Exhibit 10.62
EXECUTION
VERSION
================================================================================
$125,000,000
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
among
THERMO ELECTRON CORPORATION,
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
ABN AMRO BANK N.V.,
as Syndication Agent,
FLEET NATIONAL BANK and
JPMORGAN CHASE BANK,
as Co-Documentation Agents,
and
BARCLAYS BANK PLC,
as Administrative Agent
Dated as of December 19, 2003
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BARCLAYS Capital, as Lead Arranger and Bookrunner
ABN AMRO BANK N.V., as Lead Arranger
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.....................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Definitional Provisions..................................................................16
1.3 Exchange Rates.................................................................................16
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................................................17
2.1 Commitments....................................................................................17
2.2 Procedure for Borrowing........................................................................17
2.3 Fees...........................................................................................18
2.4 Optional Termination or Reduction of Commitments...............................................19
2.5 Optional Prepayments...........................................................................19
2.6 Mandatory Prepayments..........................................................................19
2.7 Conversion and Continuation Options............................................................19
2.8 Limitations on Eurocurrency Tranches...........................................................20
2.9 Repayment of Loans; Extension of Termination Date..............................................20
2.10 Interest Rates and Payment Dates...............................................................20
2.11 Computation of Interest and Fees...............................................................21
2.12 Inability to Determine Interest Rate...........................................................21
2.13 Pro Rata Treatment and Payments................................................................22
2.14 Requirements of Law............................................................................24
2.15 Taxes..........................................................................................26
2.16 Indemnity......................................................................................28
2.17 Change of Lending Office.......................................................................28
2.18 Replacement of Lenders.........................................................................28
2.19 Judgment Currency..............................................................................29
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................................................29
3.1 Financial Condition............................................................................29
3.2 No Change......................................................................................30
3.3 Existence; Compliance with Law.................................................................30
3.4 Power; Authorization; Enforceable Obligations..................................................30
3.5 No Legal Bar...................................................................................31
3.6 Litigation.....................................................................................31
3.7 Ownership of Property; Liens...................................................................31
3.8 Taxes..........................................................................................31
3.9 Federal Regulations............................................................................31
3.10 ERISA..........................................................................................31
3.11 Investment Company Act; Other Regulations......................................................32
3.12 Use of Proceeds................................................................................32
3.13 Environmental Matters..........................................................................32
3.14 Accuracy of Information, etc...................................................................33
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SECTION 4. CONDITIONS PRECEDENT...........................................................................33
4.1 Conditions to Initial Loans....................................................................33
4.2 Conditions to Each Loan........................................................................34
SECTION 5. AFFIRMATIVE COVENANTS..........................................................................34
5.1 Financial Statements...........................................................................34
5.2 Certificates; Other Information................................................................35
5.3 Payment of Obligations.........................................................................36
5.4 Maintenance of Existence; Compliance...........................................................36
5.5 Maintenance of Property; Insurance.............................................................36
5.6 Inspection of Property; Books and Records; Discussions.........................................36
5.7 Notices........................................................................................36
5.8 Environmental Laws.............................................................................37
SECTION 6. NEGATIVE COVENANTS.............................................................................37
6.1 Financial Condition Covenants..................................................................37
6.2 Standby and Performance Letters of Credit......................................................38
6.3 Indebtedness of Subsidiaries...................................................................38
6.4 Liens..........................................................................................38
6.5 Fundamental Changes............................................................................40
6.6 Disposition of Property........................................................................40
6.7 Investments....................................................................................40
6.8 Transactions with Affiliates...................................................................42
6.9 Changes in Fiscal Periods......................................................................42
6.10 Lines of Business..............................................................................42
SECTION 7. EVENTS OF DEFAULT..............................................................................42
SECTION 8. THE AGENTS.....................................................................................44
8.1 Appointment....................................................................................44
8.2 Delegation of Duties...........................................................................45
8.3 Exculpatory Provisions.........................................................................45
8.4 Reliance by Administrative Agent...............................................................45
8.5 Notice of Default..............................................................................46
8.6 Non-Reliance on Agents and Other Lenders.......................................................46
8.7 Indemnification................................................................................46
8.8 Agent in Its Individual Capacity...............................................................47
8.9 Successor Administrative Agent.................................................................47
8.10 Syndication Agent and Co-Documentation Agents..................................................47
SECTION 9. MISCELLANEOUS..................................................................................47
9.1 Amendments and Waivers.........................................................................47
9.2 Notices........................................................................................48
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9.3 No Waiver; Cumulative Remedies.................................................................49
9.4 Survival of Representations and Warranties.....................................................49
9.5 Payment of Expenses and Taxes..................................................................49
9.6 Successors and Assigns; Participations and Assignments.........................................50
9.7 Adjustments; Set-off...........................................................................53
9.8 Counterparts...................................................................................54
9.9 Severability...................................................................................54
9.10 Integration....................................................................................54
9.11 Governing Law..................................................................................54
9.12 Submission To Jurisdiction; Waivers............................................................54
9.13 Acknowledgements...............................................................................55
9.14 Confidentiality................................................................................55
9.15 WAIVERS OF JURY TRIAL..........................................................................56
SCHEDULES:
1.1 Commitments
6.3(b) Existing Indebtedness
6.4(f) Existing Liens
6.6 Certain Dispositions
EXHIBITS:
A Form of Compliance Certificate
B Form of Closing Certificate
C Form of Assignment and Assumption
D Form of Legal Opinion of Xxxx Xxxxxxxxx
E Form of Exemption Certificate
F Form of Borrowing Notice
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AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT, dated as of December 19,
2003 (this "Agreement"), among THERMO ELECTRON CORPORATION, a Delaware
corporation (the "Borrower"), the several banks and other financial institutions
or entities from time to time parties to this Agreement (the "Lenders"), ABN
AMRO BANK N.V., as syndication agent (in such capacity, the "Syndication
Agent"), FLEET NATIONAL BANK and JPMORGAN CHASE BANK, as co-documentation agents
(in such capacity, the "Co-Documentation Agents"), and BARCLAYS BANK PLC, as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, ABN Amro Bank N.V., as Syndication
Agent, Fleet National Bank and JPMorgan Chase Bank, as Co-Documentation Agents,
and Barclays Bank PLC, as Administrative Agent, are parties to a 364-Day Credit
Agreement, dated as of December 20, 2002 (the "Existing Credit Agreement"); and
WHEREAS, the Borrower and the other parties hereto have agreed to enter
into this Agreement to amend and restate the Existing Credit Agreement;
NOW, THEREFORE, the parties hereto agree that, effective as of the Closing
Date, the Existing Credit Agreement shall be amended and restated to read in its
entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such
day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Barclays Bank PLC as its prime rate in
effect at its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by Barclays Bank PLC in
connection with extensions of credit to debtors). Any change in the ABR due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based upon
the ABR.
"Acquired Indebtedness": Indebtedness of any Person outstanding on the date
(i) such Person is acquired by the Borrower or any of its Subsidiaries or (ii)
such Indebtedness is assumed by the Borrower or any of its Subsidiaries in
connection with the acquisition of a business of such Person, in each case in a
transaction permitted by Section 6.7(f) or (h), provided that such Indebtedness
was not created in contemplation or in connection with such acquisition.
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"Administrative Agent": Barclays Bank PLC, as the lead arranger of the
Commitments and as the administrative agent for the Lenders under this Agreement
and the other Loan Documents, together with any of its successors.
"Affected Foreign Currency": as defined in Section 2.12(c).
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 15% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent, the
Co-Documentation Agents, and the Administrative Agent.
"Agreement": as defined in the preamble hereto.
"Agreement Currency": as defined in Section 2.19(b).
"Approved Fund": as defined in Section 9.6(b).
"Assignee": as defined in Section 9.6(b).
"Assignment and Assumption": an Assignment and Assumption, substantially in
the form of Exhibit C.
"Available Commitment": as to any Lender at any time, an amount equal to
the excess, if any, of (a) such Lender's Commitment then in effect over (b) the
sum of (i) such Lender's Dollar Loans and (ii) the Dollar Equivalent of such
Lender's Foreign Currency Loans.
"Benefitted Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal Reserve System of the United
States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a date on
which the Borrower requests the relevant Lenders to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close;
provided, that, when used in connection with a Eurocurrency Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
international business (including dealings in Dollar deposits) in the London
interbank market; provided, further, when used in connection with Eurocurrency
Loans denominated in Euros, the term "Business Day" shall also exclude any day
on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer System
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(TARGET) (or, if such clearing system ceases to be operative, such other
clearing system (if any) determined by the Administrative Agent to be a suitable
replacement) is not open for settlement of payment in Euros.
"Capital Lease Obligations": as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within three years from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or bank
deposits (including those maintained to facilitate payments, distributions and
collections) having maturities of eighteen months or less from the date of
acquisition issued by or with any Lender or by or with any commercial bank
organized under the laws of the United States or any state thereof or by any
financial institution organized in any foreign country recognized by the United
States, in each case rated at least A- by S&P, or A-3 by Xxxxx'x; (c) (i)
commercial paper of an issuer rated at least A-1 by S&P or P-1 by Xxxxx'x, , or
carrying an equivalent rating by a nationally recognized rating agency, if both
of the Rating Agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition or (ii)
commercial paper issued by Ford Motor Company, Ford Motor Credit Company,
DaimlerChrysler NA Holdings, Xxxx Deere Capital Corp., Xxxx Deere Credit Inc.,
Deere & Co., Xxxx Disney Company, General Motors Corp., or General Motors
Acceptance Corp., which at the time of purchase is rated at least A-2 by S&P, or
P-2 by Xxxxx'x, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 30
days, with respect to securities issued or fully guaranteed or insured by the
United States government; (e) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A- by S&P or A-3 by Xxxxx'x; (f) securities with maturities or
put features of six months or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank satisfying
the requirements of clause (b) of this definition; (g) asset-backed or
mortgaged-backed securities rated AAA by either S&P or Xxxxx'x, (h) corporate
bonds or notes with maturities of three years or less and rated at least BBB- by
S&P or Baa3 by Xxxxx'x, (i) money market mutual or similar funds that invest
primarily in assets satisfying the requirements of clauses (a) through (h) of
this definition; or (j) money market funds that (i)
4
comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company
Act of 1940, as amended, (ii) are rated AAA by S&P or Aaa by Xxxxx'x and (iii)
have portfolio assets of at least $5,000,000,000.
"Closing Date": the date on which the conditions precedent set forth in
Section 4.1 shall have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Co-Documentation Agents": as defined in the preamble hereto.
"Commitment": as to any Lender, the obligation of such Lender, if any, to
make Loans in an aggregate Dollar and Dollar Equivalent principal amount not to
exceed the amount set forth under the heading "Commitment" opposite such
Lender's name on Schedule 1.1 or in the Assignment and Assumption pursuant to
which such Lender became a party hereto, as the same may be changed from time to
time pursuant to the terms hereof. The original amount of the Total Commitments
is $125,000,000.
