AMENDED AND RESTATED CREDIT AGREEMENT
EXECUTION
COPY
AMENDED
AND RESTATED CREDIT AGREEMENT
Dated
as
of February 16, 2007
(amending
and restating the Credit Agreement dated
as
of
July 28, 2005)
among
XXXXXXX
NAVIGATION LIMITED,
as
the
Company,
THE
SUBSIDIARY BORROWERS,
THE
INSTITUTIONS FROM TIME TO TIME
PARTIES
HERETO AS LENDERS,
THE
BANK
OF NOVA SCOTIA,
as
Administrative Agent, Issuing Bank and Swing Line Bank,
CITIBANK,
N.A.,
and
BMO
CAPITAL MARKETS,
as
Co-Syndication Agents,
and
BANK
OF
AMERICA, N.A.
and
XXXXX
FARGO BANK, N.A.,
as
Co-Documentation Agents.
___________________________________________
THE
BANK
OF NOVA SCOTIA,
as
Sole
Lead Arranger and Sole Book Runner
TABLE
OF CONTENTS
(continued)
Page
ARTICLE
I DEFINITIONS
|
2
|
|
1.1
|
Certain
Defined Terms
|
2
|
1.2
|
Terms
Generally
|
29
|
1.3
|
References
|
29
|
ARTICLE
II
LOAN FACILITIES
|
29
|
|
2.1
|
Revolving
Loans
|
29
|
2.2
|
[Intentionally
Omitted.]
|
30
|
2.3
|
Swing
Line Loans
|
30
|
2.4
|
Term
Loans
|
32
|
2.5
|
Rate
Options for all Advances; Maximum Interest Periods
|
33
|
2.6
|
Prepayments
|
34
|
2.7
|
Reductions
of Commitments
|
35
|
2.8
|
Method
of Borrowing
|
35
|
2.9
|
Method
of Selecting Types and Interest Periods for Advances
|
36
|
2.10
|
Minimum
Amount of Each Advance
|
36
|
2.11
|
Method
of Selecting Types and Interest Periods for Conversion and Continuation
of
Advances
|
36
|
2.12
|
Default
Rate
|
38
|
2.13
|
Method
of Payment
|
38
|
2.14
|
Evidence
of Debt
|
39
|
2.15
|
Telephonic
Notices
|
40
|
2.16
|
Promise
to Pay; Interest and Fees; Interest Payment Dates; Interest and
Fee Basis;
Taxes
|
40
|
2.17
|
Notification
of Advances, Interest Rates, Prepayments and Aggregate Revolving
Loan
Commitment Reductions
|
45
|
2.18
|
Lending
Installations
|
45
|
2.19
|
Non-Receipt
of Funds by the Administrative Agent
|
45
|
2.20
|
Termination
Date
|
46
|
2.21
|
Replacement
of Certain Lenders
|
46
|
2.22
|
Subsidiary
Borrowers
|
47
|
2.23
|
Alternate
Currency Loans
|
48
|
2.24
|
Judgment
Currency
|
51
|
2.25
|
Market
Disruption; Denomination of Amounts in Dollars; Dollar Equivalent
of
Reimbursement Obligations
|
51
|
ARTICLE
III THE
LETTER OF CREDIT FACILITY
|
52
|
|
3.1
|
Obligation
to Issue Letters of Credit
|
52
|
3.2
|
Existing
Letters of Credit
|
53
|
3.3
|
Types
and Amounts
|
53
|
-ii-
TABLE
OF CONTENTS
(continued)
Page
3.4
|
Conditions
|
53
|
3.5
|
Procedure
for Issuance of Letters of Credit
|
54
|
3.6
|
Letter
of Credit Participation
|
54
|
3.7
|
Reimbursement
Obligation
|
54
|
3.8
|
Letter
of Credit Fees
|
56
|
3.9
|
Issuing
Bank Reporting Requirements
|
56
|
3.10
|
Indemnification;
Exoneration
|
56
|
3.11
|
Cash
Collateral
|
58
|
ARTICLE
IV
CHANGE IN CIRCUMSTANCES
|
58
|
|
4.1
|
Yield
Protection
|
58
|
4.2
|
Changes
in Capital Adequacy Regulations
|
59
|
4.3
|
Availability
of Types of Advances
|
60
|
4.4
|
Funding
Indemnification
|
60
|
4.5
|
Lender
Statements; Survival of Indemnity
|
60
|
ARTICLE
V
CONDITIONS PRECEDENT
|
61
|
|
5.1
|
[Intentionally
Omitted.]
|
61
|
5.2
|
Advances
on the Funding Date
|
61
|
5.3
|
Initial
Advance to Each New Subsidiary Borrower
|
63
|
5.4
|
Each
Advance and Each Letter of Credit
|
64
|
ARTICLE
VI
REPRESENTATIONS AND
WARRANTIES
|
65
|
|
6.1
|
Organization;
Corporate Powers
|
65
|
6.2
|
Authorization
and Validity
|
65
|
6.3
|
No
Conflict; Government Consent
|
65
|
6.4
|
Financial
Statements
|
65
|
6.5
|
Material
Adverse Change
|
66
|
6.6
|
Taxes
|
66
|
6.7
|
Litigation
and Contingent Obligations
|
66
|
6.8
|
Subsidiaries
|
66
|
6.9
|
ERISA
|
66
|
6.10
|
Accuracy
of Information
|
67
|
6.11
|
Regulation
U
|
67
|
6.12
|
Material
Agreements
|
67
|
6.13
|
Compliance
With Laws
|
67
|
6.14
|
Ownership
of Properties
|
68
|
6.15
|
Statutory
Indebtedness Restrictions
|
68
|
6.16
|
Environmental
Matters
|
68
|
6.17
|
Insurance
|
68
|
-iii-
TABLE
OF CONTENTS
(continued)
Page
6.18
|
Labor
Matters
|
69
|
6.19
|
Solvency
|
69
|
6.20
|
Default
|
69
|
6.21
|
Foreign
Employee Benefit Matters
|
69
|
6.22
|
Representations
and Warranties of each Subsidiary Borrower
|
69
|
ARTICLE
VII
COVENANTS
|
71
|
|
7.1
|
Reporting
|
71
|
7.2
|
Affirmative
Covenants
|
74
|
7.3
|
Negative
Covenants
|
77
|
7.4
|
Financial
Covenants
|
85
|
ARTICLE
VIII DEFAULTS
|
85
|
|
8.1
|
Defaults
|
85
|
ARTICLE
IX
ACCELERATION, DEFAULTING
LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
|
87
|
|
9.1
|
Termination
of Commitments; Acceleration
|
87
|
9.2
|
Amendments
|
88
|
9.3
|
Preservation
of Rights
|
89
|
ARTICLE
X
GUARANTY
|
89
|
|
10.1
|
Guaranty
|
89
|
10.2
|
Waivers
|
89
|
10.3
|
Guaranty
Absolute
|
89
|
10.4
|
Acceleration
|
90
|
10.5
|
Marshaling;
Reinstatement
|
91
|
10.6
|
Subrogation
|
91
|
10.7
|
Termination
Date
|
91
|
ARTICLE
XI
GENERAL PROVISIONS
|
91
|
|
11.1
|
Survival
of Representations
|
91
|
11.2
|
Governmental
Regulation
|
91
|
11.3
|
Headings
|
92
|
11.4
|
Entire
Agreement
|
92
|
11.5
|
Several
Obligations; Benefits of this Agreement
|
92
|
11.6
|
Expenses;
Indemnification
|
92
|
11.7
|
Numbers
of Documents
|
93
|
-iv-
TABLE
OF CONTENTS
(continued)
Page
11.8
|
Accounting
|
93
|
11.9
|
Severability
of Provisions
|
93
|
11.10
|
Nonliability
of Lenders
|
93
|
11.11
|
GOVERNING
LAW
|
93
|
11.12
|
CONSENT
TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL
|
94
|
11.13
|
Other
Transactions
|
95
|
11.14
|
Effect
of Amendment and Restatement of the Existing Credit
Agreement
|
95
|
11.15
|
Patriot
Act
|
96
|
ARTICLE
XII THE
ADMINISTRATIVE AGENT
|
96
|
|
12.1
|
Appointment;
Nature of Relationship
|
96
|
12.2
|
Powers
|
97
|
12.3
|
General
Immunity
|
97
|
12.4
|
No
Responsibility for Loans, Creditworthiness, Recitals, Etc
|
97
|
12.5
|
Action
on Instructions of Lenders
|
98
|
12.6
|
Employment
of Agents and Counsel
|
98
|
12.7
|
Reliance
on Documents; Counsel
|
98
|
12.8
|
The
Administrative Agent’s, Issuing Banks’, Alternate Currency Lenders’ and
Swing Line Bank’s Reimbursement and Indemnification
|
98
|
12.9
|
Rights
as a Lender
|
99
|
12.10
|
Lender
Credit Decision
|
99
|
12.11
|
Successor
Administrative Agent
|
99
|
12.12
|
No
Duties Imposed Upon Co-Syndication Agents, Co-Documentation Agents
or
Arranger
|
100
|
ARTICLE
XIII SETOFF;
RATABLE PAYMENTS
|
100
|
|
13.1
|
Setoff
|
100
|
13.2
|
Ratable
Payments
|
100
|
13.3
|
Application
of Payments
|
101
|
13.4
|
Relations
Among Lenders
|
101
|
ARTICLE
XIV BENEFIT OF
AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
|
101
|
|
14.1
|
Successors
and Assigns
|
101
|
14.2
|
Participations
|
102
|
14.3
|
Assignments
|
103
|
14.4
|
Confidentiality
|
106
|
14.5
|
Dissemination
of Information
|
106
|
-v-
TABLE
OF CONTENTS
(continued)
Page
ARTICLE
XV
NOTICES
|
106
|
|
15.1
|
Giving
Notice
|
106
|
15.2
|
Change
of Address
|
106
|
15.3
|
Authority
of Company
|
106
|
ARTICLE
XVI COUNTERPARTS
|
107
|
ANNEXES,
EXHIBITS AND SCHEDULES
ANNEX
I
|
Loan
Commitments
|
|
ANNEX
II
|
Eurocurrency
Payment Offices
|
|
EXHIBIT
A
|
Form
of Borrowing/Conversion/Continuation Notice
|
|
EXHIBIT
B
|
Form
of Request for Letter of Credit
|
|
EXHIBIT
C
|
Form
of Assignment and Acceptance Agreement
|
|
EXHIBIT
D
|
Form
of Officer’s Certificate
|
|
EXHIBIT
E
|
Form
of Compliance Certificate
|
|
EXHIBIT
F
|
Form
of Subordination Agreement
|
|
EXHIBIT
G-1
|
Form
of Revolving Loan Note
|
|
EXHIBIT
G-2
|
Form
of Term Loan Note
|
|
EXHIBIT
H
|
Form
of Assumption Letter
|
|
EXHIBIT
I
|
Alternate
Currency Addendum
|
|
SCHEDULE
1.1.1
|
Mandatory
Cost Formulae
|
|
SCHEDULE
2.13
|
Lender
Contact Information and Wire
Instructions
|
-vi-
AMENDED
AND RESTATED CREDIT AGREEMENT
This
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 16, 2007, amending
and restating the Credit Agreement dated as of July 28, 2005, is entered
into by
and among, XXXXXXX NAVIGATION LIMITED, a California corporation (the
“Company”), the Subsidiary Borrowers (capitalized terms used in this
preamble and the following recitals that are not otherwise defined shall
have
the meanings assigned thereto in Section 1.1 below) party hereto, the
institutions from time to time parties hereto as Lenders, whether by execution
of this Agreement or an Assignment Agreement pursuant to
Xxxxxxx 00.0, XXX XXXX XX XXXX XXXXXX (“BNS”), in its
capacity as administrative agent for itself and the other Lenders (the
“Administrative Agent”), CITIBANK, N.A. and BMO CAPITAL MARKETS, each in
its capacity as a co-syndication agent (collectively, the “Co-Syndication
Agents”), and BANK OF AMERICA, N.A. and XXXXX FARGO BANK, N.A., each in its
capacity as a co-documentation agent (collectively, the “Co-Documentation
Agents”).
R
E C I T
A L S:
A. Pursuant
to the Credit Agreement, dated as of July 28, 2005 (the “Existing Credit
Agreement”), among the Company, the Subsidiary Borrowers party thereto, the
various financial institutions parties thereto (collectively, the “Existing
Lenders”), the Administrative Agent, the Co-Syndication Agents, and the
Co-Documentation Agents, the Existing Lenders made financial accommodations
to
the Company and the other Borrowers in the aggregate principal amount of
$200,000,000, the proceeds of which the Company will use for ongoing working
capital and general corporate needs of the Company and its Subsidiaries,
including acquisitions.
B. The
Company, Merger Sub and @Road, Inc., a Delaware corporation (“ARDI”) have
entered into an agreement and plan of merger, dated as of December 10, 2006
(as
amended, supplemented, amended and restated, or otherwise modified from time
to
time in accordance with the provisions hereof and thereof, the “Merger
Agreement”), whereby with the requisite consent of the existing shareholders
of ARDI, Merger Sub will merge (the “Merger”) with and into ARDI, with
ARDI surviving the Merger and being a Wholly-Owned Subsidiary of the
Company.
C. Pursuant
to the Consent to Certain Amendments to the Credit Agreement, dated as of
February 16, 2007, among the Company, the Subsidiary Borrowers party thereto
and
the Lenders party thereto, the Company requested that the Existing Lenders
consent, and the Lenders provided their consent, to the Merger and to amend
certain provisions of the Existing Credit Agreement, pursuant to the terms
of
this Agreement.
D. The
Company has requested the Lenders to extend commitments under this Agreement
to
make additional revolving loans to the Borrowers in an aggregate principal
amount not to exceed $100,000,000 and term loans in an aggregate principal
amount not to exceed $100,000,000 to be used (i) to consummate the Merger,
(ii)
to pay fees and expenses incurred by the Borrowers in connection with the
foregoing and (iii) for general corporate purposes of the
Borrowers.
1
E. The
Lenders are willing to extend such commitments on the terms and conditions
set
forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and undertakings herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the Lenders
and the
Administrative Agent hereby agree as follows:
ARTICLE
I
DEFINITIONS
1.1 Certain
Defined Terms. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms
defined.
“Acquisition”
means any transaction, or any series of related transactions, consummated
on or
after the Closing Date, by which the Company or any of its Subsidiaries (a)
acquires any going business concern or all or substantially all of the assets
of
any firm, corporation or division thereof, whether through purchase of assets,
merger or otherwise or (b) directly or indirectly acquires (in one transaction
or as the most recent transaction in a series of transactions) at least a
majority (in number of votes) of the securities of a corporation which have
ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency) or a
majority (by percentage of voting power) of the outstanding equity interests
of
another Person.
“Administrative
Agent” is defined in the preamble and includes each other Person
appointed as the successor Administrative Agent pursuant to Section
12.11.
“Advance”
means a borrowing hereunder consisting of the aggregate amount of the several
Loan(s) made by some or all of the Lenders to the applicable Borrower of
the
same Type and, in the case of Fixed Rate Advances for the same Interest Period
and in the case of Alternate Currency Loans, in the same currency.
“Affected
Lender” is defined in Section 2.21.
“Affiliate”
means, with respect to a Person, any other Person directly or indirectly
controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the
controlling Person is the “beneficial owner” (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of greater than ten percent (10%) or more
of
any class of voting securities (or other voting interests) of the controlled
Person or possesses, directly or indirectly, the power to direct or cause
the
direction of the management or policies of the controlled Person, whether
through ownership of Capital Stock, by contract or otherwise.
“Affirmation
and Consent” means the Affirmation and Consent, dated as of the Amendment
Effective Date, executed and delivered by each Obligor party to a Guaranty
prior
to the Amendment Effective Date, in form and substance satisfactory to the
Administrative Agent.
2
“Aggregate
Revolving Loan Commitment” means the aggregate of the Revolving Loan
Commitments of all Lenders, as they may be adjusted from time to time pursuant
to the terms hereof. The Aggregate Revolving Loan Commitment as of
the Amendment Effective Date shall not be greater than Three Hundred Million
Dollars ($300,000,000).
“Agreed
Currencies” means (a) Dollars, (b) so long as such
currency remains an Eligible Currency, Euro, Swedish Krona and New Zealand
Dollars and (c) any other Eligible Currency which the applicable Borrower
requests the Administrative Agent to include as an Agreed Currency hereunder
and
which is agreed to by all of the Lenders; provided that the
Administrative Agent shall promptly notify each such Lender of each such
request
and each such Lender shall be deemed not to have agreed to each such request
unless and until its written consent thereto has been received by the
Administrative Agent.
“Agreement”
means, on any date, the Existing Credit Agreement, as amended and restated
on
the Amendment Effective Date and as the same may thereafter be further amended,
supplemented, amended and restated or otherwise modified from time to time
and
in effect on such date.
“Agreement
Accounting Principles” means generally accepted accounting principles of the
United States as applied in a manner consistent with that used in preparing
the
financial statements of the Company referred to in Section 6.4;
provided that for the purposes of determining compliance with the
financial covenants set forth in Section 7.4, “Agreement Accounting
Principles” means generally accepted accounting principles as in effect as of
the Closing Date.
“Alternate
Base Rate” means, for any day, a fluctuating rate of interest per annum
equal to in the case of Loans in Dollars, the higher of (a) the Prime Rate
for
such day and (b) the sum of (i) the Federal Funds Effective Rate for such
day
and (ii) one half percent (.50%) per annum, and in the case of Loans in other
Agreed Currencies, the comparable rate for such other Agreed Currency, as
reasonably determined by the Administrative Agent.
“Alternate
Currency” shall mean any Eligible Currency which is not an Agreed Currency
and which the applicable Borrower requests the applicable Alternate Currency
Lender to include as an Alternate Currency hereunder and which is acceptable
to
the applicable Alternate Currency Lender and with respect to which an Alternate
Currency Addendum has been executed by a Subsidiary Borrower or the Company
and
the applicable Alternate Currency Lender in connection therewith.
“Alternate
Currency Addendum” means an addendum substantially in the form of Exhibit
I hereto with such modifications thereto as shall be approved by the
applicable Alternate Currency Lender and the Administrative Agent.
“Alternate
Currency Borrowing” means any borrowing consisting of a Loan made in an
Alternate Currency.
3
“Alternate
Currency Commitment” means, for any Alternate Currency Lender for each
Alternate Currency, the obligation of such Alternate Currency Lender to make
Alternate Currency Loans not exceeding the Dollar Amount set forth in the
applicable Alternate Currency Addendum, as such amount may be modified from
time
to time pursuant to the terms of this Agreement and the applicable Alternate
Currency Addendum.
“Alternate
Currency Fixed Rate” means, for any Alternate Currency Fixed Rate Loan, for
any Alternate Currency Interest Period the per annum rate of interest under
and
as set forth in the applicable Alternate Currency Addendum.
“Alternate
Currency Fixed Rate Loans” means any Loan denominated in an Alternate
Currency made by the applicable Alternate Currency Lender to a Subsidiary
Borrower or the Company pursuant to Section 2.23 and an Alternate
Currency Addendum, which bears interest at the Alternate Currency Fixed
Rate.
“Alternate
Currency Floating Rate Loan” means any Loan denominated in an Alternate
Currency made by the applicable Alternate Currency Lender to a Subsidiary
Borrower or the Company pursuant to Section 2.23 and an Alternate
Currency Addendum, which bears interest at the Floating Rate.
“Alternate
Currency Interest Period” means, with respect to any Alternate Currency
Fixed Rate Loan, the Interest Period as set forth in, or determined in
accordance with, the applicable Alternate Currency Addendum.
“Alternate
Currency Lender” means BNS and any other Lender (or any Affiliate, branch or
agency thereof) to the extent it is party to an Alternate Currency Addendum
as
the “Alternate Currency Lender” thereunder. If any agency, branch or
Affiliate of such Lender shall be a party to an Alternate Currency Addendum,
such agency, branch or Affiliate shall, to the extent of any commitment extended
and any Loans made by it, have all the rights of such Lender hereunder;
provided that such Lender shall to the exclusion of such agency, branch
or Affiliate, continue to have all the voting rights vested in it by the
terms
hereof.
“Alternate
Currency Loan” means any Alternate Currency Floating Rate Loan and any
Alternate Currency Fixed Rate Loan.
“Amendment
Effective Date” means the date on which this Amended and Restated Credit
Agreement becomes effective pursuant to Article XVI.
“Applicable
Commitment Fee Percentage” means, as at any date of determination, the rate
per annum then applicable in the determination of the amount payable under
Section 2.16(c)(i) determined in accordance with the provisions of
Section 2.16(d)(ii).
“Applicable
Fixed Rate Margin” means, as at any date of determination, the rate per
annum then applicable to Fixed Rate Loans determined in accordance with the
provisions of Section 2.16(d)(ii)plus (in the case of a Fixed Rate
Loan of any Lender which is lent from the Lending Installation in the United
Kingdom or a Participating Member State) the Mandatory Costs (if
any).
4
“Applicable
Floating Rate Margin” means, as at any date of determination, the rate per
annum then applicable to Floating Rate Loans determined in accordance with
the
provisions of Section 2.16(d)(ii).
“Applicable
L/C Fee Percentage” means, as at any date of determination, a rate per annum
equal to the Applicable Fixed Rate Margin for Fixed Rate Loans in effect
on such
date.
“Approved
Fund” means, with respect to any Lender that is a fund or commingled
investment vehicle that invests in commercial loans, any other fund that
invests
in commercial loans and is managed or advised by the same investment advisor
as
such Lender or by an Affiliate of such investment advisor.
“Approximate
Equivalent Amount” of any currency with respect to any amount of Dollars
shall mean the Equivalent Amount of such currency with respect to such amount
of
Dollars at such date, rounded up to the nearest amount of such currency as
determined by the Administrative Agent from time to time.
“ARDI”
is defined in Recital B.
“Arranger”
means BNS in its capacity as sole lead arranger for the loan transaction
evidenced by this Agreement.
“Asset
Sale” means, with respect to any Person, the sale, lease, conveyance,
disposition or other transfer by such Person of any of its assets (including
by
way of a sale-leaseback transaction) to any Person other than the Company
or any
of its Wholly-Owned Subsidiaries other than (a) the sale or lease of Inventory
in the ordinary course of business, (b) the sale or other disposition of
any
obsolete, excess, damaged or worn-out Equipment disposed of in the ordinary
course of business, (c) the sale or liquidation of Cash Equivalents, (d)
dispositions or transfers in the nature of a license or sublicense of
intellectual property, other than licenses that are exclusive across all
regions
and fields, (e) other sales, dispositions, leases, conveyances or transfers
in
the ordinary course of business, consistent with past practices, (f) the
granting of Liens permitted by Section 7.3(b), (g) the surrender or
waiver of litigation rights or settlement, release or surrender of tort or
other
litigation claims of any kind, and (h) any issuance of Capital Stock by a
Subsidiary to the Company or to another Subsidiary not prohibited
hereunder.
“Assigning
Lender” is defined in Section 14.3.
“Assignment
Agreement” means an assignment and acceptance agreement entered into in
connection with an assignment pursuant to Section 14.3 in substantially
the form of Exhibit C hereto.
“Assumption
Letter” means a letter of a Subsidiary of the Company addressed to the
Lenders in substantially the form of Exhibit H hereto pursuant to which
such Subsidiary agrees to become a Subsidiary Borrower and agrees to be bound
by
the terms and conditions hereof.
“Authorized
Officer” means any of the Chairman of the Board, the President, the
Treasurer, any Vice President or the Chief Financial Officer of the Company,
acting singly.
5
“Availability”
means, at any particular time, the amount by which (a) the Aggregate Revolving
Loan Commitment at such time exceeds (b) the Revolving Credit Obligations
outstanding at such time.
“Benefit
Plan” means a defined benefit plan as defined in Section 3(35) of ERISA
(other than a Multiemployer Plan or a Foreign Employee Benefit Plan) and
in
respect of which the Company or any other member of the Controlled Group
is, or
within the immediately preceding six (6) years was, an “employer” as defined in
Section 3(5) of ERISA.
“BNS”
is defined in the preamble.
“Borrower”
means, as applicable, any of the Company and the Subsidiary Borrowers, together
with their respective successors and assigns; and “Borrowers” shall mean,
collectively, the Company and the Subsidiary Borrowers.
“Borrowing/Conversion/Continuation
Notice” is defined in Section 2.9.
“Borrowing
Date” means a date on which a Loan is made hereunder.
“Business
Day” means (a) with respect to any borrowing, payment or rate selection of
Loans bearing interest at the Eurocurrency Rate, a day (other than a Saturday
or
Sunday) on which banks are open for business in Chicago, Illinois, New York,
New
York and San Francisco, California and (i) in addition, for Loans denominated
in
Agreed Currencies (other than Euro), a day (other than a Saturday or Sunday)
on
which dealings in Dollars and the other applicable Agreed Currencies are
carried
on in the London interbank market and (ii) in addition, for Loans denominated
in
Euro, a day (other than a Saturday or Sunday) on which dealings in Euro are
carried on in Brussels, Belgium interbank market and (b) for all other purposes
a day (other than a Saturday or Sunday) on which banks are open for business
in
Chicago, Illinois, Xxx Xxxx, Xxx Xxxx xxx Xxx Xxxxxxxxx,
Xxxxxxxxxx.
“Capital
Expenditures” means, without duplication, any expenditures for any purchase
or other acquisition of any asset which would be classified as a fixed or
capital asset on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with Agreement Accounting Principles
excluding (a) the cost of assets acquired with Capitalized Lease
Obligations, (b) expenditures of insurance proceeds to rebuild or replace
any asset after a casualty loss and (c) leasehold improvement expenditures
for which the Company or a Subsidiary is reimbursed promptly by the
lessor.
“Capital
Stock” means (a) in the case of a corporation, corporate stock, (b) in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (c) in the case of a partnership, partnership interests (whether general
or limited) and (d) 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; provided that “Capital Stock” shall not
include any debt securities convertible into equity securities prior to such
conversion.
6
“Capitalized
Lease” of a Person means any lease of property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.
“Capitalized
Lease Obligations” of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be capitalized on a balance sheet
of
such Person prepared in accordance with Agreement Accounting
Principles.
“Cash
Equivalents” means (a) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States and backed
by
the full faith and credit of the United States government; (b) domestic and
Eurocurrency certificates of deposit and time deposits, bankers’ acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A-
(or
better) by Standard & Poor’s Ratings Group or A3 (or better) by Xxxxx’x
Investors Services, Inc., and which certificates of deposit and time deposits
are fully protected against currency fluctuations for any such deposits with
a
term of more than ninety (90) days; (c) shares of money market, mutual or
similar funds having assets in excess of $100,000,000 and the investments
of
which are limited to (i) investment grade securities (i.e., securities rated
at
least Baa by Xxxxx’x Investors Service, Inc. or at least BBB by Standard &
Poor’s Ratings Group) and (ii) commercial paper of United States and foreign
banks and bank holding companies and their subsidiaries and United States
and
foreign finance, commercial industrial or utility companies which, at the
time
of acquisition, are rated A-1 (or better) by Standard & Poor’s Ratings Group
or P-1 (or better) by Xxxxx’x Investors Services, Inc. (all such institutions
being, “Qualified Institutions”); (d) commercial paper of Qualified
Institutions; provided that the maturities of such Cash Equivalents shall
not exceed three hundred sixty-five (365) days from the date of acquisition
thereof and (e) other Investments properly classified as “cash” or “cash
equivalents” in accordance with Agreement Accounting Principles and made in
accordance with the Company’s investment policy, as approved by the Company’s
Board of Directors from time to time.
“Change”
is defined in Section 4.2.
“Change
of Control” means an event or series of events by which:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act of 1934), becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act of 1934, provided that a person shall be
deemed to have “beneficial ownership” of all securities that such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of thirty-five percent (35%)
or
more of the combined voting power of the Company’s outstanding Capital Stock
ordinarily having the right to vote at an election of directors; or
(b) during
any period of 12 consecutive months, the majority of the board of directors
of
the Company fails to consist of Continuing Directors.
7
“Closing
Date” means July 28, 2005.
“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time.
“Co-Documentation
Agents” is defined in the preamble and includes such Persons’
successors and assigns.
“Commission”
means the Securities and Exchange Commission of the United States of America
and
any Person succeeding to the functions thereof.
“Commitment”
means, as the context may require, the Term Loan Commitment or the Revolving
Loan Commitment.
“Commitment
Amount” means, as the context may require, the Term Loan Commitment Amount
or the Revolving Loan Commitment Amount.
“Commitment
Termination Date” means, as the context may require, the Term Loan
Commitment Termination Date or the Revolving Loan Commitment Termination
Date.
“Commitment
Termination Event” means the occurrence of any event described in Section
9.1 resulting in a termination of the Commitments pursuant to Section
9.1.
“Company”
is defined in the preamble and includes such Person’s successors and
assigns, including a debtor-in-possession on behalf of such Person.
“Consolidated
Net Assets” means the total assets of the Company and its Subsidiaries on a
consolidated basis (determined in accordance with Agreement Accounting
Principles), but excluding therefrom all goodwill and other intangible assets
under Agreement Accounting Principles.
“Contaminant”
means any waste, pollutant, hazardous substance, toxic substance, hazardous
waste, special waste, petroleum or petroleum-derived substance or waste,
asbestos, polychlorinated biphenyls (“PCBs”), or any constituent of any
such substance or waste, and includes but is not limited to these terms as
defined in Environmental, Health or Safety Requirements of Law.
“Contingent
Obligation”, as applied to any Person, means any Contractual Obligation,
contingent or otherwise, of that Person with respect to any Indebtedness
of
another or other obligation or liability of another, including, without
limitation, any such Indebtedness, obligation or liability of another directly
or indirectly guaranteed, endorsed (otherwise than for collection or deposit
in
the ordinary course of business), co-made or discounted or sold with recourse
by
that Person, or in respect of which that Person is otherwise directly or
indirectly liable, including Contractual Obligations (contingent or otherwise)
arising through any agreement to purchase, repurchase, or otherwise acquire
such
Indebtedness, obligation or liability or any security therefor, or to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make
payment other than for value received. The amount of any Contingent
Obligation shall be equal to the portion of the obligation so guaranteed
or
otherwise supported, in the case of known recurring obligations, and the
maximum
reasonably anticipated liability in respect of the portion of the obligation
so
guaranteed or otherwise supported assuming such Person is required to perform
thereunder, in all other cases.
8
“Continuing
Director” means, with respect to any Person as of any date of determination,
any member of the board of directors of such Person who (a) was a member
of such
board of directors on the date hereof or (b) was nominated for election or
elected to such board of directors with the approval of the Continuing Directors
who were members of such board at the time of such nomination or
election.
“Contractual
Obligation”, as applied to any Person, means any provision of any equity or
debt securities issued by that Person or any indenture, mortgage, deed of
trust,
security agreement, pledge agreement, guaranty, contract, undertaking, agreement
or instrument, in any case in writing, to which that Person is a party or
by
which it or any of its properties is bound, or to which it or any of its
properties is subject.
“Controlled
Group” means the group consisting of (a) any corporation which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Company; (b) a partnership or other
trade or business (whether or not incorporated) which is under common control
(within the meaning of Section 414(c) of the Code) with the Company; and
(c) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Company, in each case ((a), (b) or (c))
giving effect to the consummation of the transactions contemplated by the
Loan
Documents.
“Convertible
Indebtedness” means Indebtedness convertible into Capital Stock of the
Company or any of its Subsidiaries at the option of the holder
thereof.
“Co-Syndication
Agents” is defined in the preamble and includes such Persons’
successors and assigns.
“Default”
means an event described in Article VIII.
“Disclosure
Letter” means that certain Disclosure Letter, dated as of the Amendment
Effective Date, duly executed and delivered by the Company to the Administrative
Agent and the Lenders on the Amendment Effective Date.
“Disqualified
Stock” means any class or series of Capital Stock of any Person that by its
terms or otherwise: (a) is required to be redeemed prior to the date
which is six months after the Termination Date, (b) is redeemable at the
option
of the holder of such class or series of Capital Stock at any time prior
to the
date which is six months after the Termination Date; or (c) is convertible
into
or exchangeable or exchangeable for Capital Stock referred to in clause (a)
or (b) or Indebtedness having a scheduled maturity prior to the date which
is
six months after the Termination Date.
9
“DOL”
means the United States Department of Labor and any Person succeeding to
the
functions thereof.
“Dollar”
and “$” means dollars in the lawful currency of the United States of
America.
“Dollar
Amount” of any currency at any date shall mean (a) the amount of such
currency, if such currency is Dollars or (b) the Equivalent Amount, if such
currency is any currency other than Dollars.
“Domestic
Subsidiary” means a Subsidiary of the Company organized under the laws of a
jurisdiction located in the United States of America.
“EBITDA”
means, for any period, on a consolidated basis for the Company and its
Subsidiaries, the sum of the amounts for such period, without duplication,
of
(a) Net Income, plus (b) Interest Expense to the extent deducted in
computing Net Income, plus (c) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
plus (d) depreciation expense to the extent deducted in computing Net
Income, plus (e) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets to the extent
deducted in computing Net Income, plus (f) other non-recurring non-cash
charges to the extent deducted in computing Net Income, plus (g) non-cash
expenses in connection with stock options granted to employees or directors,
minus (h) other non-recurring cash or non-cash credits to the extent
added in computing Net Income.
“Eligible
Currency” means any currency other than Dollars with respect to which the
Administrative Agent or the applicable Borrower has given notice in accordance
with Section 2.23 and that is readily available, freely traded, in which
deposits are customarily offered to banks in the London interbank market
(or
other market where the Administrative Agent’s or Alternate Currency Lender’s, as
applicable, foreign currency operations in respect of such currency are then
being conducted), convertible into Dollars in the international interbank
market
available to the Lenders in such market and as to which an Equivalent Amount
may
be readily calculated. If, after the designation pursuant to the
terms of this Agreement of any currency as an Agreed Currency or Alternate
Currency, (a) currency control or other exchange regulations are imposed
in the
country in which such currency is issued with the result that different types
of
such currency are introduced, or such country’s currency is, in the
determination of the Administrative Agent, no longer readily available or
freely
traded or (b) in the determination of the Administrative Agent, an Equivalent
Amount for such currency is not readily calculable (each of clause (a) and
(b), a “Disqualifying Event”), then the Administrative Agent shall
promptly notify the Lenders and the Company, and such country’s currency shall
no longer be an Agreed Currency or Alternate Currency until such time as
the
Disqualifying Event(s) no longer exist, but in any event within five (5)
Business Days of receipt of such notice from the Administrative Agent, the
applicable Borrowers shall repay all Loans in such currency to which the
Disqualifying Event applies or convert such Loan into Loans in Dollars or
another Agreed Currency or Alternate Currency, subject to the other terms
contained in Articles II and IV.
