaries as of the dates indicated and the results of
their operations and changes in financial position for the periods indicated in
conformity with U.S. GAAP applied on a basis consistent with prior years and
(II) in the course of its regular audit of the business of the U.S. Borrower and
its Consolidated Subsidiaries, which audit was conducted in accordance with U.S.
GAAP (and made without qualification or expression of uncertainty, in each case
as to going concern), no Default or Event of Default which has occurred and is
continuing has come to their attention or, if such a Default or an Event of
Default has come to their attention, a statement as to the nature thereof, and
(iii) management's discussion and analysis of the important operational and
financial developments during such Fiscal Year; provided, however, that for any
Fiscal Year for which the U.S. Borrower has filed a Form 10-K Report with the
SEC and the Chief Financial Officer or other Authorized Officer of Holdings has
delivered to the Administrative Agent a certificate (x) certifying that the
Parent Business Condition has been satisfied during such Fiscal Year and (y)
setting forth the aggregate amount of Dividends paid to Intermediate Holdco by
the U.S. Borrower during such Fiscal Year pursuant to Sections 9.06(iii), (iv)
and (v), the furnishing of (I) the U.S. Borrower's Form 10-K Report filed with
the SEC for such Fiscal Year and (II) the consolidated balance sheet of each
Business Segment as at the end of such Fiscal Year and the related consolidated
statement of income of such Business Segment for such Fiscal Year, shall satisfy
the requirements of subclause (i) and (iii) of this Section 8.01(b).
(c) Financial Projections, etc. Not more than 60 days after the
commencement of each Fiscal Year of the U.S. Borrower, financial projections in
form reasonably satisfactory to the Administrative Agent (including projected
statements of income, sources and uses of cash and balance sheets, taking into
account any Significant Asset Sales intended to be consummated during such
Fiscal Year) prepared by the U.S. Borrower (i) for each of the four Fiscal
Quarters of such Fiscal Year prepared in detail and (ii) for each of the
immediately succeeding two Fiscal Years prepared in summary form, in each case,
on a consolidated basis, for the U.S. Borrower and its Consolidated Subsidiaries
and setting forth, with appropriate discussion, the principal assumptions upon
which such financial projections are based.
(d) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a) and (b), a certificate of
the Chief Financial Officer or other Authorized Officer of the U.S. Borrower to
the effect that no Default or Event of Default exists or, if any Default or
Event of Default does exist, specifying the nature and extent thereof, which
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certificate shall (i) if delivered in connection with the financial statements
required by Section 8.01(a) or (b), set forth (x) in reasonable detail the
calculations required to establish whether Holdings and its Subsidiaries were in
compliance with the provisions of Sections 3.03(e) and (f), 4.02, 9.02, 9.04,
9.05, 9.06 and 9.08 through and including 9.10 as at the end of such Fiscal
Quarter or Fiscal Year, as the case may be, and (y) the calculation of the
Leverage Ratio as at the last day of the respective Fiscal Quarter or Fiscal
Year of the U.S. Borrower, as the case may be, (ii) if delivered with the
financial statements required by Section 8.01(b), set forth in reasonable detail
(x) the amount of (and the calculations required to establish the amount of)
Excess Cash Flow and Adjusted Excess Cash Flow for the respective Excess Cash
Flow Payment Period and (y) the amount required to be paid pursuant to Section
4.02(f) on the relevant Excess Cash Payment Date and (iii) certify that there
have been no changes to Annexes A through G of the U.S. Security Agreement,
Annexes A through G of the U.S. Pledge Agreement and the annexes or schedules to
any other Security Document, in each case since the Restatement Effective Date
or, if later, since the date of the most recent certificate delivered pursuant
to this Section 8.01(d), or if there have been any such changes, a list in
reasonable detail of such changes (but, in each case with respect to this clause
(iii), only to the extent that such changes are required to be reported to the
Collateral Agent pursuant to the terms of such Security Documents) and whether
the Credit Agreement Parties and the other Credit Parties have otherwise taken
all actions required to be taken by them pursuant to such Security Documents in
connection with any such changes.
(e) Notice of Default or Litigation. Promptly, and in any event within
five Business Days after a Senior Officer obtains knowledge thereof, notice of
(i) the occurrence of any event which constitutes a Default or an Event of
Default, which notice shall specify the nature and period of existence thereof
and what action Holdings or such Subsidiary proposes to take with respect
thereto, (ii) any litigation or proceeding pending or threatened (x) against
Holdings or any of its Subsidiaries which has had, or could reasonably be
expected to have, a Material Adverse Effect or (y) with respect to any Existing
Senior Notes Document, any Intermediate Holdco Senior Notes Document or, on and
after the execution and delivery thereof, any Holdings Senior Notes Document,
any Permitted Senior Notes Document or any Permitted Refinancing Senior Notes
Document, (iii) any Material Governmental Investigation pending or threatened
against Holdings or any of its Subsidiaries and (iv) any other event, change or
circumstance which has had, or could reasonably be expected to have, a Material
Adverse Effect.
(f) Management Letters. Promptly upon receipt thereof, a copy of any
"management letter" submitted to Holdings or any of its Subsidiaries by its
independent accountants in connection with any annual, interim or special audit
made by them of the financial statements of Holdings or any of its Subsidiaries
and management's responses thereto.
(g) Environmental Matters. Within five Business Days after a Senior
Officer obtains knowledge of any of the following (but only to the extent that
any of the following, either individually or in the aggregate, has had, or could
reasonably be expected to have, (a) a Material Adverse Effect or (b) a remedial
cost to Holdings or any of its Subsidiaries in excess of $15,000,000), written
notice of:
(i) any pending or threatened Environmental Claim against Holdings or
any of its Subsidiaries or any Real Property owned, leased or operated by
Holdings or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries that (x) results in
noncompliance by
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Holdings or any of its Subsidiaries with any applicable Environmental Law
or (y) could reasonably be anticipated to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries or any such
Real Property;
(iii) any condition or occurrence on any Real Property owned, leased
or operated by Holdings or any of its Subsidiaries that could reasonably be
anticipated to cause such Real Property to be subject to any restrictions
on the ownership, lease, occupancy, use or transferability by Holdings or
such Subsidiary, as the case may be, of its interest in such Real Property
under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned, leased or operated by Holdings or any of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and Holdings'
response or proposed response thereto. In addition, the U.S Borrower agrees to
provide the Lenders (by delivery to the Administrative Agent) with copies of
such detailed reports relating to any of the matters set forth in clauses
(i)-(iv) above as may reasonably be requested by the Administrative Agent or any
Lender.
(h) Reports. Within 3 Business Days following transmission thereof,
copies of any filings and registrations with, and reports to, the SEC by
Holdings or any of its Subsidiaries and copies of all financial statements,
proxy statements, notices and reports as Holdings or any of its Subsidiaries
shall send generally to the holders of Indebtedness or (following the public
issuance of Equity Interests of Holdings or any of its Subsidiaries) their
Equity Interests in their capacity as such holders (to the extent not
theretofore delivered to the Lenders pursuant to this Agreement).
(i) New Subsidiaries; etc. Within 3 Business Days after the 45th day
following the close of each of the first three Fiscal Quarters of each Fiscal
Year of Holdings and within 3 Business Days after the 45th day following the
close of each Fiscal Year of Holdings, (w) a list showing each Material Foreign
Subsidiary of Holdings which has not theretofore become party to the Foreign
Subsidiaries Guaranty or any Security Document, (x) a list showing each
Subsidiary of Holdings established, created or acquired during the respective
Fiscal Quarter or Fiscal Year (and specifying whether such Subsidiary is a
Material Foreign Subsidiary), and each Subsidiary which has had any Equity
Interests transferred during the respective Fiscal Quarter or Fiscal Year (in
each case describing in reasonable detail the respective transfer of Equity
Interests), in each case naming the direct owner of all Equity Interests in such
Subsidiary and describing such Equity Interests in reasonable detail, and
certifying that each such Subsidiary, and each Credit Party which owns any
Equity Interests therein, has taken all actions, if any, required pursuant to
Sections 8.11 and 9.14 and the relevant Security Documents and certifying
Holdings' compliance with the provisions of Section 8.18, (y) a list of each
Domestic Subsidiary of Holdings, if any, which has not been transferred to
Holdings or one or more Qualified U.S. Obligors pursuant to the requirements of
Section 8.18(a) (by virtue of the first proviso to the second sentence of said
Section 8.18(a)), and specifically stating the reasons therefor, and (z) a list
of each Foreign Subsidiary organized under any Qualified Non-U.S. Jurisdiction,
if any, which has not been transferred to one or more Qualified Non-U.S.
Obligors pursuant to the requirements of Section 8.18(b) (by reason of the first
proviso to the first sentence of said Section 8.18(b)), and specifically stating
the reasons therefor.
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(j) Annual Meetings with Lenders. At the request of the Administrative
Agent, Holdings shall, within 120 days after the close of each Fiscal Year of
the U.S. Borrower, hold a meeting (which may be by conference call or
teleconference), at a time and place selected by Holdings and reasonably
acceptable to the Administrative Agent, with all of the Lenders that choose to
participate, to review the financial results of the previous Fiscal Year and the
financial condition of the U.S. Borrower and its Subsidiaries and the budgets
presented for the current Fiscal Year of the U.S. Borrower and its Subsidiaries.
(k) Notice of Commitment Reductions and Mandatory Repayments. On or
prior to the date of any reduction to Commitments or any mandatory repayment of
outstanding Term Loans pursuant to Sections 4.02(c) through (f), inclusive,
Holdings or the U.S. Borrower shall provide written notice of the amount of the
respective reduction or repayment, as the case may be, to the Commitments or the
outstanding Term Loans, as applicable, and the calculations therefor (in
reasonable detail).
(l) Compliance with Section 13.19. On or prior to the 90th day after
the Restatement Effective Date, an appropriate officer in the legal department
of Holdings or the U.S. Borrower shall provide a written certification of
compliance with all post-closing requirements set forth in Section 13.19
(including those actions required pursuant to Schedule XIV), specifically
listing any items where such compliance has not yet occurred (and, with respect
to any such items where compliance has not yet occurred, stating the time frame
in which it is expected that such actions shall be taken and the reasons such
actions have not been completed). Without excusing any failure to comply with
Section 13.19, if the certification provided above does not establish complete
compliance with all requirements of Section 13.19 (and Schedule XIV), Holdings
or the U.S. Borrower shall cause an appropriate officer in its legal department
to furnish monthly updates thereafter, in each case showing in reasonable detail
all compliances (and any non-compliances) with the requirements of Section
13.19. Such certifications shall no longer be required after the date upon which
Holdings or the U.S. Borrower certifies that all actions required be taken
pursuant to Section 13.19 (and Schedule XIV) have been completed.
(m) Hedging Agreements. At the time of the delivery of the financial
statements provided for in Section 8.01(b), a schedule of all Interest Rate
Protection Agreements and Other Hedging Agreements entered into by Holdings or
any of its Subsidiaries with any Lender and/or any of its affiliates.
(n) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to Holdings or its Subsidiaries
as the Administrative Agent or any Lender may reasonably request; provided that
the tax opinion delivered by Deloitte & Touche LLP pursuant to Section 5.20(f)
of the Original Credit Agreement shall only be made available for review by any
Lender requesting same at the headquarters of Holdings.
8.02 Books, Records and Inspections. Each Credit Agreement Party will,
and will cause each of its Subsidiaries to, keep proper books of record and
accounts in which full, true and correct entries which permit the preparation of
financial statements in accordance with U.S. GAAP and which conform to all
requirements of law, shall be made of all dealings and transactions in relation
to its business and activities. Each Credit Agreement Party will, and will cause
each of its Subsidiaries to, permit officers and designated representatives of
any Agent or, if any Specified Default or any Event of Default then exists, any
Lender, to visit and inspect, under guidance of officers of such Credit
Agreement Party or such Subsidiary, any of the properties of such Credit
Agreement Party or such Subsidiary, and to examine the books of account of such
Credit Agreement Party or such Subsidiary and discuss the affairs, finances and
accounts of such Credit Agreement Party or such Subsidiary with, and be advised
as to the
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same by, its and their officers and independent accountants, all upon reasonable
prior notice and at such reasonable times and intervals and to such reasonable
extent as such Agent or such Lender may reasonably request.
8.03 Insurance. (a) Each Credit Agreement Party will, and will cause
each of its Subsidiaries to, (i) maintain, with financially sound and reputable
insurance companies, insurance on all its property in at least such amounts and
against at least such risks as is consistent and in accordance with industry
practice and (ii) furnish to the Administrative Agent, upon request by the
Administrative Agent or any Lender, full information as to the insurance
carried. Such insurance shall in any event include physical damage insurance on
all real and personal property (whether now owned or hereafter acquired) on an
all risk basis and business interruption insurance.
(b) Each Credit Agreement Party will, and will cause each of its
Subsidiaries to, at all times keep the respective property of such Credit
Agreement Party and its Subsidiaries insured in favor of the Collateral Agent,
and all policies or certificates with respect to such insurance (and any other
insurance maintained by, or on behalf of, any Credit Agreement Party or any of
its Subsidiaries) (i) shall be endorsed to the Collateral Agent's satisfaction
for the benefit of the Collateral Agent (including, without limitation, by
naming the Collateral Agent as certificate holder, mortgagee and loss payee with
respect to real property, certificate holder and loss payee with respect to
personal property, additional insured with respect to general liability and
umbrella liability coverage and certificate holder with respect to workers'
compensation insurance), (ii) shall state that such insurance policies shall not
be canceled or materially changed without at least 30 days' prior written notice
thereof by the respective insurer to the Collateral Agent and (iii) shall be
deposited with the Collateral Agent.
(c) If any Credit Agreement Party or any of its Subsidiaries shall
fail to maintain all insurance in accordance with this Section 8.03, or if any
Credit Agreement Party or any of its Subsidiaries shall fail to so name the
Collateral Agent as an additional insured, mortgagee or loss payee, as the case
may be, or so deposit all certificates with respect thereto, the Administrative
Agent and/or the Collateral Agent shall have the right (but shall be under no
obligation), upon ten Business Days' notice to Holdings or the U.S. Borrower, to
procure such insurance, and the Credit Agreement Parties agree jointly and
severally to reimburse the Administrative Agent or the Collateral Agent, as the
case may be, for all costs and expenses of procuring such insurance.
8.04 Payment of Taxes. Each Credit Agreement Party will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits, or upon any properties belonging to it, in each case on a
timely basis, and all lawful claims which, if unpaid, might become a lien or
charge upon any properties of the Credit Agreement Parties or any of their
Subsidiaries not otherwise permitted under Section 9.03(i); provided that no
Credit Agreement Party or any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with U.S. GAAP.
8.05 Existence; Franchises. Each Credit Agreement Party will do, and
will cause each of its Subsidiaries to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence and its
material rights, franchises, authorities to do business, licenses,
certifications, accreditations and patents; provided, however, that nothing in
this Section 8.05 shall prevent (i) sales of assets and other transactions by
Holdings or any of its Subsidiaries in accordance with Section 9.02, (ii) the
withdrawal by Holdings or any of its Subsidiaries of its qualification as a
foreign corporation, partnership or limited liability company, as the case may
be, in any jurisdiction where such withdrawal could not, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect or
(iii) the dissolution of the Excluded Domestic Subsidiary or any Excluded
Foreign Subsidiary
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and; provided further, that this Section 8.05 shall not apply to any Foreign
Credit Party organized under the laws of Bermuda.
8.06 Compliance with Statutes; etc. (a) Each Credit Agreement Party
will, and will cause each of its Subsidiaries to, comply with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed by,
all governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except for such noncompliances as,
individually or in the aggregate, have not had, and could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) Within 5 Business Days after each Credit Agreement Party is
required by applicable law, statute, rule or regulation, such Credit Agreement
Party shall file (or cause to be filed) with the SEC all reports, financial
information and certifications required by applicable law, statute, rule or
regulation.
8.07 Compliance with Environmental Laws. (a) (i) Each Credit Agreement
Party will comply, and will cause each of its Subsidiaries to comply, in all
material respects with all Environmental Laws applicable to the ownership or use
of its Real Property and vessels now or hereafter owned, leased or operated by
such Credit Agreement Party or any of its Subsidiaries, will promptly pay or
cause to be paid all costs and expenses incurred in connection with such
compliance, and will keep or cause to be kept all such Real Property and vessels
free and clear of any Liens imposed pursuant to such Environmental Laws and (ii)
neither any Credit Agreement Party nor any of its Subsidiaries will generate,
use, treat, store, Release or dispose of, or permit the generation, use,
treatment, storage, Release or disposal of, Hazardous Materials on any Real
Property or vessels owned, leased or operated by such Credit Agreement Party or
any of its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, except as required in the ordinary
course of business of Holdings and its Subsidiaries as conducted on the Original
Effective Date and as allowed by (and in compliance with) applicable law or
regulation and except for any failures to comply with the requirements specified
in clause (i) or (ii) above, which, either individually or in the aggregate,
have not had, and could not reasonably be expected to have, a Material Adverse
Effect. If Holdings or any of its Subsidiaries, or any tenant or occupant of any
Real Property or vessel owned, leased or operated by Holdings or any of its
Subsidiaries, causes or permits any intentional or unintentional act or omission
resulting in the presence or Release of any Hazardous Material (except in
compliance with applicable Environmental Laws), each Credit Agreement Party
agrees to undertake, and/or to cause any of its Subsidiaries, tenants or
occupants to undertake, at their sole expense, any clean up, removal, remedial
or other action required pursuant to Environmental Laws to remove and clean up
any Hazardous Materials from any Real Property or vessel except where the
failure to do so has not had, and could not reasonably be expected to have, a
Material Adverse Effect.
(b) At the written request of the Administrative Agent or the Required
Lenders, which request shall specify in reasonable detail the basis therefor
(which may not simply be a desire for periodic review), at any time and from
time to time, the Credit Agreement Parties will provide, at their sole cost and
expense, an environmental site assessment report concerning any Real Property
now or hereafter owned, leased or operated by Holdings or any of its
Subsidiaries, prepared by an environmental consulting firm reasonably approved
by the Administrative Agent, addressing the matters which gave rise to such
request and estimating the potential costs of any removal, remedial or other
corrective action in connection with any such matter. If a Credit Agreement
Party fails to provide the same within 45 days after such request was made, the
Administrative Agent may order the same, and the Credit Agreement Parties shall
grant and hereby do grant, to the Administrative Agent and the Lenders and their
agents, access to such Real Property and specifically grant the Administrative
Agent and the Lenders and their
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agents an irrevocable non-exclusive license, subject to the right of tenants, to
undertake such an assessment, all at the Credit Agreement Parties' joint and
several expense.
8.08 ERISA. As soon as possible and, in any event, within twenty (20)
Business Days after Holdings, any Subsidiary of Holdings or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following, Holdings
will deliver to the Administrative Agent written notice of the chief financial
officer, vice president of human resources or other Authorized Officer of the
U.S. Borrower setting forth, to the extent known, and in reasonable detail, such
occurrence and the action, if any, that Holdings, such Subsidiary or such ERISA
Affiliate is required or proposes to take, together with any notices required or
proposed to be given to or filed by Holdings, such Subsidiary, the Plan
administrator or such ERISA Affiliate to or with, the PBGC or any other
governmental agency, or a Plan or Multiemployer Plan participant, and any
notices received by Holdings, such Subsidiary or ERISA Affiliate from the PBGC
or other governmental agency or a Plan or Multiemployer Plan participant or the
Plan administrator with respect thereto: that a Reportable Event has occurred
(except to the extent that Holdings has previously delivered to the
Administrative Agent a notice (if any) concerning such event pursuant to the
next clause hereof); that a contributing sponsor (as defined in Section
4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject to the
advance reporting requirement of PBGC Regulation Section 4043.61 (without regard
to subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
..64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency, within the meaning of Section 412 of the Code or
Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
that any contribution required to be made with respect to a Plan or
Multiemployer Plan or Foreign Pension Plan has been made more than sixty (60)
days late; that a Plan or Multiemployer Plan has been or may be involuntarily
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan or Multiemployer Plan has a material Unfunded Current
Liability; that involuntary proceedings may be or have been instituted to
terminate or appoint a trustee to administer a Plan which is subject to Title IV
of ERISA; that an involuntary proceeding has been instituted pursuant to Section
515 of ERISA to collect a delinquent contribution to a Plan or Multiemployer
Plan; that Holdings, any Subsidiary of Holdings or any ERISA Affiliate will or
may incur any material liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal from a
Plan or Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan or Multiemployer Plan under Section
401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of
ERISA or with respect to a group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or
that Holdings or any Subsidiary of Holdings may incur any liability pursuant to
any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any Plan or any Foreign Pension Plan in
addition to the liability that existed on the Restatement Effective Date
pursuant to any such plan or plans by an amount that would be material to
Holdings or any Subsidiary of Holdings. To the extent that the financial
statements set forth with particularity a liability for which notice would
otherwise be required to be given hereunder, a separate notice thereof shall not
be required hereunder. At the request of the Administrative Agent, Holdings and
the U.S. Borrower will deliver to the Administrative Agent copies of any
records, documents or other information that must be furnished to the PBGC with
respect to any Plan pursuant to Section 4010 of ERISA. Holdings and the U.S.
Borrower will also deliver upon written request to the Administrative Agent a
complete copy of the annual report (on Internal Revenue Service Form
5500-series) of each Plan (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service. In addition to any notices delivered to the
Administrative Agent pursuant to the first
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sentence hereof, copies of annual reports and any records, documents or other
information required to be furnished to the PBGC or any other government agency,
and any material notices received by Holdings, any Subsidiary of Holdings or any
ERISA Affiliate with respect to any Plan or Foreign Pension Plan or received
from any government agency or plan administrator or sponsor or trustee with
respect to any Multiemployer Plan, shall, upon request of the Administrative
Agent, be delivered to the Administrative Agent no later than twenty (20)
Business Days after the date of such request. Holdings and each of its
applicable Subsidiaries shall ensure that all Foreign Pension Plans administered
by it or into which it makes payments obtain or retain (as applicable)
registered status under and as required by applicable law and is administered in
a timely manner in all respects in compliance with all applicable laws except
where the failure to do any of the foregoing has not had, and could not
reasonably be expected to have, a Material Adverse Effect.
8.09 Good Repair. Each Credit Agreement Party will, and will cause
each of its Subsidiaries to, ensure that its material properties and equipment
required to be used in its business are kept in reasonably good repair, working
order and condition, ordinary wear and tear excepted, and that from time to time
there are made in such properties and equipment all needful and proper repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner useful or customary for companies in
similar businesses.
8.10 End of Fiscal Years; Fiscal Quarters. Each Credit Agreement Party
will cause (i) each of its, and each of its Subsidiaries', fiscal years to end
on the Saturday closest to December 31 of each calendar year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on the last day of
each period described in the definition of "Fiscal Quarter"; provided that
Foreign Subsidiaries of Holdings (other than the Bermuda Borrower and the
Bermuda Partnership) shall not be required to maintain the fiscal year and
fiscal quarter ends described above if it is not practicable for such Foreign
Subsidiary to maintain same as a result of foreign statutes, rules or law
applicable to such Foreign Subsidiary.
8.11 Additional Security; Additional Guaranties; Actions with Respect
to Non-Guarantor Subsidiaries; Further Assurances. (a) Each Credit Agreement
Party will, and will cause its Subsidiaries which are Credit Agreement Parties
or Subsidiary Guarantors to, grant to the Collateral Agent security interests
and mortgages (each, an "Additional Mortgage") in: (i) each vessel acquired by
such Person after the Initial Borrowing Date and having a value (for such
purpose, using the initial purchase price paid by such Person for such vessel)
in excess of $5,000,000, (ii) such fee-owned (or the equivalent) Real Property
acquired by such Person after the Initial Borrowing Date and having a value (for
such purpose, using the initial purchase price paid by such Person for such Real
Property) in excess of $10,000,000 which is not covered by the original
Mortgages or Foreign Security Agreements, as appropriate, and (iii) such
Leasehold Properties to which a respective landlord has granted its consent to
the delivery of a Mortgage over such Leasehold Properties (each such Real
Property referred to in preceding clause (ii) and this clause (iii), an
"Additional Mortgaged Property"); provided, however that if the aggregate value
of all Second-Tier Material Real Properties (for such purpose, using the initial
purchase price paid by such Person for the respective Second-Tier Material Real
Property) acquired by such Persons after the Initial Borrowing Date which are
not then covered by Mortgages or Foreign Security Agreements, as appropriate,
equals or exceeds $20,000,000, each Credit Agreement Party and each Subsidiary
Guarantor shall grant to the Collateral Agent security interests and mortgages
in all such Second-Tier Material Real Properties owned by any such Person which
are not then covered by Mortgages or Foreign Security Agreements, as appropriate
(and not just those required to reduce the aggregate value of all Second-Tier
Material Real Properties (determined as provided above) at such time below
$20,000,000). All such Additional Mortgages shall be granted pursuant to
documentation substantially in the form of a relevant existing Mortgage (or, in
the case of Additional Mortgaged Properties located in a jurisdiction outside
the United States, the relevant Foreign Security Agreement
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covering Real Property located in such jurisdiction (if any) delivered to the
Administrative Agent on the Initial Borrowing Date) or in such other form as is
reasonably satisfactory to the Administrative Agent. All such Additional
Mortgages shall constitute valid and enforceable first priority perfected Liens,
superior to and prior to the rights of all third Persons and subject to no other
Liens (except as are permitted by Section 9.03), in favor of the Collateral
Agent (or such other trustee or sub-agent as may be required or desired under
local law). The Additional Mortgages or instruments related thereto shall be
duly recorded or filed in such manner and in such places as are required by law
to create, maintain, effect, perfect, preserve, maintain and protect the Liens
in favor of the Collateral Agent required to be granted pursuant to the
Additional Mortgages and all taxes, fees and other charges payable in connection
therewith shall be paid in full. Notwithstanding any "after-acquired property"
covenant contained in any Foreign Security Document requiring the grant of a
mortgage in "after-acquired" Real Property of any Foreign Credit Party in favor
of the Collateral Agent, no Foreign Credit Party shall be required to grant to
the Collateral Agent an Additional Mortgage in any Real Property of such Foreign
Credit Party acquired after the Initial Borrowing Date as otherwise required by
the respective Foreign Security Document unless and until the grant of such
Additional Mortgage would otherwise be required pursuant to the terms of this
Section 8.11(a).
(b) Each Credit Agreement Party will, and will cause each of its
Subsidiaries to, at its own expense, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, confirmatory conveyances,
financing statements, transfer endorsements, confirmatory powers of attorney,
certificates, reports and other assurances or confirmatory instruments and take
such further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require pursuant to this
Section 8.11. Furthermore, each Credit Agreement Party will cause to be
delivered to the Collateral Agent such opinions of counsel and other related
documents as may be reasonably requested by the Collateral Agent to assure
itself that this Section 8.11 has been complied with.
(c) Subject to the provisions of following clauses (g) and (h), if (w)
at any time any Domestic Subsidiary of Holdings is created, established or
acquired, such Subsidiary shall be required to execute and deliver counterparts
of the U.S. Subsidiaries Guaranty, the Intercompany Subordination Agreement and
such Security Documents as would have been entered into by the respective
Subsidiary if same had been a U.S. Subsidiary Guarantor under the Original
Credit Agreement on the Initial Borrowing Date, and in each case shall take all
action in connection therewith as would otherwise have been required to be taken
pursuant to Section 5 of the Original Credit Agreement if such Subsidiary had
been a U.S. Subsidiary Guarantor under the Original Credit Agreement on the
Initial Borrowing Date, (x) at any time any Subsidiary of Holdings organized
under the laws of any Qualified Non-U.S. Jurisdiction is created, established or
acquired, such Subsidiary shall be required to execute and deliver counterparts
of the Foreign Subsidiaries Guaranty, the Intercompany Subordination Agreement
and such Security Documents as would have been entered into by the respective
Subsidiary if same had been a Foreign Subsidiary Guarantor under the Original
Credit Agreement on the Initial Borrowing Date (determined in accordance with
the criteria described in Sections 5.15, 5.17 and 5.18(b) of the Original Credit
Agreement), and in each case shall take all action in connection therewith as
would otherwise have been required to be taken pursuant to Section 5 of the
Original Credit Agreement if such Subsidiary had been a Foreign Subsidiary
Guarantor under the Original Credit Agreement on the Initial Borrowing Date, (y)
at any time any Subsidiary of Holdings organized under the laws of any
Non-Qualified Jurisdiction in which a Foreign Subsidiary Guarantor under the
Original Credit Agreement was organized on the Initial Borrowing Date is
created, established or acquired, such Subsidiary shall be required to execute
and deliver counterparts of the Foreign Subsidiaries Guaranty and, in each case,
unless the Administrative Agent otherwise agrees based on advice of local
counsel, the Intercompany Subordination Agreement and such Security Documents as
would have been entered into by the respective Subsidiary if same had been a
Foreign Subsidiary Guarantor under the Original Credit Agreement organized under
the laws of such Non-
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Qualified Jurisdiction on the Initial Borrowing Date (determined in accordance
with the criteria described in Sections 5.15, 5.17 and 5.18(b) of the Original
Credit Agreement), and in each case shall take all action in connection
therewith as would otherwise have been required to be taken pursuant to Section
5 of the Original Credit Agreement if such Subsidiary had been a Foreign
Subsidiary Guarantor under the Original Credit Agreement organized under the
laws of such Non-Qualified Jurisdiction on the Initial Borrowing Date and (z) if
at any time after the Initial Borrowing Date any jurisdiction is added to the
list of Qualified Jurisdictions in accordance with the definition thereof
contained herein, then at the time of such designation each Foreign Subsidiary
of Holdings organized under the laws of such Qualified Jurisdiction (with such
exceptions as may be satisfactory to the Administrative Agent or the Required
Lenders) shall be required to become a Foreign Subsidiary Guarantor and take all
actions specified in preceding clause (x). Furthermore, subject to the
provisions of the following clause (h), the Administrative Agent or the Required
Lenders may at any time request that one or more Subsidiaries of Holdings
organized under the laws of one or more jurisdictions which are not Qualified
Jurisdictions become Foreign Subsidiary Guarantors, in which case the Credit
Agreement Parties shall cause each such Subsidiary which has been specifically
requested to become a Foreign Subsidiary Guarantor to take all actions as are
specified in clause (x) of the immediately preceding sentence, provided that no
Subsidiary of Holdings shall be required to take such actions if, and to the
extent that, based upon written advice of local counsel reasonably satisfactory
to the Administrative Agent, Holdings and/or such Subsidiary concludes that the
taking of such actions would violate the laws of the jurisdiction in which the
respective Subsidiary is organized, provided further, that if steps (such as
limiting the amount guaranteed) can be taken so that such violation would not
exist, then if requested by the Administrative Agent or the Required Lenders,
the respective Subsidiary shall enter into a modified Foreign Subsidiaries
Guaranty which provides, to the maximum extent permissible under applicable law,
as many of the benefits as are provided pursuant to the Foreign Subsidiaries
Guaranty executed and delivered on the Initial Borrowing Date as is possible.
(d) In addition to the requirements contained in the Pledge
Agreements, each Credit Agreement Party agrees to pledge and deliver, or cause
to be pledged and delivered, all of the Equity Interests owned by any Credit
Party of each new Unrestricted Subsidiary of Holdings established or created
(and each Subsidiary of Holdings which becomes an Unrestricted Subsidiary) after
the Initial Borrowing Date to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Pledge Agreements, provided that, subject to
the provisions of Section 8.12, in the case of any Foreign Unrestricted
Subsidiary that is a corporation (or treated as such for U.S. tax purposes)
which is owned by a U.S. Credit Party, not more than 65% of the total
outstanding voting Equity Interests of such Person shall be required to be
pledged in support of such U.S. Credit Party's obligations (x) as a Borrower
under the Credit Agreement (in the case of the U.S. Borrower) or (y) under its
Guaranty in respect of the Obligations of the U.S. Borrower (in the case of the
other U.S. Credit Parties).
(e) Following any request by the Administrative Agent or the Required
Lenders, Holdings or any of its Subsidiaries, shall, to the maximum extent
permitted by applicable law (but subject to the proviso to preceding clause (d),
to the extent applicable), (x) grant security interests in such of their
Property (other than Excluded Collateral) as may be requested by the
Administrative Agent or the Required Lenders, as the case may be, in which
perfected security interests do not already exist pursuant to the Security
Documents theretofore executed and delivered and, in connection therewith, the
Credit Agreement Parties shall, or shall cause the relevant Subsidiaries of
Holdings to, execute and deliver counterparts of (and thereby become parties to)
the applicable Security Documents and/or Additional Security Documents, in each
case in form and substance reasonably satisfactory to the Administrative Agent
and/or (y) with respect to pledges of Equity Interests of, or promissory notes
issued by, Persons described in Section 13.20, take such action (including,
without limitation, the execution of Additional Security Documents, the making
of filings, etc.) under the local law of the Person whose Equity Interests or
promissory notes are pledged as may be requested in order to create, preserve,
protect or perfect security interests in such Equity Interests and/or promissory
notes.
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(f) The security interests required to be granted pursuant to Sections
8.11(c), (d) and (e) shall be granted pursuant to the respective Security
Documents already executed and delivered by the Credit Parties (or other
security documentation substantially similar to such Security Documents or
otherwise reasonably satisfactory in form and substance to the Collateral Agent)
and shall constitute valid and enforceable first priority perfected security
interests prior to the rights of all third Persons and subject to no other Liens
(other than Permitted Lines). The Credit Agreement Parties shall (or shall cause
their respective Subsidiaries), (i) at their own expense, to (x) execute,
acknowledge and deliver, or cause the execution, acknowledgment and delivery of,
and thereafter register, file or record in any appropriate governmental office,
any document or instrument reasonably deemed by the Collateral Agent to be
necessary or desirable for the creation, perfection, maintenance, preservation
and protection of the Liens on its assets intended to be created pursuant to the
relevant Security Documents and (y) take all other actions reasonably requested
by the Collateral Agent (including, without limitation, the furnishing of legal
opinions) in connection with the granting of the security interests required
pursuant to Sections 8.11(c), (d) and (e) and (ii) pay in full all taxes, fees
and other charges payable in connection with the granting of the security
interests required pursuant to Sections 8.11(c), (d) and (e).
(g) Each Credit Agreement Party agrees that each action required above
by Section 8.11(a) or (b) shall be completed as soon as possible, but in no
event later than 90 days (or, in the case of actions relating to assets located
outside the United States, such greater number of days (not to exceed 120 days)
as the Administrative Agent shall agree to in its sole and absolute discretion
in any given case) after such action is requested to be taken by the
Administrative Agent or the Required Lenders. Each Credit Agreement Party
further agrees that (x) each action required above by Section 8.11(c), (d) and
(f) with respect to a newly formed, created or acquired Subsidiary, or with
respect to any Subsidiary which is located in a jurisdiction newly-designated as
a Qualified Jurisdiction or which becomes an Unrestricted Subsidiary, shall be
completed contemporaneously with the formation, creation or acquisition of such
Subsidiary, the date of the addition of the respective jurisdiction to the list
of Qualified Jurisdictions or the date such Subsidiary becomes an Unrestricted
Subsidiary, as the case may be, (provided that (x) the Credit Documents required
to be executed and delivered pursuant to Section 8.11(c) by such newly formed,
created or acquired Subsidiary shall not be required to be so executed and
delivered until 45 days after the formation, creation or acquisition of such
Subsidiary, (y) in the case of a Shell Corporation formed, created or
established by the U.S. Borrower or any of its Subsidiaries, such actions shall
not be required to be taken (so long as same remains a Shell Corporation) until
60 days after the formation, creation or establishment of such Shell Corporation
and (z) in the case of a newly-formed Subsidiary organized in (i) a Qualified
Non-U.S. Jurisdiction or (ii) a Non-Qualified Jurisdiction in which an existing
Foreign Subsidiary Guarantor is organized, to defer the execution and delivery
of Security Documents (but not counterparts of the Foreign Subsidiaries Guaranty
or the Intercompany Subordination Agreement) if the gross book value of its
assets (determined as of the last day of the calendar month then last ended) is
less than $10,000,000, until (and only until) the aggregate gross book value of
all newly-formed Subsidiaries which have not executed Security Documents in
reliance on this proviso (determined as of the last day of the calendar month
then last ended) exceeds $20,000,000, at which time all such excluded
Subsidiaries (and not just those Subsidiaries required to reduce the aggregate
gross book value of such excluded Subsidiaries to below $20,000,000) shall
execute the required Security Documents) and (y) all actions required to be
taken pursuant to the last sentence of Section 8.11(c) and Section 8.11(e) shall
be taken as promptly as practicable, and in any event within 45 days, after
Holdings or the U.S. Borrower receives the respective request from the
Administrative Agent or the Required Lenders.
(h) Notwithstanding anything to the contrary contained in clauses (c)
through (g) above, to the extent the taking of any action as described above by
a new Subsidiary acquired pursuant to a Permitted Acquisition, which is subject
to Permitted Acquired Debt which at such time remains in existence as permitted
by Section 9.04(vi), then to the extent that the terms of the respective
Permitted Acquired Debt prohibit the taking of any actions which would otherwise
be required of such Subsidiary
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by this Section 8.11, then the time for taking the respective actions (to the
extent prohibited by the terms of the respective Permitted Acquired Debt) shall
be extended until 10 Business Days after the earlier of (i) the date of
repayment of such Permitted Acquired Debt and (ii) the first date on which the
taking of such actions would not violate the terms of the respective issue of
Permitted Acquired Debt. To the extent the terms of any Permitted Acquired Debt
prohibits the taking of actions otherwise required by this Section 8.11, upon
the request of the Administrative Agent or the Required Lenders, each Credit
Agreement Party shall, or shall cause the respective Subsidiaries of Holdings
to, (x) prepay any such Permitted Acquired Debt which is permitted to be prepaid
and/or (y) use reasonable efforts to obtain such consents or approvals as are
needed so that the taking of the actions otherwise specified in this Section
8.11 would not violate the terms of the respective issue of Permitted Acquired
Debt. Furthermore, to the extent any Subsidiary which is not a Wholly-Owned
Subsidiary is acquired pursuant to a Permitted Acquisition (in accordance with
the limitations contained in the definition thereof), then for so long as such
Subsidiary is not a Wholly-Owned Subsidiary, to the extent Holdings in good
faith determines that the respective Subsidiary is not able, under applicable
requirements of law (whether because of fiduciary duties under applicable law or
other requirements of applicable law) to execute and deliver a Subsidiaries
Guaranty or one or more Security Documents, the respective such Subsidiary shall
not be required to become a Subsidiary Guarantor or execute and deliver such
Security Documents as otherwise required above.
(i) Within 30 days following the request of the Administrative Agent,
the Collateral Agent or the Required Lenders, the Credit Agreement Parties shall
cause each Fee Capped Foreign Subsidiary Guarantor (to the maximum extent
permitted by applicable law) to (x) enter into such amendments and/or
modifications to the relevant Credit Documents to which such Fee Capped Foreign
Subsidiary Guarantor is a party to cause the guaranty amount or the secured
obligations thereunder, as applicable, to equal 110% of the fair market value of
the Property owned or held by such Fee Capped Foreign Subsidiary Guarantor and
(y) pay all registration, notorial and other fees, all taxes and all other
amounts as may be required in connection with the increase in amount of the
guaranty and/or the secured obligations under such Credit Documents.
(j) In the event that the Administrative Agent or the Required Lenders
at any time after the Initial Borrowing Date determine in their reasonable
discretion (whether as a result of a position taken by an applicable bank
regulatory agency or official, or otherwise) that real estate appraisals
satisfying the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any
successor or similar statute, role, regulation, guideline or order (any such
appraisal, a "Required Appraisal") are or were required to be obtained, or
should be obtained, in connection with any U.S. Mortgaged Property or U.S.
Mortgaged Properties, then, within 90 days after receiving written notice
thereof from the Administrative Agent or the Required Lenders, as the case may
be, Holdings shall cause such Required Appraisal to be delivered, at the expense
of Holdings, to the Administrative Agent, which Required Appraisal, and the
respective appraiser, shall be satisfactory to the Administrative Agent.
(k) Notwithstanding any "after-acquired property" covenant contained
in any Foreign Security Document requiring the grant of security interests in
Property of any Foreign Credit Party in favor of the Collateral Agent (but
subject to Sections 8.11(a) and (e)), no Foreign Credit Party shall be required
to grant the Collateral Agent security interests in Property of such Foreign
Credit Party acquired after the Initial Borrowing Date which is not a vessel and
does not constitute Real Property (all such Property, "After-Acquired Foreign
Personal Property") and which is not covered already expressly by the respective
Foreign Security Document as otherwise required by such Foreign Security
Document if the gross book value of all After-Acquired Foreign Personal Property
of such Foreign Credit Party (determined as of the last day of the calendar
month then last ended) excluded from the pledge requirements pursuant to this
clause (k) is less than $10,000,000, unless (and until) the aggregate gross book
value of all After-Acquired Foreign Personal Property of all Foreign Credit
Parties excluded from the pledge requirements pursuant to this clause (k)
(determined as of the last day of the calendar month
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then last ended) exceeds $20,000,000, at which time the Foreign Credit Parties
shall take all actions required to be taken pursuant to the respective Foreign
Security Documents to grant the Collateral Agent a security interest in such
theretofore excluded After-Acquired Foreign Personal Property as is required to
cause the aggregate gross book value (determined as described above) of all
After-Acquired Foreign Personal Property of all Foreign Credit Parties not then
subject to a security interest in favor of the Collateral Agent pursuant to the
relevant Foreign Security Documents not to exceed $5,000,000.
8.12 Foreign Subsidiaries Security. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for
Holdings reasonably acceptable to the Administrative Agent and the Required
Lenders does not within 30 days after a request from the Administrative Agent or
the Required Lenders deliver evidence, in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders, that (i) a
pledge of 66-2/3% or more of the total combined voting power of all classes of
Equity Interests entitled to vote of any Foreign Unrestricted Subsidiary owned
by a U.S. Credit Party which has not already had all of its Equity Interests
pledged pursuant to the U.S. Pledge Agreement or a Local Law Pledge Agreement,
as applicable, to secure all of the Obligations (as defined in the respective
such Security Document), (ii) the entering into by a Foreign Subsidiary
Guarantor of a pledge agreement in substantially the form of the U.S. Pledge
Agreement, (iii) the entering into by a Foreign Subsidiary Guarantor of a
security agreement in substantially the form of the U.S. Security Agreement and
(iv) the entering into by a Foreign Subsidiary Guarantor of a guaranty in
substantially the form of the U.S. Subsidiaries Guaranty, in any such case would
cause the undistributed earnings of such Foreign Subsidiary as determined for
Federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent or a deemed disposition of the shares of stock
of such Foreign Subsidiary for Federal income tax purposes, then (I) in the case
of a failure to deliver the evidence described in clause (i) above, that portion
of such Foreign Unrestricted Subsidiary's outstanding Equity Interests owned or
held by a U.S. Credit Party and not theretofore pledged pursuant to the U.S.
Pledge Agreement or a Local Law Pledge Agreement, as applicable, to secure all
of the Obligations (as defined in the respective such Security Document) shall
be pledged to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the U.S. Pledge Agreement or the relevant Local Law Pledge Agreement
(or another pledge agreement in substantially similar form, if needed), (II) in
the case of a failure to deliver the evidence described in clause (ii) above,
such Foreign Subsidiary Guarantor shall execute and deliver the U.S. Pledge
Agreement (or another pledge agreement in substantially similar form, if
needed), granting to the Collateral Agent for the benefit of the Secured
Creditors a security interest in all of the capital stock, other Equity
Interests and promissory notes owned by such Foreign Subsidiary (other than
Excluded Collateral) and securing the Obligations of the U.S. Borrower under the
Credit Documents and under any Interest Rate Protection Agreement or Other
Hedging Agreement and, in the event the U.S. Subsidiaries Guaranty shall have
been executed by such Foreign Subsidiary Guarantor, the obligations of such
Foreign Subsidiary Guarantor thereunder, (III) in the case of a failure to
deliver the evidence described in clause (iii) above, such Foreign Subsidiary
Guarantor shall execute and deliver the U.S. Security Agreement (or another
security agreement in substantially similar form, if needed) granting to the
Collateral Agent for the benefit of the Secured Creditors a security interest in
all of such Foreign Subsidiary Guarantor's assets (other than the capital stock,
other Equity Interests and promissory notes owned by such Foreign Subsidiary and
such assets which constitute Excluded Collateral) and securing the obligations
of the U.S. Borrower under the Credit Documents and under any Interest Rate
Protection Agreement or Other Hedging Agreement and, in the event the U.S.
Subsidiaries Guaranty shall have been executed by such Foreign Subsidiary
Guarantor, the obligations of such Foreign Subsidiary Guarantor thereunder, and
(IV) in the case of a failure to deliver the evidence described in clause (iv)
above, such Foreign Subsidiary Guarantor shall execute and deliver the U.S.
Subsidiaries Guaranty (or another guaranty in substantially similar form, if
needed), guaranteeing the Obligations of the U.S. Borrower under the Credit
Documents and under any Interest Rate Protection Agreement or Other Hedging
Agreement, in each case to the extent that the entering into of the U.S. Pledge
Agreement, the U.S.
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Security Agreement or the U.S. Subsidiaries Guaranty (or similar such agreement
or guaranty) is permitted by the laws of the respective foreign jurisdiction and
with all documents delivered pursuant to this Section 8.12 to be in form and
substance reasonably satisfactory to the Administrative Agent and/or the
Required Lenders. Notwithstanding anything to the contrary contained in this
Section 8.12, no Foreign Subsidiary shall be required to comply with the
provisions of this Section 8.12 if the tax advisors for Holdings or such
Subsidiary determine that there is a reasonable likelihood that such Foreign
Subsidiary is, or has ever been, a passive foreign investment company within the
meaning of Section 1297 of the Code.
8.13 Use of Proceeds. Holdings will, and will cause each of its
Subsidiaries to, use the proceeds of the Loans for the purposes specified in
Section 7.05. No Credit Agreement Party will, nor will it permit any of its
Subsidiaries to, use any of the proceeds of the Loans, any Letter of Credit or
any Bank Guaranty to finance the acquisition of any Person that has not been
approved and recommended by the board of directors (or functional equivalent
thereof) or the requisite shareholders of such Person.
8.14 Ownership of Subsidiaries. (a) Notwithstanding anything to the
contrary contained in this Agreement, (w) Holdings shall at all times own
directly 100% of the Equity Interests of Intermediate Holdco, (x) Intermediate
Holdco shall at all times own directly 100% of the capital stock of Corporate
Holdco and the U.S. Borrower, (y) the U.S. Borrower shall at all times own
directly or indirectly 100% of the capital stock of the Bermuda Borrower and (z)
subject to the proviso to the first sentence of Section 8.18(a), Holdings shall
at all times own directly or indirectly (through one or more Wholly-Owned
Domestic Subsidiaries (as opposed to through Foreign Subsidiaries)) all of the
capital stock or other Equity Interests (to the extent owned by Holdings or any
of its Subsidiaries) of each Domestic Subsidiary of Holdings.
(b) Holdings shall at all times own, directly or indirectly, 100% of
the capital stock or other Equity Interests of its Subsidiaries (except to the
extent (v) with respect to Foreign Subsidiaries, directors' qualifying shares
and other nominal amounts of shares required by applicable law to be held by
Persons (other than directors) are issued from time to time (so long as the
respective Subsidiary continues to constitute a Wholly-Owned Subsidiary of
Holdings), (w) 100% of the capital stock or other Equity Interests of any such
Subsidiary are sold, transferred or otherwise disposed of pursuant to a
transaction permitted by Section 9.02, (x) less than 100% of the capital stock
or other Equity Interests are acquired in the respective Subsidiary pursuant to
a Permitted Acquisition which meets the criteria specified in the definition of
Permitted Acquisition contained herein, (y) such capital stock or other Equity
Interests are acquired pursuant to an Investment permitted by Sections 9.05(xvi)
and (xx) or (z) set forth on Schedule VII).
8.15 Permitted Acquisitions. (a) Subject to the provisions of this
Section 8.15 and the requirements contained in the definition of Permitted
Acquisition, the U.S. Borrower and any of its Wholly-Owned Subsidiaries may from
time to time effect Permitted Acquisitions, so long as (in each case except to
the extent the Required Lenders otherwise specifically agree in writing in the
case of a specific Permitted Acquisition): (i) no Default or Event of Default
shall be in existence at the time of the consummation of the proposed Permitted
Acquisition or immediately after giving effect thereto; (ii) the U.S. Borrower
shall have given the Administrative Agent (on behalf of the Lenders) at least 10
Business Days' prior written notice of the proposed Permitted Acquisition; (iii)
calculations are made by the U.S. Borrower of compliance with the covenants
contained in Sections 9.08 and 9.09 for the respective Calculation Period on a
Pro Forma Basis as if the respective Permitted Acquisition (as well as all other
Permitted Acquisitions and Significant Asset Sales theretofore consummated after
the first day of such Calculation Period) had occurred on the first day of such
Calculation Period, and such calculations shall show that such financial
covenants would have been complied with if the Permitted Acquisition had
occurred on the first day of such Calculation Period (for this purpose, if the
first day of the respective
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Calculation Period occurs prior to the Restatement Effective Date, calculated as
if the covenants contained in said Sections 9.08 and 9.09 had been applicable
from the first day of the Calculation Period), (iv) all representations and
warranties contained herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Permitted Acquisition (both before and after giving effect thereto), unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date; (v) the U.S. Borrower provides to the Administrative Agent (on
behalf of the Lenders) as soon as available but not later than 5 Business Days
after the execution thereof, a copy of any executed purchase agreement or
similar agreement with respect to such Permitted Acquisition; (vi) after giving
effect to such Permitted Acquisition and the payment of all post-closing
purchase price adjustments required (in the good faith determination of
Holdings) in connection with such Permitted Acquisition (and all other Permitted
Acquisitions for which such purchase price adjustments may be required to be
made) and all capital expenditures (and the financing thereof) reasonably
anticipated by Holdings to be made in the business acquired pursuant to such
Permitted Acquisition within the 180-day period (such period for any Permitted
Acquisition, a "Post-Closing Period") following such Permitted Acquisition (and
in the businesses acquired pursuant to all other Permitted Acquisitions with
Post-Closing Periods ended during the Post-Closing Period of such Permitted
Acquisition), the Total Unutilized Revolving Loan Commitment shall equal or
exceed $25,000,000; (vii) such proposed Permitted Acquisition shall be effected
in accordance with the relevant requirements of Section 8.18; (viii) the U.S.
Borrower determines in good faith that Holdings and its Subsidiaries taken as a
whole are not likely to assume or become liable for material increased
contingent liabilities as a result of such proposed Permitted Acquisition
(excluding, however, Indebtedness permitted to be incurred pursuant to Section
9.04 in connection therewith); (ix) substantially all of the Acquired Entity or
Business acquired pursuant to the respective Permitted Acquisition is in a
Qualified Jurisdiction (for such purpose, treating as "Qualified Jurisdictions"
the jurisdictions of organization of Fee Capped Foreign Subsidiary Guarantors
deemed to be "Qualified Non-U.S. Obligors" pursuant to clause (i) of the proviso
appearing in the definition of "Qualified Non-U.S. Obligors"), provided,
however, the respective proposed Permitted Acquisition shall not be required to
meet the requirements set forth above in this clause (ix) if the Maximum
Permitted Consideration payable in connection with such Permitted Acquisition,
when aggregated with the Maximum Permitted Consideration payable in connection
with all other Permitted Acquisitions consummated after the Restatement
Effective Date in which all or substantially all of the Acquired Entity or
Business so acquired were not in Qualified Jurisdictions, does not exceed
$300,000,000; and (x) the U.S. Borrower shall have delivered to the
Administrative Agent on the date of the consummation of such proposed Permitted
Acquisition, an officer's certificate executed by an Authorized Officer of the
U.S. Borrower, certifying to the best of his knowledge, compliance with the
requirements of preceding clauses (i) through (iv), inclusive, and clauses (vi)
through (ix), inclusive, and containing the calculations required by the
preceding clauses (iii), (vi) and (ix); provided however that so long as the
Maximum Permitted Consideration payable in connection with the proposed
Permitted Acquisition, when combined with the Maximum Permitted Consideration
paid in connection with all other Permitted Acquisitions consummated in the same
Fiscal Quarter as such proposed Permitted Acquisition, does not exceed
$50,000,000, the officer's certificate required to be delivered pursuant to
clause (ix) above shall not be required to include the calculations required by
clause (iii) above.
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of an Unrestricted Subsidiary, or the acquisition of capital
stock or other Equity Interests of any Person (other than a Restricted
Subsidiary of the U.S. Borrower), all capital stock or other Equity Interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors as, and to the extent
required by, Section 8.11 and the relevant Security Documents.
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(c) Each Credit Agreement Party shall cause each Subsidiary that is
formed to effect, or is acquired pursuant to, a Permitted Acquisition to comply
with, and to execute and deliver, all of the documentation required by, Sections
8.11 and 9.14, to the satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be deemed to
be a representation and warranty by each Credit Agreement Party that the
certifications by each Credit Agreement Party (or by one or more of its
respective Authorized Officers) pursuant to Section 8.15 are true and correct
and that all conditions thereto have been satisfied and that same is permitted
in accordance with the terms of this Agreement, which representation and
warranty shall be deemed to be a representation and warranty for all purposes
hereunder, including, without limitation, Sections 6 and 10.
8.16 Maintenance of Company Separateness. Each Credit Agreement Party
will, and will cause each of its Subsidiaries to, satisfy customary Company
formalities, including the holding of regular board of directors' and
shareholders' meetings or action by directors or shareholders without a meeting
and the maintenance of Company records. Neither Holdings nor any other Credit
Party shall make any payment to a creditor of any Non-Guarantor Subsidiary in
respect of any liability of any Non-Guarantor Subsidiary, and no bank account of
any Non-Guarantor Subsidiary shall be commingled with any bank account of
Holdings or any other Credit Party. Any financial statements distributed to any
creditors of any Non-Guarantor Subsidiary shall clearly establish or indicate
the corporate separateness of such Non-Guarantor Subsidiary from Holdings and
its other Subsidiaries. Finally, neither Holdings nor any of its Subsidiaries
shall take any action, or conduct its affairs in a manner, which is likely to
result in the Company existence of any Credit Agreement Party, any other Credit
Party or any Non-Guarantor Subsidiaries being ignored, or in the assets and
liabilities of Holdings or any other Credit Party being substantively
consolidated with those of any other such Person or any Non-Guarantor Subsidiary
in a bankruptcy, reorganization or other insolvency proceeding; provided, that
no Foreign Credit Party organized under the laws of Bermuda shall be bound by
the provisions of the last sentence of this Section 8.16.
8.17 Performance of Obligations. Each Credit Agreement Party will, and
will cause each of its Subsidiaries to, perform all of its obligations under the
terms of each mortgage, deed of trust, indenture, loan agreement or credit
agreement and each other material agreement, contract or instrument by which it
is bound, except such non-performances as, individually or in the aggregate,
have not caused, and could not reasonably be expected to cause, a Default or
Event of Default hereunder or a Material Adverse Effect.
8.18 Conduct of Business. (a) The Credit Agreement Parties shall take
all actions so that, at all times from and after the Initial Borrowing Date, all
the assets of Holdings and its Subsidiaries located within the United States,
all Equity Interests in all Domestic Subsidiaries or other U.S. Persons and all
or substantially all of the business of Holdings and its Subsidiaries conducted
in the United States, are, in each case, owned or conducted, as the case may be,
by Holdings and one or more Qualified U.S. Obligors which are not direct or
indirect Subsidiaries of any Subsidiary of Holdings which is a Foreign
Subsidiary, provided that if a Foreign Subsidiary (not itself created or
established in contemplation of a Permitted Acquisition) is acquired pursuant to
a Permitted Acquisition which Foreign Subsidiary has (either directly or through
one or more Domestic Subsidiaries) assets or operations in the United States,
Holdings shall have a reasonable period of time (not to exceed 60 days) to
effect the transfer of U.S. assets and operations (including all Equity
Interests in any Domestic Subsidiaries or other U.S. Persons held by it) of the
respective Foreign Subsidiary to one or more Qualified U.S. Obligors, provided
further, that the respective transfer shall not be required to be made if
Holdings in good faith determines that such transfer would give rise to adverse
tax consequences to Holdings and its Subsidiaries or would give rise to any
material breach or violation of law or contract (in which case, Holdings and its
Subsidiaries shall transfer such assets and operations at such time, if any, as
such adverse tax consequences or breach or
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violation would not exist and, until such time, shall use good faith efforts so
that any growth in the assets or operations of the entity so acquired, to the
extent located in the United States, are made within one or more Qualified U.S.
