TERM LOAN CREDIT AGREEMENT Dated as of December 3, 2007 among ENERGIZER HOLDINGS, INC. THE INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS JPMORGAN CHASE BANK, N.A., as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent and...
EXECUTION
COPY
Dated
as of
December 3, 2007
among
ENERGIZER
HOLDINGS, INC.
THE
INSTITUTIONS
FROM TIME TO TIME
PARTIES
HERETO AS
LENDERS
JPMORGAN
CHASE BANK, N.A.,
as
Administrative
Agent,
BANK
OF
AMERICA, N.A.,
as
Syndication
Agent
and
CITIBANK,
N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
AND
MIZUHO
CORPORATE BANK, LTD.,
as
Documentation
Agents
________________________________________________________________________
X.X.
XXXXXX
SECURITIES INC. and BANC OF AMERICA SECURITIES LLC,
as
Co-Lead
Arrangers and Joint Bookrunners
________________________________________________________________________
TABLE
OF
CONTENTS
DEFINITIONS
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1.1 Certain
Defined Terms
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1.2 References
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THE
TERM
LOAN FACILITY
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2.1 Loans.
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2.2 Repayment
of Loans
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2.3 Rate
Options for all Loans; Maximum Interest Periods
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2.4 Optional
Prepayments
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2.5 Reduction
of Commitments
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2.6 Method
of Borrowing
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2.7 Method
of Requesting the Advance
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2.8 Amount
of the Advance
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2.9 Method
of Selecting Types and Interest Periods for Conversion and Continuation
of
Loans.
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2.10 Default
Rate
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2.11 Method
of Payment
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2.12 Evidence
of Debt; Noteless Agreement.
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2.13 Telephonic
Notices
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2.14 Promise
to Pay; Interest Payment Dates; Fees; Interest and Fee Basis.
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2.15 Notification
of the Advance, Interest Rates and Prepayments
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2.16 Lending
Installations
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2.17 Non-Receipt
of Funds by the Administrative Agent
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2.18 Termination
Date
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2.19 Replacement
of Certain Lenders
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[RESERVED]
YIELD
PROTECTION; TAXES
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4.1 Yield
Protection
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4.2 Changes
in Capital Adequacy Regulations
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4.3 Availability
of Types of Loans
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4.4 Funding
Indemnification
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4.5 Taxes.
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4.6 Lender
Statements; Survival of Indemnity
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CONDITIONS
PRECEDENT
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5.1 Closing
Date
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5.2 Each
Loan
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REPRESENTATIONS
AND WARRANTIES
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6.1 Organization;
Corporate Powers
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6.2 Authority.
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6.3 No
Conflict; Governmental Consents for the Borrower
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6.4 Financial
Statements.
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6.5 No
Material Adverse Change
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6.6 Taxes.
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6.7 Litigation;
Loss Contingencies and Violations
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6.8 Subsidiaries
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6.9 ERISA
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6.10 Accuracy
of Information
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6.11 Securities
Activities
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6.12 Material
Agreements
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6.13 Compliance
with Laws
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6.14 Assets
and Properties
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6.15 Statutory
Indebtedness Restrictions
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6.16 Insurance
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6.17 Labor
Matters
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6.18 Environmental
Matters
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6.19 Solvency
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6.20 Benefits
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COVENANTS
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7.1 Reporting
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7.2 Affirmative
Covenants.
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7.3 Negative
Covenants.
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7.4 Financial
Covenants
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DEFAULTS
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8.1 Defaults
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ACCELERATION,
DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
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9.1 Termination
of Commitments; Acceleration
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9.2 [Reserved.]
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9.3 Amendments
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9.4 Preservation
of Rights
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GENERAL
PROVISIONS
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10.1 Survival
of Representations
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10.2 Governmental
Regulation
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10.3 Performance
of Obligations
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10.4 Headings
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10.5 Entire
Agreement
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10.6 Several
Obligations; Benefits of this Agreement
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10.7 Expenses;
Indemnification.
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10.8 Numbers
of Documents
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10.9 Accounting
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10.10 Severability
of Provisions
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10.11 Nonliability
of Lenders
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10.12 GOVERNING
LAW
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10.13 CONSENT
TO JURISDICTION; JURY TRIAL.
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10.14 Subordination
of Intercompany Indebtedness
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THE
ADMINISTRATIVE AGENT
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11.1 Appointment
and Authorization
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11.2 Administrative
Agent and Affiliates
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11.3 Action
by Administrative Agent and Liability of Administrative Agent
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11.4 Reliance
on Documents and Counsel
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11.5 Employment
of Agents
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11.6 Indemnification
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11.7 Successor
Agent
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11.8 Credit
Decision
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11.9 Administrative
Agent, Arrangers, Syndication Agent, Documentation Agents
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SETOFF;
RATABLE PAYMENTS
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12.1 Setoff
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12.2 Ratable
Payments
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12.3 Application
of Payments
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12.4 Relations
Among Lenders.