"Commitment Period": the period from and including the Closing Date to the
Termination Date.
"Commitment Utilization Percentage": on any day, the percentage equivalent
of a fraction (a) the numerator of which is the sum of (i) the Total Loans
outstanding on such day and (ii) the "Total Loans" under the Other Agreement
outstanding on such day and (b) the denominator of which is the sum of (i) the
Total Commitments in effect on such day (or, on any day after termination of the
Total Commitments, the Total Commitments in effect immediately preceding such
termination) and (ii) the "Total Commitments" under the Other Agreement in
effect on such day (or, on any day after termination of the "Total Commitments"
under the Other Agreement, the "Total Commitments" under the Other Agreement in
effect immediately preceding such termination).
"Commonly Controlled Entity": an entity, whether or not incorporated, that
is under common control with the Borrower within the meaning of Section 4001 of
ERISA or is part of a group that includes the Borrower and that is treated as a
single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit A.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a Loan under
this Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and provided,
further, that no Conduit Lender shall (a) be entitled to receive any greater
amount pursuant to Section 2.14, 2.15, 2.16 or 9.5 than the
5
designating Lender would have been entitled to receive in respect of the
extensions of credit made by such Conduit Lender or (b) be deemed to have any
Commitment.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated November 2003 and furnished to certain Lenders.
"Consolidated EBITDA": for any period, Consolidated Net Income for such
period plus, without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of (a) income
tax expense, (b) interest expense, amortization or writeoff of debt discount and
debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, non-cash losses on sales of assets outside of the ordinary
course of business) and (f) any extraordinary, unusual or non-recurring cash
expenses or losses to the extent that they do not exceed, in the aggregate,
$25,000,000 during such period minus, to the extent included in the statement of
such Consolidated Net Income for such period, the sum of (i) interest income,
(ii) any extraordinary, unusual or non-recurring non-cash income or gains
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, non-cash gains on the
sales of assets outside of the ordinary course of business), (iii) any
extraordinary, unusual or non-recurring cash income or gains to the extent they
exceed, in the aggregate, $25,000,000 during such period, (iv) income tax
credits (to the extent not netted from income tax expense) and (v) any other
non-cash income.
"Consolidated Interest Coverage Ratio": for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Consolidated Interest Expense": for any period, total interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness of
the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to bankers' acceptance financing and
net costs under Swap Agreements in respect of interest rates to the extent such
net costs are allocable to such period in accordance with GAAP).
"Consolidated Net Income": for any period, the consolidated net income (or
loss) of the Borrower and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Worth": at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of the
Borrower and its Subsidiaries under stockholders' equity at such date.
"Consolidated Total Capitalization": at any date, the sum of (a)
Consolidated Net Worth on such date and (b) Consolidated Total Debt or such
date.
6
"Consolidated Total Debt": at any date, the aggregate principal amount of
all Indebtedness of the Borrower and its Subsidiaries at such date, determined
on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt to Capitalization Ratio": on any date, the ratio
of (a) Consolidated Total Debt on such date to (b) Consolidated Total
Capitalization on such date.
"Continuing Directors": the directors of the Borrower on the Closing Date,
and each other director whose election by the board of directors of the
Borrower, or whose nomination for election by the stockholders of the Borrower,
was approved by a vote of at least a majority of the directors who were either
directors on the Closing Date or whose election or nomination for election was
previously so approved.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Disposition": with respect to any property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof. The
terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollar Equivalent": at any time or during any period as to any amount
denominated in a Foreign Currency, the amount of Dollars that may be purchased
with such amount of such Foreign Currency at the applicable rate of exchange
determined in accordance with Section 1.3.
"Dollar Loans": as defined in Section 2.1.
"Dollars" and "$": dollars in lawful currency of the United States.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"Eurocurrency Applicable Margin": as determined pursuant to the Pricing
Grid.
"Eurocurrency Base Rate": with respect to an Interest Period pertaining to
any Eurocurrency Loan, the rate of interest determined on the basis of the rate
for deposits in Dollars or the relevant Foreign Currency, as the case may be,
for a period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate
7
Screen as of 11:00 A.M., London time, two Business Days prior to the beginning
of such Interest Period. In the event that such rate does not appear on such
page of the Telerate Screen (or otherwise on the Telerate Service), the
"Eurocurrency Base Rate" shall instead be the interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the average of the rates
at which deposits in Dollars or the relevant Foreign Currency, as the case may
be, approximately equal in principal amount to the portion of the Eurocurrency
Tranche of the Lender serving as Administrative Agent for a maturity comparable
to such Interest Period, are offered by the principal London office of Barclays
Bank for immediately available funds in the London interbank market at
approximately 11:00 A.M., London time, two Business Days prior to the
commencement of such Interest Period.
"Eurocurrency Loans": Loans the rate of interest applicable to which is
based upon the Eurocurrency Rate.
"Eurocurrency Rate": with respect to each day during each Interest Period
pertaining to a Eurocurrency Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
Eurocurrency Base Rate
--------------------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurocurrency Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurocurrency Tranche": the collective reference to Eurocurrency Loans
denominated in the same currency made by the Lenders to the Borrower, the then
current Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Eurocurrency Loans shall
originally have been made on the same day).
"Euros": the single currency of participating member states of the European
Monetary Union introduced in accordance with the provisions of Article 109(1)4
of the Treaty of Rome of March 25, 1957 (as amended by the Single Xxxxxxxx Xxx
0000 and the Maastricht Treaty (which was signed at Maastricht on February 7,
1992 and came into force on November 1, 1993) as amended from time to time) and
as referred to in legislative measures of the European Union for the
introduction of, changeover to or operating of the euro in one or more member
states.
"Event of Default": any of the events specified in Section 7, provided that
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Excess Utilization Day": each day on which the Commitment Utilization
Percentage exceeds 50%.
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"Exchange Rate": on any day, with respect to any currency, the rate at
which such currency may be exchanged into any other currency, as set forth at
approximately 11:00 A.M., London time, on such date on the Reuters World
Currency Page for such currency. In the event that such rate does not appear on
any Reuters World Currency Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates
as may be selected by the Administrative Agent, or, in the event no such service
is selected, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such currency are then being
conducted, at or about 10:00 A.M., local time, on such date for the purchase of
the relevant currency for delivery two Business Days later; provided that if at
the time of any such determination, for any reason, no such spot rate is being
quoted, the Administrative Agent, after consultation with the Borrower, may use
any reasonable method it deems appropriate to determine such rate, and such
determination shall be presumed correct absent manifest error; provided,
further, that in any event, the Administrative Agent shall provide the Borrower
with reasonable details of the source for such rate.
"Facility Fee": as defined in Section 2.3(a).
"Facility Fee Rate": as determined pursuant to the Pricing Grid.
"Federal Funds Effective Rate": for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by Barclays Bank PLC from
three federal funds brokers of recognized standing selected by it.
"Fee Payment Date": (a) the third Business Day following the last day of
each March, June, September and December, (b) the Termination Date and (c) the
date the Commitments shall have been terminated and the principal of the Loans
shall have been paid in full.
"Foreign Currency": each of Euros, Sterling and Yen.
"Foreign Currency Loans": as defined in Section 2.1.
"Funding Office": the office of the Administrative Agent specified in
Section 9.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United States as in
effect from time to time, except that for purposes of Section 6.1, GAAP shall be
determined on the basis of such principles in effect on the date of the Existing
Credit Agreement and consistent with those used in the preparation of the most
recent audited financial statements referred to in Section 3.1(b).
"Governmental Authority": any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank
9
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative functions of or pertaining to government, any securities
exchange and any self-regulatory organization.
"Group Members": the collective reference to the Borrower and its
Subsidiaries (or, in the case of Sections 7(e), (f) and (h) only, its
Significant Subsidiaries).
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation, including a reimbursement, counterindemnity or similar obligation,
of the guaranteeing Person that guarantees or in effect guarantees, or which is
given to induce the creation of a separate obligation by another Person
(including any bank under any letter of credit) that guarantees or in effect
guarantees, any Indebtedness (the "primary obligations") of any other third
Person (the "primary obligor") in any manner, whether directly or indirectly,
including any obligation of the guaranteeing 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 (A) for the
purchase or payment of any such primary obligation or (B) 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 owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to
be the lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made and (b)
the maximum amount for which such guaranteeing person may be liable pursuant to
the terms of the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Indebtedness": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (excluding
accounts payable and accrued expenses), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in
respect of bankers' acceptances, (g) all reimbursement obligations of such
Person in respect of drawings or payments made under letters of credit, surety
or performance bonds or other similar arrangements that are not satisfied within
three Business Days following the date of receipt by such Person of notice of
such drawing or payment, (h) the liquidation value of all manditorily redeemable
preferred Capital Stock of such Person, (i) all Guarantee Obligations of such
Person in respect of obligations of the kind referred to in clauses (a) through
10
(f) and (h) above, (j) all obligations of the kind referred to in clauses (a)
through (i) above secured by any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation (it being understood that
obligations in respect of a Permitted Receivables Securitization shall not
constitute Indebtedness), and (k) for the purposes of Section 7(e) only, all
obligations of such Person in respect of Swap Agreements. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including copyrights,
copyright licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to xxx at law or in equity
for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any Eurocurrency Loan having an
Interest Period of three months or less, the last day of such Interest Period,
(c) as to any Eurocurrency Loan having an Interest Period longer than three
months, each day that is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest Period and
(d) as to any Loan (other than any Loan that is an ABR Loan), the date of any
repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurocurrency Loan, (i) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect
to such Eurocurrency Loan and ending one, two, three or six months thereafter,
as selected by the Borrower in its notice of borrowing or notice of conversion,
as the case may be, given with respect thereto; and (ii) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurocurrency Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
later than 11:00 A.M., New York City time, in the case of Loans denominated in
Dollars, and 10:00 A.M., New York City time, in the case of Foreign Currency
Loans, three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar
11
month in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) the Borrower may not select an Interest Period that would extend
beyond the Termination Date, unless the Termination Date has been extended
pursuant to Section 2.9, in which case the Borrower may not select an
Interest Period that would extend beyond December 17, 2005; and
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Investments": as defined in Section 6.7.
"Judgment Currency": as defined in Section 2.19(b).
"Lender": as defined in the preamble hereto; provided that unless context
otherwise requires each reference to the
Lenders shall be deemed to include any Conduit Lender.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Loan Documents": this Agreement, the Notes and any amendment, waiver,
supplement or other modification to any of the foregoing.
"Loan Percentage": as to any Lender at any time, the percentage which such
Lender's Commitment then constitutes of the Total Commitments or, at any time
after the Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender's Loans then outstanding constitutes
of the aggregate principal amount of the Loans then outstanding.
"Loans": as defined in Section 2.1.
"London Banking Day": any day on which banks in London are open for general
banking business, including dealings in foreign currency and exchange.
"Margin Stock": as defined in Regulation U.