Obligors).
(b) In addition to the foregoing requirements, the Credit Agreement
Parties shall take all actions so that, at all times from and after the Initial
Borrowing Date, all the assets of Holdings' Subsidiaries located within all
Qualified Non-U.S. Jurisdictions, all Equity Interests in all Persons organized
under any Qualified Non-U.S. Jurisdiction and all or substantially all of the
business of Holdings' Subsidiaries conducted in all Qualified Non-U.S.
Jurisdictions, are, in each case, owned or conducted, as the case may be, by one
or more Qualified Non-U.S. Obligors which are not direct or indirect
Subsidiaries of any Subsidiary of Holdings other than Qualified Obligors,
provided that if a Subsidiary of Holdings organized under the laws of a
jurisdiction other than any Qualified Non-U.S. Jurisdiction (not itself created
or established in contemplation of the respective Permitted Acquisition) is
acquired pursuant to a Permitted Acquisition which Subsidiary has (either
directly or through one or more Subsidiaries) assets or operations outside
Qualified Non-U.S. Jurisdictions, Holdings shall have a reasonable period of
time (not to exceed 60 days) to effect the transfer of all assets and operations
outside Qualified Non-U.S. Jurisdictions (including all Equity Interests in any
Persons held by it which are organized under the laws of one or more Qualified
Non-U.S. Jurisdiction) of the respective Subsidiary to one or more Qualified
Non-U.S. Obligors which are not themselves direct or indirect Subsidiaries of
any Subsidiary of Holdings other than Qualified Obligors, provided further, that
the respective transfer shall not be required to be made if Holdings in good
faith determines that such transfer would give rise to adverse tax consequences
to Holdings and its Subsidiaries or would give rise to any material breach or
violation of law or contract (in which case, Holdings and its Subsidiaries shall
transfer such assets and operations at such time, if any, as such adverse tax
consequences or breach or violation would not exist, and until such time shall
use good faith efforts so that any growth in the assets or operations of the
entity so acquired, to the extent located in the Qualified Non-U.S.
Jurisdictions, are made within one or more Qualified Non-U.S. Obligors which are
not themselves direct or indirect Subsidiaries of any Subsidiary of Holdings
other than Qualified Obligors). Notwithstanding the foregoing provisions of this
Section 8.18(b), the ownership of the Bermuda Partnership (a Subsidiary which is
not a Qualified Non-U.S. Obligor) of Equity Interests of Qualified Non-U.S.
Obligors shall not be taken account of for purposes of determining compliance
with this Section 8.18(b), so long as the Credit Agreement Parties and their
respective Foreign Subsidiaries are at all times in compliance with Section
8.18(c) below.
(c) The Credit Agreement Parties shall take all actions so that all
Foreign Subsidiaries that are not Qualified Non-U.S. Obligors are directly or
indirectly owned by one or more Qualified Non-U.S. Obligors (or, in the case of
the Bermuda Partnership, is owned by the Bermuda Partnership Partners).
(d) For the avoidance of doubt, it is understood and agreed that the
foregoing provisions of this Section 8.18 shall not prohibit the acquisition of,
or Investments in, Non-Wholly-Owned Subsidiaries as contemplated by Section
9.14(b), provided that the Equity Interest owned by Holdings or any of its
Subsidiaries in such Non-Wholly-Owned Subsidiaries, to the extent organized
under the laws of any Qualified Jurisdiction, shall be subject to the
requirements of preceding clauses (a), (b) and (c).
8.19 Margin Stock. Each Credit Agreement Party shall take all actions
so that at all times the aggregate value of all Margin Stock (other than
treasury stock) owned by Holdings and its Subsidiaries (for such purpose, using
the initial purchase price paid by Holdings or such Subsidiary for the
respective shares of Margin Stock) shall not exceed $10,000,000. So long as the
aggregate value of Margin Stock (other than treasury stock) owned by Holdings
and its Subsidiaries (determined as provided in the preceding sentence) does not
exceed $10,000,000, all Margin Stock at any time owned by Holdings and its
Subsidiaries shall not constitute Collateral and no security interest shall be
granted therein
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pursuant to any Credit Document. Without excusing any violation of the first
sentence of this Section 8.19, if at any time the aggregate value of all Margin
Stock (other than treasury stock) owned by Holdings and its Subsidiaries
(determined as provided in the first sentence of this Section 8.19) exceeds
$10,000,000, then (x) all Margin Stock owned by the Credit Parties (except to
the extent constituting Excluded Collateral) shall be pledged, and delivered for
pledge, pursuant to the relevant Security Documents and (y) the U.S. Borrower
shall execute and deliver to the Lenders appropriate completed forms (including,
without limitation, Forms G-3 and U-1, as appropriate) establishing compliance
with the Margin Regulations. If at any time any Margin Stock is required to be
pledged as a result of the provisions of the immediately preceding sentence,
repayments of outstanding Obligations shall be required to be made, and
subsequent Credit Events shall only be permitted, in compliance with the
applicable provisions of the Margin Regulations.
8.20 Foreign Security Document Amendments. (x) If any additional
Foreign Security Document is entered into by Holdings or any of its Subsidiaries
after the Restatement Effective Date or (y) any change in applicable law
governing any Foreign Security Document relevant to the scope of the Obligations
covered by such Foreign Security Document or the Secured Creditors entitled to
the benefits of such Foreign Security Document occurs after the Restatement
Effective Date and, in any such case, the Collateral Agent (based on the advice
of local counsel) has determined that amendments to the respective Foreign
Security Document are required to maintain a valid and enforceable first
priority lien on the Collateral covered by such Foreign Security Document in
favor of the Collateral Agent for the benefit of all of the Secured Creditors
securing all of the relevant Obligations (i.e., all Tranche A Term Loans,
Additional Tranche B Term Loans and, after a given Incremental Loan Commitment
Date, all related incremental Obligations resulting from the provision of the
respective Incremental Loan Commitments to the Bermuda Borrower), then, within
90 days following the request of the Collateral Agent or the Administrative
Agent, the U.S. Borrower shall duly authorize, execute and deliver to the
Collateral Agent, or cause to be duly authorized, executed and delivered to the
Collateral Agent, a fully executed counterpart of an amendment to such Foreign
Security Document, which amendment shall (i) be in full force and effect (and,
if applicable, properly recorded) no later than the date of required execution
and delivery of such amendment as provided above and (ii) otherwise be in form
and substance satisfactory to the Administrative Agent.
8.21 Post-Closing Refinancing. No later than the third Business Day
following the Restatement Effective Date, the U.S. Borrower shall have (i)
purchased for cash all Existing Tender Offer Notes validly tendered (and not
withdrawn) on the Restatement Effective Date pursuant to, and in accordance with
the requirements of, the Tender Offer and (ii) paid (or caused to be paid) to
each holder of Existing Tender Offer Notes tendering the same pursuant to the
Tender Offer any early tender payment to which it is entitled as referred to in
Section 5.08 (collectively, the "Tender Offer Consummation").
8.22 Certain Post-Closing Actions.(a) No later than the 90th day
following the Restatement Effective Date, the Foreign Asset Transfer shall have
been consummated in accordance with the requirements of the definition thereof.
(b) Not later than 45 days following the Restatement Effective Date,
Araucaria Limited and Xxxx Foreign Holdings II Ltd., Foreign Subsidiaries of the
U.S. Borrower organized under the laws of Bermuda, shall have taken all of the
actions required to be taken by a newly-formed Subsidiary organized under the
laws of Bermuda pursuant to Section 9.14(a) of the Credit Agreement.
SECTION 9. Negative Covenants. Each Credit Agreement Party hereby
covenants and agrees that as of the Restatement Effective Date and thereafter
for so long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit, Bank Guaranties or Notes are outstanding and
the Loans, together with interest, Fees and all other Obligations (other than
any
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indemnities described in Section 13.13 which are not then due and payable)
incurred hereunder, are paid in full:
9.01 Changes in Business; etc. (a) Holdings and its Subsidiaries will
not engage in any business other than a Permitted Business.
(b) Notwithstanding the foregoing, Holdings will not engage in any
business and will not own any significant assets (other than its ownership of
(x) the Equity Interests of Intermediate Holdco, (y) Intercompany Notes
evidencing intercompany loans permitted to be made by it pursuant to Section
9.05 and (z) after the issuance thereof, the Equity Interests of each of the
Unrestricted Wellbeing Joint Ventures) or have any liabilities (other than those
liabilities for which it is responsible under this Agreement, the Documents to
which it is a party, any Shareholder Subordinated Note and any Intercompany Note
evidencing an intercompany loan permitted to be incurred by Holdings pursuant to
Section 9.05); provided that Holdings may (i) issue Shareholder Subordinated
Notes, shares of Holdings Common Stock and options and warrants to purchase
Holdings Common Stock, (ii) engage in those activities associated with expenses
indirectly paid with Dividends made to it by Intermediate Holdco pursuant to
Section 9.06(iv), (iii) engage in those activities associated with the purchase
and ownership of the Equity Interests of the Unrestricted Wellbeing Joint
Ventures permitted pursuant to Section 9.05(xxiv) and (iv) engage in those
activities that are incidental to (x) the maintenance of its corporate existence
in compliance with applicable law, (y) legal, tax and accounting matters in
connection with any of the foregoing activities and (z) the entering into, and
performing its obligations under, this Agreement and the other Documents to
which it is a party.
(c) Notwithstanding the foregoing, the Bermuda Partnership will not
engage in any business and will not own any significant assets or any cash or
Cash Equivalents (other than its ownership of Equity Interests of Qualified
Non-U.S. Obligors) or have any material liabilities (other than those
liabilities for which it is responsible under the Credit Documents to which it
is a party), provided that the Bermuda Partnership may (I) provide treasury,
accounting, logistic and other administrative support services to its Affiliates
on an arms' length basis and hold and retain cash earned in connection with the
provision of such services, (II) receive and hold additional cash and Cash
Equivalents from its Subsidiaries and/or its Affiliates, so long as same are
promptly (and in any event within one Business Day of receipt thereof) loaned,
distributed and/or contributed, subject to Section 9.01(d), to its Subsidiaries
and/or Affiliates in accordance with the requirements of Section 9.05 of this
Agreement, and (III) engage in those activities that (i) are incidental to (x)
the maintenance of its Company existence in compliance with applicable law, (y)
legal, tax and accounting matters in connection with any of the foregoing
activities and (z) the entering into, and performing its obligations under, the
Credit Documents to which it is a party and (ii) are otherwise expressly
permitted by this Agreement (other than pursuant to preceding Section 9.01(a))
and the other Credit Documents.
(d) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement (including, without limitation, Sections 9.02 and
9.05):
(i) the Bermuda Partnership Partners shall not collectively own or
hold (x) Property (exclusive of Property leased or operated but not owned)
with a Fair Market Value in excess of $30,000,000 at any time or (y) cash
or Cash Equivalents in an aggregate in excess of $10,000,000; provided that
(v) all assets owned by the Bermuda Partnership Partners on the Restatement
Effective Date (which assets shall have a net book value on the Restatement
Effective Date not to exceed $25,000,000) shall be excluded for purposes of
such determination, (w) any cash and Cash Equivalents loaned and/or
contributed to such Persons by Affiliates of such Persons shall be excluded
for purposes of such determination, so long as same are promptly (and in
any event within one Business Day) loaned and/or distributed to other
Affiliates of such
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Persons (other than another Bermuda Partnership Partner) in accordance with
the requirements of this Agreement, (x) any inventory owned by the Bermuda
Partnership Partners shall be excluded for purposes of such determination,
(y) any Equity Interests in the Bermuda Partnership which are held by the
Bermuda Partnership Partners shall be excluded for purposes of such
determination and (z) any intercompany receivable owed to a Bermuda
Partnership Partner by Xxxx Settlement Company shall be excluded for
purposes of such determination, so long as (I) both Xxxx Settlement Company
(as obligor) and the respective Bermuda Partnership Partner (as obligee)
are parties to the Intercompany Subordination Agreement and (II) such
intercompany receivable is at all times subject to the subordination
provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or
be liquidated or dissolved into any other Person, provided, however, that
any Bermuda Partnership Partner may merge or consolidate with or into any
other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the
sole purpose of reincorporating such Bermuda Partnership Partner in a
different jurisdiction, so long as the surviving entity of such merger or
consolidation remains a "Bermuda Partnership Partner" for all purposes of
this Agreement and the other Credit Documents (subject to and bound by all
terms and covenants herein and therein applicable to a "Bermuda Partnership
Partner");
(iii) no Bermuda Partnership Partner shall engage in any business
other than a business which is the same or reasonably related to the
business in which such Bermuda Partnership Partner is engaged on the
Original Effective Date;
(iv) no later than one Business Day following the date upon which any
Bermuda Partnership Partner receives or generates an Account (as defined in
the U.S. Security Agreement), such Account shall be sold on a non-recourse
basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a
note payable (which shall at all times be subject to the subordination
provisions contained in the Intercompany Subordination Agreement) and/or
the assumption of a payable or payables owing by such Bermuda Partnership
Partner to its relevant Subsidiary which sells fruit, inventory or other
Property, or provides shipping services, to such Bermuda Partnership
Partner (which assumed liabilities shall also be subject to the
subordination provisions contained in the Intercompany Subordination
Agreement); and
(v) upon the occurrence and during the continuance of any Specified
Default or any Event of Default under Section 10.01 or 10.05, unless
otherwise directed by the Administrative Agent or the Required Lenders, (x)
neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit,
inventory or other Property to, or contract to perform shipping services
for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its
Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and
other Property formerly sold to, and shall contract with Xxxx Settlement
Company to sell shipping services formerly contracted with, any Bermuda
Partnership Partner and (z) no Bermuda Partnership Partner shall be
permitted to receive any Dividends or the proceeds of any intercompany
loans or advances from any of its Affiliates.
(e) Notwithstanding the foregoing, the Excluded Domestic Subsidiary
will not engage in any business and will not own any assets or have any
liabilities; provided that the Excluded Domestic Subsidiary may engage in those
activities that are incidental to (x) the maintenance or termination of its
corporate existence in compliance with applicable law, and (y) legal, tax and
accounting matters in connection with any of the foregoing activities.
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(f) Notwithstanding the foregoing, no Excluded Bermuda Insurance
Company will engage in any business (other than the insurance related business
conducted by it on the Original Effective Date (including, without limitation,
its business as a captive insurer for Holdings and its Affiliates with respect
to property, casualty and liability insurance (including workers compensation
insurance))) and will not own any Equity Interests or any other significant
assets (other than assets used in the conduct of its business as described
above) or have any liabilities (other than those liabilities under the Documents
to which it is a party and those liabilities incurred in the ordinary course of
its business as described above); provided that an Excluded Bermuda Insurance
Company may engage in those activities that are incidental to (x) the
maintenance of its Company existence in compliance with applicable law, (y)
legal, tax and accounting matters in connection with any of the foregoing
activities and (z) the entering into, and performing its obligations under, this
Agreement and the other Documents to which it is a party.
(g) Notwithstanding anything to the contrary contained above in this
Section or elsewhere in this Agreement, at no time shall Holdings or any
Subsidiary of Holdings be an obligor or an obligee with respect to any
Intercompany Debt, unless each obligor (including each Person which is a
guarantor thereof) and each obligee with respect thereto are party to the
Intercompany Subordination Agreement; provided however, that the provisions
hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Part D
of Schedule XIII.
(h) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will
engage in any business or own any assets (other than (x) Equity Interests of
another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market
Value not exceeding $25,000) or have any liabilities; provided that any Excluded
Foreign Subsidiary may engage in those activities that are incidental to (x) the
maintenance or termination of its corporate existence in compliance with
applicable law and (y) legal, tax and accounting matters in connection with any
of the foregoing activities.
(i) Holdings shall not permit any Unrestricted Wellbeing Joint Venture
to engage in any business other than the development, construction and operation
of a well being center/hotel/spa/conference center/studio and reasonably related
extensions thereof (including the promotion of nutritional education, production
and distribution of nutrition- or health-oriented programming on cable
television and the sale of educational videos).
(j) Notwithstanding the foregoing, Intermediate Holdco will not engage
in any business and will not own any significant assets (other than its
ownership of the capital stock of the U.S. Borrower and Corporate Holdco and
Intercompany Notes evidencing intercompany loans permitted to be made by it
pursuant to Section 9.05) or have any liabilities (other than those liabilities
for which it is responsible under this Agreement, the Documents to which it is a
party and any Intercompany Note evidencing an intercompany loan permitted to be
incurred by it pursuant to Section 9.05); provided that Intermediate Holdco may
(i) engage in those activities associated with expenses paid with Dividends made
by the U.S. Borrower pursuant to Section 9.06(iv) and (ii) engage in those
activities that are incidental to (x) the maintenance of its corporate existence
in compliance with applicable law, (y) legal, tax and accounting matters in
connection with any of the foregoing activities and (z) the entering into, and
performing its obligations under, this Agreement and the other Documents to
which it is a party.
(k) Notwithstanding the foregoing, Corporate Holdco will not engage in
any business and will not own any significant assets or have any liabilities
(other than those liabilities for which it is responsible under this Agreement
and the Documents to which it is a party); provided that Corporate Holdco may
(i) engage in those activities associated with expenses indirectly paid with
Dividends made by the U.S. Borrower pursuant to Section 9.06(iv) and (ii) engage
in those activities that are incidental to (x) the maintenance of its corporate
existence in compliance with applicable law,
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(y) legal, tax and accounting matters in connection with any of the foregoing
activities and (z) the entering into, and performing its obligations under, this
Agreement and the other Documents to which it is a party.
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc. No Credit
Agreement Party will, nor will permit any of its respective Subsidiaries to,
wind up, liquidate or dissolve its affairs or enter into any transaction of
merger or consolidation, or convey, sell, lease or otherwise dispose of all or
any part of its property or assets, or enter into any sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of
business) of any Person or agree to do any of the foregoing at any future time,
except that the following shall be permitted:
(i) the U.S. Borrower and its Subsidiaries may lease (as lessee) or
license (as licensee) real or personal property (including intellectual
property) in the ordinary course of business (so long as any such lease or
license does not create a Capitalized Lease Obligation);
(ii) Capital Expenditures by the U.S. Borrower and its Subsidiaries to
the extent not in violation of Section 9.10;
(iii) Investments permitted pursuant to Section 9.05;
(iv) the U.S. Borrower and its Subsidiaries may, in the ordinary
course of business, sell or otherwise dispose of assets (excluding capital
stock of, or other Equity Interests in, Subsidiaries and joint ventures)
which, in the reasonable opinion of such Person, are obsolete, uneconomic
or worn-out;
(v) the U.S. Borrower and its Subsidiaries may sell assets (other than
(I) the capital stock or other Equity Interests of any Wholly-Owned
Subsidiary unless all of the capital stock or other Equity Interests of
such Wholly-Owned Subsidiary are sold in accordance with this clause (v)
and (II) assets subject to a Contemplated Asset Sale (which shall be
governed by Section 9.02(xviii)), so long as (v) no Default or Event of
Default then exists or would result therefrom, (w) each such sale is in an
arm's-length transaction and the U.S. Borrower or the respective Subsidiary
receives at least Fair Market Value, (x) except for customary post-closing
adjustments (to be paid in cash within 180 days following the closing of
the respective sale or disposition), at least 75% of the total
consideration received by the U.S. Borrower or such Subsidiary is paid in
cash at the time of the closing of such sale or disposition (provided that
sales of assets for aggregate consideration of $20,000,000 (taking the Fair
Market Value of any non-cash consideration) in any Fiscal Year of Holdings
shall not be subject to the minimum cash requirement set forth above in
this subclause (x)), (y) the Net Sale Proceeds therefrom are applied and/or
reinvested as (and to the extent) required by Section 4.02(c) and (z) the
aggregate amount of the proceeds received from all assets sold pursuant to
this clause (v) shall not exceed $100,000,000 in any Fiscal Year of
Holdings;
(vi) each of the U.S. Borrower and its Subsidiaries may sell or
discount, in each case without recourse and in the ordinary course of
business, overdue accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof
and not as part of any financing transaction;
(vii) each of the U.S. Borrower and its Subsidiaries may grant
licenses, sublicenses, leases or subleases to other Persons not materially
interfering with the conduct of the business of
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the U.S. Borrower or any of its Subsidiaries, in each case so long as no
such grant otherwise affects the Collateral Agent's security interest in
the asset or property subject thereto;
(viii) subject to Sections 9.01(c) and (d), transfers of assets (u)
pursuant to the Foreign Asset Transfer, (v) among the Qualified U.S.
Obligors (other than Holdings, Intermediate Holdco and Corporate Holdco),
(w) among the Qualified Non-U.S. Obligors, (x) by any Subsidiary of the
U.S. Borrower to any Qualified U.S. Obligor (other than Holdings,
Intermediate Holdco and Corporate Holdco), (y) by any Foreign Subsidiary of
the U.S. Borrower to any Qualified Non-U.S. Obligor and (z) by any Foreign
Subsidiary of the U.S. Borrower (other than a Qualified Non-U.S. Obligor)
to any Wholly-Owned Foreign Subsidiary of the U.S. Borrower, in the case of
any such transfer, so long as (I) no Specified Default and no Event of
Default then exists or would exist immediately after giving effect to the
respective transfer, (II) any security interests granted to the Collateral
Agent for the benefit of the Secured Creditors pursuant to the relevant
Security Documents in the assets so transferred shall remain in full force
and effect and perfected and enforceable (to at least the same extent as in
effect immediately prior to such transfer) and (III) if the respective
transferor is party to a Guaranty, the nature and scope of the obligations
of such transferor under its Guaranty are substantially identical to the
nature and scope of the obligations of the respective transferee under its
Guaranty;
(ix) subject to Sections 9.01(c) and (d), (x) any Domestic Subsidiary
of the U.S. Borrower may be merged, consolidated or liquidated with or into
the U.S. Borrower (so long as the U.S. Borrower is the surviving
corporation of such merger, consolidation or liquidation) or any U.S.
Subsidiary Guarantor (so long as a U.S. Subsidiary Guarantor is the
surviving corporation of such merger, consolidation or liquidation), (y)
any Qualified Non-U.S. Obligor may be merged, consolidated or liquidated
with or into any other Qualified Non-U.S. Obligor and (z) any Foreign
Subsidiary of the U.S. Borrower (other than a Qualified Non-U.S. Obligor)
may be merged, consolidated or liquidated with or into any Wholly-Owned
Foreign Subsidiary of the U.S. Borrower, so long as such Wholly-Owned
Foreign Subsidiary is the surviving corporation of such merger,
consolidation or liquidation; provided that any such merger, consolidation
or liquidation shall only be permitted pursuant to this clause (ix), so
long as (I) no Specified Default and no Event of Default then exists or
would exist immediately after giving effect thereto, (II) any security
interests granted to the Collateral Agent for the benefit of the Secured
Creditors in the assets (and Equity Interests) of any such Person subject
to any such transaction shall remain in full force and effect and perfected
and enforceable (to at least the same extent as in effect immediately prior
to such merger, consolidation or liquidation) and (III) if the Person to be
merged, consolidated or liquidated into another Person as contemplated
above is party to a Guaranty, the nature and scope of the obligations of
such Person under its Guaranty are substantially identical to the nature
and scope of the obligations of such other Person under its Guaranty;
(x) subject to Sections 9.01(c) and (d), the U.S. Borrower and its
Subsidiaries may transfer inventory in a non-cash or cash transfer to
Wholly-Owned Subsidiaries of the U.S. Borrower that are not Qualified
Obligors, in each case so long as (I) any such transfer is made in the
ordinary course of its business and consistent with past practice of the
U.S. Borrower and its Subsidiaries as in effect on the Effective Date, (II)
if the respective transfer is being made to any Credit Party, all actions
needed to maintain the perfection, priority and enforceability of the
security interests, if any, of the Collateral Agent in the assets so
transferred are taken at the time of the respective transfer, (III) the
U.S. Borrower reasonably determines that the transfer is not reasonably
likely to be adverse to the interests of the Lenders in any material
respect and (IV) no Specified Default and no Event of Default then exists
or would exist immediately after giving effect to the respective transfer;
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(xi) subject to Sections 9.01(c) and (d), so long as no Specified
Default and no Event of Default exists at the time of the respective
transfer or immediately after giving effect thereto, Qualified Obligors
shall be permitted to transfer additional assets (other than inventory,
cash, Cash Equivalents and Equity Interests in any Credit Party) to other
Subsidiaries of the U.S. Borrower, so long as cash in an amount at least
equal to the Fair Market Value of the assets so transferred is received by
the respective transferor;
(xii) the U.S. Borrower and its Subsidiaries may sell or exchange
specific items of equipment, so long as the purpose of each such sale or
exchange is to acquire (and results within 90 days of such sale or exchange
in the acquisition of) replacement items of equipment which are useful in a
Permitted Business;
(xiii) each of the Borrowers and the Subsidiary Guarantors shall be
permitted to make Permitted Acquisitions, so long as such Permitted
Acquisitions are effected in accordance with the requirements of Section
8.15;
(xiv) one or more Subsidiaries identified to the Agents may sell all
of the Equity Interests of a certain Subsidiary of the U.S. Borrower owned
by such Subsidiaries and identified to the Agents, so long as (v) no
Default or Event of Default then exists or would result therefrom, (w) each
such sale is in an arm's-length transaction and the respective Subsidiary
receives at least Fair Market Value, (x) except for customary post-closing
adjustments, at least 20% of the total consideration received by such
Subsidiaries (in the aggregate) is paid in cash at the time of the closing
of such sale or disposition, (y) the Net Sale Proceeds therefrom are
applied and/or reinvested as (and to the extent) required by Section
4.02(c) and (z) the aggregate amount of the consideration (taking the Fair
Market Value of any non-cash consideration) received from all assets sold
pursuant to this clause (xiv) shall not exceed $25,000,000;
(xv) the Sale-Lease Back Transaction;
(xvi) each of the U.S. Borrower and its Subsidiaries may sell or
liquidate Cash Equivalents, in each case for cash at fair market value (as
reasonably determined by the U.S. Borrower or the respective Subsidiary);
(xvii) the U.S. Borrower and its Subsidiaries may sell inventory to
their respective customers in the ordinary course of business;
(xviii) each of the U.S. Borrower and its Subsidiaries may effect
Contemplated Asset Sales, so long as (i) no Event of Default then exists or
would exist immediately after giving effect thereto, (ii) each such sale is
an arms'-length transaction and the U.S. Borrower or the respective
Subsidiary receives at least Fair Market Value, (iii) the consideration
therefor consists solely of cash and/or Permitted Installment Notes (to the
extent same may be issued in accordance with the definition thereof), (iv)
at least 50% of the total consideration received by the U.S. Borrower or
such Subsidiary is paid in cash at the time of the closing of such sale,
and (v) the Net Sale Proceeds therefrom are applied as, and to the extent,
required by Section 4.02(c);
(xix) the U.S. Borrower and its Subsidiaries may sell and leaseback
Principal Properties, so long as (v) no Default or Event of Default then
exists or would result therefrom, (w) each such sale is made pursuant to an
arm's-length transaction, (x) 100% of the total consideration received by
the U.S. Borrower or such Subsidiary is paid in cash at the time of the
closing of such sale, (y) the Net Sale Proceeds therefrom equal at least
90% of the Fair Market Value of the Property subject to such sale-leaseback
transaction and (z) 100% of the Net Sale
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Proceeds therefrom are applied as a mandatory repayment and/or commitment
reduction as, and to the extent, required by Section 4.02(c) (but without
giving effect to any reinvestment rights contained therein); and
(xx) certain Domestic Subsidiaries of the U.S. Borrower identified to
the Agents may sell the Equity Interests of certain other Domestic
Subsidiaries identified to the Agents which own Real Property located in
California, and certain Domestic Subsidiaries identified to the Agents
which own Real Property located in California may sell Real Property and
other assets, in each case, so long as (v) no Default or Event of Default
then exists or would result therefrom, (w) each such sale is in an
arm's-length transaction and the respective Subsidiary receives at least
Fair Market Value, (x) except for customary post-closing adjustments, at
least 75% of the total consideration received by such Subsidiaries (in the
aggregate) is paid in cash at the time of the closing of such sale, (y)
unless on-loaned to an Affiliate of the U.S. Borrower in accordance with
the requirements of Sections 9.05 and 9.07 promptly following the
consummation of such sale, any Net Sale Proceeds therefrom received by a
Subsidiary of the U.S. Borrower (exclusive of any portion thereof which is
distributed to a minority shareholder of such Subsidiary in accordance with
the requirements of Section 9.06) are applied and/or reinvested as (and to
the extent) required by Section 4.02(c) and (z) the aggregate amount of the
consideration (taking the Fair Market Value of any non-cash consideration)
received from such sale or sales pursuant to this clause (xx) shall not
exceed $50,000,000 (the "California Disposition").
Notwithstanding anything to the contrary contained above in this Section 9.02,
in no event shall Holdings or any of its Subsidiaries enter into any
sale-leaseback transactions, except in accordance with Sections 9.02(xv) and
(xix) above. The foregoing provisions of this Section 9.02 are subject to
continued compliance by the Credit Agreement Parties and their Subsidiaries with
the requirements of Sections 8.18, 9.01 and 9.14. To the extent the Required
Lenders waive the provisions of this Section 9.02 with respect to the sale or
other disposition of any Collateral, or any Collateral is sold or otherwise
disposed of as permitted by this Section 9.02, such Collateral (unless
transferred to Holdings or a Subsidiary thereof) shall be sold or otherwise
disposed of free and clear of the Liens created by the Security Documents and
the Administrative Agent shall take such actions (including, without limitation,
directing the Collateral Agent to take such actions) as are appropriate in
connection therewith.
9.03 Liens. No Credit Agreement Party will, nor will permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of Holdings or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to
Holdings or any of its Subsidiaries) or assign any right to receive income or
permit the filing of any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute; provided that the
provisions of this Section 9.03 shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with U.S. GAAP;
(ii) Liens in respect of property or assets of the U.S. Borrower or
any of its Subsidiaries imposed by law which were incurred in the ordinary
course of business and which have not arisen to secure Indebtedness for
borrowed money, such as carriers', warehousemen's
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and mechanics' Liens, statutory landlord's Liens, maritime Liens and other
similar Liens arising in the ordinary course of business, and which either
(x) do not in the aggregate materially detract from the value of such
property or assets or materially impair the use thereof in the operation of
the business of the U.S. Borrower or any of its Subsidiaries or (y) are
being contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the property or
asset subject to such Lien;
(iii) Liens created by or pursuant to this Agreement and the Security
Documents (it being understood and agreed that the obligations under or
relating to the Intermediate Holdco Senior Notes Documents may be secured
by the Second-Lien Collateral pursuant to the U.S. Pledge Agreement, on a
"second-priority" basis to the First-Lien Obligations, all in accordance
with the terms of the U.S. Pledge Agreement);
(iv) Liens in existence on the Original Effective Date which are
listed, and the property subject thereto described, in Schedule IX, but
only to the respective date, if any, set forth in such Schedule IX for the
removal, replacement and termination of any such Liens, plus renewals,
replacements and extensions of such Liens, provided that (x) the aggregate
principal amount of the Indebtedness, if any, secured by such Liens does
not increase from that amount outstanding at the time of any such renewal,
replacement or extension and (y) any such renewal, replacement or extension
does not encumber any additional assets or properties of the U.S. Borrower
or any of its Subsidiaries;
(v) Liens (x) arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 10.09, (y)
arising in connection with the deposit or payment of cash or other Property
with or to any court or other governmental authority in connection with any
pending claim or litigation and (z) arising in connection with the deposit
of cash or other Property in connection with the issuance of stay and
appeal bonds, provided that the Fair Market Value of all Property
(including cash) subject to Liens pursuant to this clause (v) (whether
pledged, paid, deposited or otherwise) shall not exceed at any time the sum
of (1) $75,000,000 (net of any insurance proceeds actually received (and
not returned) by the U.S. Borrower and its Subsidiaries in connection
therewith) plus (2) in the case of Properties of Subsidiaries of the U.S.
Borrower located outside the United States and subject to a Lien pursuant
to this clause (v), an additional $50,000,000 (net of any insurance
proceeds actually received (and not returned) by the U.S. Borrower and its
Subsidiaries in connection therewith), if (and only if), in the case of
this sub-clause (2), the U.S. Borrower shall have caused to be delivered to
the Administrative Agent an opinion of counsel in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent to the
effect that such counsel expects a favorable judicial outcome with respect
to the judgment, decree, attachment, claim or litigation that gave rise to
the Lien on the respective Property, provided further, however, that (I) in
no event shall the Fair Market Value of all Property (including cash) of
Holdings and its Subsidiaries located in the United States and subject to
Liens pursuant to this clause (v) (whether pledged, paid, deposited or
otherwise) exceed $25,000,000 at any time and (II) in the case of any
non-consensual attachment on the Property of any Subsidiary of the U.S.
Borrower located outside the United States, the Fair Market Value of such
Property shall not be included for purposes of calculating compliance with
the immediately preceding proviso;
(vi) Liens (other than any Lien imposed by ERISA) (x) incurred or
deposits made in the ordinary course of business of the U.S. Borrower and
its Subsidiaries in connection with workers' compensation, unemployment
insurance and other types of social security, (y) to secure the performance
by the U.S. Borrower and its Subsidiaries of tenders, statutory obligations
(other than excise taxes not described in Section 9.03(i)), surety and
customs bonds, statutory bonds,
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bids, leases, government contracts, trade contracts, performance and return
of money bonds and other similar obligations (exclusive of (I) obligations
for the payment of borrowed money and (II) stay and appeal bonds and other
obligations described in Section 9.03(v) above) or (z) to secure the
performance by the U.S. Borrower and its Subsidiaries of leases of Real
Property, to the extent incurred or made in the ordinary course of business
consistent with past practices, provided that the aggregate Fair Market
Value of all Property pledged or deposited at any time pursuant to
preceding sub-clauses (y) and (z) shall not exceed $25,000,000 in the
aggregate (it being understood that letters of credit and bank guaranties
issued in support of customs bonds, licensing arrangements and similar
obligations do not constitute Property pledged or deposited to support such
obligations);
(vii) licenses, sublicenses, leases or subleases granted to third
Persons in the ordinary course of business not interfering in any material
respect with the business of the U.S. Borrower or any of its Subsidiaries;
(viii) (x) Permitted Encumbrances and (y) easements, rights-of-way,
restrictions, encroachments, municipal and zoning ordinances and other
similar charges or encumbrances, and minor title deficiencies, in each case
not securing Indebtedness and not materially interfering with the conduct
of the business of Holdings or any of its Subsidiaries;
(ix) Liens arising from or related to precautionary UCC financing
statements regarding operating leases entered into by the U.S. Borrower and
its Subsidiaries in the ordinary course of business;
(x) Liens upon assets of the U.S. Borrower or any of its Subsidiaries
subject to Capitalized Lease Obligations permitted pursuant to Section
9.04(iv), provided that (x) such Liens only serve to secure the payment of
Indebtedness arising under such Capitalized Lease Obligation and (y) the
Lien encumbering the asset giving rise to the Capitalized Lease Obligation
does not encumber any other asset of the U.S. Borrower or any of its
Subsidiaries;
(xi) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or
financing of the purchase price within 30 days after the respective
purchase) of assets acquired after the Restatement Effective Date by the
U.S. Borrower and its Subsidiaries, provided that (x) any such Liens attach
only to the assets so purchased, (y) the Indebtedness secured by any such
Lien does not exceed 100% of the Fair Market Value or the purchase price of
the property being purchased at the time of the incurrence of such
Indebtedness and (z) the Indebtedness secured thereby is permitted to be
incurred pursuant to Section 9.04(iv);
(xii) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the U.S. Borrower
in existence at the time such Subsidiary is acquired pursuant to a
Permitted Acquisition, provided that (i) any Indebtedness that is secured
by such Liens is permitted to exist under Section 9.04(vi), and (ii) such
Liens are not incurred in connection with, or in contemplation or
anticipation of, such Permitted Acquisition and do not attach to any other
asset of the U.S. Borrower or any of its Subsidiaries;
(xiii) restrictions imposed in the ordinary course of business and
consistent with past practices on the sale or distribution of designated
inventory pursuant to agreements with customers under which such inventory
is consigned by the customer or such inventory is designated for sale to
one or more customers;
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(xiv) Liens in favor of customs or revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(xv) bankers' liens, rights of setoff and other similar liens existing
solely with respect to cash and Cash Equivalents on deposit in one or more
of the accounts described below, in each case granted in the ordinary
course of business in favor of the bank or banks with which the accounts
are maintained, securing amounts owing to such bank with respect to cash
management and operating account arrangements, including those involving
pooled accounts and netting arrangements, provided that in no case shall
any such Liens secure (either directly or indirectly) the repayment of any
Indebtedness;
(xvi) Liens securing Permitted Refinancing Indebtedness permitted
pursuant to Section 9.04(vii) to the extent such Liens comply with clause
(b)(ii) of the definition of Permitted Refinancing Indebtedness;
(xvii) Liens on the assets of a Foreign Subsidiary (other than the
Bermuda Partnership) which is not a Foreign Credit Party securing
Indebtedness incurred by such Foreign Subsidiary in accordance with the
terms of Section 9.04(viii);
(xviii) Liens over promissory notes evidencing grower loans pledged in
favor of financial institutions securing Indebtedness permitted to be
incurred pursuant to Section 9.04(xix)(x); and
(xix) other Liens of the U.S. Borrower or any Subsidiary of the U.S.
Borrower that (x) were not incurred in connection with borrowed money, (y)
do not encumber any Property of the U.S. Borrower or any of its
Subsidiaries the Fair Market Value of which exceeds the amount of the
Indebtedness or other obligations secured by such Property or materially
impair the use of such Property in the operation of the business of the
U.S. Borrower or such Subsidiary and (z) do not secure obligations in
excess of $100,000,000 in the aggregate for all such Liens.
In connection with the granting of Liens of the type described in clauses (iv),
(x), (xi), (xii), (xvi), (xvii) and (xix) of this Section 9.03 by the U.S.
Borrower or any of its Subsidiaries, the Administrative Agent and the Collateral
Agent shall be authorized, at the request of any Credit Agreement Party, to take
any actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the assets subject to such Liens).
9.04 Indebtedness. No Credit Agreement Party will, nor will permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Scheduled Existing Indebtedness outstanding on the Restatement
Effective Date and listed on Schedule IV, without giving effect to any
subsequent extension, renewal or refinancing thereof, except that Scheduled
Existing Indebtedness may be refinanced through one or more issuances of
Permitted Refinancing Indebtedness in accordance with Section 9.04(vii)
below;
(iii) Indebtedness of the Borrowers under Interest Rate Protection
Agreements entered into to protect them against fluctuations in interest
rates in respect of Indebtedness
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otherwise permitted under this Agreement, so long as the entering into of
such Interest Rate Protection Agreements are bona fide hedging activities
and are not for speculative purposes;
(iv) Capitalized Lease Obligations and Indebtedness of the U.S.
Borrower and its Subsidiaries representing purchase money Indebtedness
secured by Liens permitted pursuant to Section 9.03(xi), provided that (i)
all such Capitalized Lease Obligations are permitted under Section 9.10 and
(ii) the sum of (x) the aggregate Capitalized Lease Obligations outstanding
at any time plus (y) the aggregate principal amount of such purchase money
Indebtedness outstanding at any time shall not exceed $25,000,000;
(v) intercompany Indebtedness of (w) the U.S. Borrower and its
Subsidiaries to the extent permitted by Sections 9.05(vi) and (xvii), (x)
the U.S. Borrower owed to Intermediate Holdco to the extent permitted by
Section 9.05(xxvi), (y) Intermediate Holdco owed to the U.S. Borrower or
Holdings to the extent permitted by Section 9.05(xxv) or (xxvi), as the
case may be, and (z) Holdings owed to Intermediate Holdco to the extent
permitted by Section 9.05(xxv);
(vi) Indebtedness of a Subsidiary of the U.S. Borrower acquired
pursuant to a Permitted Acquisition (or Indebtedness assumed at the time of
a Permitted Acquisition of an asset securing such Indebtedness) (such
Indebtedness, "Permitted Acquired Debt"), provided that (x) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition and (y) the aggregate
principal amount of all Indebtedness outstanding pursuant to this clause
(vi) at any time (exclusive of any such Indebtedness held by a Qualified
Obligor which is not guaranteed by Holdings or any of its other
Subsidiaries and is not secured by a Lien on any Property of Holdings or
any of its Subsidiaries), when added to the aggregate principal amount of
Permitted Refinancing Indebtedness outstanding pursuant to Section
9.04(vii) at any time (except to the extent incurred to refinance Scheduled
Existing Indebtedness or Permitted Acquired Debt held by a Qualified
Obligor which is not guaranteed by Holdings or any of its other
Subsidiaries and is not secured by a Lien on any Property of Holdings or
any of its Subsidiaries and successive refinancings of the foregoing),
shall not exceed $50,000,000;
(vii) Permitted Refinancing Indebtedness, so long as (x) no Specified
Default or Event of Default is in existence at the time of the incurrence
of such Permitted Refinancing Indebtedness and immediately after giving
effect thereto and (y) the aggregate principal amount of Permitted
Refinancing Indebtedness outstanding pursuant to this clause (vii) at any
time (except to the extent incurred to refinance Scheduled Existing
Indebtedness or Permitted Acquired Debt held by a Qualified Obligor which
is not guaranteed by Holdings or any of its other Subsidiaries and is not
secured by a Lien on any Property of Holdings or any of its Subsidiaries
and successive refinancings of the foregoing), when added to the aggregate
principal amount of Permitted Acquired Debt outstanding pursuant to Section
9.04(vi) at any time (exclusive of any such Indebtedness held by a
Qualified Obligor which is not guaranteed by Holdings or any of its other
Subsidiaries and is not secured by a Lien on any Property of Holdings or
any of its Subsidiaries), shall not exceed $50,000,000;
(viii) Indebtedness of Foreign Subsidiaries of the U.S. Borrower
(other than the Bermuda Partnership) under lines of credit to any such
Foreign Subsidiary from Persons other than Holdings or any of its
Subsidiaries, the proceeds of which Indebtedness are used for such Foreign
Subsidiary's working capital and other general corporate purposes, provided
that the aggregate principal amount of all such Indebtedness outstanding at
any time for all such Foreign Subsidiaries shall not exceed $50,000,000;
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(ix) Indebtedness of Holdings under Shareholder Subordinated Notes
issued pursuant to Section 9.06(ii), so long as the aggregate outstanding
principal amount of Shareholder Subordinated Notes does not at any time
exceed $5,000,000;
(x) additional unsecured Indebtedness of the U.S. Borrower consisting
of unsecured guarantees by such Borrower of (x) obligations (which
guaranteed obligations do not themselves constitute Indebtedness) of one or
more Wholly-Owned Subsidiaries of the U.S. Borrower, (y) leases pursuant to
which one or more Wholly-Owned Subsidiaries of the U.S. Borrower are the
respective lessees and (z) Indebtedness of Wholly-Owned Subsidiaries of the
U.S. Borrower of the type permitted pursuant to Section 9.04(xiv);
(xi) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business, so long as such Indebtedness is
extinguished within five Business Days of the incurrence thereof;
(xii) Indebtedness in respect of (x) Other Hedging Agreements to the
extent permitted by Section 9.05(xii)(x) and (y) Commodity Agreements to
the extent permitted by Section 9.05(xii)(y);
(xiii) (x) Indebtedness of the U.S. Borrower or any of its
Subsidiaries evidenced by completion guarantees and performance and surety
bonds (but excluding appeal, performance and other bonds and/or guaranties
issued in respect of obligations arising in connection with litigation)
incurred in the ordinary course of business for purposes of insuring the
performance of the U.S. Borrower or such Subsidiary in an aggregate amount
not to exceed $50,000,000 at any time outstanding and (y) Indebtedness of
the U.S. Borrower or any of its Subsidiaries evidenced by appeal,
performance and other bonds and/or guaranties issued in respect of
obligations arising in connection with litigation for purposes of insuring
the performance of the U.S. Borrower or such Subsidiary in an aggregate
amount not to exceed $50,000,000 at any time outstanding;
(xiv) Indebtedness of the U.S. Borrower or any Subsidiary of the U.S.
Borrower arising from agreements of the U.S. Borrower or a Subsidiary of
the U.S. Borrower providing for indemnification, adjustment of purchase
price or other similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary of
the U.S. Borrower permitted under this Agreement (other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or Subsidiary for the purpose of financing such
acquisition), provided that the maximum assumable liability (as measured by
the reserves reasonably established on such Person's financial statements)
in respect of all such Indebtedness shall at no time exceed the gross
proceeds actually received by the U.S. Borrower and its Subsidiaries in
connection with such dispositions;
(xv) unsecured Indebtedness of the U.S. Borrower evidenced by a
guaranty of the Indebtedness or other obligations of any other Person
(including Indebtedness of Foreign Subsidiaries permitted pursuant to
clause (viii) above), so long as the aggregate amount of the Contingent
Obligations of the U.S. Borrower pursuant to this clause (xv) does not
exceed $25,000,000 at any time;
(xvi) (I) unsecured Indebtedness of the U.S Borrower incurred under
the Existing 2011 Senior Notes and the Existing 2011 Senior Notes Indenture
and of the U.S. Subsidiary Guarantors (and so long as same remain U.S.
Subsidiary Guarantors) under subordinated guarantees of the obligations of
the U.S. Borrower provided under the Existing 2011 Senior Notes Documents
to
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which they are a party, in an aggregate principal amount not to exceed
$200,000,000 (less the amount of any repayments of principal thereof after
the Restatement Effective Date), (II) unsecured Indebtedness of the U.S
Borrower incurred under the Existing 2009 Senior Notes and the Existing
2009 Notes Indenture and of the U.S. Subsidiary Guarantors (and so long as
same remain U.S. Subsidiary Guarantors) under subordinated guarantees of
the obligations of the U.S. Borrower provided under the Existing 2009
Senior Notes Documents to which they are a party, in an aggregate principal
amount not to exceed $350,000,000 (less the amount of any repayments of
principal thereof after the Restatement Effective Date), (III) unsecured
Indebtedness of the U.S Borrower incurred under the Existing 2013 Senior
Notes and the Existing 2013 Notes Indenture and of the U.S. Subsidiary
Guarantors (and so long as same remain U.S. Subsidiary Guarantors) under
subordinated guarantees of the obligations of the U.S. Borrower provided
under the Existing 2013 Senior Notes Documents to which they are a party,
in an aggregate principal amount not to exceed $155,000,000 (less the
amount of any repayments of principal thereof after the Restatement
Effective Date), (IV) unsecured Indebtedness of the U.S Borrower incurred
under Permitted Senior Notes and the other Permitted Senior Notes Documents
and of the U.S. Subsidiary Guarantors (and so long as same remain U.S.
Subsidiary Guarantors) under subordinated guarantees of the obligations of
the U.S. Borrower provided under the Permitted Senior Notes Documents to
which they are a party, so long as such Indebtedness is incurred in
accordance with the requirements of the definition of Permitted Senior
Notes, (V) unsecured Indebtedness of the U.S Borrower incurred under the
Existing 2010 Senior Notes and the Existing 2010 Senior Notes Indenture and
of the U.S. Subsidiary Guarantors (and so long as same remain U.S.
Subsidiary Guarantors) under subordinated guarantees of the obligations of
the U.S. Borrower provided under the Existing 2010 Senior Notes Documents
to which they are a party, in an aggregate principal amount not to exceed
$400,000,000 (less the amount of any repayments of principal thereof after
the Restatement Effective Date), (VI) unsecured Indebtedness of Holdings
under the Holdings Senior Notes and the other Holdings Senior Notes
Documents in an aggregate principal amount at any time outstanding not to
exceed, when added to the aggregate outstanding principal amount of the
Indebtedness of Intermediate Holdco under the Intermediate Holdco Senior
Notes Documents at such time, $250,000,000 (as such amount may be reduced
by any repayments of principal of the Holdings Senior Notes and/or the
Intermediate Holdco Senior Notes), so long as (A) such Indebtedness is
incurred in accordance with the requirements of the definition of "Holdings
Senior Notes" and (B) promptly (and, in any event, within 30 days)
following the incurrence thereof, the Net Cash Proceeds of such
Indebtedness shall have been (I) loaned and/or contributed to Intermediate
Holdco, and in turn loaned and/or contributed by Intermediate Holdco to the
U.S. Borrower, for application to the repayment of Revolving Loans or for
other working capital or general corporate purposes and/or (II) Invested in
one or more of the Unrestricted Wellbeing Joint Ventures in accordance with
the requirements of Section 9.05(xxiv), (VII) unsecured Indebtedness of
Intermediate Holdco and Corporate Holdco (as co-issuers) under the
Intermediate Holdco Senior Notes and the other Intermediate Holdco Senior
Notes Documents in an aggregate principal amount at any time outstanding
not to exceed, when added to the aggregate outstanding principal amount of
the Indebtedness of Holdings under the Holdings Senior Notes Documents at
such time, $250,000,000 (as such amount may be reduced by any repayments of
principal of the Intermediate Holdco Senior Notes and/or the Holdings
Senior Notes), so long as (A) such Indebtedness is incurred in accordance
with the requirements of the definition of "Intermediate Holdco Senior
Notes" and (B) promptly (and, in any event, within 30 days) following the
incurrence thereof, the Net Cash Proceeds of such Indebtedness shall have
been (I) loaned and/or contributed by Intermediate Holdco to the U.S.
Borrower for application to the repayment of Revolving Loans or for other
working capital or general corporate purposes and/or (II) loaned and/or
Dividended by Intermediate Holdco to Holdings, which in turn shall have
Invested the proceeds of such loan or Dividend in one or more of the
Unrestricted Wellbeing Joint Ventures in accordance with the requirements
of Section 9.05(xxiv) and (VIII)
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unsecured Indebtedness of the U.S Borrower incurred under the Permitted
Refinancing Senior Notes and the other Permitted Refinancing Senior Notes
Documents and of the U.S. Subsidiary Guarantors (and so long as same remain
U.S. Subsidiary Guarantors) under subordinated guarantees of the
obligations of the U.S. Borrower provided under the Permitted Refinancing
Senior Notes Documents to which they are a party, so long as such
Indebtedness is incurred in accordance with the requirements of the
definition of Permitted Refinancing Senior Notes;
(xvii) [reserved];
(xviii) Indebtedness of Foreign Subsidiaries of the U.S. Borrower
under bank guaranties and letters of credit issued by financial
institutions (on behalf of such Foreign Subsidiaries) in an aggregate
amount not to exceed $50,000,000 at any time;
(xix) (x) Indebtedness of Foreign Subsidiaries incurred in connection
with grower loan programs in an aggregate principal amount not to exceed
$50,000,000 at any time outstanding and (y) unsecured Indebtedness of the
U.S. Borrower evidenced by a guaranty of Indebtedness permitted pursuant to
preceding subclause (x);
(xx) Indebtedness of the U.S. Borrower or any of its Subsidiaries
incurred in connection with vehicle inventory loans in an aggregate
principal amount not to exceed $5,000,000 at one time outstanding;
(xxi) Indebtedness of the U.S. Borrower which may be deemed to exist
under its non-qualified excess savings plan for employees;
(xxii) [reserved]; and
(xxiii) additional unsecured Indebtedness of the U.S. Borrower and its
Subsidiaries (other than the Bermuda Partnership Partners and the Bermuda
Partnership) not otherwise permitted hereunder not exceeding $100,000,000
in aggregate principal amount at any time outstanding, provided that no
such additional Indebtedness shall be incurred at any time a Default or
Event of Default then exists or would result therefrom.
In addition, notwithstanding anything to the contrary contained above,
(x) in no event shall any Subsidiary of Holdings or any Unrestricted Wellbeing
Joint Venture guarantee any Indebtedness of Holdings under any Holdings Senior
Notes Document, (y) in no event shall Holdings, any Subsidiary of Intermediate
Holdco (other than Corporate Holdco) or any Unrestricted Wellbeing Joint Venture
guarantee any Indebtedness of Intermediate Holdco or Corporate Holdco under any
Intermediate Holdco Senior Notes Document and (z) Holdings shall not permit any
Unrestricted Wellbeing Joint Venture to incur any Indebtedness or any other
obligation having any element of recourse to Holdings or any of its Subsidiaries
or to any of its or its Subsidiaries' assets or properties.
9.05 Advances; Investments; Loans. No Credit Agreement Party will, nor
will permit any of its Subsidiaries to, directly or indirectly, lend money or
extend credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other Equity Interest in, or make any
capital contribution to, any Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except:
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(i) (w) the U.S. Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents; provided, however, that at any time Revolving
Loans and/or Swingline Loans are outstanding, the aggregate amount of
Unrestricted Cash held by the U.S. Borrower and its Subsidiaries shall not
exceed $100,000,000 for any period of three consecutive Business Days, (x)
Intermediate Holdco may hold cash and Cash Equivalents (I) in a de minimis
amount representing proceeds from the initial capital contribution made in
connection with its formation and (II) representing the proceeds of any
Indebtedness permitted to be incurred, or Dividends permitted to be
received, by it pursuant to the terms of this Agreement, so long as (in the
case of preceding subclause (II)) Intermediate Holdco utilizes such cash
and/or Cash Equivalents within the time periods required, and for the
purposes permitted, by this Agreement, (y) Corporate Holdco may hold cash
and Cash Equivalents in a de minimis amount representing proceeds from the
initial capital contribution made in connection with its formation and (z)
Holdings may hold cash and Cash Equivalents (I) in a de minimis amount
representing proceeds from the initial capital contribution made in
connection with its formation and (II) representing the proceeds of any
Indebtedness permitted to be incurred, or Dividends permitted to be
received, by it pursuant to the terms of this Agreement, so long as (in the
case of preceding subclause (II)) Holdings utilizes such cash or Cash
Equivalents within the time periods required, and for the purposes
permitted, by this Agreement;
(ii) the U.S. Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms (including the dating of receivables) of the U.S. Borrower or such
Subsidiary;
(iii) the U.S. Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers, trade creditors, licensees,
licensors and customers and in good faith settlement of delinquent
obligations of, and other disputes with, suppliers, trade creditors,
licensees, licensors and customers arising in the ordinary course of
business;
(iv) Interest Rate Protection Agreements entered into in compliance
with Section 9.04(iii) shall be permitted;
(v) (x) Investments constituting Intercompany Scheduled Existing
Indebtedness in existence on the Restatement Effective Date (and any
refinancings thereof permitted pursuant to Section 9.04(vii) and consistent
with the definition of Permitted Refinancing Indebtedness) and (y) such
other Investments in existence on the Restatement Effective Date and listed
on Schedule VI (without giving effect to any additions thereto or
replacements thereof); provided that any additional Investments made with
respect to the Investments described in preceding subclause (y) shall be
permitted only if independently justified under the other provisions of
this Section 9.05;
(vi) (s) Intercompany Refinancing Distributions, (t) Intercompany
Distribution Transactions in the form of intercompany loans may be made in
accordance with the requirements of Section 5.09 of the Original Credit
Agreement, (u) Qualified U.S. Obligors (other than Holdings, Intermediate
Holdco and Corporate Holdco) may make intercompany loans to each other, (v)
Qualified Non-U.S. Obligors may make intercompany loans to each other, (w)
Qualified U.S. Obligors (other than Holdings, Intermediate Holdco and
Corporate Holdco) may make intercompany loans to any Qualified Non-U.S.