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12.5 Representations
and Covenants Among Lenders
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BENEFIT
OF
AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
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13.1 Successors
and Assigns
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13.2 Participations.
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13.3 Assignments.
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13.4 Confidentiality
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NOTICES
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14.1 Giving
Notice.
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14.2 Change
of Address
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COUNTERPARTS
USA
PATRIOT
ACT
Exhibits
EXHIBIT
A -- Commitments
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EXHIBIT
B
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Form
of
Borrowing/Election Notice
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EXHIBIT
C
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Form
of
Assignment and Assumption
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EXHIBIT
D
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Form
of
Borrower’s Counsel’s Opinion
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EXHIBIT
E
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List
of
Closing Documents
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EXHIBIT
F
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Form
of
Officer’s Certificate
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EXHIBIT
G
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Form
of
Compliance Certificate
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EXHIBIT
H
--
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Form
of
Supplement to Subsidiary Guaranty
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Pricing
Schedule
Schedule
1.1.1 -- Permitted
Existing Investments
Schedule
1.1.2 -- Permitted
Existing Liens
Schedule
1.1.3 -- Permitted
Existing Contingent Obligations
Schedule
6.3 -- Conflicts;
Governmental Consents
Schedule
6.7 -- Litigation;
Loss Contingencies
Schedule
6.8 -- Subsidiaries
Schedule
6.18 -- Environmental
Matters
Schedule
7.3(G) -- Transactions
with Shareholders and Affiliates
This
Term Loan
Credit Agreement dated as of December 3, 2007 is entered into among
ENERGIZER HOLDINGS, INC., a Missouri corporation, the
institutions from time to time parties hereto as Lenders and JPMORGAN
CHASE BANK, N.A., in its capacity as Administrative Agent, BANK
OF AMERICA, N.A., as Syndication Agent, and CITIBANK, N.A., THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD. and MIZUHO CORPORATE BANK,
LTD., as Documentation Agents. The parties hereto agree as
follows:
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.
As
used in this
Agreement:
“Accounting
Change” is defined in Section 10.9 hereof.
“Acquisition”
means any transaction, or any series of related transactions, consummated on
or
after the date of this Agreement, by which the Borrower or any of its
Subsidiaries (i) acquires any going business or all or substantially all of
the
assets of any firm, corporation or division thereof, whether through purchase
of
assets, merger or otherwise or (ii) 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” means JPMorgan in its capacity as contractual representative
for itself and the Lenders pursuant to Article XI hereof and any
successor Administrative Agent appointed pursuant to Article XI
hereof.
“Administrative
Questionnaire” means an administrative questionnaire in a form
supplied by the Administrative Agent.
“Advance”
means the borrowing hereunder made on the Closing Date in accordance with
Article II and consisting of the aggregate amount of the several Loans
made by the Lenders to the Borrower.
“Affected
Lender” is defined in Section 2.19 hereof.
“Affiliate”
of any Person means 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.
“Aggregate
Commitment” means the aggregate of the Commitments of all the
Lenders, as may be reduced from time to time pursuant to the terms
hereof. The initial Aggregate Commitment is Six Hundred Million and
00/100 Dollars ($600,000,000.00).
“Agreement”
means this Term Loan Credit Agreement, as it may be amended, restated,
supplemented or otherwise modified and in effect from time to time.
“Agreement
Accounting Principles” means generally accepted accounting
principles as in effect in the United States from time to time, applied in
a
manner consistent with that used in preparing the financial statements of the
Borrower referred to in Section 6.4 hereof; provided,
however, except as provided in Section 10.9, that with respect to
the calculation of financial ratios and other financial tests required by this
Agreement, “Agreement Accounting Principles” means generally accepted accounting
principles as in effect in the United States as of the date of this Agreement,
applied in a manner consistent with that used in preparing the financial
statements of the Borrower referred to in Section 6.4
hereof.
“Alternate
Base Rate” means, for any day, a fluctuating rate of interest per
annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum
of
(a) the Federal Funds Effective Rate for such day and (b) one-half of one
percent (0.5%) per annum.
“Applicable
Margin” means, as at any date of determination, the rate per annum
then applicable to the Advance at such time, as set forth in the Pricing
Schedule.
“Approved
Fund” means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii)
an entity or an Affiliate of an entity that administers or manages a
Lender.
“Arrangers”
means X.X. Xxxxxx Securities Inc. and Banc of America Securities LLC, in their
respective capacities as the co-lead arrangers and joint bookrunners 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, and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person)
other than (i) the sale of Inventory in the ordinary course of business and
(ii)
the sale or other disposition of any obsolete manufacturing Equipment disposed
of in the ordinary course of business.
“Assignment
and Assumption” means an assignment and assumption agreement
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 13.3), and accepted by the Administrative
Agent, in the form of Exhibit C or any other form approved by the
Administrative Agent.