"Material Adverse Effect": a material adverse effect on (a) the business,
property, operations or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole or (b) the validity or enforceability of this
Agreement or any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
12
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or under
any Environmental Law, including asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in Section 2.15(a).
"Non-U.S. Lender": as defined in Section 2.15(d).
"Notes": the collective reference to any promissory note evidencing Loans.
"Obligations": the unpaid principal of and interest on (including interest
accruing after the maturity of the Loans and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, any other Loan
Document or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by the Borrower pursuant hereto) or otherwise.
"Other Agreement": the Three-Year Credit Agreement, dated as of December
20, 2002, among the Borrower, the several banks and other financial institutions
or entities from time to time parties thereto, ABN Amro Bank N.V., as
syndication agent, and Barclays Bank PLC, as administrative agent, as amended,
supplemented or otherwise modified or replaced from time to time. "Other Taxes":
any and all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 9.6(c).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor).
"Permitted Receivables Securitization": any Receivables Securitization
Transaction, provided that the aggregate amount of the financing represented by
such transactions at any one time outstanding does not exceed $200,000,000.
13
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is covered by
and subject to ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pricing Grid": the table set forth below (expressed in basis points):
----------------------------------- ---------------- --------------------- ---------------- -------------------
Rating Agency Rating Facility Fee Eurocurrency Utilization Term-Out Premium
Rate Applicable Margin Fee Rate
----------------------------------- ---------------- --------------------- ---------------- -------------------
Greater than or 7.0 28.0 7.5 12.5
equal to A/A2 .............
----------------------------------- ---------------- --------------------- ---------------- -------------------
A-/A3 ..................... 8.0 32.0 12.5 25.0
----------------------------------- ---------------- --------------------- ---------------- -------------------
BBB+/Baa1 ................. 10.0 52.5 12.5 25.0
----------------------------------- ---------------- --------------------- ---------------- -------------------
BBB/Baa2 .................. 12.5 62.5 12.5 25.0
----------------------------------- ---------------- --------------------- ---------------- -------------------
BBB-/Baa3 ................. 17.5 70.0 25.0 25.0
----------------------------------- ---------------- --------------------- ---------------- -------------------
Less than BBB-/Baa3
or No Rating .............. 25.0 112.5 37.5 50.0
----------------------------------- ---------------- --------------------- ---------------- -------------------
In any case where the Ratings of the two Rating Agencies are at different
levels, the higher Rating will determine the Facility Fee Rate, the Eurocurrency
Applicable Margin, the Utilization Fee Rate and the Term-Out Premium unless the
S&P and Moody's Ratings are more than one level apart, in which case the Rating
one level above the lower Rating will be determinative. Each change in a Rating
by a Rating Agency shall be effective on the date such change is announced by
such Rating Agency, and if such change in Rating shall result in a change in the
Facility Fee Rate, Eurocurrency Applicable Margin, Utilization Fee Rate or
Term-Out Premium, such latter change shall be effective on the effective date of
such change in Rating.
"Properties": as defined in Section 3.13(a).
"Rating Agencies" Moody's and S&P.
"Ratings" the ratings from time to time established by the Rating Agencies
for senior, unsecured, non-credit-enhanced long-term debt of the Borrower.
"Receivables": accounts receivable of the Borrower or any of its
Subsidiaries (including any thereof constituting or evidenced by chattel paper,
instruments or general intangibles), and all proceeds thereof and rights
(contractual and other) and collateral related thereto.
"Receivables Securitization Transaction": with respect to the Borrower
and/or any of its Subsidiaries, the transfer of Receivables by any such Person
to a trust, partnership, corporation or other entity in a transaction in which
(x) the transferred Receivables, after giving
14
effect to such transaction, are not, in accordance with GAAP, treated as assets
on the books of the Borrower and its Subsidiaries and (y) the liabilities of the
transferee trust, partnership, corporation or other entity, after giving effect
to such transaction, are not, in accordance with GAAP, treated as liabilities on
the books of the Borrower and its Subsidiaries.
"Refunding Borrowing": a borrowing of Loans which, after application of the
proceeds thereof, results in no net increase in the aggregate outstanding
principal amount of Loans made by any Lender.
"Register": as defined in Section 9.6(b).
"Regulation U": Regulation U of the Board as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Xxx.xx. 4043.
"Required Lenders": at any time, the holders of more than 50% of the Total
Commitments then in effect or, if the Commitments have been terminated, the then
outstanding Loans.
"Requirement of Law": as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, president or chief
financial officer of the Borrower, but in any event, with respect to financial
matters, the chief financial officer of the Borrower.
"Restricted Margin Stock": Margin Stock owned by the Borrower or any
Subsidiary which represents not more than 25% of the aggregate value (determined
in accordance with Regulation U), on a consolidated basis, of the property and
assets of the Borrower and the Subsidiaries (including any Margin Stock) that is
subject to the provisions of Section 6 (including Section 6.4).
"SEC": the Securities and Exchange Commission, any successor thereto and
any analogous Governmental Authority.
"SEC Filings": as defined in Section 3.1.
"Significant Subsidiary": any Subsidiary which is a "Significant
Subsidiary," as defined in Regulation S-X part 210.1-02 of the Code of Federal
Regulations.
15
"Single Employer Plan": any Plan that is covered by Title IV of ERISA, but
that is not a Multiemployer Plan.
"Specified Swap Agreement": any Swap Agreement entered into by the Borrower
and any Lender or affiliate thereof in respect of interest rates or currency
exchange rates.
"Sterling": British Pounds Sterling, the lawful currency of the United
Kingdom.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Swap Agreement": any agreement with respect to any swap, forward, future
or derivative transaction or option or similar agreement involving, or settled
by reference to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing indices or measures
of economic, financial or pricing risk or value or any similar transaction or
any combination of these transactions; provided that no phantom stock or similar
plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or any of
its Subsidiaries shall be a "Swap Agreement".
"S&P": Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx
Companies, Inc.
"Syndication Agent": as defined in the preamble hereto.
"Term-Out Period": the period from but excluding the Termination Date to
and including December 17, 2005.
"Term-Out Premium": as determined pursuant to the Pricing Grid.
"Termination Date": December 17, 2004 or, if the Termination Date shall be
extended in accordance with Section 2.9, December 17, 2005.
"Total Commitments": at any time, the aggregate amount of the Commitments
of the Lenders then in effect.
"Total Loans": at any time, the sum of (a) the aggregate amount of the
Dollar Loans outstanding at such time and (b) the aggregate Dollar Equivalent of
the Foreign Currency Loans outstanding at such time.
16
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a Eurocurrency Loan.
"United States": the United States of America.
"Unrestricted Margin Stock": any Margin Stock owned by the Borrower or any
Subsidiary which is not Restricted Margin Stock.
"Utilization Fee Rate": as determined pursuant to the Pricing Grid.
"Wholly Owned Subsidiary": as to any Person, any other Person all of the
Capital Stock of which (other than directors' qualifying shares required by law)
is owned by such Person directly and/or through other Wholly Owned Subsidiaries.
"Yen": the lawful currency of Japan.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in
the other Loan Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, (i) accounting
terms relating to any Group Member not defined in Section 1.1 shall have the
respective meanings given to them under GAAP, (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (iii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings), (iv) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to
such agreements or Contractual Obligations as amended, supplemented, restated or
otherwise modified from time to time.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
1.3 Exchange Rates. For purposes of calculating (a) the aggregate Dollar
Equivalent of Foreign Currency Loans outstanding at any time during any period
and (b) the Dollar Equivalent of any Foreign Currency Loan at the time of the
making of such Loan pursuant to Section 2.1, the Administrative Agent will at
least once during each calendar month and at such other times as it in its sole
discretion decides to do so (including on or prior to the date of
17
any borrowing and the last day of any Interest Period), determine the respective
rate of exchange into Dollars of each Foreign Currency (which rate of exchange
shall be based upon the Exchange Rate in effect on the date of such
determination). Such rates of exchange so determined on each such determination
date shall, for purposes of the calculations described in the preceding
sentence, be deemed to remain unchanged and in effect until the next such
determination date.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans in Dollars ("Dollar Loans") or
in any Foreign Currency (the "Foreign Currency Loans", and together with the
Dollar Loans, the "Loans") to the Borrower from time to time during the
Commitment Period in an aggregate principal amount at any one time outstanding
which does not exceed the amount of such Lender's Commitment. The Borrower shall
not request and no Lender shall be required to make any Loan if, after making
such Loan, the Total Loans shall exceed the Total Commitments then in effect.
During the Commitment Period the Borrower may use the Commitments by borrowing,
prepaying the Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof, provided, that the Commitments shall be reduced
on the Termination Date to an amount equal to the amount of the Total Loans then
outstanding and, if the Total Loans shall at any time or from time to time be
reduced thereafter (whether as a result of a prepayment, a change in exchange
rates or otherwise), the Commitments shall be reduced pro rata simultaneously by
an amount equal to such reduction in the Total Loans, and provided, further,
that on and after the Termination Date, no Loans may be made which are not
Refunding Borrowings. The Dollar Loans may from time to time be Eurocurrency
Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.7. All Foreign
Currency Loans shall be Eurocurrency Loans.
2.2 Procedure for Borrowing. (a) The Borrower may borrow Dollar Loans
during the Commitment Period on any Business Day, provided that the Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent (a) prior to 10:00 A.M., New York City
time, three Business Days prior to the requested Borrowing Date, in the case of
Eurocurrency Loans or (b) prior to 11:00 A.M., New York City time, on the
requested Borrowing Date, in the case of ABR Loans), specifying (i) the amount
and Type of Dollar Loans to be borrowed, (ii) the requested Borrowing Date, and
(iii) in the case of Eurocurrency Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Period therefor.
Any Dollar Loans made on the Closing Date shall initially be ABR Loans. Each
borrowing of Dollar Loans under the Commitments shall be in an amount equal to
(x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the
then aggregate Available Commitments are less than $1,000,000, such lesser
amount) and (y) in the case of Eurocurrency Loans, $10,000,000 or a whole
multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from
the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
at the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing
Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the
18
Borrower on the books of such Office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
(b) The Borrower may borrow Foreign Currency Loans during the Commitment
Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, three Business
Days prior to the requested Borrowing Date), specifying (i) the requested
Borrowing Date, (ii) the respective amounts of each Foreign Currency Loan in
each Foreign Currency and (iii) the respective lengths of the initial Interest
Period therefor. Each Foreign Currency Loan under the Commitments shall be in an
amount equal to (x) in the case of Foreign Currency Loans denominated in
Sterling, (pound)7,000,000 or a whole multiple of (pound)500,000 in excess
thereof, (y) in the case of Foreign Currency Loans denominated in Euros,
(euro)10,000,000 or a whole multiple of (euro)1,000,000 in excess thereof, and
(z) in the case of Foreign Currency Loans denominated in Yen, Y1,000,000,000 or
a whole multiple of Y100,000,000 in excess thereof. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
at the Funding Office prior to 12:00 Noon, London time, in each case, on the
Borrowing Date requested by the Borrower in funds immediately available in the
relevant Foreign Currency to the Administrative Agent. Such borrowing will then
be made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such Office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent or by wire transfer of such
amounts to an account designated in writing by the Borrower to the
Administrative Agent in connection with the relevant borrowing.