Obligor, (x) Qualified Obligors and Foreign Subsidiary Guarantors that are
not Qualified Obligors may make intercompany loans to any Foreign
Subsidiary of the U.S. Borrower that is not a Qualified Obligor, (y) any
Wholly-Owned Foreign Subsidiary of the U.S. Borrower may make intercompany
loans to any Qualified Obligor
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and (z) Non-Guarantor Subsidiaries may make intercompany loans to each
other and to any Foreign Credit Party, provided that (I) unless the
respective obligor under such intercompany loan reasonably determines that
the execution, delivery and performance of an Intercompany Note is
prohibited by, or that such Intercompany Note would not be enforceable
against such obligor under, applicable local law, any such intercompany
loan made pursuant to this clause (vi) (other than any such loan made to a
Non-Wholly Owned Subsidiary) shall be evidenced by an Intercompany Note,
(II) at no time shall the aggregate outstanding principal amount of all
such intercompany loans made pursuant to subclause (w) of this clause (vi)
above (exclusive of loans made to Qualified Non-U.S. Obligors which are
promptly on-lent by such Qualified Non-U.S. Obligors to Foreign
Subsidiaries that are not Qualified Obligors in reliance on subclause (x)
above), when added to the aggregate amount of capital contributions made
pursuant to (and in reliance on) Section 9.05(viii)(y) (for this purpose,
taking the Fair Market Value of any Property (other than cash) so
contributed at the time of such contribution), exceed $200,000,000
(determined without regard to write-downs or write-offs thereof), (III) at
no time shall the aggregate outstanding principal amount of all such
intercompany loans made pursuant to subclause (x) of this clause (vi) above
(determined without regard to write-downs or write-offs thereof), when
added to the aggregate amount of capital contributions made pursuant to
(and in reliance on) Section 9.05(viii)(z) (for this purpose, taking the
Fair Market Value of any Property (other than cash) so contributed at the
time of such contribution), exceed $150,000,000, (IV) no intercompany loans
may be made pursuant to subclause (w) or (x) of this clause (vi) at any
time any Specified Default or any Event of Default is in existence (or
would be in existence after giving effect thereto), (V) subject to the
exception specified in the proviso to Section 9.01(g), each intercompany
loan made pursuant to this clause (vi) shall be subject to subordination
as, and to the extent required by, the Intercompany Subordination Agreement
and (VI) any intercompany loans made pursuant to this clause (vi) shall
cease to be permitted hereunder if the obligor or obligee thereunder ceases
to constitute a Qualified Obligor or a Foreign Subsidiary of the U.S.
Borrower as contemplated above;
(vii) (x) loans by the U.S. Borrower and its Subsidiaries to officers,
employees and directors of Holdings and its Subsidiaries for bona fide
business purposes, in each case incurred in the ordinary course of
business, in an aggregate outstanding principal amount not to exceed
$5,000,000 at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances) shall be permitted
and (y) advances of reimbursable expenses by the U.S. Borrower and its
Subsidiaries to officers, employees and directors of Holdings and its
Subsidiaries for bona fide purposes, in each case incurred in the ordinary
course of business;
(viii) (u) any Wholly-Owned Foreign Subsidiary of the U.S. Borrower
may make capital contributions to any Qualified Obligor, (v) any Qualified
U.S. Obligor may make capital contributions to any of its direct
Wholly-Owned Subsidiaries that is a Qualified U.S. Obligor, (w) any
Qualified Non-U.S. Obligor may make capital contributions to any of its
direct Wholly-Owned Subsidiaries that is a Qualified Non-U.S. Obligor, (x)
any Non-Guarantor Subsidiary may make capital contributions to any of its
direct Wholly-Owned Subsidiaries that is a Non-Guarantor Subsidiary or a
Foreign Credit Party, (y) any Qualified U.S. Obligor may make capital
contributions to any of its direct Wholly-Owned Subsidiaries that is
Qualified Non-U.S. Obligor, and (z) any Qualified Obligor and any Foreign
Subsidiary Guarantor that is not a Qualified Obligor may make capital
contributions to any of their respective direct Foreign Subsidiaries that
is not a Qualified Obligor; provided that (I) at no time shall the
aggregate amount of the capital contributions made pursuant to subclause
(y) of this clause (viii) (for this purpose, (1) taking the Fair Market
Value of any Property (other than cash) so contributed at the time of such
contribution and (2) excluding capital contributions made to a Qualified
Non-U.S. Obligor which are promptly contributed, in turn, to a Foreign
Subsidiary of such Qualified Non-U.S. Obligor
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that is not a Qualified Obligor in reliance on subclause (z) above), when
added to the aggregate outstanding principal amount of all intercompany
loans made pursuant to subclause (w) of clause (vi) above (determined
without regard to write-downs or write-offs thereof), exceed $200,000,000,
(II) at no time shall the aggregate amount of the capital contributions
made pursuant to subclause (z) of this clause (viii) (for this purpose,
taking the Fair Market Value of any Property (other than cash) so
contributed at the time of such contribution), when added to the aggregate
outstanding principal amount of all intercompany loans made pursuant to
subclause (x) of clause (vi) above (determined without regard to
write-downs or write-offs thereof), exceed $150,000,000 and (III) no
contributions may be made pursuant to subclause (y) or (z) of this clause
(viii) at any time any Specified Default or any Event of Default is in
existence (or would be in existence after giving effect thereto);
(ix) the Borrowers and the Subsidiary Guarantors may make Permitted
Acquisitions in accordance with the relevant requirements of Section 8.15
and the component definitions therein;
(x) the U.S. Borrower and its Subsidiaries may own the capital stock
of, or other Equity Interests in, their respective Subsidiaries created or
acquired in accordance with the terms of this Agreement;
(xi) the U.S. Borrower and its Subsidiaries may acquire and hold
non-cash consideration issued by the purchaser of assets in connection with
a sale of such assets to the extent permitted by Sections 9.02(v), (xiv)
and (xviii);
(xii) the U.S. Borrower and its Subsidiaries may enter into (x) Other
Hedging Agreements in the ordinary course of business providing protection
against fluctuations in currency values in connection with the operations
of the U.S. Borrower or any of its Subsidiaries and (y) Commodity
Agreements in the ordinary course of business providing protection against
fluctuations in prices of commodities used in the operations of the U.S.
Borrower and its Subsidiaries, in each case, so long as management of the
U.S. Borrower or such Subsidiary, as the case may be, has determined in
good faith that the entering into of such Other Hedging Agreements or
Commodity Agreements, as the case may be, are bona fide hedging activities
and are not for speculative purposes;
(xiii) Holdings may acquire and hold obligations of one or more
officers, directors or other employees of Holdings or any of its
Subsidiaries in connection with such officers', directors' or employees'
acquisition of shares of capital stock of Holdings, so long as no cash is
paid by Holdings or any of its Subsidiaries to such officers, directors or
employees in connection with the acquisition of any such obligations;
(xiv) [reserved];
(xv) loans or advances by any Subsidiary of Holdings in connection
with grower loan programs; provided that (I) at no time shall the aggregate
outstanding principal amount of all such loans and advances made pursuant
to this clause (xv) exceed $75,000,000 (determined without regard to
write-downs or write-offs thereof), (II) no loans or advances may be made
pursuant to clause (xv) at any time any Specified Default or any Event of
Default is in existence (or would be in existence after giving effect
thereto), and (III) in the event a loan or advance made by a Credit Party
pursuant to this clause (xv) is evidenced by a promissory note, such
promissory note shall be pledged to the Collateral Agent pursuant to the
relevant Foreign Security Document (except to
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the extent local law or the relevant grower loan documents prohibit such
pledge or such note is required to be pledged to secure Indebtedness
incurred pursuant to Section 9.04(xix)(x));
(xvi) so long as no Default or Event of Default then exists or would
result therefrom, the U.S. Borrower and its Subsidiaries may acquire Equity
Interests in Persons (who, after giving effect to such acquisition, become
Non-Wholly Owned Subsidiaries of the U.S. Borrower or such Subsidiary);
provided that the aggregate amount of the Investments made pursuant to this
clause (xvi) after the Restatement Effective Date shall not exceed
$50,000,000 (without regard to any write-downs or write-offs thereof);
(xvii) any Non-Wholly Owned Subsidiary of the U.S. Borrower may make
loans to its shareholders generally so long as (x) the U.S. Borrower or its
respective Subsidiary which owns the Equity Interest in the Subsidiary
making such loans receives at least its proportionate share of such loans
(based upon its relative holding of the Equity Interests in the Subsidiary
making such loans), (y) unless the entering into of the Intercompany
Subordination Agreement requires the consent of the minority shareholder of
such Non-Wholly Owned Subsidiary (and such consent is not obtained), such
Non-Wholly-Owned Subsidiary (as obligee of such loan) and the U.S. Borrower
or such other Subsidiary (as obligor of such loan) shall be subject to the
provisions of the Intercompany Subordination Agreement and (z) the
aggregate outstanding principal amount of all loans pursuant to this clause
(xvii) which are not subject to the subordination provisions of the
Intercompany Subordination Agreement shall not exceed $50,000,000 at any
time;
(xviii) Investments constituting guaranties permitted by Section 9.04;
(xix) the Bermuda Partnership Partners may make additional Investments
in the Bermuda Partnership not otherwise permitted by this Section, so long
as (w) the Bermuda Partnership promptly (and in any event within one
Business Day of receipt thereof) uses 100% of the cash proceeds of such
Investment to make a prepayment on the intercompany loan owing by it to the
Bermuda Borrower and incurred pursuant to the Intercompany Distribution
Transactions, (x) the Bermuda Borrower uses all of the proceeds of such
prepayment within one Business Day of the date of receipt thereof to prepay
Term Loans owing by it in accordance with the requirements of Section
4.01(vii), (y) if any U.S. Borrower Incremental Term Loans are then
outstanding, the U.S. Borrower makes a concurrent prepayment of U.S.
Borrower Incremental Term Loans in accordance with the requirements of
Section 4.01(vii) and (z) any Investment in the form of an intercompany
loan or advance pursuant to this clause (xix) shall be subject to
subordination as, and to the extent required by, the Intercompany
Subordination Agreement;
(xx) so long as no Default or Event of Default then exists or would
result therefrom, the U.S. Borrower and its Subsidiaries may make
Investments not otherwise permitted by clauses (i) through (xix) and
succeeding clauses (xxi) and (xxv) of this Section 9.05 in an aggregate
amount not to exceed $100,000,000 (determined without regard to any
write-downs or write-offs thereof);
(xxi) the Bermuda Borrower may make intercompany loans (solely with
the proceeds of Bermuda Multicurrency Facility Revolving Loans) to a
Foreign Subsidiary which is not a Qualified Non-U.S. Obligor but which has
(I) entered into a guaranty of the full amount of Bermuda Borrower
Multicurrency Facility Revolving Loans incurred to fund the intercompany
loans made by the Bermuda Borrower to the respective Foreign Subsidiary
(plus accrued interest thereon), (II) entered into Foreign Security
Documents (covering all or substantially all of its assets and consistent
with the criteria described in Sections 5.15, 5.17 and 5.18(b) of the
Original Credit Agreement for Foreign Security Documents entered into on
the Initial Borrowing Date)
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securing its obligations under such guaranty, (III) an intercompany loan
agreement, in each case in form and substance satisfactory to the
Administrative Agent and (IV) taken all action in connection with the
foregoing as would have been required to be taken by such entity if same
had been a Foreign Subsidiary Guarantor under the Original Credit Agreement
on the Initial Borrowing Date; provided however that any guaranty to be
entered into pursuant to preceding subclause (I) (x) shall not be subject
to a net worth or similar limitation, and (y) may be subject to customary
insolvency, corporate benefit, financial capability or similar limitations
or rules acceptable to the Administrative Agent;
(xxii) [reserved];
(xxiii) [reserved];
(xxiv) so long as no Default or Event of Default then exists or would
result therefrom, Holdings may from time to time (I) make cash common
equity contributions, and/or intercompany loans to, Westlake Wellbeing
Company, and (II) make cash common equity contributions, and/or
intercompany loans, to Wellbeing IP Holdco and/or Wellbeing Edco; provided
that (x) Holdings shall at all times own or hold at least 85% of the Equity
Interests of Westlake Wellbeing Company (on a fully diluted basis) and at
least 50% of the Equity Interests of each of Wellbeing IP Holdco and
Wellbeing Edco (on a fully diluted basis), (y) all of the Equity Interests
of each of the Unrestricted Wellbeing Joint Ventures held by Holdings shall
have been delivered and pledged by Holdings to the Collateral Agent
pursuant to the U.S. Pledge Agreement, and (z) each Investment made by
Holdings pursuant to this clause (xxiv) in the form of an intercompany loan
shall be evidenced by an Intercompany Note pledged to the Collateral Agent
pursuant to the U.S. Pledge Agreement;
(xxv) the U.S. Borrower may make intercompany loans to Intermediate
Holdco, and Intermediate Holdco may make intercompany loans to Holdings, at
the times and for the purposes described below, so long as (i) no Default
or Event of Default then exists or would result therefrom, (ii) the Total
Unutilized Revolving Loan Commitment shall equal or exceed $25,000,000
immediately after giving effect to each such intercompany loan (and any
related Dividend made pursuant to Section 9.06(x)), (iii) each such
intercompany loan is permitted pursuant to the terms of the Existing Senior
Notes Documents and the Intermediate Holdco Senior Notes Documents and, on
and after the execution and delivery thereof, the Holdings Senior Notes
Documents, the Permitted Senior Notes Documents and the Permitted
Refinancing Senior Notes Documents, (iv) no such intercompany loan by the
U.S. Borrower to Intermediate Holdco shall be made, unless the proceeds
thereof are promptly (and in any event within 5 Business Days of the making
of such intercompany loan) (A) on-loaned by Intermediate Holdco to Holdings
for use within the time periods required by, and for the purposes described
in, immediately succeeding clause (v), (B) Dividended by Intermediate
Holdco to Holdings for use within the time periods required by, and for the
purposes described in, Section 9.06(x)(v) or (C) utilized by Intermediate
Holdco to pay regularly scheduled interest on the Intermediate Holdco
Senior Notes when and as due in accordance with the requirements of the
Intermediate Holdco Senior Notes Documents, (v) the proceeds of each such
intercompany loan received by Holdings shall be utilized by Holdings (I)
promptly (and, in any event, within 30 days of the receipt of such
proceeds) to make an Investment in one or more Unrestricted Wellbeing Joint
Ventures pursuant to Section 9.05(xxiv) for the purposes of financing the
construction and start-up of the Wellbeing Project and/or the operations of
the Unrestricted Wellbeing Joint Ventures or (II) promptly (and, in any
event, within 5 Business Days of the receipt of such proceeds) to pay
regularly scheduled interest on the Holdings Senior Notes when and as due
in accordance with the requirements of the Holdings Senior Notes Documents,
and (vi) each such intercompany loan shall be evidenced by
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an Intercompany Note pledged by the U.S. Borrower or Intermediate Holdco,
as the case may be, to the Collateral Agent pursuant to the U.S. Pledge
Agreement; and
(xxvi) (x) Intermediate Holdco may make intercompany loans to the U.S.
Borrower with the proceeds from (I) the incurrence of the Intermediate
Holdco Senior Notes or (II) any Investment made in it by Holdings with the
proceeds of Holdings Senior Notes or an Equity Infusion, so long as each
such intercompany loan shall be evidenced by an Intercompany Note pledged
by Intermediate Holdco to the Collateral Agent pursuant to the U.S. Pledge
Agreement and (y) Holdings may make intercompany loans to Intermediate
Holdco with the proceeds from (I) the incurrence of the Holdings Senior
Notes or (II) any Equity Infusion, so long as each such intercompany loan
shall be evidenced by an Intercompany Note pledged by Intermediate Holdco
to the Collateral Agent pursuant to the U.S. Pledge Agreement.
9.06 Restricted Payments; etc. No Credit Agreement Party will, nor
will permit any of its Subsidiaries to, declare or pay any dividends (other than
dividends payable solely in non-redeemable common stock or comparable common
equity interests of Holdings or any such Subsidiary, as the case may be) or
return any equity capital to, its stockholders, partners, members or other
equity holders or authorize or make any other distribution, payment or delivery
of property or cash to its stockholders, partners, members or other equity
holders as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital stock or
other Equity Interests, now or hereafter outstanding (or any warrants for or
options or stock appreciation rights in respect of any of such shares or other
Equity Interests), or set aside any funds for any of the foregoing purposes, and
no Credit Agreement Party will permit any of its Subsidiaries to purchase or
otherwise acquire for a consideration any shares of any class of the capital
stock or other Equity Interests of any direct or indirect parent of such
Subsidiary now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock or
other Equity Interests) (all of the foregoing "Dividends") or make any payments
in respect of any outstanding Shareholder Subordinated Notes or Intercompany
Debt, except that:
(i) (x) any Subsidiary of the U.S. Borrower may pay Dividends to the
U.S. Borrower or any Wholly-Owned Subsidiary of the U.S. Borrower and (y)
any non-Wholly-Owned Subsidiary of the U.S. Borrower may pay cash Dividends
to its shareholders generally so long as the U.S. Borrower or its
respective Subsidiary which owns the Equity Interest in the Subsidiary
paying such Dividends receives at least its proportionate share thereof
(based upon its relative holding of the Equity Interests in the Subsidiary
paying such Dividends and taking into account the relative preferences, if
any, of the various classes of Equity Interests of such Subsidiary);
provided that any Dividend made pursuant to preceding clause (x) to any
Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A)
(I) no Specified Default and no Event of Default then exists or would
result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes
and/or transfer any Property received pursuant to such Dividend (directly
or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or
(B) the Subsidiary making such Dividend is not a Credit Party; provided
however, that, subject to Section 9.01(d)(v), any such Dividend may be made
to the Bermuda Partnership notwithstanding the existence of an Event of
Default (other than an Event of Default under Section 10.01 or 10.05) so
long as (a) the Bermuda Partnership complies with clause (II) of the
preceding proviso and (b) the Bermuda Partnership Partners are (after
giving effect to the receipt of any Dividend from Bermuda Partnership) in
compliance with the requirements of Section 9.01(d);
(ii) Holdings may redeem or purchase shares of Holdings Common Stock
or options to purchase Holdings Common Stock, as the case may be, held by
former officers or employees of Holdings or any of its Subsidiaries
following the death, disability, retirement or termination of
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employment of such officers or employees, provided that (w) the only
consideration paid by Holdings in respect of such redemptions and/or
purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of
(A) the aggregate amount paid by Holdings in cash in respect of all such
redemptions and/or purchases plus (B) the aggregate amount of all principal
and interest payments made on Shareholder Subordinated Notes, shall not
exceed $2,000,000 in any Fiscal Year of Holdings, and (z) at the time of
any redemption or purchase pursuant to this Section 9.06(ii), no Specified
Default or Event of Default shall then exist or result therefrom;
(iii) (A) the U.S. Borrower may pay cash Dividends to Intermediate
Holdco, so long as (x) no Specified Default or Event of Default then exists
or would result therefrom and (y) the cash proceeds thereof are promptly
used by Intermediate Holdco to pay the cash Dividend described in
succeeding clause (B) and (B) Intermediate Holdco may pay cash Dividends to
Holdings, so long as (x) no Specified Default or Event of Default then
exists or would result therefrom and (y) the cash proceeds thereof are
promptly used by Holdings for the purposes described in Section 9.06(ii);
(iv) (A) the U.S. Borrower may pay cash Dividends to Intermediate
Holdco, so long as the proceeds thereof are promptly used by Intermediate
Holdco to pay its operating expenses in the ordinary course of business
(including, without limitation, professional fees and expenses) and other
similar corporate overhead costs and expenses, (B) the U.S. Borrower may
pay cash Dividends to Intermediate Holdco, so long as Intermediate Holdco
promptly contributes such proceeds to Corporate Holdco and the proceeds of
such contribution are promptly used by Corporate Holdco to pay its
operating expenses in the ordinary course of business (including, without
limitation, professional fees and expenses) and other similar corporate
overhead costs and expenses, and (C) the U.S. Borrower may pay cash
Dividends to Intermediate Holdco, which, in turn, may pay cash Dividends to
Holdings, so long as the proceeds thereof are promptly used by Holdings to
pay operating expenses in the ordinary course of its business (including,
without limitation, professional fees and expenses) and other similar
corporate overhead costs and expenses;
(v) the U.S. Borrower may pay cash Dividends to Intermediate Holdco,
and Intermediate Holdco may in turn pay cash Dividends to Holdings, in the
amounts and at the times of any payment by Holdings in respect of its taxes
(or taxes of its consolidated group), provided that (x) the amount of cash
Dividends paid pursuant to this clause (v) to enable Holdings to pay taxes
at any time shall not exceed the amount of such taxes owing by Holdings at
such time and (y) any refunds received by Holdings attributable to the U.S.
Borrower or any of its Subsidiaries shall be promptly returned by Holdings
to Intermediate Holdco, and, in turn, by Intermediate Holdco to the U.S.
Borrower, provided further that (A) in no event shall the amount of
Dividends paid by the U.S. Borrower and its Subsidiaries pursuant to this
clause (v) in respect of any taxable year for which the U.S. Borrower and
any of its Subsidiaries are included in a consolidated federal income tax
return, or a consolidated, combined or unitary state or local tax return
with any Person other than the U.S. Borrower and its Subsidiaries (such
other Person or Persons included in such returns, together with the U.S.
Borrower and its Subsidiaries, the "Affiliated Group") exceed, in the
aggregate, the lesser of (I) the amount of such federal income tax or state
or local tax, as the case may be (the "Relevant Separate Tax Liability"),
that the U.S. Borrower and its Subsidiaries would have been obligated to
pay if the U.S. Borrower and its Subsidiaries had filed a separate
consolidated federal income tax return or a separate consolidated, combined
or unitary state or local tax return, as the case may be, for such year and
all prior taxable years (with the U.S. Borrower as the common parent of
such affiliated group) and (II) the product of (a) the federal income or
state or local tax liability, as the case may be, of the Affiliated Group
for such year and (b) a fraction, (x) the numerator of which is an amount
equal to the Relevant Separate
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Tax Liability of the U.S. Borrower and its Subsidiaries for such year and
(y) the denominator of which is the aggregate of the total separate federal
income, state or local tax liability, as the case may be, that each member
of the Affiliated Group (treating the U.S. Borrower and its Subsidiaries as
a single member and all other members of the Affiliated Group as one
separate member) would have incurred for such year if such members had
filed separate federal income tax returns or separate consolidated,
combined or unitary state or local tax returns, as the case may be, for
such year and all prior taxable years and (B) each Unrestricted Wellbeing
Joint Venture shall be required to contribute to Holdings (and shall
concurrently or prior to any payment of any Dividend by the U.S. Borrower
pursuant to this Section 9.06(v) have contributed to Holdings) its
allocable share (as reasonably determined by Holdings in good faith) of all
tax liabilities of Holdings and its consolidated Subsidiaries;
(vi) [reserved];
(vii) Holdings and its Subsidiaries may make payments with respect to
Intercompany Debt, so long as the respective payment is permitted to be
made in accordance with the terms of the Intercompany Subordination
Agreement; provided that, in no event shall the U.S. Borrower be permitted
to repay any Intercompany Debt incurred by it from Intermediate Holdco
pursuant to Section 9.05(xxvi), unless the conditions set forth in
subclauses (i), (ii), (iii) and (iv) of Section 9.06(x) shall have been
satisfied at such time (for such purposes, treating each reference to the
making of a Dividend in said subclauses as if it were a reference to the
repayment of such Intercompany Debt);
(viii) Holdings may make payments of interest and principal on the
Shareholder Subordinated Notes in accordance with the terms thereof, so
long as the sum of (A) the aggregate amount paid by Holdings in cash in
respect of all redemptions and/or purchases of Holdings Common Stock
pursuant to Section 9.06(ii) plus (B) the aggregate amount of all principal
and interest payments made on Shareholder Subordinated Notes, does not
exceed $2,000,000 in any Fiscal Year of Holdings;
(ix) Holdings may pay regularly scheduled Dividends on Qualified
Preferred Stock issued by it pursuant to the terms thereof solely through
the issuance of additional shares of such Qualified Preferred Stock rather
than in cash;
(x) the U.S. Borrower may pay cash Dividends to Intermediate Holdco,
and Intermediate Holdco may pay cash Dividends to Holdings, at the times
and for the purposes described below, so long as (i) no Default or Event of
Default then exists or would result therefrom, (ii) the Total Unutilized
Revolving Loan Commitment shall equal or exceed $25,000,000 immediately
after giving effect to each such Dividend (and any related intercompany
loan made pursuant to Section 9.05(xxv)), (iii) each such Dividend is
permitted pursuant to the terms of the Existing Senior Notes Documents and,
on and after the execution and delivery thereof, the Permitted Senior Notes
Documents and the Permitted Refinancing Senior Notes Documents, (iv) no
such Dividend by the U.S. Borrower to Intermediate Holdco shall be paid,
unless the proceeds thereof are promptly (and in any event within 5
Business Days of the payment of such Dividend) (A) Dividended by
Intermediate Holdco to Holdings for use within the time periods required
by, and for the purposes described in, immediately succeeding clause (v),
(B) on-loaned by Intermediate Holdco to Holdings for use within the time
periods required by, and for the purposes described in, Section
9.05(xxv)(v) or (C) utilized by Intermediate Holdco to pay regularly
scheduled interest on the Intermediate Holdco Senior Notes when and as due
in accordance with the requirements of the Intermediate Holdco Senior Notes
Documents and (v) the proceeds of each such Dividend received by Holdings
shall be utilized by Holdings (I)
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promptly (and, in any event, within 30 days of the payment of such
Dividend) to make an Investment in one or more Unrestricted Wellbeing Joint
Ventures pursuant to Section 9.05(xxiv) for the purposes of financing the
construction and start-up of the Wellbeing Project and/or the operations of
the Unrestricted Wellbeing Joint Ventures or (II) promptly (and, in any
event, within 5 Business Days of the receipt of such proceeds) to pay
regularly scheduled interest on the Holdings Senior Notes when and as due
in accordance with the requirements of the Holdings Senior Notes Documents;
and
(xi) the Intercompany Refinancing Distributions shall be permitted.
9.07 Transactions with Affiliates. No Credit Agreement Party will, nor
will permit any of its Subsidiaries to, enter into any transaction or series of
transactions with any Affiliate of Holdings or any of its Subsidiaries other
than in the ordinary course of business and on terms and conditions
substantially as favorable to such Credit Agreement Party or such Subsidiary as
would be reasonably expected to be obtainable by such Credit Agreement Party or
such Subsidiary at the time in a comparable arm's-length transaction with a
Person other than an Affiliate; provided that the following shall in any event
be permitted: (i) the Transaction; (ii) intercompany transactions among the U.S.
Borrower and its Subsidiaries to the extent expressly permitted by Sections
9.02, 9.04, 9.05 and 9.06; (iii) the payment of consulting or other fees to the
U.S. Borrower by any of its Subsidiaries in the ordinary course of business;
(iv) customary fees to non-officer directors of the U.S. Borrower and its
Subsidiaries; (v) the U.S. Borrower and its Subsidiaries may enter into the
employment arrangements with respect to the procurement of services with their
respective officers and employees in the ordinary course of business; (vi)
Dividends may be paid by Holdings to the extent permitted by Section 9.06; (vii)
the payment of customary fees (excluding management fees) to the Agents and
their Affiliates for services rendered (including, without limitation, any
underwriting discounts and commissions); (viii) transactions between the U.S.
Borrower and/or any of its Subsidiaries and their respective Affiliates listed
on Schedule XVI hereto; and (ix) the California Disposition and any loan of all
or a portion of the Net Sale Proceeds therefrom to an Affiliate of the U.S.
Borrower, so long as (and only so long as) such transactions would not (in the
absence of this clause (ix) and, for such purpose, assuming same were in the
"ordinary course of business") give rise to a violation of this Section 9.07. In
no event shall any management, consulting or similar fee be paid or payable by
Holdings or any of its Subsidiaries to any Affiliate (other than the U.S.
Borrower or any other Credit Party), except as specifically provided in this
Section 9.07.
9.08 Consolidated Interest Coverage Ratio. Holdings and the U.S.
Borrower will not permit the Consolidated Interest Coverage Ratio for any Test
Period ended on the last day of a Fiscal Quarter set forth below to be less than
the ratio set forth opposite such Fiscal Quarter below:
Fiscal Quarter Ratio
-------------- -----
1st Fiscal Quarter of Fiscal Year 2005 2.55:1.0
2nd Fiscal Quarter of Fiscal Year 2005 2.60:1.0
3rd Fiscal Quarter of Fiscal Year 2005 2.65:1.0
4th Fiscal Quarter of Fiscal Year 2005 2.70:1.0
and each Fiscal Quarter thereafter
For purposes of making determinations of compliance with this Section 9.08
pursuant to Section 8.15(a) and 9.11(i)(z) and the definition of "Incremental
Loan Commitment Requirements" only, the Consolidated Interest Coverage Ratio
shall be calculated on a Pro Forma Basis.
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9.09 Leverage Ratio. Holdings and the U.S. Borrower will not permit
the Leverage Ratio at any time during a period set forth below to be greater
than the ratio set forth opposite such period below:
Period Ratio
------ -----
Last day of the 1st Fiscal Quarter of Fiscal Year 2005 to and 4.75:1.0
including the day occurring prior to the last day of the 2nd Fiscal
Quarter of Fiscal Year 2006
Last day of the 2nd Fiscal Quarter of Fiscal Year 2006 to and 4.50:1.0
including the day occurring prior to the last day of the 3rd Fiscal
Quarter of Fiscal Year 2006
Last day of the 3rd Fiscal Quarter of Fiscal Year 2006 to and 4.25:1.0
including the day occurring prior to the last day of the 4th Fiscal
Quarter of Fiscal Year 2006
Last day of the 4th Fiscal Quarter of Fiscal Year 2006 to and 4.00:1.0
including the day occurring prior to the last day of the 3rd Fiscal
Quarter of Fiscal Year 2007
Last day of the 3rd Fiscal Quarter of Fiscal Year 2007 to and 3.75:1.0
including the day occurring prior to the last day of the 1st Fiscal
Quarter of Fiscal Year 2009
Last day of the 1st Fiscal Quarter of Fiscal Year 2009 and thereafter 3.50:1.0
Notwithstanding anything to the contrary contained in the table set forth above,
at any time from November 1 to and including the last day of the 1st Fiscal
Quarter of each Fiscal Year, the Leverage Ratio as otherwise set forth in the
table above for the applicable period shall be adjusted by increasing the ratio
by 0.25 (for example, for the period from November 1, 2009 to and including the
last day of the 1st Fiscal Quarter of Fiscal Year 2010, the Leverage Ratio would
be increased from 3.50:1.00 to 3.75:1.00). All determinations of the Leverage
Ratio for purposes of this Section 9.09 shall include Consolidated EBITDA as
calculated on a Pro Forma Basis to give effect to all Permitted Acquisitions and
Significant Asset Sales, if any, effected during (but not after) the respective
Test Period for which Consolidated EBITDA is being determined; provided that for
purposes of making determinations of compliance with this Section 9.09 pursuant
to Sections 8.15(a) and 9.11(i)(z) and the definition of "Incremental Loan
Commitment Requirements", the Leverage Ratio shall be calculated on a Pro Forma
Basis as otherwise required by the definition of Pro Forma Basis contained
herein.
9.10 Capital Expenditures. (a) The U.S. Borrower will not, and will
not permit any of its Subsidiaries to, make any Capital Expenditures, except
that (i) during Fiscal Year 2005 (taken as one accounting period), the U.S.
Borrower and its Subsidiaries may make Capital Expenditures in an aggregate
amount not to exceed the sum of (x) $150,000,000 plus (y) $59,768,000 (i.e., the
aggregate amount of Capital Expenditures not used in Fiscal Year 2004 and
permitted to be carried forward and utilized to make Capital Expenditures in
Fiscal Year 2005 pursuant to the terms of Section 9.12 of the Original Credit
Agreement) (the "2004 Rollover Amount") and (ii) during any Fiscal Year set
forth below (taken as one accounting period), the U.S. Borrower and its
Subsidiaries may make Capital Expenditures so long as the aggregate amount of
such Capital Expenditures does not exceed the amount set forth below opposite
such Fiscal Year below:
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Fiscal Year Amount
----------- ------
Fiscal Year 2006 $175,000,000
Fiscal Year 2007 $150,000,000
Fiscal Year 2008 $150,000,000
Fiscal Year 2009 $150,000,000
Fiscal Year 2010 $150,000,000
Fiscal Year 2011 $150,000,000
Fiscal Year 2012 $150,000,000
(b) Notwithstanding the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the U.S. Borrower and its
Subsidiaries pursuant to clause (a) above in any Fiscal Year of the U.S.
Borrower (before giving effect to any increase in such permitted Capital
Expenditure amount pursuant to this clause (b) and, in the case of Fiscal Year
2005, without giving effect to the 2004 Rollover Amount) is greater than the
amount of Capital Expenditures actually made by the U.S. Borrower and its
Subsidiaries during such Fiscal Year (or period, as the case may be) such excess
may be carried forward and utilized to make Capital Expenditures in the
immediately succeeding Fiscal Year, provided that no amounts once carried
forward pursuant to this Section 9.10(b) may be carried forward to any
subsequent Fiscal Year of Holdings thereafter and such amounts may only be
utilized after the U.S. Borrower and its Subsidiaries have utilized in full the
permitted Capital Expenditure amount for such period as set forth in clause (a)
above (without giving effect to any increase in such amount pursuant to this
clause (b)).
(c) In addition to the foregoing, the U.S. Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.10(a) or
(b)) with the Net Sale Proceeds of Asset Sales to the extent such Net Sale
Proceeds do not require, or result in, a mandatory repayment of Term Loans
and/or a mandatory reduction to the Total Incremental Term Loan Commitment
and/or the Total Revolving Loan Commitment pursuant to Section 4.02(c) and such
proceeds are reinvested within 360 days (subject to a six month extension for
contractual commitments that are not completed during such 360-day period)
following the date of such Asset Sale in accordance with the requirements of
said Section.
(d) In addition to the foregoing, the U.S. Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.10(a) or
(b)) with the insurance proceeds received by the U.S. Borrower or any of its
Subsidiaries from any Recovery Event so long as such Capital Expenditures are to
replace or restore any properties or assets in respect of which such proceeds
were paid within 360 days (subject to a six month extension for contractual
commitments that are not completed during such 360-day period) following the
date of the receipt of such insurance proceeds, in each case to the extent such
insurance proceeds do not require, or result in, a mandatory repayment of Term
Loans and/or a mandatory reduction to the Total Incremental Term Loan Commitment
and/or the Total Revolving Loan Commitment pursuant to Section 4.02(e).
(e) In addition to the foregoing, the Borrowers and the Subsidiary
Guarantors may make additional Capital Expenditures (which Capital Expenditures
will not be included in any
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determination under Section 9.10(a) or (b)) constituting Permitted Acquisitions
effected in accordance with the requirements of Section 8.15.
(f) In addition to the foregoing, the U.S. Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.10(a) or
(b)) in aggregate amount not to exceed the Retained Excess Cash Flow Amount at
such time.
(g) In addition to the foregoing, the U.S. Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.10(a) or
(b)) in aggregate amount not to exceed $50,000,000 for the sole purpose of
constructing a single manufacturing plant located in the United States.
9.11 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
Other Agreements; Issuances of Capital Stock; etc. (a) No Credit Agreement Party
will, and no Credit Agreement Party will permit any of its Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption, repurchase or acquisition for value
of (including, without limitation, by way of depositing with the trustee
with respect thereto or any other Person money or securities before due for
the purpose of paying when due), or any prepayment, repurchase, redemption
or acquisition for value as a result of any asset sale, change of control
or similar event of any Existing Indebtedness, any Intermediate Holdco
Senior Notes or, after the incurrence or issuance thereof, any Permitted
Refinancing Indebtedness, any Shareholder Subordinated Note (except to the
extent expressly permitted under Section 9.06(viii)), any Qualified
Preferred Stock, any Permitted Acquired Debt, any Holdings Senior Note, any
Permitted Senior Note or any Permitted Refinancing Senior Note; provided
that:
(u) the Refinancing may be consummated in accordance with the
requirements of this Agreement;
(v) the Holdings Senior Notes may be exchanged for Holdings Exchange
Senior Notes in accordance with the requirements of the respective definitions
thereof and the relevant provisions of this Agreement;
(w) the Intermediate Holdco Senior Notes may be exchanged for
Intermediate Holdco Exchange Senior Notes in accordance with the requirements of
the respective definitions thereof and the relevant provisions of this
Agreement;
(x) so long as no Default and no Event of Default then exists or would
result therefrom, any Existing Senior Notes, any Permitted Senior Notes and any
Permitted Refinancing Senior Notes may be refinanced with any Permitted
Refinancing Senior Notes in accordance with the requirements of this Agreement;
(y) so long as no Specified Default and no Event of Default then
exists or would result therefrom, any Scheduled Existing Indebtedness, any
Permitted Acquired Debt and any Permitted Refinancing Indebtedness incurred to
refinance same may be refinanced with Permitted Refinancing Indebtedness in
accordance with the requirements of this Agreement; and
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(z) Existing Senior Notes, Permitted Senior Notes and Permitted
Refinancing Senior Notes may from time to time be redeemed in accordance with
the terms of the indenture therefor and/or repurchased on the open-market, so
long as (I) no Default or Event of Default then exists or would result
therefrom, (II) subject to the immediately preceding proviso, the aggregate
amount of cash expended to effect such repurchases and/or redemptions (and to
pay all accrued but unpaid interest, all premium and all other amounts payable
on the Indebtedness so repurchased or redeemed through the respective date of
repurchase or redemption) after the Restatement Effective Date does not exceed
$50,000,000, (III) after giving effect to the respective repurchase or
redemption and the incurrence of any Revolving Loans and Swingline Loans to
finance the same, the Total Unutilized Revolving Loan Commitment shall equal or
exceed $25,000,000 million, (IV) calculations are made by the Borrower of
compliance with the covenants contained in Sections 9.08 and 9.09 (in each case,
after giving effect to the last sentence appearing therein) for the Calculation
Period most recently ended prior to the date of the respective repurchase or
redemption (determined on a Pro Forma Basis after giving effect to the
respective repurchase or redemption and the incurrence of any Indebtedness to
finance same), as set forth in a certificate by an Authorized Officer of the
U.S. Borrower furnished to the Administrative Agent on the date of such
repurchase or redemption and (V) all such Existing Senior Notes, Permitted
Senior Notes or Permitted Refinancing Senior Notes, as the case may be, so
repurchased or redeemed are promptly cancelled by the U.S. Borrower; provided
however, that additional Existing Senior Notes, Permitted Senior Notes and
Permitted Refinancing Senior Notes may be redeemed in accordance with the terms
of the indenture therefor and/or repurchased on the open-market (without regard
to preceding sub-clause (II), so long as (a) the aggregate amount of cash
expended to effect such repurchases and/or redemptions (and to pay all accrued
but unpaid interest, all premium and all others amount payable on the
Indebtedness so repurchased or redeemed through the respective date of
repurchase or redemption) in reliance on this proviso does not exceed the
Retained Excess Cash Flow Amount in effect at the time such repurchase or
redemption is made and (b) the requirements of subclauses (I), (III), (IV) and
(V) above have been satisfied at such time;
(ii) amend or modify, or permit the amendment or modification of, any
provision of any Existing Senior Notes Document or any Intermediate Holdco
Senior Notes Document or, on and after the execution and delivery thereof,
any Holdings Senior Notes Document, any Permitted Senior Notes Document and
any Permitted Refinancing Senior Notes Document, in any such case other
than any technical or clarifying amendments, modifications or changes to
any such Documents that are not in any way adverse to the interests of the
Lenders and do not relate to the subordination provisions contained
therein; or
(iii) amend, modify or change any Permitted Acquired Debt, any
Permitted Refinancing Indebtedness, any Tax Allocation Agreement, any
Management Agreement, any Qualified Preferred Stock, its certificate of
incorporation (including, without limitation, by the filing or modification
of any certificate of designation), by-laws, certificate of partnership,
partnership agreement, certificate of limited liability company, limited
liability company agreement (or equivalent organizational documents) or any
agreement entered into by it, with respect to its capital stock or other
Equity Interests (including any Shareholders' Agreement), or enter into any
new Tax Allocation Agreement, Management Agreement or agreement with
respect to its capital stock or other Equity Interests, other than (A) any
change to Permitted Acquired Debt or Permitted Refinancing Indebtedness as
a result of the refinancing thereof as permitted by Section 9.11(i), (B)
any amendments or modifications to Permitted Refinancing Debt or Qualified
Preferred Stock consistent with the definitions thereof provided herein and
(C) any amendments,
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modifications or changes pursuant to this clause (iii) and any such new
agreements pursuant to this clause (iii), (x) which do not in any way
adversely affect the interests of the Lenders, (y), in the case of any
Management Agreement, which does not involve the payment by Holdings or any
of its Subsidiaries of any amount which could give rise to a violation of
this Agreement and (z) any amendment to such Person's respective
certificates of incorporation or other organizational documents to
authorize the issuance of capital stock or other Equity Interests otherwise
permitted to be issued pursuant to the terms of this Agreement.
(b) Neither Holdings nor any of its Subsidiaries shall designate any
Indebtedness (other than the Obligations) as "Designated Guarantor Senior Debt"
or "Designated Senior Debt" for purposes of the Existing Senior Notes Documents
or, on and after the execution and delivery thereof, the Permitted Senior Notes
Documents and the Permitted Refinancing Senior Notes Documents.
9.12 Limitation on Issuance of Equity Interests. (a) Holdings will not
issue (i) any Preferred Equity (or any options, warrants or rights to purchase
Preferred Equity) (other than Qualified Preferred Stock issued pursuant to
clause (c) below) or (ii) any redeemable common stock or equivalent common
Equity Interests.
(b) Neither Intermediate Holdco nor any Borrower shall, nor shall
permit any of its Subsidiaries to, issue any capital stock or other Equity
Interests (including by way of sales of treasury stock), except (i) for
transfers and replacements of then outstanding shares of capital stock or other
Equity Interests, (ii) for stock splits, stock dividends and additional
issuances which do not decrease the aggregate percentage ownership of Holdings
and its Subsidiaries in any class of the capital stock or other Equity Interests
of such Subsidiaries, (iii) in the case of Foreign Subsidiaries of the U.S.
Borrower, to qualify directors to the extent required by applicable law, (iv)
Subsidiaries formed after the Initial Borrowing Date pursuant to Section 9.14
(or Section 9.17 of the Original Credit Agreement) may issue capital stock or
other Equity Interests in accordance with the requirements of Section 9.14 (or,
for periods prior to the Restatement Effective Date, Section 9.17 of the
Original Credit Agreement) and (v) issuances of Equity Interests (including
Preferred Equity) by any Wholly-Owned Subsidiary of the U.S. Borrower to one or
more other Wholly-Owned Subsidiaries of the U.S. Borrower. All capital stock or
other Equity Interests issued in accordance with this Section 9.12(b) shall, to
the extent required by the relevant Security Document, be delivered to the
Collateral Agent for pledge pursuant to such Security Document.
(c) Holdings may from time to time (i) issue Qualified Preferred
Stock, so long as (x) no Default or Event of Default shall exist at the time of
any such issuance or immediately after giving effect thereto, and (y) with
respect to each issuance of Qualified Preferred Stock, the gross cash proceeds
therefrom (or in the case of Qualified Preferred Stock directly issued as
consideration for a Permitted Acquisition, the Fair Market Value thereof of the
assets received therefor) shall be at least equal to 100% of the liquidation
preference thereof at the time of issuance and (ii) issue additional shares of
Qualified Preferred Stock to pay in kind regularly scheduled Dividends on
Qualified Preferred Stock theretofore issued in compliance with this Section
9.12(c).
9.13 Limitation on Certain Restrictions on Subsidiaries. No Credit
Agreement Party will, nor will permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective,
any encumbrance or restriction on the ability of any such Subsidiary to (x) pay
dividends or make any other distributions on its capital stock or any other
Equity Interests or participation in its profits owned by Holdings or any
Subsidiary of Holdings, or pay any Indebtedness owed to Holdings or a Subsidiary
of Holdings, (y) make loans or advances to Holdings or any Subsidiary of
Holdings or (z) transfer any of its properties or assets to Holdings or any of
its Subsidiaries, except for such encumbrances or restrictions existing under or
by reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any
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lease governing a leasehold interest of the U.S. Borrower or a Subsidiary of the
U.S. Borrower, (iv) customary provisions restricting assignment of any licensing
agreement (in which the U.S. Borrower or any of its Subsidiaries is the
licensee) or any other contract entered into by the U.S. Borrower or any
Subsidiary of the U.S. Borrower in the ordinary course of business, (v) any
agreement or instrument governing Permitted Acquired Debt, which encumbrance or
restriction is not applicable to any Person or the properties or assets of any
Person, other than the Person or the properties or assets of the Person acquired
pursuant to the respective Permitted Acquisition and so long as the respective
encumbrances or restrictions were not created (or made more restrictive) in
connection with or in anticipation of the respective Permitted Acquisition, (vi)
restrictions applicable to any Non-Wholly Owned Subsidiary existing at the time
of the acquisition thereof as a result of an Investment pursuant to Section 9.05
or a Permitted Acquisition effected in accordance with Section 8.15; provided
that the restrictions applicable to such joint venture are not made more
burdensome, from the perspective of the U.S. Borrower and its Subsidiaries, than
those as in effect immediately before giving effect to the consummation of the
respective Investment or Permitted Acquisition; (vii) any restriction or
encumbrance with respect to assets subject to Liens permitted by Sections
9.03(iv), (x), (xi), (xii) and (xvi); (viii) the Existing 2011 Senior Notes
Documents; (ix) the Existing 2010 Senior Notes Documents; (x) the Existing 2009
Senior Notes Documents; (xi) the Existing 2013 Senior Notes Documents; (xii) on
and after the execution and delivery thereof, the Holdings Senior Notes
Documents; (xiii) the Intermediate Holdco Senior Notes Documents; (xiv) on and
after the execution and delivery thereof, the Permitted Senior Notes Documents;
and (xv) on and after the execution and delivery thereof, the Permitted Senior
Refinancing Notes Documents.
9.14 Limitation on the Creation of Subsidiaries and Joint Ventures.
(a) Except as otherwise specifically provided in immediately succeeding clause
(b), Holdings will not, and will not permit any of its Subsidiaries to,
establish, create or acquire after the Initial Borrowing Date any Subsidiary,
provided that the U.S. Borrower and its Wholly-Owned Subsidiaries shall be
permitted to establish or create Wholly-Owned Subsidiaries so long as (A) at
least 1 Business Day's (or such lesser period as is acceptable to the
Administrative Agent in any given case) prior written notice thereof is given to
the Administrative Agent (provided that no such notice shall be required to be
given (x) in the case of a Shell Corporation or (y) in the case of a Foreign
Subsidiary entitled to defer the taking of actions otherwise required by this
Section 9.14(a) as a result of the application of clause (z) of the immediately
succeeding proviso), (B) subject to Sections 8.11(d) and 8.12, the Equity
Interests of each such new Wholly-Owned Subsidiary (if same is an Unrestricted
Subsidiary) are pledged pursuant to, and to the extent required by, the
applicable Pledge Agreements and/or Foreign Security Agreements and, if such
Equity Interests constitute certificated Equity Interests, the certificates
representing such Equity Interests, together with stock or other powers duly
executed in blank, are delivered to the Collateral Agent for the benefit of the
Secured Creditors, (C) to the extent such new Wholly-Owned Subsidiary is
required, in accordance with the applicable provisions of Section 8.11, to
become a U.S. Subsidiary Guarantor, (i) such new Wholly-Owned Subsidiary
executes and delivers counterparts of the U.S. Subsidiaries Guaranty, the
Intercompany Subordination Agreement and such Security Documents as would have
been entered into by the respective Subsidiary if same had been a U.S.
Subsidiary Guarantor under the Original Credit Agreement on the Initial
Borrowing Date, and takes all action in connection therewith as would otherwise
have been required to be taken pursuant to Section 5 of the Original Credit
Agreement if such new Wholly-Owned Subsidiary had been a U.S. Credit Party under
the Original Credit Agreement on the Initial Borrowing Date, (D) to the extent
such new Wholly-Owned Subsidiary is organized in a Qualified Non-U.S.
Jurisdiction and is required, in accordance with the applicable provisions of
Section 8.11, to become a Foreign Subsidiary Guarantor, (i) such new
Wholly-Owned Subsidiary executes and delivers counterparts of the Foreign
Subsidiaries Guaranty, the Intercompany Subordination Agreement and such
Security Documents as would have been entered into by the respective Subsidiary
if same had been a Foreign Subsidiary Guarantor under the Original Credit
Agreement on the Initial Borrowing Date (determined in accordance with the
criteria described in Sections 5.15, 5.17 and 5.18(b) of the Original Credit
Agreement), and takes all action in connection therewith as would otherwise have
been required to
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be taken pursuant to Section 5 of the Original Credit Agreement if such new
Wholly-Owned Subsidiary had been a Foreign Credit Party under the Original
Credit Agreement on the Initial Borrowing Date, (E) to the extent such new
Wholly-Owned Subsidiary is organized in a Non-Qualified Jurisdiction and is
required, in accordance with the applicable provisions of Section 8.11, to
become a Foreign Subsidiary Guarantor, (i) such new Wholly-Owned Subsidiary
executes and delivers counterparts of the Foreign Subsidiaries Guaranty and, in
each case unless the Administrative Agent otherwise agrees based on advice of
local counsel, the Intercompany Subordination Agreement and such Security
Documents as would have been entered into by the respective Subsidiary if same
had been a Foreign Subsidiary Guarantor under the Original Credit Agreement
organized in such Non-Qualified Jurisdiction on the Initial Borrowing Date
(determined in accordance with the criteria described in Sections 5.15, 5.17 and
5.18(b) of the Original Credit Agreement), and takes all action in connection
therewith as would otherwise have been required to be taken pursuant to Section
5 of the Original Credit Agreement if such new Wholly-Owned Subsidiary had been
a Foreign Credit Party under the Original Credit Agreement organized in such
Non-Qualified Jurisdiction on the Initial Borrowing Date and (F) such new
Wholly-Owned Subsidiary, to the extent requested by any Agent or the Required
Lenders, takes all other actions required pursuant to Section 8.11 (including,
without limitation, to, at its own expense, execute, acknowledge and deliver, or
cause the execution, acknowledgment and delivery of, and thereafter register,
file or record in any appropriate governmental office, any document or
instrument reasonably deemed by the Collateral Agent to be necessary or
desirable for the creation and perfection of the Liens on its assets intended to
be created pursuant to the applicable Security Documents); provided that (x) the
Credit Documents required to be executed and delivered pursuant to clauses (C),
(D) and (E) by such newly formed, created or acquired Subsidiary shall not be
required to be so executed and delivered until 45 days after the formation,
creation or acquisition of such Subsidiary, (y) in the case of a Shell
Corporation created or established by the U.S. Borrower or any of its
Wholly-Owned Subsidiaries, the actions described in clauses (B), (C), (D) and
(E) and applicable to such Shell Corporation shall not be required to be taken
(so long as same remains a Shell Corporation) until 60 days after the creation
or establishment of such Shell Corporation and (z) in the case of a newly-formed
Wholly-Owned Subsidiary of the U.S. Borrower organized in (i) a Qualified
Non-U.S. Jurisdiction or (ii) a Non-Qualified Jurisdiction in which an existing
Foreign Subsidiary Guarantor is organized, the actions described in clauses (D),
(E) and (F) and applicable to such Wholly-Owned Subsidiary, shall not be
required to be taken by such Wholly-Owned Subsidiary if the gross book value of
its assets (determined as of the last day of the calendar month then last ended)
is less than $10,000,000, until (and only until) the aggregate gross book value
of all Wholly-Owned Subsidiaries which have not taken the actions described in
clauses (D), (E) and (F) and applicable to such Wholly-Owned Subsidiaries in
reliance on this proviso (determined as of the last day of the calendar month
then last ended) exceeds $20,000,000, at which time all such excluded
Wholly-Owned Subsidiaries (and not just those Wholly-Owned Subsidiaries required
to reduce the aggregate gross book value of such excluded Wholly-Owned
Subsidiaries to below $20,000,000) shall take the actions described in clauses
(D), (E) and (F) and applicable to such Wholly-Owned Subsidiaries.
(b) In addition to Subsidiaries of the U.S. Borrower created pursuant
to preceding clause (a), the U.S. Borrower and its Subsidiaries may establish,
acquire or create, and make Investments in, Non-Wholly Owned Subsidiaries after
the Initial Borrowing Date as a result of Permitted Acquisitions (subject to the
limitations contained in the definition thereof) and Investments expressly
permitted to be made pursuant to Section 9.05, provided that (x) all Equity
Interests of each such Non-Wholly Owned Subsidiary which is an Unrestricted
Subsidiary shall be pledged by any Credit Party which owns same to the extent
required by the Pledge Agreements or relevant Foreign Security Agreements, and
(y) any actions required to be taken pursuant to Section 8.11 in connection with
the establishment of, or Investments in, the respective Subsidiaries are taken
in accordance with the requirements of said Section 8.11.
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9.15 Special Restrictions Relating to Principal Property. No Credit
Agreement Party will, nor will permit any of its Subsidiaries to, (i) own or
acquire any Principal Property (other than the Principal Properties designated
on Schedule XVII hereto) or (ii) directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become liable for or suffer to exist any
Indebtedness secured by a Lien on any Principal Property; provided however that,
notwithstanding the foregoing, (x) the U.S. Borrower and its Subsidiaries may
acquire (by way of third-party purchase) up to (but not more than) two Principal
Properties after the Restatement Effective Date and, thereafter, own such
Principal Properties and (y) the U.S. Borrower and its Subsidiaries may own
additional Principal Properties which are not Principal Properties on the
Restatement Effective Date (or, if acquired after the Restatement Effective
Date, on such date of acquisition) if (x) the respective Principal Property
becomes a Principal Property after the Restatement Effective Date (or such date
of acquisition) as a result of the making of capital expenditures or other
investments in such Property by the U.S. Borrower or the respective Subsidiary
or (y) the respective Principal Property is constructed by the U.S. Borrower or
the respective Subsidiary.
SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each, an "Event of Default"):
10.01 Payments. Either Borrower shall (i) default in the payment when
due of any principal of any Loan or Note, (ii) default, and such default shall
continue for three or more Business Days, in the payment when due of any Unpaid
Drawing, any Unreimbursed Payment, any interest on any Loan or Note or any Fees
or (iii) default, and such default shall continue for 10 or more Business Days
after notice to either Borrower by the Administrative Agent or any Lender, in
the payment when due of any other amounts owing hereunder or under any other
Credit Document; or
10.02 Representations, etc. (a) Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any other Credit
Document (other than a Foreign Security Document) or in any statement or
certificate delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made, (b) any
representation, warranty or statement which is qualified by a materiality
standard of any kind and is made or deemed made by any Foreign Credit Party in
any Foreign Security Document or in any statement or certificate delivered
pursuant to any Foreign Security Document shall prove to be untrue in any
material respect on the date as of which made or deemed made and (c) any
material representation, warranty or statement which is not qualified by a
materiality standard of any kind and is made or deemed made by any Foreign
Credit Party in any Foreign Security Document or in any statement or certificate
delivered pursuant to any Foreign Security Document shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
10.03 Covenants. Holdings or any of its Subsidiaries shall (a) default
in the due performance or observance by it of any term, covenant or agreement
contained in Section 2B.07, 8.01(e)(i), 8.10, 8.11, 8.13, 8.15, 8.18, 8.19,
8.20, 8.21 or 9, or (b) default in the due performance or observance by it of
any term, covenant or agreement contained in this Agreement (other than those
referred to in Section 10.01, 10.02 or clause (a) of this Section 10.03) and
such default shall continue unremedied for a period of at least 30 days after
notice to the defaulting party by the Administrative Agent or the Required
Lenders; or
10.04 Default Under Other Agreements. (a) Holdings or any of its
Subsidiaries shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which Indebtedness was created or (ii) default in
the observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to
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permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (determined without regard to whether
any notice is required), any such Indebtedness to become due prior to its stated
maturity; or (b) any Indebtedness (other than the Obligations) of Holdings or
any of its Subsidiaries shall be declared to be (or shall become) due and
payable, or shall be required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; provided that it
shall not constitute an Event of Default pursuant to clause (a) or (b) of this
Section 10.04 unless the principal amount of any one issue of such Indebtedness,
or the aggregate amount of all such Indebtedness referred to in clauses (a) and
(b) above, equals or exceeds $25,000,000; or
10.05 Bankruptcy, etc. Holdings or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Holdings or any of its Subsidiaries and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of Holdings or any of its
Subsidiaries; or Holdings or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Holdings or any of
its Subsidiaries; or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or Holdings or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Holdings or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or
Holdings or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any Company action is taken by Holdings or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
..67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days which will result in a
Material Adverse Effect, any Plan which is subject to Title IV of ERISA shall
have had or is likely to have a trustee appointed to administer such Plan
pursuant to Section 4042(b) of ERISA, any Plan or Multiemployer Plan which is
subject to Title IV of ERISA is, shall have been or is likely to be
involuntarily terminated or to be the subject of termination proceedings under
ERISA, any Plan subject to Title IV of ERISA shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan subject to
Title IV of ERISA or Multiemployer Plan or a Foreign Pension Plan has not been
made within 60 days of when due, Holdings or any Subsidiary of Holdings or any
ERISA Affiliate has incurred or is likely to incur any liability to or on
account of a Plan subject to Title IV of ERISA or Multiemployer Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) under Section 4980B of the Code, or Holdings or any Subsidiary of Holdings
has incurred or is likely to incur liabilities pursuant to one or more employee
welfare benefit plans (as defined in Section 3(1) of ERISA) that provide
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or Plans or Foreign Pension Plans, a "default" within
the meaning of Section 4219(c)(5) of ERISA, shall occur with respect to any Plan
or Multiemployer Plan; (b) there shall result from any such event or events
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described above in this Section 10.06 the imposition of a lien, the granting of
a security interest, or a liability or a material risk of incurring a liability
resulting from any event described in clause (a) above; and (c) such lien,
security interest or liability, individually and/or in the aggregate, in the
reasonable opinion of the Required Lenders, has had, or could reasonably be
expected to have, a Material Adverse Effect; or
10.07 Security Documents. (a) Any Security Document shall cease to be
in full force and effect (except in accordance with the terms thereof), or shall
cease to give the Collateral Agent for the benefit of the Secured Creditors the
Liens, rights, powers and privileges purported to be created thereby (including,
without limitation, a perfected security interest in, and Lien on, all of the
Collateral), in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons (except as permitted by Section 9.03), and subject
to no other Liens (except as permitted by Section 9.03), or (b) any Credit Party
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any such Security
Document and such default shall continue beyond any cure or grace period
specifically applicable thereto pursuant to the terms of any such Security
Document; provided that (i) the occurrence of an Excluded Event shall not give
rise to an Event of Default under this Section 10.07, (ii) the failure to have a
perfected and enforceable Lien on Collateral in favor of the Collateral Agent
shall not give rise to an Event of Default under this Section 10.07, unless the
aggregate fair market value of all Collateral over which the Collateral Agent
fails to have a perfected and enforceable Lien (exclusive of Collateral that is
the subject of an Excluded Event) equals or exceeds $10,000,000 and (iii) in the
case of any default described in clause (b) above in the due performance or
observance of any covenant or agreement contained in any Foreign Security
Document that is not (directly or indirectly) related to the perfection or
enforceability of a Lien on Collateral, such default shall not give rise to an
Event of Default until such default shall continue unremedied for a period of at
least 15 days after notice to the defaulting party by the Administrative Agent,
the Collateral Agent or the Required Lenders; or
10.08 Guaranties. Any Guaranty or any provision thereof shall cease to
be in full force or effect as to the relevant Guarantor, or any Guarantor or
Person acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under the relevant Guaranty, or any Guarantor shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to its Guaranty; provided that
the occurrence of an Excluded Event shall not give rise to an Event of Default
under this Section 10.08; or
10.09 Judgments. One or more judgments or decrees shall be entered
against Holdings or any of its Subsidiaries involving a liability (to the extent
not paid or covered by a reputable and solvent insurance company (with any
portion of any judgment or decree not so covered to be included in any
determination hereunder)) equal to or in excess of $25,000,000 for all such
judgments and decrees and all such judgments or decrees shall either be final
and non-appealable or shall not have been vacated, discharged or stayed or
bonded pending appeal for any period of 60 consecutive days; provided, however,
that the rendering of any such judgment(s) or decree(s) by courts outside of the
United States and Bermuda shall not be an Event of Default under this Section
10.09 unless (i) Holdings and its Subsidiaries which are subject to the
judgment(s) or decree(s), as of the date of the issuance of such judgment(s) or
decree(s) (or any later date while such judgment(s) or decree(s) are still in
effect) have at least $25,000,000 in net assets (determined on a book basis
without regard to any write-down or write-off of such assets as a result of such
judgment(s) or decree(s)) located in the jurisdictions (i.e., the relevant
country or countries or any larger jurisdiction of the respective court(s)) of
the courts rendering such judgment(s) or decree(s) (which is (or are) final and
non-appealable or has (or have) not been vacated, discharged, stayed or bonded
pending appeal for any period of 60 consecutive days) or (ii) an order or orders
enforcing such judgment(s) or decree(s) (which is (or are) final and
non-appealable or has (or have) not been vacated, discharged, stayed or bonded
pending appeal for any period of 60 consecutive
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days) is entered by a court or courts of competent jurisdiction in a
jurisdiction or jurisdictions where Holdings and/or its Subsidiaries subject to
the order, as of the date of the entry of such order of enforcement (or any
later date while any such order is still in effect), have at least $25,000,000
in net assets located in such jurisdiction or jurisdictions (determined on a
book basis without regard to any write-down or write-off of such assets as a
result of such judgment(s) or decree(s)); or
10.10 Ownership. A Change of Control shall have occurred; or
10.11 Denial of Liability. (a) Any Credit Agreement Party shall deny
its obligations under this Agreement, any Note or any other Credit Document, (b)
any law, rule or regulation shall purport to render invalid, or preclude
enforcement of, any provision of this Agreement or any other Credit Document or
impair performance of any Foreign Credit Party's obligations hereunder or under
any other Credit Document or (c) any dominant authority asserting or exercising
de jure or de facto governmental or police powers shall, by moratorium laws or
otherwise, cancel, suspend or defer the obligation of any Foreign Credit Party
to pay any amount required to be paid hereunder or under any other Credit
Document; provided that the occurrence of an Excluded Event shall not give rise
to an Event of Default under this Section 10.11; or
10.12 Governmental Action. Any governmental authority shall have
condemned, nationalized, seized, or otherwise expropriated all or any
substantial part of the property, shares of capital stock or other assets of any
Foreign Credit Party or any of its Subsidiaries, or shall have assumed custody
or control of such property or other assets or of the business or operations of
any Foreign Credit Party or any of its Subsidiaries, or shall have taken any
action for the dissolution or disestablishment of any Foreign Credit Party or
any of its Subsidiaries or any action that would prevent any Foreign Credit
Party, any of its Subsidiaries or any of their respective officers from carrying
on the business of such Foreign Credit Party or such Subsidiary or a substantial
part thereof; provided that the occurrence of an Excluded Event shall not give
rise to an Event of Default under this Section 10.12; or
10.13 Special Defaults Relating to Bermuda Entities. (i) The Bermuda
Borrower shall fail to maintain its corporate existence in full force and effect
or (ii) any Foreign Credit Party organized under the laws of Bermuda shall (x)
fail to take any of the actions described in Section 8.05 (determined without
regard to the second proviso appearing in said Section) or (y) take any action
described in the last sentence of Section 8.16 (determined without regard to the
proviso appearing at the end of said sentence), and such failure to take or the
taking of such action, as the case may be, described in this clause (ii) shall
continue for a period of at least 30 days after notice to such Foreign Credit
Party by the Administrative Agent or the Required Lenders;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to Holdings or the U.S.
Borrower, take any or all of the following actions, without prejudice to the
rights of any Agent or any Lender to enforce its claims against any Credit Party
(provided that if an Event of Default specified in Section 10.05 shall occur
with respect to either Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment terminated, whereupon the Commitment of each Lender
shall forthwith terminate immediately and any RL Commitment Commission and any
other Fees shall forthwith become due and payable without any other notice of
any kind; (ii) declare the principal of and any accrued interest in respect of
all Loans and all Obligations owing hereunder (including Unpaid Drawings and
Unreimbursed Payments) to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrowers; (iii) enforce, as Collateral Agent (or
direct the Collateral Agent to enforce), any or all of the Liens and security
interests created
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pursuant to the Security Documents; (iv) terminate any Letter of Credit or Bank
Guaranty which may be terminated in accordance with its terms; (v) direct the
Bermuda Borrower to pay (and the Bermuda Borrower agrees that upon receipt of
such notice, or upon the occurrence of an Event of Default specified in Section
10.05 with respect to either Borrower, it will pay) to the Administrative Agent
at the Payment Office such additional amount of cash (in the respective
currencies in which such Letters of Credit or Bank Guaranties are denominated),
to be held as security by the Administrative Agent, as is equal to the sum of
(x) the aggregate Stated Amount of all Bermuda Borrower Multicurrency Facility
Letters of Credit issued for the account of the Bermuda Borrower and then
outstanding, (y) the aggregate Stated Amount of all Bermuda Borrower Dollar
Facility Letters of Credit then outstanding and (z) the aggregate Face Amount of
all Bank Guaranties issued for the account of the Bermuda Borrower and then
outstanding; (vi) direct the U.S. Borrower to pay (and the U.S. Borrower agrees
that upon receipt of such notice, or upon the occurrence of an Event of Default
specified in Section 10.05 with respect to either Borrower, it will pay) to the
Administrative Agent at the Payment Office such additional amount of cash (in
the respective currencies in which such Letters of Credit are denominated), to
be held as security by the Administrative Agent, as is equal to sum of (x) the
aggregate Stated Amount of all U.S. Borrower Multicurrency Facility Letters of
Credit then outstanding, (y) the aggregate Stated Amount of all U.S. Borrower
Dollar Facility Letters of Credit then outstanding and (z) the aggregate Face
Amount of all U.S. Borrower Bank Guaranties then outstanding; and (vii) apply
any cash collateral held by the Administrative Agent as provided in Section 4.02
to the repayment of the Obligations.
SECTION 11. Definitions. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Account Party" shall mean, with respect to Letters of Credit or Bank
Guaranties, the U.S. Borrower and/or the Bermuda Borrower, as the case may be.
"Acquired Entity or Business" shall mean either (x) the assets
constituting a business, division or product line of any Person not already a
Subsidiary of Holdings or (y) 100% of the Equity Interests of any such Person,
which Person shall, as a result of such acquisition of Equity Interests, become
a Wholly-Owned Subsidiary of Holdings (or shall be merged with and into the U.S.
Borrower, the Bermuda Borrower or a another Wholly-Owned Subsidiary of the U.S.
Borrower, with the U.S. Borrower, the Bermuda Borrower or such other
Wholly-Owned Subsidiary being the surviving Person).
"Additional Collateral" shall mean all property (whether real or
personal) in which security interests are granted (or have been purported to be
granted) (and continue to be in effect at the time of determination) pursuant to
Sections 8.11, 8.12 and/or 9.14.
"Additional Mortgage" shall have the meaning provided in Section
8.11(a).
"Additional Mortgaged Property" shall have the meaning provided in
Section 8.11(a).
"Additional Security Documents" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into from
time to time pursuant to Sections 8.11, 8.12, 8.15, 9.14 and/or 13.20, as each
such document may be modified, supplemented or amended from time to time in
accordance with the terms hereof and thereof.
"Additional Tranche B Term Loans" shall have the meaning provided in
Section 1.01(b).
"Adjustable Applicable Margins" shall have the meaning provided in the
definition of Applicable Margin.
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"Adjusted Consolidated Net Income" shall mean, for any period,
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense)
and net non-cash losses which were included in arriving at Consolidated Net
Income for such period, less the amount of all net non-cash gains which were
included in arriving at Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" shall mean, at any time,
Consolidated Current Assets at such time (but excluding therefrom all cash and
Cash Equivalents) less Consolidated Current Liabilities at such time.
"Adjusted Excess Cash Flow" shall mean, for any period, the remainder
of (i) Excess Cash Flow for such period minus (ii) the aggregate amount of
principal repayments of Loans to the extent (and only to the extent) that such
repayments were made as a voluntary prepayment pursuant to Section 4.01 hereof
or of the Original Credit Agreement with internally generated funds (but in a
case of a voluntary prepayment of Original Revolving Loans, Original Swingline
Loans, Revolving Loans or Swingline Loans only to the extent accompanied by a
voluntary reduction to the Total Revolving Loan Commitment in an amount equal to
such prepayment) during such period.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 12.10.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control another Person if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors (or
equivalent governing body) of such Person or (ii) to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise; provided, however,
that neither any Agent nor any Lender (nor any Affiliate thereof) shall be
considered an Affiliate of Holdings or any Subsidiary thereof.
"Affiliated Group" shall have the meaning provided in Section 9.06(v).
"After-Acquired Foreign Personal Property" shall have the meaning
provided in Section 8.11(k).
"Agent" shall mean the Administrative Agent, each Co-Syndication Agent
and each Co-Documentation Agent and shall include any successor to any such
Person appointed pursuant to Section 12.10.
"Aggregate Bermuda Borrower Dollar Facility RL Exposure" at any time
shall mean the sum of (i) the aggregate principal amount of all Bermuda Borrower
Dollar Facility Revolving Loans then outstanding, plus (ii) the aggregate amount
of all Bermuda Borrower Dollar Facility Letter of Credit Outstandings at such
time plus (iii) the aggregate principal amount of all Bermuda Borrower Dollar
Facility Swingline Loans then outstanding.
"Aggregate Dollar Facility RL Exposure" at any time shall mean the sum
of (i) the aggregate principal amount of all Dollar Facility Revolving Loans
then outstanding, plus (ii) the
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aggregate amount of all Dollar Facility Letter of Credit Outstandings at such
time plus (iii) the aggregate principal amount of all Dollar Facility Swingline
Loans then outstanding.
"Aggregate Multicurrency Facility RL Exposure" at any time shall mean
the sum of (i) the aggregate principal amount of all Multicurrency Facility
Revolving Loans then outstanding (for this purpose, using the Dollar Equivalent
of each Euro Denominated Revolving Loan then outstanding), plus (ii) the
aggregate amount of all Multicurrency Facility Letter of Credit Outstandings
(using the Dollar Equivalent of all amounts expressed in Euros or Sterling) at
such time, plus (iii) the aggregate principal amount of all Multicurrency
Facility Swingline Loans (for this purpose, using the Dollar Equivalent of each
Euro Denominated Swingline Loan then outstanding) plus (iv) the aggregate amount
of all Bank Guaranty Outstandings (using the Dollar Equivalent of all amounts
expressed in Euros or Sterling) at such time.
"Aggregate U.S. Borrower Multicurrency Facility RL Exposure" at any
time shall mean the sum of (i) the aggregate principal amount of all U.S.
Borrower Multicurrency Facility Revolving Loans then outstanding (for this
purpose, using the Dollar Equivalent of each such U.S. Borrower Multicurrency
Facility Revolving Loan denominated in Euros), plus (ii) the aggregate amount of
all U.S. Borrower Multicurrency Facility Letter of Credit Outstandings (using
the Dollar Equivalent of all amounts expressed in Euros or Sterling) at such
time, plus (iii) the aggregate principal amount of all U.S. Borrower
Multicurrency Facility Swingline Loans then outstanding (for this purpose, using
the Dollar Equivalent of each such U.S. Borrower Multicurrency Swingline Loan
denominated in Euros) plus (iv) the aggregate amount of all U.S. Borrower Bank
Guaranty Outstandings (using the Dollar Equivalent of all amounts expressed in
Euros or Sterling) at such time.
"Agreement" shall mean this Credit Agreement, as amended and restated
and as the same may be further modified, supplemented, amended, restated,
extended, renewed, refinanced and/or replaced from time to time.
"Applicable Currency" shall mean (i) with respect to any Loan, the
Available Currency in which such Loan was incurred and (ii) with respect to any
Letter of Credit or Bank Guaranty, the Available Currency in which such Letter
of Credit or Bank Guaranty was denominated; provided that in the event Loans
maintained in, Unpaid Drawings owed in, and Unreimbursed Payments owed in, a
Non-Dollar Currency are converted into Loans maintained, or Unpaid Drawings or
Unreimbursed Payments owing, as the case may be, in Dollars under the
circumstances contemplated by Section 1.14, the Applicable Currency with respect
to such Loans, Unpaid Drawings and Unreimbursed Payments shall be Dollars.
"Applicable Margin" shall mean, commencing on the Restatement
Effective Date, initially a percentage per annum equal to (i) in the case of
Tranche A Term Loans maintained as (A) Base Rate Loans, 0.50% and (B) Yen
Denominated Term Loans, 1.50%; (ii) in the case of Tranche B Term Loans and
Revolving Loans maintained as (A) Base Rate Loans 0.50% and (B) Eurodollar
Loans, 1.50%; (iii) in the case of Swingline Loans maintained as (A) Base Rate
Loans, 0.50% and (B) Euro Rate Loans, 1.50%; (iv) in the case of any Type of
Incremental Term Loan of a given Tranche, that percentage per annum set forth
in, or calculated in accordance with, Section 1.15 and the relevant Incremental
Term Loan Commitment Agreement; and (v) in the case of the RL Commitment
Commission, 0.375%. From and after each day of delivery on or after the
Restatement Effective Date of any certificate delivered in accordance with the
first sentence of the following paragraph indicating an entitlement to a margin
for a given Tranche of Loans (other than Tranche B Term Loans and Incremental
Term Loans) specified in the pricing grid below (each, a "Start Date") to and
including the applicable End Date described below, the Applicable Margins for
such eligible Tranche of Loans (hereinafter, the "Adjustable Applicable
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Margins") shall be those set forth below opposite the Leverage Ratio indicated
to have been achieved in any certificate delivered in accordance with the
following sentence:
Multicurrency Facility
Revolving
Loan, Dollar Facility Multicurrency Facility
Revolving Loan, Revolving Loan,
Revolving Loan, Tranche Dollar Facility
A Term Loan Revolving Loan and
and Swingline Loan Euro Swingline Loan Base RL Commitment
Leverage Ratio Rate Margin Rate Margin Commission
-------------- ----------------------- ---------------------- -------------
Greater than 3.5 to 1.0 but 1.25% 0.25% 0.375%
less than or equal to 4.00 to 1.0
Greater than 3.0 to 1.0 but 1.00% 0% 0.25%
less than or equal to 3.50 to 1.0
Equal to or greater than 0.875% 0% 0.25%
2.5 to 1.0 but less than or
equal to 3.00 to 1.0
Less than 2.50 to 1.00 0.75% 0% 0.25%
The Leverage Ratio used in a determination of the Adjustable
Applicable Margins for a given eligible Tranche of Loans shall be determined
based on the delivery of a certificate of Holdings by an Authorized Officer of
Holdings to the Administrative Agent (with a copy to be sent by the
Administrative Agent to each Lender), within 3 Business Days after the 45th day
following the last day of any Fiscal Quarter of Holdings (each such certificate,
a "Quarterly Pricing Certificate"), which certificate shall set forth the
calculation of the Leverage Ratio as at the last day of the Test Period ended
immediately prior to the relevant Start Date (but determined on a Pro Forma
Basis solely to give effect to all Permitted Acquisitions (if any) and all
Significant Asset Sales (if any) consummated on or prior to the date of delivery
of such certificate and any Indebtedness incurred, assumed or permanently repaid
in connection therewith) and the Adjustable Applicable Margins for such eligible
Tranche of Loans which shall be thereafter applicable (until same are changed or
cease to apply in accordance with the following sentences); provided that at the
time of the consummation of any Permitted Acquisition or Significant Asset Sale,
an Authorized Officer of Holdings shall deliver to the Administrative Agent a
certificate setting forth the calculation of the Leverage Ratio on a Pro Forma
Basis (solely to give effect to all Permitted Acquisitions, if any, and all
Significant Asset Sales (if any) consummated on or prior to the date of the
delivery of such certificate and any Indebtedness incurred or assumed in
connection therewith) as of the last day of the last Calculation Period ended
prior to the date on which such Permitted Acquisition or Significant Asset Sale
is consummated for which financial statements have been made available (or were
required to be made available) pursuant to Section 8.01(a) or (b), as the case
may be, and the date of such consummation shall be deemed to be a Start Date and
the Adjustable Applicable Margins for each eligible Tranche of Loans which shall
be thereafter applicable (until same are changed or cease to apply in accordance
with the following sentences) shall be based upon the Leverage Ratio as so
calculated. The Adjustable Applicable Margins for each eligible Tranche of Loans
as so determined shall apply, except as set forth in the succeeding sentence,
from the relevant Start Date to the earliest of (x) the date on which the next
certificate is delivered to the Administrative Agent, (y) the date on which
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the next Permitted Acquisition or Significant Asset Sale is consummated or (z)
the date which is the third 3 Business Day after the 45th day following the last
day of the Test Period in which the previous Start Date occurred (such earliest
date, the "End Date"), at which time, if no certificate has been delivered to
the Administrative Agent indicating an entitlement to new Adjustable Applicable
Margins for the respective eligible Tranche of Loans (and thus commencing a new
Start Date), the Adjustable Applicable Margins for such Tranche of Loans shall
be those set forth in the first sentence of this definition (such Adjustable
Applicable Margins as so determined, the "Highest Adjustable Applicable
Margins"). Notwithstanding anything to the contrary contained above in this
definition, (x) the Adjustable Applicable Margins shall be the Highest
Adjustable Applicable Margins at all times during which there shall exist any
Specified Default or any Event of Default and (y) at all times prior to the date
of delivery of the financial statements pursuant to Section 8.01(a) for the 2nd
Fiscal Quarter of Fiscal Year 2005, the Adjustable Applicable Margins for any
Tranche of Loans shall be the Highest Adjustable Applicable Margin therefor.
"Applicable Prepayment Percentage" shall mean, at any time, (i) for
purposes of Section 4.02(f) and the definitions of "Retained Excess Cash Flow
Amount", 50%; provided that, so long as no Default or Event of Default is then
in existence, (i) if at any time the Leverage Ratio is less than 3.50:1.00 (as
set forth in an officer's certificate delivered pursuant to Section 8.01(d) for
the Fiscal Quarter or Fiscal Year of the U.S. Borrower then last ended), the
Applicable Prepayment Percentage shall instead be 0% and (ii) for purposes of
Section 4.02(a), 105% (or, if a Default or Event of Default is in existence at
such time, 100%).
"Asset Sale" shall mean any sale, transfer or other disposition by
Holdings or any of its Subsidiaries to any Person other than the U.S. Borrower
or any Wholly-Owned Subsidiary of the U.S. Borrower of any asset or Property
(including, without limitation, any capital stock or other securities of, or
other Equity Interests in, another Person, but excluding the sale by Holdings of
its own capital stock) of Holdings or such Subsidiary other than (i) sales,
transfers or other dispositions of inventory made in the ordinary course of
business, (ii) other sales and dispositions that generate Net Sale Proceeds of
less than $15,000,000 in the aggregate in any Fiscal Year of Holdings or (iii)
sales or liquidations of Cash Equivalents, it being understood and agreed that
the grant of a Lien by Holdings or any of its Subsidiaries in favor of another
Person shall not in and of itself constitute an "Asset Sale" for purposes of
this definition.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit J (appropriately
completed).
"Authorized Officer" shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion, Letter of Credit Requests, Bank
Guaranty Requests and similar notices, any person or persons that has or have
been authorized by the board of directors of either Borrower to deliver such
notices pursuant to this Agreement and that has or have appropriate signature
cards on file with the Administrative Agent, the Swingline Lender, the
respective Issuing Lender and the respective Bank Guaranty Issuer; (ii)
delivering financial information and officer's certificates pursuant to this
Agreement, the chief financial officer, any treasurer or other financial officer
of Holdings or the U.S. Borrower and (iii) any other matter in connection with
this Agreement or any other Credit Document, any officer (or a person or persons
so designated by any two officers) of Holdings or the U.S. Borrower.
"Available Currency" shall mean (i) with respect to Tranche A Term
Loans, Yen, (ii) with respect to Tranche B Term Loans, Incremental Term Loans,
Dollar Facility Revolving Loans, Dollar Facility Swingline Loans and Dollar
Facility Letters of Credit, Dollars, (iii) with respect to Multicurrency
Facility Revolving Loans and Multicurrency Facility Swingline Loans, Dollars and
Euros and (iv) with respect to Multicurrency Facility Letters of Credit and Bank
Guaranties, Dollars, Euros and Sterling.
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"Bank Guaranty" shall have the meaning provided in Section 2B.01(a).
"Bank Guaranty Fees" shall have the meaning provided in Section
3.01(e).
"Bank Guaranty Issuer" shall mean (i) any RL Lender (and any of such
RL Lender's affiliates and/or branches) which at the request of the U.S.
Borrower or the Bermuda Borrower and with the consent of the Administrative
Agent agrees, in such RL Lender's sole discretion, to become a Bank Guaranty
Issuer for the purpose of issuing Bank Guaranties pursuant to Section 2B and
(ii) with respect to the Existing Bank Guaranties, the Lender (and any of such
Lender's affiliates and/or branches) designated as the issuer thereof on Part B
of Schedule XI shall be the Bank Guaranty Issuer thereof.
"Bank Guaranty Outstandings" shall mean, at any time, the sum of (i)
the aggregate Face Amount of all outstanding Bank Guaranties which have not
terminated at such time plus (ii) the aggregate amount of all Unreimbursed
Payments (taking the Dollar Equivalent of any amounts owed in Euros or Sterling)
in respect of all Bank Guaranties at such time.
"Bank Guaranty Payment" shall have the meaning provided in Section
2B.05.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"BAS" shall mean Banc of America Securities LLC, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1% in excess of the Federal Funds Rate at such time and (y) the Prime
Lending Rate at such time.
"Base Rate Loan" shall mean (i) each Dollar Denominated Swingline
Loan, (ii) each other Dollar Denominated Loan which is designated or deemed
designated as a Base Rate Loan by the respective Borrower at the time of the
incurrence thereof or conversion thereto and (iii) each outstanding Tranche A
Term Loan, Multicurrency Facility Revolving Loan and Multicurrency Facility
Swingline Loan after the conversion thereof pursuant to Section 1.14.
"Bermuda Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Bermuda Borrower Bank Guaranty" shall mean each Bank Guaranty (which
may be denominated in Dollars, Euros or Sterling) issued for the account of the
Bermuda Borrower pursuant to Section 2B.01 and designated as such by the Bermuda
Borrower in the respective Bank Guaranty Request (or, in the case of an Existing
Bank Guaranty, to the extent provided in Section 2B.01(d)).
"Bermuda Borrower Dollar Facility Letter of Credit" shall mean each
Dollar Facility Letter of Credit (which must be denominated in Dollars) issued
for the account of the Bermuda Borrower pursuant to Section 2A.01.
"Bermuda Borrower Dollar Facility Letter of Credit Outstandings" shall
mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding
Bermuda Borrower Dollar Facility Letters of Credit plus (ii) the aggregate
amount of all Unpaid Drawings in respect of all Bermuda Borrower Dollar Facility
Letters of Credit.
"Bermuda Borrower Dollar Facility Revolving Loan" shall have the
meaning provided in Section 1.01(d).
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"Bermuda Borrower Dollar Facility Revolving Note" shall have the
meaning provided in Section 1.05(a).
"Bermuda Borrower Dollar Facility Swingline Loan" shall have the
meaning provided in Section 1.01(f).
"Bermuda Borrower Dollar Facility Swingline Note" shall have the
meaning provided in Section 1.05(a).
"Bermuda Borrower Incremental Term Loans" shall mean Incremental Term
Loans incurred by the Bermuda Borrower.
"Bermuda Borrower Multicurrency Facility Letter of Credit" shall mean
each Multicurrency Facility Letter of Credit (which may be denominated in
Dollars, Euros or Sterling) issued for the account of the Bermuda Borrower
pursuant to Section 2A.01 and designated as such by the Bermuda Borrower in the
respective Letter of Credit Request (or, in the case of an Existing Letter of
Credit, to the extent provided in Section 2A.01(d)).
"Bermuda Borrower Multicurrency Facility Revolving Loan" shall have
the meaning provided in Section 1.01(c).
"Bermuda Borrower Multicurrency Facility Revolving Note" shall have
the meaning provided in Section 1.05(a).
"Bermuda Borrower Multicurrency Facility Swingline Loan" shall have
the meaning provided in Section 1.01(e).
"Bermuda Borrower Multicurrency Facility Swingline Note" shall have
the meaning provided in Section 1.05(a).
"Bermuda Borrower's Guaranty" shall mean the guaranty of the Bermuda
Borrower pursuant to Section 14.
"Bermuda Partnership" shall mean Dole Foreign Holdings, Ltd., a
limited liability company organized under the laws of Bermuda.
"Bermuda Partnership Partner #1" shall mean Xxxx Fresh Fruit Company,
Inc., a corporation organized under the laws of Nevada and a Wholly-Owned
Subsidiary of the U.S. Borrower, and any successor thereto by way of a merger or
consolidation permitted by Section 9.01(d).
"Bermuda Partnership Partner #2" shall mean Xxxx Ocean Cargo Express,
Inc., a corporation organized under the laws of Nevada and a Wholly-Owned
Subsidiary of the U.S. Borrower, and any successor thereto by way of a merger or
consolidation permitted by Section 9.01(d).
"Bermuda Partnership Partners" shall mean and include Bermuda
Partnership Partner #1 and Bermuda Partnership Partner #2.
"B/G Participant" shall have the meaning provided in Section 2B.04(a).
"B/G Participation Percentages" shall have the meaning provided in
Section 2B.04(a).
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"X/X Supportable Indebtedness" shall mean (i) obligations of the U.S.
Borrower or its Wholly-Owned Subsidiaries (or, in the case of any Existing Bank
Guaranty, any Foreign Subsidiary of the U.S. Borrower) incurred in the ordinary
course of business owing to taxing authorities, custom authorities or with
respect to import and/or export licenses and (ii) such other obligations of the
U.S. Borrower or its Wholly-Owned Subsidiaries as are reasonably acceptable to
the Administrative Agent and the respective Bank Guaranty Issuer and otherwise
permitted to exist pursuant to the terms of this Agreement.
"Borrowers" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan pursuant to a
single Tranche by the Bermuda Borrower or by the U.S. Borrower from all the
Lenders having Commitments with respect to such Tranche (or from the Swingline
Lender, in the case of Swingline Loans) on a given date (or resulting from a
conversion or conversions on such date), having in the case of Euro Rate Loans
(other than Euro Denominated Swingline Loans) the same Interest Period; provided
(x) that Base Rate Loans incurred pursuant to Section 1.10(b) shall be
considered part of the related Borrowing of Eurodollar Loans, (y) the term
"Borrowing" shall include the consolidated "borrowing" of Tranche B Term Loans
pursuant to the simultaneous conversion of Original Tranche D Term Loans and the
incurrence of Additional Tranche B Term Loans on the Restatement Effective Date
on the terms provided in Section 1.01(b), and (z) any Incremental Term Loans
incurred pursuant to Section 1.01(i) shall be considered part of the related
Borrowing of the then outstanding Tranche of Term Loans (if any) to which such
Incremental Term Loans are added pursuant to Section 1.15(c).
"Business Day" shall mean (i) for all purposes other than as covered
by clauses (ii) and (iii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York (or, with respect to an Issuing Lender
not located in the City of New York, the location of such Issuing Lender) a
legal holiday or a day on which banking institutions are authorized by law or
other governmental actions to close, (ii) with respect to all notices and
determinations in connection with, and payments of principal, Unpaid Drawings,
Unreimbursed Payments and interest on or with respect to, Euro Denominated
Loans, any Euro Denominated Letters of Credit or any Euro Denominated Bank
Guaranties, any day which is a Business Day described in clause (i) and which is
also (A) a day for trading by and between banks in the London interbank market
and which shall not be a legal holiday or a day on which banking institutions
are authorized or required by law or other government action to close in London
or New York City and (B) in relation to any payment in Euros, a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open and (iii) with respect to all notices and determinations in
connection with, and payment of principal and interest on, Yen Denominated Term
Loans, any day which is a Business Day described in clause (i) and which is also
a day for trading by and between banks in the London interbank market and which
shall not be a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close in Tokyo.
"Business Segment" shall mean a reportable segment as discussed in
Statement of Financial Accounting Standards No. 131 "Disclosure about Segments
of an Enterprise and Related Information."
"Calculation Period" shall mean, with respect to any Permitted
Acquisition, any Significant Asset Sale or any other event expressly required to
be calculated on a Pro Forma Basis pursuant to the terms of this Agreement, the
Test Period most recently ended prior to the date of such Permitted Acquisition,
Significant Asset Sale or other event.
"California Disposition" shall have the meaning provided in Section
9.02(xx).
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"Capital Expenditures" shall mean, with respect to any Person, for any
period, all expenditures by such Person which should be capitalized in
accordance with U.S. GAAP during such period, including, without duplication,
all such expenditures with respect to fixed or capital assets (including,
without limitation, expenditures for maintenance and repairs which should be
capitalized in accordance with U.S. GAAP) and the amount of all Capitalized
Lease Obligations incurred by such Person during such period.
"Capital Lease," as applied to any Person, shall mean any lease of any
Property by that Person as lessee which, in conformity with U.S. GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
"Capitalized Lease Obligations" of any Person shall mean all
obligations under Capital Leases of such Person, in each case taken at the
amount thereof accounted for as indebtedness in accordance with U.S. GAAP.
"Cash Equivalents" means (i) Dollars, Euros, Sterling and, in the case
of any of Foreign Subsidiaries of the U.S. Borrower, such local currencies held
by them from time to time in the ordinary course of their businesses, (ii)
securities issued or directly fully guaranteed or insured by the governments of
the United States, the United Kingdom, Sweden, Switzerland, Japan, Canada and
members of the European Union or any agency or instrumentality thereof (provided
that the full faith and credit of the respective such government is pledged in
support thereof) having maturities of not more than six months from the date of
acquisition, (iii) securities issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof
maturing within six months from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either S&P
or Xxxxx'x, (iv) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any domestic commercial bank or commercial bank of a
foreign country recognized by the United States, (x) in the case of a domestic
commercial bank, having capital and surplus in excess of $500,000,000 and
outstanding debt which is rated "A" (or similar equivalent thereof) or higher by
at least one nationally recognized statistical rating organization (as defined
under Rule 436 under the Securities Act) and (y) in the case of a foreign
commercial bank, having capital and surplus in excess of $250,000,000 (or the
foreign currency equivalent thereof), (v) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clauses (ii) and (iv) above entered into with any financial institution meeting
the qualifications specified in clause (iv) above, (vi) commercial paper having
a rating of at least A-1 from S&P or at least P-1 from Xxxxx'x and in each case
maturing within six months after the date of acquisition and (vii) investments
in money market funds which invest substantially all their assets in securities
of the types described in clauses (i) through (vi) above. Furthermore, with
respect to Foreign Subsidiaries of the U.S. Borrower that are not organized in
one or more Qualified Jurisdictions, Cash Equivalents shall include bank
deposits (and investments pursuant to operating account agreements) maintained
with various local banks in the ordinary course of business consistent with past
practice of the U.S. Borrower's Foreign Subsidiaries.
"Castle & Xxxxx Affiliate" shall mean Castle & Xxxxx Inc. or any of
its Affiliates.
"Change of Control" shall mean (i) Holdings shall at any time cease to
own directly 100% of the Equity Interests of Intermediate Holdco, (ii)
Intermediate Holdco shall at any time cease to own directly 100% of the Equity
Interests of (x) the U.S. Borrower and (y) Corporate Holdco, (iii) the U.S.
Borrower shall at any time cease to own directly or indirectly 100% of the
Equity Interests of the Bermuda Borrower, (iv) the Permitted Holders shall at
any time and for any reason fail to own at least 75% of both the economic and
voting interest in Holdings' capital stock, (v) the Board of Directors of
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Holdings shall cease to consist of a majority of Continuing Directors, or (vi) a
"change of control" or similar event shall occur as provided in any Existing
Senior Notes Document, any Qualified Preferred Stock (or certificate of
designation governing the same), any Intermediate Holdco Senior Notes Documents
or, on and after the execution and delivery thereof, any Holdings Senior Notes
Document, any Permitted Senior Notes Documents and any Permitted Refinancing
Senior Notes Document.
"Change of Law" shall have the meaning provided in Section 10.06.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Original
Effective Date and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Co-Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to a
Co-Documentation Agent appointed pursuant to Section 12.10.
"Collateral" shall mean all property (whether real or personal,
movable or immovable) with respect to which any security interests have been
granted (or purported to be granted) pursuant to any Security Document
(including any Additional Security Document), including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged
Properties and all cash and Cash Equivalents delivered as collateral pursuant to
Section 4.02 or 10 or any Credit Document and all Additional Collateral, if any.
"Collateral Agent" shall mean DBAG, acting as collateral agent for the
Secured Creditors.
"Commitment" shall mean any of the commitments of any Lender, i.e.,
whether the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment,
an Incremental Term Loan Commitment, the Multicurrency Facility Revolving Loan
Commitment or the Dollar Facility Revolving Loan Commitment of such Lender.
"Commodity Agreements" shall mean commodity agreements, hedging
agreements and other similar agreements or arrangements designed to protect
against price fluctuations of commodities (e.g., fuel) used in the business of
the U.S. Borrower and its Subsidiaries.
"Company" shall mean any corporation, limited liability company,
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Consolidated Current Assets" shall mean, at any time, the current
assets of the U.S. Borrower and its Consolidated Subsidiaries at such time
determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time, the
current liabilities of the U.S. Borrower and its Consolidated Subsidiaries
determined on a consolidated basis, but excluding the current portion of, and
accrued but unpaid interest on, any Indebtedness under this Agreement and any
other long-term Indebtedness which would otherwise be included therein.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income (without giving effect to (x) any extraordinary gains or losses and (y)
any gains or losses from sales of assets other than inventory sold in the
ordinary course of business) before (i) total interest expense (inclusive of
amortization of deferred financing fees and any other original issue discount)
of the U.S. Borrower and its
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Consolidated Subsidiaries determined on a consolidated basis for such period,
and (ii) provision for taxes based on income and foreign withholding taxes, in
each case to the extent deducted in determining Consolidated Net Income for such
period.
"Consolidated EBITDA" shall mean for any period, Consolidated EBIT,
adjusted by (x) adding thereto (in each case to the extent deducted in
determining Consolidated Net Income for such period and not already added back
in determining Consolidated EBIT) the amount of (i) all depreciation and
amortization expense that were deducted in determining Consolidated EBIT for
such period, (ii) in the case of any period which includes the 2nd Fiscal
Quarter, 3rd Fiscal Quarter or 4th Fiscal Quarter of Fiscal Year 2004, non-cash
charges accrued in such period in connection with the termination of the U.S.
Borrower's long-term employee incentive plan during such period, to the extent
(I) same were deducted in arriving at Consolidated EBIT for such period and (II)
such non-cash charges do not exceed $1,095,000, $1,679,000 and $1,200,000,
respectively, for the 2nd Fiscal Quarter, 3rd Fiscal Quarter or 4th Fiscal
Quarter of Fiscal Year 2004, as the case may be, (iii) any other non-cash
charges incurred in such period, to the extent that same were deducted in
arriving at Consolidated EBIT for such period, and (iv) the amount of all fees
and expenses incurred in connection with the Transaction for such period, to the
extent same were deducted in arriving at Consolidated EBIT for such period and
(y) subtracting therefrom, (i) to the extent included in arriving at
Consolidated EBIT for such period, the amount of non-cash gains during such
period, (ii) in the case of any period which includes the 1st Fiscal Quarter of
Fiscal Year 2005, the aggregate amount of all cash payments made during such
period in connection with non-cash charges accrued in a prior period in
connection with the termination of the U.S. Borrower's long-term employee
incentive plan (i.e., $5,177,603), (iii) the aggregate amount of all cash
payments made during such period in connection with non-cash charges incurred in
a prior period, to the extent such non-cash charges were added back pursuant to
clause (x)(iii) above in a prior period and (iv) the amount of all "interest
expense" paid during such period under the Specified Existing Ship Leases
(calculated on a basis consistent with the past practices of the U.S. Borrower
under the Original Credit Agreement, as if FASB Interpretation No. 46
("Consolidation of Variable Interest Entities") had not been implemented).
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (x) Consolidated EBITDA for such period to (y) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" shall mean, for any period, (i) the
total consolidated interest expense of the U.S. Borrower and its Consolidated
Subsidiaries (including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bank
guaranties, but only to the extent such commissions, discounts and other fees
and charges are treated as an "interest expense" pursuant to U.S. GAAP) for such
period (calculated without regard to any limitations on payment thereof),
adjusted to exclude (to the extent same would otherwise be included in the
calculation above in this clause (i)) the amortization of any deferred financing
costs for such period, plus (ii) without duplication, (x) that portion of
Capitalized Lease Obligations of the U.S. Borrower and its Consolidated
Subsidiaries on a consolidated basis representing the interest factor for such
period and (y) the "deemed interest expense" (i.e., the interest expense which
would have been applicable if the respective obligations were structured as
on-balance sheet financing arrangements) with respect to all Indebtedness of the
U.S. Borrower and its Consolidated Subsidiaries of the type described in clause
(viii) of the definition of Indebtedness contained herein for such period;
provided, however, that notwithstanding any contrary treatment by U.S. GAAP, the
amount of all "interest expense" of the U.S. Borrower and its Consolidated
Subsidiaries under the Specified Existing Ship Leases (calculated on a basis
consistent with the past practices of the U.S. Borrower under the Original
Credit Agreement, as if FASB Interpretation No. 46 ("Consolidation of Variable
Interest Entities") had not been implemented) shall be excluded in the
calculation of "Consolidated Interest Expense".
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"Consolidated Net Debt" shall mean, at any time, the remainder of (I)
the sum of (without duplication) (i) all Indebtedness of the U.S. Borrower and
its Consolidated Subsidiaries (on a consolidated basis) as would be required to
be reflected as debt or Capital Leases on the liability side of a consolidated
balance sheet of the U.S. Borrower and its Consolidated Subsidiaries in
accordance with U.S. GAAP, (ii) all Indebtedness of the U.S. Borrower and its
Consolidated Subsidiaries of the type described in clauses (ii) and (vii) of the
definition of Indebtedness and (iii) all Contingent Obligations of the U.S.
Borrower and its Consolidated Subsidiaries in respect of Indebtedness of any
third Person of the type referred to in preceding clauses (i) and (ii) minus
(II) the aggregate amount of Unrestricted Cash Equivalents of Holdings and its
Subsidiaries at such time to the extent same would be reflected on a
consolidated balance sheet of the U.S. Borrower if same were prepared at such
time; provided that (v) Indebtedness of the U.S. Borrower and its Subsidiaries
representing operating lease obligations under the Specified Existing Ship
Leases that became Indebtedness after the Initial Borrowing Date as a result of
the implementation of FASB Interpretation No. 46 ("Consolidation of Variable
Interest Entities") as in effect on the Initial Borrowing Date shall not be
included in any determination of "Consolidated Net Debt", (w) the amount
available to be drawn under all letters of credit, bankers' acceptances, bank
guaranties and similar obligations issued for the account of the U.S. Borrower
or any of its Consolidated Subsidiaries (but excluding, for avoidance of doubt,
all unpaid drawings or other monetary obligations owing in respect of such
letters of credit, bankers' acceptances, bank guaranties and similar
obligations) shall not be included in any determination of "Consolidated Net
Debt", (x) for purposes of this definition, the amount of Indebtedness in
respect of the Interest Rate Protection Agreements, Other Hedging Agreements and
Commodities Agreements shall be at any time the unrealized net loss position, if
any, of the U.S. Borrower and/or its Consolidated Subsidiaries thereunder on a
marked-to-market basis determined no more than one month prior to such time, (y)
obligations arising under Synthetic Leases shall be included in determining
Consolidated Net Debt and (z) any Preferred Equity of the U.S. Borrower or any
of its Consolidated Subsidiaries shall be treated as Indebtedness, with an
amount equal to the greater of the liquidation preference or the maximum fixed
repurchase price of any such outstanding Preferred Equity deemed to be a
component of Consolidated Net Debt.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the U.S. Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period (taken as a single accounting period) in
accordance with U.S. GAAP, provided that the following items shall be excluded
in computing Consolidated Net Income (without duplication): (i) except for
determinations expressly required to be made on a Pro Forma Basis, the net
income (or loss) of any Person accrued prior to the date it becomes a
Consolidated Subsidiary or all or substantially all of the property or assets of
such Person are acquired by a Consolidated Subsidiary and (ii) the net income of
any Consolidated Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Consolidated Subsidiary of such net
income is not at the time permitted by the operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Consolidated Subsidiary.
"Consolidated Subsidiary" shall mean, with respect to any Person, at
any date, any other Person the Equity Interests of which are owned by such
Person and whose financial results are consolidated in the financial statements
of such Person in accordance with U.S. GAAP (and consistent with the
consolidation practices of the U.S. Borrower as in effect on the Original
Effective Date), if such statements were prepared as of such date.
"Contemplated Asset Sale" shall mean any sale of assets by the U.S.
Borrower and/or one or more of its Subsidiaries (including Real Property and
Equity Interests held by such Persons but excluding Equity Interests in the
Bermuda Borrower and the Bermuda Partnership and any Person which owns, directly
or indirectly, Equity Interests therein); provided, however, that any such
assets so sold shall be comprised of "non-core" assets which (i) are not
material to the operations of the U.S. Borrower
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and its Subsidiaries and (ii) generated an insignificant portion of Consolidated
EBITDA during the twelve month period prior to the date of such sale.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person as a result of such Person being a general partner of any other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such primary
obligation or (y) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the lesser of (x) the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith and (y) the stated amount
of such Contingent Obligation.
"Continuing Directors" shall mean the directors of Holdings on the
Initial Borrowing Date and each other director if such director's election to,
or nomination for the election to, the Board of Directors of Holdings is
recommended or approved by a majority of then Continuing Directors.
"Converted Dollar Facility Revolving Loans" shall have the meaning
provided in Section 1.01(d).
"Converted Multicurrency Facility Revolving Loans" shall have the
meaning provided in Section 1.01(c).
"Converted Tranche B Term Loans" shall have the meaning provided in
Section 1.01(b).
"Corporate Holdco" shall mean Xxxx Holding Company, Inc., a Delaware
corporation and a Wholly-Owned Subsidiary of Intermediate Holdco.
"Co-Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to a Co-Syndication
Agent appointed pursuant to Section 12.10.
"Credit Agreement Party" shall mean Holdings, Intermediate Holdco and
each Borrower.
"Credit Agreement Party Guaranty" shall mean the guaranty of each
Credit Agreement Party pursuant to Section 14.
"Credit Documents" shall mean this Agreement, the Notes, each
Subsidiaries Guaranty, the Intercompany Subordination Agreement, each Special
Colombian Put Note, each Special Colombian Put Note Agreement, the Canadian
Bond, each Security Document, each Incremental Loan Commitment Agreement, the
U.S. Subsidiaries Guaranty Acknowledgement and Amendment, the Foreign
Subsidiaries
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Guaranty Acknowledgement, the Intercompany Subordination Agreement
Acknowledgement and Amendment, the U.S. Security Documents Acknowledgement and
Amendment, each Foreign Security Document Acknowledgement and/or Amendment and
any other guarantees or security documents executed and delivered for the
benefit of the Lenders in accordance with the requirements of this Agreement and
any other guaranties, pledge agreements or security documents executed and
delivered in accordance with the requirements of Sections 8.11, 8.12 and/or
9.14.
"Credit Event" shall mean the making of a Loan (including any way of
conversion on the Restatement Effective Date but excluding a Revolving Loan made
pursuant to a Mandatory Borrowing), the issuance of a Letter of Credit or the
issuance of a Bank Guaranty.
"Credit Party" shall mean each U.S. Credit Party and each Foreign
Credit Party.
"DBAG" shall mean Deutsche Bank AG New York Branch, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"DBSI" shall mean Deutsche Bank Securities Inc., in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Default" shall mean any event, act or condition, which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Disqualified Voting Participant" shall mean any Participant meeting
the requirements of sub-clauses (x), (y)(A) and (y)(B) of clause (II) of the
second proviso appearing in Section 13.04(a) which (i) has refused to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement of the type described in Section 13.12(a) and which have been
approved by the Required Lenders and (ii) has been designated as a "Disqualified
Voting Participant" by the U.S. Borrower in a written notice to the
Administrative Agent.
"Dividend" shall have the meaning provided in Section 9.06.
"Documents" shall mean and include (i) the Credit Documents, (ii) the
Refinancing Documents, (iii) the Intercompany Distribution Transaction
Documents, (iv) the Sale-Leaseback Transaction Documents, (v) the Existing
Senior Notes Documents, (vi) the Intermediate Holdco Senior Notes Documents,
(vii) on and after the execution and delivery thereof, the Holdings Senior Notes
Documents, (viii) on and after the execution and delivery thereof, any Permitted
Senior Notes Document and (ix) on and after the execution and delivery thereof,
any Permitted Refinancing Senior Notes Document.
"Xxxx Settlement Company" shall mean the U.S. Borrower or a Qualified
U.S. Obligor that is not subject to the guaranty limitation applicable to the
Bermuda Partnership Partners contained in the U.S. Subsidiaries Guaranty.
"Dollar Denominated Bank Guaranty" shall mean each Bank Guaranty
denominated in Dollars.
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"Dollar Denominated Bank Guaranty Outstandings" shall mean, at any
time, the sum of (i) the aggregate Face Amount of all outstanding Dollar
Denominated Bank Guaranties at such time plus (ii) the aggregate amount of all
Unreimbursed Payments with respect to Dollar Denominated Bank Guaranties at such
time.
"Dollar Denominated Letter of Credit" shall mean each Letter of Credit
denominated in Dollars.
"Dollar Denominated Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding Dollar
Denominated Letters of Credit at such time plus (ii) the aggregate amount of all
Unpaid Drawings with respect to Dollar Denominated Letters of Credit at such
time.
"Dollar Denominated Loan" shall mean all Loans denominated in Dollars,
which shall include each Tranche B Term Loan, each Incremental Term Loan, each
Dollar Facility Revolving Loan, each Dollar Facility Swingline Loan, each
Multicurrency Facility Revolving Loan made in Dollars and each Multicurrency
Facility Swingline Loan made in Dollars, as well as each Tranche A Term Loan,
Multicurrency Facility Revolving Loan or Multicurrency Facility Swingline Loan
converted into Dollars in accordance with the provisions of Section 1.14.
"Dollar Denominated Revolving Loan" shall mean all Revolving Loans
incurred in Dollars, including all Multicurrency Facility Revolving Loans
denominated in Dollars and all Dollar Facility Revolving Loans.
"Dollar Denominated Swingline Loan" shall mean all Swingline Loans
incurred in Dollars, including all Multicurrency Facility Swingline Loans
denominated in Dollars and all Dollar Facility Swingline Loans.
"Dollar Equivalent" of an amount denominated in a currency other than
Dollars shall mean, at any time for the determination thereof, the amount of
Dollars which could be purchased with the amount of such currency involved in
such computation at the spot exchange rate therefor as quoted by the
Administrative Agent as of 11:00 A.M. (New York time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date
(or, in the case of (1) any determination pursuant to Section 1.14 or 13.23 or
Section 26 (or any analogous provision) of any Subsidiaries Guaranty, (2) with
respect to Euro Denominated Swingline Loans or (3) any determination pursuant to
the definition of "TL Prepayment Percentage" or "Required Lenders", on the date
of determination); provided that (w) the Dollar Equivalent of any Unpaid Drawing
under a Sterling Denominated Letter of Credit shall be determined at the time
the drawing under the related Letter of Credit was paid or disbursed by the
respective Issuing Lender, (x) the Dollar Equivalent of any Unreimbursed Payment
under a Sterling Denominated Bank Guaranty shall be determined at the time the
payment under the related Bank Guaranty was made or disbursed by the respective
Bank Guaranty Issuer, (y) following the occurrence of a Sharing Event, the
Dollar Equivalent of any Unpaid Drawing or unreimbursed payment under a
Multicurrency Facility Letter of Credit expressed in Euros shall be determined
on the later of the time the drawing under the related Letter of Credit was paid
or disbursed by the Issuing Lender or the date of the occurrence of the Sharing
Event and (z) following the occurrence of a Sharing Event, the Dollar Equivalent
of any Unreimbursed Payment under a Bank Guaranty expressed in Euros shall be
determined on the later of the time the payment under the related Bank Guaranty
was made or disbursed by the Bank Guaranty Issuer or the date of the occurrence
of the Sharing Event, provided further, that for purposes of (x) determining
compliance with Sections 1.01(c), (e) and (g), 2A.01(c), 2B.01(c), 4.02(a) and
6A.01 and (y) calculating Fees pursuant to Section 3.01 (except Fees which are
expressly required to be paid in a currency other than Dollars pursuant to
Section 3.01), the Dollar Equivalent of any amounts denominated
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in a currency other than Dollars shall be revalued on a monthly basis using the
spot exchange rates therefor as quoted in Reuters ECB Page 37 (or, if same does
not provide such exchange rates, on such other basis as is reasonably
satisfactory to the Administrative Agent) on the last Business Day of each
calendar month, provided, however, that at any time during a calendar month, if
the Aggregate Multicurrency Facility RL Exposure (for the purposes of the
determination thereof, using the Dollar Equivalent as recalculated based on the
spot exchange rate therefor as quoted in Reuters ECB Page 37 (or, if same does
not provide such exchange rates, on such other basis as is reasonably
satisfactory to the Administrative Agent) on the respective date of
determination pursuant to this exception) would exceed 85% of the Total
Multicurrency Facility Revolving Loan Commitment, then in the sole discretion of
the Administrative Agent or at the request of the Required Lenders, the Dollar
Equivalent shall be reset based upon the spot exchange rates on such date as
quoted in the Reuters ECB Page 37 (or, if same does not provide such exchange
rates, on such other basis as is reasonably satisfactory to the Administrative
Agent), which rates shall remain in effect until the last Business Day of such
calendar month or such earlier date, if any, as the rate is reset pursuant to
this proviso. Notwithstanding anything to the contrary contained in this
definition, at any time that a Default or an Event of Default then exists, the
Administrative Agent may revalue the Dollar Equivalent of any amounts
outstanding under the Credit Documents in a currency other than Dollars in its
sole discretion.
"Dollar Facility Letter of Credit" shall mean each Letter of Credit
(which must be denominated in Dollars) issued to the U.S. Borrower or the
Bermuda Borrower pursuant to Section 2A.01 and designated as such by the
respective Borrower in the respective Letter of Credit Request.
"Dollar Facility Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding Dollar
Facility Letters of Credit plus (ii) the aggregate amount of all Unpaid Drawings
in respect of all Dollar Facility Letters of Credit.
"Dollar Facility Revolving Loan" shall have the meaning provided in
Section 1.01(d).
"Dollar Facility Revolving Loan Commitment" shall mean, for each
Lender, the amount set forth opposite such Lender' s name on Schedule I hereto
directly below the column entitled "Dollar Facility Revolving Loan Commitment",
as same may be (x) reduced from time to time and/or terminated pursuant to
Section 3.02, 3.03, 4.02 and/or 10, (y) adjusted from time to time as a result
of assignments to or from such Lender pursuant to Section 1.13 or 13.04(b), or
(z) increased from time to time pursuant to Section 1.17.
"Dollar Facility Revolving Note" shall have the meaning provided in
Section 1.05(a).
"Dollar Facility RL Lender" shall mean any Lender with a Dollar
Facility Revolving Loan Commitment (without giving effect to any termination of
the Total Dollar Facility Revolving Loan Commitment if any Dollar Facility
Swingline Loans or Dollar Facility Letter of Credit Outstandings remain
outstanding) or outstanding Dollar Facility Revolving Loans (or any
participation in any Dollar Facility Letter of Credit Outstandings).
"Dollar Facility RL Percentage" of any Dollar Facility RL Lender at
any time shall be that percentage which is equal to a fraction (expressed as a
percentage) the numerator of which is the Dollar Facility Revolving Loan
Commitment of such Dollar Facility RL Lender at such time and the denominator of
which is the Total Dollar Facility Revolving Loan Commitment at such time,
provided that if any such determination is to be made after the Total Dollar
Facility Revolving Loan Commitment (and the related Dollar Facility Revolving
Loan Commitments of the Lenders) has (or have) terminated, the determination of
such percentages shall be made immediately before giving effect to such
termination.