“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.
10
“Environmental,
Health or Safety Requirements of Law” means all Requirements of Law derived
from or relating to foreign, federal, state and local laws or regulations
relating to or addressing pollution or protection of the environment, or
protection of worker health or safety, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C.
§ 9601 etseq., the Occupational Safety and Health Act of
1970, 29 U.S.C. § 651 etseq., and the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. § 6901 etseq., in each case
including any amendments thereto, any successor statutes, and any regulations
or
guidance promulgated thereunder, and any state or local equivalent
thereof.
“Environmental
Lien” means a lien in favor of any Governmental Authority for (a) any
liability under Environmental, Health or Safety Requirements of Law, or (b)
damages arising from, or costs incurred by such Governmental Authority in
response to, a Release or threatened Release of a Contaminant into the
environment.
“Equipment”
means all of the Company’s and its Subsidiaries’ present and future
(a) equipment, including, without limitation, machinery, manufacturing,
distribution, selling, data processing and office equipment, assembly systems,
tools, molds, dies, fixtures, appliances, furniture, furnishings, vehicles,
vessels, aircraft, aircraft engines, and trade fixtures, (b) other tangible
personal property (other than the Company’s or its Subsidiaries’ Inventory), and
(c) any and all accessions, parts and appurtenances attached to any of the
foregoing or used in connection therewith, and any substitutions therefor
and
replacements, products and proceeds thereof.
“Equity
Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible
into,
or exchangeable for, Capital Stock).
“Equivalent
Amount” of any currency with respect to any amount of Dollars at any date
shall mean the equivalent in such currency of such amount of Dollars, calculated
on the basis of the arithmetic mean of the buy and sell spot rates of exchange
of the Administrative Agent or Alternate Currency Lender, as applicable,
in the
London interbank market (or other market where the Administrative Agent’s or
Alternate Currency Lender’s, as applicable, foreign exchange operations in
respect of such currency are then being conducted) for such other currency
at
11:00 a.m. (local time) two (2) Business Days prior to the date on which
such
amount is to be determined, rounded up to the nearest amount of such currency
as
determined by the Administrative Agent or applicable Alternate Currency Lender
from time to time; provided that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent or Alternate Currency Lender, as applicable, may use
any
reasonable method it deems appropriate to determine such amount, and such
determination shall be conclusive absent manifest error.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time including (unless the context otherwise requires) any rules or
regulations promulgated thereunder.
“Euro”
means the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.
11
“Eurocurrency
Base Rate” means, with respect to a Eurocurrency Rate Loan for any specified
Interest Period one of the following:
(a) “LIBOR”
means, in relation to any Eurocurrency Rate Loan, denominated in any Agreed
Currency other than Euro;
(i)
the applicable Screen Rate, or
(ii) (if
no Screen Rate is available for the currency or Interest Period of that Loan)
the rate as determined by the Administrative Agent to be the rate offered
by it
to leading banks in the Relevant Interbank Market,
in
each
case as of 11:00a.m., London time, on the Quotation Day for the offering
of
deposits in the currency of that Loan and for a period comparable to the
Interest Period for that Loan;
(b) “EURIBOR”
means, in relation to any Eurocurrency Rate Loan in Euro,
(i)
the applicable Screen Rate, or
(ii) (if
no Screen Rate is available for the Interest Period of that Loan) the arithmetic
mean of the rates (rounded upwards to four decimal places) as supplied to
the
Administrative Agent at its request quoted by the Reference Banks to leading
banks in the Relevant Interbank Market,
in
each
case as of 11:00a.m., Brussels time, in the Quotation Day for the offering
of
deposits in Euro for delivery on the first day of such Interest Period in
Same
Day Funds for a period comparable to the Interest Period of the relevant
Loan;
and
(c) “XXXXXX”
means, in relation to any Eurocurrency Rate Loan in Swedish Krona,
(i)
the applicable Screen Rate,
or
(ii) (if
no Screen Rate is available for the Interest Period of that Loan) the arithmetic
mean of the rates (rounded upwards to four decimal places) as supplied to
the
Administrative Agent at its request quoted by the Reference Banks to leading
banks in the Relevant Interbank Market,
in
each
case as of 11:00a.m., Stockholm time, in the Quotation Day for the offering
of
deposits in Swedish Krona for delivery on the first day of such Interest
Period
in Same Day Funds for a period comparable to the Interest Period of the relevant
Loan.
“Eurocurrency
Payment Office” of the Administrative Agent shall mean, for each of the
Agreed Currencies, any agency, branch or Affiliate of the Administrative
Agent,
specified as the “Eurocurrency Payment Office” for such Agreed Currencies in
Annex II hereto or such other agency, branch, Affiliate or correspondence
bank of the Administrative Agent, as it may from time to time specify to
the
applicable Borrowers and each Lender as its Eurocurrency Payment
Office.
12
“Eurocurrency
Rate” means, with respect to a Eurocurrency Rate Loan for the relevant
Interest Period, the sum of (a) the quotient of (i) the Eurocurrency
Base Rate applicable to such Interest Period divided by (ii) one
minus the Reserve Requirement; plus (b) the then Applicable
Fixed Rate Margin, changing as and when the Applicable Fixed Rate Margin
changes.
“Eurocurrency
Rate Loan” means a Loan made by a Lender pursuant to Section 2.1
or 2.4, which bears interest at the Eurocurrency Rate.
“Existing
Credit Agreement” is defined in Recital A.
“Existing
Lender” is defined in Recital A.
“Existing
Revolving Loan” and “Existing Revolving Loans” are defined in
Section 2.1(a).
“Federal
Funds Effective Rate” means, for any day, an interest 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 for such day (or, if such day is not a Business Day,
for
the immediately preceding Business Day) by the Federal Reserve Bank of New
York,
or, if such rate is not so published for any day which is a Business Day,
the
average of the quotations at approximately 11:00 a.m. (New York time) on
such
day on such transactions received by the Administrative Agent from three
Federal
funds brokers of recognized standing selected by the Administrative Agent
in its
sole discretion.
“Fee
Letters” means, collectively, (a) that certain fee letter, dated as of July
7, 2005, by and between the Company and BNS and (b) that certain fee letter,
dated as of January 12, 2007 by and between the Company and BNS.
“Fixed
Charge Coverage Ratio” means, as of any date of determination, the ratio of
(a) EBITDA to (b) Fixed Charges, in each case for the period of four fiscal
quarters ending on such date.
“Fixed
Charges” means, with respect to the Company and its Subsidiaries on a
consolidated basis, as of any date of determination, (a) interest expenses
paid
on outstanding Indebtedness for the period of four fiscal quarters ending
on the
date of determination, plus (b) scheduled principal payments on
Indebtedness made during such period, plus (c) dividends paid on stock of
the Company and other Restricted Payments made by the Company during such
period, plus (d) Capital Expenditures made during such
period.
“Fixed-Rate
Advance” means an Advance which bears interest at the Eurocurrency Rate or
at a fixed Alternate Currency Rate.
“Fixed-Rate
Loans” means, collectively, the Eurocurrency Rate Loans and Alternate
Currency Fixed Rate Loans.
“Floating
Rate” means, for any day for any Loan, a rate per annum equal to (a) in the
case of Loans in Agreed Currencies, the Alternate Base Rate for such day,
changing when and as the Alternate Base Rate changes, plus the then
Applicable Floating Rate Margin, and (b) in the case of Alternate Currency
Floating Rate Loans, the rate specified as such in the applicable Alternate
Currency Addendum.
13
“Floating
Rate Advance” means an Advance which bears interest at the Floating
Rate.
“Floating
Rate Loan” means a Loan, or portion thereof, which bears interest at the
Floating Rate.
“Foreign
Employee Benefit Plan” means any employee benefit plan as defined in
Section 3(3) of ERISA which is maintained or contributed to for the benefit
of the employees of the Company, any of its Subsidiaries or any members of
its
Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
“Foreign
Pension Plan” means any employee benefit plan as described in Section 3(3)
of ERISA which (a) is maintained or contributed to for the benefit of employees
of the Company, any of its Subsidiaries or any member of its Controlled Group,
(b) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA, and (c)
under applicable local law, is required to be funded through a trust or other
funding vehicle.
“Foreign
Subsidiary” means a Subsidiary of the Company which is not a Domestic
Subsidiary.
“Funding
Date” means February 20, 2007.
“Governmental
Acts” is defined in Section 3.10(a).
“Governmental
Authority” means any nation or government, any federal, state, local or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative authority or functions
of or
pertaining to government, including any authority or other quasi-governmental
entity established to perform any of such functions.
“Guaranteed
Obligations” is defined in Section 10.1.
“Guarantor”
means each Domestic Subsidiary of the Company that from time to time is party
to
a Guaranty.
“Guaranty”
means each of (a) that certain Subsidiaries Guaranty, dated as of July 28,
2005,
and any and all joinders or supplements thereto executed from time to time
by
each Subsidiary Borrower that is a Domestic Subsidiary and each other Domestic
Subsidiary of the Company as required pursuant to Section 7.2(k) in favor
of the Administrative Agent for the benefit of itself and the Holders of
Obligations, in form and substance satisfactory to the Administrative Agent,
and
(b) the guaranty by the Company of all of the Obligations of the Subsidiary
Borrowers pursuant to this Agreement and the Alternate Currency Addenda,
in each
case as amended, supplemented, amended and restated or otherwise modified
from
time to time.
“Hedging
Agreements” is defined in Section 7.3(k).
14
“Hedging
Obligations” of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under any and all agreements, devices
or
arrangements designed to protect at least one of the parties thereto from
the
fluctuations of interest rates, commodity prices, exchange rates or forward
rates applicable to such party’s assets, liabilities or exchange transactions,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest
rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants.
“Holders
of Obligations” means the holders of the Obligations from time to time and
shall include (a) each Lender in respect of its Loans and in respect of
obligations under Hedging Agreements, (b) each Issuing Bank in respect of
Reimbursement Obligations owed to it, (c) the Administrative Agent, the Lenders
and the Issuing Banks in respect of all other present and future obligations
and
liabilities of the Company or any of its Subsidiaries of every type and
description arising under or in connection with this Agreement or any other
Loan
Document, (d) each Indemnitee in respect of the obligations and liabilities
of
the Company or any of its Subsidiaries to such Person hereunder or under
the
other Loan Documents, and (e) their respective successors, transferees and
assigns.
“Incremental
Loan Lender” means each Lender with a commitment to make Incremental
Loans.
“Incremental
Loan” and “Incremental Loans” are defined in Section
2.1(a).
“Indebtedness”
of a Person means, without duplication, such Person’s (a) obligations for
borrowed money, (b) obligations representing the deferred purchase price
of
property or services (other than accounts payable arising in the ordinary
course
of such person’s business payable on customary terms and earn-out payments
arising in connection with Permitted Acquisitions), (c) obligations,
whether or not assumed, secured by Liens on property now or hereafter owned
or
acquired by such Person, (d) obligations which are evidenced by notes, bonds,
or
other similar instruments, (e) Capitalized Lease Obligations, (f) net liability
in connection with Hedging Obligations, (g) actual and contingent
reimbursement obligations in respect of letters of credit, (h) the implied
debt component of synthetic leases of which such Person is lessee or any
other
off-balance sheet financing arrangements (including, without limitation,
any
such arrangements giving rise to any Off-Balance Sheet Liabilities) and (i)
Contingent Obligations of such Person in respect of items of the type set
forth
in clauses (a) through (h); provided that the term
“Indebtedness” shall not include any (a) accrued or deferred interest
or other
expenses, unless capitalized in accordance with Agreement Accounting Principles
or (b) lease properly classified as an operating lease in accordance with
Agreement Accounting Principles. The amount of any item of
Indebtedness, except for any item of Indebtedness described in
clause (h), shall be the amount of any liability in respect thereof
appearing on a balance sheet properly prepared in accordance with Agreement
Accounting Principles, except that the amount of any item of Indebtedness
described in clause (i) shall be determined in accordance with the
definition of Contingent Obligations and the amount of any item of Indebtedness
described in clause (h) above shall be the “principal-equivalent”
amount of such obligation.
15
“Insignificant
Subsidiary” means a Foreign Subsidiary having assets with a book value of
$10,000,000 or less.
“Interest
Expense” means, for any period, the total interest expense of the Company
and its consolidated Subsidiaries, whether paid or accrued (including the
interest component of Capitalized Leases, commitment fees and fees for stand-by
letters of credit), all as determined in conformity with Agreement Accounting
Principles.
“Interest
Period” means (a) with respect to Alternate Currency Loans, any Alternate
Currency Interest Period and (b) with respect to a Eurocurrency Rate Loan,
a
period of one (1), two (2), three (3) or six (6) months or, with the consent
of
all of the Lenders, nine (9) months, commencing on a Business Day selected
by
the applicable Borrower on which a Eurocurrency Rate Loan is made to such
Borrower pursuant to this Agreement. Such Interest Period described
in clause (b) above shall end on (but exclude) the day which corresponds
numerically to such date one, two, three, six or nine months thereafter;
provided that if there is no such numerically corresponding day in such
next, second, third, sixth or (if available to all Lenders) ninth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third, sixth or (if available to all Lenders) ninth succeeding
month. If an Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next succeeding
Business Day, provided that if said next succeeding Business Day falls in
a new calendar month, such Interest Period shall end on the immediately
preceding Business Day.
“Inventory”
shall mean any and all goods, including, without limitation, goods in transit,
wheresoever located, whether now owned or hereafter acquired by the Company
or
any of its Subsidiaries, which are held for sale, rental or lease, furnished
under any contract of service or held as raw materials, work in process or
supplies, and all materials used or consumed in the business of the Company
or
any of its Subsidiaries, and shall include all right, title and interest
of the
Company or any of its Subsidiaries in any property the sale or other disposition
of which has given rise to Receivables and which has been returned to or
repossessed or stopped in transit by the Company or any of its
Subsidiaries.
“Investment”
means, with respect to any Person, (a) any purchase or other acquisition by
that Person of any Indebtedness, Equity Interests or other securities, or
of a
beneficial interest in any Indebtedness, Equity Interests or other securities,
issued by any other Person, (b) any purchase by that Person of all or
substantially all of the assets of a business (whether of a division, branch,
unit operation, or otherwise) conducted by another Person, and (c) any
loan, advance (other than deposits with financial institutions available
for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person
other
than in the ordinary course of its business.
“IRS”
means the Internal Revenue Service and any Person succeeding to the functions
thereof.
16
“Issuing
Banks” means BNS or any of its Affiliates in its separate capacity as an
issuer of Letters of Credit pursuant to Sections 3.1 and
3.2.
“L/C
Documents” is defined in Section 3.4.
“L/C
Draft” means a draft drawn on an Issuing Bank pursuant to a Letter of
Credit.
“L/C
Interest” shall have the meaning ascribed to such term in Section
3.6.
“L/C
Obligations” means, without duplication, an amount equal to the sum of (a)
the aggregate amount then available for drawing under each of the Letters
of
Credit, (b) the face amount of all outstanding L/C Drafts corresponding to
the
Letters of Credit, which L/C Drafts have been accepted by the applicable
Issuing
Bank, (c) the aggregate outstanding amount of all Reimbursement Obligations
at
such time and (d) the aggregate amount equal to the face amount of all Letters
of Credit requested by the Borrowers but not yet issued (unless the request
for
an unissued Letter of Credit has been denied).
“Lenders”
means the lending institutions listed on the signature pages of this Agreement,
and their successors and assigns.
“Lending
Installation” means, with respect to a Lender or the Administrative Agent,
any office, branch, subsidiary or Affiliate of such Lender or the Administrative
Agent.
“Letter
of Credit” means standby letters of credit to be (a) issued by the Issuing
Banks pursuant to Section 3.1 or (b) deemed issued by the Issuing Banks
pursuant to Section 3.2.
“Leverage
Ratio” means, as of any date of determination, the ratio of (a) Total
Indebtedness on such date of determination to (b) EBITDA for the most recently
ended period of four fiscal quarters (including any fiscal quarters ending
on
the date of determination).
“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation,
encumbrance or security agreement of any kind or nature whatsoever (including,
without limitation, the interest of a vendor or lessor under any conditional
sale, Capitalized Lease or other title retention agreement); provided
that in no event shall the lessor’s interest under any real property lease or
any lease properly classified as an operating lease in accordance with Agreement
Accounting Principles be a “Lien” for purposes of this definition.
“Loan(s)”
means, (a) in the case of any Lender, such Lender’s portion of any Advance made
pursuant to Section 2.1, 2.3 or 2.4, in the case of any
Alternate Currency Lender, any Alternate Currency Loan made by it pursuant
to
Section 2.23 and the applicable Alternate Currency Addendum, and in the
case of the Swing Line Bank, any Swing Line Loan made by it pursuant to
Section 2.3, and (b) collectively, all Revolving Loans, Alternate
Currency Loans, Swing Line Loans and Term Loans.
“Loan
Account” is defined in Section 2.14(a).
17
“Loan
Documents” means this Agreement, each Alternate Currency Addendum executed
hereunder, each Assumption Letter executed hereunder, each Guaranty, the
Subordination Agreement, each Fee Letter and all other documents, instruments,
notes and agreements executed in connection therewith or contemplated thereby,
as the same may be amended, restated or otherwise modified and in effect
from
time to time.
“Loan
Parties” means each of the Company, each Subsidiary Borrower and each of the
Guarantors.
“Mandatory
Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.1.1.
“Margin
Stock” shall have the meaning ascribed to such term in Regulation
U.
“Material
Adverse Effect” means a material adverse effect upon (a) the financial
condition, operations, assets, business or properties of the Company and
its
Subsidiaries, taken as a whole, (b) the ability of the Company or any of
its
Subsidiaries to perform their respective obligations under the Loan Documents,
or (c) the ability of the Lenders or the Administrative Agent to enforce
the
Obligations.
“Merger”
is defined in Recital B.
“Merger
Agreement” is defined in Recital B.
“Merger
Date Leverage Ratio” means, as of the date of determination, the ratio of
(a) Net Debt on such date of determination to (b) EBITDA for the Company
and its
Subsidiaries (excluding ARDI and its Subsidiaries) for the most recently
completed four-fiscal-quarter period.
“Merger
Documents” means, collectively, the Merger Agreement and all schedules,
exhibits, annexes and amendments thereto and all side letters and agreements
affecting the terms thereof.
“Merger
Sub” means Roadrunner Acquisition Corp., a Delaware corporation and a
Wholly-Owned Subsidiary of the Company.
“Multiemployer
Plan” means a “Multiemployer Plan” as defined in Section 4001(a)(3) of
ERISA which is, or within the immediately preceding six (6) years was, or
was
required to be, contributed to by either the Company or any member of the
Controlled Group.
“Net
Debt” means as of the date of determination, Total Indebtedness at such
time, after giving effect to the Transactions, less the amount of cash or
Cash
Equivalents of ARDI as of February 8, 2007 that are not in each case pledged,
secured or otherwise restricted.
“Net
Income” means, for any period, the net income (or loss) after taxes of the
Company and its Subsidiaries on a consolidated basis for such period taken
as a
single accounting period determined in conformity with Agreement Accounting
Principles.
18
“Non-Wholly-Owned
Subsidiary” means each Subsidiary that is not a Wholly-Owned
Subsidiary.
“Notice
of Assignment” is defined in Section 14.3(b).
“Obligations”
means all Loans, L/C Obligations, advances, debts, liabilities, obligations,
covenants and duties owing by the Borrowers or any of their Subsidiaries
to the
Administrative Agent, any Lender, the Swing Line Bank, any Arranger, any
Affiliate of the Administrative Agent or any Lender, any Issuing Bank or
any
Indemnitee, of any kind or nature, present or future, arising under this
Agreement, the L/C Documents, any Alternate Currency Addendum or any other
Loan
Document or under or with respect to any Hedging Agreement entered into with
a
Lender or an Affiliate of a Lender (at the time such Hedging Agreement was
entered into) in connection with this Agreement, in each case whether or
not
evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification, or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or
to
become due, now existing or hereafter arising and however
acquired. The term includes, without limitation, all interest,
charges, expenses, fees, reasonable attorneys’ fees and disbursements,
reasonable paralegals’ fees (in each case whether or not allowed), and any other
sum chargeable to the Company or any of its Subsidiaries under this Agreement
or
any other Loan Document.
“Obligor”
is defined in Section 10.1.
“Off-Balance
Sheet Liabilities” of a Person means (i) any repurchase obligation or
liability of such Person or any of its Subsidiaries with respect to Receivables
sold by such Person or any of its Subsidiaries, (ii) any liability of such
Person or any of its Subsidiaries under any sale and leaseback transactions
which do not create a liability on the consolidated balance sheet of such
Person, (iii) any liability of such Person or any of its Subsidiaries under
any
financing lease or so-called “synthetic” lease transaction, or (iv) any
obligations of such Person or any of its Subsidiaries arising with respect
to
any other transaction which is the functional equivalent of or takes the
place
of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
“Other
Taxes” is defined in Section 2.16(e)(ii).
“Participants”
is defined in Section 14.2(a).
“Participating
Member State” means each state so described in any EMU
Legislation.
“Patriot
Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), as amended and supplemented from time to time.
“Patriot
Act Disclosures” means all documentation and other information which the
Administrative Agent or any Lender reasonably requests in order to comply
with
its ongoing obligations under applicable “know your customer” and anti-money
laundering rules and regulations, including the Patriot Act.
19
“Payment
Date” means the last day of each fiscal quarter of the Company, the
Revolving Loan Commitment Termination Date, the Termination Date and the
Stated
Maturity Date.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor
thereto.
“Permitted
Acquisition” is defined in Section 7.3(e).
“Permitted
Existing Contingent Obligations” means the Contingent Obligations of the
Company and its Subsidiaries identified as such on Schedule 1.1.2 to the
Disclosure Letter.
“Permitted
Existing Indebtedness” means the Indebtedness of the Company and its
Subsidiaries identified as such on Schedule 1.1.3 to the Disclosure
Letter.
“Permitted
Existing Investments” means the Investments of the Company and its
Subsidiaries identified as such on Schedule 1.1.4 to the Disclosure
Letter.
“Permitted
Existing Liens” means the Liens on assets of the Company and its
Subsidiaries identified as such on Schedule 1.1.5 to the Disclosure
Letter.
“Permitted
Liens” means:
(d) Liens
(other than Environmental Liens and Liens in favor of the IRS or the PBGC)
with
respect to the payment of taxes, assessments or governmental charges in all
cases which are not yet due or (so long as foreclosure, distraint, sale or
other
similar proceedings shall not have been commenced or any such proceeding
after
being commenced is stayed) which are being contested in good faith by
appropriate proceedings properly instituted and diligently conducted and
with
respect to which adequate reserves or other appropriate provisions are being
maintained in accordance with Agreement Accounting Principles;
(e) Statutory
Liens of landlords and Liens of suppliers, mechanics, carriers, materialmen,
warehousemen, service providers or workmen and other similar Liens imposed
by
law created in the ordinary course of business for amounts not more than
sixty
(60) days past due or which thereafter can be paid without penalty or which
are
being contested in good faith by appropriate proceedings properly instituted
and
diligently conducted and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with Agreement
Accounting Principles;
(f) Liens
arising with respect to zoning restrictions, easements, encroachments,
Environmental Liens, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges, restrictions
or
encumbrances on the use of real property which do not materially interfere
with
the ordinary use or occupancy of the real property subject thereto or with
the
ordinary conduct of the business of the Company or any of its
Subsidiaries;
20
(g) Liens
arising in the ordinary course of business out of pledges or deposits under
worker’s compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(h) Liens
arising from or upon any judgment or award; provided that (i) no Default
under Section 8.1(g) has occurred or is continuing at the time of
incurrence thereof and (ii) such judgment or award is being contested in
good
faith by proper appeal proceedings and only so long as execution thereon
shall
be stayed;
(i) Deposits
to secure the performance of bids, trade contracts (other than for Indebtedness
for borrowed money), leases, statutory obligations, surety bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course
of
the Company’s or any Subsidiary’s business;
(j) Leases
or subleases and licenses and sublicenses granted to others in the ordinary
course of the Company’s business not interfering in any material respect with
the business of the Company and its Subsidiaries taken as a whole, and any
interest or title of a lessor, licensor or under any lease or license;
and
(k) Liens
in favor of customs and revenue authorities arising as a matter of law to
secure
payment of customs duties in connection with the importation of
goods.
“Person”
means any individual, corporation, firm, enterprise, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company or other entity of any kind, or any government
or
political subdivision or any agency, department or instrumentality
thereof.
“Plan”
means an employee benefit plan defined in Section 3(3) of ERISA, other than
a
Multiemployer Plan, in respect of which the Company or any member of the
Controlled Group is, or within the immediately preceding six (6) years was,
an
“employer” as defined in Section 3(5) of ERISA.
“Prime
Rate” means the “prime rate” of interest announced by BNS from time to time
at its New York office, changing when and as said prime rate
changes.
“Pro
Forma Balance Sheet” is defined in clause (f) of Section
5.2.
“Pro
Rata Share” means, with respect to any Lender for Revolving Loans or Term
Loans, the percentage obtained by dividing (a) such Lender’s Revolving Loan
Commitment or Term Loan Commitment, as applicable, at such time (as adjusted
from time to time in accordance with the provisions of this Agreement) by
(b) the Aggregate Revolving Loan Commitment at such time (as adjusted from
time to time in accordance with the provisions of this Agreement) or the
aggregate Term Loan Commitment, as applicable, at such time; provided
that if all of the applicable Commitments are terminated pursuant to the
terms
of this Agreement, then “Pro Rata Share” means, with respect to any Lender for
Revolving Loans or Term Loans, the percentage obtained by dividing (i) the
sum of (A) such Lender’s Revolving Loans or Term Loans, as applicable,
plus (B) in the case of Revolving Loans, such Lender’s share of the
obligations to purchase participations in Letters of Credit and Alternate
Currency Loans, plus (C) in the case of Revolving Loans, such
Lender’s share of the obligations to refund or purchase participations in Swing
Line Loans, by (ii) the sum of (A) the aggregate outstanding amount of all
Revolving Loans or Term Loans, as applicable, plus (B) in the case
of Revolving Loans, the aggregate outstanding amount of all Letters of Credit
and all Alternate Currency Loans, plus (C) in the case of Revolving
Loans, the aggregate outstanding amount of all Swing Line Loans;
providedfurther that for purposes of determining a Lender's Pro
Rata Share for a Revolving Loan at any time while any Lender has outstanding
an
Alternate Currency Commitment, the foregoing clause (a) shall be reduced
by such
Lender’s Alternate Currency Commitment, if any, and the foregoing clause (b)
shall be reduced by the aggregate Alternate Currency Commitments of all
Lenders.
21
“Purchasers”
is defined in Section 14.3(a).
“Quotation
Day” means, in relation to any period for which an interest rate is to be
determined
(l) if
the currency is Euro, second TARGET Day that is also a Business Day in London
before the first day of the that period; or
(m) for
any other currency, two business Days before the first day of that
period,
unless
market practice differs in the Relevant Interbank Market for a currency,
in
which case the Quotation Day for that currency will be determined by the
Administrative Agent in accordance with market practice in the Relevant
Interbank Market (and if quotations would normally be given by leading banks
in
the Relevant Interbank Market on more than one day, the Quotation Day will
be
the last of those days).
“Rate
Option” means the Eurocurrency Rate, the Floating Rate or the Alternate
Currency Rate, as applicable.
“Receivable(s)”
means and includes all of the Company’s and its Subsidiaries’ presently existing
and hereafter arising or acquired accounts, accounts receivable, notes
receivable, and all present and future rights of the Company or its
Subsidiaries, as applicable, to payment for goods sold or leased or for services
rendered (except those evidenced by instruments or chattel paper), whether
or
not they have been earned by performance, and all rights in any merchandise
or
goods which any of the same may represent, and all rights, title, security
and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit.
“Reference
Banks” means the principal office in London of BNS or such other banks as
may be appointed by the Administrative Agent in consultation with the
Company.
“Register”
is defined in Section 14.3(c).
“Regulation
T” means Regulation T of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation
or
official interpretation of said Board of Governors relating to the extension
of
credit by and to brokers and dealers of securities for the purpose of purchasing
or carrying margin stock (as defined therein).
22
“Regulation
U” means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation
or
official interpretation of said Board of Governors relating to the extension
of
credit by banks, non-banks and non-broker lenders for the purpose of purchasing
or carrying Margin Stock applicable to member banks of the Federal Reserve
System.
“Regulation
X” means Regulation X of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation
or
official interpretation of said Board of Governors relating to the extension
of
credit by foreign lenders for the purpose of purchasing or carrying margin
stock
(as defined therein).
“Reimbursement
Obligation” is defined in Section 3.7.
“Release”
means any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration into the indoor or
outdoor
environment, including the movement of Contaminants through or in the air,
soil,
surface water or groundwater.
“Relevant
Interbank Market” means (a) in relation to Euro, the European interbank
market, (b) in relation to Swedish Krona, the Stockholm interbank market
and (c) in relation to any other Agreed Currency, the London interbank
market.
“Repatriated
Funds” means amounts paid by Foreign Subsidiaries to the Company or any
Domestic Subsidiary in respect of the repayment of intercompany loans, dividends
and return of capital.
“Replacement
Lender” is defined in Section 2.21.
“Reportable
Event” means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Benefit Plan,
excluding, however, such events as to which the PBGC by regulation or otherwise
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty (30) days after such event occurs, provided that a failure to meet
the minimum funding standards of Section 412 of the Code and of Section 302
of
ERISA shall be a Reportable Event regardless of the issuance of any such
waiver
of the notice requirement in accordance with either Section 4043(a) of ERISA
or
Section 412(d) of the Code.
“Required
Lenders” means, at any time, Lenders holding more than fifty percent (50%)
of the Total Exposure Amount.
“Requirements
of Law” means, as to any Person, the charter and by-laws or other
organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any
of its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act of 1933, the Securities Exchange Act
of
1934, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the
Worker Adjustment and Retraining Notification Act, the Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or permit or environmental,
labor, employment, occupational safety or health law, rule or
regulation.
23
“Reserve
Requirement” shall mean, at any time, the maximum reserve requirement, as
the prescribed by the Board of Governors of the Federal Reserve System (or
any
successor) with respect to “Eurocurrency liabilities” or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurocurrency Rate Loans is determined or category of extensions
of credit or other assets which includes loans by a non-United States office
of
any Lender to United States residents.
“Restricted
Payment” means (a) any dividend or other distribution, direct or indirect,
on account of any Equity Interests of the Company or any of its Subsidiaries
now
or hereafter outstanding, except a dividend payable solely in the Company’s or
such Subsidiaries’ Equity Interests other than Disqualified Stock or in options,
warrants or other rights to purchase such Equity Interests, (b) any
redemption, retirement, purchase or other acquisition for value, direct or
indirect, of any Equity Interests of the Company or any of its Subsidiaries
now
or hereafter outstanding, other than in exchange for Equity Interests other
than
Disqualified Stock of the Company, and (c) any redemption, purchase, retirement,
defeasance, prepayment or other acquisition for value, direct or indirect,
of
any Subordinated Indebtedness.
“Revolving
Credit Obligations” means, at any particular time, the sum of (a) the
outstanding Revolving Loans at such time plus (b) the outstanding L/C
Obligations at such time, plus (c) the outstanding principal amount
of all Swing Line Loans at such time plus (d) the outstanding
Alternate Currency Loans at such time.
“Revolving
Loan” and “Revolving Loans” are defined in Section
2.1(a).
“Revolving
Loan Commitment” means, relative to any Lender, the obligation of such
Lender to make Revolving Loans not exceeding the amount set forth on Annex
I to this Agreement opposite its name thereon under the heading “Commitment”
or the signature page of the assignment and acceptance by which it became
a
Lender as such amount may be modified from time to time pursuant to the terms
of
this Agreement or to give effect to any applicable assignment and
acceptance.
“Revolving
Loan Commitment Amount” means, on any date after the Amendment Effective
Date, $300,000,000, as such amount may be reduced from time to time pursuant
to
Section 2.7.
“Revolving
Loan Commitment Termination Date” means the earliest of
(a) February
16, 2012;
(b) the
date on which the Revolving Loan Commitment Amount is terminated in full
or
reduced to zero pursuant to the terms of this Agreement; and
24
(c) the
date on which any Commitment Termination Event occurs.
Upon
the
occurrence of any event described in the preceding clauses (b) or
(c), the Revolving Loan Commitments shall terminate automatically
and
without any further action.
“Sale
and Leaseback Transaction” shall mean any lease, whether an operating lease
or a Capitalized Lease, of any property (whether real or personal or mixed),
(a)
which the Company or one of its Subsidiaries sold or transferred or is to
sell
or transfer to any other Person, or (b) which the Company or one of its
Subsidiaries intends to use for substantially the same purposes as any other
property which has been or is to be sold or transferred by the Company or
one of
its Subsidiaries to any other Person in connection with such lease.
“Same
Day Funds” means (a) with respect to disbursements and payments in any
Agreed Currency, immediately available funds; and (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 applicable Issuing
Bank,
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.
“Screen
Rate” means
(n) in
relation to LIBOR, the British Bankers Association Interest Settlement-Rate
for
the relevant currency and period;
(o) in
relation to EURIBOR, the percentage rate per annum determined by the Banking
Federation of the European Union for the relevant period; and
(p) in
relation to XXXXXX, the percentage rate per annum determined by the Stockholm
interbank market for the deposit of Swedish Kronor for the relevant
period.
in
each
case, as displayed on the appropriate page of the Reuters screen. If
the agreed page is replaced or service ceases to be available, the
Administrative Agent may specify another page or service displaying the
appropriate rate after consultation with the Company and the
Lenders.
“Securities
Act” means the Securities Act of 1933, as amended from time to
time.
“Single
Employer Plan” means a “single-employer plan” as defined in Section
4001(a)(15) of ERISA which is a Benefit Plan maintained by the Company or
any
member of the Controlled Group for employees of the Company or any member
of the
Controlled Group.
“Solvent”
means, when used with respect to any Person, that at the time of
determination:
(q) the
fair value of its assets (both at fair valuation and at present fair saleable
value) is equal to or in excess of the total amount of its liabilities,
including, without limitation, contingent liabilities; and
(r) it
is then able and expects to be able to pay its debts as they mature;
and
25
(s) it
has capital sufficient to carry on its business as conducted and as proposed
to
be conducted.