2.3 Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee (a "Facility Fee") for the period from
and including the date hereof to the date upon which the Commitments shall have
terminated and all Loans shall have been paid in full, computed at a rate per
annum equal to the Facility Fee Rate on the average daily amount of the
Commitment of such Lender (whether or not utilized) during the period for which
payment is made (or, if any Lender continues to have any Loans after its
Commitment terminates, on the average daily amount of such Lender's Loans from
and including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any Loans outstanding), payable in
arrears on each Fee Payment Date.
(b) The Borrower agrees to pay to the Administrative Agent for the account
of each Lender in arrears on each Fee Payment Date, a utilization fee (a
"Utilization Fee") at a rate per annum equal to the Utilization Fee Rate for
each Excess Utilization Day during the period covered by such Fee Payment Date
on such Lender's Loans then outstanding on such Excess Utilization Day.
(c) The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates as set forth in the Fee Letter, dated as of November
26, 2003, between the Borrower and the Administrative Agent, and in any other
fee agreements between the Borrower and the Administrative executed after the
date of this Agreement, and to perform any other obligations contained therein.
19
2.4 Optional Termination or Reduction of Commitments. The Borrower shall
have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments; provided that no such termination or
reduction of Commitments shall be permitted if, after giving effect thereto and
to any prepayments of the Loans, the Total Loans would exceed the Total
Commitments. Any such reduction shall be in an amount equal to $10,000,000, or
an integral multiple of $1,000,000 in excess thereof, and shall reduce
permanently the Commitments then in effect.
2.5 Optional Prepayments. The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent not later than 10:00
A.M., New York City time, three Business Days prior to the date of prepayment,
in the case of Eurocurrency Loans, and not later than 11:00 A.M., New York City
time, one Business Day prior to the date of prepayment, in the case of ABR
Loans, which notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurocurrency Loans or ABR Loans and, if such prepayment is
of Foreign Currency Loans, the applicable Foreign Currency; provided, that if a
Eurocurrency Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.16. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Loans that are ABR
Loans) accrued interest to such date on the amount prepaid. Partial prepayments
of Dollar Loans shall be in an aggregate principal amount of $10,000,000 or a
whole multiple of $1,000,000 in excess thereof. Partial prepayments of Foreign
Currency Loans shall be in a minimum principal amount of (x) (pound)7,000,000 or
a whole multiple of (pound)500,000 in excess thereof, in the case of Foreign
Currency Loans denominated in Sterling, (y) (euro)10,000,000 or a whole multiple
or (euro)1,000,000 in excess thereof, in the case of Foreign Currency Loans
denominated in Euros, and (z) Y1,000,000,000 or a whole multiple or Y100,000,000
in excess thereof, in the case of Foreign Currency Loans denominated in Yen.
2.6 Mandatory Prepayments. If, on any date, the Total Loans outstanding on
such date exceed 102% of the Total Commitments in effect on such date, the
Borrower shall, without notice or demand, promptly (but in any event, within
three Business Days of such date) prepay such outstanding Loans in an aggregate
principal amount such that, after giving effect thereto, the Total Loans do not
exceed the Total Commitments. Any amounts prepaid pursuant to this Section shall
be accompanied by interest accrued to the date of such prepayment on the
principal so prepaid and any amounts payable under Section 2.16 in connection
therewith.
2.7 Conversion and Continuation Options. (a) The Borrower may elect from
time to time to convert Eurocurrency Loans denominated in Dollars to ABR Loans
by giving the Administrative Agent irrevocable notice of such election not later
than 11:00 A.M., New York City time, one Business Day prior to the date of
conversion, provided that any such conversion of Eurocurrency Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert its ABR Loans to Eurocurrency Loans
denominated in Dollars by giving the Administrative Agent irrevocable notice of
such election (which notice shall specify the length of the initial Interest
Period therefor) not later than 11:00 A.M., New York City time, three Business
Days prior to the date of conversion, provided
20
that no ABR Loan may be converted into a Eurocurrency Loan when any Event of
Default has occurred and is continuing and the Administrative Agent or the
Required Lenders have determined in its or their sole discretion not to permit
such conversions. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof.
(b) Any Eurocurrency Loan may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, provided
that no Eurocurrency Loan denominated in Dollars may be continued as such when
any Event of Default has occurred and is continuing and the Administrative Agent
has or the Required Lenders have determined in its or their sole discretion not
to permit such continuation, and provided, further, that if the Borrower shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso any such Loans
denominated in Dollars shall be automatically converted to ABR Loans on the last
day of such then expiring Interest Period and, if the Borrower shall fail to
give such notice of continuation of a Foreign Currency Loan, such Foreign
Currency Loan shall be automatically continued for an Interest Period of one
month. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof.
2.8 Limitations on Eurocurrency Tranches. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions and continuations of
Eurocurrency Loans and all selections of Interest Periods shall be in such
amounts and be made pursuant to such elections so that no more than ten
Eurocurrency Tranches shall be outstanding at any one time.
2.9 Repayment of Loans; Extension of Termination Date. The Borrower hereby
unconditionally promises to pay to each Lender on the Termination Date (or such
earlier date as the Loans become due and payable pursuant to Section 7), the
unpaid principal amount of each Loan made by such Lender. Notwithstanding the
foregoing, the Borrower may request, in a notice provided to the Administrative
Agent not less than 30 nor more than 60 days prior to the Termination Date, that
the Loans comprising any Borrowing outstanding on the Termination Date mature on
December 17, 2005, and the unpaid principal amount of such Loans shall then be
due and payable on such date. The Administrative Agent shall promptly notify
each relevant Lender of such request. Any extension of the Termination Date
pursuant to this Section shall be subject to the satisfaction of the conditions
set forth in Section 4.2 on the Termination Date to the same extent as if the
Lenders were requested to make Loans on the Termination Date. The Borrower
hereby further agrees to pay interest in immediately available funds at the
office of the Administrative Agent on the unpaid principal amount of such Loans
from time to time from the date hereof until payment in full thereof at the
rates per annum, and on the dates, set forth in Section 2.10.
2.10 Interest Rates and Payment Dates. (a) Each Eurocurrency Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurocurrency Rate determined for such day plus the
Eurocurrency Applicable Margin and plus, during the Term-Out Period (if it
occurs), the Term-Out Premium.
21
(b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR
plus, during the Term-Out Period (if it occurs), the Term-Out Premium.
(c) (i) If all or a portion of the principal amount of any Loan shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section plus 2% and (ii) if all or a portion of any interest payable on
any Loan or any facility fee or utilization fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to ABR Loans plus 2% (unless such
overdue amount is denominated in a Foreign Currency, in which case such overdue
amount shall bear interest of a rate per annum equal to the highest rate then
applicable under this Agreement to Foreign Currency Loans denominated in such
Foreign Currency plus 2%), in each case, with respect to clauses (i) and (ii)
above, from the date of such non-payment until such amount is paid in full (as
well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section shall
be payable from time to time on demand.
2.11 Computation of Interest and Fees. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to (i) ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed and (ii) Foreign Currency Loans denominated
in Sterling, interest shall be calculated on the basis of a 365-day year for
actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of each determination of a
Eurocurrency Rate. Any change in the interest rate on a Loan resulting from a
change in the Eurocurrency Applicable Margin, the ABR or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the
day on which such change becomes effective. The Administrative Agent shall as
soon as practicable notify the Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the relevant Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.10(a).
2.12 Inability to Determine Interest Rate. If prior to the first day of any
Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurocurrency Rate for such Interest Period,
22
(b) the Administrative Agent shall have received notice from the Required
Lenders that the Eurocurrency Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to the relevant
Lenders (as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period, or
(c) the Administrative Agent determines (which determination shall be
conclusive and binding upon the Borrower) that deposits in the applicable
currency are not generally available, or cannot be obtained by the relevant
Lenders, in the applicable market (any Foreign Currency affected by the
circumstances described in clause (a), (b) or (c) is referred to as an "Affected
Foreign Currency"),
then the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x) pursuant to clause (a) or (b) of this Section 2.12 in
respect of Eurocurrency Loans denominated in Dollars, then (i) any Eurocurrency
Loans denominated in Dollars requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (ii) any ABR Loans that were to have
been converted on the first day of such Interest Period to Eurocurrency Loans
denominated in Dollars shall be continued as ABR Loans and (iii) any outstanding
Eurocurrency Loans denominated in Dollars shall be converted, on the last day of
the then-current Interest Period, to ABR Loans and (y) in respect of any Foreign
Currency Loans, then (i) any Foreign Currency Loans in an Affected Foreign
Currency requested to be made on the first day of such Interest Period shall not
be made and (ii) any outstanding Foreign Currency Loans in an Affected Foreign
Currency shall be due and payable on the last day of the then-current Interest
Period. Until such relevant notice has been withdrawn by the Administrative
Agent, no further Eurocurrency Loans denominated in Dollars or Foreign Currency
Loans in an Affected Foreign Currency shall be made or continued as such, nor
shall the Borrower have the right to convert ABR Loans to Eurocurrency Loans
denominated in Dollars.
2.13 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower
from the Lenders hereunder, each payment by the Borrower on account of any
facility fee or utilization fee and any reduction of the Commitments of the
Lenders shall be made pro rata according to the respective Loan Percentages of
the Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Loans shall be made pro rata according to the
respective outstanding principal amounts of the Loans then held by the Lenders.
(c) All payments (including prepayments) to be made by the Borrower,
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, New York
City time, on the due date thereof to the Administrative Agent, for the account
of the relevant Lenders, at its Funding Office, in immediately available funds.
Except as otherwise specified in this Agreement, amounts owing hereunder on
account of principal and interest on Loans shall be paid in the currency in
which such Loan was borrowed, and amounts owing hereunder on account of fees
shall be paid in Dollars. The Administrative Agent shall distribute such
payments to the relevant Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurocurrency
Loans) becomes due and payable on a day other than a Business
23
Day, such payment shall be extended to the next succeeding Business Day. If any
payment on a Eurocurrency Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day. In the case of any extension of any payment
of principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its share of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, (i) in the case of amounts denominated in
Dollars, such amount with interest thereon at a rate equal to the greater of (x)
the Federal Funds Effective Rate and (y) a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation, for
the period until such Lender makes such amount immediately available to the
Administrative Agent or (ii) in the case of amounts denominated in Foreign
Currencies, such amount with interest thereon at a rate determined by the
Administrative Agent to be the cost to it of funding such amount until such
Lender makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover (i)
in the case of amounts denominated in Dollars, such amount with interest thereon
at the rate per annum applicable to ABR Loans, on demand, from the Borrower or
(ii) in the case of amounts denominated in Foreign Currencies, such amount with
interest thereon at a rate determined by the Administrative Agent to be the sum
of (x) the cost to it of funding such amount plus (y) the Eurocurrency
Applicable Margin, on demand, from the Borrower. The failure or refusal of any
Lender to make available to the Administrative Agent such Lender's share of such
borrowing shall not relieve any other Lender from its several obligation
hereunder to make available to the Administrative Agent the amount of such other
Lender's share of such borrowing. Nothing herein shall be deemed to limit the
rights of the Borrower against any Lender that has failed or refused to make
available such Lender's share of any borrowing.