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"Dollar Facility Swingline Loan" shall have the meaning provided in
Section 1.01(f).
"Dollar Facility Swingline Note" shall have the meaning provided in
Section 1.05(a).
"Domestic Subsidiary" shall mean, as to any Person, any Subsidiary of
such Person incorporated or organized in the United States or any State or
territory thereof.
"Eligible Transferee" shall mean and include a commercial bank, a
mutual fund, an insurance company, a financial institution, a "qualified
institutional buyer" (as defined in Rule 144A of the Securities Act), any fund
that regularly invests in bank loans or any other "accredited investor" (as
defined in Regulation D of the Securities Act), but in any event excluding any
individual and Holdings and its Subsidiaries and Affiliates.
"EMU Legislation" shall mean the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states, being in part legislative measures to implement the third
stage of the European Monetary Union.
"End Date" shall have the meaning provided in the definition of
Applicable Margin.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any violation (or alleged violation) by Holdings or any of its
Subsidiaries under any Environmental Law or any permit issued to Holdings or any
of its Subsidiaries under any such law (hereafter "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any federal, state or local policy
having the force and effect of law, statute, law, rule, regulation, ordinance,
code or rule of common law now or hereafter in effect and in each case as
amended, and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment (for purposes
of this definition (collectively, "Laws")), relating to the indoor or outdoor
environment, or Hazardous Materials or health and safety to the extent such
health and safety issues arise under the Occupational Safety and Health Act of
1970, as amended, or any such similar Laws.
"Equity Infusion" shall mean (i) in the case of Holdings, the sale or
issuance of Equity Interests of Holdings to, or a capital contribution to
Holdings by, Xxxxx X. Xxxxxxx or any of his affiliates and (ii) in the case of
Intermediate Holdco, the sale or issuance of Equity Interests of Intermediate
Holdco to, or a capital contribution to Intermediate Holdco by, Holdings which
is financed by Holdings solely with the proceeds of the sale or issuance of
Equity Interests and/or capital contributions described in preceding clause (i).
"Equity Interests" of any Person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interest in (however designated) equity of such Person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest.
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"Equity Investors" shall mean, collectively, Xxxxx X. Xxxxxxx, the
Xxxxx X. Xxxxxxx Living Trust and Castle & Xxxxx Holdings, Inc.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect on the
Original Effective Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Holdings or a Subsidiary of Holdings would be
deemed to be a "single employer" (i) within the meaning of Section 414(b), (c),
(m) or (o) of the Code or (ii) as a result of Holdings or a Subsidiary of
Holdings being or having been a general partner of such Person.
"Euro B/G Face Amount" of each Euro Denominated Bank Guaranty shall,
at any time, mean the maximum amount payable under such Bank Guaranty (expressed
in Euros) (in each case determined without regard to whether any conditions to
payment thereunder could then be met, but after giving effect to all previous
payments (if any) made thereunder).
"Euro Denominated Bank Guaranty" shall mean each Bank Guaranty
denominated in Euros.
"Euro Denominated Bank Guaranty Outstandings" shall mean, at any time,
the sum of (i) the aggregate Face Amount of all outstanding Euro Denominated
Bank Guaranties at such time plus (ii) the aggregate amount of all Unreimbursed
Payments with respect to Euro Denominated Bank Guaranties at such time.
"Euro Denominated Letter of Credit" shall mean each Letter of Credit
denominated in Euros.
"Euro Denominated Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding Euro
Denominated Letters of Credit at such time plus (ii) the aggregate amount of all
Unpaid Drawings with respect to Euro Denominated Letters of Credit at such time.
"Euro Denominated Loan" shall mean all Loans denominated in Euros,
including all Euro Denominated Revolving Loans and all Euro Denominated
Swingline Loans.
"Euro Denominated Revolving Loan" shall mean each Multicurrency
Facility Revolving Loan denominated in Euros at the time of the incurrence
thereof.
"Euro Denominated Swingline Loan" shall mean each Multicurrency
Facility Swingline Loan denominated in Euros at the time of the incurrence
thereof.
"Euro Equivalent" shall mean, at any time for the determination
thereof, the amount of Euros which could be purchased with the amount of Dollars
involved in such computation at the spot rate of exchange therefor as quoted by
the Administrative Agent as of 11:00 A.M. (New York time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date with respect to Euro Denominated Revolving Loans and on the date of
any determination thereof for purchase on such date with respect to Euro
Denominated Swingline Loans (or, in the case of any determination pursuant to
Section 1.14 or 13.23 or Section 26 (or any analogous provision) of any
Subsidiaries Guaranty, on the date of determination).
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"Euro L/C Stated Amount" of each Euro Denominated Letter of Credit
shall, at any time, mean the maximum amount available to be drawn thereunder
(expressed in Euros) (in each case determined without regard to whether any
conditions to drawing could then be met, but after giving effect to all previous
drawings made thereunder).
"Euro LIBOR" shall mean, with respect to each Borrowing of Euro
Denominated Revolving Loans, (i) the rate per annum for deposits in Euros as
determined by the Administrative Agent for a period corresponding to the
duration of the relevant Interest Period which appears on Reuters Page
EURIBOR-01 (or any successor page) at approximately 11:00 A.M. (Brussels time)
on the date which is two Business Days prior to the commencement of such
Interest Period or (ii) if such rate is not shown on Reuters Page EURIBOR-01 (or
any successor page), the average offered quotation to prime banks in the
Euro-zone interbank market by the Administrative Agent for Euro deposits of
amounts comparable to the principal amount of the Euro Denominated Loan to be
made by the Administrative Agent as part of such Borrowing with maturities
comparable to the Interest Period to be applicable to such Loan (rounded upward
to the next whole multiple of 1/16 of 1%), determined as of 11:00 A.M. (Brussels
time) on the date which is two Business Days prior to the commencement of such
Interest Period; provided that in the event the Administrative Agent has made
any determination pursuant to Section 1.10(a)(i) in respect of Loans denominated
in Euros, or in the circumstances described in clause (i) to the proviso to
Section 1.10(b) in respect of Loans denominated in Euros, Euro LIBOR determined
pursuant to this definition shall instead be the rate determined by the
Administrative Agent as the all-in-cost of funds for the Administrative Agent
(or such other Lender) to fund a Borrowing of Loans denominated in Euros with
maturities comparable to the Interest Period applicable thereto.
"Euro Rate" shall mean and include each of the Eurodollar Rate, Euro
LIBOR, the Overnight Euro Rate and Yen LIBOR.
"Euro Rate Loan" shall mean each Eurodollar Loan, each Euro
Denominated Loan and each Yen Denominated Term Loan.
"Eurodollar Loans" shall mean each Dollar Denominated Loan (excluding
Swingline Loans) designated as such by the respective Borrower or Borrowers at
the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean, for any Interest Period, in the case of
any U.S. Dollar Denominated Loan, (i) the arithmetic average (rounded upwards to
the nearest 1/16 of 1%) of the offered quotation to first class banks in the
interbank Eurodollar market by DBAG for U.S. dollar deposits of amounts in
immediately available funds comparable to the principal amount of the applicable
Eurodollar Loan for which the Eurodollar Rate is being determined with
maturities comparable to the Interest Period for which such Eurodollar Rate will
apply, as of approximately 10:00 A.M. (New York time) on the Interest
Determination Date divided by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of liabilities
under Regulation D). The determination of the Eurodollar Rate by the
Administrative Agent shall be conclusive and binding on the Borrowers absent
manifest error.
"Euros" and the designation "E" shall mean the currency introduced on
January 1, 1999 at the start of the third stage of European economic and
monetary union pursuant to the Treaty (expressed in euros).
"Event of Default" shall have the meaning provided in Section 10.
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"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of, without duplication, (i) Adjusted Consolidated Net Income for such
period and (ii) the decrease, if any, in Adjusted Consolidated Working Capital
from the first day to the last day of such period, minus (b) the sum of, without
duplication, (i) the aggregate amount of all Capital Expenditures made by the
U.S. Borrower and its Subsidiaries during such period (other than Capital
Expenditures to the extent financed with equity proceeds, Equity Interests,
asset sale proceeds, insurance proceeds or Indebtedness (other than with
Revolving Loans, Swingline Loans, Original Revolving Loans, or Original
Swingline Loans)), (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the U.S. Borrower and its Subsidiaries and
the permanent repayment of the principal component of Capitalized Lease
Obligations of the U.S. Borrower and its Subsidiaries during such period (other
than (A) repayments, to the extent made with asset sale proceeds, equity
proceeds, insurance proceeds or Indebtedness and (B) repayments of Original
Loans or Loans, unless same were required as a result of a Scheduled Repayment
(as defined in the Original Credit Agreement) under Section 4.02(b) or (m) of
the Original Credit Agreement or a Scheduled Repayment under Section 4.02(b), as
the case may be) and (iii) the increase, if any, in Adjusted Consolidated
Working Capital from the first day to the last day of such period.
"Excess Cash Flow Payment Period" shall mean, with respect to any
Excess Cash Payment Date, the immediately preceding Fiscal Year of Holdings.
"Excess Cash Payment Date" shall mean the date occurring 3 Business
Days after the 90th day following the last day of a Fiscal Year of Holdings.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Percentage" shall mean, as to each Lender, a fraction,
expressed as a decimal, in each case determined on the date of occurrence of a
Sharing Event (but before giving effect to any actions to occur on such date
pursuant to Section 1.14) of which (a) the numerator shall be the sum of (i) the
RL Percentage of such Lender of (x) the aggregate outstanding principal of all
Revolving Loans and Swingline Loans (taking the Dollar Equivalents of any
amounts expressed in currencies other than Dollars on the date of the occurrence
of the Sharing Event), (y) the aggregate amount of Letter of Credit Outstandings
and (z) the aggregate amount of Bank Guaranty Outstandings and (ii) the
aggregate principal amount of all outstanding Term Loans of such Lender (in the
case of Tranche A Term Loans, taking the Dollar Equivalent of any amounts
expressed in Yen on the date of the occurrence of the Sharing Event), and (b)
the denominator of which shall be the sum of (i) the sum of (x) the aggregate
outstanding principal of all Revolving Loans and Swingline Loans (taking the
Dollar Equivalents of any amounts expressed in currencies other than Dollars on
the date of the occurrence of the Sharing Event), (y) the aggregate amount of
Letter of Credit Outstandings and (z) the aggregate amount of Bank Guaranty
Outstandings, and (ii) the aggregate principal amount of all outstanding Term
Loans of all Lenders (in the case of Tranche A Term Loans, taking the Dollar
Equivalent of any amounts expressed in Yen on the date of the occurrence of the
Sharing Event).
"Excluded Bermuda Insurance Companies" shall mean and include (i)
Ashford Company Limited, a limited liability corporation organized under laws of
Bermuda, and (ii) Mendocino Limited, a limited liability corporation organized
under laws of Bermuda.
"Excluded Collateral" shall mean and include (i) each Principal
Property of the U.S. Borrower and any of its Restricted Subsidiaries, (ii) all
shares of capital stock or Indebtedness (as defined in the Existing 2013 Senior
Notes Indenture as in effect on the Initial Borrowing Date) of any Restricted
Subsidiary of the U.S. Borrower (which Indebtedness (as so defined) is then held
by the U.S. Borrower or any Restricted Subsidiary) and (iii) Margin Stock owned
or held by Holdings or any of its Subsidiaries,
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except to the extent required to be pledged pursuant to Section 8.19; provided
that (x) the collateral described in preceding clauses (i) and (ii) shall cease
to constitute "Excluded Collateral" upon the repayment in full of all Existing
2009 Senior Notes and all Existing 2013 Senior Notes and (y) as the term
"Excluded Collateral" is used in any Foreign Security Document, such term shall
not include any Principal Property referred to in clause (i) above.
"Excluded Domestic Subsidiary" shall mean County Line Mutual Water
Company, a Wholly-Owned Domestic Subsidiary of the U.S. Borrower.
"Excluded Event" shall mean the taking of any action, or the adoption
of any law, rule or regulation, by any governmental authority which results in a
deficiency that would otherwise give rise to a Default or Event of Default under
any of Sections 10.07, 10.08, 10.11(b), 10.11(c) and/or 10.12; provided that (i)
any such deficiency or default shall relate solely to a Foreign Subsidiary of
Holdings (other than a Foreign Subsidiary organized under the laws of Bermuda),
its business or properties and the Credit Documents to which such Foreign
Subsidiary is a party and (ii) the aggregate fair market value of all Property
of all Foreign Subsidiaries subject to any such deficiencies or defaults
(including all Property which would have been Property of the respective Foreign
Subsidiaries if the actions described in Section 10.12 had not been taken) shall
not exceed $15,000,000.
"Excluded Foreign Subsidiaries" shall mean Foreign Subsidiaries of the
U.S. Borrower organized in Qualified Non-U.S. Jurisdictions and listed on Part B
of Schedule XV; provided that any Foreign Subsidiary listed on Part B of
Schedule XV which merges or consolidates with or into any other Foreign
Subsidiary of the U.S. Borrower that is a Qualified Obligor organized in the
jurisdiction of organization of such listed Foreign Subsidiary shall cease to be
an "Excluded Foreign Subsidiary" for purposes of this Agreement.
"Existing Bank Guaranties" shall have the meaning provided in Section
2B.01(d).
"Existing Indebtedness" shall mean and include Scheduled Existing
Indebtedness and the Existing Senior Notes Documents.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.13.
"Existing Letters of Credit" shall have the meaning provided in
Section 2A.01(d).
"Existing Senior Notes" shall mean and include the Existing 2009
Senior Notes, the Existing 2013 Senior Notes, the Existing 2011 Senior Notes and
the Existing 2010 Senior Notes.
"Existing Senior Notes Documents" shall mean and include (i) the
Existing 2009 Senior Notes Documents, (ii) the Existing 2013 Senior Notes
Documents, (iii) the Existing 2011 Senior Notes Documents and (iv) the Existing
2010 Senior Notes Documents.
"Existing Tender Offer Notes" shall mean and include the Existing 2009
Senior Notes, the Existing 2010 Senior Notes and the Existing 2011 Senior Notes.
"Existing Tender Offer Notes Indentures" shall mean and include the
Existing 2009 Senior Notes Indenture, the Existing 2010 Senior Notes Indenture
and the Existing 2011 Senior Notes Indenture.
"Existing 2011 Senior Notes" shall mean the U.S. Borrower's 8-7/8%
Senior Notes due 2011, issued pursuant to the Existing 2011 Senior Notes
Indenture, as in effect on the Restatement
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Effective Date and as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Existing 2011 Senior Notes Documents" shall mean the Existing 2011
Senior Notes, the Existing 2011 Senior Notes Indenture and all other documents
executed and delivered with respect to the Existing 2011 Senior Notes or
Existing 2011 Senior Notes Indenture, as in effect on the Restatement Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"Existing 2011 Senior Notes Indenture" shall mean the Indenture, dated
as of March 28, 2003, among the U.S. Borrower, any U.S. Subsidiary Guarantors
from time to time party thereto and the trustee therefor, as in effect on the
Restatement Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Existing 2009 Senior Notes" shall mean the U.S. Borrower's 8-5/8%
Senior Notes due 2009, issued pursuant to the Existing 2009 Senior Notes
Indenture, as in effect on the Restatement Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Existing 2009 Senior Notes Documents" shall mean the Existing 2009
Senior Notes, the Existing 2009 Senior Notes Indenture and all other documents
executed and delivered with respect to the Existing 2009 Senior Notes or
Existing 2009 Senior Notes Indenture, as in effect on the Restatement Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"Existing 2009 Senior Notes Indenture" shall mean the Indenture, dated
as of July 15, 1993, among the U.S. Borrower, any U.S. Subsidiary Guarantors
from time to time party thereto and the trustee therefor, as in effect on the
Restatement Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Existing 2010 Senior Notes" shall mean the U.S. Borrower's 7-1/4%
Senior Notes due 2010, issued pursuant to the Existing 2010 Senior Notes
Indenture, as in effect on the Restatement Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Existing 2010 Senior Notes Documents" shall mean the Existing 2010
Senior Notes, the Existing 2010 Senior Notes Indenture and all other documents
executed and delivered with respect to the Existing 2010 Senior Notes or
Existing 2010 Senior Notes Indenture, as in effect on the Restatement Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"Existing 2010 Senior Notes Indenture" shall mean the Indenture, dated
as of May 29, 2003, among the U.S. Borrower, any U.S. Subsidiary Guarantors from
time to time party thereto and the trustee therefor, as in effect on the
Restatement Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Existing 2013 Senior Notes" shall mean the U.S. Borrower's 7-7/8%
Senior Notes due 2013, issued pursuant to the Existing 2013 Senior Notes
Indenture, as in effect on the Restatement Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
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"Existing 2013 Senior Notes Documents" shall mean the Existing 2013
Senior Notes, the Existing 2013 Senior Notes Indenture and all other documents
executed and delivered with respect to the Existing 2013 Senior Notes or
Existing 2013 Senior Notes Indenture, as in effect on the Restatement Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"Existing 2013 Senior Notes Indenture" shall mean the Indenture, dated
as of July 15, 1993, among the U.S. Borrower, any U.S. Subsidiary Guarantors
from time to time party thereto and the trustee therefor, as in effect on the
Restatement Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Face Amount" of each Bank Guaranty shall, at any time, mean the
maximum amount payable thereunder (in each case determined without regard to
whether any conditions to payment could then be met, but after giving effect to
all previous payments made thereunder), provided that (i) except as such term is
used in Section 2B.02 and except as provided in the definition of "Euro B/G Face
Amount", the "Face Amount" of each Euro Denominated Bank Guaranty and each
Sterling Denominated Bank Guaranty shall be, on any date of calculation, the
Dollar Equivalent of the maximum amount payable in Euros or Sterling, as the
case may be, thereunder (determined without regard to whether any conditions to
payment could then be met but after giving effect to all previous payments made
thereunder).
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Fair Market Value" shall mean, with respect to any asset, the price
at which a willing buyer, not an Affiliate of the seller, and a willing seller
who does not have to sell, would agree to purchase and sell such asset, as
determined in good faith by the board of directors or other governing body or,
pursuant to a specific delegation of authority by such board of directors or
governing body, a designated senior executive officer, of Holdings, or the
Subsidiary of Holdings selling such asset.
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Lender of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fee Capped Foreign Subsidiary Guarantor" shall mean any Foreign
Credit Party organized under the laws of a jurisdiction in which (x) the
guaranties and/or secured obligations under the respective Credit Documents are
not required by the laws of such jurisdiction to be limited in any way and (y)
the guaranties and/or secured obligations under the respective Credit Documents
have been voluntarily limited (at the request of such Foreign Credit Party) to
reduce the amount of registration, notorial or other fees, taxes or amounts
payable in connection with the recordation or perfection of the security
interests purported to be created pursuant to the relevant Security Documents.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"First-Lien Obligations" shall mean all Obligations (as defined in the
U.S. Pledge Agreement) other than obligations of every kind and nature under, or
in respect of, the Intermediate Holdco Senior Notes Documents (including
post-petition interest on the Intermediate Holdco Senior Notes).
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"Fiscal Quarter" means, for any Fiscal Year, each of (i) the first
twelve weeks of such Fiscal Year, (ii) the thirteenth week of such Fiscal Year
through the twenty-fourth week of such Fiscal Year, (iii) the twenty-fifth week
of such Fiscal Year through the forty-first week of such Fiscal Year and (iv)
forty-second week of such Fiscal Year through the last day of such Fiscal Year,
as the case may be. For purposes of this Agreement, a reference to the 1st
Fiscal Quarter of any Fiscal Year shall be a reference to the period referred to
in clause (i) above; a reference to the 2nd Fiscal Quarter of any Fiscal Year
shall be a reference to the period referred to in clause (ii) above; a reference
to the 3rd Fiscal Quarter of any Fiscal Year shall be a reference to the period
referred to in clause (iii) above; and a reference to the 4th Fiscal Quarter of
any Fiscal Year shall be a reference to the period referred to in clause (iv)
above.
"Fiscal Year" means the fiscal year of Holdings and its Subsidiaries
ending on the Saturday nearest to December 31 of each calendar year. For
purposes of this Agreement, any particular Fiscal Year shall be designated by
reference to the calendar year in which the majority of such Fiscal Year falls.
"Foreign Asset Transfer" shall mean, collectively, (i) the transfer by
Bermuda Partnership Partner #1 or the Bermuda Partnership of shares of
Transtrading Overseas Limited, (ii) the transfer by the U.S. Borrower of shares
of Xxxx Pacific General Services Ltd. and (iii) the transfer by the U.S.
Borrower of shares of Castle & Xxxxx Worldwide Limited, in each case to Xxxx
Foreign Holdings II Ltd. (or such other Foreign Subsidiary as is acceptable to
the Administrative Agent).
"Foreign Credit Party" shall mean the Bermuda Borrower and each
Foreign Subsidiary Guarantor.
"Foreign Credit Party Pledge Agreements" shall mean each Foreign
Credit Party Pledge Agreement (as defined in the Original Credit Agreement)
entered into by a Foreign Credit Party pursuant to the terms of the Original
Credit Agreement and each other pledge agreement entered into by a Foreign
Credit Party pursuant to the terms hereof covering promissory notes and Equity
Interests and governed by the laws of the jurisdiction in which such Foreign
Credit Party is organized, in each case as the same may be amended, restated,
modified and/or supplemented from time to time in accordance with the terms
thereof. Part A of Schedule XIII sets forth a list of all Foreign Credit Party
Pledge Agreements in effect on the Restatement Effective Date (prior to giving
effect to the Foreign Security Document Acknowledgments and/or Amendments).
"Foreign Mortgaged Property" shall mean each Real Property located
outside the United States and the States and territories thereof with respect to
which a Mortgage is required to be delivered pursuant to the terms of this
Agreement.
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by Holdings or any one or more
of its Subsidiaries primarily for the benefit of employees of Holdings or any of
its Subsidiaries residing outside the United States of America, which plan, fund
or other similar program provides, or results in, retirement income, a deferral
of income in contemplation of retirement or payments to be made upon termination
of employment, and which plan is not subject to ERISA or the Code.
"Foreign Pledge Agreement" shall mean and include the Local Law Pledge
Agreements and the Foreign Credit Party Pledge Agreements.
"Foreign Security Agreements" shall mean each Foreign Security
Agreement (as defined in the Original Credit Agreement) entered into by a
Foreign Credit Party pursuant to the terms of the
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Original Credit Agreement, each Replacement Foreign Security Agreement and each
other security agreement, document and/or instrument entered into by a Foreign
Credit Party pursuant to the terms hereof covering tangible and intangible
assets (including receivables, contract rights, securities, inventory,
equipment, real estate, leasehold interests, vessels, insurances, and material
patents, trademarks and other intellectual property but excluding Excluded
Collateral) owned by such Foreign Credit Party and governed by the laws of the
jurisdiction in which such Foreign Credit Party is organized, in each case as
the same may be amended, restated, modified and/or supplemented from time to
time in accordance with the terms thereof. Part C of Schedule XIII sets forth a
list of all Replacement Foreign Security Agreements and all other Foreign
Security Agreements in effect on the Restatement Effective Date (prior to giving
effect to the Foreign Security Document Acknowledgment and/or Amendments).
"Foreign Security Document" shall mean each Security Document other
than a U.S. Security Document (including, without limitation, each Foreign
Pledge Agreement and each Foreign Security Agreement).
"Foreign Security Document Acknowledgement and/or Amendment" shall
have the meaning provided in Section 5.12.
"Foreign Subsidiaries Guaranty" shall mean the Foreign Subsidiaries
Guaranty, dated as of March 28, 2003, made by the Foreign Subsidiaries of
Holdings party thereto in favor of the Administrative Agent and shall include
any counterpart thereof and any other similar guaranty executed and delivered by
any Foreign Subsidiary of Holdings pursuant to Section 8.11, 9.05(xxi) or 9.14,
in each case, as the same may be amended, restated, modified and/or supplemented
from time to time in accordance with the terms thereof. A copy of the Foreign
Subsidiaries Guaranty as in effect on the Restatement Effective Date is attached
hereto as Exhibit G-4.
"Foreign Subsidiaries Guaranty Acknowledgement" shall have the meaning
provided in Section 5.10.
"Foreign Subsidiary" shall mean, as to any Person, any Subsidiary of
such Person that is not a Domestic Subsidiary of such Person.
"Foreign Subsidiary Guarantor" shall mean each Foreign Subsidiary of
Holdings (other than the Bermuda Borrower and any Non-Guarantor Subsidiary)
which executes and delivers a Foreign Subsidiaries Guaranty, unless and until
such time as the respective Foreign Subsidiary ceases to constitute a Foreign
Subsidiary or is released from all of its obligations under its Foreign
Subsidiaries Guaranty in accordance with the terms and provisions thereof;
provided that each Subsidiary of the U.S. Borrower organized under the laws of
Colombia which is a party to the Special Colombian Put Note Agreement shall be
treated as a "Foreign Subsidiary Guarantor" for all purposes of this Agreement,
unless and until such time as the respective Subsidiary ceases to constitute a
Subsidiary or is released from all of its obligations under the Special
Colombian Put Note Agreement.
"Foreign Unrestricted Subsidiary" of any Person shall mean any Foreign
Subsidiary of such Person that is an Unrestricted Subsidiary.
"Fortis" shall mean the Fortis Capital Corporation, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Fronting Fee" shall have the meaning provided in Section 3.01(f).
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"Guaranteed Creditors" shall mean and include each of the Agents, the
Collateral Agent, the Lenders, the Issuing Lenders, the Bank Guaranty Issuers
and each Person (other than any Credit Party or any of its Subsidiaries) party
to an Interest Rate Protection Agreement or Other Hedging Agreement to the
extent that such Person constitutes a Secured Creditor under the Security
Documents.
"Guarantors" shall mean and include each Credit Agreement Party and
each Subsidiary Guarantor.
"Guaranty" shall mean and include each Credit Agreement Party Guaranty
and each Subsidiaries Guaranty.
"Xxxxxx" shall mean the Xxxxxx Trust and Savings Bank in its
individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect.
"Highest Adjustable Applicable Margins" shall have the meaning
provided in the definition of Applicable Margin contained herein.
"Holdings" shall have the meaning provided in the first paragraph of
this Agreement.
"Holdings Common Stock" shall have the meaning provided in Section
7.13(a).
"Holdings Exchange Senior Notes" shall mean senior notes issued by
Holdings pursuant to a registered exchange offer or private exchange offer for
the Holdings Senior Notes and pursuant to the Holdings Senior Notes Indenture,
which senior notes are substantially identical securities to the Holdings Senior
Notes. In no event will the issuance of any Holdings Exchange Senior Notes
increase the aggregate principal amount of the Holdings Senior Notes then
outstanding or otherwise result in an increase in the interest rate applicable
to the Holdings Senior Notes.
"Holdings Guaranty" shall mean the guaranty of Holdings pursuant to
Section 14.
"Holdings Senior Notes" shall mean any Indebtedness of Holdings
evidenced by senior notes so long as (a) such Indebtedness has a final maturity
no earlier than the date occurring 12 months after the Tranche B Term Loan
Maturity Date, (b) such Indebtedness does not provide for guaranties or
security, and (c) all other terms of such Indebtedness (including, without
limitation, with respect to amortization, redemption provisions, maturities,
covenants, and defaults), are not, taken as a whole, less favorable in any
material respect to Holdings and its Subsidiaries than those applicable to the
U.S. Borrower and its Subsidiaries and contained in the Existing 2011 Senior
Notes Documents, as such Indebtedness may be amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof. The issuance
of Holdings Senior Notes shall be deemed to be a representation and warranty by
Holdings that all conditions thereto have been satisfied in all material
respects and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation,
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Sections 6B.01 and 10. As used herein, the term "Holdings Senior Notes" shall
include any Holdings Exchange Senior Notes issued pursuant to the Holdings
Senior Notes Indenture in exchange for theretofore outstanding Holdings Senior
Notes, as contemplated by the definition of Holdings Exchange Senior Notes.
"Holdings Senior Notes Documents" shall mean the Holdings Senior Notes
Indenture, the Holdings Senior Notes and each other agreement, document or
instrument relating to the issuance of the Holdings Senior Notes, as the same
may be amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.
"Holdings Senior Notes Indenture" shall mean any indenture, credit
agreement or similar agreement entered into in connection with the issuance of
Holdings Senior Notes, as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Incremental Dollar Facility RL Commitment" shall mean, for any
Lender, any commitment by such Lender to make Dollar Facility Revolving Loans
pursuant to Section 1.01(d) as agreed to by such Lender in the respective
Incremental Dollar Facility RL Commitment Agreement delivered pursuant to
Section 1.17; it being understood, however, that on each date upon which an
Incremental Dollar Facility RL Commitment of any Lender becomes effective, such
Incremental Dollar Facility RL Commitment of such Lender shall be added to (and
thereafter become a part of) the Dollar Facility Revolving Loan Commitment of
such Lender for all purposes of this Agreement as contemplated by Section 1.17.
"Incremental Dollar Facility RL Commitment Agreement" shall mean each
Incremental Dollar Facility RL Commitment Agreement in the form of Exhibit R
(appropriately completed) executed in accordance with Section 1.17.
"Incremental Dollar Facility RL Commitment Date" shall mean each date
upon which an Incremental Dollar Facility RL Commitment under an Incremental
Dollar Facility RL Commitment Agreement becomes effective as provided in Section
1.17(b).
"Incremental Dollar Facility RL Lender" shall have the meaning
specified in Section 1.17(b).
"Incremental Loan Commitment" shall mean any Incremental Term Loan
Commitment, any Incremental Multicurrency Facility Revolving Loan Commitment
and/or any Incremental Dollar Facility Revolving Loan Commitment, as the context
may require.
"Incremental Loan Commitment Agreement" shall mean any Incremental
Term Loan Commitment Agreement, any Incremental Multicurrency Facility RL
Commitment Agreement and/or any Incremental Dollar Facility RL Commitment
Agreement, as the context may require.
"Incremental Loan Commitment Date" shall mean any Incremental Term
Loan Borrowing Date, any Incremental Multicurrency Facility RL Commitment Date
or any Incremental Dollar Facility RL Commitment Date, as the context may
require.
"Incremental Loan Commitment Request Requirements" shall mean, with
respect to any request for an Incremental Loan Commitment made pursuant to
Section 1.15, 1.16 or 1.17, the satisfaction of each of the following conditions
on the date of such request: (x) no Default or Event of Default then exists or
would result therefrom (for purposes of such determination, assuming the
relevant Loans in an aggregate principal amount equal to the full amount of
Incremental Loan Commitments then
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requested had been incurred, and the proposed Permitted Acquisition (if any) to
be financed with the proceeds of such Loans had been consummated, on such date
of request) and all of the representations and warranties contained herein and
in the other Credit Documents are true and correct in all material respects at
such time (unless stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date); (y) the U.S. Borrower shall be in compliance
with the covenants contained in Sections 9.08 and 9.09 for the Calculation
Period most recently ended prior to the date of the request for Incremental Loan
Commitments, on a Pro Forma Basis, as if the relevant Loans to be made pursuant
to such Incremental Loan Commitments (assuming the full utilization thereof) had
been incurred, and the proposed Permitted Acquisition (if any) to be financed
with the proceeds of such Loans (as well as other Permitted Acquisitions
theretofore consummated after the first day of such Calculation Period) had
occurred, on the first day of such Calculation Period and (z) no Incremental
Term Loan Commitments are then outstanding, unless the full amount such
Incremental Term Loan Commitments will be utilized on the date of the
effectiveness of the Incremental Term Loan Commitment Agreement to be entered
into in connection with the Incremental Term Loan Commitments of the new Tranche
then being requested.
"Incremental Loan Commitment Requirements" shall mean, with respect to
any provision of an Incremental Loan Commitment on a given Incremental Loan
Commitment Date, the satisfaction of each of the following conditions on or
prior to the effective date of the respective Incremental Loan Commitment
Agreement: (r) no Default or Event of Default then exists or would result
therefrom (for purposes of such determination, assuming the relevant Loans in an
aggregate principal amount equal to the full amount of Incremental Loan
Commitments then provided had been incurred, and the proposed Permitted
Acquisition (if any) to be financed with the proceeds of such Loans had been
consummated, on such date of effectiveness) and all of the representations and
warranties contained herein and in the other Credit Documents are true and
correct in all material respects at such time (unless stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier date); (s)
calculations are made by Holdings or the U.S. Borrower demonstrating compliance
with the covenants contained in Sections 9.08 and 9.09 for the Calculation
Period most recently ended prior to such date of effectiveness, on a Pro Forma
Basis, as if the relevant Loans to be made pursuant to such Incremental Loan
Commitments (assuming the full utilization thereof) had been incurred, and the
proposed Permitted Acquisition (if any) to be financed with the proceeds of such
Loans (as well as other Permitted Acquisitions theretofore consummated after the
first day of such Calculation Period) had occurred, on the first day of such
Calculation Period; (t) the delivery by Holdings to the Administrative Agent of
an officer's certificate executed by an Authorized Officer of Holdings and
certifying as to compliance with preceding clauses (r) and (s) and containing
the calculations required by clause (s); (u) the delivery by Holdings to the
Administrative Agent of an officer's certificate executed by an Authorized
Officer of Holdings certifying which provisions of the Existing 2009 Senior
Notes Indenture, the Existing 2013 Senior Notes Indenture, the Existing 2010
Senior Notes Indenture, the Existing 2011 Senior Notes Indenture, the
Intermediate Holdco Senior Notes Indenture and (after the execution and delivery
thereof) the Holdings Senior Notes Indenture, each Permitted Senior Notes
Indenture and each Permitted Senior Refinancing Notes Document that the
respective incurrence of Incremental Loans will be justified under and
demonstrating in reasonable detail that the full amount of such Incremental
Loans may be incurred in accordance with, and will not violate the provisions of
the Existing 2009 Senior Notes Indenture, the Existing 2013 Senior Notes
Indenture, the Existing 2010 Senior Notes Indenture, the Existing 2011 Senior
Notes Indenture, the Intermediate Holdco Senior Notes Indenture and (after the
execution and delivery thereof) the Holdings Senior Notes Indenture, each
Permitted Senior Notes Indenture and each Permitted Senior Refinancing Notes
Document; (v) the delivery by Holdings to the Administrative Agent of an
acknowledgement in form and substance reasonably satisfactory to the
Administrative Agent and executed by each Guarantor (in the case of an
Incremental Loan Commitment requested by the Bermuda Borrower) or each U.S.
Subsidiary Guarantor (in the case of an Incremental Loan Commitment requested by
the U.S. Borrower), as the case may be,
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acknowledging that such Incremental Loan Commitment and all Loans subsequently
incurred pursuant to such Incremental Loan Commitment shall constitute (and be
included in the definition of) "Guaranteed Obligations" under each Guaranty of
such Guarantor; (w) the delivery by Holdings and its Subsidiaries of such
technical amendments, modifications and/or supplements to the respective
Security Documents as are reasonably requested by the Administrative Agent to
ensure that the additional Obligations to be incurred pursuant to the
Incremental Loan Commitments are secured by, and entitled to the benefits of,
the relevant Security Documents, and each of the Lenders hereby agrees to, and
authorizes the Collateral Agent to enter into, any such technical amendments,
modifications and/or supplements; (x) the delivery by Holdings to the
Administrative Agent of an opinion or opinions, in form and substance reasonably
satisfactory to the Administrative Agent, from counsel to the Credit Parties
reasonably satisfactory to the Administrative Agent and dated such date,
covering such of the matters set forth in the opinions of counsel delivered to
the Administrative Agent on the Initial Borrowing Date pursuant to Section 5.03
of the Original Credit Agreement as may be reasonably requested by the
Administrative Agent, and such other matters incident to the transactions
contemplated thereby as the Administrative Agent may reasonably request, (y) the
delivery by Holdings and the other Credit Parties to the Administrative Agent of
such other officers' certificates, resolutions and evidence of good standing as
the Administrative Agent shall reasonably request and (z) the completion by
Holdings and the other Credit Parties of such other actions as the
Administrative Agent may reasonably request in connection with such Incremental
Loan Commitment, it being understood and agreed that the Administrative Agent
may (in its sole discretion) agree that the delivery of technical amendments,
modifications and/or supplements to the respective Security Documents pursuant
to sub-clause (w) of the preceding sentence may occur after the incurrence of
Loans to be made pursuant to the respective Incremental Loan Commitments
(subject to a time frame to be agreed by the Administrative Agent), in which
case said sub-clause (w) will be deemed satisfied at the time of the incurrence
of such Loans, so long as such technical amendments, modifications and/or
supplements to the respective Security Documents are subsequently delivered
within the time frame stipulated by the Administrative Agent.
"Incremental Loan Lender" shall mean any Incremental Term Loan Lender
and/or any Incremental RL Lender, as the context may require.
"Incremental Multicurrency Facility RL Commitment" shall mean, for any
Lender, any commitment by such Lender to make Multicurrency Facility Revolving
Loans pursuant to Section 1.01(c) as agreed to by such Lender in the respective
Incremental Multicurrency Facility RL Commitment Agreement delivered pursuant to
Section 1.16; it being understood, however, that on each date upon which an
Incremental Multicurrency Facility RL Commitment of any Lender becomes
effective, such Incremental Multicurrency Facility RL Commitment of such Lender
shall be added to (and thereafter become a part of) the Multicurrency Facility
Revolving Loan Commitment of such Lender for all purposes of this Agreement as
contemplated by Section 1.16.
"Incremental Multicurrency Facility RL Commitment Agreement" shall
mean each Incremental Multicurrency Facility Revolving Loan Commitment Agreement
in the form of Exhibit Q (appropriately completed) executed in accordance with
Section 1.16.
"Incremental Multicurrency Facility RL Commitment Date" shall mean
each date upon which an Incremental Multicurrency Facility RL Commitment under
an Incremental Multicurrency Facility RL Commitment Agreement becomes effective
as provided in Section 1.16(b).
"Incremental Multicurrency Facility RL Lender" shall have the meaning
specified in Section 1.16(b).
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"Incremental RL Lender" shall mean any Incremental Multicurrency
Facility RL Lender and any Incremental Dollar Facility RL Lender.
"Incremental Term Loan" shall have the meaning provided in Section
1.01(i).
"Incremental Term Loan Borrower" shall mean (x) the U.S. Borrower,
with respect to U.S. Borrower Incremental Term Loans and (y) the Bermuda
Borrower, with respect to Bermuda Borrower Incremental Term Loans.
"Incremental Term Loan Borrowing Date" shall mean, with respect to
each Tranche of Incremental Term Loans, each date on which Incremental Term
Loans of such Tranche are incurred pursuant to Section 1.01(i) and as otherwise
permitted by Section 1.15.
"Incremental Term Loan Commitment" shall mean, for each Lender, any
commitment to make Incremental Term Loans provided by such Lender pursuant to
Section 1.15, in such amount as agreed to by such Lender in the respective
Incremental Term Loan Commitment Agreement and as set forth opposite such
Lender's name in Schedule I (as modified in accordance with Section 1.15)
directly below the column entitled "Incremental Term Loan Commitment", as the
same may be (x) reduced from time to time or terminated pursuant to Sections
3.02, 3.03, 4.02 and/or 10 or (y) adjusted from time to time as a result of
assignments to and from such Lender pursuant to Sections 1.13 and/or 13.04(b).
"Incremental Term Loan Commitment Agreement" shall mean each
Incremental Term Loan Commitment Agreement in the form of Exhibit P
(appropriately completed) executed in accordance with Section 1.15.
"Incremental Term Loan Commitment Termination Date" shall mean, with
respect to any Tranche of Incremental Term Loans, the last date by which
Incremental Term Loans under such Tranche may be incurred under this Agreement,
which date shall be set forth in the respective Incremental Term Loan Commitment
Agreement but may be no later than the date which is 12 months prior to the
Tranche B Term Loan Maturity Date.
"Incremental Term Loan Lender" shall have the meaning provided in
Section 1.15(b).
"Incremental Term Loan Maturity Date" shall mean, for any Tranche of
Incremental Term Loans, the final maturity date set forth for such Tranche of
Incremental Term Loans in the respective Incremental Term Loan Commitment
Agreement relating thereto, provided that the final maturity date for all
Incremental Term Loans of a given Tranche shall be the same date.
"Incremental Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b).
"Incremental Term Note" shall have the meaning provided in Section
1.05.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn or paid under all
letters of credit, bankers' acceptances, bank guaranties and similar obligations
issued for the account of such Person and all unpaid drawings and unreimbursed
payments in respect of such letters of credit, bankers' acceptances, bank
guaranties and similar obligations, (iii) all indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
indebtedness has been assumed by such Person (provided that, if the
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Person has not assumed or otherwise become liable in respect of such
indebtedness, such indebtedness shall be deemed to be in an amount equal to the
fair market value of the property to which such Lien relates as determined in
good faith by such Person), (iv) the aggregate amount of all Capitalized Lease
Obligations of such Person, (v) all obligations of such Person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person, and (vii) all obligations under any Interest Rate
Protection Agreement, any Other Hedging Agreement, Commodity Agreements or under
any similar type of agreement and (viii) obligations arising under Synthetic
Leases. Notwithstanding the foregoing, Indebtedness shall not include trade
payables, accrued expenses and deferred tax and other credits incurred by any
Person in accordance with customary practices and in the ordinary course of
business of such Person.
"Individual Bermuda Borrower Dollar Facility RL Exposure" of any
Dollar Facility RL Lender shall mean, at any time, the sum of (I) the aggregate
principal amount of all Bermuda Borrower Dollar Facility Revolving Loans made by
such Dollar Facility RL Lender and then outstanding, plus (II) the sum of such
Dollar Facility RL Lender's L/C Participation Percentage in each then
outstanding Bermuda Borrower Dollar Facility Letter of Credit multiplied by the
sum of the Stated Amount of the respective Letter of Credit and any Unpaid
Drawings relating thereto plus (III) such Dollar Facility RL Lender's Dollar
Facility RL Percentage multiplied by the aggregate principal amount of
outstanding Bermuda Borrower Dollar Facility Swingline Loans.
"Indemnified Person" shall have the meaning provided in Section
13.01(a).
"Individual Bermuda Borrower Multicurrency Facility RL Exposure" of
any Multicurrency Facility RL Lender shall mean, at any time, the sum of (I) the
aggregate principal amount of all Bermuda Borrower Multicurrency Facility
Revolving Loans made by such Multicurrency Facility RL Lender and then
outstanding (for this purpose, using the Dollar Equivalent of the principal
amount of all Euro Denominated Revolving Loans made to the Bermuda Borrower and
then outstanding), plus (II) such Multicurrency Facility RL Lender's L/C
Participation Percentage in each then outstanding Bermuda Borrower Multicurrency
Facility Letter of Credit multiplied by the sum of the Stated Amount of the
respective Bermuda Borrower Multicurrency Facility Letter of Credit and any
Unpaid Drawings relating thereto (for this purpose, using the Dollar Equivalent
of any amounts expressed in Euros or Sterling), (III) such Multicurrency
Facility RL Lender's Multicurrency Facility RL Percentage multiplied by the
aggregate principal amount of outstanding Bermuda Borrower Multicurrency
Facility Swingline Loans (for this purpose, using the Dollar Equivalent of the
principal amount of Euro Denominated Swingline Loans made to the Bermuda
Borrower and then outstanding) plus (IV) such Multicurrency Facility RL Lender's
B/G Participation Percentage in each then outstanding Bermuda Borrower Bank
Guaranty multiplied by the sum of the Face Amount of the respective Bermuda
Borrower Bank Guaranty and any Unreimbursed Payments relating thereto (for this
purpose, using the Dollar Equivalent of any amounts expressed in Euros or
Sterling).
"Individual Dollar Facility RL Exposure" of any Dollar Facility RL
Lender shall mean, at any time, the sum of (I) the aggregate principal amount of
all Dollar Facility Revolving Loans made by such Dollar Facility RL Lender and
then outstanding, plus (II) such Dollar Facility RL Lender's L/C Participation
Percentage in each then outstanding Dollar Facility Letter of Credit multiplied
by the sum of the Stated Amount of the respective Dollar Facility Letter of
Credit and any Unpaid Drawings relating thereto plus (III) such Dollar Facility
RL Lender's Dollar Facility RL Percentage multiplied by the aggregate principal
amount of all outstanding Dollar Facility Swingline Loans.
"Individual Multicurrency Facility RL Exposure" of any Multicurrency
Facility RL Lender shall mean, at any time, the sum of (I) the aggregate
principal amount of all Multicurrency Facility Revolving Loans made by such
Multicurrency Facility RL Lender and then outstanding (for this
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purpose, using the Dollar Equivalent of the principal amount of all Euro
Denominated Revolving Loans then outstanding), plus (II) such Multicurrency
Facility RL Lender's L/C Participation Percentage in each then outstanding
Multicurrency Facility Letter of Credit multiplied by the sum of the Stated
Amount of the respective Multicurrency Facility Letter of Credit and any Unpaid
Drawings relating thereto (for this purpose, using the Dollar Equivalent of any
amounts expressed in Euros or Sterling), plus (III) such Multicurrency Facility
RL Lender's Multicurrency Facility RL Percentage multiplied by the aggregate
principal amount of outstanding Multicurrency Facility Swingline Loans (for this
purpose, using the Dollar Equivalent of the principal amount of Euro Denominated
Swingline Loans then outstanding) plus (IV) such Multicurrency Facility RL
Lender's B/G Participation Percentage in each then outstanding Bank Guaranty
multiplied by the sum of the Face Amount of the respective Bank Guaranty and any
Unreimbursed Payments relating thereto (for this purpose, using the Dollar
Equivalent of any amounts expressed in Euros or Sterling).
"Individual RL Facility Exposures" of any Lender shall mean, at any
time, the sum of the Individual Multicurrency Facility RL Exposure and the
Individual Dollar Facility RL Exposure of such Lender at such time.
"Individual U.S. Borrower Dollar Facility RL Exposure" of any Dollar
Facility RL Lender shall mean, at any time, the sum of (I) the aggregate
principal amount of all U.S. Borrower Dollar Facility Revolving Loans made by
such Dollar Facility RL Lender and then outstanding, plus (II) the sum of such
Dollar Facility RL Lender's L/C Participation Percentage in each then
outstanding U.S. Borrower Dollar Facility Letter of Credit multiplied by the sum
of the Stated Amount of the respective U.S. Borrower Dollar Facility Letter of
Credit and any Unpaid Drawings relating thereto plus (III) such Dollar Facility
RL Lender's Dollar Facility RL Percentage multiplied by the aggregate principal
amount of outstanding U.S. Borrower Dollar Facility Swingline Loans.
"Individual U.S. Borrower Multicurrency Facility RL Exposure" of any
Multicurrency Facility RL Lender shall mean, at any time, the sum of (I) the
aggregate principal amount of all U.S. Borrower Multicurrency Facility Revolving
Loans made by such Multicurrency Facility RL Lender and then outstanding (for
this purpose, using the Dollar Equivalent of the principal amount of all Euro
Denominated Revolving Loans made to the U.S. Borrower and then outstanding),
plus (II) such Multicurrency Facility RL Lender's L/C Participation Percentage
in each then outstanding U.S. Borrower Multicurrency Facility Letter of Credit
multiplied by the sum of the Stated Amount of the respective U.S. Borrower
Multicurrency Facility Letter of Credit and any Unpaid Drawings relating thereto
(for this purpose, using the Dollar Equivalent of any amounts expressed in Euros
or Sterling), plus (III) such Multicurrency Facility RL Lender's Multicurrency
Facility RL Percentage multiplied by the aggregate principal amount of
outstanding U.S. Borrower Multicurrency Facility Swingline Loans (for this
purpose, using the Dollar Equivalent of the principal amount of Euro Denominated
Swingline Loans made to the U.S. Borrower and then outstanding) plus (IV) such
Multicurrency Facility RL Lender's B/G Participation Percentage in each then
outstanding U.S. Borrower Bank Guaranty multiplied by the sum of the Face Amount
of the respective U.S. Borrower Bank Guaranty and any Unreimbursed Payments
relating thereto (for this purpose, using the Dollar Equivalent of any amounts
expressed in Euros or Sterling).
"Initial Borrowing Date" shall have the meaning provided in the
Original Credit Agreement.
"Intercompany Debt" shall mean any Indebtedness, payables or other
obligations, whether now existing or hereafter incurred, owed by Holdings or any
Subsidiary of Holdings to Holdings or any other Subsidiary of Holdings.
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"Intercompany Distribution Transactions" shall have the meaning
provided in Section 5.09(b) of the Original Credit Agreement.
"Intercompany Distribution Transaction Documents" shall mean all of
the documents and instruments entered into in connection with the Intercompany
Distribution Transactions, in each case as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Intercompany Note" shall mean a promissory note evidencing
intercompany loans made pursuant to Sections 9.05(vi), (xxv) and (xxvi), in each
case duly executed and delivered substantially in the form of Exhibit K, with
blanks completed in conformity herewith (or such other form as may be approved
by the Administrative Agent or the Required Lenders).
"Intercompany Receivables Documents" shall mean those certain
intercompany purchase agreements, dated as of March 28, 2003, entered into by
the U.S. Borrower and the Bermuda Partnership Partners, providing for the sale
of accounts receivable by the Bermuda Partnership Partners to, and the purchase
of accounts receivable by, the U.S. Borrower, which sale arrangements shall be
on a non-recourse basis and for reasonably equivalent value and otherwise on
terms satisfactory to the Agents, as the same may be amended, modified and/or
supplemented from time to time.
"Intercompany Refinancing Distributions" shall mean the loans,
Dividends and other distributions by the Bermuda Borrower and certain other
Subsidiaries of the U.S. Borrower made on the Restatement Effective Date to
finance, in part, the Refinancing and to pay fees and expenses incurred in
connection with the Transaction, all as more specifically set forth on Schedule
XXI hereto.
"Intercompany Scheduled Existing Indebtedness" shall have the meaning
provided in Section 7.21.
"Intercompany Subordination Agreement" shall mean the Intercompany
Subordination Agreement, dated as of March 28, 2003, made by Holdings and
various of its Subsidiaries party thereto in favor of the Administrative Agent,
as the same may be amended, restated, modified and/or supplemented from time to
time in accordance with the terms thereof (including, without limitation, as
modified by the Intercompany Subordination Agreement Acknowledgement and
Amendment). A copy of the Intercompany Subordination Agreement as in effect on
the Restatement Effective Date is attached hereto as Exhibit O-2.
"Intercompany Subordination Agreement Acknowledgement and Amendment"
shall have the meaning provided in Section 5.10.
"Interest Determination Date" shall mean, with respect to any Euro
Rate Loan (other than a Swingline Loan), the second Business Day prior to the
commencement of any Interest Period relating to such Euro Rate Loan.
"Interest Period" with respect to any Euro Rate Loan, shall mean the
interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement, interest rate floor agreement or other similar agreement
or arrangement.
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"Intermediate Holdco" shall have the meaning provided in the first
paragraph of this Agreement.
"Intermediate Holdco Exchange Senior Notes" shall mean senior notes
issued by Intermediate Holdco and Corporate Holdco (as co-issuers) pursuant to a
registered exchange offer or private exchange offer for the Intermediate Holdco
Senior Notes and pursuant to the Intermediate Holdco Senior Notes Indenture,
which senior notes are substantially identical securities to the Intermediate
Holdco Senior Notes. In no event will the issuance of any Intermediate Holdco
Exchange Senior Notes increase the aggregate principal amount of the
Intermediate Holdco Senior Notes then outstanding or otherwise result in an
increase in the interest rate applicable to the Intermediate Holdco Senior
Notes.
"Intermediate Holdco Guaranty" shall mean the guaranty of Intermediate
Holdco pursuant to Section 14.
"Intermediate Holdco Senior Notes" shall mean any Indebtedness of
Intermediate Holdco and Corporate Holdco (as co-issuers) evidenced by senior
notes so long as (a) such Indebtedness has a final maturity no earlier than the
date occurring 12 months after the Tranche B Term Loan Maturity Date, (b) such
Indebtedness does not provide for guaranties or security, except pursuant to the
U.S. Pledge Agreement (as contemplated by Section 9.03(iii)), and (c) all other
terms of such Indebtedness (including, without limitation, with respect to
amortization, redemption provisions, maturities, covenants, and defaults), are
not, taken as a whole, less favorable in any material respect to Intermediate
Holdco and its Subsidiaries than those applicable to the U.S. Borrower and its
Subsidiaries and contained in the Existing 2011 Senior Notes Documents, as such
Indebtedness may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof. The issuance of Intermediate
Holdco Senior Notes shall be deemed to be a representation and warranty by
Intermediate Holdco that all conditions thereto have been satisfied in all
material respects and that same is permitted in accordance with the terms of
this Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 6B.01 and 10. As used herein, the term "Intermediate Holdco
Senior Notes" shall include any Intermediate Holdco Exchange Senior Notes issued
pursuant to the Intermediate Holdco Senior Notes Indenture in exchange for
theretofore outstanding Intermediate Holdco Senior Notes, as contemplated by the
definition of Intermediate Holdco Exchange Senior Notes.
"Intermediate Holdco Senior Notes Documents" shall mean the
Intermediate Holdco Senior Notes Indenture, the Intermediate Holdco Senior Notes
and each other agreement, document or instrument relating to the issuance of the
Intermediate Holdco Senior Notes, as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Intermediate Holdco Senior Notes Indenture" shall mean any indenture
or similar agreement entered into in connection with the issuance of
Intermediate Holdco Senior Notes, as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Investment" shall have the meaning provided in the preamble to
Section 9.05.
"Issuing Lender" shall mean (i) DBAG, any affiliate of DBAG and any RL
Lender (or affiliate of any RL Lender) which at the request of an Account Party
and with the consent of the Administrative Agent agrees, in RL Lender's (or RL
Lender affiliate's) sole discretion, to become an Issuing Lender for the purpose
of issuing Letters of Credit pursuant to Section 2, and (ii) with respect to the
Existing Letters of Credit, the Lender designated as the issuer thereof on Part
A of Schedule XI shall be the Issuing Lender thereof.
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"Joint Lead Arrangers" shall mean DBSI, Scotia Capital and BAS, each
in their capacities as Joint Lead Arrangers and Book Runners.
"Judgment Currency" shall have the meaning provided in Section
13.23(a).
"Judgment Currency Conversion Date" shall have the meaning provided in
Section 13.23(a).
"Landlord-Lender Agreement" shall mean each agreement between a
landlord of each U.S. Leasehold Property and the Collateral Agent entered into
pursuant to the terms of this Agreement.
"L/C Participant" shall have the meaning provided in Section 2A.04(a).
"L/C Participation Percentages" shall have the meaning provided in
Section 2A.04(a).
"L/C Supportable Indebtedness" shall mean (i) obligations of the U.S.
Borrower or its Wholly-Owned Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers' compensation, surety
bonds and other similar statutory obligations, (ii) obligations of the U.S.
Borrower and its Wholly-Owned Subsidiaries under bank guaranties issued by
financial institutions in support of obligations of the U.S. Borrower and its
Wholly-Owned Subsidiaries otherwise permitted to exist pursuant to the terms of
this Agreement and (iii) such other obligations of the U.S. Borrower or any of
its Wholly-Owned Subsidiaries as are reasonably acceptable to the Administrative
Agent and the respective Issuing Lender and otherwise permitted to exist
pursuant to the terms of this Agreement.
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Leasehold Property" shall mean each Real Property leased by the U.S.
Borrower or any of its Subsidiaries and for which Landlord-Lender Agreements
shall be required pursuant to this Agreement.
"Lender" shall mean and include (i) each financial institution with a
Commitment listed on Schedule I (as amended from time to time), as well as any
Person that becomes a "Lender" hereunder pursuant to Section 1.13, 1.15, 1.16,
1.17 and/or 13.04(b) and (ii) the Swingline Lender. Unless the context otherwise
requires, each reference in this Agreement to a Lender includes each lending
office (including any Affiliate of the respective Lender) of the respective
Lender designated from time to time pursuant to Section 1.12.
