EXECUTION VERSION
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[Published CUSIP Number: ____________]
CREDIT AGREEMENT
Dated as of July 21, 2006
among
XXXX LABORATORIES, INC.,
as Borrower,
and
XXXX PHARMACEUTICALS, INC.,
and
CERTAIN SUBSIDIARIES
FROM TIME TO TIME PARTY HERETO,
as Guarantors
BANK OF AMERICA, N.A.,
as Administrative Agent
and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Lead Arranger and Book Manager
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TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..................................................................... 2
1.01 Defined Terms................................................................................ 2
1.02 Other Interpretive Provisions................................................................ 27
1.03 Accounting Terms............................................................................. 28
1.04 Rounding..................................................................................... 29
1.05 Exchange Rates; Currency Equivalents......................................................... 29
1.06 [Reserved]................................................................................... 29
1.07 Change of Currency........................................................................... 29
1.08 Times of Day................................................................................. 30
1.09 Letter of Credit Amounts..................................................................... 30
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS............................................................... 30
2.01 Acquisition Facility Loan.................................................................... 30
2.02 Borrowings, Conversions and Continuations of Loans........................................... 31
2.03 Letters of Credit............................................................................ 32
2.04 [Reserved]................................................................................... 41
2.05 Prepayments.................................................................................. 42
2.06 Termination or Reduction of Aggregate Commitments............................................ 44
2.07 Repayment of Loans........................................................................... 44
2.08 Interest..................................................................................... 45
2.09 Fees......................................................................................... 45
2.10 Computation of Interest and Fees............................................................. 46
2.11 Evidence of Debt............................................................................. 46
2.12 Payments Generally; Administrative Agent's Clawback.......................................... 47
2.13 Sharing of Payments by Lenders............................................................... 49
2.14 [Reserved]................................................................................... 49
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY............................................................. 49
3.01 Taxes........................................................................................ 49
3.02 Illegality................................................................................... 52
3.03 Inability to Determine Rates................................................................. 52
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans......................................... 53
3.05 Compensation for Losses...................................................................... 55
3.06 Mitigation Obligations; Replacement of Lenders............................................... 56
3.07 Survival..................................................................................... 56
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS........................................................... 56
4.01 Closing Conditions........................................................................... 56
4.02 [Reserved]................................................................................... 58
4.03 Conditions to Issuance of Acquisition Letter of Credit....................................... 58
4.04 Conditions to Extension of Acquisition Facility Loan......................................... 58
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4.05 Conditions to Extension of Each Acquisition Facility Loan After the Initial Acquisition
Facility Loan Funding Date.................................................................. 59
ARTICLE V REPRESENTATIONS AND WARRANTIES....................................................................... 59
5.01 Existence, Qualification and Power; Compliance with Laws..................................... 60
5.02 Authorization; No Contravention.............................................................. 60
5.03 Governmental Authorization; Other Consents................................................... 60
5.04 Binding Effect............................................................................... 60
5.05 Financial Statements; No Material Adverse Effect............................................. 61
5.06 Litigation................................................................................... 61
5.07 No Default................................................................................... 61
5.08 Ownership of Property; Liens................................................................. 61
5.09 Environmental Compliance..................................................................... 62
5.10 Taxes........................................................................................ 62
5.11 ERISA Compliance............................................................................. 62
5.12 Subsidiaries................................................................................. 63
5.13 Margin Regulations; Investment Company Act................................................... 63
5.14 Disclosure................................................................................... 63
5.15 Compliance with Laws......................................................................... 63
5.16 Intellectual Property; Licenses, Etc......................................................... 64
5.17 [Reserved]................................................................................... 64
ARTICLE VI AFFIRMATIVE COVENANTS............................................................................... 64
6.01 Financial Statements......................................................................... 64
6.02 Certificates; Other Information.............................................................. 65
6.03 Notices...................................................................................... 66
6.04 Payment of Obligations....................................................................... 67
6.05 Preservation of Existence, Etc............................................................... 67
6.06 Maintenance of Properties.................................................................... 67
6.07 Maintenance of Insurance..................................................................... 68
6.08 Compliance with Laws and Contractual Obligations............................................. 68
6.09 Books and Records............................................................................ 68
6.10 Use of Proceeds.............................................................................. 68
6.11 Additional Guarantors........................................................................ 68
ARTICLE VII NEGATIVE COVENANTS................................................................................. 69
7.01 Liens........................................................................................ 69
7.02 Investments.................................................................................. 71
7.03 Non-Loan Party Indebtedness.................................................................. 73
7.04 Fundamental Changes.......................................................................... 74
7.05 Restricted Payments.......................................................................... 74
7.06 Change in Nature of Business................................................................. 75
7.07 Transactions with Affiliates................................................................. 75
7.08 Restrictive Agreements....................................................................... 75
7.09 Use of Proceeds.............................................................................. 77
7.10 Financial Covenants.......................................................................... 77
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ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES.................................................................... 78
8.01 Events of Default............................................................................ 78
8.02 Remedies Upon Event of Default............................................................... 80
8.03 Application of Funds......................................................................... 80
ARTICLE IX ADMINISTRATIVE AGENT............................................................................... 81
9.01 Appointment and Authority.................................................................... 81
9.02 Rights as a Lender........................................................................... 82
9.03 Exculpatory Provisions....................................................................... 82
9.04 Reliance by Administrative Agent............................................................. 83
9.05 Delegation of Duties......................................................................... 83
9.06 Resignation of Administrative Agent.......................................................... 83
9.07 Non-Reliance on Administrative Agent and Other Lenders....................................... 84
9.08 No Other Duties, Etc......................................................................... 85
9.09 Administrative Agent May File Proofs of Claim................................................ 85
9.10 Guaranty Matters............................................................................. 86
ARTICLE X MISCELLANEOUS........................................................................................ 86
10.01 Amendments, Etc.............................................................................. 86
10.02 Notices; Effectiveness; Electronic Communication............................................. 87
10.03 No Waiver; Cumulative Remedies............................................................... 89
10.04 Expenses; Indemnity; Damage Waiver........................................................... 89
10.05 Payments Set Aside........................................................................... 91
10.06 Successors and Assigns....................................................................... 91
10.07 Treatment of Certain Information; Confidentiality............................................ 96
10.08 Right of Setoff.............................................................................. 96
10.09 Interest Rate Limitation..................................................................... 97
10.10 Counterparts; Integration; Effectiveness..................................................... 97
10.11 Survival of Representations and Warranties................................................... 97
10.12 Severability................................................................................. 98
10.13 Replacement of Lenders....................................................................... 98
10.14 Governing Law; Jurisdiction; Etc............................................................. 99
10.15 Waiver of Jury Trial......................................................................... 100
10.16 No Advisory or Fiduciary Responsibility...................................................... 100
10.17 USA PATRIOT Act Notice....................................................................... 101
10.18 Judgment Currency............................................................................ 101
ARTICLE XI GUARANTY............................................................................................ 102
11.01 The Guaranty................................................................................. 102
11.02 Obligations Unconditional.................................................................... 102
11.03 Reinstatement................................................................................ 103
11.04 Certain Waivers.............................................................................. 104
11.05 Remedies..................................................................................... 104
11.06 Rights of Contribution....................................................................... 105
11.07 Guaranty of Payment; Continuing Guarantee.................................................... 105
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SCHEDULES
1.01 Mandatory Cost Formulae
1.01A Scheduled Financial Information
1.01B Permitted Transfers
2.01 Commitments and Applicable Percentages
5.12 Subsidiaries; Other Equity Investments
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.07 Existing Affiliate Transactions
7.08 Restrictive Agreements
10.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
Form of
1.01 Investment Guidelines
2.02 Form of Loan Notice
2.11(a) Form of Note
6.02 Form of Compliance Certificate
6.11 Form of Guarantor Joinder Agreement
10.06 Form of Assignment and Assumption
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of July 21, 2006,
among Xxxx Laboratories, Inc, a Delaware corporation (the "Company" or the
"Borrower"), Xxxx Pharmaceuticals, Inc., a Delaware corporation (the "Parent")
as a guarantor along with certain Subsidiaries of the Parent (individually a
"Guarantor" and collectively the "Guarantors"), each lender from time to time
party hereto (collectively, the "Lenders" and individually, a "Lender"), and
Bank of America, N.A., as Administrative Agent and L/C Issuer.
The Company has requested that the Lenders provide an acquisition facility
(the "Acquisition Facility") in connection with Xxxx Europe's (defined in
Section 1.01 below) offer to acquire the outstanding equity interests of Pliva
d.d., Xxxxxx, Xxxxx Xxxxxxxx 00, a corporation organized under the laws of
Croatia ("Park Place" and collectively, with its subsidiaries, the "Acquired
Company"), in accordance with Xxxx Europe's certain proposal for an acquisition
of "Park Place d.d." by "Boardwalk" set forth in that certain letter dated June
12, 2006, and as amended and/or replaced by that certain letter dated June 23,
2006, each addressed to Deutsche Bank (the "Acquisition Offer"). The acquisition
of the shares of the Acquired Company by the Parent through Xxxx Europe shall be
implemented via a tender process in accordance with the laws of Croatia and
other applicable law.
In connection with such Acquisition Offer, the Company has requested the
option to have the L/C Issuer issue a single standby letter of credit under the
Acquisition Facility, which shall be available for issuance during the period
beginning on the Closing Date and ending thirty (30) days following the Closing
Date, the beneficiary of which shall be Bank of America, N.A., London Branch
(the "Guarantor Bank") for the purpose of back-stopping the obligations of such
Guarantor Bank arising under that certain Guarantee No. 6008GT004960/06 provided
by the Guarantor Bank, which guarantees the payment of the shares of Park Place
to be acquired by Xxxx Europe (the "Guarantor Bank Guarantee").
Upon receipt by the Parent, the Company or Xxxx Europe of notice from the
Croatian Central Depositary Agency (the "CDA") of a calculation of the purchase
price for the tendered shares of the Acquired Company demonstrating that at
least 50% plus one share of the outstanding shares of the Acquired Company shall
have been tendered in response to Acquisition Offer for such shares (or the
Parent, the Company or Xxxx Europe shall have agreed to waive the 50% plus one
share requirement in such Acquisition Offer), the Company has requested that on
or after the Closing Date, the Company have the option to request, during the
Acquisition Facility Loan Availability Period (defined below), the Lenders to
advance the initial draw of a term loan (each term loan draw, an "Acquisition
Facility Loan" collectively, the "Acquisition Facility Loans") in Dollars,
during the Acquisition Facility Loan Availability Period (defined in Section
1.01 below), the proceeds of which shall either (x) reimburse any draw made
under the Acquisition Facility Letter of Credit or (y) finance, in part, the
acquisition by the Company through Xxxx Europe of the outstanding shares of the
Acquired Company which have been tendered in response to Acquisition Offer (with
the simultaneous cancellation of the Acquisition Letter of Credit). In
accordance with the terms and conditions herein, including without limitation
Section 2.01(b) and Section 4.05, and during the Acquisition Facility Loan
Availability Period, the Company may request up to two additional Acquisition
Facility Loans which shall be used to acquire outstanding shares of the Acquired
Company.
The L/C Issuer is willing to issue the Acquisition Facility Letter of
Credit during the Acquisition Facility Letter of Credit Availability Period in
reliance upon the Acquisition Facility Commitments and the Lenders are willing
to provide the initial Acquisition Facility Loan to either (x) reimburse the L/C
Issuer for any draw made under the Acquisition Facility Letter of Credit or (y)
finance, in part, the Target Acquisition (with the simultaneous cancellation of
the Acquisition Letter of Credit) on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Acquisition" means the acquisition by any Person of (i) all or
substantially all of the Equity Interests in, or the Property of, another
Person, or (ii) any product line or segment of business or division (including,
without limitation, the acquisition of rights, production or distribution of a
product or product line) of another Person, whether or not involving a merger or
consolidation with such Person.
"Acquired Company" has the meaning specified in the recitals hereto.
"Acquisition Documentation" means the Acquisition Offer.
"Acquisition Facility Commitment" means, as to each Lender, its obligation
to (a) make Acquisition Facility Loans to the Company pursuant to Section
2.01(b) and (b) purchase participations in the Acquisition Facility Letter of
Credit, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable as such amount may be adjusted from time to time in
accordance with this Agreement.
"Acquisition Facility Credit Extension" means each of the following: (a) a
Borrowing and (b) an L/C Credit Extension, in each case with respect to the
Acquisition Facility Commitment.
"Acquisition Facility Letter of Credit" means that certain single standby
letter of credit to be issued by the L/C Issuer, in reliance upon the
Acquisition Facility Commitments of the Lenders set forth herein, which shall be
available for issuance during the Acquisition Facility Letter of Credit
Availability Period and shall (a) be used for the purpose of supporting the
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Acquisition Offer, (b) be available to the beneficiary in a single draw, (c)
shall be denominated in U.S. dollars or Euros, (d) have an expiry date not later
than January 31, 2007 and (e) otherwise in accordance with the provisions of
Section 2.03.
"Acquisition Facility Letter of Credit Availability Period" means the
period beginning on the Closing Date and ending on the earliest of (a) thirty
(30) days following the Closing Date, (b) the Acquisition Facility Letter of
Credit Issuance Date and (c) the date on which the Acquisition Offer has been
terminated or has been withdrawn.
"Acquisition Facility Letter of Credit Issuance Date" means the date on
which the Acquisition Letter of Credit has been issued by the L/C Issuer.
"Acquisition Facility Loan" has the meaning specified in the recitals.
"Acquisition Facility Loan Availability Period" means, with respect to the
Acquisition Facility Commitments, the period from and including the Closing Date
to the earliest of (a) January 31, 2007, if the Initial Acquisition Facility
Loan Funding Date has not occurred on or prior to January 31, 2007, (b) the date
of termination of all outstanding Acquisition Facility Commitments pursuant to
Section 2.06, (c) the date of termination of the Lender's Acquisition
Commitments to make Acquisition Facility Loans and of the obligation of the L/C
Issuer to issue the Acquisition Facility Letter of Credit pursuant to Section
8.02, (d) the date on which either the Acquisition Offer has been withdrawn or
has expired and (e) the date that is five (5) Business Days prior to the
Maturity Date.
"Acquisition Offer" the Parent's certain proposal for an acquisition of
"Park Place d.d." by "Boardwalk" set forth in that certain letter dated June 12,
2006 and as amended and/or replaced by that certain letter dated June 23, 2006,
each addressed to Deutsche Bank.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Company and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Acquisition Facility Commitments" means the Acquisition
Facility Commitments of all the Lenders. The initial amount of the Aggregate
Acquisition Facility Commitments in effect on the Closing Date is FIVE HUNDRED
MILLION DOLLARS ($500,000,000).
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"Agreement" means this Credit Agreement.
"Alternative Currency" means the Euro.
"Alternative Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as reasonably determined by the Administrative Agent or the
L/C Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with Dollars.
"Applicable Percentage" means with respect to any Lender at any time, with
respect to such Lender's Acquisition Facility Commitment at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Acquisition
Facility Commitments represented by such Lender's Acquisition Facility
Commitment at such time; provided that (i) if the commitment of each Lender to
make its portion of the Acquisition Facility Loans and the obligation of the L/C
Issuer to issue the Acquisition Letter of Credit pursuant to Section 2.03(a)(ii)
have been terminated pursuant to Section 8.02 or (ii) if the Aggregate
Acquisition Facility Commitments have expired and (x) the Acquisition Facility
Loans have been advanced, such Lender's portion of the outstanding Acquisition
Facility Loans at any time, the percentage (carried out to the ninth decimal
place) of the outstanding principal amount of the Acquisition Facility Loans
held by such Lender at such time and (y) if no Acquisition Facility Loan has
been advanced, then the Applicable Percentage of each Lender shall be determined
based on the Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments. The initial Applicable Percentage
of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Corporate Ratings as set forth below:
Acquisition Facility Acquisition Facility
Applicable Margin for Applicable Margin
LIBOR Loans/ Letter of for Alternate Base
Level Corporate Ratings Ticking Fee Credit Fee Rate Loans
----- ------------------ ----------- ---------------------- --------------------
I Greater than or 10.0 bps 50.0 bps 0 bps
equal to BBB+/Baa1
II BBB/Baa2 12.5 bps 62.5 bps 0 bps
III BBB-/Baa3 15.0 bps 75.0 bps 0 bps
IV BB+/Ba1 17.5 bps 87.5 bps 0 bps
V BB/Ba2 25.0 bps 112.5 bps 12.5 bps
VI Less than BB/Ba2 37.5 bps 137.5 bps 37.5 bps
"Corporate Rating" means, as of any date of determination, the
rating as determined by the Ratings Agencies as the Parent's corporate
credit (family) rating (collectively, the "Corporate Ratings"); provided
that if a Corporate Rating is issued by
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the Ratings Agencies and there is a split rating, then the highest of such
Corporate Ratings shall apply (with the Corporate Rating for Pricing Level
I being the highest and the Corporate Rating for Pricing Level VI being
the lowest) in determining the Pricing Level. If there is a multiple split
in Corporate Ratings, then the Corporate Rating that is one level lower
than the highest rating shall apply in determining the Pricing Level;
provided, further, however, that the Applicable Rate shall be at pricing
Level VI if no Corporate Rating is available from each of the Rating
Agencies or such Corporate Ratings do not give pro forma effect to the
Acquisition of the Acquired Company (to the extent applicable).
Initially, the Applicable Rate shall be at Level III until the earlier of (x)
ninety (90) days following the Closing Date and (y) the date on which the Parent
has obtained its Corporate Ratings. Thereafter, each change in the Applicable
Rate resulting from a publicly announced change in the Corporate Rating shall be
effective, during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date of the
next such change.
"Applicable Time" means, with respect to any payments in any Alternative
Currency, the local time in the place of settlement for such Alternative
Currency as may be reasonably determined by the Administrative Agent or the L/C
Issuer, as the case may be, in consultation with the Company, to be necessary
for timely settlement on the relevant date in accordance with normal banking
procedures in the place of payment.