(e) Unless the Administrative Agent shall have been notified in writing by
the Borrower prior to the date of any payment due to be made by the Borrower
hereunder that the Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that the Borrower is making such
payment, and the Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders their respective
pro rata shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days after such due
date, the Administrative Agent shall be entitled to recover, on demand, from
each relevant Lender to which any amount which was made available pursuant to
the preceding sentence, (i) in the case
24
of amounts denominated in Dollars, such amount with interest thereon at the rate
per annum equal to the daily average Federal Funds Effective Rate and (ii) in
the case of amounts denominated in Foreign Currencies, such amount with interest
thereon at a rate per annum determined by the Administrative Agent to be the
cost to it of funding such amount. Nothing herein shall be deemed to limit the
rights of the Administrative Agent or any Lender against the Borrower with
respect to such payment.
2.14 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof by any
Governmental Authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.15 and changes in the rate of tax
on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other condition relating to
funding of assets that would include the Eurodollar Loans or the income or
earnings in respect thereof (except for Non-Excluded Taxes covered by
Section 2.15 and changes in the rate of tax on the overall net income of
such Lender);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender reasonably deems to be material, of making,
converting into, continuing or maintaining Eurocurrency Loans, or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the
Borrower shall, promptly after its receipt of a notice with respect thereto in
accordance with Section 2.14(d), pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable.
(b) If any Lender shall have reasonably determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof by a Governmental Authority 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) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount reasonably deemed
25
by such Lender to be material, then from time to time, after such Lender has
provided written notice in accordance with Section 2.14(d) to the Borrower
requesting compensation for such reduction under this paragraph, the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or such corporation for such reduction.
(c) If any Governmental Authority of the jurisdiction of any Foreign
Currency (or any other jurisdiction in which the funding operations of any
Lender shall be conducted with respect to such Foreign Currency) shall have in
effect any reserve, liquid asset or similar requirement with respect to any
category of deposits or liabilities customarily used to fund loans in such
Foreign Currency, or by reference to which interest rates applicable to loans in
such Foreign Currency are determined, and the result of such requirement shall
be to increase the cost to such Lender of making or maintaining any Foreign
Currency Loan in such Foreign Currency, and such Lender shall deliver to the
Borrower a written notice in accordance with Section 2.14(d) requesting
compensation for such additional cost under this paragraph, then the Borrower
will pay to such Lender on each Interest Payment Date with respect to each
affected Foreign Currency Loan an amount that will compensate such Lender for
such additional cost.
(d) If any Lender becomes entitled to claim any additional amounts,
compensation or additional costs pursuant to this Section, it shall deliver a
written notice in accordance with this paragraph to the Borrower (with a copy to
the Administrative Agent) requesting such additional amounts, compensation or
additional costs and notifying the Borrower of the event by reason of which it
has become so entitled. Such Lender agrees to use reasonable efforts to deliver
such notice promptly following the time at which it becomes aware of the event
giving rise to such additional amounts, compensation or additional cost payable
(provided that the failure by such Lender to give such notice promptly shall not
adversely affect any of its rights hereunder). A certificate as to any
additional amounts, compensation or additional costs payable to any Lender
pursuant to this Section 2.14 submitted by any Lender to the Borrower (with a
copy to the Administrative Agent) shall be conclusive in the absence of manifest
error. Notwithstanding anything to the contrary contained in paragraphs (a), (b)
and (c) above, the Borrower shall not be required to compensate a Lender
pursuant to such paragraphs for any amounts incurred more than three months
prior to the date that such Lender notifies the Borrower of such Lender's
intention to claim compensation therefor; and provided further that, if the
circumstances giving rise to such claim have a retroactive effect, then such
three-month period shall be extended to include the period of such retroactive
effect. The obligations of the Borrower pursuant to this Section 2.14 shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(e) Notwithstanding any other provision of this Agreement, if (x) the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof by a Governmental Authority charged with the interpretation
or administration thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or
other Governmental Authority made subsequent to the date hereof shall make it
unlawful for any Lender to make or maintain any Foreign Currency Loan or to give
effect to its obligations as contemplated hereby with respect to any Foreign
Currency Loan, or (y) there shall have occurred any change in national or
international financial, political or economic conditions (including the
imposition of or any change in exchange controls, but excluding conditions
otherwise covered by this Section 2.14) which would make it impracticable for
any Lender to
26
make or maintain Foreign Currency Loans denominated in the relevant Foreign
Currency after the date hereof to, or for the account of, the Borrower, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Foreign Currency Loans (in the
affected Foreign Currency or Currencies) will not thereafter (for the
duration of such unlawfulness or change in conditions) be made by such
Lender or Lenders hereunder (or be continued for additional Interest
Periods), whereupon any request for a Foreign Currency Loan (in the
affected Foreign Currency or Currencies) or to continue a Foreign Currency
Loan (in the affected Foreign Currency or Currencies), as the case may be,
for an additional Interest Period) shall, as to such Lender only, be of no
force and effect, unless such declaration shall be subsequently withdrawn;
and
(ii) such Lender may require that all outstanding Foreign Currency
Loans (in the affected Foreign Currency or Currencies), made by it be
converted to ABR Loans or Eurocurrency Loans denominated in Dollars, as the
case may be (unless repaid by the Borrower), in which event all such
Foreign Currency Loans (in the affected Foreign Currency or Currencies)
shall be converted to ABR Loans or Eurocurrency Loans denominated in
Dollars, as the case may be, as of the effective date of such notice as
provided in paragraph (f) below and at the Exchange Rate on the date of
such conversion or, at the option of the Borrower, repaid on the last day
of the then current Interest Period with respect thereto.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal made thereafter that would otherwise have
been applied to repay the converted Foreign Currency Loans of such Lender shall
instead be applied to repay the ABR Loans or Eurocurrency Loans denominated in
Dollars, as the case may be, made by such Lender resulting from such conversion.
(f) For purposes of Section 2.14(e), a notice to the Borrower by any Lender
shall be effective as to each Foreign Currency Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Foreign Currency Loan; in all other cases such notice shall be effective on the
date of receipt thereof by the Borrower.
2.15 Taxes. (a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
net income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on the Administrative Agent or any Lender as a result of a present or
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any
amounts payable to the Administrative
27
Agent or any Lender hereunder, the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and
Other Taxes) interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to such
Lender's failure to comply with the requirements of paragraph (d) or (e) of this
Section or (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time such Lender becomes a party to this
Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as defined in
Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
Borrower and the Administrative Agent (or, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or,
in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit E and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender, to the extent such
Non-U.S. Lender is legally able to deliver such replacement forms.. Each
Non-U.S. Lender shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the
U.S. taxing authorities for such purpose).
(e) The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
28
2.16 Indemnity. The Borrower agrees to indemnify each Lender for, and to
hold each Lender harmless from, any loss or expense that such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurocurrency Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or conversion
from Eurocurrency Loans after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurocurrency Loans on a day that is not the last day of an
Interest Period with respect thereto. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank Eurocurrency market. A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.17 Change of Lending Office. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.14 or 2.15(a) with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans affected by such event with the object of
avoiding the consequences of such event; provided, that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal, regulatory or other
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 2.14 or 2.15(a).
2.18 Replacement of Lenders. The Borrower shall be permitted to replace any
Lender that (a) requests reimbursement for amounts owing pursuant to Section
2.14 or 2.15(a) or (b) defaults in its obligation to make Loans hereunder, with
a replacement financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.17 so
as to eliminate the continued need for payment of any amounts owing pursuant to
Section 2.14 or 2.15(a), (iv) the replacement financial institution shall
purchase, at par (unless the Lender being replaced otherwise agrees to accept a
lesser payment in its discretion), all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall
be liable to such replaced Lender under Section 2.16 if any Eurocurrency Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 9.6 (provided that the
Borrower
29
shall be obligated to pay the registration and processing fee referred to
therein), (viii) until such time as such replacement shall be consummated, the
Borrower shall pay all additional amounts (if any) required pursuant to Section
2.14 or 2.15(a), as the case may be, and (ix) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
2.19 Judgment Currency. (a) If, for the purpose of obtaining judgment in
any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which, in
accordance with normal banking procedures in the relevant jurisdiction, the
first currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due to any party
hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrower as a separate
obligation and notwithstanding any such judgment, agrees to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this Section shall survive the termination of this Agreement and the payment
of all other amounts owing hereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Administrative Agent and each Lender, as of the date of this Agreement
(except as to the representations and warranties made as of a date certain,
which shall be true and correct as of such date) and as of the date such
representations and warranties are deemed to be made under Section 4.2(a), that:
3.1 Financial Condition. The audited consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as at December 30, 2000, December 29,
2001 and December 29, 2002 and the related consolidated statements of income and
of cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from Xxxxxx Xxxxxxxx LLP with respect to
the 2000 and 2001 financial statements and from Pricewaterhouse Coopers LLP with
respect to the 2002 financial statements, present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at such
dates, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at September
27, 2003, and the related unaudited consolidated statements of income and cash
flows for the nine-month period ended on such date, present fairly the
consolidated financial condition of the Borrower and its consolidated
30
Subsidiaries as at such date, and the consolidated results of its operations and
its consolidated cash flows for the nine-month period then ended (subject to
normal year-end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
(subject to the absence of footnotes with respect to unaudited quarterly
statements) applied consistently throughout the periods involved (except as
approved by the aforementioned firms of accountants and disclosed therein). As
of the date of this Agreement, no Group Member has any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including any interest rate
or foreign currency swap or exchange transaction or other obligation in respect
of derivatives, other than those that (i) are not material to the Borrower and
its Subsidiaries taken as a whole or (ii) are reflected in the most recent
financial statements referred to in this paragraph or in the Borrower's most
recent report on Form 10-K and any subsequent reports on Form 10-Q or Form 8-K
filed with the SEC prior to the date of this Agreement (such filings, the "SEC
Filings"). During the period from December 29, 2002 to and including the date of
this Agreement there has been no Disposition by any Group Member of any part of
its business or property material to the Borrower and its Subsidiaries taken as
a whole except as set forth in the most recent financial statements referred to
in this paragraph or in the Borrower's SEC Filings.
3.2 No Change. Since December 29, 2002, there has been no development or
event that has had or could reasonably be expected to have a Material Adverse
Effect.