"Lender Default" shall mean (i) the wrongful refusal (which has not
been retracted) of a Lender to make available its portion of any Borrowing
(including any Mandatory Borrowing), to fund its portion of any unreimbursed
payment under Section 2A.04 or (ii) a Lender having notified the Administrative
Agent and/or any Credit Agreement Party that it does not intend to comply with
its obligations under Section 1.01, 2A.03 or 2B.03 in circumstances where such
non-compliance would constitute a breach of such Lender's obligations under the
respective Section.
"Letter of Credit" shall have the meaning provided in Section
2A.01(a).
"Letter of Credit Fees" shall have the meaning provided in Section
3.01(b).
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"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit which have
not terminated at such time and (ii) the aggregate amount of all Unpaid Drawings
(taking the Dollar Equivalent of any amounts owed in currencies other than
Dollars) in respect of all Letters of Credit at such time.
"Letter of Credit Request" shall have the meaning provided in Section
2A.03(a).
"Leverage Ratio" shall mean, on any date of determination, the ratio
of (i) Consolidated Net Debt on such date to, (ii) Consolidated EBITDA for the
Test Period most recently ended on or prior to such date; provided that for all
purposes of this Agreement, (i) Consolidated EBITDA for purposes of the Leverage
Ratio shall be determined on a Pro Forma Basis in accordance with clause (iv) of
the definition of Pro Forma Basis contained herein and (ii) Consolidated Net
Debt for purposes of the Leverage Ratio as it relates to the definition of
"Applicable Margin" shall be determined on a Pro Forma Basis in accordance with
clause (iii) of the definition of "Pro Forma Basis" contained herein.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or other),
charge, preference, priority or other security agreement of any kind or nature
whatsoever (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any financing or similar
statement or notice filed under the UCC or any similar recording or notice
statute, and any lease having substantially the same effect as the foregoing).
"Loan" shall mean each Tranche A Term Loan, each Tranche B Term Loan,
each Incremental Term Loan, each Revolving Loan and each Swingline Loan.
"Local Law Pledge Agreements" shall mean the Local Law Pledge
Agreements (as defined in the Original Credit Agreement) entered into pursuant
to the Original Credit Agreement and any other pledge agreement entered into by
a Credit Party pursuant to this Agreement (x) covering promissory notes of,
and/or Equity Interests in, one or more Persons organized under the laws of a
different jurisdiction from the jurisdiction of organization of such Credit
Party and (y) governed by the laws of the jurisdiction or jurisdictions in which
the Person or Persons whose promissory notes or Equity Interests are being
pledged is (or are) organized, in each case as the same may be amended,
restated, modified and/or supplemented from time to time in accordance with the
terms thereof. Part B of Schedule XIII sets forth a list of all Local Law Pledge
Agreements in effect on the Restatement Effective Date.
"Majority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreements" shall have the meaning provided in Section
5.13.
"Mandatory Borrowing" shall mean and include any Mandatory
Multicurrency Facility RL Borrowing and any Mandatory Dollar Facility RL
Borrowing.
"Mandatory Cost" means (i) in the case of a Euro Denominated Loans,
the cost imputed to each Lender of compliance with any reserve asset
requirements of the European Central Bank and (ii) in the case of a Yen
Denominated Term Loan, such costs to a Lender making such Loan, as determined in
accordance with Schedule XIX.
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"Mandatory Dollar Facility RL Borrowing" shall have the meaning
provided in Section 1.01(h).
"Mandatory Multicurrency Facility RL Borrowing" shall have the meaning
provided in Section 1.01(g).
"Margin Regulations" shall mean, collectively, Regulation T,
Regulation U and Regulation X.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean (i) a material adverse effect on
the business, properties, assets, nature of assets, operations, liabilities,
condition (financial or otherwise) or prospects of (A) Holdings and its
Subsidiaries taken as a whole or (B) the U.S. Borrower and its Subsidiaries
taken as a whole, or (ii) a material adverse effect (x) on the rights or
remedies of the Lenders or any Agent hereunder or under any other Credit
Document or (y) on the ability of any Credit Party to perform its obligations to
the Lenders or any Agent hereunder or under any other Credit Document; provided
that (i) the occurrence of an Excluded Event shall not constitute a "Material
Adverse Effect" for purposes of this definition and (ii) the impact of payments,
costs and expenses made and/or incurred in connection with claims or litigation
on the business, operations, financial condition and prospects of Holdings and
its Subsidiaries shall not be taken into account in making any determination of
"Material Adverse Effect," to the extent (and only to the extent) of the
reserves Holdings and its Subsidiaries shall have established to cover such
payments, costs and expenses on the Original Effective Date, so long as such
reserves (including the aggregate amount thereof) shall have been identified to
the Agents in writing prior to the Original Effective Date and all payments,
costs and expenses for which such reserves have been established have been fully
reflected in the Projections (as defined in the Original Credit Agreement).
"Material Foreign Subsidiary" shall mean, at any time, any Foreign
Subsidiary of Holdings the net book value of the assets of which equals or
exceeds $5,000,000 at such time; provided that for purposes of (and only of)
Section 8.01(i), the term "Material Foreign Subsidiary" shall mean, at any time,
any Foreign Subsidiary of Holdings the net book value of the assets of which
equals or exceeds $10,000,000 at such time.
"Material Governmental Investigation" shall mean, at any time, any
material governmental investigation in a country in which the aggregate net book
value of the assets owned by Holdings and its Subsidiaries in such country
(determined as of the last day of the Fiscal Quarter then last ended) exceeds
$25,000,000.
"Maturity Date" shall mean (i) with respect to Tranche A Term Loans,
the Tranche A Term Loan Maturity Date, (ii) with respect to Tranche B Term
Loans, the Tranche B Term Loan Maturity Date, (iii) with respect to Incremental
Term Loans of a given Tranche, the respective Incremental Term Loan Maturity
Date therefor, (iv) with respect to Revolving Loans, the Revolving Loan Maturity
Date and (v) with respect to Swingline Loans, the Swingline Expiry Date.
"Maximum Incremental Commitment Amount" shall mean $250,000,000.
"Maximum Permitted Consideration" shall mean, with respect to any
Permitted Acquisition, the sum (without duplication) of (i) the fair market
value of the Holdings Common Stock (based on the average closing trading price
of the Holdings Common Stock for the 20 trading days immediately prior to the
date of such Permitted Acquisition on the stock exchange on which Holdings
Common Stock is listed or, if Holdings Common Stock is not so listed, the good
faith determination of
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the senior management of Holdings) issued (or to be issued) as consideration in
connection with such Permitted Acquisition (including, without limitation,
Holdings Common Stock which may be required to be issued as earnout
consideration upon the achievement of certain future performance goals of the
respective Acquired Entity or Business), (ii) the aggregate amount of all cash
paid (or to be paid) by Holdings or any of its Subsidiaries in connection with
such Permitted Acquisition (including, without limitation, payments of fees and
costs and expenses in connection therewith) and all contingent cash purchase
price or other earnout obligations of Holdings and its Subsidiaries incurred in
connection therewith (as determined in good faith by Holdings), (iii) the
aggregate principal amount of all Indebtedness assumed, incurred and/or issued
in connection with such Permitted Acquisition to the extent permitted by Section
9.04 and (iv) the fair market value (determined in good faith by senior
management of Holdings) of all other consideration payable in connection with
such Permitted Acquisition.
"Maximum Swingline Amount" shall mean $20,000,000.
"Minimum Applicable Facing Fee" shall mean (x) in the case of all
Letters of Credit (other than Euro Denominated Letters of Credit), $500 and (y)
in the case of Euro Denominated Letters of Credit, E500.
"Minimum Applicable Fronting Fee" shall mean (x) in the case of all
Bank Guaranties (other than Euro Denominated Bank Guaranties), $500 and (y) in
the case of Euro Denominated Bank Guaranties, E500.
"Minimum Borrowing Amount" shall mean (i) in the case of Dollar
Denominated Loans (excluding Dollar Denominated Swingline Loans and Dollar
Denominated Revolving Loans maintained as Base Rate Loans), $5,000,000, (ii) in
the case of Revolving Loans maintained from time to time as Base Rate Loans,
$1,000,000, (iii) in the case of Euro Denominated Revolving Loans, E1,000,000,
(iv) in the case of Dollar Denominated Swingline Loans, $250,000, (v) in the
case of Euro Denominated Swingline Loans, E250,000 and (vi) in the case of Yen
Denominated Term Loans, Y500,000,000.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Mortgage" shall mean each mortgage, deed of trust or deed to secure
debt required to be delivered with respect to any Real Property pursuant to the
terms of this Agreement (including, after the execution and delivery thereof,
each Additional Mortgage covering a Mortgaged Property), together with any
assignment of leases and rents to be executed in connection therewith, in each
case as the same may be amended, modified and/or supplemented from time to time
in accordance with the terms hereof and thereof.
"Mortgage Policy" shall mean each mortgage title insurance policy (and
all endorsements thereto) for each Mortgaged Property required to be delivered
pursuant to this Agreement.
"Mortgaged Property" shall mean each Real Property owned by Holdings
or any of its Subsidiaries and required to be mortgaged pursuant to this
Agreement (including, after the execution and delivery of any Additional
Mortgage covering Real Estate, the respective Additional Mortgaged Property).
"Multicurrency Facility Letter of Credit" shall mean each Letter of
Credit (which may be denominated in Dollars, Euros or Sterling) issued to the
U.S. Borrower or the Bermuda Borrower pursuant to Section 2A.01 and designated
as such by the respective Borrower in the respective Letter of Credit Request.
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"Multicurrency Facility Letter of Credit Outstandings" shall mean, at
any time, the sum of (i) the aggregate Stated Amount of all outstanding
Multicurrency Facility Letters of Credit plus (ii) the aggregate amount of all
Unpaid Drawings (taking the Dollar Equivalent of all amounts payable in Euros or
Sterling) in respect of all Multicurrency Facility Letters of Credit.
"Multicurrency Facility Revolving Loan" shall have the meaning
provided in Section 1.01(c).
"Multicurrency Facility Revolving Loan Commitment" shall mean, for
each Lender, the amount set forth opposite such Lender's name on Schedule I
hereto directly below the column entitled "Multicurrency Facility Revolving Loan
Commitment", as same may be (x) reduced from time to time and/or terminated
pursuant to Section 3.02, 3.03, 4.02 and/or 10, (y) adjusted from time to time
as a result of assignments to or from such Lender pursuant to Section 1.13 or
13.04(b), or (z) increased from time to time pursuant to Section 1.16.
"Multicurrency Facility RL Lender" shall mean each Lender which has a
Multicurrency Facility Revolving Loan Commitment (without giving effect to any
termination of the Total Multicurrency Facility Revolving Loan Commitment if any
Multicurrency Facility Swingline Loans, Multicurrency Facility Letter of Credit
Outstandings or Bank Guaranty Outstandings remain outstanding) or which has any
outstanding Multicurrency Facility Revolving Loans (or an L/C Participation
Percentage in any then outstanding Multicurrency Facility Letter of Credit
Outstandings or a B/G Participation Percentage in any then outstanding Bank
Guaranty Outstandings).
"Multicurrency Facility RL Percentage" of any Multicurrency Facility
RL Lender at any time shall be that percentage which is equal to a fraction
(expressed as a percentage) the numerator of which is the Multicurrency Facility
Revolving Loan Commitment of such Multicurrency Facility RL Lender at such time
and the denominator of which is the Total Multicurrency Facility Revolving Loan
Commitment at such time, provided that if any such determination is to be made
after the Total Multicurrency Facility Revolving Loan Commitment (and the
related Multicurrency Facility Revolving Loan Commitments of the Lenders) has
(or have) terminated, the determination of such percentages shall be made
immediately before giving effect to such termination.
"Multicurrency Facility Swingline Loan" shall have the meaning
provided in Section 1.01(e).
"Multiemployer Plan" shall mean (i) any plan, as defined in Section
4001(a)(3) of ERISA, which is maintained or contributed to (or to which there is
an obligation to contribute to) by Holdings or a Subsidiary of Holdings or an
ERISA Affiliate and that is subject to Title IV of ERISA, and (ii) each such
plan for the five year period immediately following the latest date on which
Holdings, a Subsidiary of Holdings or an ERISA Affiliate maintained, contributed
to or had an obligation to contribute to such plan.
"Xxxxxxx" shall mean (i) Xxxxx X. Xxxxxxx, individually, and as
trustee for the Xxxxx X. Xxxxxxx Living Trust and (ii) the Xxxxx X. Xxxxxxx
Living Trust, dated as of May 28, 1986, as amended.
"Net Cash Proceeds" shall mean for any event requiring a reduction of
the Total Incremental Term Loan Commitment and/or the Total Revolving Loan
Commitment and/or repayment of Term Loans pursuant to Section 3.03 or 4.02, as
the case may be, the gross cash proceeds (including any cash received by way of
deferred payment pursuant to a promissory note, receivable or otherwise, but
only as and when received) received from such event, net of reasonable
transaction costs (including, as
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applicable, any underwriting, brokerage or other customary commissions and
reasonable legal, advisory and other fees and expenses associated therewith)
received from any such event.
"Net Sale Proceeds" shall mean for any sale or other disposition of
assets, the gross cash proceeds (including any cash received by way of deferred
payment pursuant to a promissory note, receivable or otherwise, but only as and
when received) received from such sale or other disposition of assets, net of
(i) reasonable transaction costs (including, without limitation, any
underwriting, brokerage or other customary selling commissions, reasonable
legal, advisory and other fees and expenses (including title and recording
expenses), associated therewith and sales, VAT and transfer taxes arising
therefrom), (ii) payments of unassumed liabilities relating to the assets sold
or otherwise disposed of at the time of, or within 30 days after, the date of
such sale or other disposition, (iii) the amount of such gross cash proceeds
required to be used to permanently repay any Indebtedness (other than
Indebtedness of the Lenders pursuant to this Agreement) which is secured by the
respective assets which were sold or otherwise disposed of, and (iv) the
estimated net marginal increase in income taxes which will be payable by
Holdings' consolidated group or any Subsidiary of Holdings with respect to the
Fiscal Year in which the sale or other disposition occurs as a result of such
sale or other disposition; provided, however, that such gross proceeds shall not
include any portion of such gross cash proceeds which Holdings determines in
good faith should be reserved for post-closing adjustments (to the extent
Holdings delivers to the Lenders a certificate signed by its chief financial
officer or treasurer, controller or chief accounting officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than six
months following the date of the respective asset sale), the amount (if any) by
which the reserved amount in respect of such sale or disposition exceeds the
actual post-closing adjustments payable by Holdings or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by Holdings and/or any
of its Subsidiaries from such sale or other disposition.
"New Credit Party" shall mean and include any Credit Party which was
not a Credit Party under, and as defined in, the Original Credit Agreement on
the Original Effective Date.
"New Foreign Subsidiary Guarantor" shall mean and include any Foreign
Subsidiary Guarantor which was not a Foreign Subsidiary Guarantor under, and as
defined in, the Original Credit Agreement on the Original Effective Date.
"New U.S. Credit Party" shall mean and include each New Credit Party
that is a U.S. Credit Party.
"Non-Defaulting Lender" shall mean each Lender other than a Defaulting
Lender.
"Non-Dollar Currencies" shall mean and include Euros and Yen.
"Non-Dollar Denominated Bank Guaranty Outstandings" shall mean all
Bank Guaranty Outstandings other than Dollar Denominated Bank Guaranty
Outstandings.
"Non-Dollar Denominated Letter of Credit Outstandings" shall mean all
Letter of Credit Outstandings other than Dollar Denominated Letter of Credit
Outstandings.
"Non-Dollar Denominated Loans" shall mean and include Euro Denominated
Loans and Yen Denominated Term Loans.
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"Non-Guarantor Subsidiaries" shall mean (i) on the Restatement
Effective Date, each Subsidiary of Holdings listed on Part A of Schedule XV and
(ii) after the Restatement Effective Date, any Subsidiary of the U.S. Borrower
that is not at such time a Subsidiary Guarantor.
"Non-Qualified Jurisdiction" at any time shall mean each jurisdiction
that is not at such time a Qualified Jurisdiction.
"Non-U.S. Xxxx Group" shall mean the Consolidated Subsidiaries of the
U.S. Borrower which are not members of the U.S. Xxxx Group.
"Non-Wholly Owned Subsidiary" shall mean, as to any Person, each
Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such Person.
"Note" shall mean each Tranche A Term Note, each Tranche B Term Note,
each Incremental Term Note, each U.S. Borrower Multicurrency Facility Revolving
Note, each Bermuda Borrower Multicurrency Facility Revolving Note, the U.S.
Borrower Multicurrency Facility Swingline Note, the Bermuda Borrower
Multicurrency Facility Swingline Note, each U.S. Borrower Dollar Facility
Revolving Note, each Bermuda Borrower Dollar Facility Revolving Note, the U.S.
Borrower Dollar Facility Swingline Note and the Bermuda Borrower Dollar Facility
Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion/Continuation" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office as the
Administrative Agent may designate to Holdings and the Lenders from time to
time.
"Obligation Currency" shall have the meaning provided in Section
13.23(a).
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
any Agent, the Collateral Agent, any Issuing Lender, any Bank Guaranty Issuer,
the Swingline Lender or any Lender pursuant to the terms of this Agreement or
any other Credit Document.
"Original Credit Agreement" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"Original Dollar Facility Revolving Loan" shall mean a "Dollar
Facility Revolving Loan" under, and as defined in, the Original Credit
Agreement.
"Original Dollar Facility Revolving Loan Commitment" shall mean a
Dollar Facility Revolving Loan Commitment under, and as defined in, the Original
Credit Agreement.
"Original Dollar Facility RL Lender" shall mean each Original Lender
with an Original Dollar Facility Revolving Loan Commitment on the Restatement
Effective Date (immediately prior to giving effect thereto).
"Original Effective Date" shall mean the Effective Date under, and as
defined in, the Original Credit Agreement.
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"Original Incremental Term Loan Commitment Agreement" shall mean that
certain Incremental Term Loan Commitment Agreement, dated as of June 8, 2004,
entered into pursuant to Section 1.14 of the Original Credit Agreement.
"Original Lenders" shall mean the Lenders under, and as defined in,
the Original Credit Agreement with outstanding Original Loans on the Restatement
Effective Date (immediately prior to giving effect thereto).
"Original Multicurrency Facility Revolving Loan" shall mean a
"Multicurrency Facility Revolving Loan" under, and as defined in, the Original
Credit Agreement.
"Original Multicurrency Facility Revolving Loan Commitment" shall mean
a Multicurrency Facility Revolving Loan Commitment under, and as defined in, the
Original Credit Agreement.
"Original Multicurrency Facility RL Lender" shall mean each Original
Lender with an Original Multicurrency Facility Revolving Loan Commitment on the
Restatement Effective Date (immediately prior to giving effect thereto).
"Original Revolving Loan" shall mean a "Revolving Loan" under, and as
defined in, the Original Credit Agreement.
"Original Swingline Loan" shall mean a "Swingline Loan" under, and as
defined in, the Original Credit Agreement.
"Original Tranche D Term Loan" shall mean a "Tranche D Term Loan"
under, and as defined in, the Original Credit Agreement.
"Original Tranche D Term Loan Lender" shall mean each Lender under,
and as defined in, the Original Credit Agreement with an outstanding Original
Tranche D Term Loan on the Restatement Effective Date (immediately prior to
giving effect thereto).
"Original Tranche E Term Loan" shall mean a "Tranche E Term Loan"
under the Original Credit Agreement and made to the U.S. Borrower pursuant to
the Original Incremental Term Loan Commitment Agreement.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against fluctuations in currency values.
"Overnight Euro Rate" on any date shall mean the offered quotation to
first-class banks in the Euro-Zone interbank market by the Swingline Lender for
Euro overnight deposits of amounts in immediately available funds comparable to
the outstanding principal amount of the Euro Denominated Swingline Loan of the
Swingline Lender as of 11:00 A.M. (Brussels time) on such date; provided, that
in the event the Administrative Agent has made any determination pursuant to
Section 1.10(a)(i) in respect of Euro Denominated Swingline Loans, or in the
circumstances described in clause (i) to the proviso to Section 1.10(b) in
respect of Euro Denominated Swingline Loans, the Overnight Euro Rate determined
pursuant to this definition shall instead be the rate determined by the
Swingline Lender as the all-in-cost of funds for the Swingline Lender to fund
such Euro Denominated Swingline Loan.
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"Parent Business Condition" shall mean, for any quarterly accounting
period or Fiscal Year, (A) Holdings having at all times during such period (i)
owned no significant assets (other than (x) the Equity Interests of Intermediate
Holdco, (y) Intercompany Notes evidencing intercompany loans permitted to be
made by it pursuant to Section 9.05 and (z) the Equity Interests of the
Unrestricted Wellbeing Joint Ventures) and had no liabilities or Indebtedness
(other than those liabilities and Indebtedness permitted by Section 9.01(b)) and
(ii) otherwise complied with the requirements of Section 9.01(b), (B)
Intermediate Holdco having at all times during such period (i) owned no
significant assets (other than the capital stock of the U.S. Borrower and
Corporate Holdco and Intercompany Notes evidencing intercompany loans permitted
to be made by it pursuant to Section 9.05) and had no liabilities or
Indebtedness (other than those liabilities and Indebtedness permitted by Section
9.01(j)) and (ii) otherwise complied with the requirements of Section 9.01(j)
and (C) Corporate Holdco having at all times during such period (i) owned no
significant assets and had no liabilities or Indebtedness (other than those
liabilities and Indebtedness permitted by Section 9.01(k)) and (ii) otherwise
complied with the requirements of Section 9.01(k).
"Participating Member State" shall mean, at any time, any member state
of the European Union which has adopted the euro as its lawful currency at such
time.
"Payment Office" shall mean the office of the Administrative Agent
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office as the
Administrative Agent may hereafter designate in writing to Holdings and the
Lenders from time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquired Debt" shall have the meaning set forth in Section
9.04(vi).
"Permitted Acquisition" shall mean the acquisition by the U.S.
Borrower or any of its Wholly-Owned Subsidiaries of assets constituting a
business, division or product line of any Person, not already a Subsidiary of
the U.S. Borrower or any of its Wholly-Owned Subsidiaries, or of 100% of the
capital stock or other Equity Interests of any such Person, which Person shall,
as a result of such acquisition, become a Wholly-Owned Subsidiary of the U.S.
Borrower or such Wholly-Owned Subsidiary, provided that (A) the consideration
paid by the U.S. Borrower or such Wholly-Owned Subsidiary consists solely of
cash (including proceeds of Revolving Loans), the issuance of Holdings Common
Stock, the issuance of Qualified Preferred Stock, the incurrence of Indebtedness
otherwise permitted pursuant to Section 9.04 and the assumption/acquisition of
any Permitted Acquired Debt relating to such business, division, product line or
Person which is permitted to remain outstanding in accordance with the
requirements of Section 9.04, (B) in the case of the acquisition of 100% of the
capital stock or other Equity Interests of any Acquired Entity or Business, such
Acquired Entity or Business shall own no capital stock or other Equity Interests
of any other Person unless either (x) the Acquired Entity or Business owns 100%
of the capital stock or other Equity Interests of such other Person or (y) if
the Acquired Entity or Business owns capital stock or Equity Interests in any
other Person which is a Non-Wholly Owned Subsidiary of the Acquired Entity or
Business, (1) the Acquired Entity or Business shall not have been created or
established in contemplation of, or for purposes of, the respective Permitted
Acquisition, (2) such Non-Wholly Owned Subsidiary of the Acquired Entity or
Business shall have been a Non-Wholly Owned Subsidiary of the Acquired Entity or
Business prior to the date of the respective Permitted Acquisition and not
created or established in contemplation thereof and (3) the Acquired Entity or
Business and/or its Wholly-Owned Subsidiaries own at least 80% of the total
value of all the assets owned by such Acquired Entity or Business and its
subsidiaries (for purposes of such determination, excluding the value of the
Equity Interests of Non-Wholly Owned Subsidiaries held by such Acquired Entity
or Business and its Wholly-Owned Subsidiaries), (C) the Acquired Entity or
Business shall be a
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Permitted Business and (D) all applicable requirements of Sections 8.11, 8.15
and 9.02 applicable to Permitted Acquisitions are satisfied. Notwithstanding
anything to the contrary contained in the immediately preceding sentence, an
acquisition which does not otherwise meet the requirements set forth above in
the definition of "Permitted Acquisition" shall constitute a Permitted
Acquisition if, and to the extent, the Required Lenders agree in writing that
such acquisition shall constitute a Permitted Acquisition for purposes of this
Agreement.
"Permitted Business" shall mean any business which (i) is the same,
similar, ancillary or reasonably related to the business in which Holdings or
any of its Subsidiaries is engaged on the Original Effective Date or (ii) is
conducted by an Acquired Entity or Business acquired pursuant to a Permitted
Acquisition and which does not qualify as a "Permitted Business" pursuant to
preceding clause (i), so long as (x) such business represents an immaterial
portion of the businesses acquired pursuant to such Permitted Acquisition and
(y) such business is sold or otherwise disposed of as soon as reasonably
practicable following the consummation of such Permitted Acquisition (but, in
any event, within one year following such Permitted Acquisition).
"Permitted Encumbrances" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the Mortgage Policy
delivered with respect thereto, all of which exceptions must be acceptable to
the Administrative Agent in its reasonable discretion.
"Permitted Holders" shall mean Xxxxx X. Xxxxxxx, a Qualified Trust and
any majority-owned and controlled Affiliate of Xxxxx X. Xxxxxxx or a Qualified
Trust.
"Permitted Installment Note" shall mean a promissory note issued as
consideration to the U.S. Borrower or any of its Subsidiaries in connection with
a Contemplated Asset Sale, which note (i) shall be secured by the assets subject
to the respective Contemplated Asset Sale and (ii) in the case of a Contemplated
Asset Sale made by a Credit Party, shall be pledged to the Collateral Agent
pursuant to the relevant Security Documents; provided that no such note may be
issued in connection with a Contemplated Asset Sale if the aggregate principal
amount of such note, when added to the aggregate outstanding principal amount of
all other Permitted Installment Notes theretofore issued (without regard to any
write-downs or write-offs thereof), would exceed $35,000,000.
"Permitted Liens" shall have the meaning provided in Section 9.03.
"Permitted Refinancing Indebtedness" shall mean any Indebtedness of
the U.S. Borrower and its Subsidiaries issued or given in exchange for, or the
proceeds of which are used to, extend, refinance, renew, replace or refund any
Scheduled Existing Indebtedness, Permitted Acquired Debt or any Indebtedness
issued to so extend, refinance, renew, replace, substitute or refund any such
Indebtedness, so long as (a) such Indebtedness has a weighted average life to
maturity greater than or equal to the weighted average life to maturity of the
Indebtedness being extended, refinanced, renewed, replaced or refunded, (b) such
extension, refinancing, renewal, replacement or refunding does not (i) increase
the amount of such Indebtedness outstanding immediately prior to such extension,
refinancing, renewal, replacement or refunding (except to the extent of
reasonable fees, premiums, commissions and expenses actually paid in connection
with such extension, refinancing, renewal, replacement or refunding) or (ii) add
guarantors, obligors or security from that which applied to such Indebtedness
being extended, refinanced, renewed, replacement or refunding, (c) such
Indebtedness has the same (or, from the perspective of the Lenders, more
favorable) subordination provisions, if any, as applied to the Indebtedness
being extended, renewed, refinanced, replaced or refunded, and (d) all other
terms of such extension, refinancing, renewal, replacement or refunding
(including, without limitation, with respect to the amortization schedules,
redemption provisions, maturities, covenants, defaults and remedies) are not
less favorable in any material respect to the respective borrower than those
previously existing with respect to the Indebtedness being
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extended, refinanced, renewed, replaced or refunded, provided, however, that any
Intercompany Scheduled Existing Indebtedness (and subsequent extensions,
refinancings, renewals, replacements and refundings thereof as provided above in
this definition) may only be extended, refinanced, renewed, replaced or refunded
as provided above in this definition if the Indebtedness so extended,
refinanced, renewed, replaced or refunded has the same obligors(s) and
obligee(s) as the Indebtedness being extended, refinanced, renewed, replaced or
refunded.
"Permitted Refinancing Senior Notes" shall mean any Indebtedness of
the U.S. Borrower evidenced by senior notes issued or given in exchange for, or
the proceeds of which are used to, refinance, renew, replace or refund any
Existing Senior Notes, any Permitted Senior Notes or any Indebtedness issued to
so refinance, renew, replace or refund any such Indebtedness, so long as (a)
such Indebtedness has a final maturity no earlier than the date occurring 180
days following the Tranche B Term Loan Maturity Date and no required
amortizations prior to such date, (b) such Indebtedness does not (i) increase
the amount of such Indebtedness outstanding immediately prior to such
refinancing or renewal (except to the extent of reasonable fees, premiums,
commissions and expenses actually paid in connection with such refinancing,
renewal, replacement or refunding) or (ii) add guarantors, obligors or security
from that which applies to the Indebtedness being refinanced, renewed, replaced
or refunded, (c) the guaranties of such senior notes shall be subject to the
same (or, from the perspective of the Lenders, more favorable) subordination
provisions as applied to the guaranties of the Existing 2011 Senior Notes, (d)
if the U.S. Borrower elects to provide for the subordination of the obligations
of the U.S. Borrower under such senior notes to the prior payment in full of
"senior debt" (or, the Indebtedness being refinanced, renewed, replaced or
refunded includes subordination provisions applicable to the U.S. Borrower),
such senior notes shall be subject to the same subordination provisions as are
applicable to the guaranties of such senior notes (subject only to appropriate
conforming changes), (e) all other terms of such Indebtedness (including,
without limitation, with respect to the amortization, redemption provisions,
maturities, covenants, defaults and remedies), are not, taken as a whole, less
favorable in any material respect to the U.S. Borrower and its Subsidiaries than
those previously existing with respect to the Indebtedness being refinanced,
renewed, replaced or refunded, and (f) the documentation governing such
Indebtedness is in form and substance reasonably satisfactory to the
Administrative Agent, as such Indebtedness is in effect on the date of
incurrence thereof and as the same may be amended, modified and/or supplemented
from time to time in accordance with the terms hereof and thereof.
"Permitted Refinancing Senior Notes Documents" shall mean any
indenture entered into in connection with any issuance of Permitted Refinancing
Senior Notes and each other agreement, document or instrument relating to any
issuance of Permitted Refinancing Senior Notes, as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms
hereof and thereof.
"Permitted Senior Notes" shall mean any Indebtedness of the U.S.
Borrower evidenced by senior notes 100% of the Net Cash Proceeds of which are
promptly applied to finance a Permitted Acquisition effected in accordance with
the requirements of Section 8.15 and the fees and expenses incurred in
connection therewith, so long as (a) such Indebtedness has a final maturity no
earlier than the date occurring 180 days following the Tranche B Term Loan
Maturity Date and no required amortizations prior to such date, (b) such
Indebtedness does not add guarantors, obligors or security from that which
applies to the Existing 2011 Senior Notes, (c) the guaranties of such senior
notes shall be subject to the same (or, from the perspective of the Lenders,
more favorable) subordination provisions as applied to the guaranties of the
Existing 2011 Senior Notes, (d) if the U.S. Borrower elects to provide for the
subordination of the obligations of the U.S. Borrower under such senior notes to
the prior payment in full of "senior debt", such senior notes shall be subject
to the same subordination provisions as are applicable to the guaranties of such
senior notes (subject only to appropriate conforming changes), (e) all other
terms of such Indebtedness (including, without limitation, with respect to
amortization, redemption provisions,
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maturities, covenants, defaults and remedies), are not, taken as a whole, less
favorable in any material respect to the U.S. Borrower and its Subsidiaries than
those previously existing with respect to the Existing 2011 Senior Notes, (f) on
the date of issuance of any such Indebtedness, the U.S. Borrower and its
Subsidiaries shall have complied with the requirements of Section 8.15 with
respect to the Permitted Acquisition to be financed with the proceeds of such
Indebtedness (including the delivery of the officers' certificate required by
Section 8.15(a)(x) and the calculations required by Section 8.15(a)(iii) (after
giving pro forma effect to the issuance of such Indebtedness) and (g) the
documentation governing such Indebtedness is in form and substance reasonably
satisfactory to the Administrative Agent, as such Indebtedness may be amended,
modified and/or supplemented from time to time in accordance with the terms
hereof and thereof.
"Permitted Senior Notes Documents" shall mean any Permitted Senior
Note, any Permitted Senior Notes Indenture and all other documents executed and
delivered with respect to an issuance of Permitted Senior Notes or a Permitted
Senior Notes Indenture, as the same may be amended, modified and/or supplemented
from time to time in accordance with the terms hereof and thereof.
"Permitted Senior Notes Indenture" shall mean any indenture entered
into in connection with any issuance of Permitted Senior Notes, as the same may
be amended, modified and/or supplemented from time to time in accordance with
the terms hereof and thereof.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of ERISA
(other than a Multiemployer Plan), which is maintained or contributed to by (or
to which there is an obligation to contribute of) Holdings or a Subsidiary of
Holdings or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Holdings, or a Subsidiary of
Holdings or an ERISA Affiliate maintained, contributed to or had an obligation
to contribute to such plan.
"Pledge Agreement Collateral" shall mean all U.S. Pledge Agreement
Collateral and all other Equity Interests or other property similar to that
pledged pursuant to the U.S. Pledge Agreement which is pledged pursuant to one
or more Foreign Pledge Agreements, Foreign Security Agreements or Additional
Security Documents.
"Pledge Agreements" shall mean the U.S. Pledge Agreement and each
Foreign Pledge Agreement.
"Post-Closing Period" shall have the meaning provided in Section
8.15(a).
"Preferred Equity," as applied to the Equity Interests of any Person,
means Equity Interests of such Person (other than common stock of such Person)
of any class or classes (however designed) that ranks prior, as to the payment
of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to Equity
Interests of any other class of such Person.
"Prime Lending Rate" shall mean the rate which DBAG (or another bank
of recognized standing reasonably selected by the Administrative Agent)
announces from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged
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to any customer. DBAG may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Principal Property" shall mean "Principal Property", as defined in
the Existing 2011 Senior Notes Indenture (as in effect (and as each component
definition used therein is in effect) on the Original Effective Date, without
giving effect to any termination thereof).
"Pro Forma Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (x) any Permitted
Acquisition or Significant Asset Sale then being consummated as well as any
other Permitted Acquisition or Significant Asset Sale consummated after the
first day of the relevant Test Period or Calculation Period, as the case may be,
and on or prior to the date of the respective Permitted Acquisition or
Significant Asset Sale, as the case may be, then being effected, (y) the
incurrence or assumption of any Indebtedness that is incurred or assumed in
connection with, or to finance, one or more Permitted Acquisitions and (z) the
permanent repayment of any Indebtedness in connection with any Significant Asset
Sale; provided that, for purposes of calculations pursuant to Sections 8.15 and
9.11(i)(z) and the definition of "Incremental Loan Commitment Requirements",
such calculations shall also give effect on a pro forma basis to (a) the
incurrence of any Indebtedness (other than revolving Indebtedness, except to the
extent same is incurred to refinance other outstanding Indebtedness or to
finance a Permitted Acquisition) after the first day of the relevant Calculation
Period as if such Indebtedness had been incurred (and the proceeds thereof
applied) on the first day of the relevant Calculation Period and (b) the
permanent repayment of any Indebtedness (other than revolving Indebtedness)
after the first day of the relevant Calculation Period as if such Indebtedness
had been retired or repaid on the first day of the relevant Calculation Period,
with the following rules to apply in connection therewith:
(i) for purposes of Sections 8.15 and 9.11(i)(z) and the definition of
"Incremental Loan Commitment Requirements," only, all Indebtedness (x)
(other than revolving Indebtedness, except to the extent same is incurred
to refinance other outstanding Indebtedness or to finance Permitted
Acquisitions) incurred or issued after the first day of the relevant
Calculation Period (whether incurred to finance a Permitted Acquisition, to
refinance Indebtedness or otherwise) shall be deemed to have been incurred
or issued (and the proceeds thereof applied) on the first day of the
respective Calculation Period and remain outstanding through the date of
determination (and thereafter in the case of projections pursuant to
Section 8.15) and (y) (other than revolving Indebtedness) permanently
retired or redeemed after the first day of the relevant Calculation Period
shall be deemed to have been retired or redeemed on the first day of the
respective Calculation Period and remain retired through the date of
determination (and thereafter in the case of projections pursuant to
Section 8.15);
(ii) for purposes of Sections 8.15 and 9.11(i)(z) and the definition
of "Incremental Loan Commitment Requirements," only, all Indebtedness
assumed to be outstanding pursuant to preceding clause (i) shall be deemed
to have borne interest at (x) the rate applicable thereto, in the case of
fixed rate indebtedness or (y) the rates which would have been applicable
thereto during the respective period when same was deemed outstanding, in
the case of floating rate Indebtedness (although interest expense with
respect to any Indebtedness for periods while same was actually outstanding
during the respective period shall be calculated using the actual rates
applicable thereto while same was actually outstanding); provided that all
Indebtedness (whether actually outstanding or deemed outstanding) bearing
interest at a floating rate of interest shall be tested on the basis of the
rates applicable at the time the determination is made pursuant to said
provisions;
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(iii) for determinations of the Leverage Ratio for purposes of
determining the Applicable Margins, Consolidated Net Debt shall be the
actual amount thereof as of the last day of the respective Calculation
Period or Test Period, as the case may be; provided that, (x) to the extent
any Permitted Acquisition is consummated after the last day of the
respective Calculation Period or Test Period and on or prior to the date of
delivery of the Quarterly Pricing Certificate referenced in the definition
of "Applicable Margin", all Indebtedness incurred or assumed in connection
with one or more Permitted Acquisitions consummated after the last day of
the respective Calculation Period or Test Period, as the case may be, shall
be added to Consolidated Net Debt and shall be deemed to have been
outstanding on the last day of the respective Calculation Period or Test
Period, as the case may be, and (y) to the extent any Significant Asset
Sale is consummated after the last day of the respective Calculation Period
or Test Period and on or prior to the date of delivery of the Quarterly
Pricing Certificate referenced in the definition of "Applicable Margin",
all Indebtedness permanently repaid or retired in connection with one or
more Significant Asset Sales consummated after the last day of the
respective Calculation Period or Test Period, as the case may be, shall be
deducted from Consolidated Net Debt and shall be deemed not to have been
outstanding on the last day of the respective Calculation Period or Test
Period, as the case may be;
(iv) in making any determination of Consolidated EBITDA on a Pro Forma
Basis, pro forma effect shall be given to any Permitted Acquisition or
Significant Asset Sale effected during the respective Calculation Period or
Test Period (or thereafter to the extent provided in (x) the definition of
Applicable Margin, for determinations of the Applicable Margins, (y)
Section 8.15, for determinations pursuant to Section 8.15 or (z)
9.11(i)(z), for determinations pursuant to Section 9.11(i)(z)) as if same
had occurred on the first day of the respective Calculation Period or Test
Period, as the case may be, taking into account, in the case of any
Permitted Acquisition, factually supportable and identifiable cost savings
and expenses which would otherwise be accounted for as an adjustment
pursuant to Article 11 of Regulation S-X under the Securities Act, as if
such cost savings or expenses were realized on the first day of the
respective period.
For purposes of this definition and calculations required by the terms of this
Agreement to be made on a Pro Forma Basis, the Wood Holdings Acquisition (as
defined in the Fifth Amendment referred to in the Original Credit Agreement)
shall be deemed to be a Permitted Acquisition.
"Pro Forma Financial Statements" shall have the meaning provided in
Section 5.15(a).
"Projections" shall have the meaning provided in Section 5.15(b).
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible or mixed, of such Person, or other assets owned,
leased, or operated by such Person.
"Qualified Jurisdictions" shall mean and include the United States,
Bermuda and each other jurisdiction identified on Schedule XX hereto, in each
case including any states, provinces or other similar local units therein.
Furthermore, from time to time after the Initial Borrowing Date, Holdings may
request (by written notice to, and following consultation with, the
Administrative Agent) that one or more additional jurisdictions be added to the
list of Qualified Jurisdictions. In such event, such jurisdictions shall be
added to (and thereafter form part of) the list of Qualified Jurisdictions so
long as, in each case, the respective jurisdiction to be added is a jurisdiction
in which the U.S. Borrower and/or any of its Subsidiaries conducts business on
the Original Effective Date or is otherwise reasonably satisfactory to the
Administrative Agent and so long as Holdings has furnished opinions of counsel,
in each case from counsel, and in form and substance, reasonably satisfactory to
the Administrative Agent, concluding that Subsidiaries of the U.S. Borrower
organized under the laws of such jurisdiction may execute and deliver a
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Foreign Subsidiaries Guaranty (unlimited in amount and otherwise containing
provisions reasonably consistent with the provisions of the Foreign Subsidiaries
Guaranty executed and delivered on the Initial Borrowing Date and applicable to
a Qualified Non-U.S. Obligor on such date), the Intercompany Subordination
Agreement and such Security Documents as may be satisfactory to the Collateral
Agent (generally consistent with the Security Documents executed and delivered
by Qualified Non-U.S. Obligors (determined without regard to the proviso to the
definition thereof contained herein) on the Initial Borrowing Date) and that, in
accordance with the laws of the respective jurisdiction, such Credit Documents
shall constitute the legal, valid and binding obligations, enforceable in
accordance with their terms, and (in the case of the Security Documents) create
valid and perfected security interests under applicable law (in each case
subject to such customary exceptions (not inconsistent with the requirements set
forth above) as are satisfactory to the Administrative Agent). The parties
hereto further agree that, in the discretion of the Administrative Agent, as a
condition to the addition of any jurisdiction to the list of Qualified
Jurisdictions, the Administrative Agent may (but shall not be required to)
request the consent of the Required Lenders to such addition and, in such event,
the Administrative Agent shall be entitled to wait for such consent before
adding the respective jurisdiction to the list of Qualified Jurisdictions.
"Qualified Non-U.S. Jurisdictions" shall mean and include each
Qualified Jurisdiction other than the United States (and the States thereof).
"Qualified Non-U.S. Obligors" shall mean each Foreign Credit Party
which (x) is a Wholly-Owned Subsidiary of Holdings organized under the laws of a
Qualified Non-U.S. Jurisdiction, (y) has provided a full and unconditional
guaranty (unlimited in amount) of all Guaranteed Obligations (as defined in the
Foreign Subsidiaries Guaranty) pursuant to a Foreign Subsidiaries Guaranty and
(z) has executed the relevant Security Documents in accordance with the
requirements of Sections 5, 8.11 and/or 9.17 of the Original Credit Agreement or
Sections 5, 8.11 and/or 9.14 hereof securing all such Guaranteed Obligations,
provided that (i) any Fee Capped Foreign Subsidiary Guarantor shall be deemed to
be a Qualified Non-U.S. Obligor for purposes of Sections 9.02(viii), (ix) and
(xi) and Sections 9.05(vi) and (viii) only (and only said Sections), so long as
such Fee Capped Foreign Subsidiary Guarantor shall at all times be in compliance
with the requirements of Section 8.11(i), (ii) any Fee Capped Foreign Subsidiary
Guarantor shall be deemed to be a Qualified Non-U.S. Obligor for purposes of
Section 8.18(c), so long as (I) governmental approvals are required to be
obtained to transfer the Equity Interests of such Fee Capped Foreign Subsidiary
Guarantor to a Qualified Non-U.S. Obligor (determined without regard clauses
(i), (ii), (iii) and (iv) of this proviso) and the U.S. Borrower or such
Subsidiary Guarantor is using reasonable efforts to obtain such approvals or
(II) the transfer of the Equity Interests of such Fee Capped Foreign Subsidiary
Guarantor to a Qualified Non-U.S. Obligor (determined without regard clauses
(i), (ii), (iii) and (iv) of this proviso) would give rise to material and
adverse tax consequences to the U.S. Borrower or such Subsidiary, (iii) Xxxx
Korea, Ltd. shall be deemed to be a Qualified Non-U.S. Obligor for purposes of
Sections 8.18(c) and 9.01(c) (and only said Sections), (iv) notwithstanding the
provision of a limited guaranty by the Excluded Bermuda Insurance Companies,
each of the Excluded Bermuda Insurance Companies shall be deemed to be a
"Qualified Non-U.S. Obligor" for all purposes of this Agreement (other than
Sections 8.18(c) and 9.01(c) for which it is understood such Persons shall not
constitute "Qualified Non-U.S. Obligors") and (v) any Qualified Non-U.S. Obligor
(including any deemed as such pursuant to preceding clauses (i), (ii), (iii) and
(iv)) shall cease to constitute same at such time, if any, as such Person ceases
to be a Wholly-Owned Subsidiary of Holdings.
"Qualified Obligors" shall mean each Qualified U.S. Obligor and each
Qualified Non-U.S. Obligor.
"Qualified Preferred Stock" shall mean any Preferred Equity of
Holdings, the express terms of which shall provide that dividends thereon shall
not be required to be paid at any time (and to the extent) that such payment
would be prohibited by the terms of this Agreement or any other agreement of
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Holdings or any of its Subsidiaries relating to outstanding indebtedness and
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event
(including any change of control event), cannot mature (excluding any maturity
as the result of an optional redemption by the issuer thereof) and is not
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, and
is not redeemable, or required to be repurchased, at the sole option of the
holder thereof (including, without limitation, upon the occurrence of an change
of control event), in whole or in part, on or prior to 3 months following the
maturity date of the Existing 2013 Senior Notes.
"Qualified Trust" shall mean the Xxxxx X. Xxxxxxx Living Trust, dated
May 28, 1986, as amended, or another trust established by Xx. Xxxxxxx to hold
and control the capital stock of Holdings and the remainder of his estate in the
event of his death, so long as any such trust described above (i) is at all
times controlled by Xxxxx X. Xxxxxxx or by a majority of experienced business
persons and is not controlled by members of Xx. Xxxxxxx'x family and (ii) holds
all or substantially all of the assets of Xx. Xxxxxxx.
"Qualified U.S. Obligors" shall mean and include Holdings and each
other U.S. Credit Party which is a Wholly-Owned Subsidiary of Holdings, provided
that any Qualified U.S. Obligor that is (or was) a Subsidiary of Holdings shall
cease to constitute a Qualified U.S. Obligor at such time, if any, as such
Subsidiary ceases to be a Wholly-Owned Subsidiary of Holdings.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December.
"Quarterly Pricing Certificate" shall have the meaning provided in the
definition of Applicable Margin.
"Rabobank" shall mean the Rabobank International in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by Holdings or any of its
Subsidiaries of any insurance or condemnation proceeds payable (i) by reason of
theft, physical destruction or damage or any other similar event with respect to
any properties or assets of Holdings or any of its Subsidiaries, (ii) by reason
of any condemnation, taking, seizing or similar event with respect to any
properties or assets of Holdings or any of its Subsidiaries and (iii) under any
policy of insurance required to be maintained under Section 8.03.
"Refinancing" shall mean the Tender Offer, the Tender Offer
Consummation and the other refinancing transactions contemplated by Sections
5.08 and 8.21.
"Refinancing Documents" shall mean shall mean the documents,
instruments and agreements entered into connection with the Refinancing.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
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"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from to time in effect and any successor to all or
any portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or any portion thereof.
"Release" means disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Relevant Guaranteed Obligations" shall mean (i) in the case of each
Holdings and Intermediate Holdco, (x) the principal and interest on each Note
issued to each Lender, and all Loans made, under this Agreement, all
reimbursement obligations and Unpaid Drawings with respect to Letters of Credit
and all reimbursement obligations and Unreimbursed Payments with respect to Bank
Guaranties, together with all the other obligations (including obligations
which, but for the automatic stay under Section 362(a) of the Bankruptcy Code,
would become due) and liabilities (including, without limitation, indemnities,
fees and interest thereon) of the Borrowers (or either of them) to each Lender,
each Agent, each Issuing Lender, each Bank Guaranty Issuer and the Collateral
Agent now existing or hereafter incurred under, arising out of or in connection
with this Agreement and each other Credit Document and the due performance and
compliance by each Borrower with all the terms, conditions and agreements
contained in this Agreement and each other Credit Document to which it is a
party and (y) all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due)
and liabilities of the U.S. Borrower or any of its Subsidiaries owing under any
Interest Rate Protection Agreement or Other Hedging Agreement entered into by
the U.S. Borrower or any of its Subsidiaries with any Lender or any affiliate
thereof (even if such Lender subsequently ceases to be a Lender under this
Agreement for any reason) so long as such Lender or affiliate participates in
such Interest Rate Protection Agreement or Other Hedging Agreement, and their
subsequent assigns, if any, whether now in existence or hereafter arising, and
the due performance and compliance with all terms, conditions and agreements
contained therein, (ii) in the case of the U.S. Borrower, (x) the principal and
interest on each Tranche A Term Note, each Tranche B Term Note, each Incremental
Term Note, each Bermuda Borrower Multicurrency Facility Revolving Note, the
Bermuda Borrower Multicurrency Facility Swingline Note, each Bermuda Borrower
Dollar Facility Revolving Note and the Bermuda Borrower Dollar Facility
Swingline Note (in each case) issued by the Bermuda Borrower to each Lender, and
each Tranche A Term Loan, each Tranche B Term Loan, each Bermuda Borrower
Incremental Term Loan, each Bermuda Borrower Multicurrency Facility Revolving
Loan, each Bermuda Borrower Multicurrency Facility Swingline Loan, each Bermuda
Borrower Dollar Facility Revolving Loan and each Bermuda Borrower Dollar
Facility Swingline Loan made, under this Agreement, all reimbursement
obligations and Unpaid Drawings with respect to each Letter of Credit issued for
the account of the Bermuda Borrower and all reimbursement obligations and
Unreimbursed Payments with respect to each Bermuda Borrower Bank Guaranty,
together with all the other obligations (including obligations which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due) and liabilities (including, without limitation, indemnities, fees and
interest thereon) of the Bermuda Borrower to each Lender, each Agent, each
Issuing Lender, each Bank Guaranty Issuer and the Collateral Agent now existing
or hereafter incurred under, arising out of or in connection with this Agreement
or any other Credit Document and the due performance and compliance by the
Bermuda Borrower with all the terms, conditions and agreements contained in the
Credit Documents to which it is a party and (y) all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of the Bermuda Borrower or
any other Subsidiary of the U.S. Borrower owing under any Interest Rate
Protection Agreement and any Other Hedging Agreement entered into by the Bermuda
Borrower or any other
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Subsidiary of the U.S. Borrower with any Lender or any affiliate thereof (even
if such Lender subsequently ceases to be a Lender under this Agreement for any
reason) so long as such Lender or affiliate participates in such Interest Rate
Protection Agreement or Other Hedging Agreement, and their subsequent assigns,
if any, whether now in existence or hereafter arising, and the due performance
and compliance with all terms, conditions and agreements contained therein and
(iii) in the case of the Bermuda Borrower, all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of any Foreign Subsidiary of
the U.S. Borrower (other than the Bermuda Borrower) owing under any Interest
Rate Protection Agreement and any Other Hedging Agreement entered into by any
such Foreign Subsidiary of the U.S. Borrower with any Lender or any affiliate
thereof (even if such Lender subsequently ceases to be a Lender under this
Agreement for any reason), so long as such Lender or affiliate participates in
such Interest Rate Protection Agreement or Other Hedging Agreement, and their
subsequent assigns, if any, whether now in existence or hereafter arising, and
the due performance and compliance with all terms, conditions and agreements
contained therein.
"Relevant Guaranteed Party" shall mean (i) with respect to Holdings,
each Borrower and each Subsidiary of Holdings party to any Interest Rate
Protection Agreement or Other Hedging Agreement with any Secured Creditor, (ii)
with respect to Intermediate Holdco, each Borrower and each Subsidiary of
Intermediate Holdco party to any Interest Rate Protection Agreement or Other
Hedging Agreement with any Secured Creditor, (iii) with respect to the U.S.
Borrower, the Bermuda Borrower and each Subsidiary of Holdings (other than the
U.S. Borrower) party to any Interest Rate Protection Agreement or Other Hedging
Agreement with any Secured Creditor and (iv) with respect to the Bermuda
Borrower, each Foreign Subsidiary of Holdings (other than the Bermuda Borrower)
party to any Interest Rate Protection Agreement or Other Hedging Agreement with
any Secured Creditor.
"Relevant Separate Tax Liability" shall have the meaning provided in
Section 9.06(v).
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Foreign Security Agreements" shall have the meaning
provided in Section 5.12(b).
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
..22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
"Required Appraisal" shall have the meaning provided in Section
8.11(j).
"Required Lenders" shall mean Non-Defaulting Lenders, the sum of whose
outstanding principal of Term Loans (and (x) if prior to the occurrence of the
Credit Events on the Restatement Effective Date, whose Tranche A Term Loan
Commitments and Tranche B Term Loan Commitments and (y) if prior to the
termination thereof pursuant to Section 3.03(f), whose Incremental Term Loan
Commitments) and Revolving Loan Commitments (or after the termination thereof,
outstanding Individual RL Facility Exposures) as of any date of determination
represent greater than 50% of the sum of all outstanding principal of Term Loans
(and (x) if prior to the occurrence of the Credit Events on the Restatement
Effective Date, the sum of all Tranche A Term Loan Commitments and Tranche B
Term Loan Commitments and (y) if prior to the termination thereof pursuant to
Section 3.03(f), the sum of all Incremental Term Loan Commitments) of
Non-Defaulting Lenders at such time and the sum of all
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Revolving Loan Commitments of all Non-Defaulting Lenders at such time (or, after
the termination thereof, the sum of the then total Individual RL Facility
Exposures of all Non-Defaulting Lenders at such time); provided that, for
purposes of this definition, (I) at any time after the Restatement Effective
Date, (1) a Voting Participant shall be deemed to be a "Lender" holding the
portion of the Revolving Loan Commitment (or, after the termination thereof,
outstanding Individual RL Facility Exposure), the Incremental Term Loan
Commitment and the outstanding Term Loans of any Lender (other than a Defaulting
Lender) in which it purchased a participation from such Lender (and to have the
voting rights of such Lender with respect to each such Tranche) and (2) a Lender
(other than a Defaulting Lender) which has sold a participation in a portion of
its Revolving Loan Commitment (and related Obligations), Incremental Term Loan
Commitment or outstanding Term Loans to a Voting Participant shall be deemed to
hold a Revolving Loan Commitment (or, after the termination thereof, outstanding
Individual RL Facility Exposure), Incremental Term Loan Commitment or
outstanding Term Loans, as the case may be, in each case, as reduced by the
amount of the participations therein sold to a Voting Participant and (II) the
outstanding principal amount of Tranche A Term Loans (and, if prior to the
occurrence of the Credit Events on the Restatement Effective Date, the amount of
Tranche A Term Loan Commitments) at any time shall be determined using the
Dollar Equivalent of the principal amount of Tranche A Term Loans outstanding at
such time (or, of the Tranche A Term Loan Commitments in effect at such time, as
the case may be).
"Restatement Effective Date" shall have the meaning provided in
Section 13.10.
"Restricted Subsidiary" of any Person shall mean any Subsidiary (as
defined in the Existing 2011 Senior Notes Indenture as in effect on the
Restatement Effective Date (without giving effect to any termination thereof))
of such Person other than any Subsidiary (as so defined) of such Person that is
engaged primarily in the management, development and sale or financing of real
property.
"Retained Excess Cash Flow Amount" shall initially be $0, which amount
shall be (A) increased on each Excess Cash Payment Date so long as any repayment
required pursuant to Section 4.02(f) has been made, by an amount equal to the
Adjusted Excess Cash Flow for the immediately preceding Excess Cash Flow Payment
Period multiplied by a percentage equal to 100% minus the Applicable Prepayment
Percentage, and (B) reduced (i) on each Excess Cash Payment Date where Adjusted
Excess Cash Flow for the immediately preceding Excess Cash Flow Payment Period
is a negative number, by such amount, (ii) at the time any Capital Expenditure
is made pursuant to Section 9.10(f), by the amount thereof, and (iii) at the
time any cash is used to redeem, repurchase and/or otherwise make payments in
respect of Existing Senior Notes, Permitted Senior Notes and/or Permitted
Refinancing Senior Notes in reliance on the proviso appearing in Section
9.11(a)(i)(z), by the amount of the cash so used (it being understood that the
Retained Excess Cash Flow Amount may be reduced to an amount below zero after
giving effect to the reductions enumerated in clause (B) above).