"Approved Fund" means any Fund 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.
"Arranger" means Banc of America Securities LLC, in its capacity as lead
arranger and book manager.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit 10.06 or any other form approved by
the Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
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"Audited Financial Statements" means the audited consolidated balance
sheet of the Parent and its Subsidiaries for the fiscal year ended June 30,
2005, and the related consolidated statements of income or retained earnings and
cash flows for such fiscal year of the Parent and its Subsidiaries, including
the notes thereto.
"Bank of America" means Bank of America, N.A. and its successors.
"Xxxx Europe" means Xxxx Laboratories Europe B.V., a private limited
liability company that is a Wholly Owned Subsidiary of the Parent.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a borrowing consisting of simultaneous Loans of the same
Type, in the same currency and, in the case of Eurocurrency Rate Loans, having
the same Interest Period made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office with respect to
Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of any such
Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan,
means any such day on which dealings in deposits in Dollars are conducted
by and between banks in the London interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements,
settlements and payments in Euro in respect of any such Eurocurrency Rate
Loan, or any other dealings in Euro to be
6
carried out pursuant to this Agreement in respect of any such Eurocurrency
Rate Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements
and payments in a currency other than Dollars or Euro in respect of a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, or any other dealings in any currency other than Dollars or Euro to
be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any
such day on which banks are open for foreign exchange business in the
principal financial center of the country of such currency.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"CDA" means the Croatian Central Depositary Agency.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) the Parent shall cease to own directly or indirectly 100% on a
fully diluted basis of the voting interest in the Company's capital stock;
or
(b) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of 35% or more
of the equity securities of the Parent entitled to vote for members of the
board of directors or equivalent governing body of the Parent on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
(c) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the Parent cease to be
7
individuals (i) who were members of that board or equivalent governing
body on the first day of such period, (ii) whose election or nomination to
that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, the Acquisition Facility Commitment
of such Lender.
"Company" has the meaning specified in the introductory paragraph hereto.
"Compliance Certificate" means a certificate in the form of Exhibit 6.02.
"Consolidated Assets" means, at any date, the consolidated assets of the
Parent and its Subsidiaries at such date, as determined in accordance with GAAP.
"Consolidated EBITDA" means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for Federal, state, local and foreign income taxes (including
franchise taxes imposed in lieu thereof) payable by the Parent and its
Subsidiaries for such period, (iii) depreciation and amortization expense, (iv)
write-offs (including, without limitation, write-offs and write-downs of
acquired in-process research and development in connection with Acquisitions and
any write-off of deferred financing costs in connection with the prepayment or
repurchase of Indebtedness prior to the maturity thereof), (v) other non-cash
charges and expenses of the Parent and its Subsidiaries reducing such
Consolidated Net Income (including, without limitation, non-cash restructuring
charges and expenses and compensation expenses realized for grants of
performance shares, stock options, stock purchase rights or other rights to
officers, directors and employees of the Parent or any Subsidiary), (vi)
extraordinary, unusual or non-recurring expense items (including extraordinary
litigation or claim settlement charges or expenses) for such period and the tax
consequences thereof, and (vii) one-time cash expenses incurred in connection
with the making of any Investment (including any Acquisition), the incurrence of
Indebtedness or the offering of Equity Interests, in each case not prohibited by
this Agreement, whether or not the applicable transaction is consummated and
minus (b) the following to the extent included in calculating such Consolidated
Net Income: (i) Federal, state, local and foreign income tax credits of the
Parent and its Subsidiaries for such period, (ii) all non-cash items increasing
Consolidated Net Income for such period, (iii) extraordinary items of income
(other than the proceeds of business
8
interruption insurance and the proceeds from patent challenge settlements) for
such period and the tax consequences thereof and (iv) any cash payments with
respect to the charges and expenses excluded pursuant to clause (a)(v);
provided, however, without duplication, for each of the first four fiscal
quarters ending immediately following the date of the Target Acquisition,
Consolidated EBITDA attributable to the Acquired Company for each fiscal quarter
ending prior to such date (including the fiscal quarter in which the Target
Acquisition occurs) shall be an amount equal to (i) the Consolidated EBITDA
amount for each such quarter set forth on Schedule 1.01A minus (ii) all amounts
attributable to U.S. royalties (or the equivalent thereof) received by the
Acquired Company during each such fiscal quarter related to azithromicyn
multiplied by (iii) a percentage equal to the percentage of the Acquired Company
directly or indirectly owned by the Parent as of the end of such then current
fiscal quarter.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for the Parent and its Subsidiaries on a consolidated basis, the sum, without
duplication, of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) the outstanding principal amount of all purchase money
Indebtedness, (c) the face amount of any Acquisition Letters of Credit
(including the face amount of any letters of credit that constitute "Acquisition
Facility Letters of Credit" pursuant to the Revolving and Term Facility), (d)
any obligations consisting of unreimbursed obligations arising under letters of
credit to the extent the time period for the repayment of such obligations has
elapsed, bankers' acceptances, bank guaranties, surety bonds and similar
instruments and (e) Attributable Indebtedness in respect of capital leases and
Synthetic Lease Obligations.
"Consolidated Funded Indebtedness to Total Capitalization Ratio" means, as
of any date of determination, the ratio of (a) Consolidated Funded Indebtedness
on such date to (b) Consolidated Total Capitalization on such date.
"Consolidated Interest Charges" means, for any period, for the Parent and
its Subsidiaries on a consolidated basis, the sum of (a) all cash interest
expense of the Parent and its Subsidiaries in connection with borrowed money
(including capitalized interest) to the extent treated as interest in accordance
with GAAP minus (b) interest income.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the period of the four
prior fiscal quarters ending on such date to (b) Consolidated Interest Charges
for such period.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended.
"Consolidated Leverage Ratio Stepdown Date" means the earliest to occur of
(a) the date immediately following the first fiscal quarter end of the Parent,
but not prior to March 31, 2007, in which the Consolidated Leverage Ratio as of
such fiscal quarter end is less than or equal to 2.50 to 1.00, (b) the date of
termination of the Acquisition Facility Commitments to make
9
Acquisition Facility Loans and of the obligation of the L/C Issuer to issue the
Acquisition Facility Letter of Credit pursuant to Section 8.02, and (c) the date
on which either the Acquisition Offer has been withdrawn or has expired.
"Consolidated Net Income" means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, the net income of the Parent and its
Subsidiaries for that period; provided, that net income of any Person that is
not a Loan Party shall be excluded if and to the extent that, the declaration of
dividends or distributions by that Person of such net income is not, at the
time, permitted by the terms of its charter, or any agreement, instrument,
judgment, decree, order, statute, rule or government regulation applicable to
that Person.
"Consolidated Net Tangible Assets" means the Consolidated Assets less
goodwill and other intangibles (other than patents, trademarks, licenses,
copyrights and other intellectual property and prepaid assets).
"Consolidated Net Worth" means, as of any date with respect to the Parent
and its Subsidiaries on a consolidated basis, shareholders' equity or net worth,
as determined in accordance with GAAP.
"Consolidated Total Capitalization" means, as of any date of
determination, the sum of (a) Consolidated Funded Indebtedness on such date and
(b) Consolidated Net Worth on such date.
"Contractual Obligation" means, 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.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Corporate Rating" has the meaning specified in the definition of
"Applicable Rate."
"Credit Extension" means an Acquisition Facility Credit Extension.
"Debt Issuance" means the issuance of any Indebtedness for borrowed money
by any Loan Party in excess of $50,000,000 in the aggregate (other than any
Indebtedness under the Revolving and Term Facility).
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
10
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurocurrency Rate Loan, the Default
Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b)
when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans or participations in L/C Obligations required to be funded
by it hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith; provided that "Disposition" and "Dispose" shall not
be deemed to include any issuance of any Equity Interest to another Person.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as reasonably determined by the Administrative Agent or the L/C Issuer,
as the case may be, at such time on the basis of the Spot Rate (determined in
respect of the most recent Revaluation Date) for the purchase of Dollars with
such Alternative Currency.
"Domestic Guarantor" means (a) the Company and the Parent, (b) the parties
identified on the signature pages hereto as "Domestic Guarantors" and (c) each
Person who after the Closing Date becomes a Domestic Guarantor pursuant to a
Guarantor Joinder Agreement or other documentation in form and substance
reasonably acceptable to the Administrative Agent, in each case together with
their respective successors and permitted assigns.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assets" means property that is used or useful in the business of
the Parent and its Subsidiaries.
11
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and the L/C Issuer, and (ii) unless an
Event of Default has occurred and is continuing, the Company (each such approval
not to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Parent any of the Parent's
Affiliates or Subsidiaries; and provided further, however, that an Eligible
Assignee shall include only a Lender, an Affiliate of a Lender or another
Person, which, through its Lending Offices, is capable of lending the applicable
Alternative Currencies to the Borrower without the imposition of any additional
Indemnified Taxes.
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"Equity Issuance" means any issuance by the Parent or any Subsidiary to
any Person of its Equity Interests, other than (a) any issuance of its Equity
Interests pursuant to the exercise of options or warrants, (b) any issuance of
its Equity Interests pursuant to the conversion of any debt
12
securities to equity or the conversion of any class equity securities to any
other class of equity securities, (c) any issuance of options or warrants
relating to its Equity Interests, and (d) any issuance by the Parent of its
Equity Interests as consideration for an Acquisition to the extent permitted
hereunder. The term "Equity Issuance" shall not be deemed to include any
Disposition.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Parent within the meaning of Section
414(b) or (c) of the Code (and Section 414(m) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Parent or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Parent or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
material liability under Title IV of ERISA, other than for PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon the Parent or any ERISA
Affiliate.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurocurrency Rate Loan" means a Loan that bears interest at a rate based
on the Eurocurrency Rate.
"Eurocurrency Base Rate" has the meaning specified in the definition of
Eurocurrency Rate.
"Eurocurrency Rate" means for any Interest Period with respect to a
Eurocurrency Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurocurrency Rate = Eurocurrency Base Rate
--------------------------------------
1.00 - Eurocurrency Reserve Percentage
Where,
"Eurocurrency Base Rate" means, for such Interest Period, the rate
per annum equal to the British Bankers Association LIBOR Rate ("BBA
LIBOR"), as published by
13
Reuters (or other commercially available source providing quotations of
BBA LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in the relevant
currency (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at
such time for any reason, then the "Eurocurrency Base Rate" for such
Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in the relevant
currency for delivery on the first day of such Interest Period in Same Day
Funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch
(or other Bank of America branch or Affiliate) to major banks in the
London or other offshore interbank market for such currency at their
request at approximately 11:00 a.m. (London time) two Business Days prior
to the commencement of such Interest Period.
"Eurocurrency Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurocurrency Rate for each
outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurocurrency Reserve Percentage.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), as a result of a present or former
connection between the Administrative Agent, the Lender, the L/C Issuer or any
other recipient of payment and the jurisdiction (or any political subdivision
thereof) imposing such tax other than a connection arising solely by reason of
this Agreement or any other Loan Documents or, in the case of any Lender, in
which its applicable Lending Office is located, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
Section 10.13), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the applicable Borrower with
respect to such withholding tax pursuant to Section 3.01(a).
14
"Existing Credit Agreement" means that certain Credit Agreement dated as
of August 30, 2004 among the Parent, Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer, JPMorgan Chase Bank, as Syndication
Agent, and the other Lenders party thereto.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated July 21, 2006, among the
Parent, the Administrative Agent and BAS.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States, a State thereof or the District
of Columbia.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to
15
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Granting Lender" has the meaning specified in Section 10.06(g).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien); provided that an
endorsement of any instrument shall not constitute a Guarantee. The amount of
any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantors" means the Domestic Guarantors.
"Guarantor Joinder Agreement" means with respect to any Domestic
Guarantor, a joinder agreement substantially in the form of Exhibit 6.11
executed and delivered in accordance with the provisions of Section 6.11.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Immaterial Subsidiary" means any Subsidiary of any Loan Party that at any
time, together with its Subsidiaries, owns assets (book value) which constitute
less than five percent (5.00%) of the Consolidated Assets and is designated by
the Company in writing as an "Immaterial Subsidiary"; provided, that the
aggregate amount of assets (book value) owned by all Subsidiaries designated as
Immaterial Subsidiaries shall not, at any time, exceed fifteen percent (15.0%)
of the Consolidated Assets.
16
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial, but excluding
commercial letters of credit supporting the purchase of goods in the
ordinary course of business and expiring no more than six months from the
date of issuance), bankers' acceptances, bank guaranties, surety bonds and
similar instruments ;
(c) for purposes of Section 8.01(c) only, net obligations of such
Person under any Swap Contract (other than obligations under any Swap
Contract entered into by the Parent in order to manage existing or
anticipated risk associated with the repurchase by the Parent of shares of
its common Equity Interests);
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations; and
(g) all Guarantees of such Person in respect of any of the
foregoing.
The amount of any net obligation under any Swap Contract on any date shall
be deemed to be the Swap Termination Value thereof as of such date. The amount
of any capital lease or Synthetic Lease Obligation as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof as of
such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Initial Acquisition Facility Loan Funding Date" means the earlier of (a)
the date on which the Acquisition Facility Loan has been advanced by the Lenders
pursuant to Section 2.01(b) to either (i) reimburse an Unreimbursed Amount under
the Acquisition Facility Letter of
17
Credit or (ii) finance the Target Acquisition (with the simultaneous
cancellation of the Acquisition Facility Letter of Credit) and (b) the Initial
Acquisition Facility Loan Funding Date, as such term is defined in the Revolving
and Term Facility.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurocurrency
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each
March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the Company in its Loan Notice or such
other period that is twelve months or less requested by the Company and
consented to by all the Lenders; provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) 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 the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect investment by
such Person, by means of (a) an Acquisition or (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person
and any arrangement pursuant to which the investor Guarantees Indebtedness of
such other Person. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"Investment Guidelines" means the guidelines set forth in the Parent's
"investment policy" approved by the Parent's board of directors on May 11, 2005
(as set forth in Exhibit 1.01 hereto), as amended by any amendments to such
investment policy that do not modify such investment policy in a manner
materially adverse to the Lenders.
"Involuntary Disposition" means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any property of the
Parent or any of its Subsidiaries.
18
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement or instrument entered
into by the L/C Issuer and the Company (or any Subsidiary) or in favor of the
L/C Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing of the Acquisition Facility Loans.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.09. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires.
19
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Company and
the Administrative Agent.
"Letter of Credit" means the Acquisition Facility Letter of Credit, which
may be issued in Dollars or in an Alternative Currency.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means with respect to the Acquisition
Letter of Credit issued in reliance upon the Acquisition Facility Commitments,
January 31, 2007.
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property).
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of an Acquisition Facility Loan.
"Loan Documents" means this Agreement, each Note, each Issuer Document,
each Guarantor Joinder Agreement and the Fee Letter.
"Loan Notice" means a notice of (a) a Borrowing of Acquisition Facility
Loans, (b) a conversion of Loans from one Type to the other, or (c) a
continuation of Eurocurrency Rate Loans, in each case pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit
2.02.
"Loan Parties" means, collectively, the Company and each Guarantor.
"Mandatory Cost" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the business, property, operations or financial
condition of the Parent and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Loan Parties, taken as a whole, to perform
their obligations under any Loan Document; or (c) a material adverse effect upon
the legality, validity, binding effect or enforceability against the Loan
Parties of any Loan Document.
20
"Maturity Date" three hundred sixty-four (364) days from the Initial
Acquisition Facility Loan Funding Date (and if the Initial Acquisition Facility
Loan Funding Date shall not occur, the last day of the Acquisition Facility Loan
Availability Period); provided, however, that, in each case, if such date is not
a Business Day, the Maturity Date shall be the next preceding Business Day.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means any employee pension benefit plan of the type
described in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to
which the Parent or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
"Net Cash Proceeds" means the aggregate cash or cash equivalents proceeds
received by the Parent or any Subsidiary in respect of any Disposition, Equity
Issuance or Debt Issuance, net of (a) costs incurred in connection therewith
(including, without limitation, legal, accounting and investment banking fees,
and sales commissions and other fees and expenses incurred in connection
therewith), (b) taxes paid or payable as a result thereof and (c) in the case of
any Disposition, the amount necessary to retire any Indebtedness secured by a
Permitted Lien on the related property; it being understood that "Net Cash
Proceeds" shall include, without limitation, any cash or cash equivalents
received upon the sale or other disposition of any non-cash consideration
received by the Parent or any Subsidiary in any Disposition, Equity Issuance or
Debt Issuance; provided that no net cash proceeds calculated in accordance with
the foregoing realized in a single transaction or series of related transactions
shall constitute Net Cash Proceeds unless such Net Cash Proceeds exceed
$1,000,000.
"Note" means a promissory note made by a Borrower in favor of a Lender
evidencing Loans made by such Lender to the Borrower, substantially in the form
of Exhibit 2.11(a).
"Obligations" means the unpaid principal of and interest on (including
interest and fees accruing after the maturity date of the Loans and L/C
Obligations and interest accruing after the filing of any proceeding under any
Debtor Relief Laws naming such Person as a debtor in such proceeding, regardless
of whether such interest and fees are allowed claims in such proceeding) on any
Loan, Letter of Credit or any other monetary obligations and liabilities of any
Loan Party to the Administrative Agent or to any Lender (or in the case of Swap
Contracts, any affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred, which may
arise under, out of, or in connection with this Agreement, any other Loan
Document, the Letters of Credit or any Swap Contract 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 or otherwise.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint
21
venture or other applicable agreement of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such
entity.
"Other Taxes" means 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 under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Loans on any date, the
Dollar Equivalent amount of the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of such
Loans occurring on such date; and (ii) with respect to any L/C Obligations on
any date, the Dollar Equivalent amount of the aggregate outstanding amount of
such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements by the Company of Unreimbursed Amounts.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent or the L/C Issuer, as the
case may be, in accordance with banking industry rules on interbank
compensation, and (b) with respect to any amount denominated in an Alternative
Currency, the rate of interest per annum at which overnight deposits in the
applicable Alternative Currency, in an amount approximately equal to the amount
with respect to which such rate is being determined, would be offered for such
day by a branch or Affiliate of Bank of America in the applicable offshore
interbank market for such currency to major banks in such interbank market.