With
respect to contingent liabilities (such as litigation, guarantees and pension
plan liabilities), such liabilities shall be computed at the amount which,
in
light of all the facts and circumstances existing at the time, represent
the
amount which can be reasonably be expected to become an actual or matured
liability.
“Stated
Maturity Date” means February 16, 2012.
“Subordinated
Indebtedness” shall mean Indebtedness incurred from time to time and
subordinated in right of payment to the Obligations.
“Subordination
Agreement” means that certain Subordination Agreement (and any and all
supplements or joinders thereto or assumptions thereof) executed from time
to
time by each Subsidiary of the Company which may now or in the future have
any
claim against any Loan Party and each other Subsidiary of the Company as
required pursuant to Section 7.2(k) in favor of the Administrative Agent
for the benefit of itself and the Holders of Obligations, in substantially
the
form of Exhibit F attached hereto, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
“Subsidiary”
of a Person means (a) any corporation more than fifty (50%) of the outstanding
securities having ordinary voting power of which shall at the time be owned
or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (b)
any
partnership, association, limited liability company, joint venture or similar
business organization more than fifty percent (50%) of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references
herein to a “Subsidiary” mean a Subsidiary of the Company.
“Subsidiary
Borrower” means each Wholly-Owned Subsidiary of the Company (whether now
existing or hereafter formed) duly designated by the Company pursuant to
Section 2.22 to request Advances hereunder, which Wholly-Owned Subsidiary
shall have delivered to the Administrative Agent an Assumption Letter in
accordance with Section 2.22 and such other documents as may be required
pursuant to this Agreement, in each case together with its respective successors
and assigns, including a debtor-in-possession on behalf of such Subsidiary
Borrower.
“Swing
Line Bank” means BNS and its successors and assigns.
“Swing
Line Commitment” means the obligation of the Swing Line Bank to make Swing
Line Loans up to a maximum principal amount of $20,000,000 at any one time
outstanding.
“Swing
Line Loan” means a Loan made to the Company by the Swing Line Bank pursuant
to Section 2.3.
26
“TARGET”
means Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.
“TARGET
Day” means any day on which the TARGET is open for the settlement of
payments in Euros.
“Taxes”
is defined in Section 2.16(e)(i).
“Term
Loan Commitment” means, relative to any Lender, the obligation of such
Lender to make Term Loans not exceeding the amount set forth on Annex I
to this Agreement opposite its name thereon under the heading “Commitment” or
the signature page of the assignment and acceptance by which it became a
Lender
as such amount may be modified from time to time pursuant to the terms of
this
Agreement or to give effect to any applicable assignment and
acceptance.
“Term
Loan Commitment Amount” means $100,000,000.
“Term
Loan Commitment Termination Date” means the earliest of
(a) the
Funding Date (immediately after the making of the Term Loans on such date);
and
(b) the
date on which any Commitment Termination Event occurs.
Upon
the
occurrence of any event described in clauses (a) or (b), the Term
Loan Commitments shall terminate automatically and without any further
action.
“Term
Loan” and “Term Loans” are defined in Section
2.4.
“Termination
Date” is defined in Section 2.20.
“Termination
Event” means (a) a Reportable Event with respect to any Benefit Plan;
(b) the withdrawal of the Company or any member of the Controlled Group
from a Benefit Plan during a plan year in which the Company or such Controlled
Group member was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA or the cessation of operations which results in the termination of
employment of twenty percent (20%) of Benefit Plan participants who are
employees of the Company or any member of the Controlled Group; (c) the
imposition of an obligation on the Company or any member of the Controlled
Group
under Section 4041 of ERISA to provide affected parties written notice of
intent
to terminate a Benefit Plan in a distress termination described in Section
4041(c) of ERISA; (d) the institution by the PBGC or any similar foreign
governmental authority of proceedings to terminate a Benefit Plan or Foreign
Pension Plan; (e) any event or condition which constitutes grounds under
Section
4042 of ERISA which are reasonably likely to lead to the termination of,
or the
appointment of a trustee to administer, any Benefit Plan; (f) that a foreign
governmental authority shall appoint or institute proceedings to appoint
a
trustee to administer any Foreign Pension Plan in place of the existing
administrator, or (g) the partial or complete withdrawal of the Company or
any
member of the Controlled Group from a Multiemployer Plan or Foreign Pension
Plan.
27
“Total
Exposure Amount” means, on any date of determination (and without
duplication), the outstanding principal amount of all Loans, the aggregate
amount of all outstanding Letters of Credit and the unfunded amount of
Commitments.
“Total
Indebtedness” means, without duplication, (a) all Indebtedness for borrowed
money of the Company and its Subsidiaries, on a consolidated basis, plus,
without duplication, (b) (i) the face amount of all outstanding letters of
credit (including Letters of Credit) in respect of which the Company or any
Subsidiary has any actual or contingent reimbursement obligation, plus
(ii) the principal amount of all Indebtedness of any Person in respect of
which
the Company or any Subsidiary has a Contingent Obligation, plus (iii)
Indebtedness of the Company and its Subsidiaries evidenced by notes, acceptances
or similar instruments, plus (iv) Capitalized Lease Obligations of the
Company and its Subsidiaries, plus (v) the implied debt component of
synthetic leases of which the Company or any of its Subsidiaries is
lessee.
“Transactions”
shall mean, collectively, (a) the execution, delivery and performance by
the
Loan Parties of the Loan Documents to which they are a party, (b) the borrowings
hereunder, the issuance of Letters of Credit and the use of proceeds of each
of
the foregoing, (c) the Merger and the transactions thereunder and (d) any
other
transactions related to or entered into in connection with any of the
foregoing.
“Transferee”
is defined in Section 14.5.
“Type”
means, with respect to any Loan, its nature as a Floating Rate Loan or a
Fixed
Rate Loan.
“UCC”
means the Uniform Commercial Code as in effect in the State of New
York.
“Unfunded
Liabilities” means (a) in the case of Single Employer Plans, the amount (if
any) by which the aggregate accumulated benefit obligations exceeds the
aggregate fair market value of assets of all Single Employer Plans as of
the
most recent measurement date for which actuarial valuations have been completed
and certified to the Company, all as determined under FAS 87 as amended by
FAS
88, 106, and 132, if applicable, using the methods and assumptions used by
the
Company for financial accounting purposes, and (b) in the case of Multiemployer
Plans, the withdrawal liability that would be incurred by the Controlled
Group
if all members of the Controlled Group completely withdrew from all
Multiemployer Plans.
“Unmatured
Default” means an event which, but for the lapse of time or the giving of
notice, or both, would constitute a Default.
“Wholly-Owned
Subsidiary” of a Person means (a) any Subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly
or
indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (b) any partnership, limited liability company, association,
joint venture or similar business organization 100% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled, in each case, other than director qualifying
shares. Unless the context otherwise requires, “Wholly-Owned
Subsidiary” means a wholly-owned subsidiary of the Company.
28
1.2 Terms
Generally. The definitions in Section 1.1 shall apply
equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. References to
any Person shall include such Person’s successors and assigns. The
words “include”, “includes” and “including”, and words of similar import, shall
not be limiting and shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. The words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision of this
Agreement unless the context shall otherwise require. All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any definition of, or reference to, any Loan
Document, including this Agreement, or any other agreement, instrument or
document in this Agreement shall mean such Loan Document or other agreement,
instrument or document as amended, restated, supplemented or otherwise modified
from time to time (subject to any restrictions on such amendments, restatements,
supplements or modifications set forth herein) and (b) any accounting terms
used
in this Agreement which are not specifically defined herein shall have the
meanings customarily given them in accordance with generally accepted accounting
principles in existence as of the date.
1.3 References. Any
references to Subsidiaries of the Company set forth herein shall not in any
way
be construed as consent by the Administrative Agent or any Lender to the
establishment, maintenance or acquisition of any Subsidiary, except as may
otherwise be permitted hereunder.
ARTICLE
II
LOAN
FACILITIES
On
the
terms and subject to the conditions of this Agreement, the Lenders severally
agree to make the Loans as set forth below.
2.1 Revolving
Loans.
(a) Upon
the satisfaction of the conditions precedent set forth in Sections 5.2,
5.3 and 5.4, as applicable, from and including the Closing Date
and prior to the Revolving Loan Commitment Termination Date, each Existing
Lender severally and not jointly agrees, on the terms and conditions set
forth
in this Agreement, to make revolving loans to the Borrowers from time to
time in
Dollars or any Agreed Currency, in a Dollar Amount not to exceed such Lender’s
Pro Rata Share of the Availability at such time (each individually, an
“Existing Revolving Loan” and, collectively, the “Existing Revolving
Loans”). Upon the satisfaction of the conditions precedent set
forth in Sections 5.2, 5.3 and 5.4, as applicable, from and
including the Amendment Effective Date and prior to the Revolving Loan
Commitment Termination Date, each Incremental Loan Lender severally and not
jointly agrees, on the terms and conditions set forth in this Agreement,
to make
revolving loans to the Borrowers from time to time in Dollars or any Agreed
Currency, in a Dollar Amount not to exceed such Lender’s Pro Rata Share of the
Availability at such time (each individually, an “Incremental Loan” and,
collectively, the “Incremental Loans”; each Existing Revolving Loan and
each Incremental Loan shall hereinafter be referred to as a “Revolving
Loan” and the Existing Revolving Loans, together with the Incremental Loans,
shall hereinafter be referred to, collectively, as the “Revolving
Loans”). Notwithstanding the foregoing, at no time shall the
Dollar Amount of the Revolving Credit Obligations exceed the Aggregate Revolving
Loan Commitment. Subject to the terms of this Agreement, the
Borrowers may borrow, repay and reborrow Revolving Loans at any time prior
to
the Revolving Loan Commitment Termination Date. Revolving Loans shall
be, at the option of the applicable Borrower, selected in accordance with
Section 2.11, and shall be either Floating Rate Loans or Eurocurrency
Rate Loans. On the Revolving Loan Commitment Termination Date, each
Borrower shall repay in full the outstanding principal balance of Revolving
Loans made to it. The Revolving Loans shall be made by each Lender
ratably in proportion to such Lender’s respective Pro Rata Share.
29
(b) Making
of Revolving Loans. Promptly after receipt of the Borrowing/
Conversion/Continuation Notice under Section 2.9 in respect of Revolving
Loans, the Administrative Agent shall notify each Lender of the requested
Revolving Loan. Each Lender shall make available its Revolving Loan
in accordance with the terms of Section 2.8. The
Administrative Agent will promptly make the funds so received from the Lenders
available to the applicable Borrower at the Administrative Agent’s office in New
York, New York on the applicable Borrowing Date and shall disburse such proceeds
in accordance with the applicable Borrower’s disbursement instructions set forth
in such Borrowing/Conversion/Continuation Notice. The failure of any
Lender to deposit the amount described above with the Administrative Agent
on
the applicable Borrowing Date shall not relieve any other Lender of its
obligations hereunder to make its Revolving Loan on such Borrowing
Date.
2.2 [Intentionally
Omitted.]
2.3 Swing
Line Loans.
(a) Amount
of Swing Line Loans. Upon the satisfaction of the conditions
precedent set forth in Sections5.2, 5.3 and 5.4, as
applicable, from and including the Closing Date and prior to the Revolving
Loan
Commitment Termination Date, the Swing Line Bank agrees, on the terms and
conditions set forth in this Agreement, to make swing line loans (each,
individually, a “Swing Line Loan” and collectively, the “Swing Line
Loans”) to the Company from time to time in Dollars; provided that at
no time shall the aggregate outstanding principal amount of all Swing Line
Loans
exceed the Swing Line Commitment; providedfurther that at no time
shall the Dollar Amount of Revolving Credit Obligations exceed the Aggregate
Revolving Loan Commitment.
30
(b) Borrowing/Conversion/Continuation
Notice; Interest Rate. The Company and/or the applicable Borrower
shall deliver to the Administrative Agent and the Swing Line Bank (if the
Swing
Line Bank is not BNS) a Borrowing/Conversion/Continuation Notice, signed
by it,
not later than 12:00 noon (New York time) on the Borrowing Date of each Swing
Line Loan (or at such later time as may be acceptable to the Swing Line Bank
in
its sole discretion), specifying (i) the applicable Borrowing Date (which
date
shall be a Business Day and which may be the same date as the date the
Borrowing/Conversion/Continuation Notice is given), (ii) the aggregate amount
of
the requested Swing Line Loan, the amount of which shall be not less than
$1,000,000 and (iii) payment instructions for the disbursement of such
Loans. The Swing Line Loans shall bear interest at the Floating
Rate.
(c) Making
of Swing Line Loans. Not later than 3:00 p.m. (New York time) on
the applicable Borrowing Date, the Swing Line Bank shall make available its
Swing Line Loan, in funds immediately available in New York, New York to
the
Administrative Agent at its address specified pursuant to Article
XV. The Administrative Agent will promptly make the funds so
received from the Swing Line Bank available to the Company on the Borrowing
Date
at the Administrative Agent’s aforesaid address.
(d) Repayment
of Swing Line Loans. Each Swing Line Loan shall be paid in full
by the Company on or before the seventh (7th) Business Day after the Borrowing
Date for such Swing Line Loan. The Company may at any time pay,
without penalty or premium, all outstanding Swing Line Loans. In
addition, the Administrative Agent (i) may at any time in its sole
discretion with respect to any outstanding Swing Line Loan, (ii) shall at
any time upon the request of the Swing Line Bank in its sole discretion,
or
(iii) shall on the seventh (7th) Business Day after the Borrowing Date of
any Swing Line Loan, require (by giving notice thereof to each Lender not
later
than 10:00 a.m. (New York time) one Business Day before the date of such
Loan)
each Lender (including the Swing Line Bank) to make a Revolving Loan in the
amount of such Lender’s Pro Rata Share of such Swing Line Loan, for the purpose
of repaying all or any outstanding portion of such Swing Line
Loan. Not later than 2:00 p.m. (New York time) on the date of any
notice received pursuant to this Section 2.3(d), each Lender shall make
available its required Revolving Loan, in funds immediately available in
New
York to the Administrative Agent at its address specified pursuant to Article
XV. Revolving Loans made pursuant to this Section 2.3(d)
shall initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurocurrency Rate Loans in the manner
provided in Section 2.11 and subject to the other conditions and
limitations therein set forth and set forth in this Article
II. Unless a Lender shall have notified the Swing Line Bank,
prior to its making any Swing Line Loan, that any applicable condition precedent
set forth in Sections5.2, 5.3 and 5.4, as
applicable, had not then been satisfied, such Lender’s obligation to make
Revolving Loans pursuant to this Section 2.3(d) to repay Swing Line Loans
shall be unconditional, continuing, irrevocable and absolute and shall not
be
affected by any circumstances, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Administrative Agent, the Swing Line Bank or any other Person,
(b)
the failure to satisfy any condition set forth herein or the occurrence or
continuance of a Default or Unmatured Default, (c) any adverse change in
the
condition (financial or otherwise) of the Company, or (d) any other
circumstances, happening or event whatsoever. In the event that any
Lender fails to make payment to the Administrative Agent of any amount due
under
this Section 2.3(d), the Administrative Agent shall be entitled to
receive, retain and apply against such obligation the principal and interest
otherwise payable to such Lender hereunder until the Administrative Agent
receives such payment from such Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any reason any Lender
fails to make payment to the Administrative Agent of any amount due under
this
Section 2.3(d) or may not make any Revolving Loan required by this
Section 2.3, such Lender shall be deemed, at the option of the
Administrative Agent or the Swing Line Bank, to have unconditionally and
irrevocably purchased from the Swing Line Bank, without recourse or warranty,
an
undivided interest and participation in the Swing Line Loan in the amount
of
such Revolving Loan, and such interest and participation shall be paid by
such
Lender upon demand by the Swing Line Bank together with interest thereon
at the
Federal Funds Effective Rate for each day during the period commencing on
the
date of demand and ending on the date such amount is received. On the
Revolving Loan Commitment Termination Date, the Company shall repay in full
the
outstanding principal balance of the Swing Line Loans.
31
2.4 Term
Loans.
(a) In
a single Advance (which shall be a Business Day) occurring on or prior to
the
Term Loan Commitment Termination Date, each Lender that has a Term Loan
Commitment agrees that it will make loans (relative to such Lender, its “Term
Loans”) to the Company equal to such Lender’s respective Pro Rata Share of
the aggregate amount of the Term Loans requested by such Borrower to be made
on
such day. No amounts paid or prepaid with respect to Term Loans may
be reborrowed.
(b) Making
of Term Loans. Promptly after receipt of the Borrowing/
Conversion/Continuation Notice under Section 2.9 in respect of Term
Loans, the Administrative Agent shall notify each Lender of the requested
Term
Loan. Each Lender shall make available its Term Loan in accordance
with the terms of Section 2.8. The Administrative Agent will
promptly make the funds so received from the Lenders available to the Company
at
the Administrative Agent’s office in New York, New York on the Funding Date and
shall disburse such proceeds in accordance with the applicable Borrower’s
disbursement instructions set forth in such Borrowing/Conversion/Continuation
Notice. No Lender’s obligation to make any Term Loan shall be
affected by any other Lender’s failure to make any Term Loan.
(c) Scheduled
Repayment of Term Loans. On the Stated Maturity Date and on each
Payment Date set forth below, the Company shall make a scheduled repayment
of
the aggregate outstanding principal amount, if any, of all Term Loans in
an
amount equal to the percentage of the aggregate outstanding principal amount
of
Term Loans on the Funding Date (immediately after the making of the Term
Loans
on such date) set forth below opposite the Stated Maturity Date or such Payment
Date, as applicable:
32
Payment
Date
|
Percentage
of Required
Principal
Repayment
|
|
June
29, 2007
|
2.50%
|
|
September
28, 2007
|
2.50%
|
|
December
28, 2007
|
2.50%
|
|
March
28, 2008
|
2.50%
|
|
June
27, 2008
|
3.75%
|
|
September
26, 2008
|
3.75%
|
|
January
2, 2009
|
3.75%
|
|
April
3, 2009
|
3.75%
|
|
July
3, 2009
|
3.75%
|
|
October
2, 2009
|
3.75%
|
|
January
1, 2010
|
3.75%
|
|
April
2, 2010
|
3.75%
|
|
July
2, 2010
|
5.00%
|
|
October
1, 2010
|
5.00%
|
|
December
31, 2010
|
5.00%
|
|
April
1, 2011
|
5.00%
|
|
July
1, 2011
|
5.00%
|
|
September
30, 2011
|
5.00%
|
|
December
30, 2011
|
5.00%
|
|
Stated
Maturity Date for
Term
Loans
|
25%
or the then
outstanding
principal
amount
of all Term Loans,
if
different.
|
2.5 Rate
Options for all Advances; Maximum Interest Periods. The Loans may
be Floating Rate Advances or Fixed Rate Advances, or a combination thereof,
selected by the Company or the applicable Borrower in accordance with
Section 2.9. The Company or the applicable Borrower may
select, in accordance with Section 2.11, Rate Options and Interest
Periods applicable to portions of the Loans; provided that there shall be
no more than twelve (12) Interest Periods in effect with respect to all of
the
Loans at any time.
33
2.6 Prepayments.
(a) Optional
Prepayments. The Company or the applicable Borrower may from time
to time and at any time upon at least one (1) Business Day’s prior written
notice repay or prepay without penalty or premium all or any part of outstanding
Floating Rate Advances in an aggregate minimum amount of $5,000,000 (or the
Equivalent Amount) and in integral multiples of $1,000,000 (or the Equivalent
Amount) in excess thereof (unless Floating Rate Advances are prepaid in
full). Fixed Rate Advances may be voluntarily repaid or prepaid prior
to the last day of the applicable Interest Period, subject to the
indemnification provisions contained in Section 4.4, provided
that the applicable Borrower may not so prepay Fixed Rate Advances unless
it
shall have provided at least four (4) Business Days’ prior written notice to the
Administrative Agent of such prepayment. Each Borrower may, upon
prior written notice to the Administrative Agent and to the applicable Alternate
Currency Lender as prescribed in the applicable Alternate Currency Addendum
and
specifying that it is prepaying all or a portion of its Alternate Currency
Loans, prepay its Alternate Currency Loans in whole at any time, or from
time to
time in part in a Dollar Amount aggregating $5,000,000 or any larger multiple
of
$1,000,000 (or as otherwise specified in the applicable Alternate Currency
Addendum) by paying the principal amount to be paid together with all accrued
and unpaid interest thereon to and including the date of payment;
provided that any such payment occurring prior to the last day of any
Interest Period related to such Alternate Currency Loan shall be subject
to the
indemnification provisions contained in Section 4.4.
(b) Mandatory
Prepayments.
(i) If
at any time and for any reason (other than fluctuations in currency exchange
rates) the Revolving Credit Obligations are greater than the Aggregate Revolving
Loan Commitment, the Company shall immediately make or cause to be made a
mandatory prepayment of the Revolving Credit Obligations in an amount equal
to
such excess.
(ii) On
the last Business Day of each month, the Administrative Agent shall calculate
the Dollar Amount of all outstanding Alternate Currency Loans and Revolving
Credit Obligations not denominated in Dollars using, for each currency, the
arithmetic mean of the buy and sell spot rates of exchange at 11:00 a.m.
London
time of the Administrative Agent in the London interbank market (or other
market
where the Administrative Agent’s foreign exchange operations in respect of such
currency are then being conducted) and if, on such Business Day:
(A) the
Dollar Amount of the Revolving Credit Obligations exceeds one hundred percent
(100%) of the Aggregate Revolving Loan Commitment as a result of fluctuations
in
currency exchange rates, the Borrowers shall immediately prepay Revolving
Loans
in an aggregate amount such that after giving effect thereto the Dollar Amount
of the Revolving Credit Obligations is less than or equal to the Aggregate
Revolving Loan Commitment; or
34
(B) the
Dollar Amount of the aggregate outstanding principal amount of Alternate
Currency Loans in the same Alternate Currency exceeds the aggregate Alternate
Currency Commitments with respect thereto as a result of fluctuations in
currency exchange rates, the applicable Borrowers shall on such date prepay
Alternate Currency Loans in such Alternate Currency in an aggregate amount
such
that after giving effect thereto the Dollar Amount of all Alternate Currency
Loans is less than or equal to the aggregate Alternate Currency Commitments
with
respect thereto.
(iii) All
of the mandatory prepayments made under Section 2.6 shall be applied to
the Revolving Credit Obligations, first to Floating Rate Loans and to any
Fixed
Rate Loans maturing on such date and then to subsequently maturing Fixed
Rate
Loans in order of maturity.
2.7 Reductions
of Commitments. The Company may permanently reduce (i) the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders with a Commitment, in an aggregate minimum amount of $5,000,000 and
in
integral multiples of $1,000,000 in excess of that amount (unless the Aggregate
Revolving Loan Commitment is reduced in whole) or (ii) the Swing Line
Commitments in whole or in part in amounts of $1,000,000 upon at least three
(3)
Business Day’s prior written notice to the Administrative Agent and the Swing
Line Bank, which notice shall specify the amount of any such reduction;
provided that the amount of the Aggregate Revolving Loan Commitment may
not be reduced below the Dollar Amount of the outstanding Revolving Credit
Obligations or below the aggregate amount of Alternate Currency Commitments
or
below the aggregate amount of the Swing Line Commitment. All accrued
commitment fees shall be payable on the effective date of any termination
of all
or any part the obligations of the Lenders to make Loans
hereunder. Each Borrower may, upon three (3) Business Days prior
written notice to the Administrative Agent and to the applicable Alternate
Currency Lender, terminate entirely at any time or reduce from time to time
by
an aggregate Dollar Amount of $5,000,000 or any larger multiple of $1,000,000
(or as set forth on the applicable Alternate Currency Addendum), the unused
portions of the applicable Alternate Currency Commitment as specified by
the
applicable Borrower in such notice to the Administrative Agent and the
applicable Alternate Currency Lender; provided that at no time shall the
Alternate Currency Commitment of any Lender in respect of any Alternate Currency
be reduced to an amount less than the total outstanding principal amount
of all
Alternate Currency Loans of such Lender made in such Alternate
Currency.
2.8 Method
of Borrowing. Not later than 2:00 p.m. (New York time) (a) on the
Funding Date, each Lender with a Term Loan Commitment shall make available
its
Term Loan and (b) on each Borrowing Date, each Lender with a Revolving Loan
Commitment shall make available its Revolving Loan, in each case in immediately
available funds in the applicable Agreed Currency to the Administrative Agent
at
its address specified on its signature page hereto or as otherwise specified
pursuant to Article XV, unless the Administrative Agent has notified the
Lenders that such Loan is to be made available to the applicable Borrower
at the
Administrative Agent’s Eurocurrency Payment office, in which case each Lender
shall make available its Loan or Loans, in funds immediately available to
the
Administrative Agent at its Eurocurrency Payment Office, not later than 12:00
noon (local time in the city of the Administrative Agent’s Eurocurrency Payment
Office) in the Agreed Currency designated by the Administrative
Agent. The Administrative Agent will promptly make the funds so
received from the Lenders available to the applicable Borrower at the
Administrative Agent’s aforesaid address or Eurocurrency Payment Office, as
applicable.
35
2.9 Method
of Selecting Types and Interest Periods for Advances. The
applicable Borrower shall select the Type of Advance, the Agreed Currency
and/or
Alternate Currency and, in the case of each Fixed Rate Advance, the Interest
Period applicable to each such Advance from time to time. The
applicable Borrower shall give the Administrative Agent irrevocable notice
in
substantially the form of Exhibit A hereto (a
“Borrowing/Conversion/Continuation Notice”) not later than 11:00 a.m.
(New York time) (a) one (1) Business Day before the Borrowing Date of each
Floating Rate Advance, and (b) three (3) Business Days before the Borrowing
Date
for each Eurocurrency Rate Advance, to be made in Dollars, (c) four (4)
Business Days before the Borrowing Date for each Eurocurrency Rate Advance
to be
made in any Agreed Currency other than Dollars and (d) four (4) Business
Days before the Borrowing Date for each Alternate Currency Loan (or such
other
period as may be agreed to by the Administrative Agent and the applicable
Borrower), provided that such notice to the applicable Alternate Currency
Lender
shall be given by 11:00 a.m. (local time) specifying: (i) the Borrowing Date
(which shall be a Business Day) of such Advance; (ii) the aggregate amount
of
such Advance; (iii) the Type of Advance selected; (iv) the Agreed Currency
or
Alternate Currency applicable thereto; and (v) in the case of each Fixed
Rate
Loan, the Interest Period. Each Floating Rate Advance and all
Obligations other than Loans shall bear interest from and including the date
of
the making of such Advance in the case of Loans, and the date such Obligation
is
due and owing in the case of such other Obligations, to (but not including)
the
date of repayment thereof at the Floating Rate, changing when and as such
Floating Rate changes. Changes in the rate of interest on that
portion of any Advance maintained as a Floating Rate Loan will take effect
simultaneously with each change in the Alternate Base Rate or Alternate Currency
Rate, as applicable. Each Fixed Rate Advance shall bear interest from
and including the first day of the Interest Period applicable thereto to
(but
not including) the last day of such Interest Period at the interest rate
determined as applicable to such Fixed Rate Advance.
2.10 Minimum
Amount of Each Advance. Each Advance (other than an Advance to
repay a Swing Line Loan or Reimbursement Obligation) shall be in the minimum
Dollar Amount of $5,000,000 (or the Approximate Equivalent Amount of any
Agreed
Currency other than Dollars or any Alternate Currency) and in Dollar Amount
multiples of $1,000,000 (or the Approximate Equivalent Amount of any Agreed
Currency other than Dollars or any Alternate Currency) if in excess thereof
(or
such other amounts as may be specified in the applicable Alternate Currency
Addendum); provided that any Floating Rate Advance may be in the amount
of the unused Aggregate Revolving Loan Commitment.
2.11 Method
of Selecting Types and Interest Periods for Conversion and Continuation of
Advances.
(a) Right
to Convert. The applicable Borrower may elect from time to time,
subject to the provisions of Section 2.5 and this Section 2.11, to
convert all or any part of a Loan (other than a Swing Line Loan) of any Type
into any other Type or Types of Loans (other than a Swing Line Loan);
provided that any conversion of any Eurocurrency Rate Advance shall be
made on, and only on, the last day of the Interest Period applicable
thereto.
36
(b) Automatic
Conversion and Continuation. Floating Rate Loans shall continue
as Floating Rate Loans unless and until such Floating Rate Loans are converted
into Fixed Rate Loans. Fixed Rate Loans shall continue as Fixed Rate
Loans until the end of the then applicable Interest Period therefor, at which
time such Fixed Rate Loans shall be automatically converted into Floating
Rate
Loans unless the Company shall have given the Administrative Agent notice
in
accordance with Section 2.11(d) requesting that, at the end of such
Interest Period, such Fixed Rate Loans continue as a Fixed Rate
Loan. Unless a Borrowing/Conversion/Continuation Notice shall have
timely been given in accordance with the terms of this Section 2.11,
Fixed Rate Loans in an Agreed Currency other than Dollars and Alternate Currency
Loans shall automatically continue as Fixed Rate Loans in the same Agreed
Currency or Alternate Currency Loans in the same Alternate Currency, as
applicable, with an Interest Period of one (1) month.
(c) No
Conversion Post-Default or Post-Unmatured
Default. Notwithstanding anything to the contrary contained in
Section 2.11(a) or Section 2.11(b), no Loan may be converted into
or continued as a Fixed Rate Loan (except with the consent of the Required
Lenders) when any Default or Unmatured Default has occurred and is
continuing.
(d) Borrowing/Conversion/Continuation
Notice. The Company shall give the Administrative Agent a
Borrowing/Conversion/Continuation Notice with respect to each conversion
of a
Floating Rate Loan (that is not an Alternate Currency Loan) into a Fixed
Rate
Loan or continuation of a Eurocurrency Rate Loan not later than 11:00 a.m.
(New
York time) (i) three (3) Business Days prior to the date of the requested
conversion or continuation, with respect to any Loan to be converted or
continued as a Eurocurrency Rate Loan in Dollars, (ii) four (4) Business
Days
prior to the date of the requested conversion or continuation with
respect to any Loan to be converted or continued as a Eurocurrency Rate Loan
in
an Agreed Currency other than Dollars, and (iii) five (5) Business Days before
the date of the requested conversion or continuation with respect to the
conversion or continuation of any Alternate Currency Loan (or such other
period
as may be agreed to by the Administrative Agent), and the applicable Subsidiary
Borrower shall give the applicable Alternate Currency Lender irrevocable
notice
by 11:00 a.m. (local time) three (3) Business Days prior to the conversion
or
continuation of such Alternate Currency Loan (or such other period as may
specified in the applicable Alternate Currency Addendum), specifying: (x)
the
requested date (which shall be a Business Day) of such conversion or
continuation; (y) the amount and Type of the Loan to be converted or continued;
and (z) the amount of Eurocurrency Rate Loan(s) or Alternate Currency Loan(s),
as applicable, into which such Loan is to be converted or continued, the
Agreed
Currency or Alternate Currency, as applicable, and the duration of the Interest
Period applicable thereto.
37
(e) Notwithstanding
anything herein to the contrary, (i) Eurocurrency Rate Loans in an Agreed
Currency may be continued as Eurocurrency Rate Loans only in the same Agreed
Currency, and (ii) Alternate Currency Loans in an Alternate Currency may
be
continued as Alternate Currency Loans only in the same Alternate
Currency.
2.12 Default
Rate. After the occurrence and during the continuance of a
Default, each outstanding Loan shall bear interest at a rate equal to the
rate
otherwise applicable thereto (giving effect to the provisions of Section
2.16(d)(ii)) plus 2% per annum.
2.13 Method
of Payment. All payments of principal, interest, fees,
commissions, and other amounts payable hereunder shall be made, without setoff,
deduction or counterclaim in immediately available funds to the Administrative
Agent (a) at the Administrative Agent’s address specified pursuant to
Article XV with respect to Advances or other Obligations denominated
in Dollars and (b) at the Administrative Agent’s Eurocurrency Payment Office
with respect to any Advance or other Obligations denominated in an Agreed
Currency other than Dollars, or at any other Lending Installation of the
Administrative Agent specified in writing by the Administrative Agent to
the
Company, by 1:00 p.m. (New York time) on the date when due and shall be applied
ratably among the applicable Lenders with respect to any principal and interest
due in connection with Loans. Each Advance shall be repaid or prepaid
in the Agreed Currency in which it was made in the amount borrowed and interest
payable thereon shall also be paid in such currency. Each payment
delivered to the Administrative Agent for the account of any Lender shall
be
delivered promptly by the Administrative Agent to such Lender in the same
type
of funds which the Administrative Agent received at its address specified
in
Schedule 2.13 or at any Lending Installation specified in a notice
received by the Administrative Agent from such Lender. The Company
authorizes the Administrative Agent to charge the account of the Company
maintained with BNS for each payment of principal, interest, fees, commissions
and L/C Obligations as it becomes due hereunder. Each reference to
the Administrative Agent in this Section 2.13 shall also be deemed to
refer, and shall apply equally, to each Issuing Bank, in the case of payments
required to be made by the Company to any Issuing Bank pursuant to
Article III.
All
payments to be made by the Borrowers hereunder in respect of any Alternate
Currency Loans shall be made in the currencies in which such Loans are
denominated and in funds immediately available, at the office or branch from
which the Loan was made pursuant to Section 2.23 and the applicable
Alternate Currency Addendum not later than 3:00 p.m. (New York time) on the
date
on which such payment shall become due. Promptly, and in any event
within two (2) Business Days after receipt, upon receipt of any payment of
principal of the Alternate Currency Loans the applicable Alternate Currency
Lender shall give written notice to the Administrative Agent by telex or
telecopy of the receipt of such payment.
Notwithstanding
the foregoing provisions of this Section 2.13, if, after the making of
any Advance in any currency other than Dollars, currency control or exchange
regulations are imposed in the country which issues such Agreed Currency
or
Alternate Currency, as applicable, with the result that different types of
such
Agreed Currency or Alternate Currency, as applicable, (the “New
Currency”) are introduced and the type of currency in which the Advance was
made (the “Original Currency”) no longer exists or any Borrower is not
able to make payment to the Administrative Agent for the account of the Lenders
or Alternate Currency Lender, as applicable, in such Original Currency, then
all
payments to be made by the Borrowers hereunder in such currency shall be
made to
the Administrative Agent or Alternate Currency Lender, as applicable, in
such
amount and such type of the New Currency or Dollars as shall be equivalent
to
the amount of such payment otherwise due hereunder in the Original Currency,
it
being the intention of the parties hereto that the Borrowers take all risks
of
the imposition of any such currency control or exchange
regulations. In addition, notwithstanding the foregoing provisions of
this Section 2.13, if, after the making of any Advance in any currency
other than Dollars, the applicable Borrower is not able to make payment to
the
Administrative Agent for the account of the Lenders or the applicable Alternate
Currency Lender in the type of currency in which such Advance was made because
of the imposition of any such currency control or exchange regulation, then
such
Advance shall instead be repaid when due in Dollars in a principal amount
equal
to the Dollar Amount (as of the date of repayment) of such Advance.
38
2.14 Evidence
of Debt.
(a) Each
Lender shall maintain in accordance with its usual practice an account or
accounts (a “Loan Account”) evidencing all indebtedness of the Borrowers
owing to such Lender hereunder from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(b) The
Register maintained by the Administrative Agent pursuant to Section
14.3(c) shall reflect (i) the date and the amount of each Loan made
hereunder, the Type thereof and the Interest Period, if any, applicable thereto,
(ii) the amount and the currency of any principal or interest due and payable
or
to become due and payable from the Borrowers to each Lender hereunder,
(iii) the effective date and amount of each Assignment Agreement delivered
to and accepted by it and the parties thereto pursuant to Section 14.3,
(iv) the amount of any sum received by the Administrative Agent hereunder
for
the account of the Lenders and each Lender’s share thereof, and (v) all other
appropriate debits and credits as provided in this Agreement, including,
without
limitation, all fees, charges, expenses and interest.
(c) The
entries made in the Loan Account, the Register and the other accounts maintained
pursuant to subsections (a) or (b) of this Section 2.14
shall be presumptively correct for all purposes, absent manifest error;
provided that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect
the
obligation of the Borrowers to repay the Obligations in accordance with the
terms of this Agreement.
(d) Any
Lender making a Revolving Loan may request that the Revolving Loans made
by it
be evidenced by a promissory note in substantially the form of Exhibit
G-1. Any Lender making a Term Loan may request that the Term
Loans made by it be evidenced by a promissory note in substantially the form
of
Exhibit G-2. In such event, the applicable Borrower shall
promptly prepare, execute and deliver to such Lender a promissory note for
such
Loans payable to the order of such Lender and in a form approved by the
Administrative Agent and consistent with the terms of this
Agreement. Thereafter, the Loans evidenced by such promissory note
and interest thereon shall at all times (including after assignment pursuant
to
Section 14.3) be represented by one or more promissory notes in such form
payable to the order of the payee named therein.
39
2.15 Telephonic
Notices. The Borrowers authorize the Lenders and the
Administrative Agent to extend Loans, effect selections of Types of Advances
and
to transfer funds based on telephonic notices made by any person or persons
the
Administrative Agent or any Lender in good faith believes to be acting on
behalf
of the applicable Borrower. The Borrowers agree to deliver promptly
to the Administrative Agent a written confirmation, signed by an Authorized
Officer. If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders, the records
of the Administrative Agent and the Lenders shall govern absent manifest
error.
2.16 Promise
to Pay; Interest and Fees; Interest Payment Dates; Interest and Fee Basis;
Taxes.
(a) Promise
to Pay. Each Borrower unconditionally promises to pay when due
the principal amount of each Loan and all other Obligations incurred by it,
and
to pay all unpaid interest and Mandatory Costs (if any) accrued thereon,
in
accordance with the terms of this Agreement and the other Loan
Documents.
(b) Interest
Payment Dates. Interest accrued on each Floating Rate Loan shall
be payable on each Payment Date, commencing with the first such date to occur
after the date hereof, upon any prepayment whether by acceleration or otherwise,
and at maturity (whether by acceleration or otherwise plus Mandatory
Costs (if any)). Interest accrued on each Fixed-Rate Loan shall be
payable on the last day of its applicable Interest Period, on any date on
which
the Fixed-Rate Loan is prepaid, whether by acceleration or otherwise, and
at
maturity. Interest accrued on each Fixed-Rate Loan having an Interest
Period longer than three months shall also be payable on the last day of
each
three-month interval during such Interest Period. Interest accrued on
the principal balance of all other Obligations shall be payable in arrears
(i) on the last day of each fiscal month of the Company, commencing on the
first such day following the incurrence of such Obligation, (ii) upon
repayment thereof in full or in part, and (iii) if not theretofore paid in
full, at the time such other Obligation becomes due and payable (whether
by
acceleration or otherwise).
(c) Fees.
(i) The
Company shall pay to the Administrative Agent for the account of the Lenders
in
accordance with their Pro Rata Shares, from and after the Closing Date until
the
Revolving Loan Commitment Termination Date, a non-refundable commitment fee
accruing at the rate of the then Applicable Commitment Fee Percentage on
the
daily average unutilized portion of such Lender’s Revolving Loan Commitment
(treating Alternate Currency Loans as usage). The commitment fee
shall be payable in arrears on each Payment Date after the Closing Date,
and, in
addition, on any date on which the Commitment shall be terminated in whole
or,
with respect to such terminated amount, in part.
40
(ii) The
Company agrees to pay to the Administrative Agent, for the sole account of
the
Administrative Agent (unless otherwise agreed between the Administrative
Agent
and any Lender) the fees set forth in each Fee Letter, payable at the times
and
in the amounts set forth therein.
(iii) The
applicable Borrower agrees to pay to each Alternate Currency Lender, for
its
sole account, a fronting fee equal to the percentage set forth in the applicable
Alternate Currency Addendum multiplied by the average daily outstanding Dollar
Amount of all Alternate Currency Loans made by such Alternate Currency
Lender.
(d) Interest
and Fee Basis; Applicable Floating Rate Margin, Applicable Fixed Rate Margin
and
Applicable Commitment Fee Percentage.
(i) Interest
on all Fixed-Rate Loans (except as provided otherwise in the applicable
Alternate Currency Addendum in the case of an Alternate Currency Loan) and
fees
shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest on all Floating Rate Loans shall be calculated for
actual days elapsed on the basis of a 365-day, or when appropriate 366-day,
year. Interest shall be payable for the day an Obligation is incurred
but not for the day of any payment on the amount paid if payment is received
prior to 3:00 p.m. (local time) at the place of payment. If any
payment of principal of or interest on a Loan or any payment of any other
Obligations shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest, fees and commissions in connection with such payment.
(ii) (A)
For the period commencing on the Amendment Effective Date and ending on the
adjustment date determined in accordance with the next paragraph of this
clause (ii) with respect to the fiscal quarter of the Company ending
March 30, 2007, the Applicable Floating Rate Margin, Applicable Fixed Rate
Margin and Applicable Commitment Fee Percentage shall be determined based
on the
Merger Date Leverage Ratio and (B) thereafter, the Applicable Floating Rate
Margin, Applicable Fixed Rate Margin and Applicable Commitment Fee Percentage
shall be determined from time to time on the basis of the then applicable
Leverage Ratio in accordance with the following table:
41
LEVERAGE
RATIO
|
APPLICABLE
FLOATING RATE MARGIN
|
APPLICABLE
FIXED RATE MARGIN
|
APPLICABLE
COMMITMENT FEE PERCENTAGE
|
Less
than 1.00
|
0.000%
|
0.625%
|
0.125%
|
1.00
or greater, but less than 1.50
|
0.000%
|
0.750%
|
0.150%
|
1.50
or greater, but less than 2.00
|
0.000%
|
0.875%
|
0.175%
|
2.00
or greater, but less than 2.50
|
0.000%
|
1.000%
|
0.200%
|
2.50
or greater
|
0.125%
|
1.125%
|
0.225%
|
Upon
receipt of the financial statements to be delivered by the Company in accordance
with Section 7.1(a)(i) or (ii), as applicable, for any fiscal
quarter or, if earlier, upon receipt of the Company’s audited financial
statements for any fiscal year, the Applicable Floating Rate Margin, Applicable
Fixed Rate Margin and Applicable Commitment Fee Percentage shall be adjusted,
such adjustment being effective five (5) Business Days following the
Administrative Agent’s receipt of such financial statements and the compliance
certificate required to be delivered in connection therewith pursuant to
Section 7.1(a)(iii); provided that if the Company shall not have
timely delivered its financial statements in accordance with Section
7.1(a)(i) or (ii), as applicable, then commencing on the date upon
which such financial statements should have been delivered and continuing
until
such financial statements are actually delivered, it shall be assumed for
purposes of determining the Applicable Floating Rate Margin, Applicable Fixed
Rate Margin and Applicable Commitment Fee Percentage that the Leverage Ratio
was
greater than 2.50 to 1.0. Notwithstanding the foregoing, for so long
as any Default shall have occurred and be continuing, the Applicable Floating
Rate Margin, Applicable Fixed Rate Margin and Applicable Commitment Fee
Percentage shall be the highest Applicable Floating Rate Margin, Applicable
Fixed Rate Margin and Applicable Commitment Fee Margin set forth in the
foregoing table.
(e) Taxes.
(i) Any
and all payments by the Borrowers hereunder (whether in respect of principal,
interest, fees or otherwise) shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings or any interest, penalties and liabilities with respect
thereto but excluding, in the case of each Lender and the Administrative
Agent,
such taxes (including income taxes, franchise taxes and branch profit taxes)
as
are imposed on or measured by such Lender’s or the Administrative Agent’s, as
the case may be, net income by the United States of America, or any Governmental
Authority of the jurisdiction under the laws of which such Lender or the
Administrative Agent, as the case may be, is organized or any taxes imposed
by
any jurisdiction with which such Lender or Administrative Agent has a present
or
former connection (other than any connection arising solely from having
executed, delivered, performed its obligations or received payment under,
or
enforced this Agreement) (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings, and liabilities which the Administrative
Agent or a Lender determines to be applicable to this Agreement, the other
Loan
Documents, the Commitments, the Loans or the Letters of Credit being hereinafter
referred to as “Taxes”). If any Borrower shall be required by
law to deduct or withhold any Taxes from or in respect of any sum payable
hereunder or under the other Loan Documents to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so that
after
making all required deductions or withholdings (including deductions applicable
to additional sums payable under this Section 2.16(e)) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the
sum it
would have received had no such deductions or withholdings been made, (ii)
the
applicable Borrower shall make such deductions or withholdings, and (iii)
the
applicable Borrower shall pay the full amount deducted or withheld to the
relevant taxation authority or other authority in accordance with applicable
law.
42
(ii) In
addition, the Borrowers agree to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges, or similar levies which
arise from any payment made hereunder, from the issuance of Letters of Credit
hereunder, or from the execution, delivery or registration of, or otherwise
with
respect to, this Agreement, the other Loan Documents, the Commitments, the
Loans
or the Letters of Credit (hereinafter referred to as “Other
Taxes”).
(iii) The
Company and each Subsidiary Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 2.16(e)) paid by
such Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or with respect
thereto whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within thirty (30) days
after the date such Lender or the Administrative Agent (as the case may be)
makes written demand therefor. A certificate as to any additional
amount payable to any Lender or the Administrative Agent under this
Section 2.16(e) submitted to the applicable Borrower and the
Administrative Agent (if a Lender is so submitting) by such Lender or the
Administrative Agent shall show in reasonable detail the amount payable and
the
calculations used to determine such amount and shall attach a copy of the
original official document from the Governmental Authority asserting such
Taxes
or Other Taxes and shall, absent manifest error, be final, conclusive and
binding upon all parties hereto.
(iv) Within
thirty (30) days after the date of any payment of Taxes or Other Taxes by
the
Company or any Subsidiary Borrower, the Company shall furnish to the
Administrative Agent the original or a certified copy of a receipt evidencing
payment thereof.
(v) Without
prejudice to the survival of any other agreement of the Company and the
Subsidiary Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 2.16(e) shall survive the payment in full
of all Obligations, the termination of the Letters of Credit and the termination
of this Agreement.
43
(vi) Each
Lender (including any Replacement Lender or Purchaser) that is not created
or
organized under the laws of the United States of America or a political
subdivision thereof (each a “Non-U.S. Lender”) shall deliver to the
Company and the Administrative Agent on or before the Closing Date, or, if
later, the date on which such Lender becomes a Lender pursuant to
Section 14.3 (and from time to time thereafter upon the request of
the Company or the Administrative Agent, but only for so long as such Non-U.S.
Lender is legally entitled to do so), either (A) two (2) duly completed copies
of either (x) IRS Form W-8BEN, or (y) IRS Form W-8ECI, or in either case
an
applicable successor form or (B) in the case of a Non-U.S. Lender that is
claiming the benefits of the exemption for portfolio interest under Section
881(c) of the Code, (I) a certificate of a duly authorized officer of such
Non-U.S. Lender to the effect that such Non-U.S. Lender is not (x) a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, (y) a “10 percent
shareholder” of the Company or any Subsidiary Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or (z) a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code (such certificate, an “Exemption Certificate”)
and (II) two (2) duly completed copies of IRS Form W-8BEN or applicable
successor form. Each such Lender further agrees to deliver to the
Company and the Administrative Agent from time to time a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender
in
a form satisfactory to the Company and the Administrative Agent, before or
promptly upon the occurrence of any event requiring a change in the most
recent
certificate previously delivered by it to the Company and the Administrative
Agent pursuant to this Section 2.16(e)(vi). Further, each
Lender which delivers a form or certificate pursuant to this
clause (vi) covenants and agrees to deliver to the Company and the
Administrative Agent within fifteen (15) days prior to the expiration of
such
form, for so long as this Agreement is still in effect, another such certificate
and/or two (2) accurate and complete original newly-signed copies of the
applicable form (or any successor form or forms required under the Code or
the
applicable regulations promulgated thereunder).
(vii) Each
Lender shall promptly furnish to the Company and the Administrative Agent
such
additional official forms prescribed by Applicable Law and documents required
to
be attached thereto (“Additional Documentation”) as may be reasonably
required by any Borrower or the Administrative Agent to establish any exemption
from or reduction of any Taxes or Other Taxes required to be deducted or
withheld; provided the applicable Lender is legally entitled to provide such
Additional Documentation and provided further, that applicable Lender will
incur
no adverse consequences (as determined in such Lender’s sole discretion after
consultation with the Company) as a result of furnishing such Additional
Documentation. Notwithstanding any other provision of this Section
2.16(e), no Borrower shall be obligated to gross up any payments to any
Lender pursuant to Section 2.16(e)(i), or to indemnify any Lender
pursuant to Section 2.16(e)(iii), in respect of any withholding taxes to
the extent imposed solely as a result of the failure of such Lender to comply
with the provisions of this Section 2.16(e)(vii).
(viii) Notwithstanding
any other provision of this Section 2.16(e), no Borrower shall be
obligated to gross up any payments to any Lender pursuant to Section
2.16(e)(i), or to indemnify any Lender pursuant to Section
2.16(e)(iii), in respect of United States federal withholding taxes (A) to
which amounts payable to such Lender is subject as of the time such Lender
becomes a party hereto or (B) to the extent imposed as a result of (I) the
failure of such Lender to deliver to the Company the form or forms and/or
an
Exemption Certificate, as applicable to such Lender, pursuant to Section
2.16(e)(vi) or 2.16(e)(vii), or (II) such form or forms and/or
Exemption Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by the
Lender
being untrue or inaccurate on the date delivered in any material respect;
provided that the applicable Borrower shall be obligated to gross up any
payments to any such Lender pursuant to Section 2.16(e)(i), and to
indemnify any such Lender pursuant to Section 2.16(e)(iii), in respect of
United States federal withholding taxes if (x) any such failure to deliver
a
form or forms or an Exemption Certificate or the failure of such form or
forms
or exemption certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted from
a
change in any applicable statute, treaty, regulation or other applicable
law or
any interpretation of any of the foregoing occurring after the date such
Lender
became a party hereto which change rendered such Lender no longer legally
entitled to deliver such form or forms or Exemption Certificate or otherwise
ineligible for a complete exemption from U.S. federal withholding tax, or
rendered the information or the certifications made in such form or forms
or
Exemption Certificate untrue or inaccurate in any material respect, (y) the
obligation to gross up payments to any such Lender pursuant to Section
2.16(e)(i), or to indemnify any such Lender pursuant to Section
2.16(e)(iii), is with respect to a Purchaser that becomes a Purchaser as a
result of an assignment made at the request of the Company or the redesignation
of the Lender’s lending office made at the request of the Borrower.
44
2.17 Notification
of Advances, Interest Rates, Prepayments and Aggregate Revolving Loan Commitment
Reductions. Promptly after receipt thereof, the Administrative
Agent will notify each Lender of the contents of each Aggregate Revolving
Loan
Commitment reduction notice, Borrowing/Conversion/Continuation Notice, and
repayment notice received by it hereunder. The Administrative Agent
will notify the Company or applicable Borrower and each Lender of the interest
rate and Agreed Currency applicable to each Fixed-Rate Loan promptly upon
determination of such interest rate and Agreed Currency and will give each
Lender prompt notice of each change in the Alternate Base Rate.
2.18 Lending
Installations. Each Lender may book its Loans or Letters of
Credit at any Lending Installation selected by such Lender and may change
its
Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation. Each Lender may, by
written or facsimile notice to the Administrative Agent and the Company,
designate a Lending Installation through which Loans will be made by it and
for
whose account Loan payments and/or payments of L/C Obligations are to be
made.
2.19 Non-Receipt
of Funds by the Administrative Agent. Unless a Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the
date
on which it is scheduled to make payment to the Administrative Agent of (a)
in
the case of a Lender, the proceeds of a Loan or (b) in the case of any Borrower,
a payment of principal, interest fees or other Obligations to the Administrative
Agent for the account of any of the Lenders, that it does not intend to make
such payment, the Administrative Agent may assume that such payment has been
made. The Administrative Agent may, but shall not be obligated to,
make the amount of such payment available to the intended recipient in reliance
upon such assumption. If such Lender or the applicable Borrower, as
the case may be, has not in fact made such payment to the Administrative
Agent,
the recipient of such payment shall, on demand by the Administrative Agent,
repay to the Administrative Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the
date
such amount was so made available by the Administrative Agent until the date
the
Administrative Agent recovers such amount at a rate per annum equal to (i)
in
the case of payment by a Lender, the Federal Funds Effective Rate for such
day
or (ii) in the case of payment by a Borrower, the interest rate applicable
to
the relevant Loan.
45
2.20 Termination
Date. This Agreement shall be effective until the date (the
“Termination Date”) upon which (a) all of the Obligations (other than
contingent indemnity obligations) shall have been fully and indefeasibly
paid
and satisfied, (b) all commitments of the Lenders to extend credit hereunder
have expired or have been terminated, (c) all of the Letters of Credit shall
have expired, been canceled or terminated and (d) all Hedging Agreements
(except
for Hedging Agreements relating to foreign currency exchange) shall have
been
terminated. Notwithstanding the occurrence of the Termination Date,
obligations of the Borrowers and other terms hereof which by the terms of
this
Agreement survive termination shall survive the Termination Date.
2.21 Replacement
of Certain Lenders. In the event a Lender (“Affected
Lender”) shall have: (a) failed to fund its Pro Rata Share of any
Advance requested by the applicable Borrower, or to make payment in respect
of
any Alternate Currency Loan purchased by such Lender pursuant to Section
2.23(e), which such Lender is obligated to fund under the terms of this
Agreement and which failure has not been cured, (b) requested compensation
from any Borrower under Sections 2.16(e), 4.1 or 4.2 to
recover Taxes, Other Taxes or other additional costs incurred by such Lender
which are not being incurred generally by the other Lenders except as provided
under any applicable Alternate Currency Addendum, or (c) delivered a notice
pursuant to Section 4.3 claiming that such Lender is unable to extend
Eurocurrency Rate Loans to the Company for reasons not generally applicable
to
the other Lenders, then, in any such case, after the engagement of one or
more
“Replacement Lenders” (as defined below) by the Company and/or the
Administrative Agent, the Company or the Administrative Agent may make written
demand on such Affected Lender (with a copy to the Administrative Agent in
the
case of a demand by the Company and a copy to the Company in the case of
a
demand by the Administrative Agent) for the Affected Lender to assign, and
such
Affected Lender shall use commercially reasonable efforts to assign pursuant
to
one or more duly executed Assignment Agreements five (5) Business Days after
the
date of such demand, to one or more financial institutions that comply with
the
provisions of Section 14.3(a) which the Company or the Administrative
Agent, as the case may be, shall have engaged for such purpose (each, a
“Replacement Lender”), all of such Affected Lender’s rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, its Commitment, all Loans owing to it, all of its
participation interests in existing Letters of Credit, and its obligation
to
participate in additional Letters of Credit and Alternate Currency Loans
hereunder) in accordance with Section 14.3. The
Administrative Agent is authorized to execute one or more of such Assignment
Agreements as attorney-in-fact for any Affected Lender failing to execute
and
deliver the same within five (5) Business Days after the date of such
demand. With respect to such assignment the Affected Lender shall be
entitled to receive, in cash, all amounts due and owing to the Affected Lender
hereunder or under any other Loan Document, including, without limitation,
the
aggregate outstanding principal amount of the Loans owed to such Lender,
together with accrued interest thereon through the date of such assignment,
amounts payable under Sections 2.16(e), 4.1, and 4.2
with respect to such Affected Lender and compensation payable under Section
2.16(c) in the event of any replacement of any Affected Lender under
clause (b) or clause (c) of this
Section 2.21; provided that upon such Affected Lender’s
replacement, such Affected Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.16(e), 4.1,
4.2, 4.4, and 11.6, as well as to any fees accrued
for its
account hereunder and not yet paid, and shall continue to be obligated under
Section 12.8.
46
2.22 Subsidiary
Borrowers.
(a) Subject
to prior or concurrent satisfaction of the conditions precedent in this
Section 2.22, any Wholly-Owned Subsidiary of the Company may become a
party to this Agreement and a “Subsidiary Borrower” hereunder on or after the
Amendment Effective Date, entitled to all of the rights and subject to all
of
the obligations incident thereto.
(b) The
Company shall have provided to the Administrative Agent (with sufficient
copies
for each Lender) a written request that it desires to add as a party to this
Agreement a Wholly-Owned Subsidiary. Such written request shall
include the name and address of the proposed “Subsidiary Borrower”, its
jurisdiction of formation or organization, its principal place of business
and a
brief description of its significant business activities.
(c) If
the proposed “Subsidiary Borrower” is a Domestic Subsidiary, the Company shall
obtain the written consent of the Administrative Agent to add such
Person.
(d) If
the proposed “Subsidiary Borrower” is a Foreign Subsidiary, the Company shall
obtain the written consent of the Administrative Agent and each Lender, which
consent of each Lender shall not be unreasonably withheld (it being understood
that a Lender shall be deemed to have acted reasonably in withholding its
consent if (i) it is unlawful for any Lender to make Loans under this Agreement
to the proposed “Subsidiary Borrower,” (ii) any Lender cannot or has not
determined that it is lawful to do so, (iii) the making of a Loan to the
proposed “Subsidiary Borrower” might subject any Lender to adverse tax
consequences, or (iv) any Lender is required or has determined that it is
prudent to register or file in the jurisdiction of formation or organization
of
the proposed Subsidiary Borrower and it does not wish to do so).
(e) The
Administrative Agent shall have received from the proposed “Subsidiary Borrower”
a certificate, dated the effective date of the Assumption Letter duly executed
and delivered by the Secretary, Assistant Secretary or other authorized
representative of such Subsidiary Borrower as to:
47
(i) resolutions
of its Board of Directors or its executive committee, as the case may be,
then
in full force and effect authorizing the execution, delivery and performance
of
this Agreement and each other Loan Document to be executed by it and evidence
of
any necessary filing of such resolution with the appropriate governmental
office;
(ii) the
certificate of incorporation or equivalent document of such Subsidiary
Borrower;
upon
which certificate each Lender may conclusively rely until the Administrative
Agent shall have received a further certificate of the Secretary or other
authorized Person of such Subsidiary Borrower canceling or amending such
prior
certificate. In addition, each Subsidiary Borrower shall have
delivered to the Administrative Agent a good standing certificate from the
relevant governmental regulatory institution of its jurisdiction of
organization, if applicable in such jurisdiction, each such certificate to
be
dated a date reasonably near (but prior to) the date such Subsidiary Borrower
becomes a Borrower hereunder.
(f) The
Administrative Agent shall have received (i) an original Assumption Letter
with
sufficient counterparts for each Lender, duly executed and completed by the
proposed Subsidiary Borrower, and (ii) such other guaranty and subordinated
intercompany indebtedness documents (and related closing documentation) as
required by Section 5.3 or as otherwise may be reasonably required by the
Administrative Agent, such documents with respect to any additional Subsidiaries
to be substantially similar in form and substance to the Loan Documents executed
on or about the Amendment Effective Date by or in respect of the Subsidiaries
parties hereto as of such date.
(g) So
long as the principal of and interest on any Advances made to any Subsidiary
Borrower under this Agreement shall have been paid in full, all Letters of
Credit issued for the account of such Subsidiary Borrower have expired or
been
returned and terminated and all other obligations of such Subsidiary Borrower
under this Agreement shall have been fully performed, the Company may, by
not
less than five (5) Business Days’ prior notice to the Administrative Agent
(which shall promptly notify the Lenders thereof), terminate such Subsidiary
Borrower’s status as a “Subsidiary Borrower” hereunder.
2.23 Alternate
Currency Loans.
(a) Upon
the satisfaction of the conditions precedent set forth in Article V and
set forth in the applicable Alternate Currency Addendum, from and including
the
later of the Closing Date and the date of execution of the applicable Alternate
Currency Addendum and prior to the termination of the Aggregate Revolving
Loan
Commitment (or such earlier termination date as shall be specified in or
pursuant to the applicable Alternate Currency Addendum), each Alternate Currency
Lender agrees, on the terms and conditions set forth in this Agreement and
in
the applicable Alternate Currency Addendum, to make Alternate Currency Loans
under such Alternate Currency Addendum to the applicable Borrower party to
such
Alternate Currency Addendum from time to time in the applicable Alternate
Currency, in an amount not to exceed each such Alternate Currency Lender’s
applicable Alternate Currency Commitment; provided that at no time shall
the Dollar Amount of the Alternate Currency Loans for any specific Alternate
Currency exceed the maximum amount specified as the maximum amount for such
Alternate Currency in the applicable Alternate Currency Addendum other than
as a
result of currency fluctuations and then only to the extent permitted in
Section 2.6(b)(ii); providedfurther that at no time shall
the Dollar Amount of the Revolving Credit Obligations exceed the Aggregate
Revolving Loan Commitments. Subject to the terms of this Agreement
and the applicable Alternate Currency Addendum, the applicable Borrowers
may
borrow, repay and reborrow Alternate Currency Loans in the applicable Alternate
Currency at any time prior to the termination of the Aggregate Revolving
Loan
Commitment (or such earlier termination date as shall be specified in or
pursuant to the applicable Alternate Currency Addendum). On the
termination of the Aggregate Revolving Loan Commitment (or such earlier
termination date as shall be specified in or pursuant to the applicable
Alternate Currency Addendum), the outstanding principal balance of the Alternate
Currency Loans shall be paid in full by the applicable Borrower and prior
to the
termination of the Aggregate Revolving Loan Commitment (or such earlier
termination date as shall be specified in or pursuant to the applicable
Alternate Currency Addendum) prepayments of the Alternate Currency Loans
shall
be made by the applicable Borrower if and to the extent required by Section
2.6(b)(ii). For the avoidance of doubt, it is understood that no
Lender shall have any obligation hereunder to execute an Alternate Currency
Addendum and so to become an Alternate Currency Lender.
48
(b) Borrowing
Notice. When the applicable Borrower desires to borrow under this
Section 2.23, the applicable Borrower shall deliver to the applicable
Alternate Currency Lender and the Administrative Agent a
Borrowing/Conversion/Continuation Notice, signed by it, as provided in
Section 2.9 specifying that such Borrower is requesting an Alternate
Currency Loan pursuant to this Section 2.23, and the Administrative Agent
shall give prompt notice to the Lenders of any such request for an Alternate
Currency Loan. Any Borrowing/Conversion/Continuation Notice given
pursuant to this Section 2.23 shall be irrevocable.
(c) Termination. Except
as otherwise required by applicable law, in no event shall any Alternate
Currency Lender have the right to accelerate the Alternate Currency Loans
outstanding under any Alternate Currency Addendum or to terminate its
commitments (if any) thereunder to make Alternate Currency Loans prior to
the
stated termination date in respect thereof, except that each Alternate Currency
Lender shall have such rights upon an acceleration of the Loans and a
termination of the Aggregate Revolving Loan Commitments pursuant to Article
IX.
(d) Statements. Each
Alternate Currency Lender shall furnish to the Administrative Agent not less
frequently than monthly, at the end of each calendar quarter, and at any
other
time at the reasonable request of the Administrative Agent, a statement setting
forth the outstanding Alternate Currency Loans made and repaid during the
period
since the last such report under such Alternate Currency Addendum.
49
(e) Risk
Participation. Immediately and automatically upon the occurrence
of a Default under Sections 8.1(a), (e) or (f), each Lender
shall be deemed to have unconditionally and irrevocably purchased from the
applicable Alternate Currency Lender, without recourse or warranty, an undivided
interest in and participation in each Alternate Currency Loan ratably in
an
amount equal to such Lender’s Pro Rata Share of the amount of principal and
accrued interest of such Loan, and immediately and automatically all Alternate
Currency Loans shall be converted to and redenominated in Dollars equal to
the
Dollar Amount of each such Alternate Currency Loan determined as of the date
of
such conversion; provided that to the extent such conversion shall occur
other than at the end of an Interest Period, the applicable Borrower shall
pay
to the applicable Alternate Currency Lender, all losses and breakage costs
related thereto in accordance with Section 4.4. Each of the
Lenders shall pay to the applicable Alternate Currency Lender not later than
two
(2) Business Days following a request for payment from such Alternate Currency
Lender, in Dollars, an amount equal to the undivided interest in and
participation in the Alternate Currency Loan purchased by such Lender pursuant
to this Section 2.23(e). In the event that any Lender fails to
make payment to the applicable Alternate Currency Lender of any amount due
under
this Section 2.23(e), the Administrative Agent shall be entitled to
receive, retain and apply against such obligation the principal and interest
otherwise payable to such Lender hereunder until the Administrative Agent
receives from such Lender an amount sufficient to discharge such Lender’s
payment obligation as prescribed in this Section 2.23(e) together with
interest thereon at the Federal Funds Effective Rate for each day during
the
period commencing on the date of demand by the applicable Alternate Currency
Lender and ending on the date such obligation is fully satisfied. The
Administrative Agent will promptly remit all payments received as provided
above
to the applicable Alternate Currency Lender. In consideration of the
risk participations prescribed in this Section 2.23(e), each Lender shall
receive from the applicable Alternate Currency Lender, from the accrued interest
paid for periods prior to the conversion of any Alternate Currency Loan as
described above by the applicable Borrower on each Alternate Currency Loan,
a
fee equal to such Lender’s Pro Rata Share of the Applicable Fixed Rate Margin
component of the interest accrued on such Loan, as in effect from time to
time
during the period such interest accrued. Such portion of the interest
paid by the applicable Borrower on Alternate Currency Loans to the applicable
Alternate Currency Lender shall be paid as promptly as possible by such
Alternate Currency Lender to the Administrative Agent, and the Administrative
Agent shall as promptly as possible convert such amount into Dollars at the
spot
rate of exchange in accordance with its normal banking practices and apply
such
resulting amount ratably among the Lenders (including the Alternate Currency
Lenders) in proportion to their Pro Rata Share.
(f) Other
Provisions Applicable to Alternate Currency Loans. The
specification of payment of Alternate Currency Loans in the related Alternate
Currency at a specific place pursuant to this Agreement is of the
essence. Such Alternate Currency shall, subject to Section
2.22, be the currency of account and payment of such Loans under this
Agreement and the applicable Alternate Currency
Addendum. Notwithstanding anything in this Agreement, the obligation
of the applicable Borrower in respect of such Loans shall not be discharged
by
an amount paid in any other currency or at another place, whether pursuant
to a
judgment or otherwise, to the extent the amount so paid, on prompt conversion
into the applicable Alternate Currency and transfer to such Lender under
normal
banking procedure, does not yield the amount of such Alternate Currency due
under this Agreement or the applicable Alternate Currency
Addendum. In the event that any payment, whether pursuant to a
judgment or otherwise, upon conversion and transfer, does not result in payment
of the amount of such Alternate Currency due under this Agreement or the
applicable Alternate Currency Addendum, such Lender shall have an independent
cause of action against each of the Borrowers for the currency
deficit. In the event that any payment, upon conversion and transfer,
results in payment in excess of the amount of such Alternate Currency due
under
this Agreement or the applicable Alternate Currency Addendum, such Lender
shall
refund such excess to the applicable Borrower.
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2.24 Judgment
Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due from any Borrower hereunder in
the
currency expressed to be payable herein (the “specified currency”) into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which
in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent’s office in New York, New York on the Business Day preceding that on which
the final, non-appealable judgment is given. The obligations of each
Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business
Day
following receipt by such Lender or the Administrative Agent (as the case
may
be) of any sum adjudged to be so due in such other currency such Lender or
the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is
less than the sum originally due to such Lender or the Administrative Agent,
as
the case may be, in the specified currency, each Borrower agrees, to the
fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due
to any
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Section 13.2, such Lender or the Administrative Agent, as the case may
be, agrees to remit such excess to such Borrower.
2.25 Market
Disruption; Denomination of Amounts in Dollars; Dollar Equivalent of
Reimbursement Obligations.
(a) Notwithstanding
the satisfaction of all conditions referred to in this Article II with
respect to any Advance in any Agreed Currency other than Dollars or an Alternate
Currency, as applicable, if there shall occur on or prior to the date of
such
Advance any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would in
the
reasonable opinion of the Company, any Subsidiary Borrower, any Alternate
Currency Lender, the Administrative Agent or the Required Lenders make it
impracticable for the Eurocurrency Rate Loans or Alternate Currency Loans
comprising such Advance to be denominated in the Agreed Currency or Alternate
Currency, as applicable, specified by the applicable Borrower, then the
Administrative Agent shall forthwith give notice thereof to the Company or
such
Borrower, the applicable Alternate Currency Lender and the Lenders, or the
applicable Borrower shall give notice to the Administrative Agent, the
applicable Alternate Currency Lender and the Lenders, as the case may be,
and
such Eurocurrency Rate Loans or Alternate Currency Loans shall not be
denominated in such currency but shall be made on such Borrowing Date in
Dollars, in an aggregate principal amount equal to the Dollar Amount of the
aggregate principal amount specified in the related Borrowing Notice, as
Floating Rate Loans, unless the applicable Borrower notifies the Administrative
Agent at least one (1) Business Day before such date that (i) it elects not
to
borrow on such date or (ii) it elects to borrow on a date at least three
(3)
Business Days thereafter in a different Agreed Currency or Alternate Currency,
as the case may be, in which the denomination of such Loans would in the
opinion
of the Administrative Agent, any Alternate Currency Lender, if applicable,
and
the Required Lenders be practicable and in an aggregate principal amount
equal
to the Dollar Amount of the aggregate principal amount specified in the related
Borrowing Notice.
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(b) Except
as set forth in Sections 2.1, 2.4, 2.6 and 2.23, all
amounts referenced in this Article II shall be calculated using the
Dollar Amount determined based upon the Equivalent Amount in effect as of
the
date of any determination thereof; provided to the extent that any Borrower
shall be obligated hereunder to pay in Dollars any Advance denominated in
a
currency other than Dollars, such amount shall be paid in Dollars using the
Dollar Amount of the Advance (calculated based upon the Equivalent Amount in
effect on the date of payment thereof) and in the event that the applicable
Borrower does not reimburse the Administrative Agent and the Lenders are
required to fund a purchase of a participation in such Advance, such purchase
shall be made in Dollars in an amount equal to the Dollar Amount of such
Advance
(calculated based upon the Equivalent Amount in effect on the date of payment
thereof). Notwithstanding anything herein to the contrary, the full
risk of currency fluctuations shall be borne by the Borrowers and the Borrowers
agree to indemnify and hold harmless each Issuing Bank, the Alternate Currency
Lenders, the Administrative Agent and the Lenders from and against any loss
resulting from any borrowing denominated in a currency other than in Dollars
and
for which the Lenders are not reimbursed on the day of such
borrowing.
ARTICLE
III
THE
LETTER OF CREDIT FACILITY
3.1 Obligation
to Issue Letters of Credit. Subject to the terms and conditions
of this Agreement and in reliance upon the representations, warranties and
covenants of the Company herein set forth, each Issuing Bank hereby agrees
to
issue for the account of the Company or any Subsidiary Borrower through such
Issuing Bank’s branches as it and the Company may jointly agree, one or more
Letters of Credit denominated in any Agreed Currency or any Alternate Currency
in accordance with this Article III, from time to time during the
period, commencing on the Closing Date and ending on the Business Day prior
to
the Revolving Loan Commitment Termination Date.
52
3.2 Existing
Letters of Credit. Schedule 3.2 to the Disclosure Letter
contains a schedule of existing letters of credit issued pursuant to the
Existing Credit Agreement for the account of the Company and its Subsidiaries
prior to the Amendment Effective Date. From and after the Amendment
Effective Date, such letters of credit shall be deemed to be Letters of Credit
hereunder.
3.3 Types
and Amounts. No Issuing Bank shall have any obligation to and no
Issuing Bank shall:
(a) issue
(or amend) any Letter of Credit if on the date of issuance (or amendment),
before or after giving effect to the Letter of Credit requested hereunder,
(i) the amount of the Revolving Credit Obligations at such time would
exceed the Aggregate Revolving Loan Commitment at such time or (ii) the
aggregate outstanding amount of the L/C Obligations would exceed $25,000,000;
or
(b) without
the written consent of such Issuing Bank, issue (or amend) any Letter of
Credit
which has an expiration date later than the date which is the earlier of
one (1)
year after the date of issuance thereof or the Revolving Loan Commitment
Termination Date; provided that any Letter of Credit with a one-year
tenor may provide for the renewal thereof for additional one-year periods
(not
to extend beyond the Revolving Loan Commitment Termination Date) with the
written consent of the applicable Issuing Bank.
3.4 Conditions. In
addition to being subject to the satisfaction of the conditions contained
in
Sections5.2, 5.3 and 5.4, the obligation of an
Issuing Bank to issue any Letter of Credit is subject to the satisfaction
in
full of the following conditions:
(a) the
Company shall have delivered to the applicable Issuing Bank (at such times
and
in such manner as such Issuing Bank may reasonably prescribe) and the
Administrative Agent, a request for issuance of such Letter of Credit in
substantially the form of Exhibit B hereto (each such request a
“Request For Letter of Credit”), a duly executed application for such
Letter of Credit, and such other documents, instructions and agreements as
may
be required pursuant to the terms thereof (all such applications, documents,
instructions, and agreements being referred to herein as the “L/C
Documents”), and the proposed Letter of Credit shall be reasonably
satisfactory to such Issuing Bank as to form and content; and
(b) as
of the date of issuance no order, judgment or decree of any court, arbitrator
or
Governmental Authority shall purport by its terms to enjoin or restrain the
applicable Issuing Bank from issuing such Letter of Credit and no law, rule
or
regulation applicable to such Issuing Bank and no request or directive (whether
or not having the force of law) from a Governmental Authority with jurisdiction
over such Issuing Bank shall prohibit or request that such Issuing Bank refrain
from the issuance of Letters of Credit generally or the issuance of that
Letter
of Credit.
53
3.5 Procedure
for Issuance of Letters of Credit.
(a) Subject
to the terms and conditions of this Article III and provided
that the applicable conditions set forth in Sections5.2,
5.3 and 5.4 have been satisfied, the applicable Issuing
Bank
shall, on the requested date, issue a Letter of Credit on behalf of the Company
or a Subsidiary Borrower, as applicable in accordance with such Issuing Bank’s
usual and customary business practices and, in this connection, such Issuing
Bank may assume that the applicable conditions set forth in Sections
3.4(b) and 5.4 have been satisfied unless it shall have received
notice to the contrary from the Administrative Agent or a Lender or has
knowledge that the applicable conditions have not been met.
(b) Promptly,
and in any event not more than one (1) Business Day following the date of
issuance of any Letter of Credit, the applicable Issuing Bank shall give
the
Administrative Agent written or telex notice, or telephonic notice confirmed
promptly thereafter in writing, of the issuance of a Letter of Credit
(provided that the failure to provide such notice shall not result in any
liability on the part of such Issuing Bank), and the Administrative Agent
shall
promptly give notice to the Lenders of each such issuance.
(c) No
Issuing Bank shall extend or amend any Letter of Credit unless the requirements
of this Section 3.5 are met as though a new Letter of Credit was
being requested and issued.
3.6 Letter
of Credit Participation. On the Amendment Effective Date, with
respect to existing Letters of Credit issued pursuant to the Existing Credit
Agreement, and immediately upon the issuance of each Letter of Credit under
this
Agreement, each Lender shall be deemed to have automatically, irrevocably
and
unconditionally purchased and received from the applicable Issuing Bank an
undivided interest and participation in and to such Letter of Credit, the
obligations of the Company in respect thereof, and the liability of such
Issuing
Bank thereunder (collectively, an “L/C Interest”) in the amount available
for drawing under such Letter of Credit multiplied by such Lender’s Pro Rata
Share.
3.7 Reimbursement
Obligation.
(a) Each
Borrower on whose behalf a Letter of Credit is issued agrees unconditionally,
irrevocably and absolutely to pay to the Administrative Agent, for the account
of the Lenders, the amount of each advance drawn under or pursuant to a Letter
of Credit or an L/C Draft related thereto (such obligation of the Borrowers
to
reimburse the Administrative Agent for an advance made under a Letter of
Credit
or L/C Draft being hereinafter referred to as a “Reimbursement
Obligation” with respect to such Letter of Credit or L/C Draft), each such
reimbursement to be made by such Borrower no later than the Business Day
on
which the applicable Issuing Bank makes payment of each such L/C Draft or,
if
such Borrower shall have received notice of a Reimbursement Obligation later
than 12:00 noon (New York time), on any Business Day or on a day which is
not a
Business Day, no later than 12:00 noon (New York time), on the immediately
following Business Day or, in the case of any other draw on a Letter of Credit,
the date specified in the demand of such Issuing Bank. If the
applicable Borrower at any time fails to repay a Reimbursement Obligation
pursuant to this Section 3.7, the Issuing Bank shall promptly notify the
Administrative Agent and the Administrative Agent shall promptly notify each
Lender and such Borrower shall be deemed to have requested to borrow Revolving
Loans from the Lenders, as of the date of the advance giving rise to the
Reimbursement Obligation, equal to the amount of the unpaid Reimbursement
Obligation. Such Revolving Loans shall be made as of the date of the
payment giving rise to such Reimbursement Obligation, automatically, without
notice and without any requirement to satisfy the conditions precedent otherwise
applicable to an Advance of Revolving Loans.
54
(b) Each
Lender shall upon any notice pursuant to Section 3.7(a) make available to
the Administrative Agent for the account of the relevant Issuing Bank an
amount
(i) in the same Agreed Currency or (ii)(A) in the applicable Alternate
Currency, if available to such Lender, or (B) if such Alternate Currency is
not available to such Lender, in Dollars in an amount equal to the Dollar
Amount
(it being understood that any costs associated with currency conversions
shall
be borne by the applicable Borrower) of such Alternate Currency, as the case
may
be, as the applicable Letter of Credit and in immediately available funds
equal
to its Pro Rata Share of the amount of the drawing, whereupon such Lenders
shall
(subject to Section 3.7(d)) each be deemed to have made a Revolving Loan
constituting a Floating Rate Advance, the proceeds of which Advance shall
be
used to repay such Reimbursement Obligation. If any Lender so
notified fails to make available to the Administrative Agent for the account
of
the Issuing Bank the amount of such Lender’s Pro Rata Share of the amount of the
drawing by no later than 2:00 p.m. (New York time) on the date of the advance
giving rise to the Reimbursement Obligation, if notified prior to 12:00 p.m.
(New York time) or on the next Business Day if notified thereafter, then
interest shall accrue on such Lender’s obligation to make such payment, from
such date to the date such Lender makes such payment, at a rate per annum
equal
to the Federal Funds Effective Rate in effect from time to time during such
period. The Administrative Agent will promptly give notice of the
occurrence of the draw, but failure of the Administrative Agent to give any
such
notice in sufficient time to enable any Lender to effect such payment on
such
date shall not relieve such Lender from its obligations under this Section
3.7.
(c) Each
Lender’s obligation in accordance with this Agreement to make the Revolving
Loans, as contemplated by this Section 3.7, as a result of a drawing
under a Letter of Credit, shall be absolute and unconditional and without
recourse to the Issuing Banks and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other right
which such Revolving Lender may have against an Issuing Bank, the Company
or any
other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default, an Unmatured Default or a Material Adverse Effect; or (iii)
any
other circumstance, happening or event whatsoever, whether or not similar
to any
of the foregoing.
55
(d) If,
for any reason, the Company fails to repay a Reimbursement Obligation
on the day such Reimbursement Obligation becomes due and, for any reason,
the
Lenders are unable to make or have no obligation to make Revolving Loans,
then
such Reimbursement Obligation shall bear interest from and after such day,
until
paid in full, at the interest rate applicable to a Floating Rate
Advance.
3.8 Letter
of Credit Fees. The Company agrees to pay in the same Agreed
Currency or Alternate Currency, as the case may be, as the applicable Letter
of
Credit:
(a) quarterly,
in arrears, to the Administrative Agent for the ratable benefit of the Lenders
a
letter of credit fee at a rate per annum equal to the Applicable L/C Fee
Percentage on the average daily outstanding amount available for drawing
under
all Letters of Credit;
(b) quarterly,
in arrears, to the applicable Issuing Bank, a letter of credit fronting fee
in
an amount agreed to between the Company and the applicable Issuing Bank on
the
average daily outstanding face amount available for drawing under all Letters
of
Credit issued by such Issuing Bank; and
(c) to
the applicable Issuing Bank, all reasonable and customary fees and other
issuance, amendment, document examination, negotiation and presentment expenses
and related charges in connection with the issuance, amendment, presentation
of
L/C Drafts, and the like customarily charged by such Issuing Banks with respect
to standby letters of credit.
3.9 Issuing
Bank Reporting Requirements. In addition to the notices required
by Section 3.5(b), each Issuing Bank shall, no later than the tenth
(10th) Business Day following the last day of each month, provide to the
Administrative Agent, upon the Administrative Agent’s request, schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, amount, expiration date and the reference
number of each Letter of Credit issued by it outstanding at any time during
such
month and the aggregate amount paid by the Company during such
month. In addition, upon the request of the Administrative Agent,
each Issuing Bank shall furnish to the Administrative Agent copies of any
Letter
of Credit and any application for or reimbursement agreement with respect
to a
Letter of Credit to which the Issuing Bank is party and such other documentation
as may reasonably be requested by the Administrative Agent. Upon the
request of any Lender, the Administrative Agent will provide to such Lender
information concerning such Letters of Credit.
3.10 Indemnification;
Exoneration.
(a) In
addition to amounts payable as elsewhere provided in this Article
III, the Company hereby agrees to protect, indemnify, pay and save
harmless the Administrative Agent, each Issuing Bank and each Lender from
and
against any and all liabilities and costs which the Administrative Agent,
such
Issuing Bank or such Lender may incur or be subject to as a consequence,
direct
or indirect, of (i) the issuance of any Letter of Credit other than as a
result of its gross negligence or willful misconduct, as determined by the
final
judgment of a court of competent jurisdiction, or (ii) the failure of the
applicable Issuing Bank to honor a drawing under a Letter of Credit as a
result
of any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto Governmental Authority (all such acts or omissions herein
called “Governmental Acts”).
56
(b) As
among the Company, the Lenders, the Administrative Agent and the Issuing
Banks,
the Company assumes all risks of the acts and omissions of, or misuse of
such
Letter of Credit by, the beneficiary of any Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions
of
the Letter of Credit applications and Letter of Credit reimbursement agreements
executed by the Company at the time of request for any Letter of Credit,
neither
the Administrative Agent, any Issuing Bank nor any Lender shall be responsible
(in the absence of gross negligence or willful misconduct of such party in
connection therewith, as determined by the final judgment of a court of
competent jurisdiction): (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted
by
any party in connection with the application for and issuance of the Letters
of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) 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; (iii) for failure of the beneficiary of a
Letter of Credit to comply duly with conditions not expressly provided on
the
face of such Letter of Credit and required in order to draw upon such Letter
of
Credit; (iv) for errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex, or other similar
form of teletransmission or otherwise; (v) for errors in interpretation of
technical trade terms; (vi) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any Letter
of Credit or of the proceeds thereof; (vii) for the misapplication by the
beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; and (viii) for any consequences arising from causes
beyond the control of the Administrative Agent, the Issuing Banks and the
Lenders, including, without limitation, any Governmental Acts. None
of the above shall affect, impair, or prevent the vesting of any Issuing
Bank’s
rights or powers under this Section 3.10.
(c) In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by any Issuing Bank under
or
in connection with the Letters of Credit or any related certificates shall
not,
in the absence of gross negligence or willful misconduct, as determined by
the
final judgment of a court of competent jurisdiction, put the applicable Issuing
Bank, the Administrative Agent or any Lender under any resulting liability
to
the Company or relieve the Company of any of its obligations hereunder to
any
such Person.
(d) Without
prejudice to the survival of any other agreement of the Company hereunder,
the
agreements and obligations of the Company contained in this Section 3.10
shall survive the payment in full of principal and interest hereunder, the
termination of the Letters of Credit and the termination of this
Agreement.
57
3.11 Cash
Collateral. Notwithstanding anything to the contrary herein or in
any application for a Letter of Credit, after the occurrence and during the
continuance of a Default, the Company shall, on the Business Day that it
receives the Administrative Agent’s demand, deliver to the Administrative Agent
for the benefit of the Lenders and the Issuing Banks, cash, or other collateral
of a type satisfactory to the Required Lenders, having a value, as determined
by
such Lenders, equal to one hundred percent (100%) of the aggregate Dollar
Amount
of the outstanding L/C Obligations. In addition, if the Availability
is at any time less than the Dollar Amount of all contingent L/C Obligations
outstanding at any time, the Company shall deposit cash collateral with the
Administrative Agent in Dollars in an amount equal to one-hundred five percent
(105%) of the Dollar Amount by which such L/C Obligations exceed such
Availability. Any such collateral shall be held by the Administrative
Agent in a separate account appropriately designated as a cash collateral
account in relation to this Agreement and the Letters of Credit and retained
by
the Administrative Agent for the benefit of the Lenders and the Issuing Banks
as
collateral security for the Company’s obligations in respect of this Agreement
and each of the Letters of Credit and L/C Drafts. Such amounts shall
be applied to reimburse the Issuing Banks for drawings or payments under or
pursuant to Letters of Credit or L/C Drafts, or if no such reimbursement
is
required, to payment of such of the other Obligations as the Administrative
Agent shall determine. If no Default shall be continuing, amounts
remaining in any cash collateral account established pursuant to this Section
3.11 which are not to be applied to reimburse an Issuing Bank for amounts
actually paid or to be paid by such Issuing Bank in respect of a Letter of
Credit or L/C Draft, shall be returned to the Company within one (1) Business
Day (after deduction of the Administrative Agent’s expenses incurred in
connection with such cash collateral account).
ARTICLE
IV
CHANGE
IN
CIRCUMSTANCES
4.1 Yield
Protection. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) adopted after the Closing Date or any interpretation or
application thereof by any Governmental Authority charged with the
interpretation or application thereof, or the compliance of any Lender
therewith, subjects any Lender or any applicable Lending Installation to
any
tax, duty, charge or withholding on or from payments due from any Borrower
(excluding any taxes covered by the provisions of Section 2.16(e)), or
changes the basis of taxation of payments to any Lender (other than changes
in
the rate of taxation on the overall net income of such Lender) in respect
of its
Commitment, Loans, its L/C Interests, the Letters of Credit or other amounts
due
it hereunder, or imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest rate applicable
to
Eurocurrency Rate Loans) with respect to its Commitment, Loans, L/C Interests
or
the Letters of Credit, or imposes any other condition the result of which
is to
increase the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining its Commitment, Loans, the L/C Interests or
the
Letters of Credit or reduces any amount received by any Lender or any applicable
Lending Installation in connection with its Commitment, Loans or Letters
of
Credit, or requires any Lender or any applicable Lending Installation to
make
any payment calculated by reference to the amount of Commitment, Loans or
L/C
Interests held or interest received by it or by reference to the Letters
of
Credit, by an amount deemed material by such Lender; and the result of any
of
the foregoing is to increase the cost to that Lender of making, renewing
or
maintaining its Commitment, Loans, L/C Interests, or Letters of Credit or
to
reduce any amount received under this Agreement, then, within fifteen (15)
days
after receipt by the Company or any other Borrower of written demand by such
Lender pursuant to Section 4.5, the applicable Borrowers shall pay such
Lender that portion of such increased expense incurred or reduction in an
amount
received which such Lender reasonably determines is attributable to making,
funding and maintaining its Loans, L/C Interests, Letters of Credit and its
Commitment; providedhowever that the Company shall not be liable
under this Section 4.1 for the payment of any such amounts incurred or
accrued more than 180 days prior to the date on which notice of the event
or
occurrence giving rise to the obligation to make such payment is given to
the
Company hereunder; providedfurther that if the event or occurrence
giving rise to such obligation is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof;
providedfurther that (1) if the Company objects in good faith to
any payment demanded under this Section 4.1 on or before the date such
payment is due, then the Company and the Lender demanding such payment shall
enter into discussions to review the amount due and the Company’s obligation to
pay such amount to such Lender shall be deferred for 30 days after the original
demand for payment and (2) if the Company and such Lender do not otherwise
reach
agreement on the amount due during such 30 period, the Company shall pay
to such
Lender at the end of such 30 day period the amount certified by such Lender
to
be due. Subject to the last proviso in the preceding sentence, a
certificate as to such amounts submitted to the Company and the Administrative
Agent by such Lender shall be conclusive and binding for all purposes, absent
manifest error.
58
4.2 Changes
in Capital Adequacy Regulations. If a Lender determines (a) the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a “Change” (as defined below), and (b) such increase
in capital will result in an increase in the cost to such Lender of maintaining
its Commitment, Loans, L/C Interests, the Letters of Credit or its obligation
to
make Loans hereunder, then, within fifteen (15) days after receipt by the
Company or any other Borrower of written demand by such Lender pursuant to
Section 4.5, the applicable Borrowers shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Commitment, its Loans, its L/C Interests,
the Letters of Credit or its obligation to make Loans hereunder (after taking
into account such Lender’s policies as to capital adequacy); provided,
however, that the Company shall not be liable under this Section
4.2 for the payment of any such amounts incurred or accrued more than 180
days prior to the date on which notice of the event or occurrence giving
rise to
the obligation to make such payment is given to the Company hereunder;
provided, further, that if the event or occurrence giving rise to
such obligation is retroactive, then the 180-day period referred to above
shall
be extended to include the period of retroactive effect thereof;
providedfurther that (1) if the Company objects in good faith to
any payment demanded under this Section 4.2 on or before the date such
payment is due, then the Company and the Lender demanding such payment shall
enter into discussions to review the amount due and the Company’s obligation to
pay such amount to such Lender shall be deferred for 30 days after the original
demand for payment and (2) if the Company and such Lender do not otherwise
reach
agreement on the amount due during such 30 period, the Company shall pay
to such
Lender at the end of such 30 day period the amount certified by such Lender
to
be due. Subject to the last proviso in the preceding sentence, a
certificate as to such amounts submitted to the Company and the Administrative
Agent by such Lender shall be conclusive and binding for all purposes, absent
manifest error. “Change” means (i) any change after the
Closing Date in the “Risk-Based Capital Guidelines” (as defined below)
excluding, for the avoidance of doubt, the effect of any phasing in of such
Risk-Based Capital Guidelines or any other capital requirements passed prior
to
the date hereof, or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after
the
Closing Date which affects the amount of capital required or expected to
be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. “Risk-Based Capital Guidelines” means
(i) the risk-based capital guidelines in effect in the United States on the
Closing Date, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled “International Convergence of Capital
Measurements and Capital Standards,” including transition rules, and any
amendments to such regulations adopted prior to the Closing Date.
59
4.3 Availability
of Types of Advances. If (a) any Lender determines that
maintenance of its Fixed Rate Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive, whether or not
having
the force of law, or (b) the Required Lenders determine that (i) deposits
of a
type, currency or maturity appropriate to match fund Fixed-Rate Advances
are not
available or (ii) the interest rate applicable to a Fixed-Rate Advance does
not
accurately reflect the cost of making or maintaining such an Advance, then
the
Administrative Agent shall suspend the availability of the affected Type
of
Advance and, in the case of any occurrence set forth in clause (a),
require any Advances of the affected Type to be repaid or converted into
another
Type.
4.4 Funding
Indemnification. If any payment of a Fixed-Rate Advance occurs on
a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment, or otherwise, or a Fixed-Rate Advance
is
not made on the date specified by the applicable Borrower for any reason
other
than default by the Lenders, the Borrowers shall indemnify each Lender for
any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain the Fixed-Rate Advance.
4.5 Lender
Statements; Survival of Indemnity. If reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to
its
Fixed-Rate Loans to reduce any liability of any Borrower to such Lender under
Sections 4.1 and 4.2 or to avoid the unavailability of a Type of
Advance under Section 4.3, so long as such designation is not, in
such Lender’s judgment, disadvantageous to such Lender. Any demand
for compensation pursuant to this Article IV shall be in writing
and shall state the amount due, if any, under Sections 4.1, 4.2 or
4.4 and shall set forth in reasonable detail the calculations
upon which
such Lender determined such amount. Such written demand shall be
rebuttably presumed correct for all purposes. Determination of
amounts payable under such Sections in connection with a Fixed-Rate Loan
shall
be calculated as though each Lender funded its Fixed-Rate Loan through the
purchase of a deposit of the type, currency and maturity corresponding to
the
deposit used as a reference in determining the Fixed-Rate applicable to such
Loan, whether in fact that is the case or not. The obligations of the
Company and the other Borrowers under Sections 4.1, 4.2 and
4.4 shall survive payment of the Obligations and termination
of this
Agreement.
60
ARTICLE
V
CONDITIONS
PRECEDENT
5.1 [Intentionally
Omitted.]
5.2 Advances
on the Funding Date. The Lenders shall not be required to make
any Loans on the Funding Date unless the Company has furnished to the
Administrative Agent each of the following, with sufficient copies for the
Lenders, and the other conditions set forth below have been
satisfied:
(a) Copies,
certified by the Secretary or Assistant Secretary of each of the Loan Parties,
of the Certificate of Incorporation or equivalent document of each of the
Loan
Parties, together with all amendments thereto, and, to the extent applicable,
a
certificate of good standing, in each case certified by the appropriate
governmental officer in its jurisdiction of incorporation.
(b) Copies,
certified by the Secretary or Assistant Secretary of each of the Loan Parties,
of their respective Board of Directors’ resolutions authorizing the execution of
the Loan Documents on the Amendment Effective Date.
(c) An
incumbency certificate dated the Amendment Effective Date, executed by the
Secretary or Assistant Secretary of each of the Loan Parties, which shall
identify by name and title and bear the signature of the officers of the
applicable Loan Party authorized to sign the Loan Documents on the Amendment
Effective Date and to make borrowings hereunder, upon which certificate the
Lenders shall be entitled to rely until informed of any change in writing
by the
applicable Loan Party.
(d) A
certificate, in form and substance satisfactory to the Administrative Agent,
executed by the chief financial officer of the Company, stating that on the
Amendment Effective Date, all the representations and warranties of the Loan
Parties in the Loan Documents are true and correct (unless such representation
and warranty is made as of a specific date, in which case, such representation
and warranty shall be true as of such date) and no Default or Unmatured Default
has occurred and is continuing. All documents and agreements
(including the Merger Documents) required to be appended to such certificate
shall be in form and substance satisfactory to the Administrative Agent,
shall
have been executed and delivered by the requisite parties, and shall be in
full
force and effect.
61
(e) Evidence
satisfactory to the Administrative Agent that all actions necessary to
consummate the Merger shall have been taken in accordance with all applicable
law and in accordance with the terms of each applicable Merger Document,
without
amendment or waiver of any material provision thereof, and that the Merger
will
be consummated on the Amendment Effective Date, and the Administrative Agent
shall have received copies of each applicable Merger Document (as well as
all
other closing documentation executed or delivered in connection therewith)
executed and delivered by the parties thereto, which shall be satisfactory
to
the Administrative Agent.
(f) The
following financial information: (i) a proforma consolidated
balance sheet of the Company and its Subsidiaries for the fiscal quarter
ended
December 29, 2006, giving effect to the consummation of the Transactions
and all
the transactions contemplated by this Agreement as if the Transactions had
been
consummated as of the first day of such period, which shall be reasonably
satisfactory to the Administrative Agent (the “Pro Forma Balance Sheet”)
and (ii) projected proforma consolidated financial statements
(including balance sheets and statements of income and cash flows) of the
Company and its Subsidiaries for each of the five fiscal years ending after
the
Amendment Effective Date, giving effect to the consummation of the Transactions
and all the transactions contemplated by this Agreement, which shall be
reasonably satisfactory to the Administrative Agent.
(g) A
certificate, with such supporting calculations and details as the Administrative
Agent may reasonably request, dated the Amendment Effective Date, duly executed
and delivered by the chief financial or accounting Authorized Officer of
the
Company, certifying that (i) EBITDA for the Company and its Subsidiaries
(excluding ARDI and its Subsidiaries) for the most recently completed
four-fiscal-quarter period is not less than $175,000,000 and (ii) the Merger
Date Leverage Ratio as of the Amendment Effective Date is not greater than
3.00:1.00.
(h) Guaranty
documentation and such other documentation, in each case dated as of the
Amendment Effective Date, duly executed and delivered by an Authorized Officer
of ARDI and any of its Subsidiaries (to the extent required pursuant to
clause (k) of Section 7.2), in form and substance satisfactory to
the Administrative Agent, to be effective concurrently with the consummation
of
the Merger.
(i) An
Affirmation and Consent, duly executed and delivered by an Authorized Officer
of
each Obligor party to a Guaranty prior to the Amendment Effective Date, in
form
and substance satisfactory to the Administrative Agent.
(j) A
solvency certificate duly executed and delivered by the chief financial or
accounting Authorized Officer of the Company, dated as of the Amendment
Effective Date, in form and substance satisfactory to the Administrative
Agent.
(k) [Intentionally
Omitted.]
62
(l) For
the account of each Lender that has requested a promissory note in accordance
with Section 2.14(d), such Lender’s promissory note duly executed and
delivered by an Authorized Officer of the Borrowers.
(m) Written
opinions of (i) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., and (ii), Xxxxxxx
Xxxxxxxxxx Potter & Xxxxx LLP, dated as of the Amendment Effective Date and
addressed to the Administrative Agent and the Lenders, in each case in form
and
substance satisfactory to the Administrative Agent.
(n) Evidence
satisfactory to the Administrative Agent that (i) there has been no material
adverse change since December 30, 2005 in the financial condition, operations,
assets, business or properties of the Company and its Subsidiaries, taken
as a
whole, and (ii) there has been no “Company Material Adverse Effect” under and as
defined in the Merger Agreement, and (iii) no pending or threatened litigation,
proceeding or investigations (in each case whether judicial, administrative
or
otherwise) exist which could reasonably be expected to have a Material Adverse
Effect.
(o) The
Administrative Agent, Lenders and/or their Affiliates shall have received
all
fees and expenses, including the reasonable fees and expenses of Mayer, Brown,
Xxxx & Maw LLP, required to be paid on or before the Amendment Effective
Date.
(p) Evidence
satisfactory to the Administrative Agent that all governmental, shareholder
and
third party consents and approvals necessary in connection with this Agreement,
the Transactions and the other transactions contemplated hereby or thereby
have
been obtained; all such consents and approvals remain in full force and effect;
and all applicable waiting periods have expired without any action being
taken
by any Governmental Authority that could restrain, prevent or impose any
material adverse conditions on such other transactions or that could seek
or
threaten any of the foregoing, and no law or regulation shall be applicable
which in the judgment of the Administrative Agent could have such
effect.
(q) The
Administrative Agent and each Lender shall have received all Patriot Act
Disclosures requested by them prior to execution of this Agreement.
(r) Such
other documents as the Administrative Agent or its counsel or the Required
Lenders may have reasonably requested.
5.3 Initial
Advance to Each New Subsidiary Borrower. No Lender shall be
required to make an Advance hereunder or purchase participations in Letters
of
Credit or Alternate Currency Loans hereunder, no Swing Line Bank shall be
required to make any Swing Line Loans, and no Alternate Currency Lender shall
be
required to make any Alternate Currency Loans hereunder, in each case, to
or for
the account of a new Subsidiary Borrower added after the Closing Date unless
the
Company has furnished or caused to be furnished to the Administrative Agent
with
sufficient copies for the Lenders:
63
(a) The
Assumption Letter executed and delivered by such Subsidiary Borrower and
containing the written consent of the Company thereon, as contemplated by
Section 2.22.
(b) Copies,
certified by the Secretary, Assistant Secretary, Director or Officer of the
Subsidiary Borrower, of its Board of Directors’ resolutions approving the
Assumption Letter.
(c) An
incumbency certificate, executed by the Secretary, Assistant Secretary, Director
or Officer of the Subsidiary Borrower, which shall identify by name and title
and bear the signature of the officers of such Subsidiary Borrower authorized
to
sign the Assumption Letter and the other documents to be executed and delivered
by such Subsidiary Borrower hereunder, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely until informed of any change
in
writing by the Company.
(d) An
opinion of counsel to such Subsidiary Borrower, in form and substance
satisfactory to the Administrative Agent.
(e) Guaranty
documentation and such other documentation required by Section 2.22 from
such Subsidiary Borrower in form and substance satisfactory to the
Administrative Agent.
5.4 Each
Advance and Each Letter of Credit. The Lenders shall not be
required to make any Loan, or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date
on
which the Letter of Credit is to be issued:
(a) There
exists no Default or Unmatured Default and no Default or Unmatured Default
would
result after giving effect to the making of any Loan or issuance of any Letter
of Credit;
(b) All
of the representations and warranties contained in Article VI are
true and correct in all material respects as of such Borrowing Date (unless
such
representation and warranty is made as of a specific date, in which case,
such
representation and warranty shall be true and correct in all material respects
as of such date);
(c) The
Revolving Credit Obligations do not, and after making such proposed Advance
would not, exceed the Aggregate Revolving Loan Commitment; and
(d) the
Administrative Agent has received a timely Borrowing Notice with respect
to the
applicable Loan.
Each
Borrowing/Conversion/Continuation Notice with respect to a new Advance and
the
letter of credit application with respect to each Letter of Credit or Letter
of
Credit amendment shall constitute a representation and warranty by the Company
that the conditions contained in Sections 5.4(a), (b) and
(c) have been satisfied.
64
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
In
order
to induce the Administrative Agent and the Lenders to enter into this Agreement
and to make the Loans and the other financial accommodations to the Borrowers
and to issue the Letters of Credit described herein, each of the Borrowers
represents and warrants as follows to each Lender and the Administrative
Agent
as of the date of this Agreement, giving effect to the consummation of the
transactions contemplated by the Loan Documents, and thereafter on each date
as
required by Sections 5.3 and 5.4:
6.1 Organization;
Corporate Powers. Each of the Company and its Subsidiaries is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of formation and is qualified to conduct its business in each
jurisdiction in which its business is conducted, except where the failure
to be
so qualified would not have a Material Adverse Effect.
6.2 Authorization
and Validity. Each of the Loan Parties has the requisite power
and authority and legal right to execute and deliver the Loan Documents to
which
it is a party and to perform its obligations thereunder. The
execution and delivery by each of the Loan Parties of the Loan Documents
to
which it is a party and the performance of its obligations thereunder have
been
duly authorized by proper proceedings, and the Loan Documents to which it
is a
party constitute legal, valid and binding obligations of each of the Loan
Parties enforceable against each of the Loan Parties in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency
or
similar laws affecting the enforcement of creditors’ rights generally and by
equitable principles (regardless of whether enforcement is sought in equity
or
at law).
6.3 No
Conflict; Government Consent. Neither the execution and delivery
by the Loan Parties of the Loan Documents, nor the consummation of the
transactions contemplated thereby, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Company or any Subsidiary or the Company’s or any
Subsidiary’s articles of incorporation or by-laws or other constitutive
documents and agreements or the provisions of any material indenture, instrument
or agreement to which the Company or any Subsidiary is a party or is subject,
or
by which it, or its property, is bound, or conflict with or constitute a
default
thereunder, or result in the creation or imposition of any Lien in, of or
on the
property of the Company or any of its Subsidiaries pursuant to the terms
of any
such indenture, instrument or agreement. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to be obtained by any Loan Party in connection
with the authorization, execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents,
except
such as have been obtained or made and are in full force and
effect.
6.4 Financial
Statements. The consolidated financial statements of the Company
and its Subsidiaries for the fiscal year ended December 30, 2005 were prepared
in accordance with Agreement Accounting Principles and fairly present in
all
material respects the consolidated financial condition and operations of
the
Company and its Subsidiaries at such date and the consolidated results of
their
operations for the period then ended.
65
6.5 Material
Adverse Change. Since December 30, 2005, there has occurred no
change in the financial condition, operations, assets, business or properties
of
the Company and its Subsidiaries taken as a whole, or any other event which
has
had or could reasonably be expected to have a Material Adverse
Effect.
6.6 Taxes. The
Company and the Subsidiaries have filed all United States federal tax returns
and all other material tax returns which are required to be filed and have
paid
all taxes due pursuant to said returns or pursuant to any assessment received
by
the Company or any Subsidiary, except such taxes, if any, as are being contested
in good faith and as to which adequate reserves have been provided, or where
the
failure to make such payment could not reasonably be expected to result in
a
Material Adverse Effect. The charges, accruals and reserves on the
books of the Company and the Subsidiaries in respect of any taxes or other
governmental charges have been made in accordance with generally accepted
accounting principles.
6.7 Litigation
and Contingent Obligations. There is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the knowledge
of any of the Borrowers, threatened against the Company or any of its
Subsidiaries (a) challenging the validity or enforceability of any material
provision of the Loan Documents or (b) which could reasonably be expected
to have a Material Adverse Effect. There is no material loss
contingency within the meaning of Agreement Accounting Principles which has
not
been reflected in the consolidated financial statements of the Company referred
to in Section 6.4 or prepared and delivered pursuant to Section
7.1(a) for the fiscal period during which such material loss contingency was
incurred. Neither the Company nor any of its Subsidiaries is subject
to or in default with respect to any final judgment, writ, injunction,
restraining order or order of any nature, decree, rule or regulation of any
court or Governmental Authority which could reasonably be expected to have
a
Material Adverse Effect.
6.8 Subsidiaries. Schedule
6.8 to the Disclosure Letter contains an accurate list of all of the
Subsidiaries of the Company in existence on the Amendment Effective Date,
setting forth their respective jurisdictions of formation. All of the
issued and outstanding Capital Stock of such Subsidiaries have been duly
authorized and issued and are fully paid and non-assessable. Except
as set forth on Schedule 6.8 to the Disclosure Letter, as of the Amendment
Effective Date, no authorized but unissued or treasury shares of Capital
Stock
of any Subsidiary are subject to any option, warrant, right to call or
commitment of any kind or character. As of the Amendment Effective
Date, neither the Company nor any Subsidiary is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any
shares of its Capital Stock or any convertible securities, rights or options
to
purchase its Capital Stock except as otherwise set forth on Schedule 6.8
to the
Disclosure Letter. Except as set forth on Schedule 6.8 to the
Disclosure Letter, as of the Amendment Effective Date the Company does not
own
or hold, directly or indirectly, any Capital Stock or equity security of,
or any
equity or partnership interest in any Person other than such
Subsidiaries. As of the Amendment Effective Date, no Domestic
Subsidiary is required to execute and deliver the Subordination Agreement
or a
joinder thereto in accordance with Section 7.2(k)(iii).
6.9 ERISA. As
at December 30, 2005 the Unfunded Liabilities of all Single Employer Plans
did
not in the aggregate exceed $5,000,000. Each Plan complies and has
been maintained in all material respects with all applicable requirements
of law
and regulations. No Reportable Event has occurred with respect to any
Single Employer Plan having any Unfunded Liability which has or may reasonably
be expected to result in a liability to the Company in excess of $10,000,000.
Neither the Company nor any other members of the Controlled Group has terminated
any Single Employer Plan without in each instance funding all vested benefit
obligations thereunder. Each member of the Controlled Group has
fulfilled its minimum funding obligations with respect to each Multiemployer
Plan. No Termination Event has occurred or is reasonably expected to
occur. There are no material actions, suits or claims (other than
routine claims for benefits) pending or, to the knowledge of the Company
or its
Subsidiaries, threatened with respect to any Plan or Multiemployer
Plan.
66
6.10 Accuracy
of Information. None of the (a) information, exhibits or reports
furnished or to be furnished by the Company or any Subsidiary to the
Administrative Agent or to any Lender in connection with the negotiation
of the
Loan Documents, or (b) representations or warranties of the Company or any
Subsidiary contained in this Agreement, the other Loan Documents or any other
document, certificate or written statement furnished to the Administrative
Agent
or the Lenders by or on behalf of the Company or any Subsidiary for use in
connection with the transactions contemplated by this Agreement, when taken
together with the Company’s filings with the Commission, contained, contains or
will contain any untrue statement of a material fact or omitted, omits or
will
omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances
in
which the same were made. The pro forma financial information and
projections (which have not been made in accordance with Agreement Accounting
Principles) contained in such materials is based upon good faith estimates
and
assumptions believed by the Company to be reasonable at the time made (it
being
understood that projections are not to be viewed as facts and by their nature
involve estimations and uncertainties, and that actual results can differ
from
pro forma and projected financials).
6.11 Regulation
U. Margin Stock constitutes less than 25% of those assets of the
Company and its Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder.
6.12 Material
Agreements. Neither the Company nor any of its Subsidiaries is a
party to any Contractual Obligation the performance of which could reasonably
be
expected to have a Material Adverse Effect. Neither the Company nor
any of its Subsidiaries is subject to any charter or other restriction in
any
constitutive agreement or document affecting its financial condition, assets,
operations, business or properties which could reasonably be expected to
have a
Material Adverse Effect. Neither the Company nor any Subsidiary is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any Contractual Obligation to which
it is a
party, which default could reasonably be expected to have a Material Adverse
Effect.
6.13 Compliance
With Laws. The Company and its Subsidiaries have complied with
all Requirements of Law except to the extent that such non-compliance could
not
reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any Requirements of Law or
the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any toxic or hazardous waste
or
substance into the environment, which non-compliance or remedial action could
reasonably be expected to have a Material Adverse Effect.
67
6.14 Ownership
of Properties. On the Amendment Effective Date, each of the
Company and its Subsidiaries has good title, free of all Liens, to all of
the
properties and assets reflected on the Pro Forma Balance Sheet as owned by
it,
except Liens permitted under Section 7.3(b).
6.15 Statutory
Indebtedness Restrictions. Neither the Company nor any of its
Subsidiaries is subject to regulation the Federal Power Act, the Interstate
Commerce Act, or the Investment Company Act of 1940, or any other federal
or
state statute or regulation which limits its ability to incur indebtedness
or
its ability to consummate the transactions contemplated hereby.
6.16 Environmental
Matters. Each of the Company and its Subsidiaries is in
compliance with all Environmental, Health or Safety Requirements of Laws
in
effect in each jurisdiction where it is presently doing business and as to
which
the failure to so comply, in the aggregate for all such failures, would
reasonably be likely to subject the Company or any of its Subsidiaries to
liability that would have a Material Adverse Effect. Neither the
Company nor any Subsidiary is subject to any liability under the Environmental,
Health or Safety Requirements of Laws in effect in any jurisdiction where
it is
presently doing business that could reasonably be expected to have a Material
Adverse Effect. As of the date hereof, neither the Company nor any
Subsidiary has received any:
(a) notice
from any Governmental Authority by which any of the Company’s or such
Subsidiary’s present or previously-owned or leased property has been identified
in any manner by any such Governmental Authority as a property requiring
remedial or other corrective action with respect to a Release of any
Contaminant; or
(b) notice
of any Lien arising under or in connection with any Environmental, Health
or
Safety Requirements of Law that has attached to any of the Company’s or such
Subsidiary’s owned or the Company or any Subsidiaries’ interest in any leased
property or any revenues of the Company’s or such Subsidiary’s owned property;
or
(c) communication,
written or oral, from any Governmental Authority concerning action or omission
by the Company or such Subsidiary in connection with its ownership or leasing
of
any property resulting in the release of any hazardous substance resulting
in
any violation of any Environmental, Health or Safety Requirements of
Law;
where
the
effect of which, in the aggregate for all such notices and communications,
could
reasonably be expected to have a Material Adverse Effect.
6.17 Insurance. The
properties and assets and business of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies not
Subsidiaries of the Company, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and are similarly situated.
68
6.18 Labor
Matters. As of the Closing Date, no labor disputes, strikes or
walkouts affecting the operations of the Company or any of its Subsidiaries,
are
pending, or, to the Company’s knowledge, threatened, which could reasonably be
expected to have a Material Adverse Effect.
6.19 Solvency. After
giving effect to (a) the extensions of credit made hereunder on the Closing
Date
or such other date as Loans requested hereunder were made, (b) the other
transactions contemplated by this Agreement and the other Loan Documents,
and
(c) the payment and accrual of all transaction costs with respect to the
foregoing, the Company and its Subsidiaries, taken as a whole, are
Solvent.
6.20 Default. No
Default or Unmatured Default has occurred and is continuing.
6.21 Foreign
Employee Benefit Matters. (a) Each Foreign Employee
Benefit Plan is in compliance in all material respects with all material
laws,
regulations and rules applicable thereto and the respective requirements
of the
governing documents for such Plan; (b) the aggregate of the accumulated
benefit obligations under all Foreign Pension Plans does not exceed to any
material extent the current fair market value of the assets held in the trusts
or similar funding vehicles for such Plans; (c) with respect to any Foreign
Employee Benefit Plan (other than a Foreign Pension Plan), reasonable reserves
have been established in accordance with prudent business practice or where
required by ordinary accounting practices in the jurisdiction in which such
Plan
is maintained; and (d) there are no material actions, suits or claims
(other than routine claims for benefits) pending or, to the knowledge of
the
Company and its Subsidiaries, threatened against the Company or any Subsidiary
of it or any member of its Controlled Group with respect to any Foreign Employee
Benefit Plan.
6.22 Representations
and Warranties of each Subsidiary Borrower. Each Subsidiary
Borrower further represents and warrants to the Administrative Agent and
the
Lenders that:
(a) Organization
and Corporate Powers. Such Subsidiary Borrower (i) is a company
duly formed and validly existing and in good standing under the laws of the
state or country of its organization (such jurisdiction being hereinafter
referred to as the “Home Country”); (ii) has the requisite power and authority
to own its property and assets and to carry on its business substantially
as now
conducted except where the failure to have such requisite authority would
not
have a Material Adverse Effect on such Subsidiary Borrower; and (iii) has
the
requisite power and authority and legal right to execute and deliver any
Alternate Currency Addendum to which it is a party and each other Loan Document
to which it is a party and the performance by it of its obligations thereunder
have been duly authorized by proper corporate proceedings.
(b) Binding
Effect. Each Loan Document, including, without limitation, any
Alternate Currency Addendum, executed by such Subsidiary Borrower is the
legal,
valid and binding obligation of such Subsidiary Borrower enforceable in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally and general equitable principles (regardless of
whether enforcement is sought in equity or at law).
69
(c) No
Conflict; Government Consent. Neither the execution and delivery
by such Subsidiary Borrower of the Loan Documents to which it is a party,
nor
the consummation by it of the transactions therein contemplated to be
consummated by it, nor compliance by such Subsidiary Borrower with the
provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on such Subsidiary Borrower
or any
of its Subsidiaries or such Subsidiary Borrower’s or any of its Subsidiaries’
memoranda of association or articles or certificate of incorporation, by-laws
or
other constituent documents and agreements or the provisions of any material
indenture, instrument or agreement to which such Subsidiary Borrower or any
of
its Subsidiaries is a party or is subject, or by which it, or its property,
is
bound, or conflict with or constitute a default thereunder, or result in
the
creation or imposition of any Lien in, of or on the property of such Subsidiary
Borrower or any of its Subsidiaries pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with,
or
exemption by, any governmental agency is required to authorize, or is required
in connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents
except
such as have been obtained or made and are in full force and
effect.
(d) Filing. To
ensure the enforceability or admissibility in evidence of this Agreement
and
each Loan Document to which such Subsidiary Borrower is a party (including,
without limitation, any Alternate Currency Addendum) in its Home Country,
except
as set forth in the applicable Alternate Currency Addendum, it is not necessary
that this Agreement or any other Loan Document to which such Subsidiary Borrower
is a party or any other document be filed or recorded with any court or other
authority in its Home Country or that any stamp or similar tax be paid to
or in
respect of this Agreement or any other Loan Document of such Subsidiary
Borrower. Except as set forth in the applicable Alternate Currency
Addendum, the qualification by any Lender or the Administrative Agent for
admission to do business under the laws of such Subsidiary Borrower’s Home
Country does not constitute a condition to, and the failure to so qualify
does
not affect, the exercise by any Lender or the Administrative Agent of any
right,
privilege, or remedy afforded to any Lender or the Administrative Agent in
connection with the Loan Documents to which such Subsidiary Borrower is a
party
or the enforcement of any such right, privilege, or remedy against such
Subsidiary Borrower.
(e) No
Immunity. Neither such Subsidiary Borrower nor any of its assets
is entitled to immunity from suit, execution, attachment or other legal
process. Such Subsidiary Borrower’s execution and delivery of the
Loan Documents to which it is a party constitute, and the exercise of its
rights
and performance of and compliance with its obligations under such Loan Documents
will constitute, private and commercial acts done and performed for private
and
commercial purposes.
70
(f) Application
of Representations and Warranties. It is understood and agreed by
the parties hereto that the representations and warranties of each Subsidiary
Borrower (other than any Subsidiary Borrower that shall be a Subsidiary Borrower
as of the Closing Date) in this Section 6.22 shall only be
applicable to such Subsidiary Borrower on and after the date of its execution
of
an Assumption Letter and, if applicable, an Alternate Currency
Addendum.
ARTICLE
VII
COVENANTS
The
Company covenants and agrees that so long as any Commitments are outstanding
and
thereafter until payment in full of all of the Obligations (other than
contingent indemnity obligations) and termination of all Letters of Credit,
unless the Required Lenders shall otherwise give prior written
consent:
7.1 Reporting. The
Company shall:
(a) Financial
Reporting. Furnish to the Administrative Agent:
(i)
Quarterly
Reports. As soon as practicable and in any event within
forty-five (45) days after the end of the first three quarterly periods of
each
of its fiscal years, for itself and its Subsidiaries, consolidated unaudited
balance sheets as at the end of each such period and consolidated statement
of
income, and a statement of cash flows for the period from the beginning of
such
fiscal year to the end of such quarter, presented on the same basis as described
in Section 7.1(a)(ii) (except that compliance with generally accepted
accounting principles in the United States shall be subject to year-end
adjustments and the absence of footnotes) and, in the case of the consolidated
statement of income and the statement of cash flows, on a comparative basis
with
the statements for such period in the prior fiscal year of the
Company.
(ii) Annual
Reports. As soon as practicable, and in any event within ninety
(90) days after the end of each of its fiscal years, commencing with its
2006
fiscal year, an audit report, certified by internationally recognized
independent certified public accountants, prepared in accordance with generally
accepted accounting principles, on a consolidated basis for itself and its
Subsidiaries, including balance sheets as of the end of such period, related
statement of income and consolidated statement of changes in owners’ equity, and
a statement of cash flows, which audit report shall be unqualified and shall
state that such financial statements fairly present in all material respects
the
consolidated financial position of the Company and its Subsidiaries as at
the
dates indicated and the results of operations and cash flows for the periods
indicated in conformity with generally accepted accounting principles in
the
United States and that the examination by such accountants in connection
with
such consolidated financial statements has been made in accordance with
generally accepted auditing standards.
(iii) Officer’s
Certificate. Together with each delivery of any financial
statement (a) pursuant to clauses (i) and (ii) of this Section
7.1(a), an Officer’s Certificate of the Company, substantially in the form
of Exhibit D attached hereto and made a part hereof, stating that as of
the date of such Officer’s Certificate no Default or Unmatured Default exists,
or if any Default or Unmatured Default exists, stating the nature and status
thereof and (b) pursuant to clauses (i) and (ii) of this
Section 7.1(a), a compliance certificate, substantially in the
form of
Exhibit E attached hereto and made a part hereof, signed by the
Company’s chief financial officer, chief accounting officer or treasurer,
setting forth calculations for the period then ended which demonstrate
compliance with Section 7.4, and which calculate the Leverage Ratio for
purposes of determining the then Applicable Floating Rate Margin, Applicable
Fixed Rate Margin and Applicable Commitment Fee Percentage; provided, however,
that with respect to the financial statements for the fiscal year ended December
29, 2006, neither an Officer’s Certificate pursuant to clause (a) above
nor a compliance certificate pursuant to clause (b) above is required to
be
delivered by or on behalf of the Company;
71
(b) Notice
of Default. Promptly upon any of the chief executive officer,
chief operating officer, chief financial officer, treasurer, controller or
other
executive officer of the Company obtaining actual knowledge (i) of any
condition or event which constitutes a Default or Unmatured Default or
(ii) that any Person has given any written notice to any Authorized Officer
or any Subsidiary of the Company or taken any other action with respect to
a
claimed default or event or condition of the type referred to in Section
8.1(d), the Company shall deliver to the Administrative Agent and the
Lenders an Officer’s Certificate specifying (A) the nature and period of
existence of any such claimed default, Default, Unmatured Default, condition
or
event, (B) the notice given or action taken by such Person in connection
therewith, and (C) what action the Company has taken, is taking or proposes
to take with respect thereto.
(c) Lawsuits. (i) Promptly
upon the Company obtaining actual knowledge of the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration, by or before any Governmental Authority, against the Company
or any
of its Subsidiaries or any property of the Company or any of its Subsidiaries
not previously disclosed pursuant to Section 6.7, which action, suit,
proceeding, governmental investigation or arbitration exposes, or in the
case of
multiple actions, suits, proceedings, governmental investigations or
arbitrations arising out of the same general allegations or circumstances
which
expose, in the Company’s reasonable judgment, the Company or any of its
Subsidiaries to liability in an amount aggregating $15,000,000 or more
(exclusive of claims covered by insurance policies of the Company or any
of its
Subsidiaries unless the insurers of such claims have disclaimed coverage
or
reserved the right to disclaim coverage on such claims), give written notice
thereof to the Administrative Agent and provide such other information as
may be
reasonably requested to enable each Lender and the Administrative Agent and
its
counsel to evaluate such matters; provided that the Company shall not be
required to provide information subject to attorney-client privilege; and
(ii)
in addition to the requirements set forth in clause (i) of this
Section 7.1(c), upon request of the Administrative Agent or the Required
Lenders, promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration disclosed pursuant
to
Section 6.7 or covered by a report delivered pursuant to
clause (i) above and provide such other information as may be
reasonably requested to enable the Required Lenders and the Administrative
Agent
and its counsel to evaluate such matters; provided that the Company shall
not be
required to provide information subject to attorney-client
privilege.
72
(d) Other
Indebtedness. Deliver to the Administrative Agent (with
subsequent delivery by the Administrative Agent to the Lenders within a
reasonable period of time) (i) a copy of each notice or communication
regarding potential or actual defaults (including any accompanying officer’s
certificate) delivered by or on behalf of the Company or any of its Subsidiaries
to the holders of Indebtedness for money borrowed with an aggregate outstanding
principal amount in excess of $20,000,000 pursuant to the terms of the
agreements governing such Indebtedness, such delivery to be made at the same
time and by the same means as such notice of default is delivered to such
holders, and (ii) a copy of each notice or other communication received by
the Company or any of its Subsidiaries from the holders of Indebtedness for
money borrowed with an aggregate outstanding principal amount in excess of
$20,000,000 regarding potential or actual defaults pursuant to the terms
of such
Indebtedness, such delivery to be made promptly after such notice or other
communication is received by the Company or its Subsidiary.
(e) Other
Reports. Deliver or cause to be delivered to the Administrative
Agent and the Lenders copies of all notifications received from the Commission
by the Company or its Subsidiaries pursuant to the Securities Exchange Act
of
1934 and the rules promulgated thereunder relating to actual or potential
violations of rules promulgated by the Commission or other laws. The
Company shall include the Administrative Agent and the Lenders on its standard
distribution lists for all press releases made available generally by the
Company or any of the Company’s Subsidiaries to the public concerning material
developments in the business of the Company or any such Subsidiary.
(f) Other
Information. Promptly, following a request by any Lender, prepare
and deliver to such Lender all documentation and other information such Lender
reasonably requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations,
including the Patriot Act. Promptly upon receiving a request therefor
from the Administrative Agent, prepare and deliver to the Administrative
Agent
and the Lenders such other information with respect to the Company or any
of its
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent.
Documents
required to be delivered pursuant to Section 7.1(a)(i) or (a)(ii)
(to the extent any such documents are included in materials otherwise filed
with
the Commission) may be delivered electronically and if so delivered, shall
be
deemed to have been delivered on the date (i) on which the Company posts
such
documents, or provides a link thereto on the Company’s website on the Internet
at the website address listed on its signature page hereto; or (ii) on which
such documents are posted on the Company’s behalf on an Internet 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) the Company shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Company
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) the Company
shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic version (i.e., soft copies)
of such documents.
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7.2 Affirmative
Covenants.
(a) Corporate
Existence, Etc. Subject to Section 7.3(h), the Company
shall, and shall cause each of its Subsidiaries to, at all times maintain
its
corporate existence and preserve and keep, or cause to be preserved and kept,
in
full force and effect its rights and franchises material to its businesses
except where, in the case of Subsidiaries which are not Subsidiary Borrowers,
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
(b) Corporate
Powers; Conduct of Business. The Company shall, and shall cause
each of its Subsidiaries to, qualify and remain qualified to do business
in each
jurisdiction in which the nature of its business requires it to be so qualified
and where the failure to be so qualified will have or could reasonably be
expected to have a Material Adverse Effect.
(c) Compliance
with Laws, Etc. The Company shall, and shall cause its Subsidiaries to, (a)
comply with all Requirements of Law and all restrictive covenants affecting
such
Person or the financial condition, operations, assets, business or properties
of
such Person, and (b) obtain as needed all permits necessary for its operations
and maintain such permits in good standing unless failure to comply or obtain
such permits could not reasonably be expected to have a Material Adverse
Effect.
(d) Payment
of Taxes and Claims. The Company shall pay, and cause each of its
Subsidiaries to pay, (i) all material taxes, assessments and other governmental
charges imposed upon it or on any of its properties or assets or in respect
of
any of its franchises, business, income or property before any penalty or
interest accrues thereon, and (ii) all claims (including, without limitation,
claims for labor, services, materials and supplies) for material sums which
have
become due and payable and which by law have or may become a Lien (other
than a
Lien permitted by Section 7.3(b)) upon any of the Company’s or such
Subsidiary’s property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided that no such taxes,
assessments and governmental charges referred to in clause (i) above
or claims referred to in clause (ii) above (and interest, penalties
or fines relating thereto) need be paid if being contested in good faith
by
appropriate proceedings diligently instituted and conducted and if such reserve
or other appropriate provision, if any, as shall be required in conformity
with
Agreement Accounting Principles shall have been made therefor.
(e) Insurance. The
Company will maintain, and will cause to be maintained on behalf of each
of its
Subsidiaries, insurance coverage by financially sound and reputable insurance
companies or associations, against such casualties and contingencies, of
such
types and in such amounts as are customary for companies engaged in similar
businesses and owning and operating similar properties, it being understood
that
the Company and its Subsidiaries may self-insure against hazards and risks
with
respect to which, and in such amounts, as the Company in good faith determines
prudent and consistent with sound financial practice, and as are customary
for
companies engaged in similar businesses and owning and operating similar
properties. The Company shall furnish to any Lender upon request full
information as to the insurance carried.
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(f) Inspection
of Property; Books and Records; Discussions. The Company shall
permit and cause each of its Subsidiaries to permit, any authorized
representative(s) designated by either the Administrative Agent or the Required
Lenders (or while any Default exists, any Lender) to visit and inspect, for
a
reasonable purpose, any of the properties of the Company or any of its
Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or
the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers and their independent
certified public accountants, all upon reasonable notice and at such reasonable
times during normal business hours, as often as may be reasonably
requested. Notwithstanding anything to the contrary in this
Section 7.2(f), neither the Company nor any of its Subsidiaries will be
required to disclose, permit the inspection, examination or making of extracts,
or discussion of, any document, information or other matter that (i) constitutes
non-financial trade secrets or non-financial proprietary information, (ii)
in
respect of which disclosure to the Administrative Agent or any Lender (or
its
respective designated representative) is then prohibited by any Requirement
of
Law or any agreement binding on the Company or any of its Subsidiaries or
(iii)
is subject to attorney-client or similar privilege or constitutes attorney
work
product. The Company shall keep and maintain, and cause each of its
Subsidiaries to keep and maintain proper books of record and account in which
entries in conformity with Agreement Accounting Principles shall be made
of all
dealings and transactions in relation to their respective businesses and
activities.
(g) ERISA
Compliance. The Company shall, and shall cause each of its
Subsidiaries to, establish, maintain and operate all Plans (and, to the extent
it is within the power of the Company or one of its Subsidiaries, all
Multiemployer Plans) to comply in all material respects with the provisions
of
ERISA, the Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans.
(h) Maintenance
of Property. The Company shall cause all property used or useful
in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order, ordinary
wear
and tear excepted, and supplied with all necessary equipment and shall cause
to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary
so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times and except to the extent that the failure
to so maintain such property could not be reasonably expected to have a Material
Adverse Effect.
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(i) Environmental
Compliance. The Company shall, and shall cause each of its
Subsidiaries to comply with, all Environmental, Health or Safety Requirements
of
Law, except where noncompliance could not reasonably be expected to have
a
Material Adverse Effect.
(j) Use
of Proceeds. The Borrowers shall use the proceeds of (a) the Term
Loans on the Funding Date to pay the consideration for the Merger and fees
and
expenses related thereto and (b) any other Loans to provide funds for the
additional working capital needs and other general corporate purposes of
the
Company and its Subsidiaries, including, without limitation, the financing
of
the Merger and other Permitted Acquisitions. The Company will not,
nor will it permit any Subsidiary to, use any of the proceeds of the Advances
to
make any Acquisition other than the Merger or another Permitted Acquisition
made
pursuant to Section 7.3(f).
(k) Subsidiary
Guarantees; Subsidiary Subordination Agreement. The Company
will:
(i) cause
each Subsidiary Borrower that is a Domestic Subsidiary and each Domestic
Subsidiary (which is not a Guarantor) that at any time has assets (other
than
goodwill) with a book value in excess of ten percent (10%) of the Consolidated
Net Assets of the Company and its Domestic Subsidiaries at such time to execute
the Guaranty (and from and after the Closing Date cause each other Subsidiary
Borrower that is a Domestic Subsidiary and each other Domestic Subsidiary
which
has such assets to execute and deliver to the Administrative Agent, within
ten
(10) days after becoming a Subsidiary Borrower or another Domestic Subsidiary
which has such assets, as applicable, an assumption or joinder agreement
pursuant to which it agrees to be bound by the terms and provisions of the
Guaranty (whereupon such Subsidiary shall become a “Guarantor” under this
Agreement));
(ii) in
the event that at any time the book value of the assets (other than goodwill)
of
all Domestic Subsidiaries which are not Guarantors exceeds the lesser of
(a) twenty percent (20%) of the Consolidated Net Assets of the Company and
its Domestic Subsidiaries at such time and (b) $200,000,000, within ten
(10) days thereafter cause one or more of such Subsidiaries to execute and
deliver to the Administrative Agent an assumption or joinder agreement pursuant
to which it or they agree to be bound by the terms and provisions of the
Guaranty (whereupon each such Domestic Subsidiary shall become a “Guarantor”
under this Agreement) such that, after giving effect thereto, the book value
of
the assets (other than goodwill) of all Domestic Subsidiaries which are not
Guarantors does not exceed the lesser of (a) twenty percent (20%) of the
Consolidated Net Assets of the Company and its Domestic Subsidiaries at such
time and (b) $200,000,000;
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(iii) cause
any Domestic Subsidiary (other than a Domestic Subsidiary that has previously
executed and delivered the Subordination Agreement or a joinder thereto or
assumption thereof) that at any time has a book value of assets (other than
goodwill) in excess of five percent (5%) of the Consolidated Net Assets of
the
Company and its Domestic Subsidiaries at such time, to promptly execute and
deliver to the Administrative Agent an assumption or joinder agreement pursuant
to which it agrees to be bound by the terms and provisions of the Subordination
Agreement with respect to any loan constituting Indebtedness to any Loan
Party
in an aggregate principal amount in excess of $10,000,000; and
(iv) deliver
and cause such Subsidiaries to deliver corporate resolutions, opinions of
counsel, and such other corporate documentation as the Administrative Agent
may
reasonably request, all in form and substance reasonably satisfactory to
the
Administrative Agent.
(l) Foreign
Employee Benefit Compliance. The Company shall, and shall cause
each of its Subsidiaries and each member of its Controlled Group to, establish,
maintain and operate all Foreign Employee Benefit Plans to comply in all
material respects with all laws, regulations and rules applicable thereto
and
the respective requirements of the governing documents for such Plans, except
for failures to comply which, in the aggregate, would not be reasonably expected
to subject the Company or any of its Subsidiaries to liability, individually
or
in the aggregate, in excess of $20,000,000.
7.3 Negative
Covenants.
(a) Sales
of Assets. The Company shall not, nor shall it permit any
Subsidiary to, consummate any Asset Sale, except:
(i) transfers
of assets (A) to the Company, between the Company and any Wholly-Owned
Subsidiary or between any Wholly-Owned Subsidiaries, in each case in the
ordinary course of business or for tax planning purposes or (B) by any
Non-Wholly-Owned Subsidiary to the Company or any other Subsidiary;
(ii) transfers
of assets otherwise permitted pursuant to Section 7.3(f) or Section
7.3(h);
(iii) sales,
assignments, transfers, lease conveyances or other dispositions of other
assets
if such transaction (a) is for not less than fair market value (as determined
in
good faith by the Company’s chief financial officer), and (b) when combined with
all such other transactions (each such transaction being valued at book value)
and all Sale and Leaseback Transactions (each such Sale and Leaseback
Transaction being valued at book value) during the period from the Closing
Date
to the date of such proposed transaction, represents (when taken together
with
prior dispositions made pursuant to this clause (iii)) the
disposition of not greater than twenty-five percent (25%) of the Company’s
Consolidated Net Assets at the end of the fiscal year immediately preceding
that
in which such transaction is proposed to be entered into;
77
(iv) sales
or assignments of leases of Inventory in the ordinary course of business;
and
(v)
sales of receivables pursuant to
non-recourse (subject to customary indemnification obligations) factoring
arrangements or similar arrangements.
(b)
Liens. The Company shall not, nor shall it
permit any Subsidiary to, directly or indirectly create, incur, assume or
permit
to exist any Lien on or with respect to any of their respective other property
or assets except:
(i)
Permitted Existing Liens and any renewals
or extensions thereof;
(ii)
Permitted Liens;
(iii)
Liens with respect to assets acquired by the
Company or any of its Subsidiaries after the date hereof pursuant to a Permitted
Acquisition (and not created in contemplation of such acquisition);
provided that such Liens shall extend only to the assets so acquired and
any accessions, additions, parts, replacements, fixtures, improvements and
attachments thereto, and the proceeds thereof;
(iv)
Liens securing Indebtedness of a
Subsidiary to the Company or to another Guarantor;
(v)
Liens securing Indebtedness permitted under Section
7.3(c)(v);
(vi)
additional Liens; provided that the Indebtedness or other
obligations secured thereby does not exceed in the aggregate outstanding
at any
time $20,000,000.
(vii) Liens
solely on any xxxx xxxxxxx money deposits made by the Company or any of its
Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder;
(viii) Liens
on the assets of a Person existing at the time such Person becomes a Subsidiary
of the Company pursuant to a Permitted Acquisition;
providedhowever that any such Lien may not extend to any other
assets of the Company or any other Subsidiary that is not a direct Subsidiary
of
such Person; providedfurther that any such Lien was not created in
anticipation of or in connection with the transaction or series of transactions
pursuant to which such Person became a Subsidiary of the Company;
(ix) Liens
on specific items of inventory or other goods and the proceeds thereof securing
such Person’s obligations in respect of bankers’ acceptances issued or credited
for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or goods;
(x) statutory,
common law or contractual Liens of creditor depository institutions or
institutions holding securities accounts (including rights of set-off or
similar
rights and remedies);
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(xi) Liens
consisting of pledges of cash collateral to secure Hedging Agreements in
an
aggregate amount not to exceed $5,000,000 to the extent permitted hereunder;
and
(xii) customary
Liens granted in favor of a trustee to secure fees and other amounts owing
to a
trustee under an indenture or other agreement pursuant to which Indebtedness
permitted by Section 7.3(c)(x) is issued;
(xiii) encumbering
of assets of Foreign Subsidiaries securing Indebtedness permitted by Section
7.3(c)(vii); and
(xiv) Liens
encumbering receivables sold or assigned pursuant to Section 7.3(a)(v),
and the proceeds thereof and any account into which such proceeds are deposited
(so long as such account is maintained solely for the purpose of receiving
such
proceeds).
(c) Indebtedness. The
Company shall not, nor shall it permit any Subsidiary to, cause or permit,
directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness,
except:
(i)
the Obligations;
(ii)
Permitted Existing Indebtedness and any refinancing, renewals,
refundings or extensions thereof; provided that the amount of such Indebtedness
is not increased at the time of such refinancing;
(iii) Indebtedness
arising from intercompany loans and advances from (A) the Company to any
Wholly-Owned Subsidiary or any Subsidiary to the Company or another Wholly-Owned
Subsidiary in the ordinary course of business or (B) the Company or any
Wholly-Owned Subsidiary to any Non-Wholly-Owned Subsidiary, which, when
aggregated with the amount of Investments made by the Company or any
Wholly-Owned Subsidiary in Non-Wholly-Owned Subsidiaries pursuant to
Section 7.3(f)(i)(B) does not exceed $10,000,000;
(iv) Hedging
Obligations to the extent permitted under Section 7.3(k);
(v) Indebtedness
with respect to Capital Lease Obligations and purchase money Indebtedness
with
respect to real or personal property in an aggregate amount at any time
outstanding not to exceed $25,000,000;
(vi) Indebtedness
assumed or incurred in connection with Permitted Acquisitions;
(vii) Indebtedness
of Foreign Subsidiaries in an aggregate amount at any time outstanding not
to
exceed $30,000,000;
79
(viii) Indebtedness
incurred for the purpose of refinancing, renewing or extending any of the
Indebtedness permitted under clause (ii);
(ix) additional
Indebtedness in an aggregate amount at any time outstanding not exceeding
an
amount equal to 25% of Consolidated Net Assets at the end of the fiscal year
immediately preceding that in which such Indebtedness is incurred, of which
not
more than $25,000,000 may be incurred by Subsidiaries which are not Subsidiary
Borrowers or Guarantors;
(x)
Subordinated Indebtedness; provided that to the extent that any
Subsidiary incurs or guarantees any Subordinated Indebtedness and is not
a
Guarantor hereunder, such Subsidiary shall concurrently with the issuance
or
guaranty of such Subordinated Indebtedness become a Guarantor hereunder;
providedfurther that such Subsidiary will be released from being a
Guarantor hereunder at such time as it is no longer obligated under such
Subordinated Indebtedness (unless otherwise required to be a Guarantor hereunder
by Section 7.2(k);
(xi) (A)
Permitted Existing Contingent Obligations and (B) other Contingent Obligations;
provided that after giving effect to the incurrence of such Contingent
Obligation on a pro forma basis as if such Contingent Obligation had been
incurred on the first day of the twelve month period ending on the last day
of
the Company’s most recently completed Fiscal Quarter, the Company will be in
compliance with Section 7.4; and
(xii) customary
indemnification obligations pursuant to factoring or similar arrangements
permitted pursuant to Section 7.3(a)(v).
(d)
Restricted Payments. The Company shall not, nor shall it
permit any Subsidiary to, make or declare any Restricted Payments (other
than
Restricted Payments by a Subsidiary to the Company or another Wholly-Owned
Subsidiary) except that so long as no Default or Unmatured Default then exists,
the Company and its Subsidiaries may (i) repurchase shares from its employees,
officers or directors pursuant to any vesting provisions with respect thereto;
(ii) make Restricted Payments not to exceed (x) in any twelve month period,
an aggregate amount equal to fifty percent (50%) of Net Income plus, to the
extent deducted in determining Net Income for such period, non-cash expenses
in
respect of stock options, in each case, for the previous twelve month period
and
(y) subject to pro forma compliance with the Fixed Charge Coverage Ratio,
an additional $50,000,000 over the term of this Agreement; (iii) make
acquisitions of Capital Stock of the Company in connection with the exercise
of
stock options or stock appreciation rights by way of cashless exercise or
in
connection with the satisfaction of withholding tax obligations; (iv) purchase
of fractional shares of the Capital Stock of the Company arising out of stock
dividends, splits or combinations or business combinations; (v) in connection
with any Permitted Acquisition, (A) receive or accept the return to the Company
or any of its Subsidiaries of Capital Stock of the Company or any of its
Subsidiaries constituting a portion of the purchase price consideration in
settlement of indemnification claims or (B) make payments or distributions
to
dissenting stockholders pursuant to applicable law; (vi) honor any conversion
request by a holder of any Convertible Indebtedness of the Company or any
of its
Subsidiaries, and make cash payments in lieu of fractional shares in connection
with the conversion of such Convertible Indebtedness; (vii) purchase, redeem,
repurchase, defease, acquire or retire for value Capital Stock or Subordinated
Indebtedness of the Company or any of its Subsidiaries in exchange for, upon
conversion of, or out of the proceeds of, the substantially concurrent sale
of
Capital Stock of the Company (other than Disqualified Stock) whether
contemporaneously or in the future; and (viii) purchase, redeem, repurchase,
defease, acquire or retire for value any Subordinated Indebtedness in exchange
for, or out of the proceeds of, any Subordinated Indebtedness incurred to
refinance such Subordinated Indebtedness.
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(e) Conduct
of Business; Acquisitions. The Company shall not, nor shall it
permit any Subsidiary to, engage in any business other than the businesses
engaged in by the Company on the date hereof and any business or activities
which are similar, related or incidental thereto or logical extensions
thereof. The Company shall not make any Acquisitions, other than (x)
the Merger and (y) other Acquisitions meeting the following requirements
(the
Merger and each such other Acquisition constituting a “Permitted
Acquisition”):
(i)
no Default or Unmatured Default shall have occurred and be continuing or
would
result from such Acquisition or the incurrence of any Indebtedness in connection
therewith;
(ii)
the purchase is consummated pursuant to a negotiated acquisition agreement
on a
non-hostile basis and approved by the target company’s board of directors (and
shareholders, if necessary) prior to the consummation of the
Acquisition;
(iii) after
giving effect to such Acquisition on a pro forma basis as if such Acquisition
and such incurrence of Indebtedness had occurred on the first day of the
twelve
month period ending on the last day of the Company’s most recently completed
fiscal quarter, the Company would have a Leverage Ratio less than 2.25:1.00;
provided that if the purchase price payable in respect of any such
Acquisition (including, without limitation, cash or stock (other than Equity
Interests (other than Disqualified Stock) of the Company) consideration paid
and
Indebtedness or other liabilities assumed) exceeds $150,000,000, prior to
each
such Acquisition, the Company shall have delivered to the Administrative
Agent
and the Lenders a certificate from one of the Authorized Officers, demonstrating
that after giving effect to such Acquisition, on a pro forma basis in respect
of
each such Acquisition as if the Acquisition and such incurrence of Indebtedness
had occurred on the first day of the twelve-month period ending on the last
day
of the Company’s most recently completed fiscal quarter, the Company would have
a maximum Leverage Ratio of 2.25:1.00 and would be in compliance with the
financial covenant in Section 7.4(a) and not otherwise in
Default;
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(iv) the
businesses being acquired shall be similar to that of the Company and its
Subsidiaries as of the Closing Date, related or incidental thereto or logical
extensions thereof.
(f) Investments. Neither
the Company nor any of its Subsidiaries shall make any Investments, except
for:
(i) Investments
by (A) the Company or any Subsidiary in any Wholly-Owned Subsidiary or the
Company in the ordinary course of business and (B) Investments by the
Company or any Wholly-Owned Subsidiary in any Non-Wholly-Owned Subsidiary,
which, when aggregated with the amount of Indebtedness owing by Non-Wholly-Owned
Subsidiaries to the Company or any Wholly-Owned Subsidiary pursuant to
Section 7.3(c)(iii)(B) does not exceed the amount set forth in such
clause;
(ii) Investments
incurred in order to consummate Permitted Acquisitions otherwise permitted
herein or representing the non-cash portion of the consideration received
in
connection with a transaction described in
Section 7.3(a);
(iii) Loans
giving rise to Indebtedness permitted by
Section 7.3(c)(iii);
(iv) advances
to employees for business expenses not to exceed $5,000,000 in the aggregate
outstanding at any one time;
(v) other
loans to employees in the ordinary course of business not to exceed $10,000,000
in the aggregate outstanding at any one time;
(vi) Investments
in Cash Equivalents;
(vii) Permitted
Existing Investments; and
(viii) Investments
received in satisfaction or partial satisfaction of amounts owed by financially
troubled account debtors (whether in connection with a foreclosure, bankruptcy,
workout or otherwise) and deposits, prepayments and other credits to suppliers
made in the ordinary course of business consistent with the past practices
of
the Company and its Subsidiaries;
(ix) obligations
under Hedging Agreements entered into in the ordinary course of
business;
(x)
Investments consisting of extensions of credit in the nature of prepaid
royalties or expenses or notes receivable arising from the sale or lease
of
goods or services in the ordinary course of business, or performance or similar
deposits arising in the ordinary course of business; and
(xi) other
Investments; provided that the aggregate amount paid in cash of such
Investments, net of Repatriated Funds over the term of this Agreement, shall
not
exceed the sum of (A) an amount equal to 15% of the Company’s Consolidated Net
Assets at the end of the fiscal year immediately preceding that in which
such
Investment is made and (B) proceeds from Investments permitted
hereunder.
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(g) Transactions
with Shareholders and Affiliates. Neither the Company nor any of
its Subsidiaries shall directly or indirectly enter into or permit to exist
any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with, or make loans
or
advances to, any Affiliate of the Company which is not its Subsidiary, on
terms
that are less favorable to the Company or any of its Subsidiaries, as
applicable, than those that might be obtained in an arm’s length transaction at
the time from Persons who are not such a holder or Affiliate, except for
(i)
Restricted Payments permitted by Section 7.3(d), (ii) reasonable and
customary fees paid to members of the board of directors (or similar governing
body) of the Company and its Subsidiaries; (iii) compensation arrangements
and
benefit plans for directors, officers and other employees of the Company
and its
Subsidiaries entered into or maintained or established in the ordinary course
of
business; and (d) any Investment made in accordance with
Section 7.3(f).
(h) Restriction
on Fundamental Changes. Neither the Company nor any of its
Subsidiaries shall enter into any merger or consolidation, or liquidate,
wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease,
sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of the Company’s consolidated business or property
(each such transaction a “Fundamental Change”), whether now or hereafter
acquired, except (i) Fundamental Changes permitted under Sections 7.3(a),
7.3(b) or 7.3(e) or that do not constitute Asset Sales, (ii) a
Subsidiary of the Company may be merged into or consolidated with the Company
or
any Wholly-Owned Subsidiary of the Company (in which case the Company or
such
Wholly-Owned Subsidiary shall be the surviving corporation); provided that
if
the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if
applicable, shall be a Guarantor hereunder, (iii) any liquidation or dissolution
of any Subsidiary of the Company into (or to which its assets are transferred
after paying creditors) the Company or another Subsidiary of the Company,
as
applicable, and (iv) the Company may merge with any other Person, or any
Subsidiary of the Company may consolidate or merge with any other Person;
provided that (A) no Default or Unmatured Default shall exist immediately
before or after giving effect to such Fundamental Change, (B) in the case
of any
merger of the Company, the Company is the surviving corporation in such merger,
and (C) in the case of any merger or consolidation of any Subsidiary of the
Company, the surviving corporation in such Fundamental Change is or becomes
as a
result thereof a Subsidiary of the Company and if the predecessor Subsidiary
was
a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and
(D)
such transaction is with a Person in a line of business substantially similar
to
that of the Company and its Subsidiaries as of the Closing Date or any business
or activities which are similar, related or incidental thereto or logical
extensions thereof.
(i) Margin
Regulations. Neither the Company nor any of its Subsidiaries,
shall use all or any portion of the proceeds of any credit extended under
this
Agreement to purchase or carry Margin Stock in violation of Regulation
U.
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(j) Fiscal
Year. The Company shall not change its fiscal year for accounting
or tax purposes from a period consisting of the twelve-month period ending
on
Friday nearest to December 31 of each year, except as required by Agreement
Accounting Principles or by law and disclosed to the Lenders and the
Administrative Agent.
(k) Hedging
Obligations. The Company shall not and shall not permit any of
its Subsidiaries to enter into any interest rate, commodity or foreign currency
exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Company or its
Subsidiaries pursuant to which the Company or its Subsidiaries has hedged
its
actual or anticipated interest rate, foreign currency or commodity
exposure. Such permitted interest rate, foreign currency or commodity
exchange, swap, collar, cap or similar agreements entered into by the Company
or
its Subsidiaries and any Lender or any Affiliate of any Lender (at the time
such
agreement was entered into) are sometimes referred to herein as “Hedging
Agreements”.
(l) Capital
Expenditures. The Company shall not, and shall not permit any of
its Subsidiaries to, make Capital Expenditures in any fiscal year to the
extent
that during any fiscal year the aggregate amount of Capital Expenditures
for the
Company and its Subsidiaries would exceed $50,000,000, excluding any amount
attributable to a Permitted Acquisition (the “Capital Expenditures
Limit”). Notwithstanding the foregoing, in the event that the
Company and its Subsidiaries do not expend the entire Capital Expenditures
Limit
for any fiscal year, the Company and its Subsidiaries may carry forward to
the
immediately succeeding fiscal year the unutilized portion of such Capital
Expenditures Limit.
(m) Restrictive
Agreements. Except (i) in agreements evidencing Indebtedness
permitted by Section 7.3(c)(vii) (so long as such restriction applies
only to the Foreign Subsidiary issuing such Indebtedness and its Subsidiaries)
or (ii) imposed on a Subsidiary (and any of its Subsidiaries) and existing
at
the time it became a Subsidiary if such restrictions were not created in
connection with or in anticipation of the transaction or series or transactions
pursuant to which such entity become a Subsidiary and only to the extent
applying to such Subsidiary and its Subsidiaries, the Company shall not,
nor
shall it permit any of its Wholly-Owned Subsidiaries to, enter into any
indenture, agreement, instrument or other arrangement which directly or
indirectly prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the ability of
the
Company or such Subsidiary to (i) pay dividends or make other distributions
or Restricted Payments (A) on its Capital Stock or (B) with respect to
any other interest or participation in, or measured by, its profits,
(ii) make loans or advances to or other investments in the Company or any
Wholly-Owned Subsidiary, (iii) repay loans or advances from the Company or
any Wholly-Owned Subsidiary or (iv) transfer any of its properties to the
Company or any Subsidiary other than pursuant to this Agreement.
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7.4 Financial
Covenants.
(a) Minimum
Fixed Charge Coverage Ratio. The Company shall maintain as of the
end of each fiscal quarter a Fixed Charge Coverage Ratio for the four fiscal
quarter period then ending of not less than 1.50:1:00.
(b) Maximum
Leverage Ratio. The Company shall at the end of each fiscal
quarter maintain a Leverage Ratio for the four fiscal quarter period then
ending
of not greater than 3.00:1.00.
ARTICLE
VIII
DEFAULTS
8.1 Defaults. Each
of the following occurrences shall constitute a Default under this
Agreement:
(a) Failure
to Make Payments When Due. The Company or any Subsidiary Borrower
shall (i) fail to pay when due any of the Obligations consisting of principal
with respect to any Loan or (ii) shall fail to pay within five (5) Business
Days
of the date when due any of the other Obligations under this Agreement or
the
other Loan Documents.
(b) Breach
of Certain Covenants. The Company or any Subsidiary Borrower
shall fail duly and punctually to perform or observe any agreement, covenant
or
obligation binding on it under:
(i) Sections
7.1(b), 7.2(j), 7.3 (other than Section 7.3(m)) or
7.4 or
(ii) any
section of this Agreement or any other Loan Document not covered by Section
8.1(a), or 8.1(b)(i) and such failure shall continue unremedied for
thirty (30) days after the earliest of the receipt by the Company of notice
from
the Administrative Agent and actual knowledge thereof by an Authorized
Officer.
(c) Breach
of Representation or Warranty. Any representation or warranty
made or deemed made by the Company or any Subsidiary Borrower to the
Administrative Agent or any Lender herein or by the Company or any Subsidiary
Borrower or any of their Subsidiaries in any of the other Loan Documents
or in
any written statement or certificate or written information at any time given
by
any such Person pursuant to any of the Loan Documents shall be false in any
material respect on the date as of which made or deemed made.
(d) Default
as to Other Indebtedness. The Company or any of its Subsidiaries
shall fail to pay when due any Indebtedness in excess of $20,000,000 (any
such
Indebtedness being “Material Indebtedness”); or the Company or any of its
Subsidiaries shall fail to perform (beyond the applicable grace period with
respect thereto, if any) any term, provision or condition contained in any
agreement under which any such Material Indebtedness was created or is governed,
or any other event shall occur or condition exist, the effect of which default
or event is to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior to
its
stated maturity; or any Material Indebtedness of the Company or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
or repurchased (other than by a regularly scheduled payment) prior to the
stated
maturity thereof.
85
(e) Involuntary
Bankruptcy; Appointment of Receiver, Etc.
(i) An
involuntary case shall be commenced against the Company or any of the Company’s
Subsidiaries (other than an Insignificant Subsidiary) and the petition shall
not
be dismissed, stayed, bonded or discharged within sixty (60) days after
commencement of the case; or a court having jurisdiction in the premises
shall
enter a decree or order for relief in respect of the Company or any of the
Company’s Subsidiaries (other than an Insignificant Subsidiary) in an
involuntary case, under any applicable bankruptcy, insolvency or other similar
law now or hereinafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law.
(ii) A
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other
officer having similar powers over the Company or any of the Company’s
Subsidiaries (other than an Insignificant Subsidiary) or over all or a
substantial part of the property of the Company or any of the
Company’s Subsidiaries (other than an Insignificant Subsidiary) shall be
entered; or an interim receiver, trustee or other custodian of the Company
or
any of the Company’s Subsidiaries (other than an Insignificant Subsidiary) or of
all or a substantial part of the property of the Company or any of the Company’s
Subsidiaries (other than an Insignificant Subsidiary) shall be appointed
or a
warrant of attachment, execution or similar process against any substantial
part
of the property of the Company or any of the Company’s Subsidiaries (other than
an Insignificant Subsidiary) shall be issued and any such event shall not
be
stayed, dismissed, bonded or discharged within sixty (60) days after entry,
appointment or issuance.
(f) Voluntary
Bankruptcy; Appointment of Receiver, Etc. The Company or any of
the Company’s Subsidiaries (other than an Insignificant Subsidiary) shall
(i) commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, (ii) consent to the entry
of an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, (iii) consent to the appointment
of or taking possession by a receiver, trustee or other custodian for all
or a
substantial part of its property, (iv) make any assignment for the benefit
of
creditors or (v) take any corporate action to authorize any of the
foregoing.
(g) Judgments
and Attachments. Any money judgment(s) writ or warrant of
attachment, or similar process against the Company or any Domestic Subsidiary
or
any of their respective assets involving in any single case or in the aggregate
an amount in excess of $20,000,000 (to the extent not adequately covered
by
insurance as to which a solvent and unaffiliated insurance company has
acknowledged coverage) is or are entered and shall remain undischarged,
unvacated, unbonded or unstayed for a period of sixty (60) days.
86
(h) Dissolution. Any
order, judgment or decree shall be entered against the Company or any Domestic
Subsidiary decreeing its involuntary dissolution or split up and such order
shall remain undischarged and unstayed for a period in excess of sixty (60)
days; or the Company or any Domestic Subsidiary shall otherwise dissolve
or
cease to exist except as specifically permitted by this Agreement.
(i) Termination
Event. Any Termination Event occurs which the Required Lenders
believe is reasonably likely to subject the Company to liability in excess
of
$20,000,000 or the Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $40,000,000.
(j) Waiver
of Minimum Funding Standard. If the plan administrator of any
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and the Administrative
Agent or the Required Lenders believe the substantial business hardship upon
which the application for the waiver is based could reasonably be expected
to
subject either the Company or any Controlled Group member to liability in
excess
of $20,000,000.
(k) Change
of Control. A Change of Control shall occur.
(l) Guarantor
Revocation. Any Guaranty shall fail to remain in full force or
effect (other than in accordance with its terms) or any action shall be taken
to
discontinue or to assert the invalidity or unenforceability of any Guaranty,
or
any Guarantor shall fail to comply with any of the terms or provisions of
any
Guaranty to which it is a party and such failure shall continue unremedied
or
unwaived for thirty (30) days, or any Guarantor shall deny that it has any
further liability under any Guaranty to which it is a party, or shall give
notice to such effect; in each case other than a Guarantor’s ceasing to be a
Subsidiary Borrower pursuant to Section 2.22 or a Guarantor pursuant to
Section 7.2(k) or the disposition of such Guarantor in any transaction
permitted by Section 7.3(a).
A
Default
shall be deemed “continuing” until cured or until waived in writing in
accordance with Section 9.2.
ARTICLE
IX
ACCELERATION,
DEFAULTING LENDERS; WAIVERS,
AMENDMENTS
AND REMEDIES
9.1 Termination
of Commitments; Acceleration. If any Default described in
Section 8.1(e) or 8.1(f) occurs with respect to the Company or any
Subsidiary Borrower, the obligations of the Lenders to make Loans hereunder
and
the obligation of any Issuing Banks to issue Letters of Credit hereunder
shall
automatically terminate and the Obligations shall immediately become due
and
payable without any election or action on the part of the Administrative
Agent
or any Lender. If any other Default occurs, the Required Lenders, or
the Administrative Agent acting at the direction of the Required Lenders
may
terminate or suspend the obligations of the Lenders to make Loans hereunder
and
the obligation of the Issuing Banks to issue Letters of Credit hereunder,
or
declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrowers expressly
waive.
87
9.2 Amendments. Subject
to the provisions of this Article IX, the Required Lenders (or
the Administrative Agent with the consent in writing of the Required Lenders)
and the Borrowers may enter into agreements supplemental hereto for the purpose
of adding or modifying any provisions to the Loan Documents or changing in
any
manner the rights of the Lenders or the Borrowers hereunder or waiving any
Default or Unmatured Default hereunder; provided that no such
supplemental agreement shall, without the consent of each Lender directly
affected thereby:
(a) Postpone
or extend the applicable Commitment Termination Date, the Stated Maturity
Date
or any other date scheduled for any payment of principal of, or interest
on, the
Loans, the Reimbursement Obligations or any fees or other amounts payable
to
such Lender (except with respect to a waiver of the application of the default
rate of interest pursuant to Section 2.13).
(b) Reduce
the principal amount of any Loans or L/C Obligations, or reduce the rate
or
extend the time of payment of interest or fees thereon.
(c) Reduce
the percentage specified in the definition of Required Lenders or any other
percentage of Lenders hereunder specified to be the applicable percentage
in
this Agreement to act on specified matters or amend the definitions of “Required
Lenders” or “Pro Rata Share”.
(d) Increase
the amount of the Commitment of any Lender hereunder.
(e) Permit
the Company or any Subsidiary Borrower to assign its rights under this Agreement
or any Guaranty (other than pursuant to Section 7.3(h)).
(f) Release
the Company or any Guarantor from any of its obligations under the Guaranty
set
forth in Article X or any other Guaranty in each case other than a
Guarantor’s ceasing to be a Subsidiary Borrower pursuant to Section 2.22,
a Guarantor pursuant to Section 7.2(k), the disposition of such
Guarantor in any transaction permitted by Section 7.3(a) or as
otherwise provided by the terms hereof.
(g) Amend
this Section 9.2.
No
amendment of any provision of this Agreement relating to (a) the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, (b) any Issuing Bank shall be effective without the written consent
of
such Issuing Bank and (c) any Swing Line Loan shall be effective without
the
written consent of the Swing Line Bank. The Administrative Agent may
waive payment of the fee required under Section 14.3(b) without obtaining
the consent of any of the Lenders.
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9.3 Preservation
of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall
impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan or the issuance of a Letter of Credit
notwithstanding the existence of a Default or the inability of the Company
or
any other Borrower to satisfy the conditions precedent to such Loan or issuance
of such Letter of Credit shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall
not preclude other or further exercise thereof or the exercise of any other
right, and no waiver, amendment or other variation of the terms, conditions
or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the requisite number of Lenders required pursuant to Section
9.2, and then only to the extent in such writing specifically set
forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent and the Lenders until the Obligations have been paid in full.
ARTICLE
X
GUARANTY
10.1 Guaranty. For
valuable consideration, the receipt of which is hereby acknowledged, and
to
induce the Lenders to make advances to each Subsidiary Borrower and to make,
issue and participate in Letters of Credit, Swing Line Loans and Alternate
Currency Loans, the Company hereby absolutely and unconditionally guarantees
prompt payment when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, of any and all existing and future
obligations including without limitation the Obligations, of each Subsidiary
Borrower to the Administrative Agent, the Lenders, the Swing Line Bank, the
Issuing Lenders, the Alternate Currency Lenders, or any of them, under or
with
respect to the Loan Documents or under or with respect to any Hedging Agreement
entered into with a Lender or an Affiliate of a Lender (at the time such
Hedging
Agreement was entered into) in connection with this Agreement, whether for
principal, interest (including interest accruing after the commencement of
any
bankruptcy insolvency or similar proceeding whether or not allowed as a claim
in
such proceeding), fees, expenses or otherwise (collectively, the “Guaranteed
Obligations”, and each such Subsidiary Borrower being an “Obligor”
and collectively, the “Obligors”).
10.2 Waivers. The
Company waives notice of the acceptance of this Guaranty and of the extension
or
continuation of the Guaranteed Obligations or any part thereof. The
Company further waives presentment, protest, notice of notices delivered
or
demand made on any Obligor or action or delinquency in respect of the Guaranteed
Obligations or any part thereof, including any right to require the
Administrative Agent and the Lenders to xxx any Obligor, any other guarantor
or
any other Person obligated with respect to the Guaranteed Obligations or
any
part thereof. The Administrative Agent and the Lenders shall have no
obligation to disclose or discuss with the Company their assessments of the
financial condition of the Obligors.
10.3 Guaranty
Absolute. This Guaranty is a guaranty of payment and not of
collection, is a primary obligation of the Company and not one of surety,
and
the validity and enforceability of this Guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any
of
the following: (a) any extension, modification or renewal of, or indulgence
with
respect to, or substitutions for, the Guaranteed Obligations or any part
thereof
or any agreement relating thereto at any time; (b) any failure or omission
to
enforce any right, power or remedy with respect to the Guaranteed Obligations
or
any part thereof or any agreement relating thereto; (c) any waiver of any
right,
power or remedy with respect to the Guaranteed Obligations or any part thereof
or any agreement relating thereto; (d) any release, surrender, compromise,
settlement, waiver, subordination or modification, with or without
consideration, of any other guaranties with respect to the Guaranteed
Obligations or any part thereof, or any other obligation of any Person with
respect to the Guaranteed Obligations or any part thereof; (e) the
enforceability or validity of the Guaranteed Obligations or any part thereof
or
the genuineness, enforceability or validity of any agreement relating thereto;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this Guaranty even though the Administrative Agent
and
the Lenders might lawfully have elected to apply such payments to any part
or
all of the Guaranteed Obligations or to amounts which are not covered by
this
Guaranty; (g) any change in the ownership of any Obligor or the insolvency,
bankruptcy or any other change in the legal status of any Obligor; (h) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Obligations; (i)
the
failure of the Company or any Obligor to maintain in full force, validity
or
effect or to obtain or renew when required all governmental and other approvals,
licenses or consents required in connection with the Guaranteed Obligations
or
this Guaranty, or to take any other action required in connection with the
performance of all obligations pursuant to the Guaranteed Obligations or
this
Guaranty; (j) the existence of any claim, setoff or other rights which the
Company may have at any time against any Obligor, or any other Person in
connection herewith or an unrelated transaction; (k) the Administrative Agent’s
or any Lender’s election, in any case or proceeding instituted under chapter 11
of the Bankruptcy Code, of the application of section 1111(b)(2) of the
Bankruptcy Code; (l) any borrowing, use of cash collateral, or grant of a
security interest by the Company, as debtor in possession, under section
363 or
364 of the United States Bankruptcy Code; (m) the disallowance of all or
any
portion any Lender’s claims for repayment of the Guaranteed Debt under section
502 or 506 of the United States Bankruptcy Code; or (n) any other circumstances,
whether or not similar to any of the foregoing, which could constitute a
defense
to a guarantor; all whether or not the Company shall have had notice or
knowledge of any act or omission referred to in the foregoing clauses (a)
through (n) of this paragraph. It is agreed that the Company’s
liability hereunder is several and independent of any other guaranties or
other
obligations at any time in effect with respect to the Guaranteed Obligations
or
any part thereof and that the Company’s liability hereunder may be enforced
regardless of the existence, validity, enforcement or non-enforcement of
any
such other guaranties or other obligations or any provision of any applicable
law or regulation purporting to prohibit payment by any Obligor of the
Guaranteed Obligations in the manner agreed upon between the Obligor and
the
Administrative Agent and the Lenders.
89
10.4 Acceleration. The
Company agrees that, as between the Company on the one hand, and the Lenders
and
the Administrative Agent, on the other hand, the obligations of each Obligor
guaranteed under this Article X may be declared to be forthwith due and
payable, or may be deemed automatically to have been accelerated, as provided
in
Section 9.1 for purposes of this Article X, notwithstanding
any stay, injunction or other prohibition (whether in a bankruptcy proceeding
affecting such Obligor or otherwise) preventing such declaration as against
such
Obligor and that, in the event of such declaration or automatic acceleration,
such obligations (whether or not due and payable by such Obligor) shall
forthwith become due and payable by the Company for purposes of this
Article X.
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10.5 Marshaling;
Reinstatement. None of the Lenders nor the Administrative Agent
nor any Person acting for or on behalf of the Lenders or the Administrative
Agent shall have any obligation to xxxxxxxx any assets in favor of the Company
or against or in payment of any or all of the Guaranteed
Obligations. If the Company, any other Borrower or any other
Guarantor of all or any part of the Guaranteed Obligations makes a payment
or
payments to any Lender or the Administrative Agent, which payment or payments
or
any part thereof are subsequently invalidated, declared to be fraudulent
or
preferential, set aside and/or required to be repaid to such Borrower, the
Company, such other Guarantor or any other Person, or their respective estates,
trustees, receivers or any other party, including, without limitation, the
Company, under any bankruptcy law, state or federal law, common law or equitable
cause, then, to the extent of such payment or repayment, the part of the
Guaranteed Obligations which has been paid, reduced or satisfied by such
amount
shall be reinstated and continued in full force and effect as of the time
immediately preceding such initial payment, reduction or
satisfaction.
10.6 Subrogation. Until
the irrevocable payment in full of the Obligations and termination of all
commitments which could give rise to any Guaranteed Obligation, the Company
shall have no right of subrogation with respect to the Guaranteed Obligations,
and hereby waives any right to enforce any remedy which the Administrative
Agent
and/or the Lenders now has or may hereafter have against the Company, any
endorser or any other guarantor of all or any part of the Guaranteed
Obligations, and the Company hereby waives any other liability of any Obligor
to
the Administrative Agent and/or the Lenders.
10.7 Termination
Date. Subject to Section 10.5, this Guaranty shall
continue in effect until the later of (a) the Termination Date, and (b) the
date
on which this Agreement has otherwise expired or been terminated in accordance
with its terms and all of the Guaranteed Obligations have been paid in full
in
cash.
ARTICLE
XI
GENERAL
PROVISIONS
11.1 Survival
of Representations. All representations and warranties of the
Borrowers contained in this Agreement shall survive delivery of this Agreement
and the making of the Loans herein contemplated so long as any principal,
accrued interest, fees, or any other amount due and payable under any Loan
Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Commitments have not been
terminated.
11.2 Governmental
Regulation. Anything contained in this Agreement to the contrary
notwithstanding, no Lender shall be obligated to extend credit to the Company
or
any other Borrower in violation of any limitation or prohibition provided
by any
applicable statute or regulation.
91
11.3 Headings. Section
headings in the Loan Documents are for convenience of reference only, and
shall
not govern the interpretation of any of the provisions of the Loan
Documents.
11.4 Entire
Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrowers, the Administrative Agent and the Lenders
and
supersede all prior agreements and understandings among the Borrowers, the
Administrative Agent and the Lenders relating to the subject matter thereof
other than the Fee Letters.
11.5 Several
Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to
which
the Administrative Agent is authorized to act as such). The failure
of any Lender to perform any of its obligations hereunder shall not relieve
any
other Lender from any of its obligations hereunder. Any obligation of
“the Borrowers” hereunder shall be the joint and several obligation of the
Borrowers. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement
and
their respective successors and assigns.
11.6 Expenses;
Indemnification.
(a) Expenses. The
Borrowers shall reimburse the Administrative Agent for any reasonable costs
and
out-of-pocket expenses (including reasonable attorneys’ and paralegals’ fees and
time charges of attorneys and paralegals for the Administrative Agent, Issuing
Banks, Swing Line Bank and Alternative Currency Banks) paid or incurred by
the
Administrative Agent in connection with the preparation, negotiation, execution,
delivery, syndication, review, proposed or completed amendment, waiver or
modification, and administration of the Loan Documents. The Borrowers
also agree to reimburse the Administrative Agent, each Alternate Currency
Lender, the Arranger and each of the Lenders for any costs and out-of-pocket
expenses (including reasonable attorneys’ and paralegals’ fees and time charges
of attorneys and paralegals for the Administrative Agent, each Alternate
Currency Lender, the Arranger and each Lender, which attorneys and paralegals
may be employees of the Administrative Agent, such Alternate Currency Lender,
the Arranger, or the Lenders) paid or incurred by the Administrative Agent,
the
Alternate Currency Lenders, the Arranger or any Lender in connection with
the
collection of the Obligations and enforcement of the Loan
Documents. The Administrative Agent, the Alternate Currency Lenders
and the Arranger shall provide the Borrowers with a detailed statement of
all
reimbursements requested under this Section 11.6(a).
(b) Indemnity. The
Borrowers hereby further agree to indemnify the Administrative Agent, the
Arranger, the Alternate Currency Lenders, the Issuing Banks and each and
all of
the Lenders and each of their respective Affiliates, and each of the
Administrative Agent’s, Arranger’s, Alternate Currency Lender’s, Issuing Bank’s,
Lender’s and Affiliate’s directors, officers, employees, attorneys and agents
(all such persons, “Indemnitees”) against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not such
Indemnitee is a party thereto) which any of them may pay or incur arising
out of
or relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Loan hereunder except to the extent that
they
are determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of
the party seeking indemnification or another Indemnitee.
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(c) Waiver
of Certain Claims. The Borrowers further agree to assert no claim
against any of the Indemnitees on any theory of liability seeking consequential,
special, indirect, exemplary or punitive damages.
(d) Survival
of Agreements. The obligations and agreements of the Borrowers
under this Section 11.6 shall survive the termination of this
Agreement.
11.7 Numbers
of Documents. If requested by the Administrative Agent, all
statements, notices, closing documents, and requests hereunder shall be
furnished to the Administrative Agent with sufficient counterparts so that
the
Administrative Agent may furnish one to each of the Lenders.
11.8 Accounting. Except
with respect to the pricing grid calculations in Section 2.16 and the
financial covenant calculations in Section 7.4, both of which shall be
made in accordance with Agreement Accounting Principles as in effect on the
date
hereof, all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with generally accepted
accounting principles as in effect from time to time, consistently
applied.
11.9 Severability
of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jurisdiction shall, as to
that
jurisdiction, be inoperative, unenforceable, or invalid without affecting
the
remaining provisions in that jurisdiction or the operation, enforceability,
or
validity of that provision in any other jurisdiction, and to this end the
provisions of all Loan Documents are declared to be severable.
11.10 Nonliability
of Lenders. The relationship between the Borrowers and the
Lenders and the Administrative Agent shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have
any fiduciary responsibilities to the Borrowers or the
Guarantors. Neither the Administrative Agent nor any Lender
undertakes any responsibility to any Borrower or Guarantor to review or inform
any Borrower or Guarantor of any matter in connection with any phase of the
Borrowers’ business or operations.
11.11 GOVERNING
LAW. ANY DISPUTE BETWEEN ANY BORROWER AND THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM
IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402
OF
THE GENERAL OBLIGATIONS LAW, BUT EXCLUDING TO THE MAXIMUM EXTENT PERMITTED
BY
APPLICABLE LAW, ALL OTHER CONFLICT OF LAWS PRINCIPLES AND CHOICE OF LAW RULES
OF
THE STATE OF NEW YORK.
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11.12
CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE
JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b) BELOW, EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY APPLICABLE STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW
YORK,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK. EACH OF
THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION
(a) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING
THE DISPUTE.
(b) OTHER
JURISDICTIONS. EACH BORROWER AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT
TO
PROCEED AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY
BORROWERS OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED
IN
FAVOR OF SUCH PERSON. EACH BORROWER AGREES THAT IT WILL NOT ASSERT
ANY PERMISSIVE UNRELATED COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH
PERSON
TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH
PERSON. EACH BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (b).
(c) VENUE. EACH
BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION,
ANY
OBJECTION OF 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 SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY
JURISDICTION SET FORTH ABOVE.
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(d) WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO
OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO 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 HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE
OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
(e) ADVICE
OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS
OF
SECTION 11.6 AND THIS SECTION 11.12, WITH ITS
COUNSEL.
11.13 Other
Transactions. Each of the Administrative Agent, the Arranger, the
Lenders, the Issuing Banks, the Swing Line Bank, the Alternate Currency Lenders
and the Borrowers acknowledge that the Administrative Agent and the Lenders
(or
Affiliates of the Administrative Agent and the Lenders) may, from time to
time,
effect transactions for their own accounts or the accounts of customers,
and
hold positions in loans or options on loans of the Company, the Company’s
Subsidiaries and other companies that may be the subject of this credit
arrangement and nothing in this Agreement shall impair the right of any such
Person to enter into any such transaction (to the extent it is not expressly
prohibited by the terms of this Agreement) or give any other Person any claim
or
right of action hereunder as a result of the existence of the credit
arrangements hereunder, all of which are hereby waived. In addition,
certain Affiliates of one or more of the Lenders are or may be securities
firms
and as such may effect, from time to time, transactions for their own accounts
or for the accounts of customers and hold positions in securities or options
on
securities of the Company, the Company’s Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction
(to
the extent it is not expressly prohibited by the terms of this Agreement)
or
give any other Person any claim or right of action hereunder as a result
of the
existence of the credit arrangements hereunder, all of which are hereby
waived. Other business units affiliated with the Administrative Agent
may from time to time provide other financial services and products to the
Company and its Subsidiaries.
11.14
Effect of Amendment and Restatement of the Existing Credit
Agreement. (a) On the Amendment Effective Date, the
Existing Credit Agreement shall be amended and restated in its entirety by
this
Agreement, and the Existing Credit Agreement shall thereafter be of no further
force and effect except to evidence (i) the incurrence by the Loan Parties
of
the “Obligations” under and as defined in the Existing Credit Agreement (whether
or not such “Obligations” are contingent as of the Amendment Effective Date),
(ii) the representations and warranties made by the Loan Parties prior to
the
Amendment Effective Date (which representations and warranties shall not
be
superseded or rendered ineffective by this Agreement as they pertain to the
period prior to the Amendment Effective Date) and (iii) any action or omission
performed or required to be performed pursuant to the Existing Credit Agreement
prior to the Amendment Effective Date (including any failure, prior to the
Amendment Effective Date, to comply with the covenants contained in the Existing
Credit Agreement). The parties hereto acknowledge and agree that (a)
this Agreement and the other Loan Documents, whether executed and delivered
in
connection herewith or otherwise, do not constitute a novation or termination
of
the “Obligations” (as defined in the Existing Credit Agreement) under the
Existing Credit Agreement as in effect prior to the Amendment Effective Date
and
which remain outstanding and (b) the “Obligations” are in all respects
continuing (as amended and restated hereby and which are hereinafter subject
to
the terms herein).
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(b) On
and after the Amendment Effective Date, (i) all references to the Existing
Credit Agreement in the Loan Documents (other than this Agreement) shall
be
deemed to refer to the Existing Credit Agreement, as amended and restated
hereby, (ii) all references to any section (or subsection) of the Existing
Credit Agreement in any Loan Document (but not herein) shall be amended to
become, mutatis mutandis, references to the corresponding provisions of this
Agreement and (iii) except as the context otherwise provides, on or after
the
Amendment Effective Date, all references to this Agreement herein (including
for
purposes of indemnification and reimbursement of fees) shall be deemed to
be
reference to the Existing Credit Agreement as amended and restated
hereby.
(c) This
amendment and restatement is limited as written and is not a consent to any
other amendment, restatement or waiver or other modification, whether or
not
similar and, except as expressly provided herein or in any other Loan Document,
all terms and conditions of the Loans Documents remain in full force and
effect
unless otherwise specifically amended hereby or by any other Loan
Document.
(d) The
annexes, exhibits and schedules to the Existing Credit Agreement are hereby
amended and restated in their entirety by replacing such annexes, exhibits
and
schedules with the annexes, exhibits and schedules attached hereto.
11.15 Patriot
Act. The Administrative Agent and each Lender hereby notifies the
Borrowers that pursuant to the requirements of the Patriot Act, it is required
to obtain, verify and record information that identifies each Borrower, which
information includes the name and address of such Borrower and other information
that will allow the Administrative Agent or such Lender to identify such
Borrower in accordance with the Patriot Act.
ARTICLE
XII
THE
ADMINISTRATIVE AGENT
12.1 Appointment;
Nature of Relationship. BNS is appointed by the Lenders as the
Administrative Agent hereunder and under each other Loan Document, and each
of
the Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Administrative
Agent agrees to act as such contractual representative upon the express
conditions contained in this Article XII. Notwithstanding the
use of the defined term “Administrative Agent,” it is expressly understood and
agreed that the Administrative Agent shall not have any fiduciary
responsibilities to any Holder of Obligations by reason of this Agreement
and
that the Administrative Agent is merely acting as the representative of the
Lenders with only those duties as are expressly set forth in this Agreement
and
the other Loan Documents. In its capacity as the Lenders’ contractual
representative, the Administrative Agent (i) does not assume any fiduciary
duties to any of the Holders of Obligations, and (ii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders, for itself and on behalf of its
Affiliates as Holders of Obligations, agrees to assert no claim against the
Administrative Agent on any agency theory or any other theory of liability
for
breach of fiduciary duty, all of which claims each Holder of Obligations
waives.
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12.2 Powers. The
Administrative Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Administrative Agent by the
terms
of each thereof, together with such powers as are reasonably incidental
thereto. The Administrative Agent shall have no implied duties or
fiduciary duties to the Lenders, or any obligation to the Lenders to take
any
action hereunder or under any of the other Loan Documents except any action
specifically provided by the Loan Documents required to be taken by the
Administrative Agent.
12.3 General
Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Company,
the
Lenders or any Lender for any action taken or omitted to be taken by it or
them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
12.4 No
Responsibility for Loans, Creditworthiness, Recitals,
Etc. Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (a) any statement, warranty or representation
made in connection with any Loan Document or any borrowing hereunder; (b)
the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document; (c) the satisfaction of any condition specified
in
Article V, except receipt of items required to be delivered solely to the
Administrative Agent; (d) the existence or possible existence of any Default
or
(e) the validity, effectiveness or genuineness of any Loan Document or any
other
instrument or writing furnished in connection therewith. The
Administrative Agent shall not be responsible to any Lender for any recitals,
statements, representations or warranties herein or in any of the other Loan
Documents, or for the execution, effectiveness, genuineness, validity, legality,
enforceability, collectibility, or sufficiency of this Agreement or any of
the
other Loan Documents or the transactions contemplated thereby, or for the
financial condition of any guarantor of any or all of the Obligations, the
Company or any of its Subsidiaries.
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12.5 Action
on Instructions of Lenders. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder
and
under any other Loan Document in accordance with written instructions signed
by
the Required Lenders (or all of the Lenders in the event that and to the
extent
that this Agreement expressly requires such), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of
the
Lenders and on all owners of Loans and on all Holders of
Obligations. The Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the
Lenders
pro rata against any and all liability, cost and expense that it may incur
by
reason of taking or continuing to take any such action.
12.6 Employment
of Agents and Counsel. The Administrative Agent may execute any
of its duties as the Administrative Agent hereunder and under any other Loan
Document by or through employees, agents, and attorneys-in-fact and shall
not be
answerable to the Lenders, except as to money or securities received by it
or
its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders
and all
matters pertaining to the Administrative Agent’s duties hereunder and under any
other Loan Document.
12.7 Reliance
on Documents; Counsel. The Administrative Agent shall be entitled
to rely upon any notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and
to
have been signed or sent by the proper person or persons, and, in respect
to
legal matters, upon the opinion of counsel selected by the Administrative
Agent,
which counsel may be employees of the Administrative Agent.
12.8 The
Administrative Agent’s, Issuing Banks’, Alternate Currency Lenders’ and Swing
Line Bank’s Reimbursement and Indemnification.
(a) The
Lenders agree to reimburse and indemnify the Administrative Agent ratably
in
proportion to their respective Pro Rata Shares to the extent not reimbursed
by
the Borrowers (i) for any expenses incurred by the Administrative Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (ii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits,
costs, expenses or disbursements of any kind and nature whatsoever which
may be
imposed on, incurred by or asserted against the Administrative Agent in any
way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents;
provided that no Lender shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final non-appealable judgment by
a
court of competent jurisdiction to have arisen from the gross negligence
or
willful misconduct of the Administrative Agent.
(b) The
Lenders agree to reimburse and indemnify the Administrative Agent, the Issuing
Banks, the Swing Line Bank and the Alternate Currency Lenders ratably in
proportion to their respective Pro Rata Shares to the extent not reimbursed
by
the Borrowers (and without duplication of clause (a) above) (i) any
amounts not reimbursed by any Borrower for which the Administrative Agent,
the
Issuing Banks, the Swing Line Bank and the Alternate Currency Lenders are
entitled to reimbursement by any Borrower under the Loan Documents, (ii)
for any
other expenses incurred by the Administrative Agent, any Issuing Bank, the
Swing
Line Bank or any Alternate Currency Lender on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent, any Issuing Bank,
the
Swing Line Bank or any Alternate Currency Lender in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of
any of
the terms thereof or of any such other documents; provided that no Lender
shall be liable for any of the foregoing to the extent any of the foregoing
is
found in a final non-appealable judgment by a court of competent jurisdiction
to
have arisen from the gross negligence or willful misconduct of the
Administrative Agent, the applicable Issuing Bank, the Swing Line Bank or
the
applicable Alternate Currency Lender.
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12.9 Rights
as a Lender. With respect to its Commitment, Loans made by it,
Swing Line Loans made by it and Letters of Credit issued by it, the
Administrative Agent shall have the same rights and powers hereunder and
under
any other Loan Document as any Lender or Issuing Bank and may exercise the
same
as though it were not the Administrative Agent, and the term “Lender” or
“Lenders”, “Swing Line Bank”, “Issuing Bank” or “Issuing Banks” shall, unless
the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits
from, lend money to, and generally engage in any kind of trust, debt, equity
or
other transaction, in addition to those contemplated by this Agreement or
any
other Loan Document, with the Company or any of its Subsidiaries in which
such
Person is not prohibited hereby from engaging with any other
Person.
12.10 Lender
Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Company and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and
the
other Loan Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on such documents and information as it shall
deem
appropriate at the time, continue to make its own credit decisions in taking
or
not taking action under this Agreement and the other Loan
Documents.
12.11 Successor
Administrative Agent. The Administrative Agent may resign at any
time by giving written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have
the right to appoint, subject to the Company’s approval, on behalf of the
Borrowers and the Lenders, a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days
after
the retiring Administrative Agent’s giving notice of resignation, then the
retiring Administrative Agent may appoint, on behalf of the Borrowers and
the
Lenders, a successor Administrative Agent. Such successor
Administrative Agent shall be a Lender or commercial bank having capital
and
retained earnings of at least $500,000,000. Upon the acceptance of
any appointment as the Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents. After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the provisions of this Article
XII shall continue in effect for its benefit in respect of any actions taken
or omitted to be taken by it while it was acting as the Administrative Agent
hereunder and under the other Loan Documents.
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12.12 No
Duties Imposed Upon Co-Syndication Agents, Co-Documentation Agents or
Arranger. None of the Persons identified on the cover page to
this Agreement, the signature pages to this Agreement or otherwise in this
Agreement as a “Co-Syndication Agent”, “Co-Documentation Agent” or “Arranger”
shall have any right, power, obligation, liability, responsibility or duty
under
this Agreement other than, (a) expressly granted indemnification rights or
rights under the Fee Letters and (b) if such Person is a Lender, those
applicable to all Lenders as such. Without limiting the foregoing,
none of the Persons identified on the cover page to this Agreement, the
signature pages to this Agreement or otherwise in this Agreement as a
“Co-Syndication Agent”, “Co-Documentation Agent” or “Arranger” shall have or be
deemed to have any fiduciary duty to or fiduciary relationship with any
Lender. In addition to the agreements set forth in Section 12.10,
each of the Lenders acknowledges that it has not relied, and will not rely,
on
any of the Persons so identified in deciding to enter into this Agreement
or in
taking or not taking action hereunder.
ARTICLE
XIII
SETOFF;
RATABLE PAYMENTS
13.1 Setoff. In
addition to, and without limitation of, any rights of the Lenders under
applicable law, if any Default occurs and is continuing, subject to the prior
consent of the Administrative Agent, any Indebtedness from any Lender to
the
Company or any other Borrower (including all account balances, whether
provisional or final and whether or not collected or available) may be offset
and applied toward the payment of the Obligations owing to such Lender, whether
or not the Obligations, or any part hereof, shall then be due.
13.2 Ratable
Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant
to
Sections 4.1, 4.2 or 4.4 and payments expressly hereunder
provided to be distributed on other than a pro rata basis or payments made
and
distributed in accordance with Section 2.13) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand,
to
purchase a portion of the Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans. If
any Lender, whether in connection with setoff or amounts which might be subject
to setoff or otherwise, receives collateral or other protection for its
Obligation or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders
share
in the benefits of such collateral ratably in proportion to the obligations
owing to them. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be
made.
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13.3 Application
of Payments. The Administrative Agent shall apply all payments
and prepayments in respect of any Obligations in the following
order:
(a)
first,
to pay interest on
and then principal of any portion of the Loans which the Administrative Agent
may have advanced on behalf of any Lender for which the Administrative Agent
has
not then been reimbursed by such Lender or the applicable Borrower and to
pay
any Swing Line Loan, Alternate Currency Loan or Reimbursement Obligation
that
has not been paid; (b) second, to the ratable payment of the Obligations
then due and payable; and (c) third, to the ratable payment of all other
Obligations (and in the case of the foregoing clauses (b) and (c),
the amount of voluntary or mandatory prepayments of the Term Loans in accordance
with Section 2.6 shall be applied in direct order to the remaining Term Loan
amortization payments due in the next succeeding twelve months and then
prorata in accordance with the amount of each remaining Term Loan
amortization payment).
13.4 Relations
Among Lenders. The Lenders are not partners or co-venturers, and
no Lender shall be liable for the acts or omissions of, or (except as otherwise
set forth herein in case of the Administrative Agent) authorized to act for,
any
other Lender.
ARTICLE
XIV
BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
14.1 Successors
and Assigns. The terms and provisions of the Loan Documents shall
be binding upon and inure to the benefit of the Borrowers and the Lenders
and
their respective successors and assigns, except that (a) no Borrower shall
have
any right to assign its rights or obligations under the Loan Documents without
the consent of all of the Lenders, and any such assignment in violation of
this
Section 14.1(a) shall be null and void, and (b) any assignment by any
Lender must be made in compliance with Section
14.3. Notwithstanding clause (b) of this Section
14.1 or Section 14.3, (i) any Lender may at any time, without the
consent of any Borrower or the Administrative Agent (unless a Default or
Unmatured Default has occurred and is continuing, in which case the consent
of
the Administrative Agent shall be required, which consent shall not unreasonably
be withheld), assign all or any portion of its rights under this Agreement
to a
Federal Reserve Bank and (ii) any Lender which is a fund or commingled
investment vehicle that invests in commercial loans in the ordinary course
of
its business may at any time, without the consent of any Borrower or the
Administrative Agent (unless a Default or Unmatured Default has occurred
and is
continuing, in which case the consent of the Administrative Agent shall be
required, which consent shall not unreasonably be withheld), pledge or assign
all or any part of its rights under this Agreement to a trustee or other
representative of holders of obligations owed or securities issued by such
Lender as collateral to secure such obligations or securities; provided
that no such assignment or pledge shall release the transferor Lender from
its
obligations hereunder. The Administrative Agent may treat each Lender
as the owner of the Loans made by such Lender hereunder for all purposes
hereof
unless and until such Lender complies with Section 14.3 in the case of an
assignment thereof or, in the case of any other transfer, a written notice
of
the transfer is filed with the Administrative Agent. Any assignee or
transferee of a Loan, Commitment, L/C Interest or any other interest of a
lender
under the Loan Documents agrees by acceptance thereof to be bound by all
the
terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of any Loan, shall be conclusive and binding
on any subsequent owner, transferee or assignee of such Loan.
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14.2 Participations.
(a) Permitted
Participants; Effect. Subject to the terms set forth in this
Section 14.2, any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time sell to one or more banks
or
other entities (“Participants”) participating interests in any Loan owing
to such Lender, any Commitment of such Lender, any L/C Interest of such Lender
or any other interest of such Lender under the Loan Documents on a pro rata
or
non-pro rata basis. Each Lender that sells a participating interest
in any Loan or other interest to a Participant shall, as agent of the Borrower
solely for the purpose of this Section 14.2, record in book entries
maintained by such Lender the name and the amount of the participating interest
of each Participant entitled to receive payments in respect of such
participating interests. Moreover, notwithstanding such recordation,
such participation shall not be considered an assignment under Section
14.3 and such Participant shall not be considered a Lender. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender’s obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain
the
owner of all Loans made by it for all purposes under the Loan Documents,
all
amounts payable by the applicable Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests, and
the
applicable Borrower and the Administrative Agent shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and
obligations under the Loan Documents except that, for purposes of Section
2.16, Article IV and Section 9.2, the Participants shall be
entitled to the same rights as if they were Lenders. Notwithstanding
anything herein to the contrary, no Participant shall be entitled to receive
any
greater amount pursuant to Section 2.16 or Section 4.1 than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(b) Voting
Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver
of
any provision of the Loan Documents other than any amendment, modification
or
waiver with respect to any Loan, Letter of Credit or Commitment in which
such
Participant has an interest which (i) forgives principal, interest or fees,
(ii)
reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Commitment or (iii) postpones
any
date fixed for any regularly-scheduled payment of principal of, or interest
or
fees on, or extends the Termination Date of, any such Loan or
Commitment.
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14.3 Assignments.
(a) Permitted
Assignments. (1) Any Lender (each such assigning
Lender under this Section 14.3 being an “Assigning Lender”)
may, in the ordinary course of its business and in accordance with applicable
law, at any time assign to one or more banks or other entities (other than
the
Company or any of its Affiliates) (“Purchasers”) all or a portion of its
rights and obligations under this Agreement (including, without limitation,
its
Commitment, any Loans owing to it, all of its participation interests in
existing Letters of Credit, Swing Line Loans and Alternate Currency Loans,
and
its obligation to participate in additional Letters of Credit, Swing Line
Loans
and Alternate Currency Loans hereunder) in accordance with the provisions
of
this Section 14.3.
(A) Subject
to clause (B) below, any Lender may assign to one or more Purchasers,
Lenders, Affiliates of a Lender or Approved Funds of a Lender, all or a portion
of its rights and obligations under the Loan Documents (including all or
a
portion of its Commitments and the Loans at the time owing to it);
provided that:
(i) the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Acceptance Agreement substantially in the form of Exhibit
C hereto; and
(ii) except
in the case of (X) an assignment of the entire remaining amount of the
Assigning Lender’s Commitments and the Loans at the time owing to it or
(Y) an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
with respect to a Lender, the aggregate amount of the Commitments or principal
outstanding balance of the Loans of each of the Assigning Lender and the
Purchaser after giving effect to the assignment shall not be less than
$5,000,000, unless the Administrative Agent otherwise consents.
(B) Any
assignment of a Revolving Loan or Revolving Loan Commitment proposed pursuant
to
clause (A) to any Person (other than a Lender, an Affiliate of a
Lender or an Approved Fund of a Lender) (i) shall be made prorata
with participations in Letters of Credit and Swing Line Loans and (ii) shall
be
subject to the prior written approval of (X) the Administrative Agent,
(Y) the Swing Line Bank, the Issuing Bank and any Alternate Currency Lender
and (Z) so long as no Default has occurred and is continuing on the date
such
assignment is to become effective, the Company (not to be unreasonably
withheld). Any assignment of a Term Loan proposed pursuant to
clause (A) to any Person (other than a Lender, an Affiliate of a
Lender or an Approved Fund of a Lender) shall be subject to the prior written
approval of (X) the Administrative Agent and (Y) so long as no Default has
occurred and is continuing on the date such assignment is to become effective,
the Company (not to be unreasonably withheld). If the consent of the
Company to an assignment is required hereunder, the Company shall be deemed
to
have given its consent ten Business Days after the date notice thereof has
been
delivered by the Assigning Lender (through the Administrative Agent) to the
Company, unless such consent is expressly refused by the Company prior to
such
tenth Business Day.
103
(ii) Notwithstanding
anything to the contrary contained herein, any Lender (each such Lender,
a
“Granting Bank”) may grant to a special purpose funding vehicle (each
such special purpose funding vehicle, a “SPC”), identified as such in
writing from time to time by the applicable Granting Bank to the Administrative
Agent and the Company, the option to provide to the Company and the
other Borrowers all or any part of any Advance that such Granting Bank would
otherwise be obligated to make to the applicable Borrower pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment
by any SPC to make any Advance, (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Advance, the
applicable Granting Bank shall be obligated to make such Advance pursuant
to the
terms hereof. The making of an Advance by any SPC hereunder shall utilize
the
Commitment of the applicable Granting Bank to the same extent, and as if,
such
Advance were made by such Granting Bank. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or other similar payment
obligation under this Agreement (all liability for which shall remain with
the
applicable Granting Bank). All notices hereunder to any Granting Bank
or the related SPC, and all payments in respect of the Obligations due to
such
Granting Bank or the related SPC, shall be made to such Granting
Bank. In addition, each Granting Bank shall vote as a Lender
hereunder without giving effect to any assignment under this Section
14.3(a)(ii), and not SPC shall have any vote as a Lender under this
Agreement for any purpose. In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination
of
this Agreement) that, prior to the date that is one year and one day after
the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States
or any
State thereto. In addition, notwithstanding anything to the contrary
contained in this Section 14.3, any SPC may (A) with notice to, but
without the prior written consent of, the Company and the Administrative
Agent
and without paying any processing or administrative fee therefor, assign
all or
a portion of its interest in any Advances to the Granting Bank or to any
financial institutions (consented to by the Company and the Administrative
Agent
in accordance with the terms of Section 14.3(a)(i)) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Advances and (B) disclose on a confidential basis any
non-public information relating to its Advances to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. This Section
14.3(a)(ii) may not be amended without
the written consent of each SPC affected thereby.
104
(b) Effect;
Effective Date. Upon (i) delivery to the Administrative Agent and
the Alternate Currency Lenders of a notice of assignment, substantially in
the
form attached as Appendix I to Exhibit C hereto (a “Notice of
Assignment”), together with any consent required by Section 14.3(a),
(ii) payment of a $3,500 fee by the assignee or the assignor (as agreed)
to the
Administrative Agent for processing such assignment, and (iii) the completion
of
the recording requirements in Section 14.3(c), such assignment shall
become effective on the later of such date when the requirements in clauses
(i), (ii), and (iii) are met or the effective date specified
in such Notice of Assignment. The Notice of Assignment shall contain
a representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment, Loans and L/C Obligations under
the
applicable assignment agreement are “plan assets” as defined under ERISA and
that the rights and interests of the Purchaser in and under the Loan Documents
will not be “plan assets” under ERISA. On and after the effective
date of such assignment, such Purchaser, if not already a Lender, shall for
all
purposes be a Lender party to this Agreement and any other Loan Documents
executed by the Lenders and shall have all the rights and obligations of
a
Lender under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by any Borrower, the Lenders,
the
Alternate Currency Lenders or the Administrative Agent shall be required
to
release the Assigning Lender with respect to the percentage of the Aggregate
Revolving Loan Commitment, Loans and Letter of Credit, Swing Line Loans and
Alternate Currency Loan participations assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 14.3(b), the Assigning Lender, the
Administrative Agent, the Alternate Currency Lenders and the Borrowers shall
make appropriate arrangements so that, to the extent notes have been issued
to
evidence any of the transferred Loans, replacement notes are issued to such
Assigning Lender and new notes or, as appropriate, replacement notes, are
issued
to such Purchaser, in each case in principal amounts reflecting their
Commitment, as adjusted pursuant to such assignment. Notwithstanding
anything to the contrary herein, no Borrower shall, at any time, be obligated
to
pay under Section 2.15(e) to any Lender that is a Purchaser, assignee or
transferee any sum in excess of the sum which such Borrower would have been
obligated to pay to the Lender that was the Assigning Lender, assignor or
transferor had such assignment or transfer not been effected.
(c) The
Register. Notwithstanding anything to the contrary in this
Agreement, each Borrower hereby designates the Administrative Agent, and
the
Administrative Agent hereby accepts such designation, to serve as such
Borrower’s contractual representative solely for purposes of this Section
14.3(c). In this connection, the Administrative Agent shall
maintain at its address referred to in Section
15.1 a copy of each assignment delivered to and
accepted by it pursuant to this Section 14.3 and a register (the
“Register”) for the recordation of the names and addresses of the
Lenders, the Commitment of each Lender, the principal amount of and interest
on
the Loans owing to, each Lender from time to time and whether such Lender
is an
original Lender or the assignee of another Lender pursuant to an assignment
under this Section 14.3. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Company
and each of its Subsidiaries, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available
for inspection by any Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
105
14.4 Confidentiality. Subject
to Section 14.5, the Administrative Agent and the Lenders and their
respective representatives shall hold all nonpublic information obtained
pursuant to the requirements of this Agreement in accordance with such Person’s
customary procedures for handling confidential information of this nature
and in
accordance with safe and sound commercial lending or investment practices
and in
any event may make disclosure reasonably required by a prospective Transferee
in
connection with the contemplated participation or assignment or as required
or
requested by any Governmental Authority or any securities exchange or similar
self-regulatory organization or representative thereof or pursuant to a
regulatory examination or legal process, or to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty’s
professional advisor. In no event shall the Administrative Agent or
any Lender be obligated or required to return any materials furnished by
the
Company; provided that each prospective Transferee shall be required to
agree that if it does not become a participant or assignee it shall return
all
materials furnished to it by or on behalf of the Company in connection with
this
Agreement.
14.5 Dissemination
of Information. Each Borrower authorizes each Lender to disclose
to any Participant or Purchaser or any other Person acquiring an interest
in the
Loan Documents by operation of law (each a “Transferee”) and any
prospective Transferee any and all information in such Lender’s possession
concerning the Company and its Subsidiaries; provided that prior to any
such disclosure, such prospective Transferee shall agree to preserve in
accordance with Section 14.4 the confidentiality of any confidential
information described therein.
ARTICLE
XV
NOTICES
15.1 Giving
Notice. Except as otherwise permitted by Section 2.11(d)
with respect to Borrowing/Conversion/Continuation Notices, all notices and
other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing, including by facsimile or by email and
addressed or delivered to such party at its address set forth below its
signature hereto or at such other address as may be designated by such party
in
a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any
notice,
if transmitted by facsimile or email, shall be deemed given when
transmitted.
15.2 Change
of Address. The Borrowers, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice
in
writing to the other parties hereto.
106
ARTICLE
XVI
COUNTERPARTS
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the
Subsidiary Borrowers, the Administrative Agent and the Lenders.
107
IN
WITNESS WHEREOF, the Company, the Subsidiary Borrowers, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
XXXXXXX
NAVIGATION LIMITED,
|
|||
as
the Company
|
|||
By:
|
/s/ Xxxxx Xxxxxx | ||
Name:
Xxxxx Xxxxxx
|
|||
Title:
Vice President
|
|||
|
|||
Address:
|
000
Xxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
|
||
Attention:
|
General
Counsel
|
||
Telephone
No.:
|
(000)
000-0000
|
||
Facsimile
No.:
|
(000)
000-0000
|
||
Email:
|
xxxxx@xxxxxxx.xxx
|
||
Website:
xxxx://xxx.xxxxxxx.xxx/xxxxxxxxx.xxxxx
|
|||
THE
BANK OF NOVA SCOTIA,
as
Administrative Agent, Issuing Bank, Swing Line Bank and a
Lender
|
|||
By:
|
/s/ Xxxxx Xxxxxx | ||
Name: Xxxxx
Xxxxxx
|
|||
Title: Managing
Director
|
|||
Address:
|
The
Bank of Nova Scotia
|
||
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
|
|||
Xxx
Xxxxxxxxx, XX 00000
|
|||
Attention:
|
Xxxxx
Xxxxxx
|
||
Telephone
No.:
|
(000)
000-0000
|
||
Facsimile
No.:
|
(000)
000-0000
|
||
Email:
|
xxxxx_xxxxxx@xxxxxxxxxxxxx.xxx
|
[Signature
page to Amended and Restated Credit Agreement]
CITIBANK,
N.A.,
as
a Co-Syndication Agent and a Lender
|
||
By:
|
/s/ Xxxx Bantemps | |
Name:
Xxxx Bantemps
|
||
Title:
Vice President
|
[Signature
page to Amended and Restated Credit Agreement]
BANK
OF MONTREAL, CHICAGO BRANCH d/b/a BMO CAPITAL MARKETS,
as
a Co-Syndication Agent and a Lender
|
||
By:
|
/s/ Xxxxxxx Xxxxxxxxxxx | |
Name:
Xxxxxxx Xxxxxxxxxxx
|
||
Title:
Director
|
[Signature
page to Amended and Restated Credit Agreement]
BANK
OF AMERICA, N.A.,
|
||
as
a Co-Documentation Agent and a Lender
|
||
By:
|
/s/ Xxx X. Xxxxxx-Xxxxxxx | |
Name:
Xxx X. Xxxxxx-Xxxxxxx
|
||
Title:
Managing Director
|
[Signature
page to Amended and Restated Credit Agreement]
XXXXX
FARGO BANK, N.A.,
|
||
as
a Co-Documentation Agent and a Lender
|
||
By:
|
/s/ Jillian X.X. Xxxxx | |
Name:
Jillian X.X. Xxxxx
|
||
Title:
Vice President
|
[Signature
page to Amended and Restated Credit Agreement]
JPMORGAN
CHASE BANK,
|
||
as
a Lender
|
||
By:
|
/s/ Xxxxxx Xxxxxx | |
Name:
Xxxxxx Xxxxxx
|
||
Title:
Senior Vice President
|
[Signature
page to Amended and Restated Credit Agreement]
U.S.
BANK NATIONAL ASSOCIATION,
|
||
as
a Lender
|
||
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Name:
Xxxxxxx X. Xxxxx
|
||
Title:
Vice President
|
[Signature
page to Amended and Restated Credit Agreement]
COMERICA
BANK,
|
||
as
a Lender
|
||
By:
|
/s/ Xxxxxx Xxxxxx | |
Name:
Xxxxxx Xxxxxx
|
||
Title:
First Vice President
|
[Signature
page to Amended and Restated Credit Agreement]
NORDEA
BANK FINLAND PLC, acting through its New York and Grand Cayman
branches,
as a Lender
|
||
|
||
By:
|
/s/ Xxxxxx Xxxxxxx Xxxxxxxxx | |
Name:
Xxxxxx Xxxxxxx Xxxxxxxxx
|
||
Title:
Vice President
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|
Name:
Xxxxxx Xxxxxxx
|
||
Title:
VP Credit
|
||
Address:
000 Xxxxxxx Xxxxxx
|
||
Xxx Xxxx, Xxx Xxxx 00000
|
||
Attention:
Xxxxxx Xxxxxxxxxx
|
||
SVP Corporate Banking
|
||
Telephone
No: 000-000-0000
|
||
Facsimile
No: 000-000-0000
|
||
Email:
xxxxxx.xxxxxxxxxx@xxxxxx.xxx
|
[Signature
page to Amended and Restated Credit Agreement]
THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND,
|
|||
as
a Lender
|
|||
By:
|
/s/ Xxxxxx XxXxxxx | /s/ Xxxxxxxx Xxxxx | |
Name:
Xxxxxx XxXxxxx
|
Xxxxxxxx Xxxxx | ||
Title:
Authorised signatory
|
Authorised Signatory |
[Signature
page to Amended and Restated Credit Agreement]
MIZUHO
CORPORATE BANK, LTD.,
|
||
as
a Lender
|
||
By:
|
/s/ Xxxxxx Xxxxxx | |
Name:
Xxxxxx Xxxxxx
|
||
Title:
Deputy General Manager
|
[Signature
page to Amended and Restated Credit Agreement]
ANNEX
I
COMMITMENTS
AND AMOUNTS
Lender
|
Amount
of
Revolving
Loan
Commitment
|
Amount
of Term
Loan
Commitment
|
|
The
Bank of Nova Scotia
|
$36,000,000
|
$13,500,000
|
|
Citibank,
N.A.
|
$35,000,000
|
$12,500,000
|
|
BMO
Capital Markets Financing, Inc.
|
$33,500,000
|
$12,000,000
|
|
Xxxxx
Fargo Bank, N.A.
|
$32,000,000
|
$11,000,000
|
|
Bank
of America, N.A.
|
$32,000,000
|
$11,000,000
|
|
JPMorgan
Chase Bank
|
$17,500,000
|
-
|
|
U.S.
Bank National Association
|
$25,000,000
|
$9,000,000
|
|
Comerica
Bank
|
$25,000,000
|
$9,000,000
|
|
Nordea
Bank Finland PLC
|
$22,500,000
|
$8,000,000
|
|
Bank
of Ireland
|
$22,500,000
|
$8,000,000
|
|
Mizuho
Corporate Bank, Ltd.
|
$19,000,000
|
$6,000,000
|
ANNEX
II
EUROCURRENCY
PAYMENT OFFICES
THE
BANK
OF NOVA SCOTIA
000
Xxxxxxxxx Xxxxxx, X.X.
Xxxxx
0000
Xxxxxxx,
XX 00000-0000
Attention:
|
Xxxxxx
Xxxxxxxxx
|
||
Telephone
No.:
|
(000)
000-0000
|
||
Facsimile
No.:
|
(000)
000-0000
|