"Returns" shall have the meaning provided in Section 7.20.
"Revolving Loan" shall have the meaning provided in Section 1.01(d).
"Revolving Loan Commitment" shall mean, for each RL Lender, its
Multicurrency Facility Revolving Loan Commitment (if any) and its Dollar
Facility Revolving Loan Commitment (if any).
"Revolving Loan Maturity Date" shall mean March 12, 2010.
"RL Commitment Commission" shall have the meaning provided in Section
3.01(a).
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"RL Lender" shall mean each Multicurrency Facility RL Lender and each
Dollar Facility RL Lender.
"RL Percentage" of any RL Lender at any time shall be that percentage
which is equal to a fraction (expressed as a percentage) the numerator of which
is the Revolving Loan Commitment of such RL Lender at such time and the
denominator of which is the Total Revolving Loan Commitment at such time,
provided that if any such determination is to be made after the Total Revolving
Loan Commitment (and the related Revolving Loan Commitments of the RL Lenders)
has terminated, the determination of such percentages shall be made immediately
before giving effect to such termination.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
"Sale-Leaseback Transaction" shall mean the sale and leaseback of the
corporate aircraft named "Global Express" on the Initial Borrowing Date in
connection with the Transaction under, and as defined in, the Original Credit
Agreement.
"Sale-Leaseback Transaction Documents" shall mean all documents and
agreements delivered in connection with the Sale-Leaseback Transaction, in each
case as the same may be amended, modified and/or supplemented from time to time
in accordance with the terms hereof and thereof.
"Scheduled Existing Indebtedness" shall mean Third Party Scheduled
Existing Indebtedness and Intercompany Scheduled Existing Indebtedness.
"Scheduled Repayment" shall mean any Tranche A Term Loan Scheduled
Repayment, any Tranche B Term Loan Scheduled Repayment and/or any Incremental
Term Loan Scheduled Repayment of any Tranche, as the context may require.
"Scotia Capital" shall mean The Bank of Nova Scotia, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Second-Lien Collateral" shall mean the capital stock of the U.S.
Borrower owned by Intermediate Holdco and any Proceeds (as defined in the U.S.
Pledge Agreement) thereof.
"Second-Tier Material Real Property" of any Person, shall mean any
fee-owned (or equivalent) Real Property acquired by such Person after the
Initial Borrowing Date with a value (determined using the initial purchase price
paid by such Person for such Real Property) of greater than $2,500,000 but less
than or equal to $10,000,000.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the respective
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Agreement Collateral" shall mean all collateral in which any
security interest is granted pursuant to the Security Agreements.
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"Security Agreements" shall mean the U.S. Security Agreement and each
Foreign Security Agreement.
"Security Document" shall mean and include each of the U.S. Security
Agreement, the U.S. Pledge Agreement, each Mortgage, each Foreign Security
Agreement, each Foreign Pledge Agreement and, after the execution and delivery
thereof, each Additional Security Document (including each Additional Mortgage).
"Senior Officer" shall mean (i) senior executive management of
Holdings and the U.S. Borrower, (ii) the general counsel of Holdings and the
U.S. Borrower and (iii) the division presidents of Holdings and its
Subsidiaries.
"Shareholder Subordinated Note" shall mean an unsecured junior
subordinated note issued by Holdings (and not guaranteed or supported in any way
by either Borrower or any of their respective Subsidiaries) in the form of
Exhibit L, as the same may be amended, modified and/or supplemented from time to
time in accordance with the terms hereof and thereof.
"Shareholders' Agreements" shall have the meaning provided in Section
5.13.
"Sharing Event" shall mean (i) the occurrence of any Event of Default
with respect to any Credit Agreement Party pursuant to Section 10.05, (ii) the
declaration of the termination of any Revolving Loan Commitment, or the
acceleration of the maturity of any Loans, in each case pursuant to the last
paragraph of Section 10 or (iii) the failure of either Borrower to pay any
principal of, or interest on, Loans of any Tranche, any Letter of Credit
Outstandings or any Bank Guaranty Outstandings on the relevant Maturity Date.
"Shell Corporation" shall mean any Person created or established by
the U.S. Borrower or any of its Wholly-Owned Subsidiaries, so long as (i) the
aggregate amount of assets at any time held by any such Person does not exceed
$10,000 and (ii) the aggregate amount of assets at any time held by all Shell
Corporations at any time in existence does not exceed $100,000, it being
understood that at such time as the assets of any Person which was a "Shell
Corporation" exceed $10,000 or the assets of all Persons which were "Shell
Corporations" exceeds $100,000, all such Persons shall cease to be Shell
Corporations for purposes of this definition.
"Significant Asset Sale" shall mean each Asset Sale which generates
Net Sale Proceeds of at least $10,000,000.
"Special Colombian Put Note Agreement" shall mean that certain Put
Agreement, dated as of April 30, 2003, by and among the Bermuda Borrower, the
Administrative Agent, the Collateral Agent and the Colombian Subsidiary
Guarantors, pursuant to which the Collateral Agent and the Administrative Agent
have the right to demand that the Colombian Subsidiary Guarantors purchase (on a
joint and several basis) any and all Special Colombian Put Notes at par (plus
accrued interest) and in U.S. Dollars, as amended, modified and/or supplemented
from time to time.
"Special Colombian Put Notes" shall have mean those certain promissory
notes, dated as of April 30, 2003, issued by the Bermuda Borrower in the form of
Exhibit M hereto, as amended, modified and/or supplemented from time to time.
"Special Reserve Account" shall have the meaning provided in Section
1.14(d).
"Specified Default" shall mean any Default under either of Sections
10.01 or 10.05.
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"Specified Existing Ship Leases" shall mean the leases with respect to
the vessels named "Xxxx Chile" and "Xxxx Colombia", as in effect on the Initial
Borrowing Date.
"Standby Letter of Credit" shall have the meaning provided in Section
2A.01(a).
"Start Date" shall have the meaning provided in the definition of
Applicable Margin.
"Stated Amount" of each Letter of Credit shall, at any time, mean the
maximum amount available to be drawn thereunder (in each case determined without
regard to whether any conditions to drawing could then be met, but after giving
effect to all previous drawings made thereunder), provided that except as such
term is used in Section 2A.02 and except as provided in the definition of "Euro
L/C Stated Amount", the "Stated Amount" of each Euro Denominated Letter of
Credit and each Sterling Denominated Letter of Credit shall be, on any date of
calculation, the Dollar Equivalent of the maximum amount available to be drawn
in Euros or Sterling, as the case may be, thereunder (determined without regard
to whether any conditions to drawing could then be met but after giving effect
to all previous drawings made thereunder).
"Sterling" and "L" shall mean freely transferable lawful money of the
United Kingdom (expressed in pounds sterling).
"Sterling Denominated Bank Guaranty" shall mean each Bank Guaranty
denominated in Sterling.
"Sterling Denominated Letter of Credit" shall mean each Letter of
Credit denominated in Sterling.
"Subsidiaries Guaranty" shall mean and include the U.S. Subsidiaries
Guaranty, the Foreign Subsidiaries Guaranty and any other guaranty executed and
delivered by any Subsidiary of the U.S. Borrower pursuant to any of Sections
8.11, 8.12 and/or 9.14.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through one or more Subsidiaries of such Person and (ii) any
partnership, association, limited liability company, joint venture or other
entity (other than a corporation) in which such Person directly or indirectly
through one or more Subsidiaries of such Person, has more than a 50% Equity
Interest at the time. Notwithstanding the foregoing (and except for purposes of
Sections 7.01, 7.03, 7.04, 7.12, 7.16, 7.17, 7.20, 8.01(e), 8.01(g), 8.04, 8.05,
8.06, 8.07, 8.08, 8.16, 10.03(b), 10.04, 10.05, 10.06, 10.09 and 13.01), an
Unrestricted Wellbeing Joint Venture shall be deemed not to be a Subsidiary of
Holdings or any of its other Subsidiaries for purposes of this Agreement.
"Subsidiary Guarantor" shall mean each Subsidiary of Intermediate
Holdco that executes and delivers any Subsidiaries Guaranty, unless and until
such time as the respective Subsidiary is released from all of its obligations
under any relevant Subsidiaries Guaranty in accordance with the terms and
provisions thereof.
"Supermajority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if (x) all outstanding Obligations of the other Tranches under
this Agreement were repaid in full and all
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Commitments with respect thereto were terminated and (y) the percentage "50%"
contained therein were changed to "66-2/3%."
"Swingline Expiry Date" shall mean the date that is five Business Days
prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean DBAG, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as a lender of
Swingline Loans.
"Swingline Loans" shall have the meaning provided in Section 1.01(f).
"Syndication Date" shall mean the earlier of (i) the 30th day
following the Restatement Effective Date and (ii) the date upon which the Agents
determine (and notify Holdings and the Lenders) that the primary syndication of
the Tranche A Term Loans and the Additional Tranche B Term Loans (and resultant
addition of Persons as Lenders pursuant to Section 13.04(b)) has been completed.
"Synthetic Lease" shall mean, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed), (i) that is not a capital lease in
accordance with GAAP and (ii) in respect of which the lessee retains or obtains
ownership of the property so leased for federal income tax purposes, other than
any such lease under which that Person is the lessor; provided that for purposes
of this Agreement, the term "Synthetic Lease" shall not include the lease
arising pursuant to the Sale-Leaseback Transaction.
"Tax Allocation Agreements" shall have the meaning provided in Section
5.13.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tender Offer" shall have the meaning provided in Section 5.08.
"Tender Offer Consummation" shall have the meaning provided in Section
8.21.
"Term Loan Conversion" shall have the meaning provided in Section
1.01(b).
"Term Loans" shall mean and include Tranche A Term Loans, Tranche B
Term Loans and each Incremental Term Loan.
"Test Period" shall mean each period of four consecutive Fiscal
Quarters then last ended, in each case taken as one accounting period.
"Third Party Scheduled Existing Indebtedness" shall have the meaning
provided in Section 7.21.
"TL Repayment Percentage" of any Tranche of Term Loans at any time
shall be a fraction (expressed as a percentage) (x) the numerator of which is
the aggregate principal amount of outstanding Term Loans of such Tranche and (y)
the denominator of which is the sum of the aggregate principal amount of all
outstanding Term Loans at such time. The aggregate outstanding principal amount
of Yen-Denominated Term Loans for purposes of this definition shall be
calculated by taking the Dollar Equivalent of all outstanding Yen-Denominated
Term Loans at the time of the respective determination.
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"Total Commitment" shall mean, at any time, the sum of the Total
Tranche A Term Loan Commitment, the Total Tranche B Term Loan Commitment, the
Total Incremental Term Loan Commitment and the Total Revolving Loan Commitment.
"Total Dollar Facility Revolving Loan Commitment" shall mean, at any
time, the sum of the Dollar Facility Revolving Loan Commitments of each of the
Lenders with such a Commitment at such time.
"Total Incremental Term Loan Commitment" shall mean, at any time, the
sum of the Incremental Term Loan Commitments of each of the Lenders with such a
Commitment at such time.
"Total Multicurrency Facility Revolving Loan Commitment" shall mean,
at any time, the sum of the Multicurrency Facility Revolving Loan Commitments of
each of the Lenders with such a Commitment at such time.
"Total Revolving Loan Commitment" shall mean, at any time, the sum of
the Total Dollar Facility Revolving Loan Commitment and the Total Multicurrency
Facility Revolving Loan Commitment, in each case in effect at such time.
"Total Tranche A Term Loan Commitment" shall mean, at any time, the
sum of the Tranche A Term Loan Commitments of each of the Lenders with such a
Commitment at such time.
"Total Tranche B Term Loan Commitment" shall mean, at any time, the
sum of the Tranche B Term Loan Commitments of each of the Lenders with such a
Commitment at such time.
"Total Unutilized Dollar Facility Revolving Loan Commitment" shall
mean, at any time, an amount equal to the remainder of (x) the Total Dollar
Facility Revolving Loan Commitment as in effect at such time less (y) the
aggregate principal amount of all Dollar Facility Revolving Loans outstanding at
such time less (z) the aggregate amount of all Dollar Facility Letter of Credit
Outstandings at such time.
"Total Unutilized Multicurrency Facility Revolving Loan Commitment"
shall mean, at any time, an amount equal to the remainder of (x) the Total
Multicurrency Facility Revolving Loan Commitment as in effect at such time less
(y) the Aggregate Multicurrency Facility RL Exposure at such time; provided that
for purposes of this definition, "Aggregate Multicurrency Facility RL Exposure"
shall be determined as provided in the definition thereof but for such purposes
excluding the obligations described in clause (iii) of said definition.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the Total Revolving Loan Commitment as
in effect at such time less (y) the sum of the Aggregate Multicurrency Facility
RL Exposure at such time and the Aggregate Dollar Facility RL Exposure at such
time.
"Trade Letter of Credit" shall have the meaning set forth in Section
2A.01(a).
"Tranche" shall mean the respective facilities and commitments
utilized in making Loans hereunder (i.e., whether Tranche A Term Loans, Tranche
B Term Loans, U.S. Borrower Multicurrency Facility Revolving Loans, Bermuda
Borrower Multicurrency Facility Revolving Loans, U.S. Borrower Multicurrency
Facility Swingline Loans, Bermuda Borrower Multicurrency Facility Swingline
Loans, U.S. Borrower Dollar Facility Revolving Loans, Bermuda Borrower Dollar
Facility Revolving Loans, U.S. Borrower Dollar Facility Swingline Loans, Bermuda
Borrower Dollar Facility Swingline Loans or
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Incremental Term Loans made pursuant to one or more tranches designated pursuant
to the respective Incremental Term Loan Commitment Agreements in accordance with
the relevant requirements specified in Section 1.15); provided that (x) in the
circumstances contemplated by Section 1.15(c), Incremental Term Loans may be
made part of a then existing Tranche of Incremental Term Loans and (y) for
purposes of the definition of "Supermajority Lenders," "Majority Lenders" and
Section 13.12(a), (I) U.S. Borrower Multicurrency Facility Revolving Loans,
Bermuda Borrower Multicurrency Facility Revolving Loans, U.S. Borrower
Multicurrency Facility Swingline Loans and Bermuda Borrower Multicurrency
Facility Swingline Loans shall collectively be deemed to represent a single
"Tranche" and (II) U.S. Borrower Dollar Facility Revolving Loans, Bermuda
Borrower Dollar Facility Revolving Loans, U.S. Borrower Dollar Facility
Swingline Loans and Bermuda Borrower Dollar Facility Swingline Loans shall
collectively be deemed to represent a single "Tranche."
"Tranche A Term Loan" shall have the meaning provided in Section
1.01(a).
"Tranche A Term Loan Commitment" shall mean, with respect to each
Lender, the amount set forth opposite such Lender's name in Schedule I directly
below the column entitled "Tranche A Term Loan Commitment," as the same may be
terminated pursuant to Sections 3.03 and/or 10.
"Tranche A Term Loan Maturity Date" shall mean March 12, 2010.
"Tranche A Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(i).
"Tranche A Term Note" shall have the meaning provided in Section
1.05(a).
"Tranche B Term Loan" shall mean have the meaning provided in Section
1.01(b).
"Tranche B Term Loan Borrowing Amount" shall mean, with respect to
each Lender, the amount set forth opposite such Lender's name in Schedule I
directly below the column entitled "Tranche B Term Loan Borrowing Amount", as
the same may be (x) reduced from time to time as a result of prepayments and
repayments pursuant to Section 4.01, 4.02 and/or 10 or (y) adjusted from time to
time as a result of assignments of Tranche B Term Loans to or from such Lender
pursuant to Section 1.13 to 13.04(b).
"Tranche B Term Loan Commitment" shall mean, with respect to each
Lender, the amount set forth opposite such Lender's name in Schedule I directly
below the column entitled "Tranche B Term Loan Commitment", as the same may be
terminated pursuant to Sections 3.03 and/or 10.
"Tranche B Term Loan Maturity Date" shall mean April 18, 2012.
"Tranche B Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(ii).
"Tranche B Term Note" shall have the meaning provided in Section
1.05(a).
"Tranche D Term Loan Conversion" shall have the meaning provided in
Section 1.01(b).
"Transaction" shall mean, collectively, (i) the amendment and
restatement of the Original Credit Agreement in the form of this Agreement as
provided herein, (ii) the occurrence of the Restatement Effective Date and the
Credit Events occurring on such date, (iii) the consummation of the Refinancing,
(iv) the consummation of the Intercompany Refinancing Distributions and (v) the
payment
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of fees and expenses in connection with the foregoing (excluding, for avoidance
of doubt, taxes incurred in connection with the Intercompany Refinancing
Distributions).
"Treaty" means the Treaty establishing the European Community being
the Treaty of Rome of March 25, 1957, as amended by the Single Xxxxxxxx Xxx
0000, the Maastricht Treaty (which was signed at Maastricht on February 7, 1992)
and the Treaty of Amsterdam (which was signed in Amsterdam on October 2, 1997).
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan, a Eurodollar
Loan, a Euro Denominated Revolving Loan, a Euro Denominated Swingline Loan or a
Yen Denominated Term Loan .
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"Unfunded Current Liability" shall mean the amount, if any, by which
the actuarial present value of accumulated benefits of any Plan subject to Title
IV of ERISA as of the close of its most recent plan year, determined using
actuarial assumptions at such time consistent with those prescribed by Financial
Account Standards No. 87, exceeds the fair market value of the assets allocable
to such liabilities.
"Unpaid Drawing" shall have the meaning provided in Section 2A.05(a).
"Unreimbursed Payment" shall have the meaning provided in Section
2B.05(a).
"Unrestricted Cash" shall mean all cash and Cash Equivalents owned or
held by Holdings and its Subsidiaries other than cash and Cash Equivalents owned
or held by the Excluded Bermuda Insurance Companies.
"Unrestricted Subsidiary" of any Person shall mean (i) at any time
prior to the repayment in full of both the Existing 2009 Senior Notes and the
Existing 2013 Senior Notes, any Subsidiary of such Person that is not a
Restricted Subsidiary and (ii) thereafter, any Subsidiary of such Person.
"Unrestricted Wellbeing Joint Venture" shall mean Westlake Wellbeing
Company, Wellbeing IP Holdco and Wellbeing Edco.
"Unutilized Dollar Facility Revolving Loan Commitment" with respect to
any Dollar Facility RL Lender, at any time, shall mean such Dollar Facility RL
Lender's Dollar Facility Revolving Loan Commitment at such time, if any, less
the sum of (i) the aggregate outstanding principal amount of Dollar Facility
Revolving Loans made by such Dollar Facility RL Lender and then outstanding plus
(ii) the sum of such Dollar Facility RL Lender's L/C Participation Percentage of
the Stated Amount of each Dollar Facility Letter of Credit and any Unpaid
Drawings relating thereto.
"Unutilized Multicurrency Facility Revolving Loan Commitment" with
respect to any Multicurrency Facility RL Lender, at any time, shall mean such
Multicurrency Facility RL Lender's Multicurrency Facility Revolving Loan
Commitment at such time, if any, less the sum of (i) the aggregate outstanding
principal amount of Multicurrency Facility Revolving Loans (taking the Dollar
Equivalent of any such Loans denominated in Euros) made by such Multicurrency
Facility RL Lender and then outstanding, plus (ii) the sum of such Multicurrency
Facility RL Lender's L/C Participation Percentage of the Stated Amount of each
Multicurrency Facility Letter of Credit and any Unpaid Drawings (taking the
Dollar Equivalent of any amounts expressed in Euros or Sterling) relating
thereto plus (iii) the sum of
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such Multicurrency Facility RL Lender's B/G Participation Percentage of the Face
Amount of each Bank Guaranty and any Unreimbursed Payment (taking the Dollar
Equivalent of any amounts expressed in Euros or Sterling) relating thereto.
"U.S." or "United States" shall mean the United States of America.
"U.S. Borrower" shall have the meaning provided in the first paragraph
of this Agreement.
"U.S. Borrower Bank Guaranty" shall mean each Bank Guaranty (which may
be denominated in Dollars, Euros or Sterling) issued for the account of the U.S.
Borrower pursuant to Section 2B.01 and designated as such by the U.S. Borrower
in the respective Bank Guaranty Request.
"U.S. Borrower Bank Guaranty Outstandings" shall mean, at any time,
the sum of (i) the aggregate Face Amount of all outstanding U.S. Borrower Bank
Guaranties which have not terminated at such time and (ii) the aggregate amount
of all Unreimbursed Payments (taking the Dollar Equivalent of any amounts owed
in Euros or Sterling) in respect of all U.S. Borrower Bank Guaranties at such
time.
"U.S. Borrower Dollar Facility Letter of Credit" shall mean each
Dollar Facility Letter of Credit (which must be denominated in Dollars) issued
for the account of the U.S. Borrower pursuant to Section 2A.01.
"U.S. Borrower Dollar Facility Revolving Loan" shall have the meaning
provided in Section 1.01(d).
"U.S. Borrower Dollar Facility Revolving Note" shall have the meaning
provided in Section 1.05(a).
"U.S. Borrower Dollar Facility Swingline Loan" shall have the meaning
provided in Section 1.01(f).
"U.S. Borrower Dollar Facility Swingline Note" shall have the meaning
provided in Section 1.05(a).
"U.S. Borrower Incremental Term Loans" shall mean Incremental Term
Loans incurred by the U.S. Borrower.
"U.S. Borrower Multicurrency Facility Letter of Credit" shall mean
each Multicurrency Facility Letter of Credit (which may be denominated in
Dollars, Euros or Sterling) issued for the account of the U.S. Borrower pursuant
to Section 2A.01 and designated as such by the U.S. Borrower in the respective
Letter of Credit Request.
"U.S. Borrower Multicurrency Facility Letter of Credit Outstandings"
shall mean, at any time, the sum of (i) the aggregate Stated Amount of all
outstanding U.S. Borrower Multicurrency Facility Letters of Credit and (ii) the
aggregate amount of all Unpaid Drawings (taking the Dollar Equivalent of all
amounts payable in Euros or Sterling) in respect of all U.S. Borrower
Multicurrency Facility Letters of Credit.
"U.S. Borrower Multicurrency Facility Revolving Loan" shall have the
meaning provided in Section 1.01(c).
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"U.S. Borrower Multicurrency Facility Revolving Note" shall have the
meaning provided in Section 1.05(a).
"U.S. Borrower Multicurrency Facility Swingline Loan" shall have the
meaning provided in Section 1.01(e).
"U.S. Borrower Multicurrency Facility Swingline Note" shall have the
meaning provided in Section 1.05(a).
"U.S. Borrower's Guaranty" shall mean the guaranty of the U.S.
Borrower pursuant to Section 14.
"U.S. Credit Agreement Party" shall mean each Credit Agreement Party
other than the Bermuda Borrower.
"U.S. Credit Agreement Party Guaranty" shall mean the guaranty of each
U.S. Credit Agreement Party pursuant to Section 14.
"U.S. Credit Party" shall mean each U.S. Credit Agreement Party and
each U.S. Subsidiary Guarantor.
"U.S. Xxxx Group" shall mean the U.S. Borrower and the U.S. Subsidiary
Guarantors.
"U.S. Dollars," "Dollars" and the sign "$" shall each mean freely
transferable lawful money of the United States of America.
"U.S. GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; provided that
determinations in accordance with U.S. GAAP for purposes of Applicable Margins,
the definition of "Incremental Loan Commitment Requirements" and Sections 4.02,
8.15 and 9, including defined terms as used therein, and for all purposes of
determining the Leverage Ratio, are subject (to the extent provided therein) to
Section 13.07(a).
"U.S. Leasehold Property" shall mean each Leasehold Property located
in the United States.
"U.S. Mortgaged Property" shall mean each Real Property located in the
United States or any State or territory thereof with respect to which a Mortgage
is required to be delivered pursuant to the terms of this Agreement.
"U.S. Pledge Agreement" shall mean the U.S. Pledge Agreement, dated as
of March 28, 2003 and amended and restated as of July 22, 2004 made by Holdings,
Intermediate Holdco, the U.S. Borrower and the U.S. Subsidiary Guarantors in
favor of the Collateral Agent, as the same may be amended, restated, modified
and/or supplemented from time to time in accordance with the terms thereof
(including, without limitation, as modified by the U.S. Security Documents
Acknowledgement and Amendment). A copy of the U.S. Pledge Agreement as in effect
on the Restatement Effective Date (prior to giving effect to the U.S. Security
Documents Acknowledgement and Amendment) is attached hereto as Exhibit H-2.
"U.S. Pledge Agreement Collateral" shall mean all of the "Collateral"
as defined in the U.S. Pledge Agreement.
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"U.S. Security Agreement" shall mean the U.S. Security Agreement,
dated as of March 28, 2003, made by Holdings, Intermediate Holdco, the U.S.
Borrower and the U.S. Subsidiary Guarantors in favor of the Collateral Agent, as
the same may be amended, restated, modified and/or supplemented from time to
time in accordance with the terms thereof (including, without limitation, as
modified by the U.S. Security Documents Acknowledgement and Amendment). A copy
of the U.S. Security Agreement as in effect on the Restatement Effective Date
(prior to giving effect to the U.S. Security Documents Acknowledgement and
Amendment) is attached hereto as Exhibit H-3.
"U.S. Security Documents" shall mean and include the U.S. Security
Agreement, the U.S. Pledge Agreement, each Mortgage covering a U.S. Mortgage
Property and each Additional Security Document covering assets of a U.S. Credit
Party situated in the United States.
"U.S. Security Documents Acknowledgement and Amendment" shall have the
meaning provided in Section 5.11.
"U.S. Subsidiaries Guaranty" shall mean the U.S. Subsidiaries
Guaranty, dated as of March 28, 2003, made by the Domestic Subsidiaries of the
U.S. Borrower party thereto in favor of the Administrative Agent, and shall
include any counterpart thereof and any other similar guaranty executed and
delivered by any Subsidiary of the Borrower pursuant to Section 8.11, 8.12 or
9.14, in each case, as the same may be amended, restated, modified and/or
supplemented from time to time in accordance with the terms thereof (including,
without limitation, as modified by the U.S. Subsidiaries Guaranty
Acknowledgement and Amendment). A copy of the U.S. Subsidiaries Guaranty as in
effect on the Restatement Effective Date (prior to giving effect to the U.S.
Subsidiaries Guaranty Acknowledgement and Amendment) is attached hereto as
Exhibit G-3.
"U.S. Subsidiaries Guaranty Acknowledgement and Amendment" shall have
the meaning provided in Section 5.10.
"U.S. Subsidiary Guarantor" shall mean (i) each Wholly-Owned Domestic
Subsidiary of Intermediate Holdco as of the Restatement Effective Date (other
than (x) the U.S. Borrower and (y) the Excluded Domestic Subsidiary) and (ii)
each other Wholly-Owned Domestic Subsidiary of Intermediate Holdco created,
established or acquired after the Restatement Effective Date which executes and
delivers a U.S. Subsidiaries Guaranty, unless and until such time as the
respective Domestic Subsidiary ceases to constitute a Domestic Subsidiary or is
released from all of its obligations under its U.S. Subsidiaries Guaranty in
accordance with the terms and provisions thereof, provided, that for purposes of
Sections 9.02(ix), 9.02(xiii), 9.04(xvi), 9.05(ix) and 9.10(e) and the
definition of "U.S. Xxxx Group", the term "U.S. Subsidiary Guarantor" (and any
term incorporating such term by reference) shall not include Corporate Holdco.
"Voting Participant" shall have the meaning provided in Section
13.04(b).
"Voting Participant Notice" shall have the meaning provided in Section
13.04(b).
"Weighted Average Life to Maturity" shall mean, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the product obtained
by multiplying (x) the amount of each then remaining installment or other
required scheduled payments of principal, including payment at final maturity,
in respect thereof, by (y) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment.
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"Wellbeing Edco" shall mean a Delaware corporation or limited
liability company formed (or to be formed) by Holdings to promote nutritional
and wellbeing education.
"Wellbeing IP Holdco" shall mean a Delaware corporation or limited
liability company formed (or to be formed) by Holdings to hold the intellectual
property rights related to the Wellbeing Project.
"Wellbeing Project" shall mean the start-up, construction and
operation by Westlake Wellbeing Company of a well-being
center/hotel/spa/conference center/studio on the Westlake Village Property.
"Westlake Village Property" shall mean that certain property
identified to the Administrative Agent of twenty (20) acres (more or less) that
is adjacent to the parcel on which the U.S. Borrower's Corporate Headquarters is
located in the City of Westlake Village, Ventura County, California.
"Westlake Wellbeing Company" shall mean Westlake Wellbeing Properties
LLC, a Delaware limited liability company formed by Holdings to construct and
operate the Wellbeing Project and/or promote nutritional and wellbeing
education.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person that is a Domestic Subsidiary of such
Person.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person that is not a Domestic Subsidiary of such
Person.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required by applicable law to be held by
Persons other than such Person) is at the time owned by such Person and/or one
or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
limited liability company, association, joint venture or other entity in which
such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a
100% Equity Interest at such time; provided that any Foreign Subsidiary of such
Person at least 98% of whose capital stock or other Equity Interests are owned
by such Person and/or one or more Wholly-Owned Subsidiaries (determined after
giving effect to this proviso) of such Person at such time shall be deemed to be
a Wholly-Owned Subsidiary of such Person.
"Written" (whether lower or upper case) or "in writing" shall mean any
form of written communication or a communication by means of telex, facsimile
device, telegraph or cable.
"Yen" and "Y" shall mean the freely transferable lawful money of
Japan.
"Yen Denominated Term Loan" shall mean each Tranche A Term Loan
denominated in Yen at the time of the incurrence thereof.
"Yen LIBOR" shall mean, for each Interest Period applicable to any Yen
Denominated Term Loan, the rate per annum that appears on page 3750 (or other
appropriate page if such currency does not appear on such page) of the Dow Xxxxx
Telerate Screen (or any successor page) for Yen deposits with maturities
comparable to such Interest Period as of 11:00 A.M. (London time) on the date
which is two Business Days prior to the commencement of such Interest Period or,
if such a rate does not appear on page 3750 (or such other appropriate page) of
the Dow Xxxxx Telerate Screen (or any successor page), the offered quotations to
first-class banks in the London interbank market by DBAG for Yen deposits of
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amounts in same day funds comparable to the outstanding principal amount of such
Loan with maturities comparable to such Interest Period determined as of 11:00
A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period; provided that in the event the
Administrative Agent has made any determination pursuant to Section 1.10(a)(i)
in respect of Loans denominated in Yen, or in the circumstances described in
clause (i) to the proviso to Section 1.10(b) in respect of Loans denominated in
Yen, Yen LIBOR determined pursuant to this definition shall instead be the rate
determined by the Administrative Agent as the all-in-cost of funds for the
Administrative Agent to fund a Borrowing of Loans denominated in Yen with
maturities comparable to the Interest Period applicable thereto.
SECTION 12. The Agents.
12.01 Appointment. (a) Each Lender hereby irrevocably designates and
appoints (x) DBAG as Administrative Agent for such Lender (for purposes of this
Section 12 and the term "Agent" as used herein, the term "Administrative Agent"
shall mean DBAG in its capacities as Administrative Agent and as Collateral
Agent hereunder and pursuant to the Security Documents), (y) Scotia Capital and
BAS as Co-Syndication Agents for such Lender, and (z) Fortis, Xxxxxx and
Rabobank as Co-Documentation Agents for such Lender, each to act as specified
herein and in the other Credit Documents, and each such Lender hereby
irrevocably authorizes the Administrative Agent, each Co-Syndication Agent and
each Co-Documentation Agent to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated to or required of the
Administrative Agent, such Co-Syndication Agent or such Co-Documentation Agent,
as the case may be, by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Each of the Agents may perform any of their respective duties under this
Agreement, the other Credit Documents and any other instruments and agreements
referred to herein or therein by or through its respective officers, directors,
agents, employees or affiliates (it being understood and agreed, for avoidance
of doubt and without limiting the generality of the foregoing, that the
Administrative Agent and/or Collateral Agent may perform any of its duties under
the Security Documents by or through one or more of its affiliates).
(b) The provisions of this Section 12 are solely for the benefit of
the Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents
and the Lenders, and neither Holdings nor any of its Subsidiaries shall have any
rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, each of the
Administrative Agent, each Co-Syndication Agent and each Co-Documentation Agent
shall act solely as agent for the Lenders, and none of the Administrative Agent,
the Co-Syndication Agents or the Co-Documentation Agents assumes (and shall not
be deemed to have assumed) any obligation or relationship of agency or trust
with or for Holdings or any of its Subsidiaries.
12.02 Nature of Duties. (a) No Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and in the
other Credit Documents. Neither any Agent nor any of its officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by it hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision). The duties of the Agents shall be mechanical and
administrative in nature; no Agent shall have by reason of this Agreement or any
other Credit Document a fiduciary relationship in respect of any Lender or the
holder of any Note and nothing in this Agreement or in any other Credit
Document, expressed or implied, is intended to or shall be so construed as to
impose upon any Agent any obligations in respect of this Agreement or any other
Credit Document except as expressly set forth herein or therein, provided, that
the Administrative Agent and/or the Collateral Agent shall be deemed to be a
trustee and stand in a fiduciary relationship with respect to the Lenders and
the holders of
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Notes for purposes of any Security Document governed by the laws of a
jurisdiction located outside the United States where the Administrative Agent
and/or the Collateral Agent, as the case may be, shall determine, based on
advice of local counsel, that same is necessary or desirable for purposes of
realizing the benefits intended to be conferred pursuant to such Security
Document, and the Lenders hereby irrevocably designate each of the
Administrative Agent and the Collateral Agent as their trustee for such purpose
and authorize each of the Administrative Agent and the Collateral Agent to at
any time and from time to time take all actions (including, without limitation,
making demand for all amounts then due and payable and the exercise of other
remedies) on their behalf in accordance with the terms of such Security Document
without the necessity of any notice to or further consent from any Lender, and
the Lenders hereby agree to indemnify the Administrative Agent and the
Collateral Agent (and each of their respective officers, directors, trustees,
employees, representatives and agents) and hold each of them harmless against
any and all liabilities, obligations (including removal or remedial actions),
losses, damages, penalties, claims, actions, judgments, suits, costs, expenses
and disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, the
taking of any action or any omission to take action under any such Security
Document unless such action is taken or omitted to be taken with gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
(b) Notwithstanding any other provision of this Agreement or any
provision of any other Credit Document, each of the Joint Lead Arrangers is
named as such for recognition purposes only, and in their respective capacities
as such shall have no powers, duties, responsibilities or liabilities with
respect to this Agreement or the other Credit Documents or the transactions
contemplated hereby and thereby; it being understood and agreed that the Joint
Lead Arrangers shall be entitled to all indemnification and reimbursement rights
in favor of "Agents" as, and to the extent, provided for under Sections 12.07
and 13.01. Without limitation of the foregoing, none of the Joint Lead Arrangers
shall, solely by reason of this Agreement or any other Credit Documents, have
any fiduciary relationship in respect of any Lender or any other Person.
12.03 Certain Rights of the Agents. The Agents shall have the right to
request instructions from the Required Lenders at any time. If any Agent shall
request instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Lenders; and such Agent shall not incur liability to any Lender by
reason of so refraining. Without limiting the foregoing, neither any Lender nor
the holder of any Note shall have any right of action whatsoever against any
Agent or any of its employees, directors, officers, agents or affiliates as a
result of such Agent or such other person acting or refraining from acting
hereunder or under any other Credit Document in accordance with the instructions
of the Required Lenders.
12.04 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected (and shall have no liability to any Person) in relying,
upon any note, writing, resolution, notice, statement, certificate, telex,
teletype or telecopier message, cablegram, radiogram, order, telephone message
or other document or conversation that such Agent believed, in the absence of
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision), to be the proper Person,
and, with respect to all legal matters pertaining to this Agreement and any
other Credit Document and its duties hereunder and thereunder, upon advice of
counsel selected by such Agent (which may be counsel for the Credit Parties)
and, with respect to other matters, upon advice of independent public
accountants or other experts selected by it.
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12.05 Notice of Default, etc. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has actually received written notice
from a Lender or Holdings or either Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders; provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders (as determined by the Administrative Agent in its sole
discretion).
12.06 Nonreliance on Agents and Other Lenders. Independently and
without reliance upon any Agent, each Lender and the holder of each Note, to the
extent it deems appropriate, has made and shall continue to make its own
independent investigation of the financial condition and affairs of Holdings and
its Subsidiaries in connection with the making and the continuance of the Loans
and the taking or not taking of any action in connection herewith and, except as
expressly provided in this Agreement, no Agent shall have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. No Agent or their respective affiliates nor any of
their respective officers, directors, agents or employees shall be responsible
to any Lender or the holder of any Note for, or be required or have any duty to
ascertain, inquire or verify the accuracy of, (i) any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith, (ii) the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document, (iii) the financial condition of Holdings and any of its Subsidiaries,
(iv) the performance or observance of any of the terms, provisions or conditions
of this Agreement or any other Credit Document, (v) the satisfaction of any of
the conditions precedent set forth in Section 5 or 6, or (vi) the existence or
possible existence of any Default or Event of Default.
12.07 Indemnification. (a) To the extent any Agent (or any affiliate
thereof) is not reimbursed and indemnified by the Credit Agreement Parties, the
Lenders will reimburse and indemnify such Agent (and any affiliate thereof) in
proportion to their respective "percentages" as used in determining the Required
Lenders (determined as if there were no Defaulting Lenders and at the time such
indemnity is sought), for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by such Agent (or any affiliate thereof) in performing its
respective duties hereunder or under any other Credit Document or in any way
relating to or arising out of this Agreement or any other Credit Document in its
capacity as Agent, provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
(b) Any Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Credit Document (except actions
expressly required to be taken by it hereunder or under the Credit Documents)
unless it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
(c) The agreements in this Section 12.07 shall survive the payment of
all Obligations.
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12.08 Agents in their Individual Capacities. With respect to its
obligation to make Loans, or issue or participate in Letters of Credit or Bank
Guaranties, under this Agreement, each Agent shall have the rights and powers
specified herein for a "Lender" and may exercise the same rights and powers as
though it were not performing the duties specified herein; and the term
"Lender", "Required Lenders", "Supermajority Lenders", "Majority Lenders",
"holders of Notes" or any similar terms shall, unless the context clearly
otherwise indicates, include each Agent in its individual capacity. Each Agent
and its affiliates may accept deposits from, lend money to, and generally engage
in any kind of banking, investment banking, trust or other business with, or
provide debt financing, equity capital or other services (including financial
advisory services) to, any Credit Party or any Affiliate of any Credit Party (or
any Person engaged in a similar business with any Credit Party or any Affiliate
thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of
any Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.
12.09 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
endorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.10 Resignation of the Agents. (a) The Administrative Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents (including, without limitation, its functions
and duties as Collateral Agent) at any time by giving 30 Business Days' prior
written notice to the Lenders and, unless a Default or an Event of Default under
Section 10.05 then exists, Holdings. Any such resignation by the Administrative
Agent hereunder shall also constitute its resignation (if applicable) as an
Issuing Lender, Bank Guaranty Issuer and Swingline Lender, in which case the
resigning Administrative Agent (x) shall not be required to issue any further
Letters of Credit or Bank Guaranties or make any additional Swingline Loans
hereunder and (y) shall maintain all of its rights as Issuing Lender, Bank
Guarantor Issuer or Swingline Lender, as the case may be, with respect to any
Letter of Credit or Bank Guaranty issued by it, or Swingline Loans made by it,
prior to the date of such resignation. Such resignation shall take effect upon
the appointment of a successor Administrative Agent pursuant to clauses (b) and
(c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Administrative Agent,
the Required Lenders shall appoint a successor Administrative Agent hereunder
and/or under the other Credit Documents who shall be a commercial bank or trust
company acceptable to Holdings, which acceptance shall not be unreasonably
withheld or delayed (provided that Holdings' approval shall not be required if
an Event of Default then exists).
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent, with the
consent of Holdings (which consent shall not be unreasonably withheld or
delayed, provided that Holdings' consent shall not be required if an Event of
Default then exists), shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder and/or under the other Credit
Documents until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required
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Lenders shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Credit Document until such time, if any, as the
Lenders appoint a successor Administrative Agent as provided above.
(e) Either Co-Syndication Agent may resign from the performance of all
its functions and duties hereunder and/or under the other Credit Documents at
any time by giving five Business Days' prior written notice to the Lenders. Such
resignation shall take effect at the end of such five Business Day period.
(f) Either Co-Documentation Agent may resign from the performance of
all its functions and duties hereunder and/or under the other Credit Documents
at any time by giving five Business Days' prior written notice to the Lenders.
Such resignation shall take effect at the end of such five Business Day period.
(g) Upon a resignation of any Agent pursuant to this Section 12.10,
such Agent shall remain indemnified to the extent provided in this Agreement and
the other Credit Documents and the provisions of this Section 12 shall continue
in effect for the benefit of such Agent for all of its actions and inactions
while serving as such Agent.
12.11 Collateral Matters. (a) Each Lender authorizes and directs the
Collateral Agent to enter into the Security Documents for the benefit of the
Lenders and the other Secured Creditors. Each Lender hereby agrees, and each
holder of any Note or participant in Letters of Credit or Bank Guaranties by the
acceptance thereof will be deemed to agree, that, except as otherwise set forth
herein, any action taken by the Required Lenders in accordance with the
provisions of this Agreement or the Security Documents, and the exercise by the
Required Lenders of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of the Lenders. The Collateral Agent is hereby authorized on
behalf of all of the Lenders, without the necessity of any notice to or further
consent from any Lender, from time to time prior to an Event of Default, to take
any action with respect to any Collateral or Security Documents which may be
necessary to perfect and maintain perfected the security interest in and liens
upon the Collateral granted pursuant to the Security Documents.
(b) The Lenders hereby authorize the Collateral Agent, at its option
and in its discretion, to release any Lien granted to or held by the Collateral
Agent upon any Collateral (i) upon termination of the Commitments and
indefeasible payment and satisfaction in full of all of the Obligations at any
time arising under or in respect of this Agreement or the Credit Documents or
the transactions contemplated hereby or thereby, (ii) constituting property
being sold or otherwise disposed of (to Persons other than Holdings and its
Subsidiaries) upon the sale or other disposition thereof in compliance with
Section 9.02, (iii) if approved, authorized or ratified in writing by the
Required Lenders (or all of the Lenders hereunder, to the extent required by
Section 13.12) or (iv) as otherwise may be expressly provided in the relevant
Security Documents. Upon request by the Administrative Agent at any time, the
Lenders will confirm in writing the Collateral Agent's authority to release
particular types or items of Collateral pursuant to this Section 12.11.
(c) The Collateral Agent shall have no obligation whatsoever to the
Lenders or to any other Person to assure that the Collateral exists or is owned
by any Credit Agreement Party or any of its Subsidiaries or is cared for,
protected or insured or that the Liens granted to the Collateral Agent herein or
pursuant hereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise or to continue exercising at all or in any manner or under any duty
of care, disclosure or fidelity any of the rights, authorities and powers
granted or available to the Collateral Agent in this Section 12.11 or in any of
the Security Documents, it being
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understood and agreed that in respect of the Collateral, or any act, omission or
event related thereto, the Collateral Agent may act in any manner it may deem
appropriate, in its sole discretion, given the Collateral Agent's own interest
in the Collateral as one of the Lenders and that the Collateral Agent shall have
no duty or liability whatsoever to the Lenders, except for its gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
12.12 Delivery of Information. The Administrative Agent shall not be
required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by the
Administrative Agent from any Credit Agreement Party, any Subsidiary, the
Required Lenders, any Lender or any other Person under or in connection with
this Agreement or any other Credit Document except (i) as specifically provided
in this Agreement or any other Credit Document and (ii) as specifically
requested from time to time in writing by any Lender with respect to a specific
document, instrument, notice or other written communication received by and in
the possession of the Administrative Agent at the time of receipt of such
request and then only in accordance with such specific request.
12.13 Special Appointment of Collateral Agent (Germany). (a) Without
prejudice to the generality of Section 12.11:
(i) each Lender hereby appoints, on the terms hereof, and each Hedging
Creditor (as defined in the U.S. Security Agreement) by its acceptance of
the benefits of the German Security (as defined below) and by notice in
writing to the Collateral Agent to that effect hereby appoints, on the
terms hereof, the Collateral Agent as trustee (Treuhaender), agent and
administrator for the purpose of holding on trust (Treuhand), accepting,
administering and enforcing the German Security for and on behalf of the
Lenders and the other Secured Creditors;
(ii) the Collateral Agent accepts its appointment as a trustee
(Treuhaender), agent and administrator of the German Security on the terms
and subject to the conditions set out in this Agreement;
(iii) the Secured Creditors agree that, in relation to the German
Security, no Secured Creditor shall exercise any independent power to
enforce any German Security or take any other action in relation to the
enforcement of the German Security, or make or receive any declarations in
relation thereto.
(b) The Collateral Agent shall:
(i) hold and administer any German Security which is security assigned
or otherwise transferred (Sicherungsubereignung/Sicherungsabtretung) under
German law under a non-accessory security right (nicht akzessorische
Sicherheit) to it as a trustee (Treuhaender) for the benefit of the Secured
Creditors; and
(ii) administer any German Security which is pledged under German law
(Verpfaendung) or otherwise transferred in accordance with German law to
any of the Secured Creditors under an accessory security right
(akzessorische Sicherheit).
"German Security" means the assets the subject of a security document which is
governed by German Law. Each Secured Creditor hereby authorizes the Collateral
Agent to accept, as its representative (Stellvertreter), any German Security
created in favor of such Secured Creditor.
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(c) Furthermore, each Secured Creditor hereby authorizes
(bevollmaechtigt) the Collateral Agent (with the right of sub-delegation) to
enter into any documents evidencing German Security and to make and accept all
declarations and take all actions as it considers necessary or useful in
connection with any German Security on behalf of such Secured Creditor. The
Collateral Agent shall further be entitled to rescind, amend and/or execute new
and different documents securing the German Security. The Collateral Agent is
released from the restrictions arising under Clause 181 of the German Civil Code
(Buergerliches Gesetzbuch) (restrictions on self-dealing).
12.14 Special Provisions Relating to Canadian Security Documents. (a)
For greater certainty, and without limiting the powers of the Collateral Agent
hereunder or under any of the Foreign Security Documents, each of the Bermuda
Borrower and the Secured Creditors hereby acknowledges that the Collateral Agent
is, for purposes of holding any security granted by Xxxx Foods of Canada Ltd.
("Xxxx Canada") on the property of Xxxx Canada pursuant to the laws of the
Province of Quebec, the holder of an irrevocable power of attorney (fonde de
pouvoir) (within the meaning of the Civil Code of Quebec) for all present and
future Secured Creditors and in particular for all present and future holders of
the bond issued by Xxxx Canada in favor of the Collateral Agent (the "Canadian
Bond"). Each of the Agents and Lenders (for themselves as Secured Creditors and
for the Other Creditors (as defined in the security agreement governed by the
laws of the Province of Ontario executed by Xxxx Canada (the "Canadian Security
Agreement")) hereby irrevocably confirms the constitution of and constitutes, to
the extent necessary, the Collateral Agent as the holder of an irrevocable power
of attorney (fonde de pouvoir) (within the meaning of Article 2692 of the Civil
Code of Quebec) in order to hold security granted by Xxxx Canada in the Province
of Quebec to secure the Canadian Bond. The acceptance of an assignment by an
assignee of a Secured Creditor shall be deemed to have confirmed and ratified
the constitution of the Collateral Agent as the holder of such irrevocable power
of attorney (fonde de pouvoir). For greater certainty, by their acceptance of
the benefits of the Canadian Security Agreement, each of the Other Creditors (as
defined in the Canadian Security Agreement) shall be deemed to have confirmed
and ratified the appointment of the Collateral Agent for purposes of the Bond
and the Bond pledge agreement to be entered into by Xxxx Canada pursuant to the
laws of the Province of Quebec. Notwithstanding the provisions of Section 32 of
An Act respecting the special powers of legal persons (Quebec), each of the
Bermuda Borrower, the Agents and the Lenders (for themselves as Secured
Creditors and for the Other Creditors) agree that the Collateral Agent may
acquire and be the holder of the Canadian Bond. The Bermuda Borrower hereby
acknowledges that the Canadian Bond constitutes a title of indebtedness, as such
term is used in Article 2692 of the Civil Code of Quebec.
(b) Each Lender irrevocably consents to the amendment of the Canadian
Security Agreement pursuant to the acknowledgement, confirmation and amendment
of security dated as of the date hereof between Xxxx Canada and the Collateral
Agent.
12.15 Special Appointment of Collateral Agent (Italy). (a) Without
prejudice to the generality of Section 12.11:
(i) each Lender (including, without limitation, each Lender which is a
Hedging Creditor (as defined in the Foreign Subsidiaries Guaranty)) (as
"mandante" under Italian law), by executing this Agreement, irrevocably
appoints the Collateral Agent to act as agent ("mandatario con
rappresentanza" under Italian law) under and in connection with the Foreign
Security Documents governed by Italian law (collectively, the "Italian
Collateral Documents") and irrevocably authorizes the Collateral Agent (x)
to execute on its behalf the Italian Collateral Documents, and (y) to
perform the duties and to exercise the rights, powers and discretions that
are specifically delegated to it under or in connection with the Italian
Collateral Documents, together with any other incidental rights, powers and
discretions; and
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(ii) each Lender (including, without limitation, each Lender which is
a Hedging Creditor (as defined in the Foreign Subsidiaries Guaranty))
irrevocably authorizes the Collateral Agent for and on its behalf to
exercise the rights, powers and discretions which are specifically
delegated to it by the terms of the Italian Collateral Documents and this
Agreement, together with all rights, powers and discretions which are
incidental thereto and to give any discharge for any monies payable under
the Italian Collateral Documents.
(b) Notwithstanding Section 13.08 hereof, the provisions of this
Section 12.15 shall be governed by Italian law.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Credit Agreement Parties jointly
and severally agree to: (i) whether or not the transactions herein contemplated
are consummated, pay all reasonable out-of-pocket costs and expenses of the
Agents and the Collateral Agent (including, without limitation, the reasonable
fees and disbursements of White & Case LLP and local and foreign counsel) in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and of the Administrative Agent and the
Collateral Agent in connection with any amendment, waiver or consent relating
hereto or thereto, and of each Agent in connection with its syndication efforts
with respect to this Agreement; provided, however, that the Credit Agreement
Parties shall not be obligated to pay legal fees and expenses of counsel
incurred in connection with the initial negotiation, preparation, execution and
delivery of the Credit Documents other than the legal fees and expenses of White
& Case LLP, Xxxxxxx Xxxx & Xxxxxxx and such other local and foreign counsel as
may be engaged by the Administrative Agent to address issues arising in
connection with the Transaction and/or to prepare security documentation
governed by local or foreign law; (ii) pay all reasonable out-of-pocket costs
and expenses of each Agent, the Collateral Agent, each Issuing Lender, each Bank
Guaranty Issuer and each of the Lenders in connection with the enforcement of
the Credit Documents and the documents and instruments referred to therein or
entered into or delivered in connection therewith (including, without
limitation, the reasonable fees and disbursements of counsel) and the protection
of the rights of each Agent, the Collateral Agent, each Issuing Lender, each
Bank Guaranty Issuer and each of the Lenders thereunder (including, without
limitation, the reasonable fees and disbursements of counsel (including in-house
counsel) for each Agent, the Collateral Agent, each Issuing Lender, each Bank
Guaranty Issuer and each of the Lenders); (iii) pay and hold each of the Agents,
the Collateral Agent, each Issuing Lender, each Bank Guaranty Issuer and each of
the Lenders harmless from and against any and all present and future stamp,
documentary, transfer, sales and use, value added, excise and other similar
taxes with respect to the foregoing matters, the performance of any obligation
under this Agreement or any other Credit Document or any payment thereunder, and
save each of the Agents, the Collateral Agent, each Issuing Lender, each Bank
Guaranty Issuer and each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to the Agents, the Collateral Agent, such Issuing
Lender, such Bank Guaranty Issuer or such Lender) to pay such taxes; and (iv)
indemnify each Agent, the Collateral Agent, each Issuing Lender, each Bank
Guaranty Issuer, each Lender, each affiliate of the foregoing Persons and their
respective officers, directors, employees, representatives, trustees and agents
(each, an "Indemnified Person") from and hold each of them harmless against any
and all liabilities, obligations (including removal or remedial actions),
losses, damages, penalties, claims, actions, costs, expenses and disbursements
incurred by, imposed on or assessed against any of them as a result of, or
arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not any Agent, the
Collateral Agent, any Issuing Lender, any Bank Guaranty Issuer or any Lender is
a party thereto and whether or not any such investigation, litigation or other
proceeding is between or among any Agent, the Collateral Agent, any Issuing
Lender, any Bank Guaranty Issuer, any Lender, any Credit Party or any third
Person or otherwise) related to the entering into and/or
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performance of this Agreement or any other Document or the use of any Letter of
Credit or Bank Guaranty or the proceeds of any Loans hereunder or the
Transaction or the consummation of any other transactions contemplated by any
Document or the exercise or enforcement of any of their rights or remedies
provided herein or in the other Credit Documents (but excluding any such
liabilities, obligations, losses, damages, penalties, claims, actions, costs,
expenses and disbursements to the extent incurred by reason of the gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision) of the Person to be
indemnified), or (b) the actual or alleged presence of Hazardous Materials in
the air, surface water or groundwater or on the surface or subsurface of any
Real Property at any time owned, leased or operated by any Credit Party or any
of its Subsidiaries, the Release, generation, storage, transportation, handling
or disposal of Hazardous Materials at any location, whether or not owned, leased
or operated by any Credit Party or any of its Subsidiaries, the non-compliance
of any Real Property with foreign, federal, state and local laws, regulations,
and ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim in connection with or relating to any
Credit Party, any of its Subsidiaries or any of their operations or activities
or any Real Property at any time owned, leased or operated by any Credit Party
or any of its Subsidiaries, in each case, including, without limitation, the
reasonable fees and disbursements of counsel and independent consultants
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such liabilities, obligations, losses, damages,
penalties, claims, actions, costs, expenses and disbursements to the extent
incurred by reason of the gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final and non-appealable decision) of
the Person to be indemnified)). To the extent that the undertaking to indemnify,
pay or hold harmless any Agent, the Collateral Agent, any Issuing Lender, any
Bank Guaranty Issuer or any Lender set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Credit
Agreement Parties hereby agree to make the maximum contribution to the payment
and satisfaction of each of the indemnified liabilities which is permissible
under applicable law.
13.02 Right of Setoff. (a) In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Agent, each
Issuing Lender, each Bank Guaranty Issuer, each Lender and the Collateral Agent
is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to Holdings or any of its
Subsidiaries or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by such Agent,
such Issuing Lender, such Bank Guaranty Issuer, such Lender or the Collateral
Agent (including, without limitation, by branches and agencies of such Agent,
such Issuing Lender, such Bank Guaranty Issuer, such Lender or the Collateral
Agent wherever located) to or for the credit or the account of Holdings or any
of its Subsidiaries against and on account of the Obligations and liabilities of
Holdings or such Subsidiary, as the case may be, to such Agent, such Issuing
Lender, such Bank Guaranty Issuer, such Lender or the Collateral Agent under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Lender pursuant to
Section 13.06(b), all participations by any Lender in any Swingline Loans,
Letters of Credit or Bank Guaranties as required pursuant to the provisions of
this Agreement and all other claims of any nature or description arising out of
or connected with this Agreement or any other Credit Document, irrespective of
whether or not such Agent, such Issuing Lender, such Bank Guaranty Issuer, such
Lender or the Collateral Agent shall have made any demand hereunder and although
said Obligations shall be contingent or unmatured. Each Borrower agrees that any
Lender purchasing participations in one or more Letters of Credit or Bank
Guaranties issued, or Swingline Loans made, to it as required by the provisions
of this Agreement, or purchasing participations as required by Section 13.06(b),
may, to the fullest extent permitted by law, exercise all rights (including
without limitation the right of setoff) with respect to such participations as
fully as if such Lender is a direct creditor of such Borrower with respect to
such participations in the amount thereof.