"Parent" means Xxxx Pharmaceuticals, Inc., a Delaware corporation.
"Participant" has the meaning specified in Section 10.06(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Parent or any
ERISA Affiliate or to which the Parent or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
"Permitted Liens" means, at any time, Liens in respect of property of the
Parent or any of its Subsidiaries permitted to exist at such time pursuant to
the terms of Section 7.01.
22
"Permitted Market Investments" means any investment that satisfies the
Investment Guidelines.
"Permitted Transfers" means (a) Dispositions of inventory and immaterial
assets in the ordinary course of business; (b) Dispositions of obsolete or
worn-out property and abandoned or obsolete intellectual property in the
ordinary course of business and Dispositions of property no longer used or
useful in the conduct of business of the Parent and its Subsidiaries that are
Disposed of in the ordinary course of business; (c) Dispositions of property to
the Parent or any Subsidiary; provided, that if the transferor of such property
is a Loan Party the transferee thereof must be a Loan Party; (d) Dispositions of
accounts receivable in connection with the collection or compromise thereof; (e)
licenses, sublicenses, leases or subleases granted to others not interfering in
any material respect with the business of the Parent and its Subsidiaries; (f)
the sale or disposition of cash equivalents for fair market value; (g)
Dispositions of property pursuant to sale-leaseback transactions; (h)
Involuntary Dispositions; (i) Dispositions permitted under Sections 7.04 and
7.05 and Liens permitted under Section 7.01; (j) Dispositions of property to the
extent that (i) such property is exchanged for credit against the purchase price
of similar replacement property or (ii) the proceeds of such Disposition are
promptly applied to the purchase price of such replacement property; (k)
Dispositions made in order to comply with directives or requirements of any
regulatory authority; (l) Dispositions contemplated as of the Closing Date and
listed on Schedule 1.01B; and (m) other Dispositions in an aggregate amount not
to exceed $10,000,000.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Parent or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Pro Forma Basis" has the meaning specified in Section 1.03(c).
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Ratings Agencies" means S&P and Moody's and "Ratings Agency" means any
one of them.
"Register" has the meaning specified in Section 10.06(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
23
"Request for Acquisition Facility Credit Extension" means (a) with respect
to a Borrowing, conversion or continuation of the Acquisition Facility Loans, a
Loan Notice, and (b) with respect to the issuance of the Acquisition Facility
Letter of Credit, a Letter of Credit Application.
"Required Lenders" means, at any time, Lenders holding in the aggregate
more than 50% of (a) the unfunded Commitments and the outstanding Loans, L/C
Obligations and participations therein or (b) if the Commitments have been
terminated, the outstanding Loans, L/C Obligations and participations therein.
The unfunded Commitments of, and the outstanding Loans held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, controller, treasurer, assistant treasurer, secretary or
assistant secretary of a Loan Party. Any document delivered hereunder that is
signed by a Responsible Officer of a Loan Party shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means, with respect to any Person, any dividend or
other distribution (whether in cash, securities or other property) with respect
to any capital stock or other Equity Interest issued by such Person, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other
Equity Interest issued by such Person, or on account of any return of capital to
such Person's stockholders, partners or members (or the equivalent Person
thereof).
"Revaluation Date" means each of the following: (i) each date of issuance
of a Letter of Credit denominated in an Alternative Currency, (ii) each date of
an amendment of any such Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) each date of
any payment by the L/C Issuer under any Letter of Credit denominated in an
Alternative Currency, and (iv) such additional dates as the Administrative Agent
or the L/C Issuer shall reasonably determine or the Required Lenders shall
require.
"Revolving and Term Facility" means that certain Credit Agreement dated as
of the date hereof among Xxxx Laboratories, Inc, a Delaware corporation, Xxxx
Pharmaceuticals, Inc., a Delaware corporation, as a guarantor along with certain
of the domestic subsidiaries of the Parent as guarantors, each lender from time
to time party thereto and Bank of America, N.A., as Administrative Agent and L/C
Issuer.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an
24
Alternative Currency, same day or other funds as may be reasonably determined by
the Administrative Agent or the L/C Issuer, as the case may be, to be customary
in the place of disbursement or payment for the settlement of international
banking transactions in the relevant Alternative Currency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SPC" has the meaning specified in Section 10.06(g).
"Spot Rate" for a currency means the rate reasonably determined by the
Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by
the Person acting in such capacity as the spot rate for the purchase by such
Person of such currency with another currency through its principal foreign
exchange trading office at approximately 11:00 a.m. on the date two Business
Days prior to the date as of which the foreign exchange computation is made;
provided that the Administrative Agent or the L/C Issuer may obtain such spot
rate from another financial institution designated by the Administrative Agent
or the L/C Issuer if the original Person acting in such capacity does not have
as of the date of determination a spot buying rate for any such currency; and
provided further that the L/C Issuer may use such spot rate quoted on the date
as of which the foreign exchange computation is made in the case of any Letter
of Credit denominated in an Alternative Currency.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Parent.
"Swap Contract" means any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
25
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Target Acquisition" means the acquisition by the Parent through Xxxx
Europe of the Tendered Shares on the Initial Acquisition Facility Loan Funding
Date to be implemented consistent with in all material respects and pursuant to
the Acquisition Documentation.
"Target Bankruptcy Event" means the official initiation of bankruptcy
proceedings against the Acquired Company in the court of law of Croatia.
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment
system ceases to be operative, such other payment system (if any) reasonably
determined by the Administrative Agent to be a suitable replacement) is open for
the settlement of payments in Euro.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Tendered Shares" means shares of "Park Place" that shall have been
tendered in response to the Acquisition Offer.
"Ticking Fee Period" means the period of time commencing on the Initial
Acquisition Facility Loan Funding Date and continuing for the remainder of the
Acquisition Facility Loan Availability Period, including at any time during
which one or more of the conditions in Article IV is not met.
"Total Acquisition Facility Outstandings" means the aggregate Outstanding
Amount of all Acquisition Facility Loans and the Acquisition Facility Letter of
Credit.
"Type" means, with respect to a Loan, its character as a Base Rate Loan or
a Eurocurrency Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
26
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
"Wholly Owned Subsidiary" means any Person 100% of whose Equity Interests
are at the time owned by the Parent directly or indirectly through other Persons
100% of whose Equity Interests are at the time owned, directly or indirectly, by
the Parent.
1.02 OTHER INTERPRETIVE PROVISIONS.
With reference to this Agreement and each other Loan Document,
unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iii) the words "herein,"
"hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to, the Loan Document in which such references appear, (v) any reference
to any law shall include all statutory and regulatory provisions
consolidating, amending replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise specified,
refer to such law or regulation as amended, modified or supplemented from
time to time, and (vi) the words "asset" and "property" shall be construed
to have the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities, accounts
and contract rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word
"through" means "to and including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
27
1.03 ACCOUNTING TERMS.
(a) Generally. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements, except
as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Company or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Company shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Company shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and agree
that, for purposes of all calculations made under Section 7.02(d), Section
7.02(q), Section 7.05(g) (in each case, a "Pro Forma Transaction") and the
financial covenants set forth in Section 7.10.
(i) if (A) during the applicable four fiscal quarter period used in making
such calculations under Section 7.10 (the "Measuring Period") or (B) in the case
of any Pro Forma Transaction calculation, to occur after such applicable
Measuring Period (such pro forma calculation to be made as of the last day of
the most recent fiscal quarter for which annual or quarterly financial
statements shall have been delivered), the Parent or any of its Subsidiaries
consummates any Disposition of a Subsidiary, product, product line, business
segment or division (x) income statement items (whether positive or negative)
attributable to the Subsidiary or Property disposed of shall be excluded as if
such Disposition had occurred on the first date of the Measuring Period and (y)
Indebtedness which is retired shall be excluded and deemed to have been retired
as of the first day of the Measuring Period; and
(ii) if (A) during the Measuring Period or (B) in the case of any Pro
Forma Transaction calculation to occur after such applicable Measuring Period
(such pro forma calculation to be made as of the last day of the most recent
fiscal quarter for which annual or quarterly financial statements shall have
been delivered), the Parent or any of its Subsidiaries consummates any
Acquisition (A) income statement items (whether positive or negative)
attributable to the Person or Property acquired shall be included as if such
Acquisition had occurred as of the first date of the Measuring Period and (B) to
the extent not retired in connection with such Acquisition, Indebtedness of the
Person or Property acquired shall be deemed to have been incurred as of the
first day of the Measuring Period.
28
For purposes of determining the Consolidated Leverage Ratio pursuant to
any Pro Forma Transaction , "Pro Forma Basis" shall mean that such ratio is
calculated (i) by determining the denominator in accordance with this Section
1.03(c) and (ii) by taking into account in the numerator all Indebtedness
incurred on the date of the relevant transaction.
1.04 ROUNDING.
Any financial ratios required to be maintained by the Company pursuant to
this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to
the nearest number (with a rounding-up if there is no nearest number).
1.05 EXCHANGE RATES; CURRENCY EQUIVALENTS.
(a) The Administrative Agent or the L/C Issuer, as applicable, shall
determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Alternative Currencies. Such Spot Rates shall become effective as
of such Revaluation Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next Revaluation Date to
occur. Except for purposes of financial statements delivered by Loan Parties
hereunder or calculating financial covenants hereunder or except as otherwise
provided herein, the applicable amount of any currency (other than Dollars) for
purposes of the Loan Documents shall be such Dollar Equivalent amount as so
reasonably determined by the Administrative Agent or the L/C Issuer, as
applicable.
(b) Wherever in this Agreement in connection with the issuance, amendment
or extension of a Letter of Credit, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Letter of Credit is
denominated in an Alternative Currency, such amount shall be the relevant
Alternative Currency Equivalent of such Dollar amount (rounded to the nearest
unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as
reasonably determined by the Administrative Agent or the L/C Issuer, as the case
may be.
1.06 [RESERVED].
1.07 CHANGE OF CURRENCY.
(a) Each obligation of the Borrower to make a payment denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall be redenominated into
Euro at the time of such adoption (in accordance with the EMU Legislation). If,
in relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
any Borrowing in the currency of such member state is
29
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to the change
in currency.
1.08 TIMES OF DAY.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
1.09 LETTER OF CREDIT AMOUNTS.
Unless otherwise specified herein, the amount of a Letter of Credit at any
time shall be deemed to be the Dollar Equivalent of the stated amount of such
Letter of Credit in effect at such time; provided, however, that with respect to
any Letter of Credit that, by its terms or the terms of any Issuer Document
related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed to be the
Dollar Equivalent of the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount
is in effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 ACQUISITION FACILITY LOAN.
(a) [Reserved].
(b) Acquisition Facility Loan. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make its portion of each
Acquisition Facility Loan to the Company in Dollars in up to three separate
draws (on the Initial Acquisition Facility Loan Funding Date and on up to two
additional dates), on any Business Day during the Acquisition Facility Loan
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of such Lender's Acquisition Facility Commitment; provided, however,
that after giving effect to any Borrowing of Acquisition Facility Loans, (i) the
Total Acquisition Facility Outstandings shall not exceed the Aggregate
Acquisition Facility Commitments and (ii) the aggregate Outstanding Amount of
any Acquisition Facility Loan of any Lender, plus such Lender's Applicable
Percentage of the Outstanding Amount of any Acquisition Facility Letter of
Credit, shall not exceed such Lender's Acquisition Facility Commitment. Amounts
repaid on the
30
Acquisition Facility Loan may not be reborrowed. The Acquisition Facility Loan
may consist of Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein, provided, however, all Borrowings made on the Initial Acquisition
Facility Loan Funding Date shall be made as Base Rate Loans.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurocurrency Rate Loans shall be made upon the
Company's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate Loans
denominated in Dollars to Base Rate Loans, (ii) [Reserved], (iii) [Reserved],
and (iv) on the requested date of any Borrowing of Base Rate. Each telephonic
notice by the Company pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company. Each
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be
in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Except as provided in Sections 2.03(c) and 2.04(c) each Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof.
Each Loan Notice (whether telephonic or written) shall specify (i) that
the Company is requesting a Borrowing of the Acquisition Facility Loans, (ii)
whether the Company is requesting a Borrowing, a conversion of Loans from one
Type to the other, or a continuation of Eurocurrency Rate Loans, (iii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iv) the principal amount of Loans to be
borrowed, converted or continued, (v) the Type of Loans to be borrowed or to
which existing Loans are to be converted, (vi) if applicable, the duration of
the Interest Period with respect thereto and (vii) the currency of the Loans to
be borrowed. If the Company fails to specify a currency in a Loan Notice
requesting a Borrowing, then the Loans so requested shall be made in Dollars. If
the Company fails to specify a Type of Loan in a Loan Notice or if the Company
fails to give a timely notice requesting a conversion or continuation, then the
applicable Loans shall be made as, or converted to Base Rate Loans. Any
automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurocurrency
Rate Loans. If the Company requests a Borrowing of, conversion to, or
continuation of Eurocurrency Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month. No Loan may be converted into or continued as a Loan
denominated in a different currency, but instead must be prepaid in the original
currency of such Loan and reborrowed in the other currency.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount (and currency) of its Applicable
Percentage of the applicable Loans, and if no timely notice of a conversion or
continuation is provided by the Company, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans or
continuation of Loans denominated in a currency other than Dollars, in each case
31
as described in the preceding subsection. In the case of a Borrowing, each
Lender shall make the amount of its Loan available to the Administrative Agent
in Same Day Funds at the Administrative Agent's Office for the applicable
currency not later than 1:00 p.m., in the case of any Loan denominated in
Dollars on the Business Day specified in the applicable Loan Notice.
Upon satisfaction or waiver of the applicable conditions set forth in
Section 4.02, Section 4.03, Section 4.04, or Section 4.05 as the case may be
(and, if such Borrowing is on the Closing Date, Section 4.01), the
Administrative Agent shall make all funds so received available to the Company
or the other applicable Borrower in like funds as received by the Administrative
Agent either by (i) crediting the account of the Borrower on the books of Bank
of America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to the Administrative Agent
(and reasonably acceptable to) the Administrative Agent by the Company;
provided, however, that if on the date of the Borrowing of the Acquisition
Facility Loans, there are extensions of credit resulting from a drawing under
the Acquisition Facility Letter of Credit which have not been reimbursed on the
date when made, then the proceeds of such Acquisition Facility Loans, shall
first be applied to the payment in full of any such L/C Borrowings with respect
to the Acquisition Facility Letter of Credit and second, shall be made available
to the Company as provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurocurrency Rate Loan unless the Company pays the amount due, if any, under
Section 3.05 in connection therewith. During the existence of a Default, no
Loans may be requested as, converted to or continued as Eurocurrency Rate Loans
without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Company and the
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Company and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than ten (10) Interest Periods in effect with respect to the
Acquisition Facility Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) [Reserved].
(ii) Acquisition Facility Commitment. Subject to the terms and
conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon
the Acquisition Facility Commitments and the agreements of the Lenders set
forth in this Section 2.03, (1) on any Business Day during the Acquisition
Facility Letter of Credit Availability Period, to issue
32
the Acquisition Facility Letter of Credit denominated in Dollars or in
Euros for the account of the Company, and to amend or extend such
Acquisition Facility Letter of Credit, in accordance with subsection (b)
below, and (2) to honor drawings under the Acquisition Facility Letter of
Credit; and (B) the Lenders severally agree to participate in the
Acquisition Facility Letter of Credit and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with respect
to the Acquisition Facility Letter of Credit, (x) the Total Acquisition
Facility Outstandings shall not exceed the Aggregate Acquisition Facility
Commitments and (y) the aggregate Outstanding Amount of any Acquisition
Facility Loan of any Lender, plus such Lender's Applicable Percentage of
the Outstanding Amount of the Acquisition Facility Letter of Credit shall
not exceed such Lender's Acquisition Facility Commitment. The request by
the Company for the issuance or amendment of the Acquisition Facility
Letter of Credit shall be deemed to be a representation by the Company
that such L/C Credit Extension so requested complies (or such conditions
have been waived) with the conditions set forth in the proviso to the
preceding sentence. The Company's ability to obtain the Acquisition
Facility Letter of Credit shall not be revolving, and accordingly the
Company may not obtain Letters of Credit to replace the Acquisition
Facility Letter of Credit if such Acquisition Facility Letter of Credit
shall have expired or shall have been drawn upon and reimbursed.
(iii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) [Reserved]; or
(B) the expiry date of such requested Letter of Credit would
occur after the applicable Letter of Credit Expiration Date, unless
all the Lenders have approved such expiry date.
(iv) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit,
advise, or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular
or shall impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which
the L/C Issuer is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the L/C Issuer in good xxxxx xxxxx material
to it;
(B) [Reserved];
33
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $500,000;
(D) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is to be denominated in a
currency other than Dollars or an Alternative Currency;
(E) the L/C Issuer does not as of the issuance date of such
requested Letter of Credit issue Letters of Credit in the requested
currency;
(F) a default of any Lender's obligations to fund under
Section 2.03(c) exists or any Lender is at such time a Defaulting
Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with the Company or such Lender to
eliminate the L/C Issuer's risk with respect to such Lender.
(v) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and
immunities (A) provided to the Administrative Agent in Article X with
respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by
it and Issuer Documents pertaining to such Letters of Credit as fully as
if the term "Administrative Agent" as used in Article X included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Company delivered to the L/C Issuer (with
a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer
of the Company. Such Letter of Credit Application must be received by the
L/C Issuer and the Administrative Agent not later than 1:00 p.m. at least
two Business Days (or such later date and time as the Administrative Agent
and the L/C Issuer may agree in a particular instance in their reasonable
discretion) prior to the proposed issuance date or date of amendment, as
the case may be. In the case of a request for an initial issuance of a
Letter of Credit, such Letter of Credit Application shall specify in form
and detail reasonably satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount and requested currency thereof and in the absence of
specification of currency shall be deemed a request for a Letter of Credit
denominated in Dollars; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be
34
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case
of any drawing thereunder; and (G) such other matters as the L/C Issuer
may reasonably require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail reasonably satisfactory to the L/C Issuer (A)
the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may reasonably
require. Additionally, the Company shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Company and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof and inform the
Administrative Agent whether such Letter of Credit Application is for a
standby Letter of Credit. Unless the L/C Issuer has received written
notice from any Lender, the Administrative Agent or any Loan Party, at
least one Business Day prior to the requested date of issuance or
amendment of the Letter of Credit that with respect to the Acquisition
Facility Letter of Credit issued in connection with the Acquisition
Facility Commitments pursuant to Section 2.03(a)(ii), one or more
applicable conditions contained in Section 4.03 shall not then be
satisfied, then, subject to the terms and conditions hereof, the
applicable L/C Issuer shall, on the requested date, issue such Letter of
Credit for the account of the Company or enter into the applicable
amendment, as the case may be, in each case in accordance with the
applicable L/C Issuer's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender shall
be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the applicable L/C Issuer a risk participation in such
Letter of Credit in an amount equal to the product of such Lender's
Applicable Percentage with respect to the Acquisition Facility Letter of
Credit times the amount of such Letter of Credit.
(iii) [Reserved].
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the applicable L/C Issuer will also deliver
to the Company and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Company and the Administrative Agent thereof. In the case of a
Letter of Credit denominated in an Alternative Currency, the Company shall
reimburse the L/C Issuer in such Alternative Currency, unless (A) the L/C
Issuer (at its option) shall have specified in such notice that
35
it will require reimbursement in Dollars, or (B) in the absence of any
such requirement for reimbursement in Dollars, the Company shall have
notified the L/C Issuer promptly following receipt of the notice of
drawing that the Company will reimburse the L/C Issuer in Dollars. In the
case of any such reimbursement in Dollars of a drawing under a Letter of
Credit denominated in an Alternative Currency, the L/C Issuer shall notify
the Company of the Dollar Equivalent of the amount of the drawing promptly
following the determination thereof. Not later than 11:00 a.m. on the
Business Day immediately following any date of any payment by the L/C
Issuer under a Letter of Credit to be reimbursed in Dollars, or the
Applicable Time on the Business Day immediately following any date of any
payment by the L/C Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency (each such date, an "Honor Date"), the Company shall
reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing and in the applicable currency. If the
Company fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date,
the amount of the unreimbursed drawing (expressed in Dollars in the amount
of the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in an Alternative Currency) (the "Unreimbursed Amount"), and
the amount of such Lender's Applicable Percentage thereof. In such event,
with respect to the Acquisition Facility Letter of Credit issued in
connection with the Acquisition Facility Commitments pursuant to Section
2.03(a)(ii), the Company shall be deemed to have requested a Borrowing of
Base Rate Loans (that are Acquisition Facility Loans) to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Acquisition Facility Commitments and
the conditions set forth in Section 4.04 (other than the delivery of a
Loan Notice). Any notice given by the L/C Issuer or the Administrative
Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) To the extent such Unreimbursed Amount relates to the
Acquisition Facility Letter of Credit issued pursuant to Section
2.03(a)(ii), each Lender shall upon any notice pursuant to Section
2.03(c)(i), make its portion of the Acquisition Facility Loans available
to the Administrative Agent for the account of the L/C Issuer, in Dollars,
at the Administrative Agent's Office in an amount equal to its Applicable
Percentage of the Unreimbursed Amount of such Acquisition Facility Letter
of Credit not later than 1:00 p.m. on the Business Day specified in such
notice by the Administrative Agent. The Administrative Agent shall remit
the funds so received to the L/C Issuer in Dollars.
(iii) Any Unreimbursed Amount shall be due and payable on demand and
shall bear interest at the rate applicable to Base Rate Loans from the
Honor Date to the date of reimbursement is required pursuant to Section
2.03(c)(i). Each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such Unreimbursed Amount and
shall constitute an L/C Advance from such Lender with respect to its
Acquisition
36
Facility Commitment in satisfaction of its participation obligation under
this Section 2.03.
(iv) With respect to the Acquisition Facility Letter of Credit
issued pursuant to Section 2.03(a)(ii), until each Lender funds its
Acquisition Facility Loan pursuant to this Section 2.03(c) to reimburse
the L/C Issuer for any amount drawn under the Acquisition Facility Letter
of Credit, interest in respect of such Lender's Applicable Percentage of
such amount shall be solely for the account of the L/C Issuer.
(v) With respect to the Acquisition Facility Letter of Credit issued
pursuant to Section 2.03(a)(ii), each Lender's obligation to make its
portion of the initial Acquisition Facility Loan to reimburse the L/C
Issuer for amounts drawn under the Acquisition Facility Letter of Credit
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, the
Company, any Subsidiary or any other Person for any reason whatsoever; (B)
the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender's obligation to fund its portion of
the Acquisition Facility Loan pursuant to this Section 2.03(c) with
respect to the Acquisition Facility Letter of Credit issued in connection
with the Acquisition Facility Commitments pursuant to Section 2.03(a)(ii),
is subject to the conditions set forth in Section 4.04 (other than
delivery by the Company of a Loan Notice) and its obligation to fund any
other Acquisition Facility Loan is subject to the conditions set forth in
Section 4.05.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.03(c)
by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be
entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the L/C
Issuer in connection with the foregoing. If such Lender pays such amount
(with interest and fees as aforesaid), the amount so paid shall constitute
such Lender's Acquisition Facility Loan included in the relevant Borrowing
or L/C Advance in respect of the relevant L/C Borrower. A certificate of
the L/C Issuer submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.03(c), if
the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Company or otherwise, including proceeds of
37
Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Applicable
Percentage thereof in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the L/C Issuer pursuant to Section
2.03(c)(i) is required to be returned under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered
into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable
Percentage thereof on demand of the Administrative Agent (on behalf of the
L/C Issuer), plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to
the Overnight Rate from time to time in effect. The obligations of the
Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Obligations Absolute.
(i) Except to the extent that any Unreimbursed Amount with respect
to the Acquisition Facility Letter of Credit has been funded with the
advance of the Acquisition Facility Loan, the obligation of the Company to
reimburse the L/C Issuer for each drawing under each Letter of Credit
issued in connection with the Commitments pursuant to Section 2.03(a)(ii)
and to repay each Unreimbursed Amount shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Company or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
38
(v) any adverse change in the relevant exchange rates or in the
availability of the relevant Alternative Currency to the Company or any
Subsidiary or in the relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Company or any Subsidiary.
The Company shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of
any claim of noncompliance with the Company's instructions or other
irregularity, the Company will immediately notify the L/C Issuer. The
Company shall be conclusively deemed to have waived any such claim against
the L/C Issuer and its correspondents unless such notice is given as
aforesaid.
(f) Role of L/C Issuer. Each Lender and the Company agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document. None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee
of the L/C Issuer shall be liable to any Lender for (i) any action taken
or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken
or omitted in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document.
The Company hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement.
None of the L/C Issuer, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of the L/C
Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Company may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to
the Company, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Company
which the Company proves were caused by the L/C Issuer's willful
misconduct or gross negligence or the L/C Issuer's willful failure to pay
under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of
the foregoing, the L/C Issuer may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C
Issuer shall not be responsible for the validity or sufficiency of any
39
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason.
(g) Cash Collateral.
(i) Upon the written request of the Administrative Agent, if, as of
the Letter of Credit Expiration Date (or as of the expiry date with
respect to the Acquisition Facility Letter of Credit), any L/C Obligation
for any reason remains outstanding, the Company shall immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.
(ii) In addition, if the Administrative Agent notifies the Company
at any time, but not more often than once per month, that the Outstanding
Amount of the Acquisition Facility Letter of Credit issued pursuant to
Section 2.03(a)(ii), at such time exceeds 102.5% of the Aggregate
Acquisition Facility Commitments then in effect, then, within two Business
Days after receipt of such notice, the Company shall Cash Collateralize
the L/C Obligations in respect of the Acquisition Facility Letter of
Credit in an amount equal to the amount by which the Outstanding Amount of
such Acquisition Facility Letter of Credit exceeds the Aggregate
Acquisition Facility Commitments then in effect.
(iii) Sections 2.05(b) and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this
Section 2.03(g), Section 2.05(b) and Section 8.02(c), "Cash Collateralize"
means to pledge and deposit with or deliver to the Administrative Agent,
for the benefit of the L/C Issuer and the Lenders, as collateral for the
L/C Obligations, as the case may be, cash or deposit account balances
pursuant to documentation in form and substance reasonably satisfactory to
the Administrative Agent (which documents are hereby consented to by the
Lenders). Derivatives of such term have corresponding meanings. The
Company hereby grants to the Administrative Agent, for the benefit of the
L/C Issuer and the Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked deposit accounts at Bank of
America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Company when a standby Letter of Credit is issued, the rules of
the ISP shall apply to such Letter of Credit to the extent not inconsistent
therewith and if requested by the Company in the applicable Letter of Credit
Application, the laws of the State of New York.
(i) Letter of Credit Fee. With respect to the Acquisition Facility Letter
of Credit issued pursuant to Section 2.03(a)(ii), the Company shall pay to the
Administrative Agent for the account of each Lender (other than a Defaulting
Lender) a Letter of Credit fee (the "Letter of Credit Fee"), in Dollars, in
accordance with its Applicable Percentage equal to the Applicable Rate (set
forth under "Letter of Credit Fee" in such definition) times the Dollar
Equivalent of the daily amount available to be drawn under such Acquisition
Facility Letter of Credit. For purposes of computing the daily amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.09. The Letter of Credit Fee
shall be (i) computed on a quarterly basis in arrears and (ii) due and payable
on the
40
last Business Day of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date (or the expiry date with respect to the
Acquisition Facility Letter of Credit) and thereafter on written demand. If
there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Company shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit, at a rate per annum
specified in the Fee Letter, computed on the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears. Such fronting fee
shall be due and payable on the first Business Day following the last day of
each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date (or on the expiry date with
respect to the Acquisition Facility Letter of Credit) and thereafter on written
demand. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.09. In addition, the Company shall pay directly to the
L/C Issuer for its own account the customary issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of such L/C
Issuer relating to letters of credit disclosed to the Company and in effect from
time to time. Such customary fees and standard costs and charges are due and
payable on written demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Company shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Company hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Company, and that the Company's business derives substantial benefits from the
businesses of such Subsidiaries.
(m) Determination of Exchange Rate. On each Revaluation Date with respect
to each outstanding Letter of Credit denominated in an Alternative Currency, the
L/C Issuer shall reasonably determine the Spot Rate as of such Revaluation Date
with respect to the applicable Alternative Currency and shall promptly notify
the Administrative Agent and the Company thereof and of the Dollar Equivalent of
all Letters of Credit denominated in such Alternative Currency outstanding on
such Revaluation Date. The Spot Rate so reasonably determined shall become
effective on such Revaluation Date and shall remain effective until the next
succeeding Revaluation Date.
2.04 [RESERVED].
41
2.05 PREPAYMENTS.
(a) Voluntary Prepayments of Loans.
(i) Acquisition Facility Loans. Each applicable Borrower may, upon
notice from the Company to the Administrative Agent, at any time or from
time to time voluntarily prepay the Acquisition Facility Loan in whole or
in part without premium or penalty; provided that (A) such notice must be
received by the Administrative Agent not later than 11:00 a.m. (1) three
Business Days prior to any date of prepayment of Eurocurrency Rate Loans
denominated in Dollars and (2) on the date of prepayment of Base Rate
Loans; (B) any prepayment of Eurocurrency Rate Loans denominated in
Dollars shall be in a principal amount of $1,000,000 or a whole multiple
of $500,000 in excess thereof; and (C) any prepayment of Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire principal amount
thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid and, if
Eurocurrency Loans are to be prepaid, the Interest Period(s) of such
Loans. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender's Applicable
Percentage of such prepayment. If such notice is given by the Company, the
applicable Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied
by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment
shall be applied to the Loans of the Lenders in accordance with their
respective Applicable Percentages.
(ii) [Reserved].
(b) Mandatory Prepayments of Loans.
(i) [Reserved].
(ii) Acquisition Facility Commitments. If for any reason the
Outstanding Amount of the Acquisition Facility Letter of Credit at any
time exceeds 102.5% of the Aggregate Acquisition Facility Commitments then
in effect, the Company shall, subject to the provisions of Section
2.03(g)(ii), immediately Cash Collateralize the Acquisition Facility
Letter of Credit issued pursuant to Section 2.03(a)(ii) in an aggregate
amount equal to the amount by which the Outstanding Amount of such
Acquisition Facility Letter of Credit exceeds the Aggregate Acquisition
Facility Commitments then in effect.
(iii) Debt and Equity Issuances. Upon the occurrence of each Debt
Issuance and/or Equity Issuance, to the extent that: (1) the Acquisition
Facility Letter of Credit has been issued pursuant to Section 2.03(a)(ii)
hereunder and remains outstanding and has not been fully cash
collateralized, then immediately upon receipt by the Parent or any
Subsidiary of the Net Cash Proceeds of any such Debt Issuance or Equity
Issuance on or prior to the Initial Acquisition Facility Loan Funding Date
(other than the proceeds of the
42
loan under the Revolving and Term Facility, if any), the Company shall
Cash Collateralize such Acquisition Facility Letter of Credit as hereafter
provided in an aggregate amount equal to 100% of such Net Cash Proceeds
(such prepayment to be applied as set forth in clause (iv) below); (2) any
Loans (or other Obligations pursuant to the Loan Documents) remain
outstanding, then immediately upon receipt by the Parent or any Subsidiary
of the Net Cash Proceeds of any such Debt Issuance or Equity Issuance on
or prior to the Initial Acquisition Facility Loan Funding Date (other than
the proceeds of the loan under the Revolving and Term Facility, if any),
the Company shall prepay such Loans and other Obligations as hereafter
provided in an aggregate amount equal to 100% of such Net Cash Proceeds
(such prepayment to be applied as set forth in clause (iv) below).
(iv) Application of Mandatory Prepayments. All amounts required to
be paid pursuant to this Section 2.05(b) shall be applied as follows:
(A) [Reserved];
(B) with respect to all amounts prepaid pursuant to Section
2.05(b)(ii), to Cash Collateralize the Acquisition Facility Letter
of Credit; and
(C) with respect to all amounts prepaid pursuant to Section
2.05(b)(iii) and (iv), first, to Cash Collateralize the Acquisition
Facility Letter of Credit (if any), second to the outstanding
Acquisition Facility Loans; and
Within the parameters of the applications set forth above,
prepayments shall be applied first to Base Rate Loans and then to
Eurocurrency Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section 2.05(b) shall be
subject to Section 3.05, but otherwise without premium or penalty,
and shall be accompanied by interest on the principal amount prepaid
through the date of prepayment.
(v) Eurocurrency Prepayment Account. If the Company is required to
make a mandatory prepayment of Eurocurrency Rate Loans under this Section
2.05(b), so long as no Event of Default exists, the Company shall have the
right, in lieu of making such prepayment in full, to deposit an amount
equal to such mandatory prepayment with the Administrative Agent in a cash
collateral account maintained (pursuant to documentation reasonably
satisfactory to the Administrative Agent) by and in the sole dominion and
control of the Administrative Agent. Any amounts so deposited shall be
held by the Administrative Agent as collateral for the prepayment of such
Eurocurrency Rate Loans and shall be applied to the prepayment of the
applicable Eurocurrency Rate Loans at the end of the current Interest
Periods applicable thereto or, sooner, at the election of the
Administrative Agent, upon the occurrence of an Event of Default. At the
request of the Company, amounts so deposited shall be invested by the
Administrative Agent in cash equivalents maturing on or prior to the date
or dates on which it is anticipated that such amounts will be applied to
prepay such Eurocurrency Rate Loans; any interest earned on such cash
equivalents will be for the account of the Company and the Company will
deposit with the Administrative Agent the amount of any loss on any such
cash
43
equivalents to the extent necessary in order that the amount of the
prepayment to be made with the deposited amounts may not be reduced.
2.06 TERMINATION OR REDUCTION OF AGGREGATE COMMITMENTS.
(a) Optional Reductions.
(i) [Reserved].
(ii) Acquisition Facility Commitments. The Company may, upon notice
to the Administrative Agent, terminate the Aggregate Acquisition Facility
Commitments, or from time to time permanently reduce the Aggregate
Acquisition Facility Commitments to an amount not less than the
Outstanding Amount of the Acquisition Facility Letter of Credit issued
pursuant to Section 2.03(a)(ii) (if any); provided that (1) any such
notice shall be received by the Administrative Agent not later than 11:00
a.m. three Business Days prior to the date of termination or reduction,
and (2) any such partial reduction shall be in an aggregate amount of
$5,000,000 or any whole multiple of $1,000,000 in excess thereof. The
Administrative Agent will promptly notify the Lenders of any such notice
of termination or reduction of the Aggregate Acquisition Facility
Commitments. Any reduction of the Aggregate Acquisition Facility
Commitments shall be applied to the Acquisition Facility Commitment of
each Lender according to its Applicable Percentage. All fees accrued with
respect thereto until the effective date of any termination of the
Aggregate Acquisition Facility Commitments shall be paid on the effective
date of such termination.
(b) Mandatory Reductions of Acquisition Facility Commitment.
(i) During the Acquisition Facility Letter of Credit Availability
Period, the Aggregate Acquisition Facility Commitments shall be
permanently reduced in an amount equal to the aggregate amount of the Net
Cash Proceeds received by the Parent or any of its Subsidiaries from any
Debt Issuance or Equity Issuance occurring on or before the Acquisition
Facility Letter of Credit Issuance Date (such amount, the "Commitment
Reduction").
(ii) The Acquisition Facility Commitment of each Lender shall
automatically be reduced and correspondingly terminate by the amount
advanced by such Lender with respect to each Acquisition Facility Loan and
the applicable remaining Acquisition Facility Commitment of each Lender,
if any, shall automatically terminate in full upon the last day of the
Acquisition Facility Loan Availability Period.
2.07 REPAYMENT OF LOANS.
(a) [Reserved].
(b) [Reserved].
44
(c) Acquisition Facility Loan. The Company shall repay the outstanding
principal amount of all of the Acquisition Facility Loans outstanding as of the
Maturity Date, unless accelerated sooner pursuant to
Section 8.02.
2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurocurrency
Rate for such Interest Period plus the Applicable Rate plus (in the case of a
Eurocurrency Rate Loan of any Lender which is lent from a Lending Office in the
United Kingdom or a Participating Member State) the Mandatory Cost and (ii) each
Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest until paid
at a fluctuating interest rate per annum at all times equal to the Default Rate
to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest until paid at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iii) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 FEES.
In addition to certain fees described in subsections (i) and (j) of
Section 2.03:
(a) [Reserved].
(b) Ticking Fee - Term Facility. The Company shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Applicable Percentage of its Acquisition Facility Commitment, a ticking
fee in Dollars equal to the applicable rate set forth under "Ticking Fee"
in the definition of Applicable Rate times the actual daily amount of the
Aggregate Acquisition Facility Commitments, as such may
45
be reduced pursuant to Sections 2.06(a)(ii) or 2.06(b)(ii) from time to
time. The ticking fee shall accrue during the Ticking Fee Period, and
shall be due and payable quarterly in arrears on the last Business Day of
each March, June, September and December, commencing with the first such
date to occur during the Ticking Fee Period, and on the last day of the
Acquisition Facility Loan Availability Period (and, if applicable,
thereafter on demand). The ticking fee shall be calculated in arrears, and
if there is any change in the Applicable Rate or the Aggregate Acquisition
Facility Commitments during such period, the actual daily amount shall be
computed and multiplied by the Applicable Rate separately for each portion
of the applicable period that no change to the Applicable Rate or the
Aggregate Acquisition Facility Commitments occurred.
(c) Other Fees. The Company shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letters. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it is
made shall, subject to Section 2.13(a), bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
46
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
2.12 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable
Administrative Agent's Office in Dollars and in Same Day Funds not later than
2:00 p.m. on the date specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments due under this
Agreement be made in the United States. If, for any reason, the Borrower is
prohibited by any Law from making any required payment hereunder in an
Alternative Currency, the Borrower shall make such payment in Dollars in the
Dollar Equivalent of the Alternative Currency payment amount. The Administrative
Agent will promptly distribute to each Lender its Applicable Percentage (or
other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender's Lending Office. All payments received
by the Administrative Agent (i) after 2:00 p.m., in the case of payments in
Dollars, or (ii) after the Applicable Time specified by the Administrative Agent
in the case of payments in an Alternative Currency, shall in each case be deemed
received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by the Borrower shall come
due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 and may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the applicable Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(A) in the case of a payment to be made by such Lender, the Overnight Rate, plus
any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case of a
payment to be made by the Borrower, the interest rate applicable to Base Rate
Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period,
47
the Administrative Agent shall promptly remit to the Borrower the amount of such
interest paid by the Borrower for such period. If such Lender pays its share of
the applicable Borrowing to the Administrative Agent, then the amount so paid
shall constitute such Lender's Loan included in such Borrowing. Any payment by
the Borrower shall be without prejudice to any claim the Borrower may have
against a Lender that shall have failed to make such payment to the
Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from a Borrower
prior to the date on which any payment is due to the Administrative Agent
for the account of the Lenders or the L/C Issuer hereunder that the
Borrower will not make such payment, the Administrative Agent may assume
that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the
Lenders or the L/C Issuer, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the L/C Issuer, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or the L/C Issuer, in immediately available funds with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the
Administrative Agent, at the Overnight Rate.
A notice of the Administrative Agent to any Lender or Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of
any Lender to make any Loan, to fund any such participation or to make any
payment under Section 10.04(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Loan, to purchase its participation or to make its payment under Section
10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
48
2.13 SHARING OF PAYMENTS BY LENDERS.
If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
the Loans made by it, or the participations in L/C Obligations held by it
resulting in such Lender's receiving payment of a proportion of the aggregate
amount of such Loans or participations and accrued interest thereon greater than
its pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and other amounts
owing them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by a Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Loans or subparticipations in L/C Obligations to any
assignee or participant, other than to the Company or any Subsidiary
thereof (as to which the provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.14 [RESERVED].
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the applicable Borrower shall be required
by applicable law to deduct any Indemnified Taxes (including any Other Taxes)
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions
49
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, in connection with a
Loan Document and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to a Borrower by a Lender or the L/C Issuer (with a copy to
the Administrative Agent), or by the Administrative Agent on its own behalf or
on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
a Borrower is resident for tax purposes, or pursuant to any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Company (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Company or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Company or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Company or the Administrative Agent as will enable
the Company or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that a
Borrower is a resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Company and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and
50
from time to time thereafter upon the request of the Company or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
(or any subsequent versions thereof or successors thereto) claiming
eligibility for benefits of an income tax treaty to which the United
States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI
(or any subsequent versions thereof or successors thereto),
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the applicable Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN (or any subsequent versions
thereof or successors thereto), or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Company
to determine the withholding or deduction required to be made.
Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender's status for
U.S. withholding tax purposes, each Lender agrees promptly to deliver to the
Administrative Agent or the Company, as the Administrative Agent or the Company
shall reasonably request, on or prior to the Closing Date, and in a timely
fashion thereafter, such other documents and forms required by any relevant
taxing authorities under the Laws of any other jurisdiction, duly executed and
completed by such Lender, as are required under such Laws to confirm such
Lender's entitlement to any available exemption from, or reduction of,
applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrower pursuant to this Agreement or
otherwise to establish such Lender's status for withholding tax purposes in such
other jurisdiction. Each Lender shall promptly (i) notify the Administrative
Agent of any change in circumstances which would modify or render invalid any
such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws of any such jurisdiction
that the Borrower make any deduction or withholding for taxes from amounts
payable to such Lender. Additionally, of the Borrower shall promptly deliver to
the Administrative Agent or any Lender, as the Administrative Agent or such
Lender shall reasonably request, on or prior to the Closing Date, and in a
timely fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and
completed by the Borrower, as are required to be furnished by such Lender or the
Administrative Agent under such Laws in connection with any payment by
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the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or the L/C Issuer receives a refund of any Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section, it shall pay to the Borrower
an amount equal to such refund (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund), provided
that the Borrower, upon the request of the Administrative Agent, such Lender or
the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or the L/C Issuer to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to the Borrower or any other Person.
3.02 ILLEGALITY.
If, after the date hereof, any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans, or to determine or charge interest rates based upon the
Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars or any Alternative Currency in the applicable interbank
market, then, on notice thereof by such Lender to the Company through the
Administrative Agent, any obligation of such Lender to make or continue
Eurocurrency Rate Loans in the affected currency or currencies or, in the case
of Eurocurrency Rate Loans in Dollars, to convert Base Rate Loans to
Eurocurrency Rate Loans, shall be suspended until such Lender notifies the
Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exist. Upon receipt of such written notice, the Borrower
shall, upon written demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable and such Loans are denominated in Dollars,
convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
3.03 INABILITY TO DETERMINE RATES.
If after the date hereof the Required Lenders determine that for any
reason in connection with any request for a Eurocurrency Rate Loan or a
conversion to or continuation thereof that (a) deposits (whether in Dollars or
an Alternative Currency) are not being offered to banks in the
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applicable offshore interbank market for such currency for the applicable amount
and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan (whether
denominated in Dollars or an Alternative Currency), or (c) the Eurocurrency Rate
for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify
the Company and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurocurrency Rate Loans in the affected currency or currencies shall
be suspended until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice. Upon receipt of such notice, the Company
may revoke any pending request for a Borrowing of, conversion to or continuation
of Eurocurrency Rate Loans in the affected currency or currencies or, failing
that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COSTS; RESERVES ON EUROCURRENCY RATE LOANS.
(a) Increased Costs Generally. If, after the date hereof,:
(i) Any Change in Law shall impose, modify or deem applicable any
reserve, special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the account of, or
credit extended or participated in by, any Lender (except (A) any reserve
requirement reflected in the Eurocurrency Rate and (B) the requirements of
the Bank of England and the Financial Services Authority or the European
Central Bank reflected in the Mandatory Cost, other than as set forth
below) or the L/C Issuer;
(ii) Any Change in Law shall subject any Lender or the L/C Issuer to
any tax of any kind whatsoever with respect to this Agreement, any Letter
of Credit, any participation in a Letter of Credit or any Eurocurrency
Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes
or Other Taxes covered by Section 3.01 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or the L/C
Issuer);
(iii) the Mandatory Cost, as calculated hereunder, does not
represent the cost to any Lender of complying with the requirements of the
Bank of England and/or the Financial Services Authority or the European
Central Bank in relation to its making, funding or maintaining
Eurocurrency Rate Loans; or
(iv) Any Change in Law shall impose on any Lender or the L/C Issuer
or the London interbank market any other condition, cost or expense
affecting this Agreement or Eurocurrency Loans made by such Lender or any
Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan), or
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to increase the cost to such Lender or the L/C Issuer of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation to
participate in or to issue any Letter of Credit), or to reduce the amount of any
sum received or receivable by such Lender or the L/C Issuer hereunder (whether
of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, the Company will pay to such Lender or the L/C Issuer, as the
case may be, such additional amount or amounts as will compensate such Lender or
the L/C Issuer, as the case may be, for such additional costs incurred or
reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Company will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section shall be required to be delivered to the
Company as a condition to the obligations of the Company under such subsections,
shall set forth a calculation by a senior officer of such Lender or the L/C
Issuer in reasonable detail and shall be conclusive absent manifest error. The
Company shall pay such Lender or the L/C Issuer, as the case may be, the amount
shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that no Borrower shall be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
six months prior to the date that such Lender or the L/C Issuer, as the case may
be, notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof).
(e) Reserves on Eurocurrency Rate Loans. The Company shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency
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liabilities"), additional interest on the unpaid principal amount of each
Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive absent manifest error), which shall be due and
payable on each date on which interest is payable on such Loan, provided the
Company shall have received at least 10 days' prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender
fails to give notice 10 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of such
notice.
3.05 COMPENSATION FOR LOSSES.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Company shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
the Company;
(c) any failure by the Borrower to make payment of any Loan or
drawing under any Letter of Credit (or interest due thereon) denominated
in an Alternative Currency on its scheduled due date or any payment
thereof in a different currency; or
(d) any assignment of a Eurocurrency Rate Loan on a day other than
the last day of the Interest Period therefor, but only as a result of a
request by the Company pursuant to Section 10.13;
including any loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain such Loan or from fees payable to
terminate the deposits from which such funds were obtained (but excluding
any loss of the Applicable Rate for Eurocurrency Rate Loans). The Company
shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.
For purposes of calculating amounts payable by the Company to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Base Rate used in
determining the Eurocurrency Rate for such Loan by a matching deposit or other
borrowing in the offshore interbank market for such currency for a comparable
amount and for a comparable period, whether or not such Eurocurrency Rate Loan
was in fact so funded.
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3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Company hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Company may replace such Lender in accordance with Section
10.13.
3.07 SURVIVAL.
All of the Borrower's obligations under this Article III shall survive
termination of the Commitments and repayment of all other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement is
subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of
which shall be originals, telecopies or copies in portable document format
sent through electronic mail (followed promptly by originals unless
otherwise agreed to by the Administrative Agent) unless otherwise
specified, each properly executed by a Responsible Officer of the signing
Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each
in form and substance reasonably satisfactory to the Administrative Agent
and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender
that has requested a Note at least two days prior to the Closing
Date;
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(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may
reasonably require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other
Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is
duly organized or formed, and that the Company and each Guarantor is
validly existing, in good standing and qualified to engage in
business in each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so would not
reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Simpson, Thacher & Xxxxxxxx LLP,
counsel to the Loan Parties, addressed to the Administrative Agent
and each Lender on the Closing Date, in a form reasonably acceptable
to the Administrative Agent; and
(vi) evidence that the Existing Credit Agreement has been or
concurrently with the Closing Date is being terminated.
(b) Any fees required to be paid on or before the Closing Date shall
have been paid.
(c) Unless waived by the Administrative Agent, the Company shall
have paid all reasonable fees, charges and disbursements of legal counsel
to the Administrative Agent to the extent invoiced at least one Business
Day prior to the Closing Date, plus such additional invoiced amounts of
such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude a final settling of accounts
between the Company and the Administrative Agent).
(d) [Reserved].
(e) The Closing Date shall have occurred on or before December 31,
2006.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or reasonably
acceptable or reasonably satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing
Date specifying its objection thereto.
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4.02 [RESERVED].
4.03 CONDITIONS TO ISSUANCE OF ACQUISITION LETTER OF CREDIT.
The obligation of the L/C Issuer to honor any request to issue the
Acquisition Facility Letter of Credit pursuant to Section 2.03(a)(ii) hereunder
is subject to the following conditions precedent:
(a) The Administrative Agent shall have received satisfactory
confirmation that no Target Bankruptcy Event shall have occurred.
(b) The Administrative Agent and the L/C Issuer shall have received
a Letter of Credit Application in accordance with Section 2.03 during the
Acquisition Facility Letter of Credit Availability Period.
4.04 CONDITIONS TO EXTENSION OF ACQUISITION FACILITY LOAN.
The obligation of each Lender to honor any Request for the initial
Acquisition Facility Credit Extension (other than a Loan Notice requesting only
a conversion of Acquisition Facility Loans to the other Type, or a continuation
of Eurocurrency Rate Loans), is subject to the following conditions precedent:
(a) Receipt by the Administrative Agent of notice from (i) the CDA
of a calculation of the purchase price for the Tendered Shares
demonstrating that such shares, together with shares of "Park Place"
already owned by the Parent or the Company, give voting rights of more
than 50% of total votes in the general assembly of "Park Place" (plus any
ancillary costs related to such tender) or (ii) notice from the Company
that Xxxx Europe has agreed to waive the 50% plus one share requirement in
the Acquisition Offer; provided, however, with respect to clause (ii)
above, to the extent that the Parent or any of its Subsidiaries has
entered into a contract or agreement to purchase the shares of "Park
Place" owned directly or indirectly by (A) Actavis Group hf and (B) the
government of the Republic of Croatia (Vlada Republike Hrvatske), the
aggregate amount of such shares plus the Tendered Shares shall equal more
than 50% of total votes in the general assembly of "Park Place".
(b) Receipt by the Administrative Agent of satisfactory confirmation
that no Target Bankruptcy Event shall have occurred.
(c) To the extent that the Acquisition Facility Letter of Credit has
been issued, receipt by the Administrative Agent of satisfactory evidence
that such Acquisition Facility Letter of Credit has expired, has been
cancelled or will be cancelled promptly following the funding of the
Acquisition Facility Loan in accordance with such funding procedures
acceptable to the Guarantor Bank and the L/C Issuer in their sole
discretion.
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(d) Receipt by the Administrative Agent of a Request for Acquisition
Facility Credit Extension in accordance with the requirements hereof and
within the Acquisition Facility Loan Availability Period.
4.05 CONDITIONS TO EXTENSION OF EACH ACQUISITION FACILITY LOAN AFTER THE
INITIAL ACQUISITION FACILITY LOAN FUNDING DATE.
The obligation of each Lender to honor any Request for an Acquisition
Facility Credit Extension other than the Acquisition Facility Loan made on the
Initial Acquisition Facility Loan Funding Date, if any (other than a Loan Notice
requesting only a conversion of Acquisition Facility Loans to the other Type, or
a continuation of Eurocurrency Rate Loans), is subject to the following
conditions precedent:
(a) The Initial Acquisition Facility Loan Funding Date shall have
occurred.
(b) No Acquisition Facility Letter of Credit remains outstanding.
(c) No more than two Acquisition Facility Loans shall have been made
prior to the requested Acquisition Facility Loan and the Total Acquisition
Facility Outstandings after giving effect to such Borrowing shall not
exceed the then applicable Aggregate Acquisition Facility Commitments.
(d) The representations and warranties of the Borrower and each
other Loan Party contained in Article V or any other Loan Document, or
which are contained in any document furnished at any time under or in
connection herewith or therewith shall be true and correct in all material
respects on and as of the date of such Acquisition Facility Credit
Extension as if made on and as of such date (except to the extent such
representations and warranties expressly relate to another date in which
case such representations and warranties shall be true and correct in all
material respects as of such date.
(e) No Default shall exist, or would result from such proposed
Acquisition Facility Credit Extension or from the application of the
proceeds thereof.
(f) The Administrative Agent shall have received a Request for
Acquisition Facility Credit Extension from the Company in accordance with
the requirements hereof and within the Acquisition Facility Loan
Availability Period.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Administrative Agent and
the Lenders that:
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5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.
Each Loan Party and each Subsidiary thereof (a) is duly organized or
formed, validly existing and in good standing under the Laws of the jurisdiction
of its incorporation or organization, (b) has all requisite power and authority
and all requisite governmental licenses, authorizations, consents and approvals
to (i) own its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party and (c)
is duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in the
case referred to in clause (a) above with respect to Immaterial Subsidiaries
only and in each case referred to in clause (b)(i) or (c), to the extent that
failure to do so would not reasonably be expected to have a Material Adverse
Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, or require any payment to be made under (i) any material
Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any material
order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (c) violate any
material Law applicable to such Loan Party or its properties. Each Loan Party
and each Subsidiary thereof is in compliance with all Contractual Obligations
referred to in clause (b)(i), except to the extent that failure to do so would
not reasonably be expected to have a Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document, except (i) such an approval, consent, exemption, authorization, or
other action by, or notice to, or filing with a Person other than a Governmental
Authority the absence of which would not reasonably be expected to have a
Material Adverse Effect, (ii) such approvals, consents, exceptions,
authorizations, other actions or notices or filings as have been obtained, taken
or made, as applicable and are in full force and effect and (iii) filings with
the Securities and Exchange Commission.
5.04 BINDING EFFECT.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is party thereto. This Agreement constitutes, and each other Loan Document when
so delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is
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party thereto in accordance with its terms subject to Debtor Relief Laws and
general principles of equity (whether considered in a proceeding in equity or
law) and an implied covenant of good faith and fair dealing.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Parent and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Parent and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
would reasonably be expected to have a Material Adverse Effect.
5.06 LITIGATION.
There are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of any Responsible Officer of the Parent or the Company,
threatened, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Parent or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate would reasonably be
expected to have a Material Adverse Effect.
5.07 NO DEFAULT.
Neither the Parent nor any Subsidiary is in default under or with respect
to any Contractual Obligation in a manner that would, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.08 OWNERSHIP OF PROPERTY; LIENS.
Each of the Parent, the Company and each of its Subsidiaries has good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of its business,
except for such defects in title as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property of the
Parent and its Subsidiaries is subject to no Liens, other than Liens permitted
by Section 7.01.
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5.09 ENVIRONMENTAL COMPLIANCE.
Each of the Parent and the Company has reasonably concluded, with respect
to the businesses, operations and properties of the Parent, the Company and
their respective Subsidiaries that the effect of existing Environmental Laws and
claims alleging potential liability or responsibility for violation of any
Environmental Law would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5.10 TAXES.
Each of the Parent, the Company and its Subsidiaries have filed (i) all
Federal and state income tax returns and (ii) all other material Federal, state
and other tax returns and reports required to be filed, and have paid all
material Federal, state and other taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. To the knowledge of any
Responsible Officer of the Parent or the Company, there is no proposed tax
assessment against the Parent, the Company or any Subsidiary that would, if
made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary
thereof is party to any tax sharing agreement with any Person that is not a
Subsidiary.
5.11 ERISA COMPLIANCE.
(a) Each Plan is in compliance with the applicable provisions of ERISA,
the Code and other Federal or state Laws, except where the failure to comply
with such provisions would not reasonably be expected to have a Material Adverse
Effect. Each Plan that is intended to qualify under Section 401(a) of the Code
has received a favorable determination letter from the IRS or an application for
such a letter is either currently being processed by the IRS with respect
thereto or will be timely filed within applicable deadlines, and, to the best
knowledge of the Company, nothing has occurred which would prevent, or cause the
loss of, such qualification, except where the failure to qualify would not
reasonably be expected to have a Material Adverse Effect. The Company and each
ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan except for those that would not, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that would reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
would reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event that, either individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect has occurred or
is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension
Liability that, either individually or in
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the aggregate, would reasonably be expected to have a Material Adverse Effect;
(iii) neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA) that, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect; (iv) neither the Company nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan that, either individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect; and (v) neither
the Company nor any ERISA Affiliate has engaged in a transaction that would be
subject to Sections 4069 or 4212(c) of ERISA that, either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
5.12 SUBSIDIARIES.
The Domestic Subsidiaries and Foreign Subsidiaries of the Parent and the
Company and their respective jurisdictions of incorporation on the Closing Date
shall be as set forth on Schedule 5.12. The exact legal name of each Loan Party
as of the Closing Date is as set forth on the signature pages hereto.
5.13 MARGIN REGULATIONS; INVESTMENT COMPANY ACT.
No Loan Party is engaged or will engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.
5.14 DISCLOSURE.
No report, financial statement, certificate or other information furnished
(whether in writing or orally) by a Responsible Officer on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement,
hereunder or under any other Loan Document (in each case, as modified or
supplemented by other information so furnished or made available publicly)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Parent represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time (it being understood that the projected financial
information is subject to significant uncertainties and contingencies, many of
which are beyond the Parent's control, and that no assurance can be given that
any projections will be realized).
5.15 COMPLIANCE WITH LAWS.
Each of the Parent, the Company and its Subsidiaries is in compliance in
all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law
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or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
5.16 INTELLECTUAL PROPERTY; LICENSES, ETC.
Each of the Parent, the Company and its Subsidiaries own, or possess the
right to use, all of the trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property
rights (collectively, "IP Rights") that are reasonably necessary for the
operation of their respective businesses, except as would not reasonably be
expected to have a Material Adverse Effect.
5.17 [RESERVED].
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Loan Parties shall and shall cause their
Subsidiaries to (except that the covenants set forth in Sections 6.01, 6.02, and
6.03 shall not apply to the Subsidiaries):
6.01 FINANCIAL STATEMENTS.
Deliver to the Administrative Agent:
(a) as soon as available, but in any event within 90 days (or within five
days of such other time period required by the SEC) after the end of each fiscal
year of the Parent (commencing with the fiscal year ended June 30, 2006), a
consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any "going
concern" or like qualification, assumption or exception or any qualification,
assumption or exception as to the scope of such audit; and
(b) as soon as available, but in any event within 45 days (or within five
days of such other time period required by the SEC) after the end of each of the
first three fiscal quarters of each fiscal year of the Parent (commencing with
the fiscal quarter ended September 30, 2006), a consolidated balance sheet of
the Parent and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of income or operations, shareholders' equity
and cash flows for such fiscal quarter and for the portion of the Parent's
fiscal year then ended, setting
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forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, certified by a Responsible
Officer of the Parent as fairly presenting the financial condition, results of
operations, shareholders' equity and cash flows of the Parent and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
The Parent shall not be separately required to furnish information under
clause (a) or (b) above that has previously been furnished pursuant to Section
6.02(d).
6.02 CERTIFICATES; OTHER INFORMATION.
Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to
in Section 6.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge was obtained of any Default under
the financial covenants set forth herein or, if any such Default shall exist,
stating the nature and status of such Default (which certificate may be limited
to the extent required by accounting rules or guidelines);
(b) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b) (commencing with the delivery of the financial
statements for the fiscal quarter ended September 30, 2006), a duly completed
Compliance Certificate signed by a Responsible Officer of the Company setting
forth in the form of the Compliance Certificate, the computation of the
financial covenants in Section 7.10 as of the last day of the fiscal quarter
most recently ended;
(c) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Parent generally, and copies of all annual, regular,
periodic and special reports and registration statements which the Parent may
file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto; and
(d) promptly, such additional information regarding the business,
financial or corporate affairs of the Parent or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
through the Administrative Agent may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Parent posts such documents, or provides a link thereto on the Parent's website
on the Internet at the website address listed on Schedule 10.02; or (ii) on
which such documents are posted on the Parent's behalf on an Internet or
intranet website, if any, to which
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each Lender and the Administrative Agent have access (whether a commercial,
third-party website or sponsored by the Administrative Agent); provided that the
Parent shall notify the Administrative Agent (by telecopier or electronic mail)
of the posting of any such documents and, upon the Administrative Agent's
request, provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance the Company shall be required to provide
paper copies of the Compliance Certificates required by Section 6.02(b) to the
Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Company with any such request for
delivery, and each Lender shall be solely responsible for maintaining its copies
of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
BAS will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Borrower hereunder (collectively,
"Borrower Materials") by posting the Borrower Materials on IntraLinks or another
similar electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower, the Parent or its
securities) (each, a "Public Lender"). The Borrower and the Parent hereby agree
that (x) all Borrower Materials that are to be made available to Public Lenders
shall be clearly and conspicuously marked "PUBLIC" which, at a minimum, shall
mean that the word "PUBLIC" shall appear prominently on the first page thereof;
and (y) the Administrative Agent and BAS shall be entitled to treat the Borrower
Materials that are not marked "PUBLIC" as being suitable only for posting on a
portion of the Platform not designated "Public Investor." Notwithstanding the
foregoing, no Borrower shall be under any obligation to xxxx the Borrower
Materials "PUBLIC." Notwithstanding anything to the contrary contained in this
Agreement, including Section 8.01 hereof, the failure of the Borrower to comply
with the provisions of this paragraph shall not constitute a Default or an Event
of Default hereunder.
6.03 NOTICES.
Promptly notify the Administrative Agent:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or would reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of the Parent, the Company or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Parent, the Company or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Parent, the Company
or any Subsidiary, including pursuant to any applicable Environmental Laws, in
each case that has resulted or would reasonably be expected to result in a
Material Adverse Effect;
(c) of the occurrence of any ERISA Event that, either individually or in
the aggregate, would reasonably be expected to have a Material Adverse Effect;
and
66
(d) of any announcement by any Rating Agency of any change in a Corporate
Rating.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and (except in the case of clause (d)) stating what action
the Company has taken and proposes to take with respect thereto. Each notice
pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
6.04 PAYMENT OF OBLIGATIONS.
Pay and discharge as the same shall become due and payable, all its
material obligations and liabilities, including (a) all material tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets and (b) all material lawful claims which, if unpaid, would
by law become a Lien upon its property (other than a Lien permitted by Section
7.01), 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 Parent or its
Subsidiaries, as the case may be, except in the case of clause (b), to the
extent any failure to pay, discharge or otherwise satisfy could not reasonably
be expected to have a Material Adverse Effect.
6.05 PRESERVATION OF EXISTENCE, ETC.
(a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except (i) in a transaction permitted by Section 7.04 and (ii) with
respect to Immaterial Subsidiaries only, as would not reasonably be expected to
have a Material Adverse Effect; (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in
the normal conduct of its business, except to the extent that failure to do so
would not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation or non-renewal of which would reasonably be
expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted, except where the failure to do so
would not reasonably be expected to have a Material Adverse Effect and (b) make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so would not reasonably be expected to have a Material Adverse
Effect.
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6.07 MAINTENANCE OF INSURANCE.
Maintain insurance with respect to its properties and business against
loss or damage of the kinds customarily insured against by Persons engaged in
the same or similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons and/or
maintain a system or systems of self-insurance or assumption of risk which
accords with the practices of similar businesses.
6.08 COMPLIANCE WITH LAWS AND CONTRACTUAL OBLIGATIONS.
Comply in all material respects with the requirements of all (a)
Contractual Obligations and (b) Laws (including Environmental Laws and ERISA
matters) and all orders, writs, injunctions and decrees applicable to it or to
its business or property, except in such instances in which (i) such requirement
of Contractual Obligation, Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (ii)
the failure to comply therewith would not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS.
Maintain proper books of record and account, in which true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the
Parent or such Subsidiary, as the case may be.
6.10 USE OF PROCEEDS.
The issuance by the L/C Issuer of the Acquisition Facility Letter of
Credit pursuant to Section 2.02(a)(ii) shall be used for the purpose of
supporting the Acquisition Offer and the proceeds of Acquisition Facility Loans
shall be used for the purpose of (x) reimbursing the L/C Issuer for any
Unreimbursed Amount with respect to any unreimbursed drawing under the
Acquisition Facility Letter of Credit, (y) financing, together with the proceeds
of the Revolving and Term Facility, if any, the Target Acquisition (with the
simultaneous cancellation of the Acquisition Letter of Credit, if any) and the
payment of fees and expenses incurred in connection with the Target Acquisition
or (z) after the occurrence of the Target Acquisition, but during the
Acquisition Facility Loan Availability Period, financing, together with the
proceeds of the Revolving and Term Facility, if any, the acquisition by the
Parent through Xxxx Europe of additional voting shares of "Park Place" and the
payment of fees and expenses incurred in connection with such acquisition.
6.11 ADDITIONAL GUARANTORS.
(a) Where Domestic Subsidiaries that are not Guarantors (the
"Non-Guarantor Domestic Subsidiaries") shall at any time:
(i) in any instance for any such Non-Guarantor Domestic Subsidiary,
constitute more than five percent (5%) of the Consolidated Assets as of
the end of the immediately preceding fiscal quarter, or
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(ii) in the aggregate for all such Non-Guarantor Domestic
Subsidiaries, constitute more than fifteen percent (15%) of the
Consolidated Assets as of the end of the immediately preceding fiscal
quarter,
(clauses (i) and (ii) immediately above, collectively, the "Domestic Threshold
Requirement"), then the Company shall (A) notify the Administrative Agent
thereof within ten days after a Responsible Officer has knowledge thereof, and
(B) within thirty days thereafter, (1) cause enough Domestic Subsidiaries to
become a Domestic Guarantor by execution of a Guarantor Joinder Agreement, such
that immediately after joinder as a Guarantor, the remaining Non-Guarantor
Subsidiaries shall not in any instance, or collectively, exceed the Domestic
Threshold Requirement and (2) deliver with the Guarantor Joinder Agreement such
supporting resolutions, incumbency certificates, corporate formation and
organizational documentation and opinions of counsel as the Administrative Agent
may reasonably request.
(b) [Reserved].
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied (other than
contingent indemnification obligations not due and payable), or any Letter of
Credit shall remain outstanding, neither the Parent nor the Company shall, nor
shall they permit any of their respective Subsidiaries to, directly or
indirectly (except that the covenant set forth in Section 7.05 shall only apply
to the Parent):
7.01 LIENS.
Create, incur, assume or suffer to exist any Lien upon any of their
property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01;
(c) any modifications, replacements, renewals or extensions of Liens
otherwise permitted hereby (including in connection with refinancings or
refundings of the related obligations), provided that (i) the property covered
thereby is not expanded or increased and (ii) the principal amount of the
obligations secured or benefited thereby is not increased (except for accrued
interest and a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred in connection with such renewal or extension);
69
(d) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(e) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business securing obligations
which are not overdue for a period of more than 60 days or which are being
contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the
applicable Person;
(f) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance, other social security
legislation, product liability insurance and self-insurance, other than any Lien
imposed by ERISA;
(g) banker's Liens, rights of setoff, deposits to secure the performance
of bids, trade contracts and leases (other than Indebtedness), statutory
obligations, surety bonds, performance bonds and other obligations of a like
nature and to secure letters of credit in respect thereof, in each case incurred
in the ordinary course of business;
(h) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which 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 applicable Person;
(i) Liens securing judgments not constituting an Event of Default under
Section 8.01(h) or securing appeal or other surety bonds related to such
judgments;
(j) any Lien on any asset securing the payment of all or part of the price
of the acquisition, construction or improvement of such asset; provided that (i)
such Liens do not at any time encumber any property other than the property
whose acquisition, construction or improvement was financed by such Indebtedness
and the proceeds thereof and (ii) the Indebtedness secured thereby does not
exceed the cost of the property being acquired, constructed or improved;
(k) any Lien existing on any asset of, or Equity Interest in, any Person
at the time such asset is acquired by or such Person becomes, is merged or
consolidated with or into, or is acquired by, a Subsidiary, which Lien was not
created in contemplation of such event;
(l) Liens in favor of the Parent, Liens granted by a Subsidiary that is
not a Loan Party in favor of a Loan Party and Liens granted by a Subsidiary that
is not a Loan Party in favor of a Subsidiary that is not a Loan Party;
(m) Liens on goods (and the proceeds thereof) and documents of title and
the property covered thereby securing Indebtedness in respect of commercial
letters of credit;
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(n) Liens that have been placed by any developer, landlord or other third
party on property over which the Parent or any Subsidiary has easement rights or
on any real property leased by the Parent or any Subsidiary and subordination or
similar agreements relating thereto;
(o) any condemnation or eminent domain proceedings affecting any real
property;
(p) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of any asset, which asset is acquired by the
Parent or a Subsidiary in a transaction entered into in the ordinary course of
business;
(q) Liens on the proceeds of assets that were subject to Liens permitted
hereunder or on assets acquired with such proceeds as a replacement of such
former assets;
(r) Liens on the assets of any Subsidiary that is not a Domestic Guarantor
hereunder, to the extent securing Indebtedness permitted under Section 7.03;
(s) Liens arising from precautionary Uniform Commercial Code financing
statements regarding operating leases not constituting Indebtedness or
consignments; and
(t) Liens on the assets of the Loan Parties not otherwise permitted hereby
securing Indebtedness (without duplication) in an aggregate principal amount at
any time outstanding, together with Indebtedness permitted by Section 7.03(g),
not exceeding an amount equal to 10% of the Consolidated Net Tangible Assets as
of the end of the immediately preceding fiscal quarter of the Parent at the time
of incurrence.
7.02 INVESTMENTS.
Make any Investments, except:
(a) Investments held by the Parent or such Subsidiary in the form of
deposit accounts or cash equivalents;
(b) advances of payroll payments to employees in the ordinary course of
business and advances to officers, directors and employees of the Parent and
Subsidiaries, for travel, entertainment, relocation and analogous ordinary
business purposes or in connection with the award of stock under stock incentive
and stock option plans;
(c) Investments of the Parent or the Company in any Domestic Subsidiary
and Investments of any Subsidiary in the Company or in a Domestic Subsidiary;
(d) Investments in any Foreign Subsidiary; provided, that if such
Investment is by a Loan Party in a Foreign Subsidiary that is not a Loan Party,
prior to and after giving effect to any such Investment, (i) no Default shall
have occurred and be continuing before and after giving effect to such
Investment on a Pro Forma Basis and (ii) to the extent that the Consolidated
Leverage Ratio after giving effect to such Investment on a Pro Forma Basis shall
be greater than 3.50 to 1.00, the aggregate amount of such Investments permitted
pursuant to this clause (d) shall
71
not exceed $100,000,000 during the period when the consolidated Leverage Ratio
is greater than 3.50 to 1.00;
(e) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(f) Permitted Market Investments other than Acquisitions;
(g) Investments existing on the date hereof and listed on Schedule 7.02
and any renewals, amendments and replacements thereof to the extent the amount
thereof is not increased;
(h) prepayments and other credits to suppliers made in the ordinary course
of business;
(i) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security or similar legislation;
(j) pledges or deposits in connection with (i) the performance of bids,
trade contracts (other than for borrowed money), leases or statutory
obligations, (ii) contingent obligations on surety or appeal bonds, and (iii)
other obligations of a like nature, in each case incurred in the ordinary course
of business;
(k) operating contracts between or among the Parent and/or its
Subsidiaries in the ordinary course of business that are not intended to be
Investments;
(l) Investments consisting of non-cash consideration received in the form
of notes, securities or similar obligations in connection with any sale or other
disposition otherwise permitted by this Agreement;
(m) Investments in the form of Swap Contracts;
(n) Investments in the form of prepaid expenses;
(o) the Target Acquisition and any additional acquisitions by the Parent
through Xxxx Europe of additional voting shares of "Park Place" acquired with
the Acquisition Facility Loans hereunder and/or the "Acquisition Facility Loans"
under the Revolving and Term Facility;
(p) Investments of a Subsidiary acquired after the Closing Date or of a
corporation merged into the Company or merged or consolidated with a Subsidiary
after the Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or consolidation
and were in existence on the date of such acquisition, merger or consolidation
and were in existence on the date of such acquisition, merger or consolidation;
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(q) Investments in the form of Acquisitions and Investments in other
Persons, including, without limitation, joint ventures, for the purpose of
developing, producing, marketing or distributing goods for the Parent or any of
its Subsidiaries; provided, that prior to and after giving effect to any such
Acquisition (to the extent the consideration for such Acquisition does not
consist of Equity Interests of the Parent) or other Investment, (i) no Default
shall have occurred and be continuing and (ii) to the extent that the
Consolidated Leverage Ratio after giving effect to such Investment on a Pro
Forma Basis shall be greater than 3.50 to 1.00, the aggregate amount of such
Investments other than Acquisitions with Equity Interests of the Parent
permitted pursuant to this clause (q) shall not exceed $250,000,000 during the
period when the Consolidated Leverage Ratio exceeds 3.50 to 1.00; and
(r) other Investments not listed above in an aggregate amount not to
exceed $75,000,000 at any time outstanding, net of repayments.
7.03 NON-LOAN PARTY INDEBTEDNESS.
Permit any Subsidiary that is not a Domestic Guarantor to create, incur,
assume or suffer to exist any Indebtedness, except:
(a) Indebtedness outstanding on the date hereof and listed on Schedule
7.03 and any refinancings, refundings, renewals or extensions thereof; provided
that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to
accrued interest and a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such refinancing,
refunding, renewal or extension and by an amount equal to any existing
commitments unutilized thereunder;
(b) Indebtedness in respect of capital leases, Synthetic Lease Obligations
and obligations for all or part of the price of the acquisition, construction or
improvement of fixed or capital assets within the limitations set forth in
Section 7.01(j);
(c) Indebtedness owing to a Loan Party or owing to another Subsidiary that
is not a Loan Party to the extent the making of such loan by such Loan Party or
Subsidiary that is not a Loan Party is permitted by Section 7.02;
(d) Swap Contracts not entered into for any speculative purpose but to
manage a Subsidiary's risks in respect of fluctuations in interest rates,
currency exchange rates, or similar risks or for any other valid business
purposes;
(e) Indebtedness in respect of performance bonds, bid bonds, appeal bonds,
surety bonds and similar obligations, in each case provided in the ordinary
course of business;
(f) Indebtedness as an account party in respect of trade letters of
credit;
(g) Guarantees of Indebtedness of any Person that is not a Loan Party; and
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(h) secured or unsecured Indebtedness in an aggregate principal amount not
to exceed 12.5% of the Consolidated Net Tangible Assets as of the end of the
immediately preceding fiscal quarter of the Parent at the time of incurrence.
7.04 FUNDAMENTAL CHANGES.
Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except that, so long as no Default exists or would
result therefrom:
(a) (i) any Subsidiary of the Parent (other than the Company) may merge
with (A) the Parent or the Company, provided that the Parent or the Company, as
the case may be, shall be the continuing or surviving Person or (B) any one or
more Persons, provided that when any Guarantor is merging with another Person
which is not a Guarantor hereunder, the Guarantor shall be the continuing or
surviving Person or the surviving Person shall become a Guarantor and (ii) the
Company and the Parent may merge provided that (A) the Company shall be the
continuing or surviving Person or (B) if the Parent shall be the continuing or
surviving Person, (x) the Borrower shall provide written notice to the
Administrative Agent prior to such merger or consolidation and (y) the Parent
shall assume contemporaneously with such merger or consolidation all of the
obligations of the Borrower under this Agreement and the other Loan Documents
pursuant to documentation reasonably satisfactory to the Administrative Agent.
Following any merger pursuant to this Section 8.04(a)(ii), all references to
"Parent" and to the "Borrower" shall be read as references to the Person
surviving the merger;
(b) any Subsidiary of the Company may Dispose of all or substantially all
of its assets (upon voluntary liquidation or otherwise) (i) to the Company or to
another Subsidiary and (ii) to any other Person to the extent required pursuant
to the Revolving and Term Facility; and
(c) any Subsidiary may liquidate or dissolve or the Company or any
Subsidiary may sell, transfer, lease or otherwise Dispose of the assets or
Equity Interests of any Subsidiary if, in each case, the Company determines in
good faith that such liquidation, dissolution, sale, transfer, lease or other
Disposition is in the best interests of the Company and is not materially
disadvantageous to the Lenders.
7.05 RESTRICTED PAYMENTS.
Declare or make, directly or indirectly, any Restricted Payment except
that the Parent may declare and make cash dividend payments or other
distributions with respect to the redemption, retirement, purchase or other
acquisition of the capital stock of the Parent (or any warrant, option or other
rights with respect to any shares of capital stock (including common or
preferred) now or hereafter outstanding of the Parent) so long as (i) no Default
shall have occurred and be continuing before and after giving effect to such
payment or distribution on a Pro Forma Basis and (ii) to the extent that the
Consolidated Leverage Ratio after giving effect to such payment or distribution
on a Pro Forma Basis shall be greater than 3.50 to 1.00, the
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aggregate amount of such payments and distributions permitted pursuant to this
clause (g) shall not exceed $200,000,000 during the period when the Consolidated
Leverage Ratio is greater than 3.50 to 1.00.
7.06 CHANGE IN NATURE OF BUSINESS.
Engage in any material line of business substantially different from those
lines of business conducted by the Parent, the Company and their Subsidiaries on
the date hereof or any business substantially related, incidental or
complementary thereto (and any reasonable extensions or expansions thereof).
7.07 TRANSACTIONS WITH AFFILIATES.
Enter into any transaction of any kind with any Affiliate of the Parent,
whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the applicable Loan Party as
would be obtainable by such Loan Party at the time in a comparable arm's length
transaction with a Person other than an Affiliate; provided that the foregoing
restriction shall not apply to (a) transactions between or among the Parent, the
Company and/or their Subsidiaries and/or any other Person in which the Parent,
the Company and/or their Subsidiaries owns an Equity Interest (provided that no
Affiliate of the Parent or any Subsidiary, other than the Parent or a Subsidiary
owns any Equity Interests in such other Person), (b) Restricted Payments
permitted by Section 7.05, (c) Investments permitted by Section 7.02, (d)
transactions in connection with any joint enterprise or other joint arrangement
with any Affiliate if the Parent or relevant Subsidiary (as applicable)
participates on a basis no less advantageous than the basis on which such
Affiliate participates, (e) the payment or grant of reasonable compensation,
benefits and indemnities to, and any other employment or severance arrangements
with, any director, officer, employee or agent of the Parent or any Subsidiary,
(f) loans and other transactions by the Parent, the company and the Subsidiaries
to the extent permitted under this Article 7, (g) Restricted Payments permitted
under Section 7.05 and (h) transactions and agreements in existence on the date
hereof and listed on Schedule 7.07, transactions pursuant to such agreements,
renewals and extensions of such agreements and transactions after the date
hereof on terms that are substantially similar to the terms of such agreements.
7.08 RESTRICTIVE AGREEMENTS.
Enter into any Contractual Obligation (other than this Agreement or any
other Loan Document) that:
(a) Limits the ability of the Parent or any Subsidiary to create, incur,
assume or suffer to exist Liens on property of such Person to secure the
Obligations hereunder; provided, however, that the foregoing shall not apply to:
(A) limitations existing under or by reason of any agreement in
effect on the Closing Date and set forth on Schedule 7.08;
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(B) encumbrances or restrictions existing under or by reason of any
document or instrument governing Indebtedness permitted hereunder,
provided that the encumbrances and restrictions are not materially more
restrictive than the corresponding encumbrances and restrictions contained
in the Loan Documents;
(C) limitations on the transfer of assets subject to a Lien
permitted under Section 7.01 to the extent such limitation relates solely
to the assets which are the subject of such Lien;
(D) customary limitations on subletting or assignment of any lease
governing a leasehold interest of the Parent or any Subsidiary;
(E) limitations on the transfer of any property subject to a
contract of sale or transfer so long as such limitations apply only to the
property to be sold or transferred and such sale or transfer is permitted
under this Agreement;
(F) limitations existing under or by reason of any agreement of a
Person acquired by the Parent or any Subsidiary as in effect at the time
of such acquisition (but not created in connection with or in
contemplation of such acquisition), to the extent that the relevant
limitations therein are not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of
the Person so acquired (including its Subsidiaries);
(G) customary limitations (including financial maintenance
covenants) existing under or by reason of leases entered into in the
ordinary course of business;
(H) customary limitations in joint venture agreements that relate
solely to the joint venture or the Equity Interests therein;
(I) limitations existing under or by reason of Indebtedness of any
Subsidiary other than a Loan Party that relate solely to such Subsidiary
and are in the ordinary course of business; and
(J) any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (A) through
(I) above, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings, are, in the good faith judgment of the Company, not
materially less favorable to the Loan Parties and the Lenders with respect
to such limitations than those contained in the contracts, instruments or
obligations prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing; or
(b) Requires the grant of a Lien to secure an obligation of such Person if
a Lien is granted to secure the Obligations, except for limitations,
encumbrances or restrictions referenced in clauses (A), (B), (F), (I) or (J) of
Section 7.08(a).
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7.09 USE OF PROCEEDS.
Use the proceeds of any Credit Extension, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to
others for the purpose of purchasing or carrying margin stock, except, in each
case, in compliance with law (including Regulations U and X of the FRB).
7.10 FINANCIAL COVENANTS.
(a) Until the Corporate Ratings as determined by the Ratings Agencies
shall each be BBB+ or higher and Baa1 or higher, respectively, as of the end of
any fiscal quarter of the Parent, then:
(i) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of any fiscal quarter of the Parent
to be less than 3.00 to 1.00.
(ii) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as of the end of any fiscal quarter of the Parent;
(1) ending after the Closing Date, but prior to the earlier of
the Acquisition Facility Letter of Credit Issuance Date and the
Initial Acquisition Facility Loan Funding Date, to be greater than
3.00 to 1.00.
(2) ending after the Acquisition Facility Letter of Credit
Issuance Date, if any, but prior to the Initial Acquisition Facility
Loan Funding Date, to be greater than 4.50 to 1.00.
(3) ending after the Initial Acquisition Facility Loan Funding
Date, but on or prior to the earlier of the Consolidated Leverage
Ratio Stepdown Date and September 30, 2007, to be greater than 4.00
to 1.00.
(4) ending on or after October 1, 2007, but on or prior to the
earlier of the Consolidated Leverage Ratio Stepdown Date and
September 30, 2008, to be greater than 3.50 to 1.00.
(5) at all other times, to be greater than 3.00 to 1.00.
(b) Once the Corporate Ratings as determined by the Ratings Agencies shall
each be BBB+ or higher and Baa1 or higher, respectively, as of the end of any
fiscal quarter of the Parent, and thereafter:
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Consolidated Funded Indebtedness to Total Capitalization. Permit the
Consolidated Funded Indebtedness to Total Capitalization Ratio, at any
time, to be greater than 0.50 to 1.00.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within five days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder or any
other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Company or any other Loan Party fails to
perform or observe any term, covenant or agreement contained in (i) Section
6.03(a) and such failure continues for 5 days after the earlier of a Responsible
Officer becoming aware of such Default or notice thereof by the Administrative
Agent or any Lender or (ii) Section 6.05 (with respect to corporate existence),
or 6.10 or Article VII, or in Article XI; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the earlier of a Responsible Officer becoming aware
of such Default or notice thereof by the Administrative Agent or any Lender; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Company or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall prove to have been
incorrect in any material respect when made or deemed made; or
(e) Cross-Default. The Parent or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise, but in any event beyond any period of grace
or cure therein provided) in respect of any Indebtedness (other than
Indebtedness hereunder) having an aggregate principal amount of more than
$50,000,000, or (B) fails to observe or perform, beyond any period of grace or
cure therein provided, 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 occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded
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or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity; or
(f) Insolvency Proceedings, Etc. The Parent or any Subsidiary (other than
an Immaterial Subsidiary) institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Parent or any Subsidiary
(other than an Immaterial Subsidiary) becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 60 days after its issue or levy;
or
(h) Judgments. There is entered against the Parent or any Subsidiary
(other than an Immaterial Subsidiary) a final judgment or order for the payment
of money in an aggregate amount exceeding $50,000,000 (to the extent not covered
by insurance) and there is a period of 60 consecutive days during which (i) a
stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect and (ii) such judgment or order has not been paid,
vacated or discharged; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or would reasonably be expected to result
in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC that would reasonably be expected to have a
Material Adverse Effect or (ii) the Parent or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan and such failure could reasonably be expected to have
a Material Adverse Effect; or
(j) Invalidity of Loan Documents. Any material provision of any Loan
Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or thereunder or satisfaction in full of
all the Obligations, ceases to be in full force and effect; or any Loan Party
contests in any manner the validity or enforceability of any material provision
of any Loan Document; or any Loan Party denies in writing that it has any or
further liability or obligation under any Loan Document (other than as a result
of the repayment in full of the Obligations), or purports to revoke, terminate
or rescind any material provision of any Loan Document; or
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(k) Change of Control. There occurs any Change of Control.
8.02 REMEDIES UPON EVENT OF DEFAULT.
If any Event of Default occurs and is continuing, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Company Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry
of an order for relief with respect to the Borrower under the Bankruptcy Code of
the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Company to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
Notwithstanding anything to the contrary in this Section 8.02, during the
Acquisition Facility Loan Availability Period through the Initial Acquisition
Facility Loan Funding Date, the Administrative Agent and the Lenders shall not
be entitled to terminate Acquisition Facility Commitments except in connection
with the occurrence of a Target Bankruptcy Event.
8.03 APPLICATION OF FUNDS.
After the exercise of remedies provided for in Section 8.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 8.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:
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First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders and the L/C Issuer (including fees, charges and disbursements of counsel
to the respective Lenders and the L/C Issuer and amounts payable under Article
III), ratably among them in proportion to the amounts described in this clause
Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Company or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and neither
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the Borrower nor any other Loan Party shall have rights as a third party
beneficiary of any of such provisions.
9.02 RIGHTS AS A LENDER.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative
Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.
9.03 EXCULPATORY PROVISIONS.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of
their respective Affiliates that is communicated to or obtained by the
Person serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Company, a
Lender or the L/C Issuer.
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The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Company), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES.
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT.
The Administrative Agent may at any time give notice of its resignation to
the Lenders, the L/C Issuer and the Company. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, with, so long as no
Default or Event of Default shall have occurred
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or be continuing, the Company's consent (which consent shall not be unreasonably
withheld), to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, with, so
long as no Default or Event of Default shall have occurred or be continuing, the
Company's consent (which consent shall not be unreasonably withheld), appoint a
successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Company and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by the
Company to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Company and such
successor. After the retiring Administrative Agent's resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer, (b) the retiring L/C
Issuer shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents, and (c) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangement satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender and the L/C Issuer acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or
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any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC.
Anything herein to the contrary notwithstanding, none of the Bookrunners
or Arrangers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.03(i) and
(j), 2.09 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Lender and the L/C Issuer to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the L/C Issuer, to pay to
the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of
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any Lender or to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
9.10 GUARANTY MATTERS.
(a) If any Domestic Subsidiary that has become a Domestic Guarantor solely
because of the requirements of Section 6.11(a), subsequently owns assets (book
value) which constitute less than five percent (5.00%) of the aggregate book
value of the Consolidated Assets for a period of two consecutive fiscal quarters
or if a Guarantor ceases to be a Subsidiary as a result of a transaction
permitted hereunder, then such Domestic Subsidiary or Foreign Subsidiary shall
be released as a Guarantor upon the written request of the Company and shall no
longer be a Guarantor hereunder.
(b) Subject to clause (a) above, the Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, to release any Guarantor from
its obligations under Article XI. Upon request by the Administrative Agent at
any time, the Required Lenders will confirm in writing the Administrative
Agent's authority to release any Guarantor from its obligations under Article XI
pursuant to this Section 9.10.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Company or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Company or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall:
(a) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02) without the written
consent of such Lender;
(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the
second proviso to this Section 10.01) any fees or other amounts payable
hereunder or under any other Loan Document, without the written consent of
each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary to amend the definition
of
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"Default Rate" or to waive any obligation of the Borrower to pay interest
or Letter of Credit Fees at the Default Rate;
(d) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written
consent of each Lender;
(e) amend the definition of "Alternative Currency" without the
written consent of each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or
(g) release all or substantially all of the Guarantors from their
Obligations under Article XI without the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the L/C Issuer in addition to the Lenders
required above, affect the rights or duties of the L/C Issuer under this
Agreement or any Issuer Document relating to any Letter of Credit issued or to
be issued by it; (ii) [Reserved]; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document; and (iv) the Fee Letters may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent or the L/C Issuer,
to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
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Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Company
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.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the Administrative
Agent, the and L/C Issuer may change its address, telecopier or telephone number
or e-mail address for notices and other communications hereunder by notice to
the other parties hereto. Each other Lender may change its address, telecopier
or telephone number or e-mail address for notices and other communications
hereunder by notice to the Company, the Administrative Agent and the L/C Issuer.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof, except that such parties
may not rely on such notices if they do so in bad faith or if doing so would be
grossly negligent or would constitute willful misconduct. The Company shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly
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given by or on behalf of the Borrower, except for such losses, costs, expenses
and liabilities that result from such parties' bad faith, gross negligence or
willful misconduct. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES.
No failure by any Lender, the L/C Issuer or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder 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.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Company shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) but notwithstanding the foregoing, the Borrower shall not be
responsible for the fees, charges or disbursements of more than one firm of
legal counsel (and one local counsel in each applicable jurisdiction), (ii) all
reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder but notwithstanding the foregoing, the Company
shall not be responsible for the fees, charges or disbursements of one firm of
legal counsel (and one local counsel in each applicable jurisdiction) and (iii)
all out-of-pocket expenses incurred by the Administrative Agent, any Lender or
the L/C Issuer (including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or the L/C Issuer), in connection with the
enforcement of its rights in connection with this Agreement and the other Loan
Documents, including its rights under this Section.
(b) Indemnification by the Company. The Company shall indemnify the
Administrative Agent (and any sub-agent thereof), the Guarantor Bank, each
Lender and the L/C Issuer, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the fees, charges and disbursements of one counsel
(and one local counsel in each applicable jurisdiction) for all Indemnitees),
incurred by any Indemnitee or asserted against any Indemnitee by any third party
or by the Borrower or any other Loan Party arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, the Guarantor
Bank Guaranty, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions
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contemplated hereby or thereby, (ii) any Loan, Guarantor Bank Guaranty or Letter
of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit
or the Guarantor Bank Guaranty if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit or
Guarantor Bank Guaranty, as applicable), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Parent or any of its Subsidiaries, or any Environmental Liability, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory, and
regardless of whether any Indemnitee is a party thereto, in all cases, whether
or not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined to have
resulted from the bad faith, gross negligence or willful misconduct of such
Indemnitee or (y) result from a claim brought by the Company or any other Loan
Party against an Indemnitee for breach of such Indemnitee's obligations
hereunder or under any other Loan Document.
(c) Reimbursement by Lenders. To the extent that the Company for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, each party hereto shall not assert, and hereby waives, any
claim against any Indemnitee or any other party hereto, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred
to in subsection (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
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(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and the L/C Issuer, the replacement of any Lender
and the repayment, satisfaction or discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE.
To the extent that any payment by or on behalf of the Borrower is made to
the Administrative Agent, the L/C Issuer or any Lender, or the Administrative
Agent, the L/C Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent,
the L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such
setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees
to pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the applicable Overnight Rate from
time to time in effect, in the applicable currency of such recovery or payment.
The obligations of the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns permitted
hereby, provided, that none of the Loan Parties (except in connection with a
transaction permitted under Section 7.04 hereunder), the Parent or the Company
may assign or otherwise transfer any of its rights or obligations hereunder or
thereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Loans (including for purposes
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of this subsection (b), participations in L/C Obligations) at the time owing to
it); provided that any such assignment shall be subject to the following
conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the related Loans at the
time owing to it or in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this
Section, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not then
in effect, the principal outstanding balance of the 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 or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$1,000,000 of an Acquisition Facility Commitment (and the related
Acquisition Facility Loans thereunder) unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing,
the Company otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single assignee (or to an assignee and members of its
Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met.
(ii) [Reserved].
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this
Section and, in addition:
(A) the consent of the Company (such consent not to be
unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such
assignment or (2) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not
to be unreasonably withheld or delayed) shall be required for
assignments in respect of (i) any Acquisition Facility Commitment if
such assignment is to a Person that is not a Lender with a
Commitment in respect of the Commitment subject to such assignment,
an Affiliate of such Lender or an Approved Fund with respect to such
Lender or (ii) any Acquisition Facility Loan to a Person that is not
a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) the consent of the L/C Issuer (such consent not to be
unreasonably withheld or delayed) shall be required for any
assignment that increases the
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obligation of the assignee to participate in exposure under one or
more Letters of Credit (whether or not then outstanding); and
(D) [Reserved].
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee in the amount,
if any, required as set forth in Exhibit 10.06; provided, however, that
the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.
(v) No Assignment to Company. No such assignment shall be made to
the Company or any of the Company's Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party to
this Agreement 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 3.01, 3.04, 3.05 and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office 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 amounts of the Loans and L/C Obligations 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. The Register shall be
available for inspection by the Borrower and any Lender at any reasonable time
and from time to time upon reasonable prior notice.
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(d) Participations. Any Lender may at any time, without the consent of, or
notice to, any Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Company or any of the Company's
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations) owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the other Lenders and the L/C
Issuer shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in Section 11.01(a) that affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
(e) Limitation on Participant Rights. A Participant shall not be entitled
to receive any greater payment under Section 3.01 or 3.04 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 3.01 unless the
Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (a "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company, the option to provide all or any part of
any Loan that such Granting Lender would otherwise be obligated to make pursuant
to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof and (iii) nothing herein shall entitle an SPC to have or receive any
greater rights (including, without limitation, any greater payment under Section
3.01 or 3.04) than the applicable Lender would have been entitled to receive
94
hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent as , and as if, such Loan were made by
such Granting Lender. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section 10.06, any SPC may (i) with notice to, but
(except as provided below) without the prior written consent of, the Company and
the Administrative Agent and without paying any processing fee therefor, assign
all or a portion of its interests in any Loans to the Granting Lender or to any
financial institutions (consented to by the Company and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC (it being agreed that each SPC shall be bound
by the provisions of Section 10.7 to the same extent as if it were a Lender).
This section may not be amended without the written consent of the SPC.
(h) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions Act
(i) Resignation as L/C Issuer after Assignment. Notwithstanding anything
to the contrary contained herein, if at any time Bank of America assigns all of
its Commitment and Loans pursuant to subsection (b) above, Bank of America may,
upon thirty days' notice to the Company and the Lenders, resign as L/C Issuer.
In the event of any such resignation as L/C Issuer, the Company shall be
entitled to appoint from among the Lenders a successor L/C Issuer hereunder;
provided, however, that no failure by the Company to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer. If Bank of
America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as L/C Issuer and
all L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). Upon the appointment of a successor L/C
Issuer, (1) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer, as the case
may be, and (2) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other
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arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
a Borrower and its obligations, (g) with the consent of the Company or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Company.
For purposes of this Section, "Information" means all information received
from the Parent or any Subsidiary relating to the Company or any Subsidiary or
any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Parent or any Subsidiary,
provided that, in the case of information received from the Parent or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
10.08 RIGHT OF SETOFF.
If an Event of Default shall have occurred and be continuing, each Lender,
the L/C Issuer and each of their respective Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by applicable
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower
or any other Loan Party against any and all of the obligations of the Borrower
or such Loan Party now or hereafter existing under this Agreement or any other
Loan Document to such Lender or the L/C Issuer, irrespective of
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whether or not such Lender or the L/C Issuer shall have made any demand under
this Agreement or any other Loan Document and although such obligations of the
Borrower or such Loan Party may be contingent or unmatured or are owed to a
branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of
each Lender, the L/C Issuer and their respective Affiliates under this Section
are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each
Lender and the L/C Issuer agrees to notify the Company and the Administrative
Agent promptly after any such setoff and application, provided that the failure
to give such notice shall not affect the validity of such setoff and
application.
10.09 INTEREST RATE LIMITATION.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Company. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS.
This Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and
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notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
10.12 SEVERABILITY.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
10.13 REPLACEMENT OF LENDERS.
If (a) any Lender requests compensation under Section 3.04, (b) if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
(c) if any Lender is a Defaulting Lender, or (d) if any Lender fails to consent
to any amendment to this Agreement requested by the Parent or the Company which
requires the consent of all of the Lenders (or all of the Lenders affected
thereby) and which is consented to by the Required Lenders, then the Company
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(i) the Company shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b);
(ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts);
(iii) such assignment does not conflict with applicable Laws; and
(iv) if the replacement is being made pursuant to clause (d) above,
the replacement financial institution shall consent to the requested
amendment.
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A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Company to require such assignment and delegation
cease to apply.
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN
NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT
OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY HERETO
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY
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PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 NO ADVISORY OR FIDUCIARY RESPONSIBILITY.
In connection with all aspects of each transaction contemplated hereby,
the Borrower and each other Loan Party acknowledges and agrees, that: (i) the
credit facilities provided for hereunder and any related arranging or other
services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document) are an
arm's-length commercial transaction between the Borrower, the other Loan Parties
and their respective Affiliates, on the one hand, and the Administrative Agent
and the Arranger, on the other hand, and the Borrower and the other Loan Parties
are capable of evaluating and understanding and understand and accept the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such transaction, the
Administrative Agent and the Arranger each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for any of the
Borrower, any other Loan Parties or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor the Arranger has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of the Borrower or any other Loan
Party with respect to any of the transactions contemplated hereby or the process
leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Loan Document (irrespective of whether the
Administrative Agent or the Arranger has advised or is currently advising any of
the Borrower, the other Loan Parties or their respective Affiliates on other
matters) and neither the Administrative Agent nor the Arranger has any
obligation to any of the Borrower, the other Loan Parties or their respective
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; (iv) the
Administrative Agent and the Arranger and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Borrower, the other Loan Parties and their respective Affiliates,
and neither the Administrative Agent nor the Arranger has any obligation to
disclose any of such interests by
100
virtue of any advisory, agency or fiduciary relationship; and (v) the
Administrative Agent and the Arranger have not provided and will not provide any
legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Loan Document) and the Borrower and each
other Loan Party has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate. The Borrower and each other
Loan Party hereby waives and releases, to the fullest extent permitted by law,
any claims that it may have against the Administrative Agent and the Arranger
with respect to any breach or alleged breach of agency or fiduciary duty.
10.17 USA PATRIOT ACT NOTICE.
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of each of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
10.18 JUDGMENT CURRENCY.
If, for the purposes of obtaining judgment in any court, it is necessary
to convert a sum due hereunder or any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of the Borrower in respect of any such
sum due from it to the Administrative Agent or the Lenders hereunder or under
the other Loan Documents shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent may in accordance with normal
banking procedures 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 Administrative Agent from the Borrower in the Agreement
Currency, the Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency
so purchased is greater than the sum originally due to the Administrative Agent
in such currency, the Administrative Agent agrees to return the amount of any
excess to the Borrower (or to any other Person who may be entitled thereto under
applicable law).
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ARTICLE XI
GUARANTY
11.01 THE GUARANTY.
(a) Each of the Domestic Guarantors hereby jointly and severally
guarantees to each Lender and the Administrative Agent and each Lender and each
Affiliate of a Lender that enters into a Swap Contract, as primary obligor and
not as surety, the prompt payment of the Obligations in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) strictly in accordance with the terms
thereof. The Domestic Guarantors hereby further agree that if any of the
Obligations are not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Domestic Guarantors will, jointly and severally, promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Obligations, the same will
be promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
in accordance with the terms of such extension or renewal.
(b) [Reserved].
(c) Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents or Swap Contracts, the obligations of each
Guarantor (in its capacity as such) under this Agreement and the other Loan
Documents shall be limited to an aggregate amount equal to the largest amount
that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable Law.
11.02 OBLIGATIONS UNCONDITIONAL.
(a) The obligations of the Domestic Guarantors under Section 11.01 are
joint and several, absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Loan Documents
or Swap Contracts, or any other agreement or instrument referred to therein, or
any substitution, compromise, release, impairment or exchange of any other
guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable Law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 11.02 that the
obligations of the Domestic Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. Each Domestic Guarantor agrees
that such Guarantor shall have no right of subrogation, indemnity, reimbursement
or contribution against the Borrower or any other Guarantor for amounts paid
under this Article XI until such time as the Obligations have been irrevocably
paid in full and the commitments relating thereto have expired or terminated.
(b) [Reserved].
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(c) Without limiting the generality of the foregoing subsections (a) and
(b), it is agreed that, to the fullest extent permitted by Law, the occurrence
of any one or more of the following shall not alter or impair the liability of
any Guarantor hereunder, which shall remain absolute and unconditional as
described above:
(i) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall be
waived;
(ii) any of the acts mentioned in any of the provisions of any of
the Loan Documents, any Swap contract between any Loan Party and any
Lender, or any Affiliate of a Lender or any other agreement or instrument
referred to therein shall be done or omitted;
(iii) the maturity of any of the Obligations shall be accelerated,
or any of the Obligations shall be modified, supplemented or amended in
any respect, or any right under any of the Loan Documents, any Swap
Contract between any Loan Party and any Lender, or any Affiliate of a
Lender or any other agreement or instrument referred to therein shall be
waived or any other guarantee of any of the Obligations or any security
therefor shall be released, impaired or exchanged in whole or in part or
otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Administrative Agent
or any holder of the Obligations as security for any of the Obligations
shall fail to attach or be perfected; or
(v) any of the Obligations shall be determined to be void or
voidable (including for the benefit of any creditor of any Guarantor) or
shall be subordinated to the claims of any Person (including any creditor
of any Guarantor).
(d) With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest, notice of
acceptance of the guaranty given hereby and of extensions of credit that may
constitute obligations guaranteed hereby, notices of amendments, waivers,
consents and supplements to the Loan Documents, any Swap Contract between any
Loan Party and any Lender, or any Affiliate of a Lender, or the compromise,
release or exchange of collateral or security, and all other notices whatsoever,
and any requirement that the Administrative Agent or any holder of the
Obligations exhaust any right, power or remedy or proceed against any Person
under any of the Loan Documents or any other documents relating to the
Obligations or any other agreement or instrument referred to therein, or against
any other Person under any other guarantee of, or security for, any of the
Obligations.
11.03 REINSTATEMENT.
Neither the Guarantors' obligations hereunder nor any remedy for the
enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or limitation
of the liability of the Borrower, by reason of the Borrower's bankruptcy or
insolvency or by reason of the invalidity or unenforceability of all or any
portion of the Obligations. In addition:
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(a) The obligations of each Domestic Guarantor under this Article XI
shall be automatically reinstated if and to the extent that for any reason
any payment by or on behalf of any Person in respect of the Obligations is
rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any Debtor Relief Law or otherwise,
and each Domestic Guarantor agrees that it will indemnify the
Administrative Agent and each holder of the Obligations on demand for all
reasonable costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by the Administrative Agent or such holder of the
Obligations in connection with such rescission or restoration, including
any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer
or similar payment under any Debtor Relief Law.
(b) [Reserved].
11.04 CERTAIN WAIVERS.
Each Guarantor acknowledges and agrees that (a) the guaranty given hereby
may be enforced without the necessity of resorting to or otherwise exhausting
remedies in respect of any other security or collateral interests, and without
the necessity at any time of having to take recourse against the Borrower
hereunder or against any collateral securing the Obligations or otherwise, (b)
it will not assert any right to require the action first be taken against the
Borrower or any other Person (including any co-guarantor) or pursuit of any
other remedy or enforcement any other right, (c) it will not assert any defenses
(i) with respect to any change in the corporate existence or structure of the
Borrower, (ii) with respect to any Law of any jurisdiction or any event
affecting any term of the obligations of each Guarantor under this Article XI or
(iii) as a result or related to any other circumstance that might constitute a
defense of the Borrower or any Guarantor, (d) it will not assert any claims or
set-off rights that such Guarantor may have and (e) nothing contained herein
shall prevent or limit action being taken against the Borrower hereunder, under
the other Loan Documents or the other documents and agreements relating to the
Obligations or from foreclosing on any security or collateral interests relating
hereto or thereto, or from exercising any other rights or remedies available in
respect thereof, if neither the Borrower nor the Guarantors shall timely perform
their obligations, and the exercise of any such rights and completion of any
such foreclosure proceedings shall not constitute a discharge of the Guarantors'
obligations hereunder unless as a result thereof, the Obligations shall have
been paid in full and the commitments relating thereto shall have expired or
terminated, it being the purpose and intent that the Guarantors' obligations
hereunder be absolute, irrevocable, independent and unconditional under all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Obligations, except through the exercise of rights
of subrogation pursuant to Section 11.02 and through the exercise of rights of
contribution pursuant to Section 11.06.
11.05 REMEDIES.
(a) The Domestic Guarantors agree that, to the fullest extent permitted by
Law, as between the Domestic Guarantors, on the one hand, and holders of the
Obligations, on the other
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hand, the Obligations may be declared to be forthwith due and payable as
provided in Section 8.02 (and shall be deemed to have become automatically due
and payable in the circumstances specified in Section 8.02) for purposes of
Section 11.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Domestic
Guarantors for purposes of Section 11.01.
(b) [Reserved].
11.06 RIGHTS OF CONTRIBUTION.
(a) The Domestic Guarantors hereby agree as among themselves that, in
connection with payments made hereunder, each Domestic Guarantor shall have a
right of contribution from each other Domestic Guarantor in accordance with
applicable Law. Such contribution rights shall be subordinate and subject in
right of payment to the Obligations until such time as the Obligations have been
irrevocably paid in full and the commitments relating thereto shall have expired
or been terminated, and none of the Domestic Guarantors shall exercise any such
contribution rights until the Obligations have been irrevocably paid in full and
the commitments relating thereto shall have expired or been terminated.
(b) [Reserved].
11.07 GUARANTY OF PAYMENT; CONTINUING GUARANTEE.
(a) The guarantee given by the Domestic Guarantors in this Article XI is a
guaranty of payment and not of collection, is a continuing guarantee, and shall
apply to all Obligations whenever arising.
(b) [Reserved].
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER: XXXX LABORATORIES, INC.,
a Delaware corporation
By: Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------------
Title: President and Chief Operating Officer
--------------------------------------
DOMESTIC GUARANTORS: XXXX PHARMACEUTICALS, INC.,
a Delaware corporation
By: Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------------
Title: President and Chief Operating Officer
--------------------------------------
XXXX DISTRIBUTION COMPANY,
a Delaware corporation
By: Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
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Title: President
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DURAMED PHARMACEUTICALS, INC.,
a Delaware corporation
By: Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
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Title: President
--------------------------------------
BANK OF AMERICA, N.A., as
Administrative Agent
By: Xxxxxx Xxx
--------------------------
Name: Xxxxxx Xxx
--------------------------
Title: Assistant Vice President
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BANK OF AMERICA, N.A., as a Lender and L/C Issuer
By: Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------
Title: Vice President
--------------------------