3.3 Existence; Compliance with Law. Each Group Member (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the legal
right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification and (d) is in compliance with all
Requirements of Law except to the extent that the failure to conform to the
requirements of clauses (a) through (d) could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. The Borrower has the
power and authority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and to borrow hereunder. The Borrower has taken
all necessary organizational action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of the
Borrower, to authorize the extensions of credit on the terms and conditions of
this Agreement. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required of any Group Member in connection with the borrowings by the Borrower
hereunder or with the execution, delivery and performance by the Borrower, or
the validity or enforceability against the Borrower, of this Agreement or any of
the Loan Documents. Each Loan Document has been duly executed and delivered on
behalf of the Borrower. This Agreement constitutes, and each other Loan Document
upon execution will constitute, a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization,
31
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
3.5 No Legal Bar. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, the execution, delivery and
performance of this Agreement and the other Loan Documents, the borrowings
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law or any Contractual Obligation of any Group Member and will not result in,
or require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation.
3.6 Litigation. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against any Group Member or against any of their
respective properties or revenues that could reasonably be expected to have a
Material Adverse Effect.
3.7 Ownership of Property; Liens. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, each Group Member has
title in fee simple to, or a valid leasehold interest in, all its real property,
and good title to, or a valid leasehold interest in, all its other property, and
none of such property is subject to any Lien except as permitted by Section 6.4.
3.8 Taxes. Except as, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, each Group Member has filed or caused to be
filed all Federal, state and other material tax returns that are required to be
filed and has paid all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its property and all other taxes, fees
or other charges imposed on it or any of its property by any Governmental
Authority (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the relevant
Group Member).
3.9 Federal Regulations. No part of the proceeds of any Loans will be used
for any purpose that violates the provisions of Regulation U or any of the other
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, as applicable, referred to in Regulation U.
3.10 ERISA. Except as, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect, neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single Employer Plan has
occurred that could reasonably be expected to have a Material Adverse Effect,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this
32
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by an amount that is material in
relation to Consolidated Net Worth. Except as in the aggregate could not
reasonably be expected to have a Material Adverse Effect, neither the Borrower
nor any Commonly Controlled Entity has had a complete or partial withdrawal from
any Multiemployer Plan, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA that, in the aggregate,
could reasonably be expected to result in a Material Adverse Effect if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. No such Multiemployer Plan
is in Reorganization or Insolvent under circumstances that could reasonably be
expected to result in a Material Adverse Effect.
3.11 Investment Company Act; Other Regulations. The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
3.12 Use of Proceeds. The proceeds of the Loans shall be used by the
Borrower and its Subsidiaries for working capital, non-hostile acquisitions,
repurchases of Capital Stock, debentures and other securities of the Borrower,
the refinancing of present and future debt and general corporate purposes.
3.13 Environmental Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by any Group
Member (the "Properties") do not contain, and have not previously contained, any
Materials of Environmental Concern in amounts or concentrations or under
circumstances that constitute or constituted a violation of, or could give rise
to liability under, any Environmental Law;
(b) no Group Member has received or is aware of any notice of violation,
alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Properties or the business operated by any Group Member (the "Business"),
nor does the Borrower have knowledge or reason to believe that any such notice
will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
that could give rise to liability under, any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which any Group Member is or will be named as a party with
respect to the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other
33
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of any Group Member in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in compliance,
and have in the last five years been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the Properties
or the Business; and
(g) no Group Member has assumed any liability of any other Person under
Environmental Laws.
3.14 Accuracy of Information, etc. No statement or information contained in
this Agreement, the Confidential Information Memorandum or any other document,
certificate or statement furnished by or on behalf of the Borrower to the
Administrative Agent or the Lenders, or any of them, for use in connection with
the transactions contemplated by this Agreement or the other Loan Documents,
contained as of the date such statement, information, document or certificate
was so furnished (or, in the case of the Confidential Information Memorandum, as
of the date of this Agreement) when taken together with the SEC Filings, any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements contained herein or therein not misleading. The
projections and pro forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of the Borrower to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The effectiveness of this Agreement is
subject to the satisfaction of the following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have received this
Agreement, executed and delivered by the Administrative Agent, the Syndication
Agent, the Co-Documentation Agents, the Borrower and each Person listed on
Schedule 1.1.
(b) Fees. The Lenders and the Administrative Agent shall have received all
fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), on or
before the Closing Date. All such amounts will be paid by wire transfer on the
Closing Date.
(c) Closing Certificate; Certified Certificate of Incorporation. The
Administrative Agent shall have received a certificate of the Borrower, dated
the Closing Date,
34
substantially in the form of Exhibit B, with appropriate insertions and
attachments, including the certificate of incorporation of the Borrower.
(d) Legal Opinions. The Administrative Agent shall have received the legal
opinion of Xxxx Xxxxxxxxx, General Counsel of the Borrower and its Subsidiaries,
substantially in the form of Exhibit D. Such legal opinion shall cover such
other matters incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(e) Existing Credit Agreement. The Administrative Agent shall have received
on behalf of each Person which is a lender under the Existing Credit Agreement
payment of all interest, fees and other amounts payable to it thereunder to but
not including the Closing Date.
4.2 Conditions to Each Loan. The agreement of each Lender to make any Loan
(other than a Refunding Borrowing) requested to be made by it on any date
(including its initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents (other than
representations and warranties made as of a specified earlier date, which shall
be true and correct as of such earlier date) shall be true and correct on and as
of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the Loans requested to be made
on such date.
Each borrowing by the Borrower hereunder shall constitute a representation
and warranty by the Borrower as of the date of such borrowing that the
conditions contained in this Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall and (except in the case of Sections 5.1,
5.2, 5.4(a)(i) and 5.7) shall cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to the Administrative Agent (which shall
promptly make a copy thereof available to each Lender, including by posting on a
secure website):
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower, a copy of the audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of such
year and the related audited consolidated statements of income and of cash flows
for such year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like qualification
or exception, or qualification arising out of the scope of the audit, by
35
PriceWaterhouseCoopers LLP or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days after the
end of each of the first three quarterly periods of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
(subject to the absence of footnotes with respect to unaudited quarterly
statements) applied (except as approved by such accountants or officer, as the
case may be, and disclosed in reasonable detail therein) consistently throughout
the periods reflected therein and with prior periods. Notwithstanding anything
to the contrary contained in this Section 5.1, the Borrower shall not be
required to deliver any financial statements to the Administrative Agent with
respect to any period for which it has timely filed its Form 10-K or Form 10-Q,
as the case may be, with the SEC (provided that such Form 10-K or Form 10-Q, as
the case may be, is publicly available on the SEC's website (or a similar
website) within the time periods required by this Section).
5.2 Certificates; Other Information. Furnish to the Administrative Agent
(which shall promptly make a copy thereof available to each Lender, including by
posting on a secure website):
(a) within the time period in which the Borrower is required to deliver any
financial statements pursuant to Section 5.1, (i) a certificate of a Responsible
Officer stating that, to the best of such Responsible Officer's knowledge, the
Borrower during the period covered by such financial statements has observed or
performed all of its covenants and other agreements, and satisfied every
condition contained in this Agreement and the other Loan Documents to which it
is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) a Compliance Certificate
containing all information and calculations necessary for determining compliance
by the Borrower with the provisions of this Agreement referred to therein as of
the last day of the fiscal quarter or fiscal year of the Borrower, as the case
may be;
(b) as soon as available, and in any event no later than 60 days after the
end of each fiscal year of the Borrower, a reasonably detailed consolidated
budget (set forth on a quarter by quarter basis) for the following fiscal year;
(c) unless publicly available at such time on the SEC's website (or a
similar website), within five days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders of any
class of its debt securities or public equity securities and, within five days
after the same are filed, copies of all financial statements and reports that
the Borrower may make to, or file with, the SEC; and
36
(d) promptly, such additional financial and other information as any Lender
may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature that, if not paid, could reasonably be expected
to result in a Material Adverse Effect, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the relevant Group Member.
5.4 Maintenance of Existence; Compliance. (a)(i) Preserve, renew and keep
in full force and effect the Borrower's organizational existence and (ii) take
all reasonable action to maintain all rights, privileges and franchises of each
such Group Member necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 6.5 and except, in the
case of clause (ii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (b) except to the
extent that, in the aggregate, non-compliance could not reasonably be expected
to have a Material Adverse Effect, comply with all Contractual Obligations and
Requirements of Law.
5.5 Maintenance of Property; Insurance. Except to the extent that, in the
aggregate, non-compliance could not reasonably be expected to have a Material
Adverse Effect, (a) keep all property useful and necessary in its business in
good working order and condition, ordinary wear and tear excepted and (b)
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business.
5.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions material to the Borrower and its Subsidiaries, taken as a
whole, in relation to its business and activities and (b) permit representatives
of any Lender to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired and to discuss the business, operations, properties
and financial and other condition of the Group Members with officers and
employees of the Group Members and with their independent certified public
accountants.
5.7 Notices. Promptly after the Borrower becomes aware thereof, give notice
to the Administrative Agent (which shall promptly make a copy thereof available
to each Lender, including by posting on a secure website):
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
any Group Member or (ii) litigation, investigation or proceeding that may exist
at any time between any Group Member and any Governmental Authority, that in
either case, if not cured or if
37
adversely determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member (i) in which
the amount involved is $10,000,000 or more and not covered by insurance or (ii)
which relates to any Loan Document;
(d) the following events, as soon as possible and in any event within 30
days after the Borrower knows or has reason to know thereof: (i) the occurrence
of any Reportable Event with respect to any Plan which could reasonably be
expected to have a Material Adverse Effect, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan, (ii) the institution of proceedings or the taking of any
other action by the PBGC with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan, or (iii) the institution
of proceedings or the taking of any other action by the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan which, in the case
of this clause (iii), could reasonably be expected to have a Material Adverse
Effect; and
(e) any development or event that has had or could reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the relevant Group Member proposes to take with respect
thereto.
5.8 Environmental Laws. Comply in all material respects with all applicable
Environmental Laws, and obtain and comply in all material respects with and
maintain any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except to the extent that the
failure to comply, or obtain and comply, therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
6.1 Financial Condition Covenants.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio for any period of four consecutive fiscal quarters of the
Borrower to be less than 3.75:1.00.
(b) Consolidated Total Debt to Total Capitalization Ratio. Permit the
Consolidated Total Debt to Consolidated Total Capitalization Ratio at the end of
any fiscal quarter of the Borrower to be greater than 0.50:1.00.
38
6.2 Standby and Performance Letters of Credit. Permit at any one time
outstanding the sum of (a) the aggregate then undrawn face amount of surety and
performance bonds, bank guarantees and standby and performance letters of credit
as to which the Borrower and/or any Subsidiary is or are the account party and
which do not secure or otherwise assure the payment of Indebtedness and (b) the
aggregate then unreimbursed amount of all amounts paid in respect of drawings
under such surety and performance bonds, bank guarantees and letters of credit
to exceed $200,000,000.
6.3 Indebtedness of Subsidiaries. In the case of any Subsidiary, create,
issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness of such Subsidiary, except:
(a) Indebtedness of such Subsidiary to the Borrower or any other Subsidiary
and Guarantee Obligations of any Subsidiary with respect to Indebtedness of the
Borrower or any other Subsidiary;
(b) (i) Indebtedness outstanding on the date of the Existing Credit
Agreement and described on Schedule 6.3(b), and additional Indebtedness incurred
after the date of the Existing Credit Agreement under the revolving credit
arrangements described on Schedule 6.3(b) in an aggregate principal amount at
any one time outstanding not to exceed the commitments or limits existing with
respect thereto on the date of the Existing Credit Agreement and described on
such Schedule, and (ii) Indebtedness under any replacements, refinancings,
refundings, renewals or extensions of the Indebtedness described in clause (i)
(without increasing the principal amount above the commitments or limits, or
shortening the maturity thereof to a date earlier than the maturity,
respectively, thereof described on Schedule 6.3(b));
(c) Indebtedness (including, without limitation, Capital Lease Obligations)
secured by Liens permitted by Section 6.4(g) in an aggregate principal amount
not to exceed the greater of $25,000,000 or 2.5% of Consolidated Net Worth at
any one time outstanding; and
(d) additional Indebtedness in an aggregate principal amount for all
Subsidiaries (on a consolidated basis) not to exceed the greater of $100,000,000
or 10.1% of Consolidated Net Worth at any one time outstanding.
6.4 Liens. Create, incur, assume or suffer to exist any Lien upon any of
its property (other than any Lien on Margin Stock created, incurred or assumed
at a time when such Margin Stock constitutes Unrestricted Margin Stock), whether
now owned or hereafter acquired, except:
(a) Liens for taxes not yet due or that are being contested in good faith
by appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business that are not overdue
for a period of more than 30 days or that are being contested in good faith by
appropriate proceedings;
39
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate, are not
substantial in amount and that do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(f) Liens in existence on the date of the Existing Credit Agreement (or, in
the case of Liens securing Indebtedness in respect of the securities lending
arrangements with JPMorgan Chase Bank and ABN AMRO Inc. described on Schedule
6.4(f), Liens created with respect thereto) and described on Schedule 6.4(f)
securing Indebtedness described on such Schedule, or Liens on the assets that
are subject to such existing Liens securing any replacement or refinancing of
such Indebtedness; provided that Indebtedness in respect of the securities
lending arrangements with JPMorgan Chase Bank and ABN AMRO Inc. described on
Schedule 6.4(f) may not be replaced or refinanced beyond December 31, 2003; and
provided, further that (i) no Lien permitted by this Section 6.4(f) is spread to
cover any additional property after the Closing Date and (ii) the amount of
Indebtedness secured thereby is not increased beyond the commitments or limits
described on Schedule 6.4(f);
(g) Liens securing Indebtedness incurred (in the case of any Subsidiary,
pursuant to Section 6.3(c) or (d)) to finance the acquisition of fixed or
capital assets or Liens on such fixed or capital assets securing any refinancing
of such Indebtedness, provided that (i) such Liens (other than those securing
any such refinancing Indebtedness) shall be created substantially simultaneously
with the acquisition of such fixed or capital assets, (ii) such Liens do not at
any time encumber any property other than the property financed by such
Indebtedness and (iii) (in the case of any Subsidiary) the amount of
Indebtedness secured thereby is not increased;
(h) any interest or title of a lessor under any lease entered into by the
Borrower or any other Subsidiary in the ordinary course of its business and
covering only the assets so leased;
(i) other incidental Liens that (i) are not, in the aggregate, material to
the Borrower and its Subsidiaries taken as a whole, (ii) do not secure
Indebtedness and (iii) do not cover at any time assets having an aggregate fair
market value in excess of $10,000,000;
(j) Liens incurred pursuant to a Permitted Receivables Securitization on
the Receivables that are subject thereto;
(k) Liens on assets of a Subsidiary securing Acquired Indebtedness
permitted by Section 6.3(d) in an aggregate principal amount for all such
Subsidiaries not to exceed $75,000,000 at any one time outstanding; provided
that such Liens are not spread to other assets of such Subsidiary following the
consummation of the applicable acquisition; and
40
(l) Liens securing Indebtedness in an aggregate principal amount not to
exceed $25,000,000 at any one time outstanding.
6.5 Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with or
into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or any other Subsidiary;
(b) any Subsidiary of the Borrower may Dispose of any or all of its assets
(i) to the Borrower or any other Subsidiary (upon voluntary liquidation or
otherwise) or (ii) pursuant to a Disposition permitted by Section 6.6;
(c) any Investment expressly permitted by Section 6.7 may be structured as
a merger, consolidation or amalgamation; and
(d) any Subsidiary may be liquidated, wound up or dissolved, as deemed
appropriate by the Borrower.
6.6 Disposition of Property. Dispose of any of its property (other than any
property which, at the time of any Disposition thereof, constitutes Unrestricted
Margin Stock), whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any
Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary course
of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by clause (i) of Section 6.5(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to the Borrower
or any other Subsidiary;
(e) the Dispositions listed on Schedule 6.6;
(f) the Disposition during any period of four consecutive fiscal quarters
of the Borrower, commencing with the four-quarter period ending on or about
January 3, 2004, of other property having an aggregate book value not to exceed
$200,000,000 at the beginning of such period, provided that the Borrower shall
deliver to the Administrative Agent written notice ten Business Days in advance
of any Disposition in excess of $50,000,000;
(g) Dispositions of Receivables pursuant to a Permitted Receivables
Securitization;
(h) Dispositions of Investments permitted by Section 6.7(b); and
41
(i) Dispositions by any Group Member to the Borrower or any of its
Subsidiaries.
6.7 Investments. Make any advance, loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting a business unit of, or make any other investment in, any other
Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) obligations in respect of letters of credit, surety and performance
bonds and bank guarantees permitted by Section 6.2, and Guarantee Obligations
permitted by Section 6.3;
(d) loans and advances to employees of any Group Member in the ordinary
course of business (including for travel, entertainment and relocation expenses)
in an aggregate amount for all Group Members not to exceed $5,000,000 at any one
time outstanding;
(e) intercompany Investments by any Group Member in the Borrower or any
Subsidiary;
(f) non-hostile acquisitions of businesses or the acquisition (through
merger or otherwise) of or Investments in Persons if (i) in the case of the
acquisition of the Capital Stock of any Person (whether by merger or otherwise),
such Person has become a Subsidiary of the Borrower as a result of thereof and
(ii) after giving pro forma effect to such acquisition or Investment, there is
no Default or Event of Default (it being understood and agreed that in
determining pro forma compliance with Section 6.1, such covenants shall be
recomputed as of the most recent fiscal-quarter-end date for which financial
statements shall have been delivered pursuant to Section 5.1, adjusted (x) in
the case of Section 6.1(a), to recompute Consolidated EBITDA to give effect to
such acquisition or Investment as if it had occurred on the first day of the
applicable four-quarter period and to recompute Consolidated Interest Expense
for such period to include the additional interest that would have accrued
during such period in respect of Indebtedness acquired or assumed in connection
with such acquisition or Investment as if such acquisition or Investment had
occurred on the first day of such period and in respect of any Indebtedness
incurred to finance such acquisition or Investment as if such Indebtedness had
been incurred on such day (and had borne interest throughout such period at the
rate per annum applicable thereto on the date it was incurred) and (y) in the
case of Section 6.1(b), to recompute Consolidated Total Debt to include therein
all Indebtedness acquired, assumed or incurred by the Borrower and its
Subsidiaries in connection with and to finance such acquisition or Investment
and to recompute Consolidated Net Worth to give effect to such acquisition or
Investment);
(g) Investments consisting of promissory notes received as proceeds of
Dispositions permitted by Section 6.6; and
(h) in addition to Investments otherwise expressly permitted by this
Section, Investments by the Borrower and its Subsidiaries in an aggregate amount
(valued at cost) not to
42
exceed $200,000,000 during any period of four consecutive fiscal quarters of the
Borrower, commencing with the four-quarter period ending on or about January 3,
2004.
6.8 Transactions with Affiliates. Enter into any transaction, including any
purchase, sale, lease or exchange of property, the rendering of any service or
the payment of any management, advisory or similar fees, with any Affiliate
(other than the Borrower or any other Group Member) unless such transaction (a)
is (i) otherwise permitted under this Agreement and (ii) upon fair and
reasonable terms no less favorable to the relevant Group Member than it would
obtain in a comparable arm's length transaction with a Person that is not an
Affiliate or (b) involves, when taken together with all other transactions
covered by this clause (b) entered into during any fiscal year, $1,000,000 or
less.
6.9 Changes in Fiscal Periods. Change the Borrower's method of determining
fiscal years and quarters without prior written notice to the Administrative
Agent.
6.10 Lines of Business. Enter into any business, either directly or through
any Subsidiary, except for those businesses in which the Borrower and its
Subsidiaries are engaged on the date of this Agreement or that are reasonably
related thereto.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when due in
accordance with the terms hereof; or the Borrower shall fail to pay any interest
on any Loan, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes due
in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by the Borrower
herein or in any other Loan Document or that is contained in any certificate,
document or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove to
have been inaccurate in any material respect on or as of the date made or deemed
made; or
(c) the Borrower shall default in the observance or performance of any
agreement contained in clause (i) or (ii) of Section 5.4(a) (with respect to the
Borrower only), Section 5.7(a) or Section 6 of this Agreement; or
(d) the Borrower shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days after notice to the
Borrower from the Administrative Agent or the Required Lenders; or
(e) any Group Member shall (i) default in making any payment of any
principal of any Indebtedness (including any Guarantee Obligation, but excluding
the Loans) on the scheduled or original due date with respect thereto; or (ii)
default in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the
43
instrument or agreement under which such Indebtedness was created; or (iii)
default in the observance or performance of any other 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 permit the holder or beneficiary of such Indebtedness (or a trustee
or agent on behalf of such holder or beneficiary) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated maturity
or (in the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable (other than any such default, event or condition arising solely
out of the violation by the Borrower or any Subsidiary of any covenant in any
way restricting the Borrower's, or any such Subsidiary's, right or ability to
sell, pledge or otherwise dispose of Unrestricted Margin Stock); provided, that
a default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $15,000,000; or
(f) (i) any Group Member shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or any Group Member shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Group Member any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against any Group Member any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
any Group Member shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) any Group Member shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of any Group Member or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
44
(v) any Group Member or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any Group
Member involving in the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage)
of $10,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(i) (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), excluding the Permitted Investors, shall become, or obtain rights
(whether by means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of more than 40% of the outstanding common stock of the
Borrower; or (ii) the board of directors of the Borrower shall cease to consist
of a majority of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents to be
due and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived by
the Borrower.
SECTION 8. THE AGENTS
8.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have
45
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither any Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable to any Lender for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with this Agreement or any other Loan
Document (except to the extent that any of the foregoing are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of any Loan Party a party thereto to perform its obligations hereunder or
thereunder. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
8.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any instrument,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.
46
8.5 Notice of Default. 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 received notice from a Lender or the 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
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 (or, if so specified by this Agreement, all 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.
8.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
8.7 Indemnification. The Lenders agree to indemnify each Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Loan Percentages in effect on the date on which indemnification is
sought under this Section (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Loan Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (whether before or after the payment
of the Loans) be imposed on, incurred by or asserted against such Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to
47
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by such Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from such Agent's gross negligence or willful misconduct. The agreements in this
Section shall survive the payment of the Loans and all other amounts payable
hereunder.
8.8 Agent in Its Individual Capacity. Each Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with any Loan Party as though such Agent were not an Agent. With respect to its
Loans made or renewed by it, each Agent shall have the same rights and powers
under this Agreement and the other Loan Documents as any Lender and may exercise
the same as though it were not an Agent, and the terms "Lender" and "Lenders"
shall include each Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Lenders and the Borrower. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Section 7(a) or Section 7(f) with
respect to the Borrower shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 8 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
8.10 Syndication Agent and Co-Documentation Agents. Neither the Syndication
Agent nor any Co-Documentation Agent shall have any duties or responsibilities
hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 9.1. The
Required Lenders and the Borrower may, or, with the written consent of the
Required Lenders, the Administrative Agent and the Borrower may, from time to
time, (a) enter into written amendments, supplements or
48
modifications hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or the Borrower hereunder or thereunder or (b)
waive, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) forgive the
principal amount or extend the final scheduled date of maturity of any Loan,
reduce the stated rate of any interest or fee payable hereunder (except in
connection with the waiver of applicability of any post-default increase in
interest rates (which waiver shall be effective with the consent of the Required
Lenders)) or extend the scheduled date of any payment thereof, or increase the
amount or extend the expiration date of any Lender's Commitment, in each case
without the written consent of each Lender directly affected thereby; (ii)
eliminate or reduce the voting rights of any Lender under this Section 9.1
without the written consent of such Lender; (iii) reduce any percentage
specified in the definition of Required Lenders or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, in each case without the written consent
of all Lenders; (iv) amend, modify or waive any provision of Section 9 without
the written consent of the Administrative Agent; or (v) add additional
currencies as Foreign Currencies in which Foreign Currency Loans may be made
under this Agreement without the written consent of all the Lenders. Any such
waiver and any such amendment, supplement or modification shall apply equally to
each of the Lenders and shall be binding upon the Borrower, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be restored
to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy) and
shall not be effective until received, provided that any notice given by the
Administrative Agent pursuant to the final paragraph of Section 7 shall be
deemed to have been duly given or made when delivered, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received. All such notices, requests and demands shall be addressed
as follows, in the case of the Borrower and the Administrative Agent, and as set
forth in an administrative questionnaire delivered to the Administrative Agent
in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:
Borrower: Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Treasurer
Telecopy: 000-000-0000
Telephone: 000-000-0000
With a copy to:
49
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: General Counsel
Telecopy: 000-000-0000
Telephone: 000-000-0000
Administrative Agent: Barclays Bank PLC
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
Notices and other communications to the Lenders hereunder may be delivered
or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Section 2 unless otherwise agreed by the Administrative Agent and
the applicable Lender. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of counsel to the Administrative Agent, with statements with
respect to the foregoing to be submitted to the Borrower prior to the Closing
Date (in the case of amounts to be paid on the Closing Date) and from time to
time thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) after the occurrence and during
the continuance of an Event of Default, to pay or reimburse each Lender and the
Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in
50
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including the
fees and disbursements of counsel to each Lender and of counsel to the
Administrative Agent and (c) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an "Indemnitee") harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including reasonable fees and expenses of counsel)
with respect to such Lender or Administrative Agent being a party to this
Agreement or any other Loan Document, or the enforcement or performance of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of any Group Member or any of the Properties (all the foregoing
in this clause (c), collectively, the "Indemnified Liabilities"), provided, that
the Borrower shall have no obligation hereunder to any Indemnitee with respect
to Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such Indemnitee
or the breach by such Indemnitee of its obligations under this Agreement.
Without limiting the foregoing, and to the extent permitted by applicable law,
the Borrower agrees not to assert and to cause its Subsidiaries not to assert,
and hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due
under this Section 9.5 shall be payable not later than 10 days after written
demand therefor. Statements payable by the Borrower pursuant to this Section 9.5
shall be submitted to Office of the General Counsel (Telephone No. (781)
000-0000) (Telecopy No. (000) 000-0000), at the address of the Borrower set
forth in Section 9.2, or to such other Person or address as may be hereafter
designated by the Borrower in a written notice to the Administrative Agent. The
agreements in this Section 9.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees (each, an "Assignee") all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall
be required for an assignment to a Lender, or, if an Event of Default
has occurred and is continuing, any other Person; and
51
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any
Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an affiliate
of a Lender or an Approved Fund or an assignment of the entire
remaining amount of the assigning Lender's Commitments or Loans, the
amount of the Commitments or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of
the Borrower and the Administrative Agent otherwise consent, provided
that (1) no such consent of the Borrower shall be required if an Event
of Default has occurred and is continuing and (2) such amounts shall
be aggregated in respect of each Lender and its affiliates or Approved
Funds, if any;
(B) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(C) the Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an administrative questionnaire.
For the purposes of this Section 9.6, the term "Approved Fund" has the
following meaning:
"Approved Fund" means any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank
loans and similar extensions of credit in the ordinary course of its
business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity
that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in
each Assignment and Assumption the Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16
and 9.5). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 9.6 shall be
52
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent,
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (A) such Lender's obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent, the Issuing Lender and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver that (1) requires the consent of each Lender directly affected thereby
pursuant to the proviso to the second sentence of Section 9.1 and (2) directly
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.7(b) as though it were a Lender, provided such Participant
shall be subject to Section 9.7(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.15 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such
53
Participant is made with the Borrower's prior written consent. Any Participant
that is a Non-U.S. Lender shall not be entitled to the benefits of Section 2.15
unless such Participant complies with Section 2.15(d).
(d) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The Borrower, upon receipt of written notice from the relevant Lender,
agrees to issue Notes to any Lender requiring Notes to facilitate transactions
of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Lender may assign its rights and
obligations to a Conduit Lender organized and administered by such Lender,
provided that such assignment shall be subject to all the requirements of the
definition of the term "Conduit Lender" in Section 1.1. Notwithstanding the
foregoing, any Conduit Lender may assign any or all of the Loans it may have
funded hereunder to its designating Lender without the consent of the Borrower
or the Administrative Agent and without regard to the limitations set forth in
Section 9.6(b). Each of the Borrower, each Lender and the Administrative Agent
hereby confirms that it will not institute against a Conduit Lender or join any
other Person in instituting against a Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
state bankruptcy or similar law, for one year and one day after the payment in
full of the latest maturing commercial paper note issued by such Conduit Lender;
provided, however, that each Lender designating any Conduit Lender hereby agrees
to indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.
9.7 Adjustments; Set-off. (a) Except to the extent that this Agreement
expressly provides for payments to be allocated to a particular Lender, if any
Lender (a "Benefitted Lender") shall receive any payment of all or part of the
Obligations owing to it (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 7(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of the Obligations owing to
each such other Lender, or shall provide such other Lenders with the benefits of
any such collateral, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right after the occurrence and during the
continuation of an Event of
54
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower
and the Administrative Agent after any such setoff and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
9.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
9.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents represent the
entire agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Borrower, the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
9.11 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or
55
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 9.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
9.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
Administrative Agent and Lenders, on one hand, and Holdings and the Borrower, on
the other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
9.14 Confidentiality. Each of the Administrative Agent and each Lender
agrees on its own behalf and on behalf of each Affiliate thereof to keep
confidential all non-public information provided to it by any Group Member, the
Administrative Agent or any Lender pursuant to or in connection with this
Agreement that is designated by the provider thereof as confidential; provided
that nothing herein shall prevent the Administrative Agent or any Lender from
disclosing any such information (a) to the Administrative Agent, any other
Lender or any affiliate thereof solely for the purposes of, or otherwise in
connection with, this Agreement, (b) subject to an express agreement to maintain
the confidentiality of such information in compliance with the provisions of
this Section (which may be a standing agreement between such Lender and such
Transferee), to any actual or prospective Transferee or any direct or indirect
counterparty to any Swap Agreement (or any professional advisor to such
counterparty), (c) to its employees, directors, agents, attorneys, accountants
and other professional advisors or those of any of its affiliates, in each case
who have a need to know such information in accordance with customary business
practices (it being understood that the Person to whom such disclosure is made
will be informed of the confidential nature of such information and instructed
to keep such information confidential), (d) upon the request or demand of any
Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if required to do so in connection
56
with any litigation or similar proceeding, (g) that has been publicly disclosed,
(h) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender, or (i) in connection with the exercise of
any remedy hereunder or under any other Loan Document. Unless specifically
prohibited by applicable law or court order, the Administrative Agent and each
Lender shall, prior to any disclosure under clause (d), (e) or (f) above to (x)
any Governmental Authority that does not have supervisory, regulatory or other
similar authority with respect to the Administrative Agent or such Lender, as
the case may be, and that is seeking such disclosure solely in connection with
an investigation, litigation or other proceeding that does not otherwise involve
the Administrative Agent or such Lender, as the case may be, or (y) any other
Person that is not a Governmental Authority, notify the Borrower of any request
for the disclosure of any such non-public information so as to provide the
Borrower with the reasonable opportunity to obtain a protective order or other
comparable relief. Notwithstanding anything herein to the contrary, any party to
this Agreement subject to confidentiality obligations hereunder or under any
other related document (and any employee, representative or other agent of such
party) may disclose to any and all persons, without limitation of any kind, the
tax treatment and tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure; provided, however, no such party shall disclose any information
relating to such tax treatment or tax structure to the extent nondisclosure is
reasonably necessary to comply with applicable securities laws.
9.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
[Rest of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
THERMO ELECTRON CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
BARCLAYS BANK PLC, as Administrative
Agent and as a Lender
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
ABN AMRO BANK N.V., as Syndication Agent
and as a Lender
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK, as Co-Documentation
Agent and as a Lender
By: /s/ Xxxxx X. XxxXxxxxxx
-----------------------------------
Name: Xxxxx X. XxxXxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK, as Co-Documentation
Agent and as a Lender
By: /s/ Xxxx Xxx Xxx
-----------------------------------
Name: Xxxx Xxx Xxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NY BRANCH, as a Lender
By: /s/ Xxxxxxx Xxx
-----------------------------------
Name: Xxxxxxx Xxx
Title: Authorized Signatory
BANCA INTESA S.P.A., NEW YORK
BRANCH, as a Lender
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President &
Deputy Manager
KEY CORPORATE CAPITAL INC., as a Lender
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
NORDEA BANK FINLAND PLC, as a Lender
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