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(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (A), AT ANY TIME THAT THE
LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN
CALIFORNIA, NO LENDER OR THE ADMINISTRATIVE AGENT SHALL EXERCISE A RIGHT OF
SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR
INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE
UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS OR APPROVED IN
WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING
WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580A,
580B, 580D AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF
THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE
VALIDITY, PRIORITY OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL
AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND
OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OR THE
ADMINISTRATIVE AGENT OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE
REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS
SUBSECTION (B) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE
ADMINISTRATIVE AGENT HEREUNDER.
13.03 Notices. (a) Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit
Agreement Party, at the address specified opposite its signature below; if to
any Lender, at its address specified for such Lender on Schedule II; and if to
the Administrative Agent, at its Notice Office; or, as to any Credit Agreement
Party or any of the Agents, at such other address as shall be designated by such
party in a written notice to the other parties hereto and, as to each Lender, at
such other address as shall be designated by such Lender in a written notice to
Holdings and the Administrative Agent. All such notices and communications shall
be mailed, telegraphed, telexed, telecopied or cabled or sent by overnight
courier, and shall be effective when received.
(b) Without in any way limiting the obligation of Holdings and its
Subsidiaries to confirm in writing any telephonic notice permitted to be given
hereunder, any Agent, the Swingline Lender (in the case of a Borrowing of
Swingline Loans), any Issuing Lender (in the case of the issuance of a Letter of
Credit) or any Bank Guaranty Issuer (in the case of the issuance of a Bank
Guaranty), as the case may be, may prior to receipt of written confirmation act
without liability upon the basis of such telephonic notice, believed by such
Agent, the Swingline Lender, such Issuing Lender or such Bank Guaranty Issuer in
good faith to be from an Authorized Officer. In each such case, Holdings and
each of the Borrowers hereby waive the right to dispute such Agent's, the
Swingline Lender's, such Issuing Lender's or such Bank Guaranty Issuer's record
of the terms of such telephonic notice.
13.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, no Credit Agreement Party may
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the prior written consent of each of the
Lenders and, provided further, that, although any Lender may (without the
consent of any Credit Party) transfer, assign or grant participations in its
rights hereunder, such Lender shall remain a "Lender" for all purposes hereunder
(and may not transfer or assign all or any portion of its Commitments or Loans
hereunder except as provided in Section 13.04(b)) and the transferee, assignee
or participant, as the case may be, shall not constitute a "Lender" hereunder
and, provided further, that no Lender shall transfer or grant any participation
under which the participant shall have rights to approve any amendment to or
waiver of this
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Agreement or any other Credit Document except (I) to the extent such amendment
or waiver would (i) extend the final scheduled maturity of any Loan, Note, or
Letter of Credit or Bank Guaranty (unless such Letter of Credit or Bank Guaranty
is not extended beyond the Revolving Loan Maturity Date) in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with a waiver of applicability
of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the Total Commitment or of a
mandatory repayment of Loans shall not constitute a change in the terms of such
participation, that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof and that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any
rate of interest or fees for purposes of this clause (i), notwithstanding the
fact that such amendment or modification actually results in such a reduction),
(ii) consent to the assignment or transfer by any Credit Agreement Party of any
of its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Security Documents (except
as expressly provided in the Security Documents) supporting the Obligations in
which such participant is participating and (II) that, solely in the case of a
Participant (each, a "Voting Participant") which (x) has purchased a
participation interest in such Lender's Commitments and/or outstanding Term
Loans in a minimum aggregate amount (without duplication) of at least $5,000,000
on or after the Restatement Effective Date (for such purpose, taking the Dollar
Equivalent of any participation interest in Tranche A Term Loans denominated in
Yen at such time) and (y) is (A) designated by such Lender to the U.S. Borrower
and the Administrative Agent by written notice (a "Voting Participant Notice")
as being entitled to be accorded the rights of a "voting" Participant hereunder,
(B) approved by the U.S. Borrower and the Administrative Agent (such approvals
not to be unreasonably withheld or delayed) and (C) not a Disqualified Voting
Participant, such Participant shall be entitled to vote with respect to each
Tranche in which it holds a participation from such Lender (and the voting
rights of such Lender for each such Tranche shall be correspondingly reduced),
on a Dollar (or, in the case of a participation interest in Tranche A Term Loans
denominated in Yen at such time, a Yen) basis, as if such Participant were a
Lender under such Tranche on any matter requiring or allowing such Lender to
provide or withhold its consent or to otherwise vote on any proposed action
(with any Voting Participant Notice, with respect to any Voting Participant, to
be effective only if same (a) states the full legal name of such Voting
Participant, as well as the relevant contact information and administrative
details for such Voting Participant, and (b) states the Dollar (or, in the case
of a participation interest in Tranche A Term Loans denominated in Yen, the Yen)
amount of the participation interest in each Tranche purchased). In the case of
any such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto)
and all amounts payable by the Borrowers hereunder shall be determined as if
such Lender had not sold such participation; provided that a Voting Participant
shall have the voting rights to which it is entitled as described in the
preceding sentence.
(b) Notwithstanding the foregoing, any Lender (or any Lender together
with one or more other Lenders) may (x) assign all or a portion of its Revolving
Loan Commitment (and related outstanding Obligations hereunder), and/or its
outstanding Term Loans to (i) its parent company and/or any affiliate of such
Lender which is at least 50% owned by such Lender or its parent company, (ii)
one or more Lenders or (iii) in the case of any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is managed
by the same investment advisor of a Lender or by an Affiliate of such investment
advisor or (y) assign all, or if less than all, a portion equal to at least
$1,000,000 in the aggregate for the assigning Lender or assigning Lenders, of
such Revolving Loan Commitments (and related outstanding Obligations hereunder)
and/or outstanding principal amount of Term Loans hereunder to one or more
Eligible Transferees (treating (I) any fund that invests in bank loans and (II)
any other
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fund that invests in bank loans and is managed by the same investment advisor as
such fund or by an Affiliate of such investment advisor, as a single Eligible
Transferee), each of which assignees shall become a party to this Agreement as a
Lender by execution of an Assignment and Assumption Agreement, provided that (i)
at such time Schedule I shall be deemed modified to reflect the Revolving Loan
Commitments and/or outstanding Term Loans, as the case may be, of such new
Lender and of the existing Lenders, (ii) upon surrender of the old Notes, new
Notes will be issued, at the Borrowers' expense, to such new Lender and to the
assigning Lender, such new Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Revolving Loan Commitments and/or outstanding Term Loans, as the
case may be, (iii) except in the case of assignments by the Agents in connection
with their syndication of this Agreement, the consent of the Administrative
Agent and, so long as no Default or Event of Default then exists and is
continuing, the U.S. Borrower shall be required in connection with any such
assignment pursuant to clause (y) of this Section 13.04(b) (which consent shall
not be unreasonably withheld or delayed) and (iv) the consent of the Swingline
Lender and each Issuing Lender shall be required in connection with any
assignment of Revolving Loan Commitments pursuant to this Section 13.04(b)
(which consent shall not be unreasonably withheld or delayed), (v) the consent
of each Bank Guaranty Issuer shall be required in connection with any assignment
of Multicurrency Revolving Loan Commitments pursuant to this Section 13.04(b)
(which consent shall not be unreasonably withheld or delayed) and (vi) the
Administrative Agent shall receive at the time of each such assignment, from the
assigning or assignee Lender, the payment of a non-refundable assignment fee of
$3,500 and, provided further, that such transfer or assignment will not be
effective until recorded by the Administrative Agent on the Register pursuant to
Section 13.17. To the extent of any assignment pursuant to this Section
13.04(b), the assigning Lender shall be relieved of its obligations hereunder
with respect to its assigned Commitments and/or outstanding Term Loans, as the
case may be. At the time of each assignment pursuant to this Section 13.04(b) to
a Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Lender shall, to the extent
legally entitled to do so, provide to the U.S. Borrower and the Administrative
Agent the appropriate Internal Revenue Service Forms (and, if applicable, a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b)(ii) to the extent
such forms would provide a complete exemption from or reduction in United States
withholding tax. To the extent that an assignment of all or any portion of a
Lender's Commitments and related outstanding Obligations pursuant to Section
1.13 or this Section 13.04(b) would, at the time of such assignment, result in
increased costs under Section 1.10, 1.11, 2A.06, 2B.06 or 4.04 from those being
charged by the respective assigning Lender prior to such assignment, then the
Borrowers shall not be obligated to pay such increased costs (although the
Borrowers, in accordance with and pursuant to the other provisions of this
Agreement, shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment). Notwithstanding anything to the contrary contained above, at any
time after the termination of the Total Revolving Loan Commitment, if any
Revolving Loans, Letters of Credit or Bank Guaranties remain outstanding,
assignments may be made as provided above, except that the respective assignment
shall be of a portion of the outstanding Revolving Loans of the respective RL
Lender and its participation in Letters of Credit and Bank guaranties and its
obligation to make Mandatory Borrowings, although any such assignment effected
after the termination of the Total Revolving Loan Commitment shall not release
the assigning RL Lender from its obligations as a participant with respect to
outstanding Letters of Credit or Bank Guaranties or to fund its share of any
Mandatory Borrowing (although the respective assignee may agree, as between
itself and the respective assigning RL Lender, that it shall be responsible for
such amounts).
(c) Nothing in this Agreement shall prevent or prohibit any Lender
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank and, with prior
notification to the Administrative Agent (but without the consent of the
Administrative Agent or any Credit Agreement Party), any Lender which is a fund
may pledge all or any portion of its Notes or Loans to its trustee or to a
collateral agent or to another creditor
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providing credit or credit support to such Lender in support of its obligations
to such trustee, such Collateral Agent or a holder of, or any other
representative of a holder of, such obligations, or such other creditor, as the
case may be. No pledge pursuant to this clause (c) shall release the transferor
Lender from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of any Agent, the Collateral Agent or any Lender in exercising any right, power
or privilege hereunder or under any other Credit Document and no course of
dealing between any Credit Party and any Agent, the Collateral Agent or any
Lender shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which any Agent, the Collateral Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Agent, the Collateral
Agent or any Lender to any other or further action in any circumstances without
notice or demand.
13.06 Payments Pro Rata. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Lenders
(other than any Lender that has consented in writing to waive its pro rata share
of such payment) pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion than
the total of such Obligation then owed and due to such Lender bears to the total
of such Obligation then owed and due to all of the Lenders immediately prior to
such receipt, then such Lender receiving such excess payment shall purchase for
cash without recourse or warranty from the other Lenders an interest in the
Obligations of the respective Credit Party to such Lenders in such amount as
shall result in a proportional participation by all of the Lenders in such
amount; provided that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with U.S. GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the U.S. Borrower to the Lenders), provided that (i) except as otherwise
specifically provided herein, all computations determining the Applicable
Margins, Excess Cash Flow, the Leverage Ratio and compliance with Sections 4,
8.15 and 9, including in each case definitions used therein, shall, in each
case, utilize United States accounting principles and policies in effect at the
time of the preparation of, and in conformity with those used to prepare, the
historical consolidated audited financial statements of
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the U.S. Borrower delivered to the Lenders pursuant to Section 7.10(b) for
Fiscal Year 2004, (ii) to the extent expressly required pursuant to the
provisions of this Agreement, certain calculations shall be made on a Pro Forma
Basis, (iii) subject to clause (iv) below, for purposes of determining
compliance with any incurrence or expenditure tests set forth in Sections 8
and/or 9 (excluding Sections 9.08 and 9.09), any amounts so incurred or expended
(to the extent incurred or expended in a currency other than Dollars) shall be
converted into Dollars on the basis of the exchange rates (as shown on Reuters
ECB page 37 or, if same does not provide such exchange rates, on such other
basis as is reasonably satisfactory to the Administrative Agent) as in effect on
the date of such incurrence or expenditure under any provision of any such
Section that has an aggregate Dollar limitation provided for therein (and to the
extent the respective incurrence or expenditure test regulates the aggregate
amount outstanding at any time and it is expressed in terms of Dollars, all
outstanding amounts originally incurred or spent in currencies other than
Dollars shall be converted into Dollars on the basis of the exchange rates (as
shown on Reuters ECB page 37 or, if same does not provide such exchange rates,
on such other basis as is reasonably satisfactory to the Administrative Agent)
as in effect on the date of any new incurrence or expenditures made under any
provision of any such Section that regulates the Dollar amount outstanding at
any time) and (iv) for purposes of (and only of) determining compliance with
Sections 9.08 and 9.09 and the calculation of the Leverage Ratio as used herein
prior to the occurrence of a Sharing Event, the aggregate principal amount of
Tranche A Term Loans outstanding at any time shall be determined by converting
the Yen denominated principal amount of the Tranche A Term Loans outstanding at
such time into Dollars on the basis of the exchange rate quoted by the
Administrative Agent as of 11:00 A.M. (New York time) on the date two Business
Days prior to the Initial Borrowing Date (i.e., the rate used by the
Administrative Agent to determine the initial aggregate principal amount of the
Tranche A Term Loans denominated in Yen on the Restatement Effective Date (based
on an intended U.S. Dollar equivalent thereof equal to $350,000,000).
(b) All computations of interest, RL Commitment Commission and other
Fees hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such interest, RL Commitment Commission or Fees are
payable.
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13.08 Governing Law; Submission to Jurisdiction; Venue. (a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN CERTAIN
OF THE SUBSIDIARIES GUARANTIES AND SECURITY DOCUMENTS, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, in each case located within the City of
New York and, by execution and delivery of this Agreement, each Credit Agreement
Party hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each
Credit Agreement Party hereby irrevocably designates, appoints and empowers
Corporation Service Company, with offices on the Restatement Effective Date at
00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, as its designee, appointee and agent to
receive, accept and acknowledge for and on its behalf, and in respect of its
property, service of any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If for any reason such
designee, appointee and agent shall cease to be available to act as such, each
Credit Agreement Party agrees to designate a new designee, appointee and agent
in New York City on the terms and for the purposes of this provision reasonably
satisfactory to the Administrative Agent under this Agreement. Each Credit
Agreement Party hereby further irrevocably waives any claim that any such courts
lack jurisdiction over such Credit Agreement Party, and agrees not to plead or
claim, in any legal action or proceeding with respect to this Agreement or any
other Credit Document brought in any of the aforesaid courts, that any such
court lacks jurisdiction over such Credit Agreement Party. Each Credit Agreement
Party further irrevocably consents to the service of process in any such action
or proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such Credit Agreement Party, as the case may be, at its
address for notices pursuant to Section 13.03, such service to become effective
30 days after such mailing. Each Credit Agreement Party hereby irrevocably
waives any objection to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or proceeding commenced hereunder
or under any other Credit Document that service of process was in any way
invalid or ineffective. Nothing herein shall affect the right of any Agent, the
Collateral Agent, any Lender or the holder of any Note to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against any Credit Agreement Party in any other jurisdiction.
(b) EACH CREDIT AGREEMENT PARTY HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with each Credit
Agreement Party and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the date
(the "Restatement Effective Date") on which (i) each Credit Agreement Party,
each Original Lender, each Lender with a Tranche A Term Loan Commitment, each
Lender with a Tranche B Term Loan Commitment, each Agent, the Collateral Agent
each Joint Lead Arranger shall have signed a counterpart
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hereof (whether the same or different counterparts) and shall have delivered the
same (including by way of facsimile transmission) to the Administrative Agent
and (ii) the other conditions contained in Sections 5 and 6 are met to the
satisfaction of the Administrative Agent and the Required Lenders. Unless the
Administrative Agent has received actual notice from any Lender that the
conditions contained in Sections 5 and 6 have not been met to its satisfaction,
upon the satisfaction of the condition described in clause (i) of the
immediately preceding sentence and upon the Administrative Agent's good faith
determination that the conditions described in clause (ii) of the immediately
preceding sentence have been met, then the Restatement Effective Date shall be
deemed to have occurred, regardless of any subsequent determination that one or
more of the conditions thereto had not been met (although the occurrence of the
Restatement Effective Date shall not release any Credit Party from any liability
for failure to satisfy one or more of the applicable conditions contained in
Section 5 or 6). The Administrative Agent will give each Credit Agreement Party
and each Lender prompt written notice of the occurrence of the Restatement
Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected thereby in the case of the following clause
(i)), (i) extend the final scheduled maturity of any Loan or Note or extend the
stated maturity of any Letter of Credit or Bank Guaranty beyond the Revolving
Loan Maturity Date or extend the duration of any Interest Period beyond six
months, or reduce the rate or extend the time of payment of interest (other than
as a result of any waiver of the applicability of any post-default increase in
interest rates) or Fees thereon, or reduce the principal amount thereof (except
to the extent paid in cash) (it being understood that any amendment or
modification to the financial definitions in this Agreement shall not constitute
a reduction in any rate of interest or fees for purposes of this clause (i),
notwithstanding the fact that such amendment or modification actually results in
such a reduction), (ii) release all or substantially all of the Collateral
(except as expressly provided in the Credit Documents) under all the Security
Documents, (iii) amend, modify or waive any provision of this Section 13.12
(except for technical amendments with respect to additional extensions of credit
pursuant to this Agreement which afford the protections to such additional
extensions of credit of the type provided to the Tranche A Term Loans, Tranche B
Term Loans and the Revolving Loan Commitments on the Restatement Effective
Date), (iv) reduce the percentage specified in the definition of Required
Lenders (it being understood that, with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Restatement Effective Date), (v) consent to the assignment or transfer by any
Credit Agreement Party of any of its rights and obligations under this
Agreement, or (vi) release any Credit Agreement Party Guaranty or waive
compliance by any Credit Agreement Party with its payment obligations under its
Credit Agreement Party Guaranty; provided further, that no such change, waiver,
discharge or termination shall (p) amend, modify or waive any condition
precedent set forth in Section 6A or 6B with respect to the making of Revolving
Loans, Swingline Loans or the issuance of Letters of Credit or Bank Guaranties,
without the written consent of the Majority Lenders holding Revolving Loan
Commitments, (q) increase the Commitments of any Lender over the amount thereof
then in effect without the consent of such Lender (it being understood that
waivers or modifications of conditions precedent, covenants, Defaults or Events
of Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Lender, and that an increase in
the available portion of any Commitment of any
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Lender shall not constitute an increase in the Commitment of such Lender), (r)
without the consent of each Issuing Lender affected thereby, amend, modify or
waive any provision of Section 2A or alter its rights or obligations with
respect to Letters of Credit, (s) without the consent of each Bank Guaranty
Issuer affected thereby, amend, modify or waive any provision of Section 2B or
alter its rights or obligations with respect to Bank Guaranties, (t) without the
consent of the Swingline Lender, alter its rights or obligations with respect to
Swingline Loans, (u) without the consent of each Agent affected thereby, amend,
modify or waive any provision of Section 12 as same applies to such Agent or any
other provision as same relates to the rights or obligations of such Agent, (v)
without the consent of the Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent, (w)
except in cases where additional extensions of term loans and/or revolving loans
are being afforded substantially the same treatment afforded to the Term Loans
and Revolving Loans pursuant to this Agreement as in effect on the Restatement
Effective Date, without the consent of the Majority Lenders of each Tranche
which is being allocated a lesser prepayment, repayment or commitment reduction
as a result of the actions described below, alter the required application of
any prepayments or repayments (or commitment reduction), as between the various
Tranches, pursuant to Section 4.01 or 4.02 (excluding Section 4.02(b)) (although
the Required Lenders may waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the application, as amongst the
various Tranches, of any such prepayment, repayment or commitment reduction
which is still required to be made is not altered), (x) without the consent of
the Majority Lenders of the respective Tranche affected thereby, amend the
definition of Majority Lenders (it being understood that, with the consent of
the Required Lenders, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Majority Lenders on substantially
the same basis as the extensions of Loans and Commitments are included on the
Restatement Effective Date), (y) except in cases where additional extensions of
term loans and/or revolving loans are being afforded substantially the same
treatment afforded to the Term Loans and Revolving Loans pursuant to Section
1.14 (as in effect on the Restatement Effective Date) and except for technical
amendments which are consistent with the intent of the provisions of such
Section and do not adversely affect the protections afforded to the Lenders
pursuant to said Section, without the consent of the Majority Lenders of each
Tranche adversely affected thereby, amend, modify or waive any provisions of
Section 1.14 or (z) without the consent of the Supermajority Lenders of the
respective affected Tranche, reduce the amount of or extend the date of, any
Scheduled Repayment under such Tranche (except that, if additional Loans are
made pursuant to a given Tranche, the Scheduled Repayments of such Tranche may
be increased on a proportionate basis without the consent otherwise required by
this clause (z)), or amend the definition of Supermajority Lenders (it being
understood that, with the consent of the Required Lenders, additional extensions
of credit pursuant to this Agreement may be included in the determination of the
Supermajority Lenders on substantially the same basis as the extensions of Loans
and Commitments are included on the Restatement Effective Date). Notwithstanding
anything to the contrary contained above in this Section 13.12(a), the
Administrative Agent and/or the Collateral Agent shall be permitted (x) to enter
into such amendments and/or modifications to the Foreign Subsidiaries Guaranty
and the Foreign Security Documents which may be required in the discretion of
the Administrative Agent and/or the Collateral Agent which are of a technical
nature and/or are, in the judgment of the Collateral Agent, required by
applicable law, in the interests of the Secured Creditors or (in the case of
Foreign Security Documents) necessary or desirable to preserve, maintain,
perfect and/or protect the security interests purported to the granted by the
respective Foreign Security Documents and (y) to enter into such releases of
Collateral pledged pursuant to Foreign Security Documents as may be reasonably
requested by the U.S. Borrower for legitimate operational reasons (e.g., the
transfer of Property from one jurisdiction to another), so long as the Fair
Market Value of all Collateral so subject to release at any time does not exceed
$5,000,000.
(b) If, in connection with any proposed change, waiver, discharge or
termination of or to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or
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more of such other Lenders whose consent is required is not obtained, then
Holdings shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clause (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders (or,
at the option of Holdings if the respective Lender's consent is required with
respect to less than all Tranches (or related Commitments), to replace only the
respective Tranche or Tranches of Commitments (and related Obligations) and/or
Loans of the respective non-consenting Lender which gave rise to the need to
obtain such Lender's individual consent) with one or more Replacement Lenders
pursuant to Section 1.13 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed change, waiver, discharge or
termination or (B) terminate each Tranche of Revolving Loan Commitment and/or
Incremental Term Loan Commitment of such non-consenting Lender (if such Lender's
consent is required as a result of such Tranche of its Revolving Loan Commitment
and/or Incremental Term Loan Commitment), and/or repay outstanding Obligations
under each Tranche of such Lender which gave rise to the need to obtain such
Lender's consent, in accordance with Sections 3.02(b) and/or 4.01, provided
that, unless the Commitments which are terminated and Loans and other
Obligations which are repaid pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Commitments and/or outstanding Loans and of existing Lenders
(who in each case must specifically consent thereto), then in the case of any
action pursuant to preceding clause (B), the Required Lenders (determined both
(x) after giving effect to the proposed action and (y) as if the Commitments,
Loans and related Obligations being terminated and/or repaid (and not replaced)
were not outstanding) shall specifically consent thereto, provided further, that
Holdings shall not have the right to replace a Lender, terminate its Commitment
or repay its Loans or other Obligations solely as a result of the exercise of
such Lender's rights (and the withholding of any required consent by such
Lender) pursuant to the second proviso to Section 13.12(a).
(c) Notwithstanding anything to the contrary contained in clause (a)
above of this Section 13.12, the respective Borrower, the Administrative Agent
and each Incremental Loan Lender may, in accordance with the provisions of
Sections 1.15, 1.16 and 1.17, enter into an Incremental Loan Commitment
Agreement, provided that after the execution and delivery by the respective
Borrower, the Administrative Agent and each such Incremental Loan Lender of such
Incremental Loan Commitment Agreement, such Incremental Loan Commitment
Agreement may thereafter only be modified in accordance with the requirements of
clause (a) above of this Section 13.12.
(d) For purposes of Section 13.12(a), (i) a Voting Participant shall
be deemed to be a "Lender" holding the portion of the Dollar Facility Revolving
Loan Commitment (and related Obligations), Multicurrency Facility Revolving Loan
Commitment (and related Obligations), Incremental Term Loan Commitment and/or
outstanding Term Loans of a given Tranche of any Lender (other than a Defaulting
Lender) in which it purchased a participation (and to have the voting rights of
such Lender for the respective such Tranche) and (ii) a Lender (other than a
Defaulting Lender) which has sold a participation in a portion of its Dollar
Facility Revolving Loan Commitment (and related Obligations), Multicurrency
Facility Revolving Loan Commitment (and related Obligations), Incremental Term
Loan Commitment and/or outstanding Term Loans of any Tranche to a Voting
Participant shall be deemed to hold a Dollar Facility Revolving Loan Commitment
(and related Obligations), Multicurrency Facility Revolving Loan Commitment (and
related Obligations), Incremental Term Loan Commitment or outstanding Term Loans
of the respective Tranche, as the case may be, in each case, as reduced by the
amount of the participations therein sold to a Voting Participant.
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2A.06, 2B.06, 4.04, 12.07, 13.01 and 13.17,
shall survive the execution and delivery of this Agreement and the making and
repayment of the Loans and the other Obligations.
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13.14 Domicile of Loans and Commitments. Each Lender may transfer and
carry its Loans and/or Commitments at, to or for the account of any branch
office, subsidiary or affiliate of such Lender. Notwithstanding anything to the
contrary contained herein, to the extent that a transfer of Loans pursuant to
this Section 13.14 would, at the time of such transfer, result in increased
costs under Section 1.10, 1.11, 2A.06, 2B.06 or 4.04 from those being charged by
the respective Lender prior to such transfer, then the Borrowers shall not be
obligated to pay such increased costs (although the Borrowers shall be obligated
to pay any other increased costs of the type described above resulting from
changes after the date of the respective transfer).
13.15 Confidentiality. (a) Each of the Lenders agrees that it will use
its reasonable efforts not to disclose without the prior consent of any Credit
Agreement Party (other than to its directors, employees, auditors, counsel or
other professional advisors, to affiliates or to another Lender if the Lender or
such Lender's holding or parent company in its sole discretion determines that
any such party should have access to such information) any information with
respect to Holdings or any of its Subsidiaries which is now or in the future
furnished pursuant to this Agreement; provided that any Lender may disclose any
such information (a) as has become generally available to the public, (b) as may
be required or appropriate (x) in any report, statement or testimony submitted
to any municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors or (y) in connection with any request
or requirement of any such regulatory body, (c) as may be required or
appropriate in response to any summons or subpoena or in connection with any
litigation, (d) to comply with any law, order, regulation or ruling applicable
to such Lender, (e) to the extent reasonably required in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or the enforcement of rights hereunder and (f) to any creditor or
any prospective transferee or participant in connection with any contemplated
transfer or participation of any of the Obligations or any interest therein by
such Lender; provided that such creditor or prospective transferee or
participant agrees to be bound by this Section 13.15 to the same extent as such
Lender.
(b) Each Credit Agreement Party hereby acknowledges and agrees that
each Lender may share with any of its affiliates or its investment advisors any
information related to Holdings or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness of
such entities), provided that such Persons shall be subject to the provisions of
this Section 13.15 to the same extent as such Lender and shall only use such
information in connection with matters relating to this Agreement.
(c) Each Credit Agreement Party hereby represents and acknowledges
that, to the best of its knowledge, neither any Agent nor any Lender, nor any
employees or agents of, or other persons affiliated with, any Agent or any
Lender, have directly or indirectly made or provided any statement (oral or
written) to such Credit Agreement Party or to any of its employees or agents, or
other persons affiliated with or related to such Credit Agreement Party (or, so
far as such Credit Agreement Party is aware, to any other person), as to the
potential tax consequences of the Transaction.
(d) Neither the Agents nor the Lenders provide accounting, tax or
legal advice. Notwithstanding any express or implied claims of exclusivity or
proprietary rights, each Credit Agreement Party, each Agent and each Lender
hereby agree and acknowledge that each Credit Agreement Party, each Agent and
each Lender (and each of their employees, representatives or other agents) are
authorized to disclose to any and all persons, beginning immediately upon
commencement of their discussions and without limitation of any kind, the tax
treatment and tax structure of the Transaction, and all materials of any kind
(including opinions or other tax analyses) that are provided to any Credit
Agreement Party, any Agent or any Lender relating to such tax treatment and tax
structure. In this regard,
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each Credit Agreement Party, each Agent and each Lender acknowledge and agree
that the disclosure of the tax treatment and tax structure of the Transaction is
not limited in any way by an express or implied understanding or agreement, oral
or written (whether or not such understanding or agreement is legally binding).
For purposes of this authorization, "tax" means United States Federal income
tax, "tax treatment" means the purported or claimed Federal income tax treatment
of the transaction, and "tax structure" means any fact that may be relevant to
understanding the purported or claimed Federal income tax treatment of the
transaction. This paragraph is intended to reflect the understanding of each
Credit Agreement Party, each Agent and each Lender that the Transaction is not a
"confidential transaction" as that phrase is used in Treasury Regulation Section
1.6011-4(b)(3)(i), and shall be interpreted in a manner consistent therewith.
Nothing herein is intended to imply that any of each Credit Agreement Party,
each Agent and each Lender made or provided a statement, oral or written, to, or
for the benefit of, any of each other as to any potential tax consequences that
are related to, or may result from, the Transaction.
13.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.17 Register. The Borrowers hereby designate the Administrative
Agent, and the Administrative Agent agrees, to serve as the Borrowers' agent,
solely for purposes of this Section 13.17, to maintain a register at one of its
offices in New York, New York (the "Register") on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrowers' obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and/or Loans prior to such recordation all amounts
owing to the transferor with respect to such Commitments and/or Loans shall
remain owing to the transferor. The registration of an assignment or transfer of
all or part of any Commitments and/or Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a
Commitment and/or Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Note evidencing such Commitment and/or
Loan, and thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Lender and/or the new Lender. The
registration of any provision of Incremental Loan Commitments pursuant to
Sections 1.15, 1.16 and 1.17 shall be recorded by the Administrative Agent on
the Register only upon the acceptance of the Administrative Agent of a properly
executed and delivered Incremental Loan Commitment Agreement. Coincident with
the delivery of such Incremental Loan Commitment Agreement for acceptance and
registration of the provision of an Incremental Loan Commitment, or as soon
thereafter as practicable, to the extent requested by such Incremental Loan
Lenders, Incremental Term Notes, U.S. Borrower Multicurrency Facility Revolving
Notes, Bermuda Borrower Multicurrency Facility Revolving Notes, U.S. Borrower
Dollar Facility Revolving Notes and/or Bermuda Borrower Dollar Facility
Revolving Notes, as the case may be, shall be issued, at the respective
Borrower's expense, to such Incremental Loan Lenders, to be in conformity with
Section 1.05 (with appropriate modification) to the extent needed to reflect the
Incremental Loan Commitments and outstanding Incremental Term Loans and
Revolving Loans made by such Incremental Loan Lender. The Borrowers agree to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature that may
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be imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 13.17.
13.18 English Language. This Agreement and all other Credit Documents
shall be in the English language, except as required by applicable local law (in
which event certified English translations thereof shall, upon the request of
the Administrative Agent, be provided by Holdings to the Administrative Agent).
All documents, certificates, reports or notices to be delivered or
communications to be given or made by any party hereto pursuant to the terms of
this Agreement or any other Credit Document shall be in the English language or,
if originally written in another language, shall, upon request of the
Administrative Agent, be accompanied by an accurate English translation upon
which the other parties hereto shall have the right to rely for all purposes of
this Agreement and the other Credit Documents.
13.19 Post-Closing Actions. Notwithstanding anything to the contrary
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
1. Real Property. The actions relating to the Mortgages and Real
Property of Holdings and its Subsidiaries described on Part A of Schedule
XIV shall be completed in accordance with Part A of said Schedule XIV.
2. Actions by Various Foreign Subsidiaries Relating to Security
Documents. Holdings and its Subsidiaries shall be required to take the
actions specified in Part B of Schedule XIV as promptly as practicable, and
in any event within the time periods set forth in Part B of said Schedule
XIV. The provisions of Part B of said Schedule XIV shall be deemed
incorporated by reference herein as fully as if set forth herein in its
entirety.
3. Miscellaneous Actions By Various Subsidiaries of Holdings. Holdings
and its Subsidiaries shall be required to take the actions specified in
Part C of Schedule XIV as promptly as practicable, and in any event within
the time periods set forth in Part C of said Schedule XIV. The provisions
of Part C of said Schedule XIV shall be deemed incorporated by reference
herein as fully as if set forth herein in its entirety.
All provisions of this Credit Agreement and the other Credit Documents
(including, without limitation, all conditions precedent, representations,
warranties, covenants, events of default and other agreements herein and
therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the
time periods required above, rather than as otherwise provided in the Credit
Documents); provided that (x) to the extent any representation and warranty
would not be true because the foregoing actions were not taken on the
Restatement Effective Date the respective representation and warranty shall be
required to be true and correct in all material respects at the time the
respective action is taken (or was required to be taken) in accordance with the
foregoing provisions of this Section 13.19 and (y) all representations and
warranties relating to the Security Documents shall be required to be true
immediately after the actions required to be taken by this Section 13.19 have
been taken (or were required to be taken). The acceptance of the benefits of
each Credit Event shall constitute a covenant and agreement by each Credit
Agreement Party to each of the Lenders that the actions required pursuant to
this Section 13.19 will be, or have been, taken within the relevant time periods
referred to in this Section 13.19 and that, at such time, all representations
and warranties contained in this Credit Agreement and the other Credit Documents
shall then be true and correct without any modification pursuant to this Section
13.19. The parties hereto acknowledge and agree that the failure to take any of
the actions required above, within the relevant time periods required above,
shall give rise to an immediate Event of Default pursuant to this Agreement.
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13.20 Special Provisions Regarding Pledges of Equity Interests in, and
Promissory Notes Owed by, Persons Not Organized in Qualified Jurisdictions. The
parties hereto acknowledge and agree that the provisions of the various Security
Documents executed and delivered by the Credit Parties require that, among other
things, all promissory notes executed by, and Equity Interests in, various
Persons owned by the respective Credit Party (to the extent not constituting
Excluded Collateral) be pledged, and delivered for pledge, pursuant to the
Security Documents. The parties hereto further acknowledge and agree that each
Credit Party shall be required to take all actions under the laws of the
jurisdiction in which such Credit Party is organized to create and perfect all
security interests granted pursuant to the various Security Documents and to
take all actions under the laws of each Qualified Jurisdiction to perfect the
security interests in the Equity Interests of, and promissory notes issued by,
any Person organized under the laws of said jurisdictions (in each case, to the
extent said Equity Interests or promissory notes are owned by any Credit Party
and do not constitute Excluded Collateral). Except as provided in the
immediately preceding sentence, to the extent any Security Document requires or
provides for the pledge of promissory notes issued by, or Equity Interests in,
any Person organized under the laws of a jurisdiction other than those specified
in the immediately preceding sentence, it is acknowledged that, as of the
Restatement Effective Date, no actions have been required to be taken to
perfect, under local law of the jurisdiction of the Person who issued the
respective promissory notes or whose Equity Interests are pledged, under the
Security Documents. The Credit Agreement Parties hereby agree that, following
any request by the Administrative Agent or Required Lenders to do so, each
Credit Agreement Party shall, and shall cause its Subsidiaries to, take such
actions (including, without limitation, the execution of Additional Security
Documents, the making of any filings and the delivery of appropriate legal
opinions) under the local law of any jurisdiction with respect to which such
actions have not already been taken as are determined by the Administrative
Agent or Required Lenders to be necessary or desirable in order to fully
perfect, preserve or protect the security interests granted pursuant to the
various Security Documents under the laws of such jurisdictions. If requested to
do so pursuant to this Section 13.20, all such actions shall be taken in
accordance with the provisions of this Section 13.20 and Section 8.11 and within
the time periods set forth therein. All conditions and representations contained
in this Agreement and the other Credit Documents shall be deemed modified to the
extent necessary to effect the foregoing and so that same are not violated by
reason of the failure to take actions under local law (but only with respect to
Equity Interests in, and promissory notes issued by, Persons organized under
laws of jurisdictions other than Qualified Jurisdictions) not required to be
taken in accordance with the provisions of this Section 13.20, provided that to
the extent any representation or warranty would not be true because the
foregoing actions were not taken, the respective representation of warranties
shall be required to be true and correct in all material respects at such time
as the respective action is required to be taken in accordance with the
foregoing provisions of this Section 13.20 or pursuant to Section 8.11.
13.21 Powers of Attorney; etc. Each of Holdings and the U.S. Borrower
is hereby authorized by, and on behalf of, the Bermuda Borrower to give Notices
of Borrowing, Notices of Conversion and other notices and directions in
connection with the extensions of credit and repayments thereof to be made
pursuant to this Agreement to the Bermuda Borrower (including without limitation
notices as to the application of proceeds of such extensions of credit). The
Bermuda Borrower hereby grants to Holdings and the U.S. Borrower an irrevocable
power-of attorney, in the Bermuda Borrower's name, to take the actions
contemplated above in this Section 13.21 and in the last sentence of Section
1.13 hereof. Furthermore, the Bermuda Borrower agrees that the Agents and the
Lenders may at any time rely upon any notices, instructions or other information
furnished by Holdings or the U.S. Borrower.
13.22 Waiver of Sovereign Immunity. Each of the Credit Agreement
Parties, in respect of itself, its Subsidiaries, its process agents, and its
properties and revenues, hereby irrevocably agrees that, to the extent that such
Credit Agreement Party, its Subsidiaries or any of its properties has or may
hereafter acquire any right of immunity, whether characterized as sovereign
immunity or otherwise, from any legal proceedings, whether in the United States,
any other Qualified Jurisdiction or elsewhere, to
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enforce or collect upon the Loans or any Credit Document or any other liability
or obligation of such Credit Agreement Party or any of its Subsidiaries related
to or arising from the transactions contemplated by any of the Credit Documents,
including, without limitation, immunity from service of process, immunity from
jurisdiction or judgment of any court or tribunal, immunity from execution of a
judgment, and immunity of any of its property from attachment prior to any entry
of judgment, or from attachment in aid of execution upon a judgment, such Credit
Agreement Party, for itself and on behalf of its Subsidiaries, hereby expressly
waives, to the fullest extent permissible under applicable law, any such
immunity, and agrees not to assert any such right or claim in any such
proceeding, whether in the United States, any other Qualified Jurisdiction, or
elsewhere. Without limiting the generality of the foregoing, each Credit
Agreement Party further agrees that the waivers set forth in this Section 13.22
shall have the fullest extent permitted under the Foreign Sovereign Immunities
Act of 1976 of the United States and are intended to be irrevocable for purposes
of such Act.
13.23 Judgment Currency. (a) The Credit Parties' obligations hereunder
and under the other Credit Documents to make payments in the respective
Applicable Currency (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent, the Collateral Agent or the respective Lender of the full
amount of the Obligation Currency expressed to be payable to the Administrative
Agent, the Collateral Agent or such Lender under this Agreement or the other
Credit Documents. If for the purpose of obtaining or enforcing judgment against
any Credit Party in any court or in any jurisdiction, it becomes necessary to
convert into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the Euro Equivalent
or the Dollar Equivalent thereof, as the case may be, and, in the case of other
currencies, the rate of exchange (as quoted by the Administrative Agent or if
the Administrative Agent does not quote a rate of exchange on such currency, by
a known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the day on which the judgment is given (such day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, each Borrower covenants and agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate or exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the Dollar Equivalent or the Euro
Equivalent or any other rate of exchange for this Section, such amounts shall
include any premium and costs payable in connection with the purchase of the
Obligation Currency.
13.24 Special Acknowledgments. By their execution and delivery hereof,
the Lenders party hereto hereby acknowledge (i) that the guarantee of each
Bermuda Partnership Partner made pursuant to the U.S. Subsidiaries Guaranty is
limited to the Obligations of the U.S. Borrower under the Credit Documents and
the obligations of the U.S. Borrower and its Domestic Subsidiaries under
Interest Rate Protection Agreements and Other Hedging Agreements with Lenders
and/or their affiliates, all on the terms as more specifically provided therein,
(ii) the Bermuda Partnership has not entered into any Credit Documents and, as
such, is not a Credit
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Party (but is otherwise subject to the provisions of Section 9.01(c)) and (iii)
the obligations secured pursuant to the Security Documents are not secured by
any Excluded Collateral.
13.25 Special Provisions Relating to Amendment and Restatement. (a)
The Required Lenders under, and as defined in, the Original Credit Agreement
hereby consent to the "refinancing indebtedness" under this Agreement being
treated as "indebtedness pursuant to the Credit Agreement" for purposes of the
U.S. Pledge Agreement and the Intercompany Subordination Agreement. The U.S.
Borrower, for its part, hereby gives notice that the refinancing indebtedness
under this Agreement shall be treated as "issued under the Credit Agreement" for
purposes of the U.S. Pledge Agreement and the Intercompany Subordination
Agreement.
(b) The parties hereto acknowledge and agree that:
(i) Holdings and its Subsidiaries (as defined in the Original Credit
Agreement) executed and delivered the Security Documents (as defined in the
Original Credit Agreement) in favor of the Collateral Agent on behalf of
the Secured Creditors (as defined in the Original Credit Agreement) to
secure the payment and performance of, inter alia, the Obligations (as
defined in the respective such Security Documents);
(ii) the security interests granted to the Collateral Agent on behalf
of the Secured Creditors pursuant to the Security Documents (as defined in
the Original Credit Agreement) shall remain outstanding and in full force
and effect, without interruption or impairment of any kind, in accordance
with the terms of such Security Documents and shall continue to secure the
Obligations (as defined in such Security Documents);
(iii) the Obligations represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Original Credit Agreement) arising in
connection with the Original Credit Agreement and other Credit Documents
(as defined in the Original Credit Agreement) executed in connection
therewith; and
(iv) the provisions of the Original Credit Agreement, to the extent
restated, renewed, extended, consolidated, amended and modified hereby, are
hereby superseded and replaced by the provisions hereof; (b) the Notes
restate, renew, extend, consolidate, amend, modify, replace, are
substituted for and supersede, but do not extinguish, the Obligations (as
defined in the Original Credit Agreement) evidenced by the Notes (as
defined in the Original Credit Agreement) issued pursuant to the Original
Credit Agreement; and (c) the execution and delivery of this Agreement, and
the performance by Credit Agreement Parties of their respective obligations
hereunder shall not constitute a novation.
13.26 USA Patriot Act. Each Lender subject to the USA PATRIOT ACT
(Title 111 of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act")
hereby notifies each Credit Agreement Party that pursuant to the requirements of
the Act, it is required to obtain, verify and record information that identifies
the Credit Agreement Parties and the other Credit Parties and other information
that will allow such Lender to identify the Credit Agreement Parties and the
other Credit Parties in accordance with the Act.
SECTION 14. Credit Agreement Party Guaranty.
14.01 The Guaranty. In order to induce the Lenders to enter into this
Agreement and to extend credit hereunder and to induce the Lenders or any of
their respective Affiliates to enter into Interest Rate Protection Agreements or
Other Hedging Agreements, and in recognition of the direct
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benefits to be received by each Credit Agreement Party from the proceeds of the
Loans, the issuance of the Letters of Credit and Bank Guaranties and the
entering into of Interest Rate Protection Agreements or Other Hedging
Agreements, each Credit Agreement Party hereby agrees with the Lenders as
follows: each Credit Agreement Party hereby unconditionally and irrevocably
guarantees, as primary obligor and not merely as surety the full and prompt
payment when due, whether upon maturity, acceleration or otherwise, of any and
all of its Relevant Guaranteed Obligations to the Guaranteed Creditors. If any
or all of the Relevant Guaranteed Obligations of any Credit Agreement Party to
the Guaranteed Creditors becomes due and payable hereunder, each Credit
Agreement Party unconditionally promises to pay such indebtedness to the
Guaranteed Creditors, or order, on demand, together with any and all expenses
which may be incurred by the Guaranteed Creditors in collecting any of the
Relevant Guaranteed Obligations. This Credit Agreement Party Guaranty is a
guaranty of payment and not of collection. This Credit Agreement Party Guaranty
is a continuing one and all liabilities to which it applies or may apply under
the terms hereof shall be conclusively presumed to have been created in reliance
hereon. If claim is ever made upon any Guaranteed Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Relevant Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including any Relevant Guaranteed Party), then and
in such event the respective Credit Agreement Party agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon such
Credit Agreement Party, notwithstanding any revocation of this Credit Agreement
Party Guaranty or any other instrument evidencing any liability of any Relevant
Guaranteed Party, and each Credit Agreement Party shall be and remain liable to
the aforesaid payees hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such payee.
14.02 Bankruptcy. Additionally, each Credit Agreement Party
unconditionally and irrevocably guarantees the payment of any and all of the
Relevant Guaranteed Obligations to the Guaranteed Creditors whether or not due
or payable by any Relevant Guaranteed Party upon the occurrence of any of the
events specified in Section 10.05, and unconditionally promises to pay such
indebtedness to the Guaranteed Creditors, or order, on demand.
14.03 Nature of Liability. The liability of each Credit Agreement
Party hereunder is exclusive and independent of any security for or other
guaranty of the Relevant Guaranteed Obligations whether executed by such Credit
Agreement Party, any other guarantor or by any other party, and the liability of
each Credit Agreement Party hereunder is not affected or impaired by (a) any
direction as to application of payment by any Relevant Guaranteed Party or any
other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Relevant
Guaranteed Obligations, or (c) any payment on or in reduction of any such other
guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by any Relevant Guaranteed Party, or (e) any
payment made to the Guaranteed Creditors on the Relevant Guaranteed Obligations
which any such Guaranteed Creditor repays to any Relevant Guaranteed Party
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Credit Agreement Party
waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding, or (f) any action or inaction of the type
described in Section 14.05, or (g) the lack of validity or enforceability of any
Credit Document or any other instrument relating thereto.
14.04 Independent Obligation. No invalidity, irregularity or
unenforceability of all or any part of the Relevant Guaranteed Obligations or of
any security therefor shall affect, impair or be a defense to this Credit
Agreement Party Guaranty, and this Credit Agreement Party Guaranty shall be
primary, absolute and unconditional notwithstanding the occurrence of any event
or the existence of any
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other circumstances which might constitute a legal or equitable discharge of, or
a defense available to, a surety or guarantor except indefeasible payment in
full in cash of the Relevant Guaranteed Obligations. The obligations of each
Credit Agreement Party hereunder are independent of the obligations of any
Relevant Guaranteed Party, any other guarantor or any other party and a separate
action or actions may be brought and prosecuted against any Credit Agreement
Party whether or not action is brought against any Relevant Guaranteed Party,
any other guarantor or any other party and whether or not any Relevant
Guaranteed Party, any other guarantor or any other party be joined in any such
action or actions. Each Credit Agreement Party waives, to the full extent
permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by any Relevant
Guaranteed Party or other circumstance that operates to toll any statute of
limitations as to such Relevant Guaranteed Party shall operate to toll the
statute of limitations as to the relevant Credit Agreement Party.
14.05 Authorization. Each Credit Agreement Party authorizes the
Guaranteed Creditors without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Relevant Guaranteed Obligations (including any increase or decrease in
the rate of interest thereon), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and this Credit
Agreement Party Guaranty shall apply to the Relevant Guaranteed Obligations
as so changed, extended, renewed, increased or altered;
(b) take and hold security for the payment of the Relevant Guaranteed
Obligations and sell, exchange, release, impair, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Relevant Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against any
Relevant Guaranteed Party or others or otherwise act or refrain from
acting;
(d) release or substitute any one or more endorsers, guarantors, any
Relevant Guaranteed Party or other obligors;
(e) settle or compromise any of the Relevant Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Relevant Guaranteed Party to their
respective creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of any Relevant Guaranteed Party to the Guaranteed
Creditors regardless of what liability or liabilities of such Relevant
Guaranteed Party remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement, any other Credit Document, any Interest Rate
Protection Agreement or Other Hedging Agreement or any of the instruments
or agreements referred to herein or therein, or otherwise amend, modify or
supplement this Agreement, any other Credit Document, any Interest
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Rate Protection Agreement or Other Hedging Agreement or any of such other
instruments or agreements; and/or
(h) take any other action that would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of,
or a defense available to, such Credit Agreement Party from its liabilities
under this Credit Agreement Party Guaranty.
14.06 Reliance. It is not necessary for the Guaranteed Creditors to
inquire into the capacity or powers of any Relevant Guaranteed Party or the
officers, directors, partners or agents acting or purporting to act on their
behalf, and any Relevant Guaranteed Obligations made or created in reliance upon
the professed exercise of such powers shall be guaranteed hereunder.
14.07 Subordination. Any of the indebtedness of any Relevant
Guaranteed Party now or hereafter owing to any Credit Agreement Party is hereby
subordinated to the Relevant Guaranteed Obligations of such Relevant Guaranteed
Party owing to the Guaranteed Creditors; and if the Administrative Agent so
requests at a time when an Event of Default exists, all such indebtedness of
such Relevant Guaranteed Party to such Credit Agreement Party shall be
collected, enforced and received by such Credit Agreement Party in trust for the
benefit of the Guaranteed Creditors and be paid over to the Administrative Agent
on behalf of the Guaranteed Creditors on account of the Relevant Guaranteed
Obligations of such Relevant Guaranteed Party to the Guaranteed Creditors, but
without affecting or impairing in any manner the liability of any Credit
Agreement Party under the other provisions of this Credit Agreement Party
Guaranty. Prior to the transfer by any Credit Agreement Party of any note or
negotiable instrument evidencing any of the indebtedness of any Relevant
Guaranteed Party to such Credit Agreement Party, such Credit Agreement Party
shall xxxx such note or negotiable instrument with a legend that the same is
subject to this subordination. Without limiting the generality of the foregoing,
each Credit Agreement Party hereby agrees with the Guaranteed Creditors that it
will not exercise any right of subrogation which it may at any time otherwise
have as a result of this Credit Agreement Party Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) until all Relevant
Guaranteed Obligations have been irrevocably paid in full in cash.
14.08 Waiver. (a) Each Credit Agreement Party waives any right (except
as shall be required by applicable statute and cannot be waived) to require any
Guaranteed Creditor to (i) proceed against any other Relevant Guaranteed Party,
any other guarantor or any other party, (ii) proceed against or exhaust any
security held from any Relevant Guaranteed Party, any other guarantor or any
other party or (iii) pursue any other remedy in any Guaranteed Creditor's power
whatsoever. Each Credit Agreement Party waives any defense based on or arising
out of any defense of any Relevant Guaranteed Party, any other guarantor or any
other party, other than indefeasible payment in full in cash of the Relevant
Guaranteed Obligations, based on or arising out of the disability of any
Relevant Guaranteed Party, any other guarantor or any other party, or the
unenforceability of the Relevant Guaranteed Obligations or any part thereof from
any cause, or the cessation from any cause of the liability of any Relevant
Guaranteed Party other than indefeasible payment in full in cash of the Relevant
Guaranteed Obligations. The Guaranteed Creditors may, at their election,
foreclose on any security held by the Administrative Agent, the Collateral Agent
or any other Guaranteed Creditor by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or exercise any other right or
remedy the Guaranteed Creditors may have against any Relevant Guaranteed Party
or any other party, or any security, without affecting or impairing in any way
the liability of any Credit Agreement Party hereunder except to the extent the
Relevant Guaranteed Obligations have been indefeasibly paid in full in cash.
Each Credit Agreement Party waives any defense arising out of any such election
by the Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of
such Credit Agreement Party against any Relevant Guaranteed Party or any other
party or any security.
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(b) Each Credit Agreement Party waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Credit Agreement Party Guaranty, and notices of the existence, creation
or incurring of new or additional Relevant Guaranteed Obligations. Each Credit
Agreement Party assumes all responsibility for being and keeping itself informed
of each Relevant Guaranteed Party's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Relevant
Guaranteed Obligations and the nature, scope and extent of the risks which such
Credit Agreement Party assumes and incurs hereunder, and agrees that the
Guaranteed Creditors shall have no duty to advise any Credit Agreement Party of
information known to them regarding such circumstances or risks.
(c) Until such time as the Relevant Guaranteed Obligations have been
paid in full in cash, each Credit Agreement Party hereby waives all rights of
subrogation which it may at any time otherwise have as a result of this Credit
Agreement Party Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code, or otherwise) to the claims of the Guaranteed Creditors against
any Relevant Guaranteed Party or any other guarantor of the Relevant Guaranteed
Obligations and all contractual, statutory or common law rights of
reimbursement, contribution or indemnity from any Relevant Guaranteed Party or
any other guarantor which it may at any time otherwise have as a result of this
Credit Agreement Party Guaranty.
(d) Each U.S. Credit Agreement Party hereby acknowledges and affirms
that it understands that to the extent the Relevant Guaranteed Obligations are
secured by Real Property located in California, such U.S. Credit Agreement Party
shall be liable for the full amount of the liability hereunder notwithstanding
the foreclosure on such Real Property by trustee sale or any other reason
impairing such U.S. Credit Agreement Party's or any Guaranteed Creditor's right
to proceed against any Relevant Guaranteed Party or any other guarantor of the
Relevant Guaranteed Obligations. In accordance with Section 2856 of the
California Code of Civil Procedure, each U.S. Credit Agreement Party hereby
waives:
(i) all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become
available to such U.S. Credit Agreement Party by reason of Sections 2787 to
2855, inclusive, 2899 and 3433 of the California Code of Civil Procedure;
(ii) all rights and defenses that such U.S. Credit Agreement Party may
have because the Relevant Guaranteed Obligations are secured by Real
Property located in California, meaning, among other things, that: (A) the
Guaranteed Creditors may collect from such U.S. Credit Agreement Party
without first foreclosing on any real or personal property collateral
pledged by any Credit Party, and (B) if the Guaranteed Creditors foreclose
on any Real Property collateral pledged by any Credit Party, (1) the amount
of the Relevant Guaranteed Obligations may be reduced only by the price for
which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and (2) the Guaranteed
Creditors may collect from such U.S. Credit Agreement Party even if the
Guaranteed Creditors, by foreclosing on the Real Property collateral, have
destroyed any right such U.S. Credit Agreement Party may have to collect
from any Relevant Guaranteed Party, it being understood that this is an
unconditional and irrevocable waiver of any rights and defenses such U.S.
Credit Agreement Party may have because the Relevant Guaranteed Obligations
are secured by Real Property (including, without limitation, any rights or
defenses based upon Section 580a, 580d or 726 of the California Code of
Civil Procedure); and
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(iii) all rights and defenses arising out of an election of remedies
by the Guaranteed Creditors, even though that election of remedies, such as
a nonjudicial foreclosure with respect to security for the Relevant
Guaranteed Obligations, has destroyed such U.S. Credit Agreement Party's
rights of subrogation and reimbursement against any Relevant Guaranteed
Party by the operation of Section 580d of the California Code of Civil
Procedure or otherwise.
(e) Each Credit Agreement Party warrants and agrees that each of the
waivers set forth above is made with full knowledge of its significance and
consequences and that if any of such waivers are determined to be contrary to
any applicable law of public policy, such waivers shall be effective only to the
maximum extent permitted by law.
14.09 PaymentsAll payments made by a Credit Agreement Party pursuant
to this Section 14 shall be made in the respective Applicable Currency in which
the Relevant Guaranteed Obligations are then due and payable (giving effect, in
the circumstances contemplated by Section 1.14, to any conversion occurring
pursuant thereto). All payments made by a Credit Agreement Party pursuant to
this Section 14 will be made without setoff, counterclaim or other defense, and
shall be subject to the provisions of Sections 4.03, 4.04 and 13.23.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
One Xxxx Drive DHM HOLDING COMPANY, INC.
Xxxxxxxx Xxxxxxx, XX 00000
By
-------------------------------------
Name:
Title:
One Xxxx Drive XXXX HOLDING COMPANY, LLC
Xxxxxxxx Xxxxxxx, XX 00000
By
-------------------------------------
Name:
Title:
One Xxxx Drive XXXX FOOD COMPANY, INC.
Xxxxxxxx Xxxxxxx, XX 00000
By
-------------------------------------
Name:
Title:
One Xxxx Drive SOLVEST, LTD.
Xxxxxxxx Xxxxxxx, XX 00000
By
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH,
Individually and as Administrative Agent
By
-------------------------------------
Name:
Title:
By
-------------------------------------
Name:
Title:
