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AMENDED AND RESTATED
CREDIT AGREEMENT
($450,000,000)
Dated as of November 7, 2005
among
XXXXXXX-XXXXXX INTERNATIONAL INC.,
as Guarantor and Revolving Borrower,
XXXXXXX-XXXXXX HOLDING AG,
XXXXXXX-XXXXXX MANAGEMENT HOLDING DEUTSCHLAND GMBH,
XXXXXXX-XXXXXX B.V.,
and
MT INVESTMENT C.V.,
as Revolving Borrowers,
CERTAIN SUBSIDIARIES PARTIES HERETO FROM TIME TO TIME,
as Subsidiary Swingline Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent
and
L/C Issuer for the Revolving Borrowers,
JPMORGAN CHASE BANK, N.A. and WACHOVIA BANK, N.A.,
as Syndication Agents,
THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY and SOCIETE GENERALE,
as Documentation Agents,
and
The Lenders, Other L/C Issuers and Swingline Lenders
Party Hereto From Time to Time
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXX XX XXXXXXX SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS........................1
1.01 Defined Terms...............................................1
1.02 Other Interpretive Provisions..............................29
1.03 Accounting Terms...........................................29
1.04 Rounding...................................................30
1.05 References to Agreements and Laws..........................30
1.06 Exchange Rates; Currency Equivalents.......................30
1.07 Additional Alternative Currencies..........................31
1.08 Change of Currency.........................................31
1.09 Times of Day...............................................32
1.10 Letter of Credit Amounts...................................32
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS..................32
2.01 The Loans..................................................32
2.02 Borrowings, Conversions and Continuations of Loans
(other than Swingline Loans)...............................33
2.03 Letters of Credit..........................................36
2.04 Swingline Loans............................................46
2.05 Prepayments................................................50
2.06 Termination or Reduction of Commitments....................51
2.07 Repayment of Loans.........................................52
2.08 Interest...................................................52
2.09 Fees.......................................................52
2.10 Computation of Interest and Fees...........................53
2.11 Evidence of Debt...........................................53
2.12 Payments Generally.........................................54
2.13 Sharing of Payments........................................56
2.14 Subsidiary Swingline Borrowers.............................57
2.15 Increase in Commitments....................................58
2.16 Existing Credit Agreement..................................59
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY.................59
3.01 Taxes......................................................59
3.02 Illegality.................................................61
3.03 Inability to Determine Rates...............................61
3.04 Increased Cost and Reduced Return; Capital Adequacy;
Reserves on Eurocurrency Rate Loans........................62
3.05 Compensation for Losses....................................63
3.06 Matters Applicable to all Requests for Compensation........64
3.07 Survival...................................................64
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS..............64
4.01 Conditions of Initial Credit Extension.....................64
4.02 Conditions to all Credit Extensions........................66
ARTICLE V. REPRESENTATIONS AND WARRANTIES.........................67
5.01 Existence, Qualification and Power; Compliance with
Laws.......................................................67
5.02 Authorization; No Contravention............................67
5.03 Governmental Authorization; Other Consents.................67
5.04 Binding Effect.............................................67
5.05 Financial Statements; No Material Adverse Effect...........67
5.06 Litigation.................................................68
5.07 Subsidiaries, Capital Structure and Indebtedness and
Investments................................................68
5.08 Ownership of Property; Liens; Intellectual Property
and Licenses...............................................69
5.09 Environmental Compliance...................................69
5.10 Insurance..................................................70
5.11 Taxes......................................................70
5.12 ERISA Compliance...........................................70
5.13 Margin Regulations; Investment Company Act; Public
Utility Holding Company Act................................71
5.14 Disclosure.................................................71
5.15 Compliance with Laws.......................................71
5.16 Employee and Labor Matters.................................72
5.17 Solvency...................................................72
5.18 Representations as to Foreign Obligors.....................72
5.19 Foreign Assets Control Regulations, etc....................73
ARTICLE VI. AFFIRMATIVE COVENANTS..................................73
6.01 Financial Statements.......................................73
6.02 Certificates; Other Information............................74
6.03 Notices....................................................76
6.04 Payment of Obligations.....................................76
6.05 Preservation of Existence..................................76
6.06 Maintenance of Properties, Etc.............................77
6.07 Maintenance of Insurance...................................77
6.08 Compliance with Laws.......................................77
6.09 Books and Records..........................................77
6.10 Inspection Rights..........................................77
6.11 Use of Proceeds............................................78
6.12 Approvals and Authorizations...............................78
ARTICLE VII. NEGATIVE COVENANTS.....................................78
7.01 Liens......................................................78
7.02 Subsidiary Indebtedness....................................80
7.03 Change in Nature of Business...............................80
7.04 Transactions with Affiliates...............................80
7.05 Burdensome Agreements......................................81
7.06 Use of Proceeds............................................81
7.07 Sales of Receivables.......................................81
7.08 ERISA......................................................81
7.09 Change in Accounting Principles............................81
7.10 Limitations on Number of Swingline Lenders.................82
7.11 Financial Covenants........................................82
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES.........................82
8.01 Events of Default..........................................82
8.02 Remedies Upon Event of Default.............................84
8.03 Application of Funds.......................................84
ARTICLE IX. ADMINISTRATIVE AGENT, L/C ISSUERS AND SWINGLINE
LENDERS................................................85
9.01 Appointment and Authorization of Administrative Agent......85
9.02 Delegation of Duties.......................................86
9.03 Liability of Administrative Agent..........................86
9.04 Reliance by Administrative Agent...........................87
9.05 Notice of Default..........................................87
9.06 Credit Decision; Disclosure of Information by
Administrative Agent.......................................87
9.07 Indemnification of Administrative Agent....................88
9.08 Administrative Agent in its Individual Capacity............89
9.09 Successor Administrative Agent.............................89
9.10 Administrative Agent May File Proofs of Claim..............90
9.11 Other Agents; Arrangers and Managers.......................90
ARTICLE X. MISCELLANEOUS..........................................91
10.01 Amendments, Etc............................................91
10.02 Notices and Other Communications; Facsimile Copies.........92
10.03 No Waiver; Cumulative Remedies.............................94
10.04 Attorney Costs and Expenses................................94
10.05 Indemnification by the Borrowers...........................94
10.06 Payments Set Aside.........................................95
10.07 Successors and Assigns.....................................96
10.08 Confidentiality............................................99
10.09 Set-off...................................................100
10.10 Interest Rate Limitation..................................100
10.11 Counterparts..............................................101
10.12 Integration...............................................101
10.13 Survival of Representations and Warranties................101
10.14 Severability..............................................101
10.15 Tax Forms.................................................101
10.16 Replacement of Lenders....................................104
10.17 Governing Law.............................................104
10.18 Waiver of Right to Trial by Jury..........................105
10.19 Judgment Currency.........................................105
10.20 USA Patriot Act Notice....................................106
ARTICLE XI. GUARANTY..............................................106
11.01 Guaranty..................................................106
11.02 Guaranty Absolute.........................................106
11.03 Waivers and Acknowledgments...............................108
11.04 Subrogation...............................................109
SCHEDULES
1.01 Mandatory Cost Formulae
2.01 Commitments and Pro Rata Shares
5.07 Material Subsidiaries, Other Equity Investments and Investments
and Indebtedness
7.01 Existing Liens
10.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
FORM OF
A Loan Notice
B Revolving Note
C Swingline Note
D Compliance Certificate
E Assignment and Assumption
F Subsidiary Swingline Borrower Request and Assumption Agreement
G Notice of Designation of Subsidiary Swingline Borrower,
Applicable Subsidiary Currency and Subsidiary Currency
Sublimit
H Forms of Opinions
I Subsidiary Swingline Borrower Sublimit Adjustment Consent
J Swingline Loan Calculation Date Notice
K Notice of Swingline Loan Amounts
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered
into as of November 7, 2005, among XXXXXXX-XXXXXX INTERNATIONAL INC., a
corporation organized under the laws of Delaware, as a borrower of
Revolving Loans and the Guarantor ("Xxxxxxx-Xxxxxx International"),
XXXXXXX-XXXXXX HOLDING AG, a corporation organized under the laws of
Switzerland, as a borrower of Revolving Loans ("MTH"), XXXXXXX-XXXXXX
MANAGEMENT HOLDING DEUTSCHLAND GMBH, a limited liability company organized
under the laws of Germany, as a borrower of Revolving Loans ("MTMHD"),
XXXXXXX-XXXXXX B.V., a private limited liability company incorporated under
the laws of the Netherlands, as a borrower of Revolving Loans ("MTBV") and
MT INVESTMENT C.V., a limited partnership organized under the laws of the
Netherlands, as a borrower of Revolving Loans ("MTICV"; collectively, the
"Revolving Borrowers"), and XXXXXXX-XXXXXX, INC., a Delaware corporation,
MTH, XXXXXXX-XXXXXX HOLDING (France) SAS, a French simplified share
corporation, MTMHD, XXXXXXX-XXXXXX K.K., a Japanese corporation,
XXXXXXX-XXXXXX LIMITED, a limited liability company incorporated in England
and Wales, XXXXXXX-XXXXXX UK HOLDINGS LIMITED, a limited liability company
incorporated in England and Wales, XXXXXXX-XXXXXX SAFELINE LIMITED
(formerly Safeline Limited), a limited liability company incorporated in
England and Wales, XXXXXXX-XXXXXX SAFELINE X-RAY LIMITED (formerly Safeline
AVS Limited), a limited liability company incorporated in England and
Wales, MTBV, XXXXXXX-XXXXXX NV, a limited liability company incorporated
under the laws of Belgium, XXXXXXX-XXXXXX GMBH, a limited liability company
organized under the laws of Switzerland, and certain other Subsidiaries of
Xxxxxxx-Xxxxxx International that will become a party hereto pursuant to
Section 2.14(b) (each a "Subsidiary Swingline Borrower" and, together with
the Revolving Borrowers, the "Borrowers" and, each a "Borrower"), each
lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), BANK OF AMERICA, N.A., as Administrative Agent
and L/C Issuer to the Revolving Borrowers, each other L/C Issuer and
Swingline Lender party hereto from time to time, and JPMORGAN CHASE BANK,
N.A. and WACHOVIA BANK, N.A., as Syndication Agents, and THE BANK OF
TOKYO-MITSUBISHI TRUST COMPANY and SOCIETE GENERALE, as Documentation
Agents.
WHEREAS, the Borrowers have requested that the Lenders amend and
restate the Existing Credit Agreement in its entirety as provided in this
Agreement concurrently with the Closing Date. The Lenders are willing to do
so on the terms and conditions set forth herein.
NOW, THEREFORE, 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 any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of
any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or
equity of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person.
"Adjustment Date" has the meaning set forth in the definition of
"Assumed Swingline Loan Amount."
"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, with respect to any currency
(other than Subsidiary Currency), the Administrative Agent's address and,
as appropriate, account as set forth on Schedule 10.02 with respect to such
currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify Xxxxxxx-Xxxxxx
International 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.
"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.
"Agent Parties" has the meaning specified in Section 10.02(d).
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity
as the Administrative Agent, Banc of America Securities LLC in its capacity
as the Arranger or otherwise), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement, as amended, amended and
restated, supplemented or otherwise modified from time to time.
"Agreement Currency" has the meaning specified in Section 10.19.
"Alternative Currency" for Loans (other than Swingline Loans which are
to be denominated in Subsidiary Currencies) and Letters of Credit (other
than Letters of Credit which are to be denominated in Subsidiary
Currencies) means each of Euro, Pounds Sterling, Swiss Francs, and each
other currency (other than Dollars) that is approved in accordance with
Section 1.07.
"Alternative Currency Equivalent" means, at any time, with respect to
any amount denominated in Dollars, the equivalent amount thereof (a) in the
applicable Alternative Currency as determined in accordance with Section
1.06 or (b) in the applicable Subsidiary Currency (other than Dollars) as
determined on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) in accordance with Section 1.06 for the purchase
of such Alternative Currency or such Subsidiary Currency, as applicable,
with Dollars.
"Applicable Borrower" means any Revolving Borrower or any Subsidiary
Swingline Borrower, as applicable, which is the Borrower to whom such
Credit Extension was, or is to be, made.
"Applicable Currency" means, as to any particular payment or Loan, (a)
Dollars, (b) the Alternative Currency or (c) the Subsidiary Currency in
which any such payment or Loan is denominated or payable.
"Applicable Foreign Obligor Documents" has the meaning specified in
Section 5.18.
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Debt Rating as set forth below:
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APPLICABLE RATE
--------------- ------------------------------ ---------------- ------------------------- -----------------
DEBT RATINGS EUROCURRENCY RATE + BASE
PRICING LEVEL S&P/XXXXX'X FACILITY FEE LETTERS OF CREDIT RATE
--------------- ------------------------------ ---------------- ------------------------- -----------------
1 A-/A3 or better 0.075% 0.225% 0.000%
--------------- ------------------------------ ---------------- ------------------------- -----------------
2 BBB+/Baa1 0.100% 0.275% 0.000%
--------------- ------------------------------ ---------------- ------------------------- -----------------
3 BBB/Baa2 0.125% 0.375% 0.000%
--------------- ------------------------------ ---------------- ------------------------- -----------------
4 BBB-/Baa3 0.150% 0.475% 0.000%
--------------- ------------------------------ ---------------- ------------------------- -----------------
5 BB+/Ba1 or worse 0.175% 0.700% 0.200%
--------------- ------------------------------ ---------------- ------------------------- -----------------
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Xxxxx'x (collectively, the "Debt Ratings")
of Xxxxxxx-Xxxxxx International's non-credit-enhanced, senior
unsecured long-term debt; provided that if a Debt Rating is issued by
each of the foregoing rating agencies, then the higher of such Debt
Ratings shall apply (with the Debt Rating for Pricing Level 1 being
the highest and the Debt Rating for Pricing Level 5 being the lowest),
unless there is a split in Debt Ratings of more than one level, in
which case the Pricing Level that is one level higher than the Pricing
Level of the lower Debt Rating shall apply.
Initially, the Applicable Rate shall be determined based upon Pricing Level
3. Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt 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 borrowings and payments
in any Alternative Currency, the local time in the place of settlement for
such Alternative Currency as may be determined by the Administrative Agent
or the L/C Issuer for the Revolving Borrowers, as the case may be, to be
necessary for timely settlement on the relevant date in accordance with
normal banking procedures in the place of payment.
"Applicant Borrower" has the meaning specified in Section 2.14(b).
"Approved Fund" has the meaning specified in Section 10.07(g).
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E hereto.
"Assumed Swingline Loan Amount" means the Dollar Equivalent amount of
the aggregate total of all of the Subsidiary Swingline Borrower Sublimit of
the Subsidiary Swingline Borrowers. The Administrative Agent shall set the
amount on the Closing Date and shall adjust the amount upward or downward
not less frequently than the last Business Day of each calendar month of
Xxxxxxx-Xxxxxx International after the Closing Date (each an "Adjustment
Date") to reflect the Dollar Equivalent amount as of such date of the
Subsidiary Swingline Borrower Sublimit of all of the Subsidiary Swingline
Borrowers.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capitalized 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 Off-Balance Sheet
Obligation, the amount that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such obligation were
accounted for as an obligation of Xxxxxxx-Xxxxxx International.
"Audited Financial Statements" means the audited consolidated balance
sheet of Xxxxxxx-Xxxxxx International and its Subsidiaries for the fiscal
year ended December 31, 2004, and the related consolidated statements of
operations, shareholders' equity and cash flows for such fiscal year of
Xxxxxxx-Xxxxxx International and its Subsidiaries, including the notes
thereto.
"Auto-Renewal Letter of Credit" has the meaning specified in Section
2.03(b)(iii).
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination
of the Aggregate Commitments pursuant to Section 2.06, and (c) the date of
termination of the commitment of each Lender to make Loans and of the
obligation of each L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Banc of America Securities" 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. All Base Rate Loans shall be denominated in Dollars.
"Borrower" and "Borrowers" each 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 Revolving
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, or a Swingline Borrowing as the
context may require.
"Business Day" (a) with respect to Obligations denominated in Dollars
(other than the Swingline Loans and Subsidiary L/C Obligations denominated
in Dollars), 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 of North Carolina and:
(i) 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;
(ii) 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 carried
out pursuant to this Agreement in respect of any such Eurocurrency
Rate Loan, means a TARGET Day;
(iii) 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
(iv) 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; and
(b) with respect to Swingline Loans and Subsidiary L/C Obligations
denominated in Dollars, means any day other than a day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in,
the jurisdiction where the applicable Swingline Lender's office with
respect to Swingline Loans or Subsidiary L/C Obligations denominated in
Dollars is located and:
(i) if such days relates to interest rate settings as to a
Swingline Loan denominated in Euros, any fundings, disbursements,
settlements and payments in Euros in respect of any Swingline Loan, or
any other dealings in Euros to be carried out pursuant to this
Agreement in respect of any such Swingline Loan, means a TARGET Day;
(ii) if such day relates to interest rate settings as to a
Swingline Loan denominated in a currency other than Dollars or Euros,
means any such day on which dealings in the relevant currency are
conducted by and between banks in the London or other applicable
interbank market for such currency; and
(iii) if such day relates to any fundings, disbursements,
settlements and payments in a currency other than Dollars or Euros, or
any other dealings in any currency other than Dollars or Euros to be
carried out pursuant to this Agreement in respect of any such
Swingline Loan (other than 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.
"Capital Stock" means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated), (c) in the case of a partnership, partnership interests
(whether general or limited), (d) in the case of a limited liability
company, membership interests, (e) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person and (f) all rights to
purchase warrants, options and other securities exercisable for,
exchangeable for or convertible into any of the foregoing.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which
in accordance with GAAP, is or should be accounted for, as a capital lease
on the balance sheet of such Person.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Change of Control" means:
(a) any transaction or series of related transactions pursuant to
which Xxxxxxx-Xxxxxx International shall cease to own directly or
indirectly the Capital Stock of Subsidiaries, which have 50% or more
of the consolidated tangible assets of Xxxxxxx-Xxxxxx International
and the Subsidiaries as set forth in the most recent financial
statements delivered by Xxxxxxx-Xxxxxx International pursuant to
Section 6.01 or 50% or more of the consolidated revenues of
Xxxxxxx-Xxxxxx International and the Subsidiaries as set forth in the
most recent financial statements delivered by Xxxxxxx-Xxxxxx
International pursuant to Section 6.01; or
(b) any Person ceases to be a Loan Party unless there are no
outstanding Obligations payable by such Loan Party and such Person's
status as a Loan Party under this Agreement has been terminated in a
manner acceptable to the Administrative Agent; or
(c) 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 30% or more of the equity
securities of Xxxxxxx-Xxxxxx International entitled to vote for
members of the board of directors or equivalent governing body of
Xxxxxxx-Xxxxxx International 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); or
(d) with respect to Xxxxxxx-Xxxxxx International, an event or
series of events by which during any period of 24 consecutive months,
a majority of the members of the board of directors or other
equivalent governing body of such Person cease to be composed of
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
a majority of the individuals referred to in clause (i) above or (iii)
whose election or nomination to that board or other equivalent
governing body was approved by a majority of the individuals referred
to in clauses (i) and (ii) above (excluding, in the case of both
clause (ii) and clause (iii), any individual whose initial nomination
for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one
or more directors by any person or group other than a solicitation for
the election of one or more directors by or on behalf of the board of
directors).
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or,
in the case of Section 4.01(c), waived by the Person entitled to receive
the applicable payment).
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto.
"Commitment" means, as to each Lender, its obligation to (a) make
Loans in the form of Revolving Loans pursuant to Section 2.01 and Swingline
Loans pursuant to Section 2.04, (b) make L/C Credit Extensions (and
specifically the obligation of Bank of America in its capacity as issuer of
Letters of Credit hereunder or any successor issuer of Letters of Credit
hereunder to make L/C Credit Extensions to the Revolving Borrowers and the
obligation of each Swingline Lender making Swingline Loans hereunder to a
Subsidiary Swingline Borrower to make L/C Credit Extensions to such
Subsidiary Swingline Borrower), (c) purchase participations in L/C
Obligations and (d) purchase participations in Swingline Loans, in an
aggregate principal amount at any one time outstanding not to exceed the
Dollar 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.
"Compensation Period" has the meaning specified in Section
2.12(c)(ii).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D hereto.
"Consolidated EBITDA" means, for any period, for Xxxxxxx-Xxxxxx
International and the Subsidiaries determined on a consolidated basis, an
amount equal to Consolidated Net Income for such period, plus the following
to the extent deducted in calculating such Consolidated Net Income: (a)
Consolidated Interest Charges for such period, (b) the provision for
federal, state, local and foreign income and capital taxes for such period,
(c) the amount of depreciation and amortization expense deducted in
determining such Consolidated Net Income, (d) other non-cash items of
expenses or non-cash extraordinary losses deducted in determining such
Consolidated Net Income (excluding any such non-cash expense to the extent
that it represents amortization of a prepaid cash expense that was paid in
a prior period or an accrual of, or a reserve for, cash charges or expenses
in any future period), and (e) other cash non-recurring items of expense or
cash extraordinary losses deducted in determining such Consolidated Net
Income, provided that for any such period, the aggregate amount of cash
non-recurring items of expense or cash extraordinary losses referred to in
clause (e) shall not constitute more than 10% of Consolidated EBITDA for
such period, minus the following to the extent included in calculating such
Consolidated Net Income for such period: other non-recurring cash and
non-cash items of income to the extent such items exceed $5 million in the
aggregate for any such period. Consolidated EBITDA shall be calculated to
give pro forma effect to any Acquisition occurring during any period for
which it is being measured by giving pro forma effect to such Acquisition
as if it had occurred at the beginning of such period, which pro forma
calculation shall be made in accordance with GAAP, but shall not take into
account any projected synergies or similar benefits expected to be realized
as a result of such event.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for Xxxxxxx-Xxxxxx International and the Subsidiaries on a
consolidated basis, as of any date of determination, without duplication,
the sum 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) all purchase money Indebtedness (except
as provided in clause (d) below), (c) all direct or contingent obligations
arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments, (d) all obligations in respect of the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business and, except those being contested, in good faith, not
past due more than 60 days after the due date on which each such trade
payable or account payable was created), (e) Attributable Indebtedness in
respect of Capitalized Leases and Off-Balance Sheet Obligations, (f)
without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e), and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of
any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which Xxxxxxx-Xxxxxx
International or a Subsidiary is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to Xxxxxxx-Xxxxxx
International or such Subsidiary. For purposes of determining Consolidated
Funded Indebtedness, all non-Dollar borrowings will be converted to Dollars
at the time of determination.
"Consolidated Interest Charges" means, for any period, for
Xxxxxxx-Xxxxxx International and the Subsidiaries determined on a
consolidated basis, the sum of all interest, premium payments, debt
discount, fees, charges and related expenses in connection with borrowed
money (including capitalized interest), in each case to the extent treated
as interest expense in accordance with GAAP, including the portion of rent
expense with respect to such period under Capitalized Leases that is
treated as interest in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for four consecutive
fiscal quarters most recently ended on or prior to such date for which
Xxxxxxx-Xxxxxx International has delivered financial statements pursuant to
Sections 6.01(a) or (b) 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 four consecutive fiscal quarters most
recently ended for which Xxxxxxx-Xxxxxx International has delivered
financial statements pursuant to Sections 6.01(a) or (b).
"Consolidated Net Income" means, for any period, for Xxxxxxx-Xxxxxx
International and the Subsidiaries on a consolidated basis, net income
(excluding extraordinary gains but including extraordinary losses) for that
period.
"Consolidated Net Worth" means the excess over current liabilities of
all assets properly appearing on a consolidated balance sheet of
Xxxxxxx-Xxxxxx International and its Subsidiaries after deducting the
minority interests of others in Subsidiaries.
"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" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Borrowing; and
(b) an L/C Credit Extension.
"Debt Rating" has the meaning specified in the definition of
"Applicable Rate."
"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.
"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 an interest rate equal to (a) in the case of
Eurocurrency Rate Loans, the sum of (i) the Eurocurrency Rate for such
Loans plus (ii) the Applicable Rate applicable to such Loans plus (iii) any
Mandatory Cost plus (iv) 2% per annum; (b) in the case of Letters of
Credit, a rate equal to (i) the Letter of Credit Fee plus (ii) 2% per
annum; (c) in the case of Swingline Loans, the sum of (i) the applicable
interest rate established by the Swingline Lender plus (ii) any applicable
margin established by the Swingline Lender plus (iii) any Mandatory Cost
plus (iv) 2% per annum; and (d) in the case of Base Rate Loans and for all
other purposes, the sum of (i) the Base Rate for such Loans plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per
annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of a Borrowing or participations in L/C Obligations or
participations in Swingline Loans 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.
"Designated Borrower" has the meaning specified in Section 11.01.
"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.
"Documentation Agents" means The Bank of Tokyo-Mitsubishi Trust
Company and Societe Generale, in their capacities as documentation agents
under any of the Loan Documents, and any successor documentation agents.
"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, (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined in accordance with Section 1.06 for the purchase of
Dollars with such Alternative Currency, and (c) with respect to any amount
denominated in any Subsidiary Currency (other than Dollars), the equivalent
amount thereof in Dollars as determined in accordance with Section 1.06 for
the purchase of Dollars with such Subsidiary Currency.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
"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
non-U.S. 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 Xxxxxxx-Xxxxxx International, any
other Loan Party or any of the 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.
"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 Xxxxxxx-Xxxxxx International within
the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and
(o) 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 Xxxxxxx-Xxxxxx International 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 Xxxxxxx-Xxxxxx International 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 Pension 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 liability under Title IV
of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon Xxxxxxx-Xxxxxx International 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" means for any Interest Period with respect to a
Eurocurrency Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by 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 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 Rate Loan" means a Revolving Loan to the Revolving
Borrowers that bears interest at a rate based on the Eurocurrency Rate.
Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative
Currency. All Revolving Loans to the Revolving Borrowers denominated in an
Alternative Currency must be Eurocurrency Rate Loans.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Jurisdictions" has the meaning set forth in Section 3.01(a).
"Existing Credit Agreement" means that certain Credit Agreement dated
as of November 12, 2003, among Xxxxxxx-Xxxxxx International, MTH, MTMHD,
certain subsidiary swingline borrowers party thereto from time to time, the
lenders party thereto from time to time, Bank of America, N.A., as
administrative agent and L/C issuer, certain swingline lenders and certain
other L/C issuers party thereto from time to time, JPMorgan Chase Bank,
N.A. and Wachovia Bank, N.A., as syndication agents, and The Bank of
Tokyo-Mitsubishi Trust Company, Fleet National Bank and Societe Generale,
as documentation agents.
"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 fee letter agreement, dated September 13, 2005,
among Xxxxxxx-Xxxxxx International, the Administrative Agent and the
Arranger.
"Foreign Lender" has the meaning specified in Section 10.15(a)(i).
"Foreign Obligor" means a Loan Party that is a Foreign Subsidiary.
"Foreign Subsidiary" means any Subsidiary other than a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of
the United States.
"Fund" has the meaning specified in Section 10.07(g).
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting
Principles Board of 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 or agencies including the
SEC with similar functions of comparable stature and authority with the
U.S. accounting profession, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal, central
bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to
government.
"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. 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.
"Guaranteed Obligations" has the meaning specified in Section 11.01.
"Guarantor" means Xxxxxxx-Xxxxxx International, as guarantor pursuant
to Article XI.
"Guaranty" means the guarantee of the Guarantor set forth in Article
XI.
"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.
"Honor Date" has the meaning specified in Section 2.03(c)(i).
"Increase Effective Date" has the meaning specified in Section
2.15(b).
"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), bankers' acceptances,
bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(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) Capitalized Leases and Off-Balance Sheet Obligations; and
(g) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which
such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. 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
Capitalized Lease or Off-Balance Sheet Obligation as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof as
of such date.
For purposes of Section 5.07(b) and Section 7.02, the Indebtedness of
any Person shall not include Indebtedness that is owed by any wholly-owned
Subsidiary of Xxxxxxx-Xxxxxx International to Xxxxxxx-Xxxxxx International,
by Xxxxxxx-Xxxxxx International to any wholly-owned Subsidiary of
Xxxxxxx-Xxxxxx International or by any wholly-owned Subsidiary of
Xxxxxxx-Xxxxxx International to another wholly-owned Subsidiary of
Xxxxxxx-Xxxxxx International; provided that (a) any such Indebtedness shall
be created in the ordinary course of business consistent with standard
business practices, (b) any such Indebtedness shall be unsecured, and (c)
any such Indebtedness shall be eliminated for purposes of the consolidated
financial statements of Xxxxxxx-Xxxxxx International in accordance with
GAAP.
"Indemnified Liabilities" has the meaning specified in Section 10.05.
"Indemnitees" has the meaning specified in Section 10.05.
"Information" has the meaning specified in Section 10.08.
"Interest Payment Date" means (a) as to any Base Rate Loan, the fifth
day after the end of each of March, June, September and December
(calculated on a calendar quarter basis) commencing with the first such
date to occur after the Closing Date and the Maturity Date, (b) as to any
Swingline Loan, the last Business Day of each calendar month and the
Maturity Date, and (c) as to any Eurocurrency 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.
"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
Xxxxxxx-Xxxxxx International in a Loan Notice or, if available from all the
Lenders, twelve months thereafter as selected by Xxxxxxx-Xxxxxx
International in a Loan Notice; provided that:
(a) 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 in the
case of a Eurocurrency Rate Loan unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the
immediately preceding Business Day;
(b) any Interest Period pertaining to a Eurocurrency Rate Loan 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
(c) no Interest Period shall extend beyond the Maturity Date for the
applicable Loan.
"Inventory" has the meaning ascribed to such term under GAAP.
"Investment" means, as to any Person, at any particular time, (a) the
purchase or other acquisition of capital stock or other securities of
another Person, (b) a capital contribution to, or purchase or other
acquisition of any other equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person, or (c) the purchase or other acquisition (in one transaction or a
series of transactions) of assets of another Person that constitute a
business unit; provided that ownership of capital stock or other securities
of a wholly-owned Subsidiary shall not be an investment.
"IP Rights" has the meaning specified in Section 5.08(b).
"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 Credit Application, and any other document, agreement and instrument
entered into by the L/C Issuer and the Applicable Borrower or in favor of
the L/C Issuer and relating to any such Letter of Credit.
"Judgment Currency" has the meaning specified in Section 10.19.
"Laws" means, collectively, all international, non-U.S., 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
including, without limitation, all Environmental Laws.
"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
Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed by the Revolving
Borrower or Swingline Borrower, as applicable, on the Honor Date or
refinanced as a Borrowing of Revolving 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
renewal or increase of the amount thereof.
"L/C Issuer" means (a) with respect to the Revolving Borrowers, Bank
of America in its capacity as issuer of Letters of Credit hereunder to
Revolving Borrowers, or any successor issuer of Letters of Credit to
Revolving Borrowers hereunder, and (b) with respect to each Subsidiary
Swingline Borrower, the Swingline Lender who makes Swingline Loans to such
Subsidiary Swingline Borrower acting in the capacity of issuer of Letters
of Credit hereunder to such Subsidiary Swingline Borrower. All references
in this Agreement to the L/C Issuer shall be deemed a reference to the
applicable L/C Issuer issuing the applicable Letter of Credit.
"L/C Obligations" means, as at any date of determination, the
aggregate undrawn Dollar Equivalent amount of all outstanding Letters of
Credit plus the aggregate Dollar Equivalent 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 1.10. 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 includes any successor thereto and any Lender who becomes a
Lender pursuant to an Assignment and Assumption, and, as the context
requires, includes each L/C Issuer and each Swingline Lender.
"Lending Office" means, as to any Lender (other than a Swingline
Lender), the office or offices of such Lender (or, at the option of such
Lender, in the case of any Loan in any Alternative Currency, the office or
offices of an Affiliate of such Lender) described as such in such Lender's
Administrative Questionnaire specified as its "Lending Office", "Domestic
Lending Office" or "Alternative Currency Lending Office", or such other
office or offices as a Lender may from time to time notify Xxxxxxx-Xxxxxx
International and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued by an L/C
Issuer hereunder.
"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 the day that is thirty days
prior to the Maturity Date then in effect (or, if such day is not a
Business Day, the immediately preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" for Letters of Credit issued for the
account of the Revolving Borrowers, means an amount equal to the lesser of
(a) $25 million and (b) the unused amount of the Aggregate Commitment at
such time. The Letter of Credit Sublimit is part of, not in addition to,
the Aggregate Commitments. The Letter of Credit Sublimit does not apply to
Letters of Credit issued to Subsidiary Swingline Borrowers; any Letters of
Credit issued for the account of Subsidiary Swingline Borrowers are part of
the Subsidiary Swingline Borrower Sublimit.
"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 of any kind
or nature whatsoever (including any conditional sale or other title
retention agreement, and any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to a Revolving
Borrower or a Subsidiary Swingline Borrower pursuant to Article II which
may be in the form of a Revolving Loan or a Swingline Loan.
"Loan Documents" means this Agreement, each Subsidiary Swingline
Borrower Request and Assumption Agreement, each Note, each Issuer Document,
any Guarantee securing any of the Indebtedness under this Agreement, each
Subsidiary Swingline Borrower Sublimit Adjustment Consent, each Notice of
Designation of Subsidiary Swingline Borrower, Applicable Subsidiary
Currency and Subsidiary Currency Sublimit, each Subsidiary Swingline
Borrower Sublimit Adjustment Consent, each Swingline Loan Calculation Date
Notice and each Notice of Swingline Loan Amount and the Fee Letter.
"Loan Notice" means a notice of (a) a Borrowing of Revolving Loans,
(b) a conversion of Revolving Loans from one Type to the other, or (c) a
continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a),
which, in each case, if in writing, shall be substantially in the form of
Exhibit A hereto.
"Loan Parties" means, collectively, each Revolving Borrower, each
Subsidiary Swingline Borrower, the Guarantor and each Subsidiary providing
a Guarantee securing any of the Indebtedness under this Agreement.
"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, assets, liabilities (actual or
contingent), operations or condition (financial or otherwise) of
Xxxxxxx-Xxxxxx International and the Subsidiaries taken as a whole; or (b)
a material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.
"Material Property" means all real property and tangible personal
property, used primarily for manufacturing or warehousing and owned by a
Loan Party or a Material Subsidiary, exclusive of the following: (i) any
property financed through obligations issued by a state or possession of
the United States, or any political subdivision or instrumentality of the
foregoing, on which the interest is not, in the opinion of tax counsel of
recognized standing or in accordance with a ruling issued by the IRS,
includable in gross income of the holder by reason of Section 103(a) of the
Code as in effect at the time of the issuance of such obligations; (ii) any
real property held for development or sale; or (iii) any property the gross
book value of which (including related land and improvements thereon and
all machinery and equipment included therein without deduction of any
depreciation reserves) is less than 10% of Consolidated Net Worth or which
the board of directors of Xxxxxxx-Xxxxxx International determines is not
material to the operation of the business of the Xxxxxxx-Xxxxxx
International and its Subsidiaries taken as a whole.
"Material Subsidiary" means any Subsidiary, or for the purposes of
Sections 8.01(f) or 8.01(g) only, any Subsidiary or any group of
Subsidiaries, having 10% or more of the consolidated tangible assets of
Xxxxxxx-Xxxxxx International and the Subsidiaries or having 10% or more of
the consolidated revenues of Xxxxxxx-Xxxxxx International and the
Subsidiaries.
"Maturity Date" means November 5, 2010.
"Xxxxxxx-Xxxxxx International" has the meaning specified in the
introductory paragraph hereto.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"MTBV" has the meaning specified in the introductory paragraph hereto.
"MTH" has the meaning specified in the introductory paragraph hereto.
"MTICV" has the meaning specified in the introductory paragraph
hereto.
"MTMHD" has the meaning specified in the introductory paragraph
hereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which Xxxxxxx-Xxxxxx
International 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.
"Non-Renewal Notice Date" has the meaning specified in Section
2.03(b)(iii).
"Non-U.S. Dollar Swingline Loan" means any Swingline Loan to a
Subsidiary Swingline Borrower that is not made in Dollars.
"Notes" means the Revolving Notes and the Swingline Notes.
"Notice of Designation of Additional Subsidiary Swingline Borrower,
Applicable Subsidiary Currency and Subsidiary Currency Sublimit" has the
meaning specified in Section 2.14(b).
"Notice of Swingline Loan Amounts" means a notice substantially in the
form of Exhibit K.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or
against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding.
"Off-Balance Sheet Obligation" means (for the avoidance of doubt,
excluding operating leases) the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, (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) or (c)
an agreement for the sale of receivables or like assets creating
obligations that do not appear on the balance sheet of such Person but
which, upon the insolvency or bankruptcy of such Person, could be
characterized as Indebtedness of such Person (without regard to accounting
treatment).
"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 (or equivalent or comparable constitutive documents with respect
to any non-U.S. jurisdiction); and (c) with respect to any partnership,
joint venture, trust or other form of business entity, the partnership,
joint venture or other applicable agreement of formation or organization
and any agreement, instrument, filing or notice with respect thereto filed
in connection with its formation or organization with the applicable
Governmental Authority in the jurisdiction of its formation or organization
and, if applicable, any certificate or articles of formation or
organization of such entity (or equivalent or comparable constitutive
documents with respect to any non-U.S. jurisdiction).
"Other Taxes" has the meaning specified in Section 3.01(b).
"Outstanding Amount" means (a) with respect to Revolving 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, (b) with respect to
Swingline 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 Swingline Loans occurring on such
date, (c) with respect to any L/C Obligations (excluding Subsidiary 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 (excluding L/C Credit Extensions to any
Swingline Borrower) occurring on such date and any other changes in the
aggregate amount of such L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any such
Letters of Credit or any reductions in the maximum amount available for
drawing under any such Letters of Credit taking effect on such date, and
(d) with respect to Subsidiary L/C Obligations on any date, the Dollar
Equivalent amount of the aggregate outstanding amount of such Subsidiary
L/C Obligations on such date after giving effect to any L/C Credit
Extension to Swingline Borrowers occurring on such date and any other
changes in the aggregate amount of such Subsidiary L/C Obligations as of
such date, including as a result of any reimbursements of outstanding
unpaid drawings under any such Letters of Credit or any reductions in the
maximum amount available for drawing under any such Letter of Credit taking
effect on such date.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars (other than Swingline Loans or Subsidiary L/C
Obligations), the Federal Funds Rate, (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 and (c) with respect to
any amount denominated in a Subsidiary Currency, the rate of interest per
annum at which overnight deposits in the applicable Subsidiary Currency, in
an amount approximately equal to the amount with respect to which such rate
is being determined, would be offered for such day in such Subsidiary
Currency as determined by the applicable Swingline Lender. The Overnight
Rate for any day which is not a Business Day shall be the Overnight Rate
for the immediately preceding Business Day.
"Participant" has the meaning specified in Section 10.07(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"Patriot Act" has the meaning specified in Section 10.20.
"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
Xxxxxxx-Xxxxxx International or any ERISA Affiliate or to which
Xxxxxxx-Xxxxxx International 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.
"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 Xxxxxxx-Xxxxxx International 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.
"Pounds Sterling" and "(pound)" mean the lawful currency of the United
Kingdom.
"Pro Rata Share" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal
place), the numerator of which is the amount of the Commitment of such
Lender at such time and the denominator of which is the amount of the
Aggregate Commitments at such time; provided that if the commitment of each
Lender to make Loans and the obligation of each L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02, then the
Pro Rata Share of each Lender shall be determined based on the Pro Rata
Share of such Lender immediately prior to such termination and after giving
effect to any subsequent assignments made pursuant to the terms hereof. The
initial Pro Rata Share 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.
"Register" has the meaning specified in Section 10.07(c).
"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.
"Request for Credit Extension" means (a) with respect to a Borrowing
of Revolving Loans, conversion or continuation of Revolving Loans, a Loan
Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swingline Loan, a swingline loan
notice in form and substance acceptable to the Swingline Lender.
"Required Lenders" means, as of any date of determination, (a) Lenders
having more than 50% of the Aggregate Commitments, or (b) if the commitment
of each Lender to make Loans and the obligation of each L/C Issuer to make
L/C Credit Extensions have been terminated pursuant to Section 8.02 or
otherwise, Lenders holding in the aggregate more than 50% of the Total
Outstandings (with the aggregate amount of each Lender's risk participation
and funded participation in L/C Obligations and Swingline Loans being
deemed "outstanding" by such Lender for purposes of this definition);
provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders; provided, further
that for purposes of determining Total Outstandings in this definition, the
Assumed Swingline Loan Amount shall not be applied in the calculation.
"Responsible Officer" means (a) with respect to Xxxxxxx-Xxxxxx
International, the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of a Loan Party (b) with respect
to MTH, MTMHD, MTBV and MTICV their managing director(s) (Geschaftsfuhrer),
chief executive officer, president, chief financial officer, treasurer,
assistant treasurer, controller, chief accounting officer or finance
director and (c) with respect to any other Loan Party, the chief executive
officer, president, chief financial officer, treasurer, assistant
treasurer, controller, chief accounting officer or finance director. 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 any dividend or other distribution (whether
in cash or other tangible property) with respect to any capital stock or
other equity interest of any Person or any Subsidiary, or any payment
(whether in cash or other tangible property), including any redemption,
retirement, acquisition, cancellation or termination of any such capital
stock or other equity interest or of any option, warrant or other right to
acquire any such capital stock or other equity interest.
"Revaluation Date" means (a) with respect to any Revolving Loan, each
of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan
denominated in an Alternative Currency, (ii) each date of a continuation of
a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to
Section 2.02, and (iii) such additional dates as the Administrative Agent
shall determine; (b) with respect to any Swingline Loan, (i) each date of a
Borrowing of a Swingline Loan denominated in a Subsidiary Currency (other
than Dollars), and (ii) such additional dates as the Administrative Agent
or the applicable Swingline Lender, as the case may be, shall determine;
(c) with respect to any Letter of Credit, each of the following: (i) each
date of issuance of a Letter of Credit denominated in an Alternative
Currency or a Subsidiary 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 any L/C Issuer of any Letter of Credit denominated in an
Alternative Currency or a Subsidiary Currency, and (iv) such additional
dates as the Administrative Agent or the applicable L/C Issuer, as the case
may be, shall determine; and (d) with respect to the Subsidiary Swingline
Borrower Sublimit of all Subsidiary Swingline Borrowers (i) as of each
Adjustment Date, and (ii) such additional dates as the Administrative Agent
or the applicable Swingline Lender, as the case may be, shall determine.
"Revolving Borrowers" has the meaning specified in the introductory
paragraph hereto.
"Revolving Loan" means an extension of credit by a Lender to a
Revolving Borrower under Section 2.01.
"Revolving Note" means a promissory note made by a Revolving Borrower
in favor of a Lender evidencing the Revolving Loans made by such Lender to
a Revolving Borrower, substantially in the form of Exhibit B hereto.
"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 of Revolving Loans or L/C Obligations (other than Subsidiary L/C
Obligations), immediately available funds, (b) with respect to
disbursements and payments in an Alternative Currency, same day or other
funds as may be determined by the Administrative Agent or the L/C Issuer
for the Revolving Borrowers, 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, and (c) with
respect to disbursements and payments in a Subsidiary Currency, same day or
other funds as may be determined by the Swingline Lender for the applicable
Subsidiary Swingline Borrower to be customary in the place of disbursement
or payment for the settlement of international banking transactions in the
relevant Subsidiary Currency.
"Xxxxxxxx-Xxxxx" means the Xxxxxxxx-Xxxxx Act of 2002.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Special Notice Currency" means at any time an Alternative Currency or
Subsidiary Currency, other than the currency of a country that is a member
of the Organization for Economic Cooperation and Development at such time
located in North America or Europe.
"Specified Officer" means the Chairman, the Chief Executive Officer,
the President, the Chief Financial Officer, the Secretary, the Treasurer
and the General Counsel of Xxxxxxx-Xxxxxx International, and any other
executive officer identified as such in Xxxxxxx-Xxxxxx International's
annual report on Form 10-K filed pursuant to the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Spot Rate" for a currency means the rate determined by the
Administrative Agent, the applicable L/C Issuer or the applicable Swingline
Lender, 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, the applicable L/C Issuer or the applicable Swingline
Lender may obtain such spot rate from another financial institution
designated by the Administrative Agent, the applicable L/C Issuer or the
applicable Swingline Lender if the 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 applicable 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 or Subsidiary Currency; provided, further that the applicable
Swingline Lender may use such spot rate quoted on the date of Borrowing in
the case of any Swingline Loan denominated in a Subsidiary 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
Xxxxxxx-Xxxxxx International.
"Subsidiary Currency" means, as to any Subsidiary Swingline Borrower,
the currency in which such Subsidiary Swingline Borrower may borrow
Swingline Loans pursuant to Section 2.04 and have Letters of Credit issued
for the account of such Subsidiary Swingline Borrower pursuant to Section
2.03, as set forth in the definition of "Subsidiary Swingline Borrower
Sublimit" or as designated by a Subsidiary Swingline Borrower Request and
Assumption Agreement for the applicable Subsidiary Swingline Borrower;
provided that such designation must be agreed to by the Administrative
Agent and the affected Swingline Lender as evidenced by the Notice of
Designation of Additional Subsidiary Swingline Borrower, Applicable
Subsidiary Currency and Subsidiary Swingline Borrower Sublimit.
"Subsidiary Currency Sublimit" has the meaning set forth in the
definition of "Subsidiary Swingline Borrower Sublimit."
"Subsidiary L/C Obligation" means at any time, for any Subsidiary
Swingline Borrower, the sum of (a) the aggregate undrawn Dollar Equivalent
amount of all Letters of Credit issued for the account of such Subsidiary
Swingline Borrower then outstanding, plus (b) the Dollar Equivalent amount
of all unreimbursed drawings under Letters of Credit issued for the account
of the Subsidiary Swingline Borrower, including all outstanding L/C
Borrowings of such Subsidiary Swingline Borrower.
"Subsidiary Swingline Borrower" has the meaning specified in the
introductory paragraph.
"Subsidiary Swingline Borrower Request and Assumption Agreement" has
the meaning specified in Section 2.14(b).
"Subsidiary Swingline Borrower Sublimit" means an aggregate amount for
all Subsidiary Swingline Borrowers equal to the amount notified by
Xxxxxxx-Xxxxxx International in accordance with this Agreement to the
Administrative Agent from time to time, which amount shall not exceed the
lesser of (a) $70 million and (b) the Aggregate Commitments. The Subsidiary
Swingline Borrower Sublimit is part of, and not in addition to, the
Aggregate Commitments, and the amount of the Letters of Credit an L/C
Issuer issues to a Subsidiary Swingline Borrower to whom it makes Swingline
Loans is part of, and not in addition to, the Subsidiary Swingline Borrower
Sublimit. Subject to the other provisions in this Agreement, the amount set
forth opposite the Subsidiary Swingline Borrower's name or the Subsidiary
Swingline Borrowers' names in the table below, as adjusted pursuant to the
provisions of this definition and Section 2.06, is the aggregate principal
amount available to the Subsidiary Swingline Borrowers referenced below for
the applicable Subsidiary Currency (the "Subsidiary Currency Sublimit"),
and additional Subsidiary Swingline Borrowers, Subsidiary Currencies and
Subsidiary Currency Sublimits can be added in a Subsidiary Swingline
Borrower Request and Assumption Agreement which shall be consented to by
the Administrative Agent and the affected Lenders in a Notice of
Designation of Additional Subsidiary Swingline Borrower, Applicable
Subsidiary Currency and Subsidiary Currency Sublimit; provided, that, after
giving effect to any such addition of Subsidiary Swingline Borrowers,
Subsidiary Currencies and Subsidiary Currency Sublimit, (a) the aggregate
Subsidiary Swingline Borrower Sublimit for all Subsidiary Swingline
Borrowers is not increased by any such adjustment to an amount greater than
$70 million and (b) the aggregate Outstanding Amount of all Revolving
Loans, plus the aggregate Outstanding Amount of all L/C Obligations
(excluding Subsidiary L/C Obligations), plus the then Assumed Swingline
Loan Amount shall not exceed the Aggregate Commitments.
------------------------------------------------------------ ---------------------------------------------------------
Name of Subsidiary Swingline Borrower Subsidiary Currency and
-------------------------------------- -----------------------
Subsidiary Currency Sublimit
----------------------------
------------------------------------------------------------ ---------------------------------------------------------
Xxxxxxx-Xxxxxx, Inc. Dollars - 12.5 million
------------------------------------------------------------ ---------------------------------------------------------
MTH and Xxxxxxx-Xxxxxx GmbH Swiss Francs - 20 million
------------------------------------------------------------ ---------------------------------------------------------
Xxxxxxx-Xxxxxx Holding (France) SAS Euros - 3.5 million
------------------------------------------------------------ ---------------------------------------------------------
MTMHD Euros - 3.5 million
------------------------------------------------------------ ---------------------------------------------------------
Xxxxxxx-Xxxxxx X.X. Xxx - 200 million
------------------------------------------------------------ ---------------------------------------------------------
Xxxxxxx-Xxxxxx Limited, Xxxxxxx-Xxxxxx UK Holdings Pounds Sterling - 2 million
Limited, Xxxxxxx-Xxxxxx Safeline X-Ray Limited and
Xxxxxxx-Xxxxxx Safeline Limited
------------------------------------------------------------ ---------------------------------------------------------
MTBV and Xxxxxxx-Xxxxxx NV Euros - 2 million
------------------------------------------------------------ ---------------------------------------------------------
Xxxxxxx-Xxxxxx International may adjust the aggregate amount of the
Subsidiary Swingline Borrower Sublimit for all Subsidiary Swingline
Borrowers and the Subsidiary Currency Sublimit for any Subsidiary Swingline
Borrower upward or downward at any time; provided that (a) the aggregate
Subsidiary Swingline Borrower Sublimit for all Subsidiary Swingline
Borrowers is not increased by any such adjustment to an amount greater than
$70 million, (b) after giving effect to any such adjustment, the
Outstanding Amount of the applicable Subsidiary L/C Obligations and
Swingline Loans subject to the adjusted Subsidiary Currency Sublimit shall
not exceed the amount of the adjusted Subsidiary Currency Sublimit for such
Subsidiary Swingline Borrower and (c) after giving effect to the adjustment
to the Subsidiary Swingline Borrower Sublimit, the aggregate Outstanding
Amount of all Revolving Loans, plus the aggregate Outstanding Amount of all
L/C Obligations (excluding Subsidiary L/C Obligations), plus the Assumed
Swingline Loan Amount reflecting the adjustment to the Subsidiary Swingline
Borrower Sublimit shall not exceed the Aggregate Commitments; and provided,
further that (a) in the event the adjustment is to the Subsidiary Currency
Sublimit for any Subsidiary Swingline Borrower, the consent of the
Swingline Lender or Swingline Lenders lending in the affected currencies to
the affected Subsidiary Swingline Borrowers, which consent shall be
substantially in the form of Exhibit I (each a "Subsidiary Swingline
Borrower Sublimit Adjustment Consent"), shall be required, and (b) in the
event a Subsidiary Swingline Borrower Sublimit Adjustment Consent is
presented pursuant to the last sentence of Section 2.03(c)(v) or Section
2.04(e)(iv), the consent of the Administrative Agent shall be required on
such Subsidiary Swingline Borrower Sublimit Adjustment Consent for any
adjustment of the aggregate amount of the Subsidiary Swingline Borrower
Sublimit for all Subsidiary Swingline Borrowers and the Subsidiary Currency
Sublimit for any Subsidiary Swingline Borrower. Promptly after any
adjustment of any Subsidiary Swingline Borrower Sublimit or any Subsidiary
Currency Sublimit pursuant to clause (a) of the second proviso in the
immediately preceding sentence, or in any other case where the
Administrative Agent's consent is not required hereunder, Xxxxxxx-Xxxxxx
International shall provide written notice to the Administrative Agent of
such adjustment and represent and warrant that the adjustment complies with
the requirements of the definition of "Subsidiary Swingline Borrower
Sublimit" and the provisions of this Agreement.
"Subsidiary Swingline Borrower Sublimit Adjustment Consent" has the
meaning specified in the definition of "Subsidiary Swingline Borrower
Sublimit".
"Swap Contract" means (a) 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, and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International
Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a "Master Agreement"), including any
such obligations or liabilities under 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 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).
"Swingline Borrowing" means a borrowing of a Swingline Loan pursuant
to Section 2.04.
"Swingline Lender" means:
(a) Wachovia Bank, N.A. in connection with a loan to Xxxxxxx-Xxxxxx,
Inc. in an aggregate principal amount of 12.5 million Dollars;
(b) Credit Suisse in connection with loans to MTH and/or
Xxxxxxx-Xxxxxx GmbH in the aggregate principal amount of 20
million Swiss Francs;
(c) Societe Generale in connection with a loan to Xxxxxxx-Xxxxxx
Holding (France) SAS in an aggregate principal amount of 3.5
million Euros;
(d) Bayerische Hypo-und Vereinsbank AG, Ulm, in connection with a
loan to MTMHD in an aggregate principal amount of 3.5 million
Euros;
(e) The Bank of Tokyo-Mitsubishi, Ltd., Shimbashi Commercial Banking
Office, in connection with a loan to Xxxxxxx-Xxxxxx K.K. in an
aggregate principal amount of 200 million Yen;
(f) The Royal Bank of Scotland plc acting either on its own behalf or
through its Affiliate National Westminster Bank Plc, in
connection with loans to Xxxxxxx-Xxxxxx Limited, Xxxxxxx-Xxxxxx
UK Holdings Limited, Xxxxxxx-Xxxxxx Safeline X-Ray Limited and/or
Xxxxxxx-Xxxxxx Safeline Limited in an aggregate principal amount
of 2 million Pounds Sterling; and
(g) ING Capital LLC acting either on its own behalf or through its
Affiliates ING Bank N.V. and ING Belgium SA/NV in connection with
loans to MTBV and/or Xxxxxxx-Xxxxxx N.V. in an aggregate
principal amount of 2 million Euros;
and any Lender willing to act as Swingline Lender, acceptable to the
Administrative Agent and Xxxxxxx-Xxxxxx International which, if applicable,
subsequently becomes a Swingline Lender in a manner consistent with Section
7.10. Any Swingline Lender may resign or not otherwise be obligated to
serve as Swingline Lender upon 90 days' notice to the applicable Subsidiary
Swingline Borrower and Xxxxxxx-Xxxxxx International.
"Swingline Loans" has the meaning specified in Section 2.04(a).
"Swingline Loan Calculation Date" has the meaning specified in Section
2.05(c).
"Swingline Loan Calculation Date Notice" means a notice substantially
in the form of Exhibit J hereto.
"Swingline Note" means a promissory note made by a Subsidiary
Swingline Borrower in favor of a Swingline Lender evidencing Swingline
Loans made by such Swingline Lender to such Subsidiary Swingline Borrower
in a specified Subsidiary Currency substantially in the form of Exhibit C
hereto.
"Swiss Franc" means the lawful currency of Switzerland.
"Syndication Agents" means JPMorgan Chase Bank, N.A. and Wachovia
Bank, N.A., in their capacities as syndication agents under any of the Loan
Documents, and any successor syndication agents.
"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) determined by the Administrative Agent or the applicable Swingline
Lender, as the case may be, to be a suitable replacement) is open for the
settlement of payments in Euro.
"Taxes" has the meaning specified in Section 3.01(a).
"Termination Date" has the meaning specified in Section 11.04.
"Threshold Amount" means $25 million.
"Total Outstandings" means the aggregate Outstanding Amount of (a) all
Revolving Loans, (b) all L/C Obligations (excluding Subsidiary L/C
Obligations), (c) all Subsidiary L/C Obligations and (d) all Swingline
Loans.
"Type" means, with respect to a Loan, its character as a Base Rate
Loan or 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.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
"Yen" and "(Y)" mean the lawful currency of Japan.
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 meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) 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."
(d) Any reference to "basis points" or "bps" shall be interpreted in
accordance with the convention that 100 bps = 1.0%.
(e) 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.
(f) All references to any Person shall also refer to the successors
and assigns of such Person permitted hereunder.
1.03 ACCOUNTING TERMS. (a) 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) 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 Xxxxxxx-Xxxxxx International or the Required Lenders shall so
request, the Administrative Agent, the Lenders and Xxxxxxx-Xxxxxx
International 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 and Xxxxxxx-Xxxxxx
International); 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) upon the request of the Administrative Agent,
Xxxxxxx-Xxxxxx International 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.
1.04 ROUNDING. Any financial ratios required to be maintained by
Xxxxxxx-Xxxxxx International 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 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements
(including the Loan Documents) and other contractual instruments shall be
deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that
such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
1.06 EXCHANGE RATES; CURRENCY EQUIVALENTS. (a) The Administrative
Agent, the L/C Issuer or the Swingline Lender, as the case may be, 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 or Subsidiary Currencies
(other than Dollars). 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
Xxxxxxx-Xxxxxx International 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 determined by the Administrative
Agent, the applicable L/C Issuer or the applicable Swingline Lender, as the
case may be. Each determination of the Dollar Equivalent by the
Administrative Agent, the applicable L/C Issuer or the applicable Swingline
Lender, as the case may be, shall be conclusive and binding on the
Applicable Borrower in absence of manifest error.
(b) Wherever in this Agreement in connection with a Borrowing,
conversion, continuation or prepayment of a Eurocurrency Rate Loan or a
Swingline Loan or 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 Borrowing, Eurocurrency Rate Loan or Letter
of Credit is denominated in an Alternative Currency or a Subsidiary
Currency (other than Dollars), such amount shall be the relevant
Alternative Currency Equivalent of such Dollar amount (rounded to the
nearest unit of such Alternative Currency or Subsidiary Currency, with 0.5
of a unit being rounded upward), as determined by the Administrative Agent,
the applicable L/C Issuer or the applicable Swingline Lender, as the case
may be.
1.07 ADDITIONAL ALTERNATIVE CURRENCIES. (a) Xxxxxxx-Xxxxxx
International may from time to time request that Eurocurrency Rate Loans be
made to the Revolving Borrowers and/or Letters of Credit be issued for the
accounts of the Revolving Borrowers in a currency other than those
specifically listed in the definition of "Alternative Currency;" provided
that such requested currency is a lawful currency (other than Dollars) that
is readily available and freely transferable and convertible into Dollars.
In the case of any such request with respect to the making of Eurocurrency
Rate Loans to the Revolving Borrowers, such request shall be subject to the
approval of the Administrative Agent and each of the Lenders; and in the
case of any such request with respect to the issuance of Letters of Credit
for the account of the Revolving Borrowers, such request shall be subject
to the approval of the Administrative Agent and the L/C Issuer issuing
Letters of Credit for the accounts of the Revolving Borrowers.
(b) Any such request shall be made to the Administrative Agent not
later than 11:00 a.m., 20 Business Days prior to the date of the desired
Credit Extension to the Revolving Borrowers (or such other time or date as
may be agreed by the Administrative Agent and, in the case of any such
request pertaining to Letters of Credit for the accounts of the Revolving
Borrowers, the L/C Issuer issuing Letters of Credit for the accounts of the
Revolving Borrowers, in its or their sole discretion). In the case of any
such request pertaining to Eurocurrency Rate Loans, the Administrative
Agent shall promptly notify each Lender thereof; and in the case of any
such request pertaining to Letters of Credit for the accounts of the
Revolving Borrowers, the Administrative Agent shall promptly notify the L/C
Issuer thereof. Each Lender (in the case of any such request pertaining to
Eurocurrency Rate Loans) or the L/C Issuer issuing Letters of Credit for
the accounts of the Revolving Borrowers (in the case of a request
pertaining to Letters of Credit for the accounts of the Revolving
Borrowers) shall notify the Administrative Agent, not later than 11:00
a.m., ten Business Days after receipt of such request whether it consents,
in its sole discretion, to the making of such Eurocurrency Rate Loans or
the issuance of such Letters of Credit, as the case may be, in such
requested currency.
(c) Any failure by a Lender or the L/C Issuer, as the case may be, to
respond to such request within the time period specified in the preceding
sentence shall be deemed to be a refusal by such Lender or such L/C Issuer,
as the case may be, to permit Eurocurrency Rate Loans to be made or Letters
of Credit for the accounts of the Revolving Borrowers to be issued in such
requested currency. If the Administrative Agent and all the Lenders consent
to making Eurocurrency Rate Loans in such requested currency, the
Administrative Agent shall so notify Xxxxxxx-Xxxxxx International and such
currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Borrowings of Eurocurrency Rate
Loans; and if the Administrative Agent and the L/C Issuer issuing Letters
of Credit for the accounts of the Revolving Borrowers consent to the
issuance of Letters of Credit for the accounts of the Revolving Borrowers
in such requested currency, the Administrative Agent shall so notify
Xxxxxxx-Xxxxxx International and such currency shall thereupon be deemed
for all purposes to be an Alternative Currency hereunder for purposes of
any such Letter of Credit issuances. If the Administrative Agent shall fail
to obtain consent to any request for an additional currency under this
Section 1.07, the Administrative Agent shall promptly so notify
Xxxxxxx-Xxxxxx International.
1.08 CHANGE OF CURRENCY. (a) Each obligation of the Borrowers 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 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.
1.09 TIMES OF DAY. Unless otherwise specified, all references herein
to times of day shall be references to Eastern time (daylight or standard,
as applicable).
1.10 LETTER OF CREDIT AMOUNTS. Unless otherwise specified, 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 THE LOANS. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make loans to each of the Revolving
Borrowers (each such loan, a "Revolving Loan") in Dollars or in one or more
Alternative Currencies from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that
after giving effect to any Borrowing, (i) the aggregate Outstanding Amount
of all Revolving Loans, plus the aggregate Outstanding Amount of all L/C
Obligations (excluding Subsidiary L/C Obligations), plus the Assumed
Swingline Loan Amount shall not exceed the Aggregate Commitments and (ii)
the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations (excluding Subsidiary L/C Obligations), plus such Lender's Pro
Rata Share of the Assumed Swingline Loan Amount shall not exceed such
Lender's Commitment. Notwithstanding the foregoing sentence, subject to the
terms and conditions set forth herein, each Lender severally agrees to make
Revolving Loans (without application of the Assumed Swingline Loan Amount)
in an amount equal to its Pro Rata Share of the Revolving Loans made to
refinance Swingline Loans in accordance with Section 2.04(e) and to
refinance drawings under Letters of Credit for the account of Subsidiary
Swingline Borrowers which have not been reimbursed on the Honor Date by
such Subsidiary Swingline Borrowers in accordance with Section 2.03(c), in
each case, in an aggregate amount not to exceed such Lender's Commitment;
provided, however, that after giving effect to any such Borrowing, (i) the
Total Outstandings shall not exceed the Aggregate Commitments, (ii) the
aggregate Outstanding Amount of all Loans of any Lender, plus the aggregate
Outstanding Amount of all L/C Obligations of any Lender shall not exceed
such Lender's Commitment, and (iii) the Outstanding Amount of all
Subsidiary L/C Obligations of such Subsidiary Swingline Borrower, plus the
Outstanding Amount of all Swingline Loans of such Subsidiary Swingline
Borrower shall not exceed such Subsidiary Swingline Borrower's Subsidiary
Currency Sublimit. Within the limits of each Lender's Commitment, and
subject to the other terms and conditions hereof, the Borrowers may borrow
under this Section 2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Revolving Loans may be Base Rate Loans or Eurocurrency Rate
Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS (OTHER THAN
SWINGLINE LOANS). (a) Each Borrowing of Revolving Loans, each conversion of
Revolving Loans from one Type to the other, and each continuation of
Eurocurrency Rate Loans shall be made upon Xxxxxxx-Xxxxxx International's
irrevocable notice to the Administrative Agent, which may be given by
telephone. Each of the other Revolving Borrowers hereby irrevocably
appoints Xxxxxxx-Xxxxxx International as its agent for all purposes
relevant to this Agreement and each of the other Loan Documents, unless
otherwise specified herein, including, without limitation, (i) the giving
and receiving of notices (including, without limitation, Loan Notices) and
(ii) the execution and delivery of all documents, instruments and
certificates contemplated herein and all modifications hereto, and (iii)
the receipt of the proceeds of any Revolving Loans made by the Lenders. Any
acknowledgement, consent, direction, certification or other action which
might otherwise be valid or effective only if given or taken by all the
Revolving Borrowers, or by each Revolving Borrower acting singly, shall be
valid and effective if given or taken only by Xxxxxxx-Xxxxxx International,
whether or not any Revolving Borrower joins therein. Any notice, demand,
consent, acknowledgement, direction, certification or other communication
delivered to the Administrative Agent by Xxxxxxx-Xxxxxx International in
accordance with the terms of this Agreement shall be deemed to have been
delivered by each Revolving Borrower. 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 Revolving Loans or,
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) four Business Days (or five Business Days
in the case of a Special Notice Currency) prior to the requested date of
any Borrowing of Revolving Loans or continuation of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (iii) one Business Day prior to
the requested date of any Borrowing of Base Rate Loans; provided, however,
that if Xxxxxxx-Xxxxxx International wishes to request Eurocurrency Rate
Loans having an Interest Period other than one, two, three or six months in
duration as provided in the definition of "Interest Period", the applicable
notice must be received by the Administrative Agent not later than 11:00
a.m. (i) four Business Days prior to the requested date of such Borrowing
of Revolving Loans, conversion or continuation of Eurocurrency Rate Loans
denominated in Dollars, or (ii) five Business Days (or six Business Days in
the case of a Special Notice Currency) prior to the requested date of such
Borrowing of Revolving Loans, conversion or continuation of Eurocurrency
Rate Loans denominated in Alternative Currencies, whereupon the
Administrative Agent shall give prompt notice to the Lenders of such
request and determine whether the requested Interest Period is acceptable
to all of them. Not later than 11:00 a.m., (i) three Business Days before
the requested date of such Borrowing of Revolving Loans, conversion or
continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii)
four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of such Borrowing of Revolving Loans,
conversion or continuation of Eurocurrency Rate Loans denominated in
Alternative Currencies, the Administrative Agent shall notify
Xxxxxxx-Xxxxxx International (which notice may be by telephone) whether or
not the requested Interest Period has been consented to by all the Lenders.
Each telephonic notice by Xxxxxxx-Xxxxxx International 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 Xxxxxxx-Xxxxxx International. Except as
provided in Section 2.04(e), each Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans shall be in a principal amount of
$5 million or a whole multiple of $1 million in excess thereof. Except as
provided in Section 2.03(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) whether Xxxxxxx-Xxxxxx International is
requesting a Borrowing of Revolving Loans, a conversion of Revolving Loans
from one Type to the other, or a continuation of Eurocurrency Rate Loans,
(ii) the requested date of the Borrowing of Revolving Loans, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Revolving Loans to be borrowed, converted or continued,
(iv) the Type of Loans to be borrowed or to which existing Revolving Loans
are to be converted or continued, (v) if applicable, the duration of the
Interest Period with respect thereto, (vi) the currency of the Revolving
Loans to be borrowed, and (vii) if applicable, the name of the Revolving
Borrower if other than Xxxxxxx-Xxxxxx International. If Xxxxxxx-Xxxxxx
International fails to specify a currency in a Loan Notice requesting a
Borrowing of Revolving Loans, then the Revolving Loans so requested shall
be made in Dollars. Except as provided in Sections 2.03(c) and 2.04(e), if
Xxxxxxx-Xxxxxx International fails to specify a Type of Loan in a Loan
Notice or if Xxxxxxx-Xxxxxx International fails to give a timely notice
requesting a conversion or continuation, then the applicable Revolving
Loans shall be made as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure to timely request a continuation of
Revolving Loans denominated in an Alternative Currency, such Revolving
Loans shall be continued as Eurocurrency Rate Loans in their original
currency with an Interest Period of one month. 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 Xxxxxxx-Xxxxxx International 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 Revolving Loan may be converted into or
continued as a Revolving Loan denominated in a different currency, but
instead must be repaid in the original currency of such Revolving Loan and
reborrowed in the other currency. No refinancing of a Swingline Loan
pursuant to Section 2.04(e) or refinancing of a drawing under a Letter of
Credit for the account of a Subsidiary Swingline Borrower which has not
been reimbursed on the Honor Date by such Subsidiary Swingline Borrower
pursuant to Section 2.03(c) may be converted into a Revolving Loan, but
instead must be repaid through the Borrowing of a Revolving Loan in
accordance with the provisions set forth in Sections 2.01, 2.02, 2.03(c)
and 2.04(e).
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount (and currency) of its Pro Rata
Share of the applicable Revolving Loans, and if no timely notice of a
conversion or continuation is provided by Xxxxxxx-Xxxxxx International, the
Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans or continuation of Revolving Loans
denominated in a currency other than Dollars, in each case as described in
the preceding subsection (a). In the case of a Borrowing of Revolving
Loans, each Lender shall make the amount of its Revolving 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 Revolving Loan denominated in Dollars, and not later than the
Applicable Time specified by the Administrative Agent in the case of any
Revolving Loan in an Alternative Currency, in each case on the Business Day
specified in the applicable Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing of
a Revolving Loan is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to
Xxxxxxx-Xxxxxx International or the other applicable Revolving Borrower in
like funds as received by the Administrative Agent either by (i) crediting
an account of such 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 (and reasonably acceptable to) the
Administrative Agent by Xxxxxxx-Xxxxxx International; provided, however,
that if, on the date the Loan Notice with respect to such Borrowing of
Revolving Loans denominated in Dollars is given by Xxxxxxx-Xxxxxx
International, there are L/C Borrowings outstanding, then the proceeds of
such Borrowing of Revolving Loans, first, shall be applied to the payment
in full of any such L/C Borrowings, and, second, shall be made available to
the Applicable Borrower 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. During the existence of a Default, no Loans
may be requested as, converted to or continued as Eurocurrency Rate Loans
(whether in Dollars or any Alternative Currency) without the consent of the
Required Lenders, and the Required Lenders may demand that any or all of
the then outstanding Eurocurrency Rate Loans denominated in an Alternative
Currency be prepaid, or redenominated into Dollars in the amount of the
Dollar Equivalent thereof, on the last day of the then current Interest
Period with respect thereto.
(d) The Administrative Agent shall promptly notify Xxxxxxx-Xxxxxx
International and the Lenders of the interest rate applicable to any
Interest Period for Eurocurrency Rate Loans upon determination of such
interest rate. The determination of the Eurocurrency Rate by the
Administrative Agent shall be conclusive in the absence of manifest error.
At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify Xxxxxxx-Xxxxxx International 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 of Revolving Loans, all
conversions of Revolving Loans from one Type to the other, and all
continuations of Revolving Loans as the same Type, there shall not be more
than six Interest Periods in effect with respect to Revolving Loans. No
more than four different Alternative Currencies shall be utilized for all
outstanding Revolving Loans.
(f) The failure of any Lender to make any Loan to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Loan on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make any
Loan to be made by such other Lender on the date of any Borrowing.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
applicable L/C Issuer agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.03, (1) from time to time on
any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit to any
Revolving Borrower, denominated in Dollars or in one or more
Alternative Currencies for the account of such Revolving Borrower, and
to amend or renew Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under
such Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the
Revolving Borrowers and any drawings thereunder; provided that the
Revolving Borrowers shall not request, and the L/C Issuer shall not be
obligated to make, any L/C Credit Extension with respect to any Letter
of Credit issued for the account of any Revolving Borrower, and no
Lender shall be obligated to participate in any Letter of Credit
issued for the account of any Revolving Borrower, if as of the date of
such L/C Credit Extension, (x) the aggregate Outstanding Amount of all
Revolving Loans, plus the aggregate Outstanding Amount of all L/C
Obligations (excluding Subsidiary L/C Obligations), plus the Assumed
Swingline Loan Amount would exceed the Aggregate Commitments; (y) the
aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations (excluding Subsidiary L/C Obligations), plus such Lender's
Pro Rata Share of the Assumed Swingline Loan Amount would exceed such
Lender's Commitment; or (z) the aggregate Outstanding Amount of all
the L/C Obligations for the account of the Revolving Borrowers would
exceed the Letter of Credit Sublimit. Subject to the last sentence of
Section 2.03(c)(v) and the terms and conditions set forth herein the
applicable L/C Issuers severally agree, in reliance upon the
agreements of the other Lenders set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date to issue
Letters of Credit for the account of the Subsidiary Swingline Borrower
to whom it makes Swingline Loans denominated in the Subsidiary
Currency applicable to such Subsidiary Swingline Borrower, and to
amend Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drawings under such Letters of
Credit; provided that the Subsidiary Swingline Borrowers shall not
request, and the L/C Issuer shall not be obligated to make, any L/C
Credit Extension with respect to any Letter of Credit issued for the
account of any Subsidiary Swingline Borrower, if as of the date of
such L/C Credit Extension (without application of the Assumed
Swingline Loan Amount), the Outstanding Amount (calculated in the
applicable Subsidiary Currency) of all Subsidiary L/C Obligations of
the applicable Subsidiary Swingline Borrower, plus the Outstanding
Amount (calculated in the applicable Subsidiary Currency) of all
Swingline Loans of such Subsidiary Swingline Borrower would exceed
such Subsidiary Swingline Borrower's Subsidiary Currency Sublimit; and
provided, further, that each Swingline Lender need only make Letters
of Credit available in the Subsidiary Currency applicable to such
Subsidiary Swingline Borrower as such Swingline Lender, Subsidiary
Swingline Borrower and the Administrative Agent shall agree in
accordance with this Agreement. In addition, the Lenders severally
agree to participate in Letters of Credit issued for the account of
the Subsidiary Swingline Borrowers and any drawings thereunder in
accordance with the provisions set forth in Sections 2.01, 2.02 and
2.03(c). Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrowers' ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrowers may, during
the foregoing period, obtain Letters of Credit to replace Letters of
Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months
after the date of issuance or last extension, unless the Required
Lenders have approved such expiry date;
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date;
(C) such Letter of Credit for the account of a Revolving
Borrower is to be denominated in a currency other than Dollars or
an Alternative Currency, unless all the Lenders have consented
thereto; or
(D) such Letter of Credit for the account of a Subsidiary
Swingline Borrower is to be denominated in a currency other than
the applicable Subsidiary Currency for such Subsidiary Swingline
Borrower.
(iii) 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,
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) the issuance of such Letter of Credit would violate any
Laws or one or more policies of the L/C Issuer;
(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 the Dollar Equivalent of $250,000;
(D) 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;
(E) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(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 Borrowers or such Lender to
eliminate the L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the
L/C Issuer would not be permitted at such time to issue such Letter of
Credit in its amended form under the terms hereof.
(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.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Applicable Borrower delivered to the
L/C Issuer in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
Applicable Borrower or Xxxxxxx-Xxxxxx International. Such Letter of
Credit Application must be received by the L/C Issuer (A) not later
than 11:00 a.m. at least two Business Days prior to the proposed
issuance date or date of amendment, as the case may be, of any Letter
of Credit denominated in Dollars, and (B) not later than 11:00 a.m.,
or the applicable local time specified by the L/C Issuer, in the case
of Letters of Credit to be issued or amended for the account of
Subsidiary Swingline Borrowers, at least two Business Days prior to
the proposed issuance date or date of amendment, as the case may be,
of any Letter of Credit denominated in an Alternative Currency or a
Subsidiary Currency, as applicable; or in each case such later date
and time as the L/C Issuer may agree in a particular instance in their
sole discretion. 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 satisfactory to the L/C Issuer the following: (A) the
proposed issuance date of the requested Letter of Credit (which shall
be a Business Day); (B) the amount and currency thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be 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 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
satisfactory to the L/C Issuer the following: (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 require. Additionally, the
Applicable Borrower shall furnish to the L/C Issuer such other
documents and information pertaining to such requested Letter of
Credit issuance or amendment, including any Issuer Documents, as the
L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application,
the L/C Issuer will provide the Administrative Agent with a copy of
such Letter of Credit Application. 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 applicable Letter of Credit, that one or
more applicable conditions contained in Article IV shall not then be
satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Applicable Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the 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
L/C Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Lender's Pro Rata Share times the amount
of such Letter of Credit.
(iii) If the Applicable Borrower so requests in any applicable
Letter of Credit Application, the L/C Issuer may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has
automatic renewal provisions (each, an "Auto-Renewal Letter of
Credit"); provided that any such Auto-Renewal Letter of Credit must
permit the L/C Issuer to prevent any such renewal at least once in
each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the "Non-Renewal Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, the
Applicable Borrower shall not be required to make a specific request
to the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of
Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the L/C Issuer to permit the renewal of such
Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C
Issuer shall not permit any such renewal if (A) the L/C Issuer has
determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised
form (as renewed) under the terms hereof (by reason of the provisions
of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or
before the day that is five Business Days before the Non-Renewal
Notice Date (1) from the Administrative Agent that the Required
Lenders have elected not to permit such renewal or (2) from the
Administrative Agent, any Lender or any Loan Party that one or more of
the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to
permit such renewal.
(iv) If any Letter of Credit contains provisions providing for
automatic reinstatement of the stated amount after any drawing
thereunder, (A) unless otherwise directed by the L/C Issuer, the
Applicable Borrower shall not be required to make a specific request
to the L/C Issuer to permit such reinstatement, and (B) the
Administrative Agent and the Lenders hereby authorize and direct the
L/C Issuer to permit such automatic reinstatement.
(v) 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 L/C Issuer will also
deliver to the Applicable Borrower 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 applicable
L/C Issuer shall notify the Applicable Borrower and the Administrative
Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency or a Subsidiary Currency, as the case may be, the
Applicable Borrower shall reimburse the L/C Issuer in such Alternative
Currency or Subsidiary Currency, as the case may be, unless with
respect to a Letter of Credit denominated in an Alternative Currency
(A) the L/C Issuer (at its option) shall have specified in such notice
that it will require reimbursement in Dollars, or (B) in the absence
of any such requirement for reimbursement in Dollars, the Applicable
Borrower shall have notified the L/C Issuer promptly following receipt
of the notice of drawing that the Applicable Borrower 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 Applicable
Borrower of the Dollar Equivalent of the amount of the drawing
promptly following the determination thereof. Not later than 11:00
a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in Dollars, the Applicable Time on the date of
any payment by the L/C Issuer under a Letter of Credit to be
reimbursed in an Alternative Currency or the applicable local time
specified by the L/C Issuer on the date of any payment by the L/C
Issuer under a Letter of Credit to be reimbursed in a Subsidiary
Currency, as the case may be, (each such date, an "Honor Date"), the
Applicable Borrower shall reimburse the L/C Issuer (i) in the case of
Revolving Borrowers, through the Administrative Agent, and (ii) in the
case of Subsidiary Swingline Borrowers, to the applicable L/C Issuer
directly, in an amount equal to the amount of such drawing and in the
applicable currency. If the Applicable Borrower fails to so reimburse
the L/C Issuer by such time on the Honor Date, the L/C Issuer shall so
notify the Administrative Agent (the Administrative Agent will provide
a copy of the notice to the Applicable Borrower and Xxxxxxx-Xxxxxx
International), and specify in such notice 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 or Subsidiary Currency (other than Dollars), as
the case may be) (the "Unreimbursed Amount"). Immediately upon receipt
of such notice from the L/C Issuer, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the
Unreimbursed Amount, and the amount of such Lender's Pro Rata Share
thereof. In such event, Xxxxxxx-Xxxxxx International shall be deemed
to have requested a Borrowing of Revolving Loans in the form of Base
Rate Loans under Section 2.01 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 Commitments and the conditions set forth in Section
4.02 (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) Each Lender (including the Lender acting as L/C Issuer)
shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to the Administrative Agent for the account of the L/C
Issuer, in Dollars, at the Administrative Agent's Office for
Dollar-denominated payments in an amount equal to its Pro Rata Share
of the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Lender that so
makes funds available shall be deemed to have made a Revolving Loan in
the form of a Base Rate Loan to Xxxxxxx-Xxxxxx International in such
amount. The Administrative Agent shall remit the funds so received to
the L/C Issuer in Dollars, or if requested by the L/C Issuer, the
equivalent amount thereof in an Alternative Currency or Subsidiary
Currency as determined by the applicable L/C Issuer at such time on
the basis of the Spot Rate (determined as of such funding date) for
the purchase of such Alternative Currency or Subsidiary Currency with
Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Revolving Loans in the form of Base Rate
Loans because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, Xxxxxxx-Xxxxxx International shall
be deemed to have incurred from the L/C Issuer an L/C Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, 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 L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Loan or L/C Advance pursuant to
this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn
under any Letter of Credit, interest in respect of such Lender's Pro
Rata Share of such amount shall be solely for the account of the L/C
Issuer.
(v) Each Lender's obligation to make Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, any Borrower, the
Administrative Agent, 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 make Loans pursuant to this Section 2.03(c) is subject
to the conditions set forth in Sections 2.01 and 2.02, this Section
2.03 and the conditions set forth in Section 4.02 (other than delivery
by Xxxxxxx-Xxxxxx International of a Loan Notice). No such making of
an L/C Advance shall relieve or otherwise impair the obligation of the
Applicable Borrower to reimburse the L/C Issuer for the amount of any
payment made by the L/C Issuer under any Letter of Credit, together
with interest as provided herein. To the extent Lenders make the Loans
or L/C Advances to reimburse the L/C Issuer for amounts drawn under a
Letter of Credit issued for the account of the Subsidiary Swingline
Borrower pursuant to Section 2.03(c), the amount of such Subsidiary
Swingline Borrower's Subsidiary Currency Sublimit so funded as a Loan
or L/C Advance shall not be available for Borrowings of Swingline
Loans until a Subsidiary Swingline Borrower Sublimit Adjustment
Consent is presented and consented to by the appropriate parties.
(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. A certificate of the L/C Issuer submitted to any
Lender (through the Administrative Agent) with respect to any amounts
owing under this Section 2.03(c)(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 Xxxxxxx-Xxxxxx International, the
Applicable Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Pro Rata Share
thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's L/C Advance was
outstanding) in Dollars and in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required
to be returned under any of the circumstances described in Section
10.06 (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 Pro Rata Share thereof on
demand of the Administrative Agent, 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 applicable Overnight Rate
from time to time in effect.
(e) Obligations Absolute. The obligation of the Applicable Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit and
to repay each L/C Borrowing 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, any agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense
or other right that any Borrower 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;
(v) any adverse change in the relevant exchange rates or in the
availability of the relevant Alternative Currency or relevant
Subsidiary Currency to any Borrower 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, any Borrower.
Each Borrower 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 such Borrower's instructions or other
irregularity, such Borrower will immediately notify the L/C Issuer. Each
Borrower 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 Applicable Borrower 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. Neither the L/C Issuer, any Agent-Related Person nor any of
the respective correspondents, participants or assignees 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 Letter of Credit Application.
Each Applicable Borrower 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 such Borrower 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, any Agent-Related Person nor any of the
respective correspondents, participants or assignees of the L/C Issuer,
shall be liable or responsible for any of the matters described in clauses
(i) through (vi) of Section 2.03(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the Applicable Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to
such Applicable Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by such
Applicable Borrower which such Applicable Borrower 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 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. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii)
if, as of the Letter of Credit Expiration Date, any Letter of Credit may
for any reason remain outstanding and partially or wholly undrawn, the
Applicable Borrower shall immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such L/C Borrowing or the
Letter of Credit Expiration Date, as the case may be). The Administrative
Agent or the L/C Issuer may, at any time and from time to time after the
initial deposit of Cash Collateral, request that additional Cash Collateral
be provided in order to protect against the results of exchange rate
fluctuations. Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this
Section 2.03, Section 2.05 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, cash or deposit account balances in currencies acceptable to
the Administrative Agent pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such term
have corresponding meanings. The Applicable Borrower 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, non-interest bearing deposit accounts at Bank of
America. If at any time the Administrative Agent determines that any funds
held as Cash Collateral are subject to any right or claim of any Person
other than the Administrative Agent or that the total amount of such funds
is less than the aggregate Outstanding Amount of L/C Obligations, the
Applicable Borrower will forthwith, upon demand by the Administrative
Agent, pay to the Administrative Agent, as additional funds to be deposited
and held in deposit accounts at Bank of America as aforesaid, an amount
equal to the excess of (i) such aggregate Outstanding Amount over (ii) the
total amount of funds, if any, then held as Cash Collateral that the
Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on
deposit as Cash Collateral, such funds shall be applied, to the extent
permitted under applicable Law, to reimburse the L/C Issuer.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Applicable Borrower when a standby Letter of Credit is
issued, the rules of the ISP shall apply to each standby Letter of Credit.
(i) Letter of Credit Fees. Xxxxxxx-Xxxxxx International and the
Applicable Borrower shall be jointly and severally liable for, and
Xxxxxxx-Xxxxxx International shall pay (i) with respect to Letters of
Credit issued for any Revolving Borrower, to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, in
Dollars, and (ii) with respect to Letters of Credit issued for any
Subsidiary Swingline Borrower for the account of the L/C Issuer in the
applicable Subsidiary Currency, a Letter of Credit fee (the "Letter of
Credit Fee") for each standby Letter of Credit equal to (A) with respect to
Letters of Credit issued for the account of any Revolving Borrower, the
Applicable Rate times the Dollar Equivalent of the daily amount available
to be drawn under such Letter of Credit or (B) with respect to Letters of
Credit issued for the account of any Subsidiary Swingline Borrower, the
margin applicable for Letters of Credit for the account of such Subsidiary
Swingline Borrower as established by the L/C Issuer times the daily amount
available in the applicable Subsidiary Currency to be drawn under such
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 1.10. Letter of Credit Fees
shall be (i) computed on a quarterly basis in arrears and (ii) due and
payable on the fifth day after the end 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 and
thereafter on demand as calculated by (x) the Administrative Agent with
respect to Letters of Credit issued for the account of the Revolving
Borrowers, or (y) the applicable L/C Lender with respect to any Letter of
Credit issued solely for the account of a Subsidiary Swingline Borrower. If
there is any change in the Applicable Rate for Letters of Credit issued for
the account of any Revolving Borrower or the applicable margin for Letters
of Credit issued for the account of any Subsidiary Swingline Borrower
during any quarter, the daily amount available to be drawn under each
Letter of Credit shall be computed and multiplied by the Applicable Rate
for Letters of Credit issued for the account of any Revolving Borrower or
the applicable margin for Letters of Credit issued for the account of any
Subsidiary Swingline Borrower separately for each period during such
quarter that such Applicable Rate for Letters of Credit issued for the
account of any Revolving Borrower or the applicable margin for Letters of
Credit issued for the account of any Subsidiary Swingline Borrower was in
effect. Notwithstanding anything to the contrary contained herein, while
any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. Xxxxxxx-Xxxxxx International and the Applicable Borrower shall be
jointly and severally liable for, and Xxxxxxx-Xxxxxx International shall
pay directly to the L/C Issuer for its own account, in Dollars, such
Alternative Currency or such Subsidiary Currency, as the case may be, as
shall be separately agreed, a fronting fee with respect to each Letter of
Credit at a rate per annum equal to (A) with respect to Letters of Credit
issued for any Revolving Borrower, 0.125% of the Applicable Rate times the
Dollar Equivalent of the daily amount available to be drawn under such
Letter of Credit or (B) with respect to Letters of Credit issued for the
account of any Subsidiary Swingline Borrower, 0.125% of the margin
applicable for Letters of Credit for the account of such Subsidiary
Swingline Borrower times the daily amount available in the applicable
Subsidiary Currency to be drawn under such Letter of Credit, each as
calculated by the applicable L/C Issuer. Such fronting fee shall be
computed on a quarterly basis in arrears. Such fronting fee shall be due
and payable on the tenth Business Day after the end of each March, June,
September and December, in respect of the most recently-ended quarter
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 and thereafter on 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 1.10. In addition, each Applicable Borrower
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 the L/C Issuer relating to letters of credit
as from time to time in effect, in Dollars, such Alternative Currency or
such Subsidiary Currency, as the case may be, as shall be separately
agreed. Such customary fees and standard costs and charges are due and
payable on 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 Documents, the terms
hereof shall control.
2.04 SWINGLINE LOANS.
(a) The Swingline. Subject to the last sentence of Section 2.04(e)(iv)
and the other terms and conditions set forth herein, each Swingline Lender
severally agrees to make revolving loans (without application of the
Assumed Swingline Loan Amount) to Subsidiary Swingline Borrowers (each such
loan, a "Swingline Loan") from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the applicable Subsidiary Swingline Borrower's
Subsidiary Currency Sublimit; provided, however, that after giving effect
to any Swingline Loan, the Outstanding Amount (calculated in the applicable
Subsidiary Currency) of the applicable Swingline Loans of a Subsidiary
Swingline Borrower, plus the Outstanding Amount (calculated in the
applicable Subsidiary Currency) of all Subsidiary L/C Obligations of such
Subsidiary Swingline Borrower shall not exceed such Subsidiary Swingline
Borrower's Subsidiary Currency Sublimit.
(b) Currencies for Swingline Loans. Notwithstanding any other
provision of this Agreement, each Subsidiary Swingline Borrower shall only
borrow Swingline Loans in, and no Swingline Lender shall make any Swingline
Loan to such Subsidiary Swingline Borrower, other than in the Subsidiary
Currency denoted for such Subsidiary Swingline Borrower in the definition
of "Subsidiary Swingline Borrower Sublimit," or as designated for such
Subsidiary Swingline Borrower in the Subsidiary Swingline Borrower Request
and Assumption Agreement.
(c) Borrowing Procedures for Swingline Loans. Unless otherwise agreed
between the applicable Swingline Lender and Xxxxxxx-Xxxxxx International,
each Swingline Borrowing shall be made upon the Subsidiary Swingline
Borrower's irrevocable notice to the applicable Swingline Lender, which may
be given by telephone. To the extent any such notice is delivered, such
notice must be received by the applicable Swingline Lender not later than
11:00 a.m. (local time) one Business Day prior to the date of Borrowing
unless otherwise agreed between the applicable Swingline Lender and
Xxxxxxx-Xxxxxx International, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $500,000 or a whole multiple of
$100,000 in excess thereof or the Dollar Equivalent thereof if denominated
in another Subsidiary Currency unless otherwise agreed between the
applicable Swingline Lender and Xxxxxxx-Xxxxxx International, (ii) the
requested date of Borrowing, which shall be a Business Day and (iii) the
requested interest rate, margin and interest period (if any). Each such
telephonic notice must be confirmed on the same Business Day by delivery to
the Swingline Lender of a written swingline loan notice in form and
substance acceptable to such Swingline Lender, appropriately completed and
signed by a Responsible Officer of the applicable Subsidiary Swingline
Borrower. Unless the Swingline Lender has received notice (by telephone or
in writing) from the Administrative Agent (including at the request of any
Lender) prior to the proposed Swingline Borrowing (A) directing the
Swingline Lender not to make such Swingline Loan as a result of the
limitations set forth in the proviso to the first sentence of Section
2.04(a) or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swingline Lender shall make the amount of its Swingline Loan
available in the Same Day Funds to the applicable Subsidiary Swingline
Borrower at the place and in the manner agreed to by the Swingline Lender.
(d) Compliance with Local Law. Each of the Subsidiary Swingline
Borrowers and the Swingline Lenders, as the case may be, shall comply with
any local law requirements relating to the incurrence of Indebtedness, such
as providing a Borrower with the effective global rate of interest, as
required by the relevant local jurisdiction.
(e) Refinancing of Swingline Loans and Risk Participations.
(i) The applicable Swingline Lender at any time in its sole and
absolute discretion may request, on behalf of Xxxxxxx-Xxxxxx
International (which hereby irrevocably authorizes the Swingline
Lender to so request on its behalf), that each Lender make a
Eurocurrency Rate Loan in an amount equal to such Lender's Pro Rata
Share of the amount of Swingline Loans then outstanding in the Dollar
Equivalent amount of such Subsidiary Currency in Dollars or an
Alternative Currency as requested by such Swingline Lender. Such
request shall be made in writing (which written request shall be
deemed to be a Loan Notice for purposes hereof) and in accordance with
the requirements of Sections 2.01 and 2.02 and this Section 2.04 for
Borrowings of Eurocurrency Rate Loans with an initial Interest Period
of one month, without regard to the minimum and multiples specified
therein for the principal amount of Eurocurrency Rate Loans, but
subject to the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02. The Swingline Lender shall
furnish Xxxxxxx-Xxxxxx International with a copy of the applicable
Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its
Pro Rata Share of the amount specified in such Loan Notice available
to the Administrative Agent in Same Day Funds for the account of the
Swingline Lender at the Administrative Agent's Office for the
applicable currency (A) not later than 1:00 p.m. on the Business Day
specified in such Loan Notice in the case of a Eurocurrency Rate Loan
denominated in Dollars and (B) not later than the Applicable Time
specified by the Administrative Agent, in the case of a Eurocurrency
Rate Loan denominated in an Alternative Currency, in each case on the
Business Day specified in the Loan Notice. The Administrative Agent
shall remit the funds so received to the Swingline Lender in Dollars
or the Alternative Currency so received, or if requested by the
Swingline Lender, the equivalent amount thereof in the applicable
Subsidiary Currency as determined by the applicable Swingline Lender
at such time on the basis of the Spot Rate (determined as of the
funding date) for the purchase of such Subsidiary Currency with the
currency received through the Borrowing of the Eurocurrency Rate
Loans.
(ii) If for any reason any Swingline Loan cannot be refinanced by
such a Borrowing of Eurocurrency Rate Loans in accordance with Section
2.04(e)(i), the request for Eurocurrency Rate Loans in Dollars or an
Alternative Currency, as the case may be, submitted by the applicable
Swingline Lender as set forth herein shall be deemed to be a request
by the Swingline Lender that each of the Lenders fund its risk
participation in the relevant Swingline Loan in Dollars or the
Alternative Currency, as the case may be, specified in the Loan Notice
and each Lender's payment to the Administrative Agent for the account
of the Swingline Lender pursuant to Section 2.04(e)(i) shall be deemed
payment in respect of such participation; provided that at any time
the Lenders have funded their risk participations in the Swingline
Loans, the interest rate applicable to Swingline Loans shall not be
less than the Base Rate.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swingline Lender any amount required to
be paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(e) by the time specified in Section 2.04(e)(i), the
Swingline Lender 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
Swingline Lender at a rate per annum equal to the applicable Overnight
Rate from time to time in effect. A certificate of the Swingline
Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each Lender's obligation to make Loans or to purchase and
fund risk participations in Swingline Loans pursuant to this Section
2.04(e) shall be absolute and unconditional and shall not be affected
by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against
the Swingline Lender, any Borrower 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
make Loans pursuant to this Section 2.04(e) is subject to the
requirements set forth in Sections 2.01 and 2.02 and this Section 2.04
and the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the
Subsidiary Swingline Borrower to repay Swingline Loans, together with
interest as provided herein. To the extent Lenders make the Loans or
purchase and fund risk participations pursuant to this Section
2.04(e), the amount of such Subsidiary Currency Sublimit so purchased
or funded as a risk participation shall not be available for
Borrowings of Swingline Loans until a Subsidiary Swingline Borrower
Sublimit Adjustment Consent is presented and consented to by the
appropriate parties.
(f) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swingline Loan, if the Swingline Lender receives
any payment on account of such Swingline Loan, the Swingline Lender
will distribute through the Administrative Agent to such Lender its
Pro Rata Share of such payment (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender's risk participation was funded) in the same funds as those
received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect
of principal or interest on any Swingline Loan is required to be
returned by the Swingline Lender under any of the circumstances
described in Section 10.06 (including pursuant to any settlement
entered into by the Swingline Lender in its discretion), each Lender
shall pay to the Swingline Lender its Pro Rata Share thereof on demand
of the Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned, at a rate per annum
equal to the applicable Overnight Rate. The Administrative Agent will
make such demand upon the request of the Swingline Lender.
(g) Interest for Account of Swingline Lender. The applicable Swingline
Lender shall be responsible for invoicing the applicable Swingline Borrower
for interest on the Swingline Loans. Until each Lender funds its
Eurocurrency Rate Loan pursuant to Section 2.04(e), or risk participation
pursuant to Section 2.04(e) to refinance such Lender's Pro Rata Share of
any Swingline Loan, interest in respect of such Pro Rata Share shall be
solely for the account of the Swingline Lender.
(h) Payments Directly to Swingline Lender. The applicable Subsidiary
Swingline Borrower shall make all payments of principal and interest in
respect of the Swingline Loans directly to the Swingline Lender at the
office for payment designated by the Swingline Lender.
2.05 PREPAYMENTS. (a) The Applicable Borrower may, upon notice from
Xxxxxxx-Xxxxxx International to the Administrative Agent (or the Swingline
Lender for any prepayment of a Swingline Loan), as applicable, at any time
or from time to time voluntarily prepay Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Administrative Agent or the Swingline Lender, as applicable, not later than
11:00 a.m. unless otherwise agreed between Xxxxxxx-Xxxxxx International and
the applicable Swingline Lender (A) three Business Days prior to any date
of prepayment of Eurocurrency Rate Loans or Swingline Loans denominated in
Dollars, (B) four Business Days (or five, in the case of prepayment of
Loans denominated in Special Notice Currencies) prior to any date of
prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies
or Swingline Loans denominated in Subsidiary Currencies (other than
Dollars), and (C) one Business Day prior to any date of prepayment of
Revolving Loans in the form of Base Rate Loans; (ii) any prepayment of
Eurocurrency Rate Loans denominated in Dollars shall be in a principal
amount of $1 million or a whole multiple of $1 million in excess thereof;
(iii) any prepayment of Eurocurrency Rate Loans in Alternative Currencies
shall be in a minimum principal amount of $1 million or a whole multiple of
$1 million in excess thereof; and (iv) unless otherwise agreed between
Xxxxxxx-Xxxxxx International and the applicable Swingline Lender, any
prepayment of Base Rate Loans or Swingline 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 Rate Loans are to
be prepaid, the Interest Period(s) of such Eurocurrency Rate Loans. The
Administrative Agent will promptly notify each Lender of its receipt of
each such notice, and of the amount of such Lender's Pro Rata Share of such
prepayment. If such notice is given by Xxxxxxx-Xxxxxx International, the
Applicable Borrower shall irrevocably 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 or Swingline
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 Pro Rata Shares.
(b) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Applicable Borrowers shall
immediately prepay Loans and/or the Applicable Borrowers shall Cash
Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided, however, that such Cash Collateralization of the L/C
Obligations pursuant to this Section 2.05(b) shall not be required unless
after the prepayment in full of the Loans and Swingline Loans the Total
Outstandings exceed the Aggregate Commitments then in effect.
(c) On the last Business Day of each month (the date of each such
determination, the "Swingline Loan Calculation Date"), each Swingline
Lender shall determine the aggregate Outstanding Amount (calculated in the
applicable Subsidiary Currency) of all Subsidiary L/C Obligations and all
Swingline Loans of the Subsidiary Swingline Borrower to whom it makes
Swingline Loans (without application of the Assumed Swingline Loan Amount)
and provide a copy of the Swingline Loan Calculation Date Notice to the
Administrative Agent of such amount. The Administrative Agent shall prepare
a Notice of Swingline Loan Amounts containing the total aggregate Dollar
Equivalent amount of all Subsidiary L/C Obligations and all Swingline Loans
of all the Subsidiary Swingline Borrowers and shall provide a copy of such
Notice of Swingline Loan Amounts to Xxxxxxx-Xxxxxx International and the
Swingline Lenders. If the aggregate Outstanding Amount of all such
Subsidiary L/C Obligations and Swingline Loans at such time exceeds the
then aggregate Subsidiary Swingline Borrower Sublimit for all Subsidiary
Swingline Borrowers, the Subsidiary Swingline Borrowers, as applicable,
shall immediately prepay Swingline Loans and/or the Subsidiary Swingline
Borrowers, as applicable, shall immediately Cash Collateralize the
Subsidiary L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the foregoing shall not apply if Xxxxxxx-Xxxxxx
International adjusts the Subsidiary Swingline Borrower Sublimit in
accordance with the terms of this Agreement.
(d) If the Administrative Agent notifies Xxxxxxx-Xxxxxx International
at any time that the Outstanding Amount of all Subsidiary L/C Obligations
and all Swingline Loans of a Subsidiary Swingline Borrower (without
application of the Subsidiary Swingline Borrower's Pro Rata Share of the
Assumed Swingline Loan Amount) denominated in the applicable Subsidiary
Currency at such time exceeds an amount equal to 105% of the Subsidiary
Currency Sublimit for such Subsidiary Swingline Borrower then in effect,
then, within two Business Days after receipt of such notice, such
Subsidiary Swingline Borrower shall prepay such Swingline Loans and/or such
Subsidiary Swingline Borrower shall Cash Collateralize its Subsidiary L/C
Obligations in an aggregate amount sufficient to reduce such Outstanding
Amount as of such date of payment to an amount not to exceed 100% of its
Subsidiary Currency Sublimit then in effect. The Administrative Agent may,
at any time and from time to time after the initial deposit of such Cash
Collateral, request that additional Cash Collateral be provided in order to
protect against the results of further exchange rate fluctuations.
2.06 TERMINATION OR REDUCTION OF COMMITMENTS. Xxxxxxx-Xxxxxx
International on behalf of the Borrowers may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to
time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than
11:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount
of $1 million or any whole multiple of $1 million in excess thereof, (iii)
Xxxxxxx-Xxxxxx International on behalf of the Borrowers shall not terminate
or reduce the Aggregate Commitments if, after giving effect thereto and to
any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any
reduction of the Aggregate Commitments, the Letter of Credit Sublimit or
the Subsidiary Swingline Borrower Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the
amount of any such excess. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to
the Commitment of each Lender according to its Pro Rata Share. The amount
of any such Aggregate Commitment reduction shall not be applied to the
Letter of Credit Sublimit or the Subsidiary Swingline Borrower Sublimit
unless otherwise specified by Xxxxxxx-Xxxxxx International on behalf of the
Borrowers; provided, if Xxxxxxx-Xxxxxx International so elects a Letter of
Credit Sublimit or Subsidiary Swingline Borrower Sublimit reduction, the
reduction shall comply with the proviso in the initial sentence of this
Section 2.06. All fees accrued until the effective date of any termination
of the Aggregate Commitments shall be paid on the effective date of such
termination.
2.07 REPAYMENT OF LOANS. Each Borrower shall repay to the Lenders on
the Maturity Date the aggregate principal amount of Loans made to such
Borrower outstanding on such date.
2.08 INTEREST. (a) Subject to the provisions of subsection (b) below,
(i) each Eurocurrency Rate Loan to a Revolving Borrower 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; (ii) each Base Rate Loan to
a Revolving Borrower 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; (iii) each Swingline Loan to a
Subsidiary Swingline Borrower denominated in a Subsidiary Currency shall
bear interest at the rate and applicable margin to be agreed upon by the
applicable Swingline Lender, which interest rate shall be consistent with
local market standards and which margin shall be the Applicable Rate for
Eurocurrency Rate Loans.
(b) If any amount payable by any Applicable Borrower under any Loan
Document is not paid when due (after giving effect to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at the Default Rate to the fullest
extent permitted by applicable Laws. Furthermore, while any Event of
Default exists, each of the Applicable Borrowers shall pay interest on the
principal amount of all of their respective outstanding Obligations
hereunder at the Default Rate to the fullest extent permitted by applicable
Laws. 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) Facility Fee. Xxxxxxx-Xxxxxx International and the Applicable
Borrower shall be jointly and severally liable for their ratable share, and
Xxxxxxx-Xxxxxx International shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a facility
fee in Dollars equal to the Applicable Rate times the actual daily amount
of the Aggregate Commitments (or, if the Aggregate Commitments have
terminated, on the Outstanding Amount of all Revolving Loans, Swingline
Loans and L/C Obligations (without application of the Assumed Swingline
Loan Amount)), regardless of usage. The facility fee shall accrue at all
times during the Availability Period (and thereafter so long as any
Revolving Loans, Swingline Loans or L/C Obligations remain outstanding),
including at any time during which one or more of the conditions in Article
IV is not met, and shall be due and payable quarterly in arrears on the
fifth day after the end of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on
the Maturity Date (and, if applicable, thereafter on demand). On each such
payment date, the amount of facility fee which has accrued to but excluding
such payment date shall be due and payable. The facility fee shall be
calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be
computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) Xxxxxxx-Xxxxxx International shall pay to the
Arranger and the Administrative Agent for their own respective accounts, in
Dollars, fees in the amounts and at the times specified in the Fee Letter.
Such fees shall be fully earned when paid and shall not be refundable for
any reason whatsoever.
(ii) Xxxxxxx-Xxxxxx International and any other Applicable
Borrower shall pay to the Lenders, in Dollars, such fees as shall have
been separately agreed upon in writing in the amounts and at the times
so specified. 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, and all computations of interest
for Loans in Pounds Sterling shall be made on the basis of a year of 365
days and the 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), or, in the case of
interest in respect of Loans denominated in Alternative Currencies or
Subsidiary Currencies as to which market practice differs from the
foregoing, in accordance with such market practice. 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 2.12(a), bear interest for one
day. Each determination 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 in the
ordinary course of business by such Lender evidencing the Loans made to the
Applicable Borrower by such Lender (including the amounts of principal and
interest payable or paid to such Lender from time to time). The Credit
Extensions made by each Lender shall also be evidenced by one or more
accounts or records maintained by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by each Lender and
the Administrative Agent shall be conclusive absent manifest error of the
amount of the Credit Extensions made by the Lenders to the Borrowers 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 Borrowers 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 to a Borrower made through the Administrative
Agent, such Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Revolving Note or a Swingline Note, as applicable,
which shall evidence such Lender's Loans to such Borrower in addition to
such accounts or records. Each Lender may attach schedules to a Note and
endorse thereon the date, Type (if applicable), amount, currency and
maturity of its Loans and payments with respect thereto.
(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 and Swingline
Loans. 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. (a) All payments to be made by the Applicable
Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided
herein and except with respect (i) to principal of and interest on
Revolving Loans denominated in an Alternative Currency, and (ii) to
principal of and interest on Swingline Loans denominated in a Subsidiary
Currency, all payments by the Borrowers 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. Except as otherwise expressly provided herein, all
payments by the Borrowers hereunder with respect to principal and interest
on Revolving Loans denominated in an Alternative Currency 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 such Alternative Currency and in Same Day Funds not later than the
Applicable Time specified by the Administrative Agent on the dates
specified herein. Except as otherwise expressly provided herein, all
payments by the Swingline Borrowers hereunder with respect to principal and
interest on Swingline Loans denominated in a Subsidiary Currency shall be
made as directed by such applicable Swingline Lender, for the account of
such Swingline Lender to which such payment is owed, not later than the
local time specified by such Swingline Lender to be necessary for such
payment to be credited on such date in accordance with normal banking
procedures in the place of payment on the dates specified by such Swingline
Lender. Without limiting the generality of the foregoing, the
Administrative Agent may require that any payments (excluding payments of
Swingline Loans to Swingline Lenders and reimbursements made by Subsidiary
Swingline Lenders under Letters of Credit) due under this Agreement be made
in the United States. If, for any reason, any Borrower is prohibited by any
Law from making any required payment hereunder (a) in an Alternative
Currency or a Subsidiary Currency (other than Dollars), such Borrower shall
make such payment in Dollars in the Dollar Equivalent of the Alternative
Currency or Subsidiary Currency payment amount or (b) in Dollars in the
case of a Swingline Loan or Subsidiary L/C Obligation denominated in
Dollars, such Subsidiary Swingline Borrower shall make such payment in the
Alternative Currency Equivalent of a currency acceptable to the Swingline
Lender. The Administrative Agent will promptly distribute to each Lender
its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as received by the Administrative Agent by wire
transfer to such Lender's Lending Office. All payments received by the
Administrative Agent or the applicable Swingline Lender (i) after 2:00
p.m., in the case of payments in Dollars, (ii) after the Applicable Time
specified by the Administrative Agent in the case of payments in an
Alternative Currency or (iii) after the applicable local time specified by
the applicable Swingline Lender in the case of payments in a Subsidiary
Currency, shall in each case be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by any Borrower shall become due on a
day other than a Business Day, payment shall be made on the next following
Business Day, provided, however, in the case of Eurocurrency Rate Loans,
such extension of time shall be reflected in computing interest; provided,
further, that, if such extension would cause payment of interest on or
principal of Eurocurrency Rate Loans to be made in the next succeeding
calendar month, such payment shall be made on the immediately preceding
Business Day.
(c) Unless any Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that such Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may
assume that such Borrower or such Lender, as the case may be, has timely
made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled
thereto. If and to the extent that such payment was not in fact made to the
Administrative Agent in Same Day Funds, then:
(i) if any Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
in Same Day Funds, together with interest thereon in respect of each
day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid
to the Administrative Agent in Same Day Funds at the applicable
Overnight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in Same Day Funds, together with interest thereon for the period from
the date such amount was made available by the Administrative Agent to
a Borrower to the date such amount is recovered by the Administrative
Agent (the "Compensation Period") at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. If such Lender
pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in the applicable Borrowing. If
such Lender does not pay such amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent may make a demand
therefor upon the applicable Borrower, and such Borrower shall pay
such amount to the Administrative Agent, together with interest
thereon for the Compensation Period at a rate per annum equal to the
rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the
Administrative Agent or any Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender to any Borrower as provided in the
foregoing provisions of this Article II, and such funds are not made
available to such 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.
(e) The obligations of the Lenders hereunder to make Loans, issue
Letters of Credit and to fund participations in Letters of Credit and
Swingline Loans are several and not joint. The failure of any Lender to
make any Loan, issue any Letter of Credit or to fund any such participation
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, issue
any Letter of Credit or purchase its participation.
(f) 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.
(g) Each Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder, or in the case
of a Lender under the Note held by such Lender, to charge from time to time
against any and all of such Borrower's accounts with such Lender any amount
so due.
2.13 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by
it, Letters of Credit issued by it or the participations in L/C Obligations
or in Swingline Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder)
thereof, such Lender shall immediately (a) notify the Administrative Agent
of such fact, and (b) purchase from the other Lenders such participations
in the Loans or Letters of Credit made by them and/or such
subparticipations in the participations in L/C Obligations or Swingline
Loans held by them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Loans,
Letters of Credit or such participations, as the case may be, pro rata with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall
repay to the purchasing Lender the purchase price paid therefor, together
with an amount equal to such paying Lender's ratable share (according to
the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered, without further interest thereon.
Each Borrower agrees that any Lender so purchasing a participation from
another Lender may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off, but subject to
Section 10.09) with respect to such participation as fully as if such
Lender were the direct creditor of such Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section 2.13 and will in each case notify the Lenders
following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section 2.13 shall from and after such
purchase have the right to give all notices, requests, demands, directions
and other communications under this Agreement with respect to the portion
of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased.
2.14 SUBSIDIARY SWINGLINE BORROWERS. (a) The Subsidiary Swingline
Borrowers specifically identified in the introductory paragraph of this
Agreement shall be "Subsidiary Swingline Borrowers" hereunder effective as
of the date hereof and may receive Swingline Loans for its account on the
terms and conditions set forth in this Agreement.
(b) Xxxxxxx-Xxxxxx International may at any time, upon not less than
15 Business Days' notice from Xxxxxxx-Xxxxxx International to the
Administrative Agent and the Swingline Lender affected thereby (or such
shorter period as may be agreed by the Administrative Agent and the
Swingline Lender affected thereby in their sole discretion), designate any
additional Subsidiary of Xxxxxxx-Xxxxxx International (an "Applicant
Borrower") as a Subsidiary Swingline Borrower to receive Swingline Loans
hereunder by delivering to the Administrative Agent and the Swingline
Lender affected thereby, a duly executed notice and agreement in
substantially the form of Exhibit F hereto (a "Subsidiary Swingline
Borrower Request and Assumption Agreement"). The Administrative Agent will
deliver to all the other Lenders the executed Subsidiary Swingline Borrower
Request and Assumption Agreement. The parties hereto acknowledge and agree
that prior to any Applicant Borrower becoming entitled to borrow Swingline
Loans or request the issuance of Letters of Credit hereunder, the
Administrative Agent and the Swingline Lender affected thereby shall have
received (i) such supporting resolutions, incumbency certificates, opinions
of counsel and other documents or information, in form, content and scope
reasonably satisfactory to the Administrative Agent and the Swingline
Lender affected thereby, as may be required by the Administrative Agent and
the Swingline Lender affected thereby in their sole discretion (including
without limitation, information necessary to evaluate (A) any withholding
tax as may arise in respect of any Swingline Loans made to such Applicant
Borrower, and (B) the manner in which Swingline Loans may be made available
to the Applicant Borrower, including the requested Subsidiary Currency and
the Subsidiary Currency Sublimit, and (ii) Swingline Notes signed by such
new requested Subsidiary Swingline Borrower to the extent any Swingline
Lender so requires. If the Administrative Agent and the Swingline Lender
affected thereby agree that an Applicant Borrower shall be entitled to
receive Swingline Loans hereunder, then promptly following receipt of all
such resolutions, incumbency certificates, opinions of counsel and other
documents or information from an Applicant Borrower, the Administrative
Agent shall send a notice in substantially the form of Exhibit G hereto (a
"Notice of Designation of Additional Subsidiary Swingline Borrower,
Applicable Subsidiary Currency and Subsidiary Currency Sublimit") to
Xxxxxxx-Xxxxxx International, the Swingline Lender affected thereby and the
other Lenders specifying the effective date upon which the Applicant
Borrower shall constitute a Subsidiary Swingline Borrower for purposes
hereof.
(c) Xxxxxxx-Xxxxxx International shall guarantee the Obligations of
each of the other Revolving Borrowers and each of the Subsidiary Swingline
Borrowers pursuant to Article XI hereof.
(d) Each Subsidiary of Xxxxxxx-Xxxxxx International that is or becomes
a "Subsidiary Swingline Borrower" pursuant to this Section 2.14 hereby
irrevocably appoints Xxxxxxx-Xxxxxx International as its agent for all
purposes relevant to this Agreement and each of the other Loan Documents,
unless otherwise specified herein, including (i) the giving and receipt of
notices and (ii) the execution and delivery of all documents, instruments
and certificates contemplated herein and all modifications hereto. Any
acknowledgment, consent, direction, certification or other action which
might otherwise be valid or effective only if given or taken by all
Swingline Borrowers, or by each Swingline Borrower acting singly, shall be
valid and effective if given or taken only by Xxxxxxx-Xxxxxx International,
whether or not any such Swingline Borrower joins therein. Any notice,
demand, consent, acknowledgement, direction, certification or other
communication delivered to Xxxxxxx-Xxxxxx International in accordance with
the terms of this Agreement shall be deemed to have been delivered to each
such Swingline Borrower.
(e) Xxxxxxx-Xxxxxx International may from time to time, upon not less
than 15 Business Days' notice from Xxxxxxx-Xxxxxx International to the
Administrative Agent and the Swingline Lender affected thereby (or such
shorter period as may be agreed by the Administrative Agent and the
Swingline Lender affected thereby in their sole discretion), terminate a
Subsidiary Swingline Borrower's status as such, provided that there are no
outstanding Swingline Loans payable by such Subsidiary Swingline Borrower,
or other amounts payable by such Subsidiary Swingline Borrower on account
of any Swingline Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of
any such termination of a Subsidiary Swingline Borrower.
2.15 INCREASE IN COMMITMENTS. (a) Provided there exists no Default,
upon notice to the Administrative Agent (which shall promptly notify the
Lenders), Xxxxxxx-Xxxxxx International may from time to time, request an
increase in the Aggregate Commitments by an aggregate amount not exceeding
$150 million; provided that (i) any such request for an increase shall be
in a minimum amount of $25 million, except in the case of the final
request, which may be for the entire remaining amount, and (ii)
Xxxxxxx-Xxxxxx International may make a maximum of three such requests. At
the time of sending any such notice, Xxxxxxx-Xxxxxx International (in
consultation with the Administrative Agent) shall specify the time period
within which each Lender is requested to respond (which shall in no event
be less than ten Business Days from the date of delivery of such notice to
the Lenders). Each Lender shall notify the Administrative Agent within such
time period whether or not it agrees to increase its Commitment and, if so,
whether by an amount equal to, greater than, or less than its Pro Rata
Share of such requested increase. Any Lender not responding within such
time period shall be deemed to have declined to increase its Commitment.
The Administrative Agent shall notify Xxxxxxx-Xxxxxx International and each
Lender of the Lenders' responses to each request made hereunder. To achieve
the full amount of a requested increase, Xxxxxxx-Xxxxxx International may
also invite additional Eligible Assignees to become Lenders pursuant to a
joinder agreement in form and substance satisfactory to the Administrative
Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance with this
Section 2.15, the Administrative Agent and Xxxxxxx-Xxxxxx International
shall determine the effective date (the "Increase Effective Date") and the
final allocation of such increase. The Administrative Agent shall promptly
notify Xxxxxxx-Xxxxxx International and the Lenders of the final allocation
of such increase and the Increase Effective Date. As a condition precedent
to such increase, Xxxxxxx-Xxxxxx International shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the
Increase Effective Date (for further distribution to each Lender) signed by
a Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such
increase, and (ii) in the case of Xxxxxxx-Xxxxxx International, certifying
that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this Section 2.15, the
representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and (b), respectively, of Section
6.01, and (B) no Default exists. The Applicable Borrowers shall prepay any
Loans outstanding on the Increase Effective Date (and pay any additional
amounts required pursuant to Section 3.05) to the extent necessary to keep
the outstanding Loans ratable with any revised Pro Rata Shares arising from
any nonratable increase in the Commitments under this Section 2.15;
provided that in the case of any Revolving Loans denominated in an
Alternative Currency, no such prepayment may be made other than on the last
day of the applicable Interest Period for such Loans, unless the Lenders
consent thereto.
(c) This Section shall supersede any provisions in Sections 2.13 or
10.01 to the contrary.
2.16 EXISTING CREDIT AGREEMENT. (a) Effective as of the Closing Date,
(i) the Existing Credit Agreement shall be amended and (for mutual
convenience of the parties and not as a novation) restated in its entirety
as provided in this Agreement, (ii) any outstanding Loans (as defined under
the Existing Credit Agreement), after giving effect to any prepayments
thereof on the Closing Date shall be outstanding Loans under this Agreement
as provided in Section 2.16(b) and (iii) any outstanding Letters of Credit
(as defined under the Existing Credit Agreement) shall be deemed to be
outstanding Letters of Credit under this Agreement.
(b) Effective as of the Closing Date, the Obligations (as defined
under the Existing Credit Agreement) which remain outstanding after giving
effect to any prepayments thereof on such date will be restated and
continued under this Agreement in the same form as they existed under the
Existing Credit Agreement, as Loans, Letters of Credit or other
Obligations. All such Loans or Letters of Credit deemed outstanding
hereunder on the Closing Date will be deemed to be Loans or Letters of
Credit, as applicable, of the Borrower to which such Loans (as defined in
the Existing Credit Agreement) or Letters of Credit (as defined in the
Existing Credit Agreement) had been previously outstanding.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES. (a) Any and all payments by any Loan Party to or for the
account of the Administrative Agent or any Lender under any Loan Document
shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and all liabilities with respect
thereto, excluding, in the case of the Administrative Agent and each
Lender, taxes imposed on or measured by its net income, profits or branch
profits taxes, franchise taxes (including franchise taxes imposed in lieu
of net income taxes) or, in each case, other similar taxes imposed on it,
by the jurisdiction (or any political subdivision thereof) under the Laws
of which the Administrative Agent or such Lender, as the case may be, is
organized, maintains a lending office or does business (other than doing
business solely as a result of entering into this Agreement, performing any
obligations hereunder, receiving any payments hereunder or enforcing any
rights hereunder) (each such jurisdiction being referred hereinafter
referred to as "Excluded Jurisdictions," and all such non-excluded taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and liabilities being hereinafter referred to as "Taxes").
If any Loan Party shall be required by any Laws to deduct any Taxes from or
in respect of any sum payable under any Loan Document to the Administrative
Agent or any Lender, (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable
to additional sums payable under this Section 3.01), each of the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Loan Party
shall make such deductions, (iii) such Loan Party shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable Law, and (iv) within 30 days after the date of
such payment, such Loan Party shall furnish to the Administrative Agent
(which shall forward the same to such Lender) the original or a certified
copy of a receipt or other documentation evidencing payment thereof.
(b) In addition, each Loan Party agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made by
such Loan Party under any Loan Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to,
any Loan Document (hereinafter referred to as "Other Taxes"); provided
that, in the case of Other Taxes imposed by an Excluded Jurisdiction, the
relevant Lender shall notify Xxxxxxx-Xxxxxx International prior to the
Closing Date (or, if later, the date such Lender becomes a party to this
Agreement) that such Other Taxes will be due and owing.
(c) [Intentionally Omitted.]
(d) Each Loan Party agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 3.01) paid by the Administrative Agent and such
Lender and (ii) any liability (including additions to tax, penalties,
interest and expenses) arising therefrom or with respect thereto, in each
case whether or not such Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. Payment under
this subsection (d) shall be made within 30 days after the date the Lender
or the Administrative Agent makes a demand therefor.
(e) Without limiting the obligations of the Lenders under Section
10.15 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 Xxxxxxx-Xxxxxx
International, as the Administrative Agent or Xxxxxxx-Xxxxxx International
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 Borrowers 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 or reduce any requirement of
applicable Laws of any such jurisdiction that any Borrower make any
deduction or withholding for taxes from amounts payable to such Lender.
Additionally, each of the Borrowers 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 authority under the Laws of any jurisdiction, duly executed
and completed by such Borrower, as are required to be furnished by such
Lender or the Administrative Agent under such Laws in connection with any
payment by 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) The Borrowers' obligations to indemnify a Foreign Lender or pay
additional amounts to a Foreign Lender under this Section 3.01 are subject
to Section 10.15 (a)(iii).
3.02 ILLEGALITY. If the Administrative Agent or 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 (whether
denominated in Dollars or an Alternative Currency), 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 Xxxxxxx-Xxxxxx International 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 Xxxxxxx-Xxxxxx International that the
circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Applicable Borrowers shall, upon 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, such
Borrowers shall also pay accrued interest on the amount so prepaid or
converted. Each Lender agrees to designate a different Lending Office if
such designation will avoid the need for such notice and will not, in the
good faith judgment of such Lender, otherwise be materially disadvantageous
to such Lender.
3.03 INABILITY TO DETERMINE RATES. If 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 (i) deposits (whether
in Dollars or an Alternative Currency) are not being offered to banks in
the applicable offshore interbank market for such currency for the
applicable amount and Interest Period of such Eurocurrency Rate Loan, (ii)
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 (iii) 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 Xxxxxxx-Xxxxxx
International 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, Xxxxxxx-Xxxxxx International 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 COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EUROCURRENCY RATE LOANS. (a) If any Lender determines that as a result of
the introduction of, or any change in, or in the interpretation of, any
Law, or such Lender's compliance therewith, there shall be any increase in
the cost to such Lender of agreeing to make or making, funding or
maintaining Eurocurrency Rate Loans or issuing or participating in Letters
of Credit, or a reduction in the amount received or receivable by such
Lender in connection with any of the foregoing (excluding for purposes of
this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall
govern), (ii) changes in the basis of taxation of net income or gross
income by the United States or any non-U.S. jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is
organized or has its lending office, (iii) reserve requirements
contemplated by Section 3.04(c) or utilized in the determination of the
Eurocurrency Rate and (iv) 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 Mandatory Cost, as
calculated hereunder, does not represent the cost to such 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 of Eurocurrency Rate Loans, then from time to time
upon demand of such Lender (with a copy of such demand to the
Administrative Agent), Xxxxxxx-Xxxxxx International shall pay (or cause the
Applicable Borrower to pay) to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction or, if
applicable, the portion of such cost that is not represented by the
Mandatory Cost.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its lending office) therewith,
has the effect of reducing the rate of return on the capital of such Lender
or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder (taking into consideration its policies with
respect to capital adequacy and such Lender's desired return on capital),
then from time to time upon demand of such Lender (with a copy of such
demand to the Administrative Agent), Xxxxxxx-Xxxxxx International shall pay
(or cause the Applicable Borrower to pay) to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) Xxxxxxx-Xxxxxx International shall pay (or cause the Applicable
Borrower to pay) to each Lender, (i) 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 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), and (ii) as
long as such Lender shall be required to comply with any reserve ratio
requirement or analogous requirement of any other central banking or
financial regulatory authority imposed in respect of the maintenance of the
Commitments or the funding of the Eurocurrency Rate Loans, such additional
costs (expressed as a percentage per annum and rounded upwards, if
necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which in
each case shall be due and payable on each date on which interest is
payable on such Loan; provided Xxxxxxx-Xxxxxx International shall have
received at least 15 days' prior notice (with a copy to the Administrative
Agent) of such additional interest or costs from such Lender. If a Lender
fails to give notice 15 days prior to the relevant Interest Payment Date,
such additional interest or costs shall be due and payable 15 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, Xxxxxxx-Xxxxxx
International shall promptly compensate (or cause the Applicable Borrower
to 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 any 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
Xxxxxxx-Xxxxxx International or the Applicable Borrower; or
(c) any failure by any Borrower to make payment of any Loan or drawing
under any Letter of Credit (or interest due thereon) denominated in an
Alternative Currency or Subsidiary Currency on its scheduled due date or
any payment thereof in a different currency;
including any loss of anticipated profits, any foreign exchange losses and
any loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain such Loan, from fees payable to terminate the
deposits from which such funds were obtained or from the performance of any
foreign exchange contract. Xxxxxxx-Xxxxxx International shall also pay (or
cause the Applicable Borrower to pay) any customary administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by Xxxxxxx-Xxxxxx International
(or the Applicable Borrower) 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 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.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. (a) A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts
to be paid to it hereunder shall be conclusive in the absence of manifest
error. In determining such amount, the Administrative Agent or such Lender
may use any reasonable averaging and attribution methods.
(b) Upon any Lender becoming entitled to compensation under Section
3.01 or 3.04, Xxxxxxx-Xxxxxx International may replace such Lender in
accordance with Section 10.16; provided, however, that Xxxxxxx-Xxxxxx
International shall not have the right to replace such Lender if such
Lender waives its rights to compensation under Section 3.01 or 3.04.
3.07 SURVIVAL. All of the Borrowers' obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of
all other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by duly authorized officers 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, sufficient in number
for distribution to the Administrative Agent, each Lender and
Xxxxxxx-Xxxxxx International;
(ii) original Notes executed by the Applicable Borrowers in favor
of each Lender requesting Notes;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of duly authorized
officers of each Loan Party (or, if appropriate, of Xxxxxxx-Xxxxxx
International on behalf of such Loan Party) as the Administrative
Agent may reasonably require evidencing the identity, authority and
capacity of each duly authorized officer thereof authorized to act as
a duly authorized officer on behalf of such Loan Party 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 Revolving Borrower
is duly organized or formed, and that each of the Revolving Borrowers
is validly existing, to the extent applicable, 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 could not reasonably be expected to have a Material
Adverse Effect, including, to the extent applicable, certified copies
of the Revolving Borrowers' Organization Documents, certificates of
good standing or comparable certificates for the jurisdiction and/or
certificates of qualification to engage in business and tax clearance
certificates;
(v) favorable opinions of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx and local counsel to the Revolving Borrowers, addressed to
the Administrative Agent and each Lender, in the forms attached as
Exhibit H hereto;
(vi) a certificate of a duly authorized officer of each Loan
Party (or, if appropriate, of Xxxxxxx-Xxxxxx International on behalf
of such Loan Party) either (A) attaching copies of all material
consents and approvals of Governmental Authorities or any other Person
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such material consents and
approvals shall be in full force and effect, or (B) stating that no
such material consents or approvals are so required;
(vii) a certificate signed by a Responsible Officer of
Xxxxxxx-Xxxxxx International certifying on behalf of the Borrowers and
the Guarantor (A) that the conditions specified in Sections 4.02(a)
and (b) have been satisfied and (B) that there has been no event or
circumstance since the date of the Audited Financial Statements that
has had or could be reasonably expected to have, either individually
or in the aggregate, a Material Adverse Effect;
(viii) a completed Compliance Certificate as of September 30,
2005 giving effect to all borrowings under this Agreement;
(ix) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect;
(x) tax certificates from each Lender required pursuant to Swiss
law; and
(xi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, any L/C Issuer, any Swingline
Lender or the Required Lenders reasonably may require.
(b) Any fees and expenses required to be paid on or before the Closing
Date to the extent invoiced no less than two (2) Business Days prior to the
Closing Date shall have been paid.
(c) Xxxxxxx-Xxxxxx International shall have paid all Attorney Costs of
the Administrative Agent to the extent invoiced no less than two (2)
Business Days prior to the Closing Date.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Request for Credit Extension (other than a Loan Notice
requesting only a conversion of Loans to the other Type, or a continuation
of Eurocurrency Rate Loans) or any increase in Aggregate Commitments in
accordance with Section 2.15 is subject to the following conditions
precedent:
(a) The representations and warranties of each 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 Credit Extension and any Increase Effective Date, (i)
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct in
all material respects as of such earlier date and (ii) except that for
purposes of this Section 4.02, the representations and warranties contained
in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the
most recent statements furnished pursuant to subsections (a) and (b),
respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or increase in Aggregate Commitments in accordance with Section
2.15.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swingline Lender shall have received a Request for Credit Extension or the
certificate referred to in Section 2.15(b) with respect to any increase in
Aggregate Commitments, in accordance with the requirements hereof.
(d) If the applicable Borrower is a new Subsidiary Swingline Borrower,
then the conditions of Section 2.14(b) to the designation of such Borrower
as a Subsidiary Swingline Borrower shall have been met to the satisfaction
of the Administrative Agent and the Swingline Lender affected thereby in
accordance with the provisions of Section 2.14(b).
(e) In the case of a Credit Extension to be denominated in an
Alternative Currency or a Subsidiary Currency, there shall not have
occurred any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls, as
applicable, which in the reasonable opinion of the Administrative Agent,
the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency), the L/C Issuer (in the case of any Letter of Credit
to be denominated in an Alternative Currency) or the Swingline Lender (in
the case of any Loans or Letters of Credit designated in a Subsidiary
Currency) would make it impracticable for such Credit Extension to be
denominated in the relevant Alternative Currency or Subsidiary Currency.
Each Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of
Eurocurrency Rate Loans) shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Administrative Agent
and the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each
Loan Party (a) is a corporation or limited liability company duly
incorporated, organized or formed, validly existing, and to the extent
applicable, 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 as presently
conducted and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, and (c) to the extent applicable, 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
each case referred to in subsection (b)(i) or (c), to the extent that
failure to do so could 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. The execution, delivery and performance by each Loan
Party of each Loan Document to which it is a party, and the consummation of
the transactions contemplated hereby with respect to each Loan Party, 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, (i) any material
Contractual Obligation to which such Person is a party 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 in any material respect any Law.
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.
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 to which such Loan Party is party
when so delivered will constitute, a legal, valid and binding obligation of
such Person, enforceable against each Loan Party that is party thereto in
accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT. (a) The Audited
Financial Statements furnished to the Administrative Agent and each Lender
(i) were prepared in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein,
(ii) fairly present in all material respects the financial condition of
Xxxxxxx-Xxxxxx International 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
Xxxxxxx-Xxxxxx International and its Subsidiaries as of the date thereof in
accordance with GAAP consistently applied throughout the period covered
thereby.
(b) The unaudited consolidated financial statements of Xxxxxxx-Xxxxxx
International and its Subsidiaries dated September 30, 2005 and the related
consolidated statements of income or operations, shareholders' equity and
cash flows for the fiscal quarter ended on that date furnished to the
Administrative Agent and each Lender (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, (ii) fairly present in all material
respects the financial condition of Xxxxxxx-Xxxxxx International and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to
the absence of footnotes and other presentation items and to normal
year-end audit adjustments and (iii) show all material indebtedness and
other material liabilities, direct or contingent, of Xxxxxxx-Xxxxxx
International and its consolidated Subsidiaries as of the date thereof in
accordance with GAAP consistently applied throughout the period covered
thereby.
(c) As of the Closing Date, 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 could reasonably be expected to have a
Material Adverse Effect.
(d) The financial statements delivered to the Administrative Agent
(for further distribution to each Lender) pursuant to Sections 6.01(a) and
(b) (i) will be prepared in accordance with GAAP, except as otherwise noted
therein, and (ii) will fairly present in all material respects the
financial condition of Xxxxxxx-Xxxxxx International and its Subsidiaries as
of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP subject, in the case of financial
statements delivered pursuant to Section 6.01(b), to the absence of
footnotes and other presentation items and to normal year-end audit
adjustments.
5.06 LITIGATION. There are no actions, suits, proceedings,
investigations, litigations, claims, disputes or proceedings pending or, to
the knowledge of the Loan Parties, threatened, at law, in equity, in
arbitration or before any Governmental Authority, by or against any Loan
Party or any of the Subsidiaries or against any of their respective
properties or revenues or orders, decrees, judgments, rulings, injunctions,
writs, temporary restraining orders or other orders of any nature issued by
any court or Governmental Authority that (a) purport to affect, pertain to,
or enjoin or restrain the execution, delivery or performance of, this
Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby, (b) either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect or (c) could affect the legality, validity or
enforceability of the Loan Documents or the consummation of the
transactions contemplated hereby or thereby.
5.07 SUBSIDIARIES, CAPITAL STRUCTURE AND INDEBTEDNESS AND INVESTMENTS.
(a) As of the Closing Date, Xxxxxxx-Xxxxxx International has no Material
Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.07 (including the jurisdiction of organization, classes of
capital stock, including options, warrants, rights of subscriptions,
conversion and exchangeability and other similar rights, ownership and
ownership percentages), and neither Xxxxxxx-Xxxxxx International nor the
Material Subsidiaries have any equity investments in any other corporation
or entity other than those specifically disclosed in Part (b) of Schedule
5.07; provided that the foregoing shall not apply to wholly-owned
Subsidiaries. The outstanding shares of Capital Stock of Xxxxxxx-Xxxxxx
International and the Material Subsidiaries shown have been validly issued,
fully-paid and are non-assessable and owned free and clear of Liens. Except
as set forth in Part (b) of Schedule 5.07, Xxxxxxx-Xxxxxx International, or
one or more of its Subsidiaries, owns good, valid and marketable title to
all the outstanding common stock of each Loan Party and all the Material
Subsidiaries, free and clear of all Liens of every kind, directly or
indirectly, whether absolute, matured, contingent or otherwise, except for
such defects in title or Liens that could not reasonably be expected to
have a Material Adverse Effect and Liens permitted under Section 7.01.
(b) As of the Closing Date, Xxxxxxx-Xxxxxx International and the
Subsidiaries have (i) no Indebtedness having an aggregate principal amount
of $10 million or more (including undrawn committed or available amounts
and including owing to all creditors under any combined or syndicated
credit agreement) or (ii) made no Investment of $10 million or more (which
continues to be held on the Closing Date), other than any such Indebtedness
or Investments specifically disclosed on Part (c) of Schedule 5.07.
5.08 OWNERSHIP OF PROPERTY; LIENS; INTELLECTUAL PROPERTY AND LICENSES.
(a) Each of the Loan Parties and each of the Subsidiaries has good title,
or valid leasehold interests in, to all of its respective personal
properties and assets, free and clear of any Liens, other than Liens
permitted by Section 7.01, except for such defects in title or Liens that
could not reasonably be expected to have a Material Adverse Effect. Each of
the Loan Parties and each of the 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 could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
real property of each of the Loan Parties and each of the Subsidiaries is
subject to no Liens, other than Liens permitted by Section 7.01, except for
such Liens that could not reasonably be expected to have a Material Adverse
Effect.
(b) Each of the Loan Parties and each of the Subsidiaries owns, or
possesses 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,
without conflict with the rights of any other Person, except for such
defects in title or the right to use that could not reasonably be expected
to have a Material Adverse Effect. To the best knowledge of the Loan
Parties, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Loan Parties or any of the Subsidiaries infringes upon any
rights held by any other Person, except for such defects in title or the
right to use that could not reasonably be expected to have a Material
Adverse Effect. No claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of the Loan Parties, threatened, which,
either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
5.09 ENVIRONMENTAL COMPLIANCE. The Loan Parties and the Subsidiaries
conduct in the ordinary course of business a review of the effect of
existing Environmental Laws and claims alleging potential liability or
responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Loan
Parties have reasonably concluded that such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
5.10 INSURANCE. The Loan Parties and the Subsidiaries maintain with
financially sound and reputable insurance companies which are not
Affiliates of the Loan Parties, insurance with respect to their properties
and businesses against loss or damage of the kinds customarily insured
against by Persons engaged in similar businesses and owning similar
properties in localities where each Loan Party and each of the Subsidiaries
operates of such types and in such amounts, with such deductibles and
covering such risks as are customarily carried under similar circumstances
by such Persons.
5.11 TAXES. The Loan Parties and the Subsidiaries have timely filed
all federal, state and other material tax returns and reports required to
be filed, and have paid all federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable
whether or not shown on any tax return, 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 Specified Officer, there is no proposed tax assessment
against any of the Loan Parties or any of the Subsidiaries that would, if
made, have a Material Adverse Effect.
5.12 ERISA COMPLIANCE. (a) Except as could not reasonably be expected
to have a Material Adverse Effect, each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and
other Federal or state Laws. Each Pension 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 currently being
processed by the IRS with respect thereto and, to the best knowledge of the
Loan Parties, nothing has occurred which would prevent, or cause the loss
of, such qualification. Except as could not reasonably be expected to have
a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have
made all required contributions to each Pension 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 Pension Plan.
(b) There are no pending or, to the best knowledge of the Loan
Parties, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan that could be reasonably
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 could reasonably be expected to result in
a Material Adverse Effect.
(c) Except as could not reasonably be expected to have a Material
Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability, except
as disclosed in Xxxxxxx-Xxxxxx International's financial statements; (iii)
none of the Loan Parties 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); (iv) none of the Loan Parties 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; and (v) none of the Loan
Parties nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
5.13 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT. (a) No Borrower 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, and no proceeds of drawings under any Letter of Credit will be used
to purchase or carry margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock.
(b) None of the Loan Parties, any Person Controlling the Loan Parties,
or any of the Subsidiaries (i) is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company," within the meaning of
the Public Utility Holding Company Act of 1935, or (ii) is or is required
to be registered as an "investment company" under the Investment Company
Act of 1940. Neither the making of the Loans, nor the issuance of the
Letters of Credit or the application of the proceeds or repayment thereof
by any Borrower, nor the consummation of other transactions contemplated
hereunder by any Loan Party, will violate any provision of any such Act or
any rule, regulation or order of the SEC.
5.14 DISCLOSURE. The Loan Parties have disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which any of the Loan Parties or any of the Subsidiaries is
subject, and all other matters known to any of the Loan Parties, that,
individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect. No report, financial statement, certificate or
other information furnished in writing by or on behalf of any Loan Party or
any of the Subsidiaries to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of
this Agreement and the other Loan Documents or delivered hereunder or
thereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, no
representations and warranties are made with respect to projected financial
information.
5.15 COMPLIANCE WITH LAWS. Each of the Loan Parties and each of the
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 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, could not reasonably be expected to have a Material Adverse
Effect.
5.16 EMPLOYEE AND LABOR MATTERS. Except to the extent that the failure
of the following statements to be true could not reasonably be expected to
have a Material Adverse Effect:
(a) There are no strikes or lockouts against any Loan Party pending
or, to the best knowledge of any Loan Party, threatened.
(b) The hours worked by and payments made to employees of the Loan
Parties have not been in violation of the Fair Labor Standards Act or any
other applicable federal, state, local or non-U.S. Law dealing with such
matters.
(c) All payments due from any Loan Party, or for which any claim may
be made against any Loan Party, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a
liability on the books of such Loan Party.
5.17 SOLVENCY. Immediately after giving effect to the initial Credit
Extension made on the Closing Date, (a) each Loan Party is able to pay its
debts and other liabilities, contingent obligations and other commitments
as they mature in the normal course of business, (b) each Loan Party does
not intend to, and does not believe that it will, incur debts or
liabilities beyond each Loan Party's ability to pay as such debts and
liabilities as they mature in their ordinary course, (c) each Loan Party is
not engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which each Loan Party's assets would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which each Loan Party is engaged and
(d) the present fair market value of the assets of each Loan Party is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of each Loan Party.
5.18 REPRESENTATIONS AS TO FOREIGN OBLIGORS. Each of the Loan Parties
represents and warrants to the Administrative Agent and the Lenders that:
(a) The execution, delivery and performance by such Foreign Obligor of
this Agreement and the other Loan Documents to which it is a party
(collectively, the "Applicable Foreign Obligor Documents") constitute and
will constitute private and commercial acts and not public or governmental
acts. Neither such Foreign Obligor nor any of its property has any immunity
from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) under the laws of the jurisdiction in
which such Foreign Obligor is organized and existing in respect of its
obligations under the Applicable Foreign Obligor Documents.
(b) The Applicable Foreign Obligor Documents are in proper legal form
under the Law of the jurisdiction in which such Foreign Obligor is
organized and existing for the enforcement thereof against such Foreign
Obligor under the Law of such jurisdiction, and to ensure the legality,
validity, enforceability, priority or admissibility in evidence of the
Applicable Foreign Obligor Documents. It is not necessary to ensure the
legality, validity, enforceability, priority or admissibility in evidence
of the Applicable Foreign Obligor Documents that the Applicable Foreign
Obligor Documents be filed, registered or recorded with, or executed or
notarized before, any court or other authority in the jurisdiction in which
such Foreign Obligor is organized and existing or that any registration
charge or stamp or similar tax be paid on or in respect of the Applicable
Foreign Obligor Documents or any other document, except for (i) any such
filing, registration, recording, execution or notarization as has been made
or is not required to be made until the Applicable Foreign Obligor Document
or any other document is sought to be enforced and (ii) any charge or tax
as has been timely paid.
(c) There is no tax, levy, impost, duty, fee, assessment or other
governmental charge, or any deduction or withholding, imposed by any
Governmental Authority in or of the jurisdiction in which any Foreign
Obligor is organized and existing either (i) on or by virtue of the
execution or delivery of the Applicable Foreign Obligor Documents or (ii)
on any payment to be made by such Foreign Obligor pursuant to the
Applicable Foreign Obligor Documents, except as has been disclosed to the
Administrative Agent.
(d) The execution, delivery and performance of the Applicable Foreign
Obligor Documents executed by any Foreign Obligor are not, under applicable
foreign exchange control regulations of the jurisdiction in which such
Foreign Obligor is organized and existing, subject to any notification or
authorization except (i) such as have been made or obtained or (ii) such as
cannot be made or obtained until a later date (provided that any
notification or authorization described in the immediately preceding clause
(ii) shall be made or obtained as soon as reasonably practicable).
5.19 FOREIGN ASSETS CONTROL REGULATIONS, ETC.
(a) Neither this Agreement, any Credit Extension hereunder nor any
portion of the proceeds of the Loans will violate the Trading with the
Enemy Act, as amended, or any of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto.
(b) Neither any Loan Party nor any of their respective Subsidiaries
(i) is, or will become, a Person described or designated in the Specially
Designated Nationals and Blocked Persons List of the Office of Foreign
Assets Control or in Executive Order No. 13,224, 66 Fed Reg 49,079 (2001),
issued by the President of the United States (Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit or Support Terrorism) or (ii) engages or will engage in any dealings
or transactions, or is or will be otherwise associated, with any such
Person. The Loan Parties and their Subsidiaries are in compliance, in all
material respects, with the Patriot Act.
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, each Loan Party shall, and shall
(except in the case of the covenants set forth in Sections 6.01, 6.02,
6.03, 6.05 and 6.11) cause each of the Subsidiaries to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent (for
further distribution to each Lender), in form and detail satisfactory to
the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 95 days after the
end of each fiscal year of Xxxxxxx-Xxxxxx International (commencing with
the fiscal year ended December 31, 2005), a consolidated balance sheet of
Xxxxxxx-Xxxxxx International and its Subsidiaries as at the end of such
fiscal year, and the related consolidated statements of operations,
shareholders' equity and cash flows for such fiscal year (including copies
of management discussion and analysis), 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 PriceWaterhouseCoopers or any other
independent certified public accountant of nationally recognized standing,
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 or exception or any qualification or exception as to
the scope of such audit; and
(b) as soon as available, but in any event within 50 days after the
end of each of the first three fiscal quarters of each fiscal year of
Xxxxxxx-Xxxxxx International (commencing with the fiscal quarter ended
September 30, 2005, a consolidated balance sheet of Xxxxxxx-Xxxxxx
International and its Subsidiaries as at the end of such fiscal quarter,
and the related consolidated statements of operations, shareholders' equity
and cash flows for such fiscal quarter and for the portion of
Xxxxxxx-Xxxxxx International's fiscal year then ended (including copies of
management discussion and analysis), setting 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 and certified by a Responsible Officer of
Xxxxxxx-Xxxxxx International as fairly presenting in all material respects
the financial condition, results of operations, shareholders' equity and
cash flows of Xxxxxxx-Xxxxxx International and its Subsidiaries covered in
the consolidated in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes and other presentation
items.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent (for further distribution to each Lender), in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(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 or, if any such Default shall exist, stating the nature and status
of such event setting forth the details of such Default and the action that
the Borrowers have taken or propose to take with respect thereto;
(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, 2005),
a duly completed Compliance Certificate signed by a Responsible Officer of
Xxxxxxx-Xxxxxx International;
(c) promptly after any reasonable request by the Administrative Agent
or any Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee
of the board of directors) of Xxxxxxx-Xxxxxx International by independent
accountants in connection with the accounts or books of any of the
Borrowers or any of the Subsidiaries, or any audit of any of them; and
(d) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrowers or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative
Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Sections 6.01(a) or (b)
may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which Xxxxxxx-Xxxxxx International
posts such documents, or provides a link thereto on Xxxxxxx-Xxxxxx
International's website on the Internet at the website address listed on
Schedule 10.02; or (ii) on which such documents are posted on
Xxxxxxx-Xxxxxx International's behalf on an Internet or intranet website,
if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that (i) at the written request of any
Lender or the Administrative Agent, Xxxxxxx-Xxxxxx International shall
deliver paper copies of such documents to the Administrative Agent or any
Lender that requests Xxxxxxx-Xxxxxx International to deliver such paper
copies until a written request to cease delivering paper copies is given by
the Administrative Agent or such Lender and (ii) Xxxxxxx-Xxxxxx
International shall notify (which may be by facsimile or electronic mail)
the Administrative Agent and each Lender of the posting of any such
documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance, Xxxxxxx-Xxxxxx International
shall be required to provide paper copies of the Compliance Certificates
required by Section 6.02(b) to the Administrative Agent. The Administrative
Agent shall have no obligation to request the delivery or to maintain
copies of the documents (except for such Compliance Certificate) referred
to above, and in any event shall have no responsibility to monitor
compliance by Xxxxxxx-Xxxxxx International with any such request for
delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
Each Borrower hereby acknowledges that (a) the Administrative Agent
and/or the Arranger will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of such 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 any Borrower or its securities) (each, a "Public Lender").
Each Borrower hereby agrees that (i) 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; (ii) by marking Borrower
Materials "PUBLIC," the Borrowers shall be deemed to have authorized the
Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat
such Borrower Materials as not containing any material non-public
information with respect to the Borrowers or their respective securities
for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information,
they shall be treated as set forth in Section 10.08); (iii) all Borrower
Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor;" and (iv) the
Administrative Agent and the Arranger shall be entitled to treat any
Borrower Materials that are not marked "PUBLIC" as being suitable only for
posting on a portion of the Platform not designated "Public Investor."
6.03 NOTICES. Promptly notify the Administrative Agent and each
Lender:
(a) of the occurrence of any Default;
(b) of (i) any material action, dispute, litigation, investigation or
proceeding between any of the Loan Parties or any of the Subsidiaries and
any Governmental Authority; (ii) the commencement of, or any material
development in, any material litigation, investigation or proceeding
affecting any of the Loan Parties or any of the Subsidiaries, including
pursuant to any applicable Environmental Laws; or (iii) any governmental
investigation or notice of investigation of any of the Loan Parties by the
SEC, Food and Drug Administration, the governing authority of the New York
Stock Exchange, or any other governing authority listing for sale the
Capital Stock of any of the Loan Parties, except to the extent that any
such information is subject to the attorney-client privilege or any
qualification letter from Xxxxxxx-Xxxxxx International's auditors;
(c) of the occurrence of any ERISA Event;
(d) of any event or development with respect to any Loan Party or any
of the Subsidiaries that has had, or could reasonably be expected to have,
a Material Adverse Effect; and
(e) of any announcement by Xxxxx'x or S&P of (i) any change in a Debt
Rating or (ii) the placement of the Debt Rating on a watchlist.
Each notice pursuant to this Section 6.03 shall be accompanied by a
statement of a Responsible Officer of Xxxxxxx-Xxxxxx International setting
forth details of the occurrence referred to therein and stating what action
the Borrowers have taken and propose 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, if any,
that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, all its material
obligations, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by such Loan Party or such
Subsidiary, including (a) all material tax liabilities, fees, assessments
and governmental charges or levies upon it or its properties or assets, (b)
all material lawful claims which, if unpaid, would by Law become a Lien
upon its property, and (c) all material Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.
6.05 PRESERVATION OF EXISTENCE. Each Loan Party shall, and shall cause
each Material Subsidiary to preserve, renew and maintain in full force and
effect (a) its legal existence and (b) to the extent applicable, its good
standing (or equivalent status) under the Laws of the jurisdiction of its
organization, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect; provided that the foregoing
clauses (a) and (b) shall not constitute a prohibition on the disposition,
sale or transfer of the Capital Stock or assets of any Subsidiary.
6.06 MAINTENANCE OF PROPERTIES, ETC. (a) Exercise commercially
reasonable efforts to 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 could not reasonably be expected to have a Material
Adverse Effect; (b) take all commercially reasonable action to maintain all
rights, privileges, permits, licenses, approvals and franchises in each
case which are necessary or desirable in the normal conduct of its
business, except to the extent no longer economically desirable in the
commercially reasonable opinion of the applicable Loan Party or Subsidiary
or to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (c) exercise all commercially
reasonably effort to preserve or renew all of its material registered
patents, trademarks, trade names and service marks, the non-preservation or
non-renewal of which could reasonably be expected to have a Material
Adverse Effect.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Loan Parties, insurance
or reinsurance 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 businesses and owning similar properties in localities
where such Loan Party and each of its Subsidiaries operates, of such types
and in such amounts with such deductions and covering such risks, as are
customarily carried under similar circumstances by such other Persons.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances
in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently
conducted; or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS. Maintain proper books of record and account,
in which full, 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 Loan Parties or any of the
Subsidiaries, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and
inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers,
and independent public accountants, all at such reasonable times during
normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to Xxxxxxx-Xxxxxx International at the Lender's
cost; provided, however, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at
the expense of Xxxxxxx-Xxxxxx International at any time during normal
business hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions to pay
fees and expenses incurred in connection with the transactions contemplated
hereby, and for working capital, capital expenditures and other corporate
purposes not in contravention of any Law or of any Loan Document.
6.12 APPROVALS AND AUTHORIZATIONS. Maintain all authorizations,
consents, approvals and licenses from, exemptions of, and filings and
registrations with, each Governmental Authority of the jurisdiction in
which each Foreign Obligor is organized and existing, and all approvals and
consents of each other Person in such jurisdiction, in each case that are
required in connection with the Loan Documents, except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
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, or any
Letter of Credit shall remain outstanding, each Loan Party shall not, nor
shall any Loan Party permit any of the Subsidiaries to, directly or
indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any
of its 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 and
any renewal or extension thereof (without increase in the amount by more
than the sum of accrued and unpaid interest and normal and customary costs,
fees and expenses payable in connection therewith of the Indebtedness
secured thereby);
(c) Liens for taxes which are not delinquent or remain payable without
penalty, or to the extent non-payment thereof is permitted under Section
6.04; provided that no notice of lien has been filed or recorded under the
Code;
(d) landlords', carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 90 days or which are being
contested in good faith and by appropriate proceedings which proceedings
have the effect of preventing the forfeiture of the property subject
thereto and for which adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and
leases (other than for borrowed money), statutory obligations, surety
bonds, appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(g) easements, rights-of-way, servitudes, covenants, minor defects or
irregularities in title, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in
amount, and 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;
(h) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 8.01(h) or securing appeal or other
surety bonds related to such judgments; provided that the enforcement of
such Liens is effectively stayed;
(i) Liens on the property of a Person existing at the time such Person
is merged into or consolidated with any Loan Party or any Subsidiary of a
Loan Party or becomes a Subsidiary of any Loan Party or on assets acquired
by any Loan Party or any Subsidiary of a Loan Party existing at the time
such assets are acquired; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do not
extend to any assets other than those of the Person so merged or
consolidated with such Loan Party or such Subsidiary or acquired by such
Loan Party or such Subsidiary, and the proceeds thereof;
(j) purchase money Liens (including Capitalized Leases and Off-Balance
Sheet Obligations) upon any real or personal property acquired or held by
any Loan Party or any Subsidiary to secure the purchase price of such
property or renewals or extensions of any of the foregoing for the same or
a lesser value; provided, however, that no such Lien, and no renewal or
extension thereof, shall extend to or cover any properties of any character
other than the property being acquired and the proceeds thereof; provided,
further, that (i) the aggregate principal amount of Indebtedness secured by
the Liens referred to in this subsection (j) shall not exceed 100% of the
cost, of the property being acquired on the date of the acquisition, (ii)
such Indebtedness is created and such Lien attaches to such property
concurrently with or within ninety (90) days of the acquisition thereof,
and (iii) such Lien does not at any time encumber any property other than
the property financed by such Indebtedness;
(k) any interest or title of a lessor under any operating lease
entered into by any Loan Party or any Subsidiary in the ordinary course of
its business and covering only the assets so leased;
(l) licenses, operating leases or subleases granted to other Persons
in the ordinary course of business not interfering in any material respect
with the business of any Loan Party or any Subsidiary;
(m) Liens arising from precautionary UCC financing statement filings
with respect to operating leases or consignment arrangements entered into
by any Loan Party or any Subsidiary in the ordinary course of business;
(n) Liens in favor of banking institutions arising by operation of law
encumbering deposits (including the right of set-off) held by such banking
institutions incurred in the ordinary course of business and that are
within the general parameters customary in the banking industry;
(o) other Liens securing Indebtedness not otherwise prohibited under
this Agreement in an aggregate amount not exceeding 10% or more of the
Consolidated Net Worth of Xxxxxxx-Xxxxxx International and the
Subsidiaries;
(p) any encumbrance or restriction (including, without limitation, any
put and call agreements) with respect to the capital stock of any joint
venture or Subsidiary pursuant to the agreement governing such joint
venture or Subsidiary;
(q) possessory rights of customers of the Loan Parties and their
Subsidiaries in equipment for resale arising under leases, bailment
arrangements and rental agreements entered into in the ordinary course of
business of such Loan Party or such Subsidiary;
(r) Liens upon specific items of Inventory and the proceeds thereof
securing the obligations of the Loan Parties or any of their Subsidiaries
in respect of bankers' acceptances issued or created for the account of the
Loan Party or such Subsidiary to facilitate the purchase, shipment or
storage of such Inventory;
(s) Liens arising in connection with trade letters of credit issued to
secure the purchase of Inventory in the ordinary course of business of the
Loan Parties and their Subsidiaries, provided that such Liens shall cover
only the documents in respect of which such letters of credit were issued,
the goods covered thereby and the insurance proceeds of such goods;
(t) security and other deposits made by the Loan Party or any
Subsidiary under the terms of any lease or sublease of property entered
into by the Loan Parties or any such Subsidiary in the ordinary course of
business; or
(u) the replacement, extension or renewal of any Lien permitted by
clause (b) or (i) above upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the Indebtedness
secured thereby.
7.02 SUBSIDIARY INDEBTEDNESS. Allow the Subsidiaries of Xxxxxxx-Xxxxxx
International to create, incur, assume or suffer to exist Indebtedness
(excluding (i) any Indebtedness under this Agreement or any Guarantees in
respect of such Indebtedness and (ii) any Disposal of accounts receivable
pursuant to Section 7.07) in an aggregate principal amount greater than
$100 million at any time outstanding; provided that such Indebtedness is
unsecured unless such Indebtedness is permitted to be secured pursuant to
Section 7.01.
7.03 CHANGE IN NATURE OF BUSINESS. Make any material change in the
nature of business conducted by the Loan Parties and the Subsidiaries on
the date hereof or any business substantially related or incidental
thereto.
7.04 TRANSACTIONS WITH AFFILIATES. Enter into, or cause, suffer or
permit to exist, any arrangement or contract with any of its other
Affiliates, whether or not in the ordinary course of business, other than
on fair and reasonable terms in a comparable arm's length transaction with
a Person other than an Affiliate; provided that the foregoing restriction
shall not apply to transactions between or among the Loan Parties and any
of their wholly-owned Subsidiaries or between and among any wholly-owned
Subsidiaries; provided, further, that nothing in this Section 7.04 shall
restrict (a) compensation, advances or loans payable to directors or
officers of the Loan Parties or Subsidiaries in compliance with
Xxxxxxxx-Xxxxx; (b) transactions approved by a majority of the
disinterested members of the board of directors of the applicable Loan
Party or the applicable Subsidiary; (c) any sale of equity interests of a
Loan Party or a Subsidiary to an Affiliate; or (d) granting and performance
of registration rights on securities of a Loan Party or a Subsidiary to an
Affiliate.
7.05 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation that
expressly restricts (a) the ability of any Subsidiary to make Restricted
Payments to Xxxxxxx-Xxxxxx International or any other Loan Party, except
for restrictions existing under or by reason of (i) any restrictions with
respect to a Subsidiary imposed pursuant to an agreement which has been
entered into in connection with the disposition of all or substantially all
of the Capital Stock or assets of such Subsidiary; (ii) any debt instrument
relating to a Person which becomes a Subsidiary after the Closing Date;
provided that such restriction is only applicable to such Subsidiary and
such instrument was in existence at the time of such Acquisition; (iii) any
joint venture documents in which a Loan Party or Subsidiary is a
coventurer; provided that any such restriction (A) is customary in joint
venture agreements, (B) shall not affect the Loan Parties' ability to pay
the Obligations under this Agreement, and (C) shall provide that any
Restricted Payments made shall be made on a pro rata basis in accordance
with the joint venture ownership interests; or (iv) any restriction
resulting from a covenant or an undertaking to maintain a specified net
worth under the terms of any Indebtedness permitted to be incurred pursuant
to this Agreement, or (b) the ability of any Material Subsidiary to
Guarantee the Obligations under this Agreement, or (c) the ability of
Xxxxxxx-Xxxxxx International or any Subsidiary to create, incur, assume or
suffer to exist Liens on Material Property in favor of the Administrative
Agent on behalf of the Lenders to secure the Obligations under this
Agreement.
7.06 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 or to refund indebtedness originally
incurred for such purpose.
7.07 SALES OF RECEIVABLES. Dispose of any of its notes or accounts
receivable unless the amount of outstanding notes or accounts receivable is
not in excess of $100 million at any time; provided that such disposition
is without recourse to any Loan Party or Subsidiary and the sale does not
create obligations that appear on the balance sheet of such Loan Party or
Subsidiary; provided, however, that the foregoing shall not apply to the
Disposal of receivables to any other Loan Party or Subsidiary.
7.08 ERISA. Engage in a transaction among themselves or with any of
their ERISA Affiliates that could be subject to Sections 4069 or 4212(c) of
ERISA.
7.09 CHANGE IN ACCOUNTING PRINCIPLES. Make any material change in
accounting principles, except to the extent required by GAAP or any
applicable Law, except for voluntary, early implementation of Statement No.
123 of the Financial Account Standards Board and or any other accounting
principle that provides for early or voluntary implementation.
7.10 LIMITATIONS ON NUMBER OF SWINGLINE LENDERS. Cause or permit any
Subsidiary Swingline Borrower (a) to have more than one Lender at any one
time act as a Swingline Lender for such Subsidiary Swingline Borrower, or
(b) to replace an existing Swingline Lender with a new Swingline Lender
unless all Swingline Loans made to such Subsidiary Swingline Borrower by
the existing Swingline Lender have been repaid in full and satisfactory
arrangements have been made with the existing Swingline Lender for any
Subsidiary L/C Obligations of such Subsidiary Swingline Borrower.
7.11 FINANCIAL COVENANTS.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of any fiscal quarter of
Xxxxxxx-Xxxxxx International to be less than 3.5 to 1.0.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio at any time during any period of four fiscal quarters of
Xxxxxxx-Xxxxxx International to be greater than 3.25 to 1.0.
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. Any Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, and in the currency required
hereunder, any amount of principal of any Loan or any L/C Obligation, or
(ii) within three Business Days after the same becomes due, any interest on
any Loan or on any L/C Obligation, or (iii) within five Business Days after
the same becomes due, any other amount payable hereunder or under any other
Loan Document; or
(b) Specific Covenants. Any Loan Party fails to perform or observe any
term, covenant or agreement contained in any of Section 6.03, 6.05, 6.10 or
6.11 or Article VII; 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 (i) knowledge
thereof by any Loan Party or (ii) the date on which written notice thereof
shall have been given to Xxxxxxx-Xxxxxx International 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
any Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) Any Loan Party or any Subsidiary (A) fails to
pay any principal of or premium or interest when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement)
of more than $10 million, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee
(other than Indebtedness hereunder or Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit agreement) of more than $25 million, or any
other event occurs, and, the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) have
caused, such Indebtedness to be demanded 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 such Guarantee to become payable or
cash collateral in respect thereof to be demanded; or (ii) there occurs
under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract
as to which Xxxxxxx-Xxxxxx International or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) and the Swap
Termination Value owed by Xxxxxxx-Xxxxxx International or such Subsidiary
as a result thereof is more than $25 million or (B) any Termination Event
(as so defined) under such Swap Contract as to which Xxxxxxx-Xxxxxx
International or any Subsidiary is an Affected Party (as so defined) and
the Swap Termination Value owed by Xxxxxxx-Xxxxxx International or such
Subsidiary as a result thereof is more than $10 million; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of the Material
Subsidiaries 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 90
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 90 calendar days, or an order for relief is entered in any
such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any of
its Material Subsidiaries 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 any Loan Party or any of the
Subsidiaries a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered
by independent third-party insurance as to which the insurer does not
dispute coverage) and (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 10
consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of any Loan Party under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) any Loan Party 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 in an
aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document (including,
without limitation, the Guaranty set forth in Article XI hereof), at any
time after its execution and delivery and for any reason other than as
expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect in all material
respects; or any Loan Party or any other Person contests in any manner the
validity or enforceability of any Loan Document (including, without
limitation, the Guaranty set forth in Article XI hereof); or any Loan Party
denies that it has any or further liability or obligation under any Loan
Document (including, without limitation, the Guaranty set forth in Article
XI hereof), or purports to revoke, terminate or rescind any Loan Document;
or
(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 Commitments of each Lender to make Loans and any
obligation of each 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 Borrowers;
(c) require that the Applicable Borrowers 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 or
applicable Law;
provided, however, that upon the occurrence of an actual or deemed entry of
an order for relief with respect to any Borrower under the Bankruptcy Code
of the United States, the obligation of each Lender to make Loans and any
obligation of each 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 Applicable Borrowers 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.
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 by the Administrative Agent on account of the Obligations
shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs 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, interest and
Letter of Credit Fees) payable to the Lenders (including Attorney Costs and
amounts payable under Article III), ratably among them in proportion to the
respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit Fees, interest on the Loans and L/C
Borrowings, ratably among the Lenders 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 (including any risk participated Swingline
Loan) and L/C Borrowings, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of each 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 Xxxxxxx-Xxxxxx International 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, L/C ISSUERS AND SWINGLINE LENDERS
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT. (a) Each
Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers
and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent and any other Agent-Related Persons shall not have any
duties or responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent and any other Agent-Related Persons have or
be deemed to have any fiduciary relationship with any Lender or
participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent. Without
limiting the generality of the foregoing sentence, the use of the term
"agent" herein and in the other Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) Each of the L/C Issuers and each of the Swingline Lenders shall
act on behalf of the Lenders with respect to any Letters of Credit issued
by it or any Swingline Loans made by it, as applicable, and the documents
associated therewith, and each of the L/C Issuers and each of the Swingline
Lenders shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article IX with respect to any acts taken or
omissions suffered by any such L/C Issuer or Swingline Lender in connection
with Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such
Letters of Credit or any Swingline Loans made by it, as applicable, as
fully as if the term "Administrative Agent" as used in this Article IX and
in the definition of "Agent-Related Person" included the L/C Issuers and
Swingline Lenders with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to the L/C Issuers and Swingline
Lenders.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact, including, for the purposes of any
Borrowings or payments in Alternative Currencies or Subsidiary Currencies,
such sub-administrative agents as shall be deemed necessary by the
Administrative Agent, and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence
of gross negligence or willful misconduct. Any such agent, sub-agent or
other Person retained or employed pursuant to this Section 9.02 shall have
all the benefits and immunities provided to the Administrative Agent in
this Article IX with respect to any acts taken or omissions suffered by
such Person in connection herewith or therewith, as fully as if the term
"Administrative Agent" as used in this Article IX and the definition of
"Agent-Related Person" included such additional Persons with respect to
such acts or omissions.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall
(a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence
or willful misconduct in connection with its duties expressly set forth
herein), or (b) be responsible in any manner to any Lender or participant
for any recital, statement, representation or warranty made by any Loan
Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of any Loan
Party or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon
any writing, communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, electronic mail message, statement or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or
refusing to take any action under any Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other
Loan Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required
hereby in any instance) and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in 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 acceptable or 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.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required
to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a
Lender or Xxxxxxx-Xxxxxx International referring to this Agreement,
describing such Default and stating that such notice is a "notice of
default." The Administrative Agent will notify the Lenders of its receipt
of any such notice. The Administrative Agent shall take such action with
respect to such Default as may be directed by the Required Lenders in
accordance with Article VIII; provided, however, that unless and until the
Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable
or in the best interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative
Agent hereafter taken, including any confirmation of any Applicant Borrower
as a Swingline Borrower pursuant to Section 2.14(b) or any consent to and
acceptance of any assignment or review of the affairs of any Loan Party or
any Affiliate thereof, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender as to any matter,
including whether Agent-Related Persons have disclosed material information
in their possession. Each Lender represents to the Administrative Agent
that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and the Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this
Agreement, to extend credit to the Borrowers and to extend credit to any
Swingline Borrower pursuant to Section 2.14, which credit is supported by
the Guaranty. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of each Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any of the Loan
Parties or any of their respective Affiliates which may come into the
possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by Xxxxxxx-Xxxxxx International on behalf of the Loan Parties or
by each of the Loan Parties in their ratable share and without limiting the
obligation of Xxxxxxx-Xxxxxx International on behalf of the Loan Parties or
each of the Loan Parties to do so in their ratable share), pro rata, and
hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that (a) no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a
final, nonappealable judgment by a court of competent jurisdiction to have
resulted from such Agent-Related Person's own gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 9.07, and (b)
no Lender shall be liable for the payment of any portion of an Indemnified
Liability pursuant to this Section 9.07 unless such Indemnified Liability
was incurred by the Administrative Agent in its capacity as such or by
another Agent-Related Person acting for the Administrative Agent in such
capacity. In the case of any investigation, litigation or proceeding giving
rise to Indemnified Liabilities, this Section 9.07 applies whether any such
investigation, litigation or proceeding is brought by any Lender or any
other Person. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to
the extent that the Administrative Agent is not reimbursed for such
expenses by Xxxxxxx-Xxxxxx International on behalf of the Loan Parties or
by each of the Loan Parties in their ratable share. The undertaking in this
Section 9.07 shall survive termination of the Aggregate Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America
and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or
other business with each of the Loan Parties and their respective
Affiliates as though Bank of America were not the Administrative Agent or
an L/C Issuer hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, Bank of America
or its Affiliates may receive information regarding any Loan Party or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of such Loan Party or such Affiliate) and acknowledge
that the Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans, Bank of America shall have
the same rights and powers under this Agreement as any other Lender and may
exercise such rights and powers as though it were not the Administrative
Agent or an L/C Issuer, and the terms "Lender" and "Lenders" include Bank
of America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders;
provided that any such resignation by Bank of America shall also constitute
its resignation of Bank of America as the L/C Issuer for the Revolving
Borrowers. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent
shall be consented to by Xxxxxxx-Xxxxxx International at all times other
than during the existence of a Default (which consent of Xxxxxxx-Xxxxxx
International shall not be unreasonably withheld or delayed). If no
successor administrative agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and Xxxxxxx-Xxxxxx
International, a successor administrative agent from among the Lenders.
Upon the acceptance of its appointment as successor administrative agent
hereunder, the Person acting as such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and L/C Issuer for the Revolving Borrowers and the respective terms
"Administrative Agent" and "L/C Issuer" shall mean such successor
administrative agent and Letter of Credit issuer for the Revolving
Borrowers and the retiring Administrative Agent's appointment, powers and
duties as Administrative Agent shall be terminated and such retiring L/C
Issuer's rights, powers and duties as such shall be terminated, without any
other or further act or deed on the part of such retiring L/C Issuer for
the Revolving Borrowers or any other Lender, other than the obligation of
the successor L/C Issuer for the Revolving Borrowers to issue letters of
credit in substitution for the Letters of Credit issued for the accounts of
Revolving Borrowers, if any, outstanding at the time of such succession or
to make other arrangements satisfactory to the retiring L/C Issuer for the
Revolving Borrowers to effectively assume the obligations of such retiring
L/C Issuer with respect to such Letters of Credit. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by
the date which is 30 days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation
shall nevertheless thereupon become effective and the Lenders shall perform
all of the duties of the Administrative Agent hereunder until such time, if
any, as the Required Lenders appoint a successor agent as provided for
above.
9.10 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 any Loan Party) shall be entitled and empowered, by intervention
in such proceeding or otherwise, as follows:
(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 and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders 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 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, 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 any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
9.11 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders or
other Persons identified on the facing page or signature pages of this
Agreement as a "syndication agent," "documentation agent," "co-agent,"
"book manager," "bookrunner," "lead manager," "arranger," "lead arranger"
or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
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
Xxxxxxx-Xxxxxx International or any other Loan Party therefrom, shall in
any event be effective unless the same shall be in writing, signed by the
Required Lenders and Xxxxxxx-Xxxxxx International on behalf of all the Loan
Parties, as the case may be, and acknowledged by the Administrative Agent,
and then 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 Sections 2.06 or 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 accrued interest, 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 (i) to amend
the definition of "Default Rate" or to waive any obligation of any Borrower
to pay interest or Letter of Credit Fees at the Default Rate or (ii) to
amend any financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of
interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(d) change Section 2.13, the second to the last sentence of Section
2.12(a) 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 Section 1.07 or the definition of "Alternative Currency"
without the written consent of each Lender;
(f) change any provision of this Section 10.01 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 Xxxxxxx-Xxxxxx International from the Guaranty 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 applicable L/C Issuer in addition to
the Lenders required above, affect the rights or duties of such L/C Issuer
under this Agreement or any Letter of Credit Application relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the applicable Swingline
Lender in addition to the Lenders required above, affect the rights or
duties of such Swingline Lender under this Agreement; (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 Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto;
provided, further, for purposes of determining whether the Required Lenders
have approved an amendment, waiver or consent, the Dollar Equivalent of all
Eurocurrency Rate Loans or Non-U.S. Dollar Swingline Loans shall be
calculated as of the date immediately preceding the effective date of such
amendment, waiver or consent. 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.
In the event that any waiver, amendment or modification requires the
prior written consent of each Lender pursuant to this Section 10.01, and
Xxxxxxx-Xxxxxx International has obtained the approval of all but one
Lender, Xxxxxxx-Xxxxxx International shall have the right to replace such
non-consenting Lender in accordance with Section 10.16.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered to the applicable address, facsimile number or
(subject to subsection (c) below) electronic mail address, 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 Borrowers, the Guarantor, the Administrative Agent,
Bank of America, as L/C Issuer for the Revolving Borrowers, to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02 or to such other address,
facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and
(ii) if to any other Lender (including any other L/C Issuer or
any Swingline Lender), to the address, facsimile number, electronic
mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic
mail address or telephone number as shall be designated by such party
in a notice to Xxxxxxx-Xxxxxx International, the Administrative Agent,
the applicable L/C Issuer and the applicable Swingline Lender.
Notices sent by hand or overnight courier service, or mailed, shall be
deemed to have been given when received; notices sent by facsimile 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 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 pursuant to Article II if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under such Article II by electronic communication. The Administrative Agent
or Xxxxxxx-Xxxxxx International (on behalf of itself and the other Loan
Parties) may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness
of any such documents and signatures shall, subject to applicable Law, have
the same force and effect as manually-signed originals and shall be binding
on all Loan Parties, the Administrative Agent and the Lenders. The
Administrative Agent may also require that any such documents and
signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.
(d) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative
Agent or any of its Related Parties (collectively, the "Agent Parties")
have any liability to any Borrower, any Lender, the L/C Issuer or any other
Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of any Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction
by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to any Borrower,
any Lender, the L/C Issuer or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or
actual damages).
(e) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices and telephonic swingline loan notices)
purportedly given by or on behalf of any Loan Party 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. Xxxxxxx-Xxxxxx International (without limiting the
liability of each of the other Loan Parties to do so in their ratable
share) shall indemnify each Agent-Related Person and each Lender from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of any Loan Party.
All telephonic notices to and other 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 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 ATTORNEY COSTS AND EXPENSES. The Borrowers shall be jointly and
severally liable for their ratable share of the Attorney Costs and expenses
set forth in this Section 10.04, and Xxxxxxx-Xxxxxx International agrees
(a) to pay or reimburse the Administrative Agent for all reasonable costs
and expenses incurred in connection with the development, preparation,
negotiation and execution of the commitment letter related to this
Agreement, the Fee Letter, this Agreement and the other Loan Documents, the
syndication of the Loans, the due diligence related thereto, and any
amendment, waiver, consent or other modification of the provisions hereof
and thereof (whether or not the transactions contemplated hereby or thereby
are consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all reasonable
Attorney Costs, whether invoiced for payment at the Closing or subsequently
invoiced, and (b) to pay or reimburse the Administrative Agent and each
Lender for all costs and expenses incurred in connection with the
enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including all
such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all reasonable search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative
Agent and the reasonable cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Lender. All
amounts due under this Section 10.04 shall be payable within thirty days
after demand therefor. The agreements in this Section 10.04 shall survive
the termination of the Aggregate Commitments and repayment of all other
Obligations.
10.05 INDEMNIFICATION BY THE BORROWERS. Whether or not the
transactions contemplated hereby are consummated, Xxxxxxx-Xxxxxx
International (without limiting the liability of each of the other Loan
Parties to do so in their ratable share) will indemnify and hold harmless
each Agent-Related Person, each Lender and their respective Affiliates and
their officers, directors, employees, counsel, agents and advisors and
attorneys-in-fact (collectively the "Indemnitees") from and against any and
all losses, liabilities, obligations, claims, damages, penalties, demands,
actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with (a) the commitment
letter related to this Agreement, including, without limitation, the
syndication and arrangement of the Loans, (b) the execution, delivery,
enforcement, performance or administration of any Loan Document or any
other agreement, letter or instrument delivered in connection with the
transactions contemplated thereby or the consummation of the transactions
contemplated thereby, or in the case of the Administrative Agent (and any
sub-agent thereof) and its Agent-Related Persons Parties only, the
administration of this Agreement and the other Loan Documents or any other
agreement, letter or instrument delivered in connection with the
transactions contemplated hereby or thereby, (c) any Commitment, Loan 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 if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (d)
any actual or alleged presence or release of Hazardous Materials on or from
any property currently or formerly owned or operated by any of the Loan
Parties or any of their respective Subsidiaries, or any Environmental
Liability related in any way to any of the Loan Parties or any of their
respective Subsidiaries or (e) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based
on contract, tort or any other theory (including any investigation of,
preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"), in all cases, whether or not caused by or
arising, in whole or in part, out of the negligence of the Indemnitee;
provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, liabilities, obligations, claims, damages,
penalties, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee. No Indemnitee shall be liable for
any damages arising from the use by others of any information or other
materials obtained through the internet or intranet websites or other
similar information transmission systems in connection with this Agreement,
nor shall any Indemnitee have any liability for any indirect or
consequential damages relating to this Agreement or any other Loan Document
or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). In the case of an
investigation, litigation or proceeding to which the indemnity in this
Section 10.05 applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any of the Loan
Parties or any of their respective Subsidiaries, their directors,
stockholders or auditors or an Indemnitee or any other Person, whether or
not any Indemnitee is otherwise a party thereto and whether or not any of
the transactions contemplated hereunder or under any of the other Loan
Documents are consummated. All amounts due under this Section 10.05 shall
be payable within thirty days after demand therefor. The agreements in this
Section 10.05 shall survive the resignation of the Administrative Agent,
the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.
10.06 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of any Borrower is made to the Administrative Agent or any Lender,
or the Administrative Agent or any Lender exercises its right of set-off,
and such payment or the proceeds of such set-off 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 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 set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand
its applicable share 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.
10.07 SUCCESSORS AND ASSIGNS. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby, except that no
Loan Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and
no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section 10.07, (ii) by way of
participation in accordance with the provisions of subsection (d) of this
Section 10.07, 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 10.07 and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and in Swingline Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of
the assigning Lender's Commitment and the Loans at the time owing to it or
in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, 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 million unless each of the Administrative
Agent and, so long as no Default has occurred and is continuing,
Xxxxxxx-Xxxxxx International otherwise consents (each such consent not to
be unreasonably withheld or delayed), (ii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loans or
the Commitment assigned, except that this clause (ii) shall not apply to
rights in respect of Swingline Loans or Subsidiary L/C Obligations, (iii)
any assignment of a Commitment must be approved by the Administrative Agent
and the L/C Issuer (any such consent not to be unreasonably withheld or
delayed) unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee), and (iv) the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $2,500, except that such
fee shall be waived for assignments of a Lender to an Affiliate of such
Lender. Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section 10.07, from and after the
effective date specified in each Assignment and Assumption, the Eligible
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, 10.04 and 10.05 with respect to
facts and circumstances occurring prior to the effective date of such
assignment). Upon request, each 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 10.07.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, 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 absent
manifest error, and the Borrowers, 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 Borrowers and the L/C Issuer, at any reasonable time and
from time to time upon reasonable prior notice. In addition, at any time
that a request for a consent or a material or substantive change to the
Loan Documents is pending, any Lender may request and receive a copy of the
Register from the Administrative Agent.
(d) 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 any Borrower or any of the Borrowers'
Affiliates or 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 and/or Swingline Loans) 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
Borrowers, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of 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 the first proviso to
Section 10.01 that directly affects such Participant. Subject to subsection
(e) of this Section 10.07, each 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 10.07. To the extent permitted
by Law, each Participant also shall be entitled to the benefits of Section
10.09 as though it were a Lender; provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender.
(e) 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, unless the sale of the participation to such Participant is
made with Xxxxxxx-Xxxxxx International's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless Xxxxxxx-Xxxxxx
International is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply with
Section 10.15 as though it were a Lender.
(f) 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(s), 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) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (i) a Lender, (ii) an Affiliate of a
Lender, (iii) an Approved Fund, and (iv) any other Person (other
than a natural person) approved by (A) the Administrative Agent,
and (B) unless a Default has occurred and is continuing,
Xxxxxxx-Xxxxxx International (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding
the foregoing, "Eligible Assignee" shall not include any of the
Borrowers or any of the Borrowers' Affiliates or Subsidiaries; and
provided further, however, that an Eligible Assignee shall include
only a Lender, an Affiliate of a Lender or another Person, (i)
which, through its Lending Offices, is capable of lending to the
relevant Borrowers without the imposition of any Taxes or
additional Taxes, as the case may be and (ii) to the extent that
such Person is to be a Swingline Lender, which through its lending
office, is capable of lending the applicable Subsidiary Currency
to the relevant Subsidiary Swingline Borrower without the
imposition of any Taxes or additional Taxes, as the case may be.
"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.
"Approved Fund" means any Fund that is administered or managed by
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or
an Affiliate of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America or any Swingline Lender assigns all of its
Commitment and Loans pursuant to subsection (b) above, (i) Bank of America
or such Swingline Lender, as applicable, may, upon 30 days' notice to
Xxxxxxx-Xxxxxx International and the Lenders, resign as L/C Issuer and/or
(ii) such Swingline Lender may, upon 30 days' notice to Xxxxxxx-Xxxxxx
International and the Lenders, resign as Swingline Lender. In the event of
any such resignation as L/C Issuer or Swingline Lender, Xxxxxxx-Xxxxxx
International shall be entitled to appoint from among the Lenders a
successor L/C Issuer or Swingline Lender hereunder; provided, however, that
no failure by Xxxxxxx-Xxxxxx International to appoint any such successor
shall affect the resignation of Bank of America or such Swingline Lender as
L/C Issuer or the resignation of such Swingline Lender as Swingline Lender,
as the case may be. If Bank of America or a Swingline Lender resigns as L/C
Issuer, it shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit issued by it which are
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)). If a Swingline Lender
resigns as Swingline Lender, it shall retain all the rights of the
Swingline Lender provided for hereunder with respect to Swingline Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Eurocurrency Rate Loans
or fund risk participations in outstanding Swingline Loans pursuant to
Section 2.04(e).
10.08 CONFIDENTIALITY. Pursuant to Xxxxxxx-Xxxxxx International's
request, each of the Administrative Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its Affiliates and to the
partners, directors, officers, employees, agents, advisors and
representatives of the Administrative Agent, the Lenders and their
respective Affiliates (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 in
accordance with the provisions of this Section 10.08), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over
it or its Affiliates (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 10.08, 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 Xxxxxxx-Xxxxxx International or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section 10.08 or (y) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than Xxxxxxx-Xxxxxx International or any of its Subsidiaries or
Affiliates.
For purposes of this Section 10.08, "Information" means all
information received from any Loan Party relating to any Loan Party or any
of its businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Loan Party; provided that, in the case of information
received from a Loan Party 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 10.08 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.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrowers, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with
applicable Law, including Federal and state securities Laws.
In addition, the Administrative Agent may disclose to any agency or
organization that assigns standard identification numbers to loan
facilities such basic information describing the facilities provided
hereunder as is necessary to assign unique identifiers (and, if requested,
supply a copy of this Agreement), it being understood that the Person to
whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to make available to the public only such
Information as such Person normally makes available in the course of its
business of assigning identification numbers.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by Law, upon the occurrence and during the continuance of any
Event of Default, each Lender is authorized at any time and from time to
time, without prior notice to Xxxxxxx-Xxxxxx International or any other
Loan Party, any such notice being waived by Xxxxxxx-Xxxxxx International
(on its own behalf and on behalf of each other Loan Party) to the fullest
extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held by, and
other indebtedness at any time owing by, such Lender to or for the credit
or the account of the respective Loan Parties against any and all
Obligations owing to such Lender hereunder or under any other Loan
Document, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this
Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of
the applicable deposit or indebtedness. Each Lender agrees promptly to
notify Xxxxxxx-Xxxxxx International and the Administrative Agent after any
such set-off and application made by such Lender; provided, however, that
the failure to give such notice shall not affect the validity of such
set-off and application.
10.10 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 Applicable Borrower. 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.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties
on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other
Loan Document, the provisions of this Agreement shall control; provided
that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with
the joint participation of the respective parties thereto and shall be
construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
10.13 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
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.
10.14 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.
10.15 TAX FORMS. (a) (i) Each Lender represents and warrants that on
the date hereof such Lender is either incorporated or formed under the laws
of the United States or a state thereof or is entitled to submit a form
identified in this Section 10.15(a), which would entitle such Lender to a
complete exemption from U.S. federal withholding tax on payments by each
Borrower under this Agreement. Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
Lender") shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon accepting an
assignment of an interest herein), two duly signed completed copies of
either IRS Form W-8BEN or any successor thereto (relating to such Foreign
Lender and entitling it to an exemption from, or reduction of, withholding
tax on all payments to be made to such Foreign Lender by the Borrowers
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Foreign Lender by the
Borrowers pursuant to this Agreement) or such other evidence satisfactory
to Xxxxxxx-Xxxxxx International and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including, in the case of a Foreign Lender claiming an
exemption pursuant to Section 881(c) of the Code, a Form W-8BEN (or any
successor thereto) and a certificate representing that such Foreign Lender
is not a bank for purposes of Section 881(c) of the Code and fully eligible
for the portfolio interest exception, in either case properly completed and
duly executed by such Foreign Lender claiming complete exemption from U.S.
federal withholding tax on payments by each Borrower under this Agreement;
provided, however, that in the event that a Foreign Lender is not a
corporation for U.S. federal income tax purposes, such Foreign Lender
agrees to take any actions necessary, and to deliver all additional (or
alternative) Internal Revenue Service forms necessary to fully establish
such Foreign Lender's entitlement to a complete exemption from withholding
of U.S. taxes on all amounts to be received by such Foreign Lender pursuant
to this Agreement (including causing its partners, members, beneficiaries
or owners, and their beneficial owners, to take any actions and deliver any
forms necessary to establish such exemption). Thereafter and from time to
time, each such Foreign Lender shall (A) promptly submit to the
Administrative Agent such additional duly completed and signed copies of
one of such forms (or such successor forms as shall be adopted from time to
time by the relevant United States taxing authorities) as may then be
available under then current United States Laws and regulations to avoid,
or such evidence as is satisfactory to Xxxxxxx-Xxxxxx International and the
Administrative Agent of any available exemption from or reduction of,
United States withholding taxes in respect of all payments to be made to
such Foreign Lender by the Borrowers pursuant to this Agreement, (B)
promptly notify the Administrative Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction,
and (C) 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 Law that any Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums
paid or payable to such Lender under any of the Loan Documents (for
example, in the case of a typical participation by such Lender), shall
deliver to the Administrative Agent on the date when such Foreign
Lender ceases to act for its own account with respect to any portion
of any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the
reasonable exercise of its discretion), (A) two duly signed completed
copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B) two duly
signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with
such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting
for its own account with respect to a portion of any such sums payable
to such Lender.
(iii) No Borrower shall be required to indemnify any Foreign
Lender or to pay any additional amount to any Foreign Lender under
Section 3.01 (A) with respect to any Taxes required to be deducted or
withheld on the basis of the information, certificates or statements
of exemption such Lender transmits with an IRS Form W-8IMY pursuant to
this Section 10.15(a) or (B) if such Lender shall have failed to
satisfy the foregoing provisions of this Section 10.15(a); provided
that if such Lender shall have satisfied the requirement of this
Section 10.15(a) on the date such Lender became a Lender and any date
such Lender has ceased to act for its own account with respect to any
payment under any of the Loan Documents, nothing in this Section
10.15(a) shall relieve any Borrower of its obligation to pay any
amounts pursuant to Section 3.01 in the event that, as a result of any
change in any applicable law, treaty or governmental rule, regulation
or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account
of which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding
at a reduced rate; and provided further that if the L/C Issuer shall
issue, amend or extend any Letter of Credit from a branch or other
office in any jurisdiction at the request of (or with the consent of)
Xxxxxxx-Xxxxxx International and the L/C Issuer has notified
Xxxxxxx-Xxxxxx International that it shall not be lawfully able or
entitled to satisfy the requirements of this Section 10.15(a) at the
time of issuance, amendment or extension of any Letter of Credit by
reason of the selection of such branch or office in such jurisdiction,
nothing in this Section 10.15(a) shall relieve the Borrowers of their
obligation to pay any amounts pursuant to Section 3.01 owing to the
L/C Issuer.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which any Borrower is not
required to pay additional amounts under Section 3.01 or this Section
10.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is
a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed
copies of IRS Form W-9 certifying that such Lender is not subject to
back-up withholding. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable back-up withholding tax imposed by
the Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent or any Borrower did not properly withhold or backup withhold, as the
case may be, any Tax or other amount from payments made to or for the
account of any Lender, such Lender shall indemnify the Administrative Agent
or such Borrower therefor, including all penalties and interest, any Taxes
imposed by any jurisdiction on the amounts payable to the Administrative
Agent or such Borrower under this Section 10.15, and costs and expenses
(including Attorney Costs) of the Administrative Agent or such Borrower.
The obligation of the Lenders under this Section 10.15 shall survive the
termination of the Aggregate Commitments, repayment of all other
Obligations hereunder and the resignation of the Administrative Agent.
10.16 REPLACEMENT OF LENDERS. Under any circumstances set forth herein
providing that Xxxxxxx-Xxxxxx International shall have the right to replace
a Lender as a party to this Agreement, Xxxxxxx-Xxxxxx International may,
upon notice to such Lender and the Administrative Agent, replace such
Lender by causing such Lender to assign its Commitment (with the assignment
fee to be paid by Xxxxxxx-Xxxxxx International in such instance) pursuant
to Section 10.07(b) to one or more other Lenders or Eligible Assignees
procured by Xxxxxxx-Xxxxxx International; provided that no Default shall
have occurred and be continuing at the time of such replacement and such
replacement does not conflict with any Law. The Borrowers shall pay in full
all principal owing to such Lender as of the date of replacement (including
any amounts payable pursuant to Section 3.05); and the Borrowers shall (a)
provide appropriate assurances and indemnities (which may include letters
of credit) to the applicable L/C Issuer and the applicable Swingline Lender
as each may reasonably require with respect to any continuing obligation to
fund participation interests in any L/C Obligations or any Swingline Loans
then outstanding, and (b) release such Lender from its obligations under
the Loan Documents. Any Lender being replaced shall execute and deliver an
Assignment and Assumption with respect to such Lender's Commitment and
outstanding Loans and participations in L/C Obligations and Swingline
Loans.
10.17 GOVERNING LAW. (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX
XXXX SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE LOAN PARTIES, THE ADMINISTRATIVE AGENT AND LENDERS CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH LOAN PARTY, THE ADMINISTRATIVE AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO. EACH LOAN PARTY, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
(c) EACH LOAN PARTY, OTHER THAN XXXXXXX-XXXXXX INTERNATIONAL, HEREBY
IRREVOCABLY APPOINTS XXXXXXX-XXXXXX INTERNATIONAL AS ITS AUTHORIZED AGENT
WITH ALL POWERS NECESSARY TO RECEIVE ON ITS BEHALF SERVICE OF COPIES OF THE
SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS IN
ANY OF SUCH COURTS IN AND OF THE STATE OF NEW YORK. SUCH SERVICE MAY BE
MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO A LOAN PARTY IN
CARE OF XXXXXXX-XXXXXX INTERNATIONAL AT ITS ADDRESS FOR NOTICES PROVIDED
FOR IN SECTION 10.02, AND EACH SUCH LOAN PARTY HEREBY IRREVOCABLY
AUTHORIZES AND DIRECTS XXXXXXX-XXXXXX INTERNATIONAL TO ACCEPT SUCH SERVICE
ON ITS BEHALF AND AGREES THAT THE FAILURE OF XXXXXXX-XXXXXX INTERNATIONAL
TO GIVE ANY NOTICE OF ANY SUCH SERVICE TO SUCH LOAN PARTY SHALL NOT IMPAIR
OR AFFECT THE VALIDITY OF SUCH SERVICE OR OF ANY JUDGMENT RENDERED IN ANY
ACTION OR PROCEEDING BASED THEREON. XXXXXXX-XXXXXX INTERNATIONAL HEREBY
IRREVOCABLY ACCEPTS SUCH APPOINTMENT AS PROCESS AGENT. EACH LOAN PARTY
AGREES THAT SUCH SERVICE (1) SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE
SERVICE OF PROCESS UPON IT IN ANY SUCH SUIT, ACTION OR PROCEEDING AND (2)
SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW, BE TAKEN AND HELD TO BE
VALID PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT. NOTHING IN THIS
SECTION 10.17 SHALL AFFECT THE RIGHT OF ANY LENDER TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW OR LIMIT THE RIGHT OF ANY LENDER TO BRING
PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY JURISDICTION OR
JURISDICTIONS.
10.18 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR
ASSIGNEE, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH
PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION 10.18 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.19 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 each Loan Party 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 any Loan
Party in the Agreement Currency, such Loan Party 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 such Loan Party (or to any other Person who may be entitled
thereto under applicable law).
10.20 USA PATRIOT ACT NOTICE. Each Lender and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies each 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 "Patriot Act"), it is
required to obtain, verify and record information that identifies such
Borrower, which information includes the name and address of such Borrower
and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify such Borrower in accordance with the
Patriot Act. Each Borrower agrees to promptly provide information
reasonably requested by any Lender or the Administrative Agent to comply
with the provisions of the Patriot Act.
ARTICLE XI.
GUARANTY
11.01 GUARANTY. The Guarantor hereby absolutely, unconditionally and
irrevocably guarantees the punctual payment when due, whether at scheduled
maturity or on any date of a required prepayment or by acceleration, demand
or otherwise, of all Obligations of MTH, MTMHD, MTBV, MTICV and each
Subsidiary Swingline Borrower (the "Designated Borrowers") now or hereafter
existing under or in respect of the Loan Documents (including, without
limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations of the Designated
Borrowers), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses
(including, without limitation, Attorney Costs) incurred by the
Administrative Agent or any other Lender in enforcing any rights under this
Guaranty or any other Loan Document. Without limiting the generality of the
foregoing, the Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any
Designated Borrower to any Lender under or in respect of the Loan Documents
but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding under any
Debtor Relief Law involving such Designated Borrower.
11.02 GUARANTY ABSOLUTE. The Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any Law now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Lender with
respect thereto. The Guaranteed Obligations of Xxxxxxx-Xxxxxx International
under or in respect of this Guaranty are independent of the Obligations of
Xxxxxxx-Xxxxxx International, as a Borrower hereunder, and any Obligations
of any Designated Borrower under or in respect of the Loan Documents, and a
separate action or actions may be brought and prosecuted against
Xxxxxxx-Xxxxxx International to enforce this Guaranty, irrespective of
whether any action is brought against Xxxxxxx-Xxxxxx International, as a
Borrower hereunder, or any Designated Borrower is joined in any such action
or actions. This Guaranty is an absolute and unconditional guaranty of
payment when due, and not of collection, by Xxxxxxx-Xxxxxx International of
the Guaranteed Obligations. The liability of Xxxxxxx-Xxxxxx International
under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and Xxxxxxx-Xxxxxx International hereby irrevocably waives
any setoffs, counterclaims or defenses it may now have or hereafter acquire
in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of Xxxxxxx-Xxxxxx International, as a Borrower hereunder, or
any Designated Borrower under or in respect of the Loan Documents, or any
other amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any
Designated Borrower or any of the Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral,
or any taking, release or amendment or waiver of, or consent to departure
from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of any collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any Obligations of Xxxxxxx-Xxxxxx International, as a Borrower
hereunder, or any Designated Borrower under the Loan Documents or any other
assets of Xxxxxxx-Xxxxxx International, as a Borrower hereunder, or any
Designated Borrower or any of their respective Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of the Subsidiaries or any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting any Designated Borrower or its assets or any resulting release or
discharge of any Guaranteed Obligation;
(f) the existence of any claim, set-off or other right which
Xxxxxxx-Xxxxxx International may have at any time against any Designated
Borrower, the Administrative Agent, any Lender or any other Person, whether
in connection herewith or any unrelated transaction;
(g) any invalidity or unenforceability relating to or against any Loan
Party for any reason of the whole or any provision of any Loan Document, or
any provision of applicable Law purporting to prohibit the payment or
performance by any applicable Loan Party of the Guaranteed Obligations;
(h) any failure of any Lender to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party
now or hereafter known to such Lender (Xxxxxxx-Xxxxxx International waiving
any duty on the part of the Lenders to disclose such information);
(i) the failure of any other Person to execute or deliver any other
guaranty or agreement or the release or reduction of liability of any such
other guarantor or surety with respect to the Guaranteed Obligations; or
(j) any other circumstance (including, without limitation, any statute
of limitations) whatsoever (in any case, whether based on contract, tort or
any other theory) or any existence of or reliance on any representation by
any Lender that might otherwise constitute a legal or equitable defense
available to, or a discharge of, Xxxxxxx-Xxxxxx International, any
Designated Borrower or surety other than indefeasible payment in full in
cash of the Guaranteed Obligations.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed
Obligations is rescinded or must otherwise be returned by any Lender or any
other Person upon the insolvency, bankruptcy or reorganization under any
applicable Debtor Relief Law of any Loan Party or otherwise, all as though
such payment had not been made.
11.03 WAIVERS AND ACKNOWLEDGMENTS. (a) Xxxxxxx-Xxxxxx International
hereby unconditionally and irrevocably waives promptness, diligence, notice
of acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and any other
notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that any Lender protect, secure, perfect or insure any
Lien or any property subject thereto or exhaust any right or take any
action against any Designated Borrower or any other Person or any
collateral.
(b) Xxxxxxx-Xxxxxx International hereby unconditionally and
irrevocably waives any right to revoke this Guaranty and acknowledges that
this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
(c) Xxxxxxx-Xxxxxx International hereby unconditionally and
irrevocably waives (i) any defense arising by reason of any claim or
defense based upon an election of remedies by any Lender that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of
Xxxxxxx-Xxxxxx International or other rights of Xxxxxxx-Xxxxxx
International to proceed against any Designated Borrower or any other
Person or any collateral and (ii) any defense based on any right of set-off
or counterclaim against or in respect of the Obligations of Xxxxxxx-Xxxxxx
International under this Guaranty.
(d) Xxxxxxx-Xxxxxx International hereby unconditionally and
irrevocably waives any duty on the part of any Lender to disclose to
Xxxxxxx-Xxxxxx International any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Designated Borrower or any of the
Subsidiaries now or hereafter known by such Lender.
(e) Xxxxxxx-Xxxxxx International acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in
Section 11.02 and this Section 11.03 are knowingly made in contemplation of
such benefits.
11.04 SUBROGATION. Xxxxxxx-Xxxxxx International hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or
hereafter acquire against any Designated Borrower, or any other insider
guarantor that arise from the existence, payment, performance or
enforcement by Xxxxxxx-Xxxxxx International of the Guaranteed Obligations
under or in respect of this Guaranty or any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim
or remedy of any Lender against any Designated Borrower or any other
insider guarantor or any collateral for the Obligations, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive
from such Designated Borrower, or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and
until the date (the "Termination Date") which is the later of (a) the date
of the termination of the Availability Period and (b) the date of the
indefeasible payment in full of all the Obligations in cash. If any amount
shall be paid to Xxxxxxx-Xxxxxx International in violation of the
immediately preceding sentence at any time prior to the Termination Date,
such amount shall be received and held in trust for the benefit of the
Lenders, shall be segregated from other property and funds of
Xxxxxxx-Xxxxxx International and shall forthwith be paid or delivered to
the Administrative Agent in the same form as so received (with any
necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as collateral for any Guaranteed Obligations or
other amounts payable under this Guaranty thereafter arising. If the
Termination Date shall have occurred, the Administrative Agent will, at
Xxxxxxx-Xxxxxx International's request and expense, execute and deliver to
Xxxxxxx-Xxxxxx International appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to Xxxxxxx-Xxxxxx International of an interest in the
Guaranteed Obligations resulting from such payment made by Xxxxxxx-Xxxxxx
International pursuant to this Guaranty.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
XXXXXXX-XXXXXX INTERNATIONAL INC., AS A
REVOLVING BORROWER AND THE GUARANTOR
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Treasurer
------------------------------------------
XXXXXXX-XXXXXX HOLDING AG, AS A REVOLVING
BORROWER AND A SUBSIDIARY SWINGLINE BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX MANAGEMENT HOLDING DEUTSCHLAND
GMBH, AS A REVOLVING BORROWER AND A
SUBSIDIARY SWINGLINE BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX B.V., AS A REVOLVING BORROWER
AND A SUBSIDIARY SWINGLINE BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
MT INVESTMENT C.V., AS A REVOLVING BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX, INC., AS A SUBSIDIARY
SWINGLINE BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Treasurer
------------------------------------------
XXXXXXX-XXXXXX HOLDING (FRANCE) SAS, AS A
SUBSIDIARY SWINGLINE BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX K.K., AS A SUBSIDIARY
SWINGLINE BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX LIMITED, AS A SUBSIDIARY
SWINGLINE BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX UK HOLDINGS LIMITED, AS A
SUBSIDIARY SWINGLINE BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX SAFELINE LIMITED (FORMERLY
SAFELINE LIMITED) AS A SUBSIDIARY SWINGLINE
BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX SAFELINE X-RAY LIMITED
(FORMERLY SAFELINE AVS LIMITED) AS A
SUBSIDIARY SWINGLINE BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX NV AS A SUBSIDIARY SWINGLINE
BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
XXXXXXX-XXXXXX GMBH AS A SUBSIDIARY SWINGLINE
BORROWER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------------
Title: Power of Attorney
------------------------------------------
BANK OF AMERICA, N.A., AS ADMINISTRATIVE
AGENT
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------------------
Title: Assistant Vice President
------------------------------------------
BANK OF AMERICA, N.A., AS A LENDER AND AN L/C
ISSUER
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
BANK OF CHINA, NEW YORK BRANCH, AS A LENDER
By: /s/ Xxxxxxxx Xx
------------------------------------------
Name: Xxxxxxxx Xx
------------------------------------------
Title: First Deputy General Manager
------------------------------------------
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, AS
A LENDER AND A DOCUMENTATION AGENT
By: /s/ X. Xxxxxxxxx
------------------------------------------
Name: X. Xxxxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., SHIMBASHI
COMMERCIAL BANKING OFFICE, AS A SWINGLINE
LENDER AND AN L/C ISSUER
By: /s/ Akimko Yamamoto
------------------------------------------
Name: Akimko Yamamoto
------------------------------------------
Title: General Manager
------------------------------------------
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
JPMORGAN CHASE BANK, N.A., AS A SYNDICATION
AGENT AND A LENDER
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK
BRANCH, AS A LENDER
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------------
Title: Director
------------------------------------------
By: /s/ Xxxxxx Xxxx
------------------------------------------
Name: Xxxxxx Xxxx
------------------------------------------
Title: Director
------------------------------------------
BAYERISCHE HYPO-UND VEREINSBANK AG, ULM
BRANCH, AS A SWINGLINE LENDER AND AN L/C
ISSUER
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------------
Title: Director
------------------------------------------
By: /s/ Xxxxxx Xxxx
------------------------------------------
Name: Xxxxxx Xxxx
------------------------------------------
Title: Director
------------------------------------------
BNP PARIBAS, AS A LENDER
By: /s/ Xxx Xxxx
------------------------------------------
Name: Xxx Xxxx
------------------------------------------
Title: Managing Director
------------------------------------------
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
CREDIT SUISSE, AS A LENDER, A SWINGLINE
LENDER AND AN L/C ISSUER
By: /s/ Xxxxxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxxxxx Xxxxxxx
------------------------------------------
Title: Director
------------------------------------------
By: /s/ Xxxx Jak
------------------------------------------
Name: Xxxx Jak
------------------------------------------
Title: Ass. Vice President
------------------------------------------
FIFTH THIRD BANK, AN OHIO BANKING
CORPORATION, AS A LENDER
By: /s/ Xxxxxxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
------------------------------------------
Title: Vice President
------------------------------------------
HSBC BANK USA, N.A., AS A LENDER
By: /s/ Xxxxxxxxx Xxxx
------------------------------------------
Name: Xxxxxxxxx Xxxx
------------------------------------------
Title: Vice President
------------------------------------------
ING CAPITAL LLC, AS A LENDER
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
------------------------------------------
Title: Managing Director
------------------------------------------
XXXXXXX XXXXX BANK USA, AS A LENDER
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
------------------------------------------
Title: Director
------------------------------------------
NORDEA BANK FINLAND PLC, AS A LENDER
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Title: First Vice President
------------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
------------------------------------------
Title: SVP Credit
------------------------------------------
THE ROYAL BANK OF SCOTLAND PLC, AS A LENDER,
A SWINGLINE LENDER AND AN L/C ISSUER
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
SOCIETE GENERALE, AS A DOCUMENTATION AGENT, A
LENDER, A SWINGLINE LENDER AND AN L/C ISSUER
By: /s/ Xxxx-Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxx-Xxxxx Xxxxxxxxx
------------------------------------------
Title: Director
------------------------------------------
UBS AG, STAMFORD BRANCH, AS A LENDER
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Director Banking Products Services, US
------------------------------------------
By: /s/ Xxxx X. Xxxx
------------------------------------------
Name: Xxxx X. Xxxx
------------------------------------------
Title: Associate Director Banking
Products Services, US
------------------------------------------
WACHOVIA BANK, N.A., AS A SYNDICATION AGENT,
A LENDER, A SWINGLINE LENDER AND AN L/C
ISSUER
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
------------------------------------------
Title: Managing Director
------------------------------------------
Schedule 1.01
MANDATORY COST FORMULAE
1. The Mandatory Cost (to the extent applicable) is an addition to the
interest rate to compensate Lenders for the cost of compliance with:
(a) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority which
replaces all or any of its functions); or
(b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as practicable
thereafter) the Administrative Agent shall calculate, as a percentage
rate, a rate (the "Additional Cost Rate") for each Lender, in
accordance with the paragraphs set out below. The Mandatory Cost will
be calculated by the Administrative Agent as a weighted average of the
Lenders' Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will
be expressed as a percentage rate per annum. The Administrative Agent
will, at the request of Xxxxxxx-Xxxxxx International or any Lender,
deliver to Xxxxxxx-Xxxxxx International or such Lender as the case may
be, a statement setting forth the calculation of any Mandatory Cost.
3. The Additional Cost Rate for any Lender lending from a Lending Office
in a Participating Member State will be the percentage notified by
that Lender to the Administrative Agent. This percentage will be
certified by such Lender in its notice to the Administrative Agent as
the cost (expressed as a percentage of such Lender's participation in
all Loans made from such Lending Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of Loans
made from that Lending Office.
4. The Additional Cost Rate for any Lender lending from a Lending Office
in the United Kingdom will be calculated by the Administrative Agent
as follows:
(a) in relation to any Loan in Pounds Sterling:
AB+C(B-D)+E x 0.01 per cent per annum
100 - (A+C)
(b) in relation to any Loan in any currency other than Pounds
Sterling:
E x 0.01 per cent per annum
300
Where:
"A" is the percentage of Eligible Liabilities (assuming these to be
in excess of any stated minimum) which that Lender is from time
to time required to maintain as an interest free cash ratio
deposit with the Bank of England to comply with cash ratio
requirements.
"B" is the percentage rate of interest (excluding the Applicable
Rate, the Mandatory Cost and any interest charged on overdue
amounts pursuant to the first sentence of Section 2.08(b) and, in
the case of interest (other than on overdue amounts) charged at
the Default Rate, without counting any increase in interest rate
effected by the charging of the Default Rate) payable for the
relevant Interest Period of such Loan.
"C" is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
"D" is the percentage rate per annum payable by the Bank of England
to the Administrative Agent on interest bearing Special Deposits.
"E" is designed to compensate Lenders for amounts payable under the
Fees Regulations and is calculated by the Administrative Agent as
being the average of the most recent rates of charge supplied by
the Lenders to the Administrative Agent pursuant to paragraph 7
below and expressed in pounds per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) "Fees Regulations" means the FSA Supervision Manual or such other
law or regulation as may be in force from time to time in respect
of the payment of fees for the acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees
Regulations under the activity group A.1 Deposit acceptors
(ignoring any minimum fee or zero rated fee required pursuant to
the Fees Regulations but taking into account any applicable
discount rate); and
(d) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included
in the formulae as percentages (i.e. 5% will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. If requested by the Administrative Agent or Xxxxxxx-Xxxxxx
International, each Lender with a Lending Office in the United Kingdom
or a Participating Member State shall, as soon as practicable after
publication by the Financial Services Authority, supply to the
Administrative Agent and Xxxxxxx-Xxxxxx International, the rate of
charge payable by such Lender to the Financial Services Authority
pursuant to the Fees Regulations in respect of the relevant financial
year of the Financial Services Authority (calculated for this purpose
by such Lender as being the average of the Fee Tariffs applicable to
such Lender for that financial year) and expressed in pounds per
(pound)1,000,000 of the Tariff Base of such Lender.
8. Each Lender shall supply any information required by the
Administrative Agent for the purpose of calculating its Additional
Cost Rate. In particular, but without limitation, each Lender shall
supply the following information in writing on or prior to the date on
which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of the
Lending Office out of which it is making available its
participation in the relevant Loan; and
(b) any other information that the Administrative Agent may
reasonably require for such purpose.
Each Lender shall promptly notify the Administrative Agent in writing of
any change to the information provided by it pursuant to this paragraph.
9. The percentages or rates of charge of each Lender for the purpose of
A, C and E above shall be determined by the Administrative Agent based
upon the information supplied to it pursuant to paragraphs 7 and 8
above and on the assumption that, unless a Lender notifies the
Administrative Agent to the contrary, each Lender's obligations in
relation to cash ratio deposits, Special Deposits and the Fees
Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Lending Office in the same
jurisdiction as such Lender's Lending Office.
10. The Administrative Agent shall have no liability to any Person if such
determination results in an Additional Cost Rate which over- or
under-compensates any Lender and shall be entitled to assume that the
information provided by any Lender pursuant to paragraphs 3, 7 and 8
above is true and correct in all respects.
11. The Administrative Agent shall distribute the additional amounts
received as a result of the Mandatory Cost to the Lenders on the basis
of the Additional Cost Rate for each Lender based on the information
provided by each Lender pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Administrative Agent pursuant to this
Schedule in relation to a formula, the Mandatory Cost, an Additional
Cost Rate or any amount payable to a Lender shall, in the absence of
manifest error, be conclusive and binding on all parties hereto.
13. The Administrative Agent may from time to time, after consultation
with Xxxxxxx-Xxxxxx International and the Lenders, determine and
notify to all parties any amendments which are required to be made to
this Schedule in order to comply with any change in law, regulation or
any requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions)
and any such determination shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.
Schedule 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT COMMITMENT
PRO RATA SHARE
----------------------------------------- ------------------------------------- --------------------------------------
Bank of America, N.A. $39,000,000 8.666666668%
Bank of Tokyo-Mitsubishi Trust $34,000,000 7.555555555%
Company
JPMorgan Chase Bank, NA. $34,000,000 7.555555555%
Societe Generale $34,000,000 7.555555555%
Wachovia Bank, N.A. $34,000,000 7.555555555%
Bank of China, New York Branch $27,000,000 6.000000000%
Bayerische Hypo-und Vereinsbank AG $27,000,000 6.000000000%
Credit Suisse $27,000,000 6.000000000%
ING Capital LLC $27,000,000 6.000000000%
The Royal Bank of Scotland plc $27,000,000 6.000000000%
HSBC Bank USA, N.A. $27,000,000 6.000000000%
Fifth Third Bank $27,000,000 6.000000000%
BNP Paribas $21,500,000 4.777777778%
Xxxxxxx Xxxxx Bank USA $21,500,000 4.777777778%
Nordea Bank Finland Plc $21,500,000 4.777777778%
UBS AG, Stamford Branch $21,500,000 4.777777778%
Total $450,000,000 100.000000000%
Schedule 5.07
MATERIAL SUBSIDIARIES/
OTHER EQUITY INVESTMENTS AND INVESTMENTS AND INDEBTEDNESS
Part (a). Material Subsidiaries.
--------------------------------- --------------------------------- --------------------------------
NAME OF ENTITY JURISDICTION OF ORGANIZATION OWNER OF ISSUED CAPITAL
--------------------------------- --------------------------------- --------------------------------
Xxxxxxx-Xxxxxx Inc. United States/Delaware 100% Xxxxxxx-Xxxxxx
International Inc.
--------------------------------- --------------------------------- --------------------------------
Xxxxxxx-Xxxxxx GmbH Switzerland 99.95% Xxxxxxx-Xxxxxx Holding
AG, 0.05% Xxxxx X. Xxxxxxxxxx
--------------------------------- --------------------------------- --------------------------------
Xxxxxxx-Xxxxxx Holding AG Switzerland 90% Xxxxxxx-Xxxxxx B.V., 10%
Xxxxxxx-Xxxxxx, Inc.
--------------------------------- --------------------------------- --------------------------------
Xxxxxxx-Xxxxxx Management Germany 100% Xxxxxxx-Xxxxxx Holding AG
Holding Deutschland GmbH
--------------------------------- --------------------------------- --------------------------------
Xxxxxxx-Xxxxxx B.V. Netherlands 100% Xxxxxxx-Xxxxxx
Netherlands Investment II, LLC
--------------------------------- --------------------------------- --------------------------------
Rainin Instrument, LLC United States/Delaware 100% Xxxxxxx-Xxxxxx, Inc.
--------------------------------- --------------------------------- --------------------------------
Part (b). Other Equity Investments/Liens.
Panzhihua Toledo Electronic Scale Ltd. (China); authorized
and issued capital of RMB 7,200,000; 80% owned by
Xxxxxxx-Xxxxxx (Changzhou) Scale & System Ltd.; 20% owned by
Xxxxxxx-Xxxxxx (Changzhou) Precision Instruments Ltd.
Part (c). Indebtedness/Investments.
$150 million 4.85% Senior Notes due 2010.
SCHEDULE 7.01
EXISTING LIENS
A. SWISS MORTGAGES
-----------------------------------------------------------------------------------------------------------------------------------
Grundstuck in Xxxxx Xx. / Grundbuchamt / Erstellungsdatum Pfandsumme / Letzte Bemerkungen/Notes
Land Land Registry / Creation Date Mortgage Aenderungen/
CHF Changes
-----------------------------------------------------------------------------------------------------------------------------------
Greifensee, 1246, 625, 626 Uster Serie C04828/ 7.7.66 5'000'000.-- 18.11.1982 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Greifensee, 1246, 625, 626 Uster Serie C53870/13.12.72 5'000'000.-- 18.11.1982 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Greifensee, 1246, 625, 626 Uster Serie C53869/13.12.72 5'000'000.-- 18.11.1982 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Greifensee, 1246, 625, 626 Uster Serie D39095/17.7.80 16'500'000.-- 18.11.1982 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Greifensee, 1246, 625, 626 Uster Serie A61414/2.10.96 6'500'000.-- 2.10.1996 2. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Volketswil, 6404, GR789 Dubendorf Serie C03880/29.4.66 1'000'000.-- 30.6.1997 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Volketswil, 6404, GR789 Dubendorf Serie C03881/29.4.66 1'000'000.-- 30.6.1997 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Volketswil, 6404, GR789 Dubendorf Serie C03882/29.4.66 1'000'000.-- 30.6.1997 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Volketswil, 6404, GR789 Dubendorf Serie C03883/29.4.66 1'000'000.-- 30.6.1997 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Volketswil, 6404, GR789 Dubendorf Serie C03884/29.4.66 1'000'000.-- 30.6.1997 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Volketswil, 6404, GR789 Dubendorf Serie C03885/29.4.66 500'000.-- 30.6.1997 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Volketswil, 6404, GR789 Dubendorf Serie A57459/15.10.96 8'000'000.-- 15.10.1996 2. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Uster, 7242, 7243 Uster, 15.4.1981 15'000'000.-- 15.4.1981 1. Pfandstelle/Orig. Not. Uster
-----------------------------------------------------------------------------------------------------------------------------------
Uster, 7242, 7243 Uster, 15.4.1981 15'000'000.-- 15.4.1981 1. Pfandstelle/Orig. Not. Uster
-----------------------------------------------------------------------------------------------------------------------------------
Uster, 7242, 7243 Uster, 2.10.1996 8'000'000.-- 2.10.1996 2. Pfandstelle/Orig. Not. Uster
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx, 0000 Xxxxxxxxx, Serie C23002/7.1.69 3'000'000.-- 9.9.1974 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx, 0000 Xxxxxxxxx, Serie C56438/15.1.73 3'000'000.-- 9.9.1974 2. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx, 0000 Xxxxxxxxx, Serie C77811/7.11.74 500'000.-- 7.11.1974 2. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx, 0000 Xxxxxxxxx, Serie C74332/25.9.74 500'000.-- 25.9.1974 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx, 0000 Xxxxxxxxx, Serie C77910/5.2.75 500'000.-- 5.2.1975 3. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx, 0000 Xxxxxxxxx, Serie C77828 1'200'000.-- 21.5.1980 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
Uznach, 921 Uznach, 2196/265/9.10.1996 9'000'000.-- 9.10.1996 1. Pfandstelle
-----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 10.02
ADMINISTRATIVE AGENT'S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
XXXXXXX-XXXXXX INTERNATIONAL INC.,
AS BORROWER AND GUARANTOR, AND
MTH, MTMHD AND SUBSIDIARY SWINGLINE BORROWERS:
c/o Xxxxxxx-Xxxxxx International, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxx.xxxxxxxx@xx.xxx
Website Address: xxx.xx.xxx
ADMINISTRATIVE AGENT:
Administrative Agent's Office
-----------------------------
(for payments and Requests for Revolving Loans or Letters of Credit to the
Revolving Borrowers):
Bank of America, N.A.
000 X. Xxxxx Xxxxxx, 00xx Floor
Mail Code: NC1-001-15-04
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxxxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx
Account No. (for Dollars): 1366212250600
Ref: Xxxxxxx-Xxxxxx, Attn: Credit Services
ABA# 000000000
Account No. (for Euro): 00000000
Ref: Xxxxxxx-Xxxxxx, Attn: Credit Services
Swift Address: XXXXXX00
Account No. (for Pounds Sterling): 65280027
Ref: Xxxxxxx-Xxxxxx, Attn: Credit Services
London Sort Code: 16-50-50
Swift Address: XXXXXX00
Account No. (for Swiss Francs): 601490661012
Ref: Xxxxxxx-Xxxxxx, Attn: Credit Services
Swift Code: XXXXXX0X
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
0000 Xxxxxx Xxxxxx
Mail Code: CA5-701-05-19
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxxx.xxxxx@xxxxxxxxxxxxx.xxx
L/C ISSUER FOR REVOLVING BORROWERS:
Bank of America, N.A.
Global Trade Operations-Standby Unit
Mail Code: PA6-580-02-30
Xxx Xxxxx Xxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Telephone: 000.000.0000
Facsimile: 570.330.4187
Electronic Mail: xxxxxxx.x.xxxxxxxxx@xxxxxxxxxxxxx.xxx
EXHIBIT A
FORM OF LOAN NOTICE
--------------------------------------------------------------------------------
Date: ___________, _____
--------------------------------------------------------------------------------
To: Bank of America, N.A., as Administrative Agent
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit
Agreement, dated as of November 7, 2005 (as the same may be further
amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Xxxxxxx-Xxxxxx International Inc.
("Xxxxxxx-Xxxxxx International"), Xxxxxxx-Xxxxxx Holding AG, Xxxxxxx-Xxxxxx
Management Holding Deutschland GmbH, Xxxxxxx-Xxxxxx B.V., MT Investment
C.V., certain Subsidiary Swingline Borrowers party thereto from time to
time, the Lenders from time to time party thereto, Bank of America, N.A.,
as Administrative Agent and L/C Issuer to the Revolving Borrowers, certain
Swingline Lenders and certain other L/C Issuers party thereto from time to
time, and the other agents party thereto.
Xxxxxxx-Xxxxxx International, a Borrower under the Agreement, hereby
requests, on behalf of itself or, if applicable, the other Revolving
Borrower referenced in item 6 below (select one):
|_| A Borrowing of Revolving Loans |_| A conversion of Revolving Loans
|_| A continuation of Eurocurrency Rate Loans
1. On _________________________________ (a Business Day).
2. In the amount of _________________________________.
3. Comprised of _________________________________.[Type of Loan requested]
4. In the following currency: ________________________
5. For Eurocurrency Rate Loans: with an Interest Period of ___ months.
6. On behalf of ____________________________ [insert name of applicable
Revolving Borrower].
The Borrowing requested herein complies with Section 2.01 of the
Agreement.
XXXXXXX-XXXXXX INTERNATIONAL INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
EXHIBIT B
FORM OF REVOLVING NOTE
November 7, 2005
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to _____________________ or registered assigns (the "Lender"), in
accordance with the provisions of the Agreement (as hereinafter defined),
the principal amount of each Revolving Loan from time to time made by the
Lender to the Borrower under that certain Amended and Restated Credit
Agreement, dated as of November 7, 2005 (as the same may be further
amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Xxxxxxx-Xxxxxx International Inc.,
Xxxxxxx-Xxxxxx Holding AG, Xxxxxxx-Xxxxxx Management Holding Deutschland
GmbH, Xxxxxxx-Xxxxxx B.V., MT Investment C.V., certain Subsidiary Swingline
Borrowers party thereto from time to time, the Lenders from time to time
party thereto, Bank of America, N.A., as Administrative Agent and L/C
Issuer to the Revolving Borrowers, certain Swingline Lenders and certain
other L/C Issuers party thereto from time to time, and the other agents
party thereto.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Loan from the date of such Revolving Loan until such
principal amount is paid in full, at such interest rates and at such times
as provided in the Agreement. All payments of principal and interest shall
be made to the Administrative Agent for the account of the Lender in the
currency in which such Loan was denominated in Same Day Funds at the
Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand,
from the due date thereof until the date of actual payment (and before as
well as after judgment) computed at the per annum rate set forth in the
Agreement.
This Revolving Note is one of the Notes referred to in the Agreement,
is entitled to the benefits thereof and may be prepaid in whole or in part
subject to the terms and conditions provided therein. This Revolving Note
is also entitled to the benefits of the Guaranty. Upon the occurrence and
continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Revolving Note shall
become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Revolving Loans made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender
in the ordinary course of business. The Lender may also attach schedules to
this Revolving Note and endorse thereon, among other things, the date,
amount and maturity of its Revolving Loans and payments with respect
thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Revolving Note, except as provided in the
Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
[BORROWER]
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
REVOLVING LOANS AND PAYMENTS WITH RESPECT THERETO
END OF AMOUNT OF
INTEREST PRINCIPAL OR OUTSTANDING
MATURITY TYPE OF LOAN AMOUNT OF PERIOD (IF INTEREST PAID PRINCIPAL NOTATION
DATE CURRENCY DATE MADE LOAN MADE APPLICABLE) THIS DATE BALANCE THIS DATE MADE BY
------------------------------------------------------------------------------------------------------------------------------------
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EXHIBIT C
FORM OF SWINGLINE NOTE
[CURRENCY]__________________ November 7, 2005
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to _______________________, as Swingline Lender, or registered
assigns (the "Swingline Lender"), in accordance with the provisions of the
Agreement (as hereinafter defined), the principal amount of each Swingline
Loan from time to time made by the Swingline Lender to the Borrower under
that certain Amended and Restated Credit Agreement dated as of November 7,
2005 (as the same may be further amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the "Agreement;" the
terms defined therein being used herein as therein defined), among
Xxxxxxx-Xxxxxx International Inc., Xxxxxxx-Xxxxxx Holding AG,
Xxxxxxx-Xxxxxx Management Holding Deutschland GmbH, Xxxxxxx-Xxxxxx B.V., MT
Investment C.V., certain Subsidiary Swingline Borrowers party thereto from
time to time, each lender from time to time party thereto, Bank of America,
N.A., as Administrative Agent and L/C Issuer to the Revolving Borrowers,
certain Swingline Lenders and certain other L/C Issuers party thereto from
time to time, and the other agents party thereto.
The Borrower promises to pay interest on the unpaid principal amount
of each Swingline Loan from the date of such Swingline Loan until such
principal amount is paid in full, at such interest rates and margins, on
the dates, and as otherwise agreed upon by the Borrower and the Swingline
Lender, in accordance with the Agreement. All payments of principal and
interest shall be made to the Swingline Lender for the account of the
Swingline Lender, unless otherwise provided in the Agreement, in the
currency in which the Loan was denominated in Same Day Funds at the office
for payments designated by the Swingline Lender. If any amount is not paid
when due hereunder, such unpaid amount shall bear interest, to be paid upon
demand, from the due date thereof until the date of actual payment (and
before as well as after the judgment) computed at a per annum rate set
forth in the Agreement.
This Swingline Note is one of the Swingline Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole
or in part subject to the terms and conditions provided therein. This
Swingline Note is also entitled to the benefits of the Guaranty. Upon the
occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this
Swingline Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Swingline Loans made by the
Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may
also attach schedules to this Swingline Note and endorse thereon, among
other things, the date, amount and maturity of its Swingline Loans and
payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Swingline Note, except as provided in the
Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
[APPLICABLE SUBSIDIARY SWINGLINE BORROWER]
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SWINGLINE LOANS AND PAYMENTS WITH RESPECT THERETO
END OF AMOUNT OF OUTSTANDING
INTEREST PRINCIPAL OR PRINCIPAL
INTEREST MATURITY AMOUNT OF PERIOD (IF INTEREST PAID BALANCE THIS NOTATION
DATE RATE MARGIN CURRENCY DATE LOAN MADE APPLICABLE) THIS DATE DATE MADE BY
------------------------------------------------------------------------------------------------------------------------------------
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EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date:_________ ,
--------------------------------------------------------------------------------
To: Bank of America, N.A., as Administrative Agent
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit
Agreement, dated as of November 7, 2005 (as the same may be further
amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Xxxxxxx-Xxxxxx International Inc.
("Xxxxxxx-Xxxxxx International"), Xxxxxxx-Xxxxxx Holding AG, Xxxxxxx-Xxxxxx
Management Holding Deutschland GmbH, Xxxxxxx-Xxxxxx B.V., MT Investment
C.V., certain Subsidiary Swingline Borrowers party thereto from time to
time, the Lenders from time to time party thereto, Bank of America, N.A.,
as Administrative Agent and L/C Issuer to the Revolving Borrowers, certain
Swingline Lenders and certain other L/C Issuers from time to time party
thereto, and the other agents party thereto.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the _________________________________________ of
Xxxxxxx-Xxxxxx International, and that, as such, he/she is authorized to
execute and deliver this Certificate to the Administrative Agent on the
behalf of Xxxxxxx-Xxxxxx International and its Subsidiaries, and that:
[Use following paragraph 1 for fiscal YEAR-END financial statements]
1. The year-end consolidated audited financial statements required by
Section 6.01(a) of the Agreement for the fiscal year of Xxxxxxx-Xxxxxx
International and its Subsidiaries ended as of the above date, together
with the report and opinion of an independent certified public accountant
required by such section have been delivered in the manner required under
Section 6.01(a) of the Agreement.
[Use following paragraph 1 for fiscal QUARTER-END financial statements]
1. The unaudited consolidated financial statements required by Section
6.01(b) of the Agreement for the fiscal quarter of Xxxxxxx-Xxxxxx
International and its Subsidiaries ended as of the above date have been
delivered in the manner required under Section 6.01(b) of the Agreement.
Such financial statements fairly present the financial condition, results
of operations and cash flows of Xxxxxxx-Xxxxxx International and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision,
a detailed review of the transactions and condition (financial or
otherwise) of Xxxxxxx-Xxxxxx International and its Subsidiaries during the
accounting period covered by the attached financial statements.
3. A review of the activities of Xxxxxxx-Xxxxxx International and its
Subsidiaries during such fiscal period has been made under the supervision
of the undersigned with a view to determining whether during such fiscal
period Xxxxxxx-Xxxxxx International and its Subsidiaries performed and
observed all its Obligations under the Loan Documents, and
[SELECT ONE:]
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD,
XXXXXXX-XXXXXX INTERNATIONAL AND ITS SUBSIDIARIES PERFORMED AND OBSERVED
EACH COVENANT AND CONDITION OF THE LOAN DOCUMENTS APPLICABLE TO IT.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR
OBSERVED AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE
AND STATUS:]
4. The representations and warranties of the Loan Parties contained in
Article V of the Agreement or which are contained in any document furnished
at any time under or in connection with the Loan Documents, are true and
correct in all material respects on and as of the date hereof, except to
the extent that such representations and warranties specifically refer to
an earlier date, in which case they are true and correct in all material
respects as of such earlier date, and except that for purposes of this
Compliance Certificate, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01 of the Agreement, including the
statements in connection with which this Compliance Certificate is
delivered.
5. The financial covenant analyses and information set forth on
Schedule 1 attached hereto are true and accurate on and as of the date of
this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of _______________________, ________________.
XXXXXXX-XXXXXX INTERNATIONAL INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
For the Quarter/Year ended ___________________("Financial Statement Date")
------------------------
SCHEDULE 1
to the Compliance Certificate
($ in 000's)
I. SECTION 7.11(A) CONSOLIDATED INTEREST COVERAGE RATIO.
----------------------------------------- ----------------------------------------------------------------------------------------
Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
0xx Xxxxxxx 0xx Xxxxxxx 0xx Xxxxxxx 0xx Quarter Total Subject
ended ended ended ended Period ended
------- ------- ------ ------ --------
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
A. Consolidated EBITDA for four
consecutive fiscal quarters ending on
the above date ("Subject Period")
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
1. Consolidated Net Income for $ $ $ $ $
Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
2. Consolidated Interest Charges $ $ $ $ $
for Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
3. Provision for income and capital $ $ $ $ $
taxes for Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
4. Depreciation expenses for $ $ $ $ $
Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
5. Amortization expenses for $ $ $ $ $
Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
6. Non-cash items of expenses for $ $ $ $ $
Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
7. Non-cash extraordinary losses $ $ $ $ $
for Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
8. Cash non-recurring items of $ $ $ $ $
expense for Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
9. Cash extraordinary losses for $ $ $ $ $
Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
10. Other non-recurring cash and $ $ $ $ $
non-cash items of income to the
extent such items exceed $5
million in the aggregate
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
11. Maximum Consolidated EBITDA $ $ $ $ $
(Lines I.A.1 + 2 + 3 + 4 + 5 +
6 + 7 + 8 + 9 - 10)
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
12. Lines I.A.8 + 9 $
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
13. 1/9(Lines I.A.1 + 2 + 3 + 4 + 5 $
+ 6 + 7 - 10)
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
14. Consolidated EBITDA (Lines I.A.1 $
+ 2 + 3 + 4 + 5 + 6 + 7 - 10 +
(lesser of Line I.A.12. and
Line I.A.13))
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
B. Consolidated Interest Charges for $ $ $ $ $
Subject Period
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
C. Consolidated Interest Coverage ___ to 1
Ratio (Line I.A.14 / I.B.)
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
Minimum required 3.5 to 1
----------------------------------------- --------------- ----------------- ---------------- ------------------ ------------------
II. SECTION 7.11(B) - CONSOLIDATED LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date: $___________
B. Consolidated EBITDA for Subject Period (Line I.A.14
above): $___________
C. Consolidated Leverage Ratio (Line II.A / Line II.B): ___________ to 1
Maximum permitted: 3.25 to 1
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of
Assignee] (the "Assignee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Amended and Restated Credit
Agreement identified below (the "Credit Agreement"), receipt of a copy of
which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date
inserted by the Administrative Agent as contemplated below (i) all of the
Assignor's rights and obligations as a Lender under the Credit Agreement
and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of
all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including, without limitation, the
Letters of Credit, and the Swingline Loans included in such facilities) and
(ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related
to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i)
and (ii) above being referred to herein collectively as, the "Assigned
Interest"). Such sale and assignment is without recourse to the Assignor
and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an Affiliate/
Approved Fund of [identify Lender](1)]
-------------------------
(1) Select as applicable.
3. Borrower(s): ______________________________
4. Administrative Agent: Bank of America, N.A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: Amended and Restated Credit Agreement, dated as
of November 7, 2005 among Xxxxxxx-Xxxxxx International Inc.
("Xxxxxxx-Xxxxxx International"), Xxxxxxx-Xxxxxx Holding AG,
Xxxxxxx-Xxxxxx Management Holding Deutschland GmbH, Xxxxxxx-Xxxxxx
B.V., MT Investment C.V., certain Subsidiary Swingline Borrowers
party thereto from time to time, the Lenders from time to time
party thereto, Bank of America, N.A., as Administrative Agent and
L/C Issuer to the Revolving Borrowers, certain Swingline Lenders
and certain other L/C Issuers from time to time party thereto, and
the other agents party thereto.
6. Assigned Interest:
------------------------------------- --------------------------------- ----------------------------------
Aggregate Amount of Percentage
Amount of Commitment Assigned of
Commitment Assigned* Commitment/Loans
for all Lenders*
------------------------------------- --------------------------------- ----------------------------------
$________________ $________________ ______________%
------------------------------------- --------------------------------- ----------------------------------
$________________ $________________ ______________%
------------------------------------- --------------------------------- ----------------------------------
$________________ $________________ ______________%
------------------------------------- --------------------------------- ----------------------------------
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
[7. Trade Date: __________________](2)
----------
------------
(2) To be completed if the Assignor and the Assignee intend that the
minimum assignment amount is to be determined as of the Trade Date.
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN
THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby
agreed to:
ASSIGNOR
--------
[NAME OF ASSIGNOR]
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
ASSIGNEE
--------
[NAME OF ASSIGNEE]
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[Consented to and](3) Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
----------
(3) To be added only if the consent of the Administrative Agent is
required by the terms of the Credit Agreement.
[Consented to:](4)
[XXXXXXX-XXXXXX INTERNATIONAL INC.]
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
----------
(4) To be added only if the consent of the Company and/or other parties is
required by the terms of the Credit Agreement.
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i)
it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other
adverse claim and (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and
to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or
any collateral thereunder, (iii) the financial condition of the Loan
Parties, any of the Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or
observance by the Loan Parties, any of the Subsidiaries or Affiliates or
any other Person of any of their respective obligations under any Loan
Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i)
it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under the
Credit Agreement (subject to receipt of such consents as may be required
under the Credit Agreement), (iii) from and after the Effective Date, it
shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 6.01 thereof, as applicable, and
such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it
has made such analysis and decision independently and without reliance on
the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed
by the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but not
excluding the Effective Date and to the Assignee for amounts which have
accrued from and after the Effective Date. The Assignor and the Assignee
shall make all appropriate adjustments in payments by the Administrative
Agent for periods prior to the Effective Date or with respect to the making
of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by, and construed in accordance
with, the Law of the State of New York.
EXHIBIT F
FORM OF SUBSIDIARY SWINGLINE BORROWER
REQUEST AND ASSUMPTION AGREEMENT
--------------------------------------------------------------------------------
Date: ___________, _____
--------------------------------------------------------------------------------
To: Bank of America, N.A., as Administrative Agent
--------------------------------------------------------------------------------
Ladies and Gentlemen:
This Subsidiary Swingline Borrower Request and Assumption Agreement is
made and delivered pursuant to Section 2.14 of that certain Amended and
Restated Credit Agreement, dated as of November 7, 2005 (as the same may be
further amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement"), among Xxxxxxx-Xxxxxx
International Inc. ("Xxxxxxx-Xxxxxx International"), Xxxxxxx-Xxxxxx Holding
AG, Xxxxxxx-Xxxxxx Management Holding Deutschland GmbH, Xxxxxxx-Xxxxxx
B.V., MT Investment C.V., certain Subsidiary Swingline Borrowers party
thereto from time to time, the Lenders from time to time party thereto,
Bank of America, N.A., as Administrative Agent and L/C Issuer to the
Revolving Borrowers, certain Swingline Lenders and certain other L/C
Issuers from time to time party thereto, and the other agents party
thereto, and reference is made thereto for full particulars of the matters
described therein. All capitalized terms used in this Subsidiary Swingline
Borrower Request and Assumption Agreement and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
Each of ______________________ (the "Applicant Borrower") and
Xxxxxxx-Xxxxxx International hereby confirms, represents and warrants to
the Administrative Agent and the Lenders that the Applicant Borrower is a
Subsidiary of Xxxxxxx-Xxxxxx International. The address of the Applicant
Borrower is as follows: _____________________________________.
The documents required to be delivered to the Administrative Agent and
the affected Swingline Lender under Section 2.14 of the Credit Agreement
will be furnished to the Administrative Agent and the affected Swingline
Lender in accordance with the requirements of the Credit Agreement.
The parties hereto hereby confirm that with effect from the date
hereof, the Applicant Borrower shall have obligations, duties and
liabilities toward each of the other parties to the Credit Agreement
identical to those which the Applicant Borrower would have had if the
Applicant Borrower had been an original party to the Credit Agreement as a
Subsidiary Swingline Borrower. The Applicant Borrower confirms its
acceptance of, and consents to, all representations and warranties,
covenants, and other terms and provisions of the Credit Agreement.
The parties hereto hereby request that the Applicant Borrower be
entitled to receive Swingline Loans under the Credit Agreement in the
Subsidiary Currency and having the Subsidiary Currency Sublimit set forth
below, and understand, acknowledge and agree that neither the Applicant
Borrower nor Xxxxxxx-Xxxxxx International on its behalf shall have any
right to request any Swingline Loans for its account unless and until the
date five Business Days after the effective date designated by the
Administrative Agent in a Notice of Designation of Additional Subsidiary
Swingline Borrower, Applicable Subsidiary Currency and Subsidiary Currency
Sublimit delivered to Xxxxxxx-Xxxxxx International and the Swingline Lender
pursuant to Section 2.14 of the Credit Agreement.
-------------------------------------- -----------------------------------------
Name of Subsidiary Swingline Borrower Subsidiary Currency and Sublimit
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
This Subsidiary Swingline Borrower Request and Assumption Agreement
shall constitute a Loan Document under the Credit Agreement.
THIS SUBSIDIARY SWINGLINE BORROWER REQUEST AND ASSUMPTION AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
IN WITNESS WHEREOF, the parties hereto have caused this Subsidiary
Swingline Borrower Request and Assumption Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and
year first above written.
[APPLICANT BORROWER]
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
XXXXXXX-XXXXXX
INTERNATIONAL INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
EXHIBIT G
FORM OF NOTICE OF DESIGNATION OF
ADDITIONAL SUBSIDIARY SWINGLINE BORROWER, APPLICABLE SUBSIDIARY
CURRENCY AND SUBSIDIARY CURRENCY SUBLIMIT
--------------------------------------------------------------------------------
Date: ___________, _____
--------------------------------------------------------------------------------
To: Xxxxxxx-Xxxxxx International Inc. and the Lenders
--------------------------------------------------------------------------------
Ladies and Gentlemen:
This Notice of Designation of Additional Subsidiary Swingline
Borrower, Applicable Subsidiary Currency and Subsidiary Currency Sublimit
is made and delivered pursuant to Section 2.14 of that certain Amended and
Restated Credit Agreement, dated as of November 7, 2005 (as the same may be
further amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement"), among Xxxxxxx-Xxxxxx
International Inc. ("Xxxxxxx-Xxxxxx International"), Xxxxxxx-Xxxxxx Holding
AG, Xxxxxxx-Xxxxxx Management Holding Deutschland GmbH, Xxxxxxx-Xxxxxx
B.V., MT Investment C.V., certain Subsidiary Swingline Borrowers party
thereto from time to time, the Lenders from time to time party thereto,
Bank of America, N.A., as Administrative Agent and L/C Issuer to the
Revolving Borrowers, and certain Swingline Lenders and certain other L/C
Issuers from time to time party thereto, and the other agents party
thereto, and reference is made thereto for full particulars of the matters
described therein. All capitalized terms used in this Notice of Designation
of Additional Subsidiary Swingline Borrower, Applicable Subsidiary Currency
and Subsidiary Currency Sublimit and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
The Administrative Agent hereby notifies Xxxxxxx-Xxxxxx International
and the Lenders that effective as of the date hereof the following
Subsidiary shall be a Subsidiary Swingline Borrower with the following
Subsidiary Currency Sublimit and may receive Swingline Loans in the
following Subsidiary Currency for its account on the terms and conditions
set forth in the Credit Agreement:
-------------------------------------- -----------------------------------------
Name of Subsidiary Swingline Borrower Subsidiary Currency and Sublimit
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
This Notice of Designation of Additional Subsidiary Swingline
Borrower, Applicable Subsidiary Currency and Subsidiary Currency Sublimit
shall constitute a Loan Document under the Credit Agreement.
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
EXHIBIT H
FORMS OF OPINIONS
[OPINIONS FOR COUNSEL FOR REVOLVING BORROWERS IN FORMS TO BE AGREED]
EXHIBIT I
FORM OF SUBSIDIARY SWINGLINE
BORROWER SUBLIMIT ADJUSTMENT CONSENT
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Date: ___________, _____
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Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit
Agreement, dated as of November 7, 2005 (as the same may be further
amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Xxxxxxx-Xxxxxx International Inc.
("Xxxxxxx-Xxxxxx International"), Xxxxxxx-Xxxxxx Holding AG, Xxxxxxx-Xxxxxx
Management Holding Deutschland GmbH, Xxxxxxx-Xxxxxx B.V., MT Investment
C.V., certain Subsidiary Swingline Borrowers party thereto from time to
time, the Lenders from time to time party thereto, Bank of America, N.A.,
as Administrative Agent and L/C Issuer to the Revolving Borrowers, and
certain Swingline Lenders and certain other L/C Issuers from time to time
party thereto, and the other agents party thereto.
Xxxxxxx-Xxxxxx International hereby requests on behalf of the
Subsidiary Swingline Borrowers set forth below, that the Subsidiary
Currency Sublimits for such Subsidiary Swingline Borrowers be adjusted,
which adjustment(s) shall be effective upon the required consents, as set
forth below:
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Name of Subsidiary Swingline Borrower Subsidiary Currency and Requested Sublimit
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Xxxxxxx-Xxxxxx International hereby represents and warrants that the
adjustment to the Subsidiary Swingline Sublimit complies with the
requirements in the definition of the "Subsidiary Swingline Borrower
Sublimit" and with the provisions of the Agreement.
This Subsidiary Swingline Borrower Sublimit Adjustment Consent shall
constitute a Loan Document under the Credit Agreement.
[Signature Page Follows]
XXXXXXX-XXXXXX INTERNATIONAL INC.
By:
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Name:
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Title:
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Consented to:
[SWINGLINE LENDER]
By:
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Name:
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Title:
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[This Consent is being presented pursuant to the last sentence of
[Section 2.03(c)(v)] [Section 2.04(e)(iv)] of the Agreement.
Xxxxxxx-Xxxxxx International hereby requests on behalf of the
Subsidiary Swingline Borrowers that the aggregate Subsidiary Swingline
Borrower Sublimit be adjusted to $____________ effective upon the consent
of the Administrative Agent.
Xxxxxxx-Xxxxxx International hereby requests the consent of the
Administrative Agent to the adjustment to the Subsidiary Currency Sublimit
set forth in the second paragraph of this Consent.
Consented to:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
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Name:
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Title: ]
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EXHIBIT J
FORM OF SWINGLINE LOAN CALCULATION DATE NOTICE
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Date: ___________, _____
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To: Bank of America, N.A., as Administrative Agent
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Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit
Agreement, dated as of November 7, 2005 (as the same may be further
amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Xxxxxxx-Xxxxxx International Inc.
("Xxxxxxx-Xxxxxx International"), Xxxxxxx-Xxxxxx Holding AG, Xxxxxxx-Xxxxxx
Management Holding Deutschland GmbH, Xxxxxxx-Xxxxxx B.V., MT Investment
C.V., certain Subsidiary Swingline Borrowers party thereto from time to
time, the Lenders from time to time party thereto, Bank of America, N.A.,
as Administrative Agent and L/C Issuer to the Revolving Borrowers, and
certain Swingline Lenders and certain other L/C Issuers from time to time
party thereto, and the other agents party thereto.
Pursuant to Section 2.05(c) of the Agreement, ____________________, a
Swingline Lender under the Agreement (the "Applicable Swingline Lender"),
hereby gives you notice of the aggregate Outstanding Amount (calculated in
the applicable Subsidiary Currency) of all Subsidiary L/C Obligations and
all Swingline Loans of the Subsidiary Swingline Borrower to whom the
Applicable Swingline Lender makes Swingline Loans (without application of
the Assumed Swingline Loan Amount):
1. The Subsidiary Swingline Borrower to whom Swingline Loans are made:
____________.
2. Subsidiary Currency in which such Swingline Loans are made:
___________________.
3. Outstanding principal amount of all Subsidiary L/C Obligations to such
Subsidiary Swingline Borrower calculated in the applicable Subsidiary
Currency: ________________________.
4. Outstanding principal amount of all Swingline Loans to such Subsidiary
Swingline Borrower calculated in the applicable Subsidiary Currency:
________________________.
This Swingline Loan Calculation Date Notice shall constitute a Loan
Document under the Credit Agreement.
[SWINGLINE LENDER]
By:
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Name:
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Title:
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EXHIBIT K
FORM OF NOTICE OF SWINGLINE LOAN AMOUNTS
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Date: ___________, _____
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To: Xxxxxxx-Xxxxxx International Inc. and the Lenders
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Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit
Agreement, dated as of November 7, 2005 (as the same may be further
amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Xxxxxxx-Xxxxxx International Inc.
("Xxxxxxx-Xxxxxx International"), Xxxxxxx-Xxxxxx Holding AG, Xxxxxxx-Xxxxxx
Management Holding Deutschland GmbH, Xxxxxxx-Xxxxxx B.V., MT Investment
C.V., certain Subsidiary Swingline Borrowers party thereto from time to
time, the Lenders from time to time party thereto, Bank of America, N.A.,
as Administrative Agent and L/C Issuer to the Revolving Borrowers and
certain Swingline Lenders and certain other L/C Issuers from time to time
party thereto, and the other agents party thereto.
The Administrative Agent hereby notifies Xxxxxxx-Xxxxxx International
and the Lenders that, pursuant to Section 2.05(c) of the Agreement, the
aggregate Outstanding Amount of all Subsidiary L/C Obligations and all
Swingline Loans of all of the Subsidiary Swingline Borrowers (in each case,
without application of the Assumed Swingline Loan Amount) is
$__________________.
This Notice of Swingline Loan Amounts shall constitute a Loan Document
under the Credit Agreement.
BANK OF AMERICA, N.A.
as Administrative Agent
By:
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Name:
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Title:
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