“Authorized
Officer” means any of the president, any vice president (including
any executive vice president), the chief financial officer or the treasurer
of
the Borrower, acting singly.
“Bank
of
America” means Bank of America, N.A., in its individual capacity,
and its successors.
“Benefit
Plan” means a defined benefit plan as defined in Section 3(35) of
ERISA (other than a Multiemployer Plan or Foreign Pension Plan) in respect
of
which the Borrower 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.
“Board”
means the Board of Governors of the Federal Reserve System of the United States
of America.
“Borrower”
means Energizer Holdings, Inc., a Missouri corporation, together with its
successors and assigns, including a debtor-in-possession on behalf of the
Borrower.
“Borrowing/Election
Notice” is defined in Section 2.7 hereof.
“Business
Day” means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurodollar Rate, a day (other than
a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York and on which dealings in Dollars are carried on in the
London interbank market and (ii) for all other purposes a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York.
“Capital
Stock” means (i) in the case of a corporation, capital stock, (ii)
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited) and (iv) 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.
“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 (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar 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 (fully protected against
currency fluctuations for any such deposits with a term of more than ninety
(90)
days); (iii) shares of money market, mutual or similar funds having assets
in
excess of $100,000,000 and at least 95% of the investments of which are limited
to 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 (iv) 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 by
Xxxxx’x Investors Service, Inc.; provided that the maturities of such
Cash Equivalents described in the foregoing clauses (i) through
(iv) shall not exceed 365 days; (v) repurchase obligations of 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
having a term not more than thirty (30) days, with respect to securities issued
or fully guaranteed or insured by the United States government; (vi) securities
with maturities of one year or less from the date of acquisition issued or
fully
guaranteed by any state, commonwealth, territory, political subdivision, taxing
authority or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least BBB by Standard & Poor’s
Ratings Group or at least Baa by Xxxxx’x Investors Service, Inc.; (vii)
securities with maturities of one year or less from the date of acquisition
backed by standby letters of credit issued by any commercial bank organized
under the laws of the United States, any state thereof or the District of
Columbia (which commercial bank shall have a short-term debt rating
of A-1 (or better) by Standard & Poor’s Ratings Group or P-1 by
Xxxxx’x Investors Service, Inc.), or by any foreign bank (which foreign bank
shall have a rating of B or better from Thomson BankWatch Global Issuer Rating
or, if not rated by Thomson BankWatch Global Issuer Rating, which foreign bank
shall be an institution acceptable to the Administrative Agent), or its branches
or agencies; or (viii) shares of money market mutual or similar funds at least
95% of the assets of which are invested in the types of investments satisfying
the requirements of clauses (i) through (vii) of this
definition.
“Change”
is defined in Section 4.2 hereof.
“Change
of Control” means an event or series of events by
which:
(i) any
“person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly,
of thirty percent (30%) or more of the voting power of the then outstanding
Capital Stock of the Borrower entitled to vote generally in the election of
the
directors of the Borrower;
(ii) during
any period of 12 consecutive calendar months, the board of directors of the
Borrower shall cease to have as a majority of its members individuals who
either:
(a) were
directors of the Borrower on the first day of such period, or
(b) were
elected or nominated for election to the board of directors of the Borrower
at
the recommendation of or other approval by at least a majority of the directors
then still in office at the time of such election or nomination who were
directors of the Borrower on the first day of such period, or whose election
or
nomination for election was so approved;
(iii) other
than as a result of a transaction not prohibited under the terms of this
Agreement, the Borrower (a) shall cease to own, of record and beneficially,
with
sole voting and dispositive power, 100% of the outstanding shares of Capital
Stock of each of the Subsidiary Guarantors or (b) shall cease to have the power,
directly or indirectly, to elect all of the members of the board of directors
of
each of the Subsidiary Guarantors; or
(iv) the
Borrower consolidates with or merges into another corporation or conveys,
transfers or leases all or substantially all of its property to any Person,
or
any corporation consolidates with or merges into the Borrower, in either event
pursuant to a transaction in which the outstanding Capital Stock of the Borrower
is reclassified or changed into or exchanged for cash, securities or other
property.
“Closing
Date” means the date of this Agreement.
“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time.
“Commission”
means the Securities and Exchange Commission of the United States of America
and
any Person succeeding to the functions thereof.
“Commitment”
means, for each Lender, the obligation of such Lender to make Loans on the
Closing Date not exceeding the amount set forth on Exhibit A to this
Agreement opposite its name thereon under the heading “Commitment”.
“Consolidated
Assets” means the total assets of the Borrower and its Subsidiaries
on a consolidated basis.
“Consolidated
Domestic Assets” means the total assets of the Borrower and each of
its consolidated Subsidiaries that is incorporated under the laws of any
jurisdiction in the United States.
“Consolidated
Net Worth” means, as of any date, all amounts which would be
included under shareholders’ equity (including capital stock, additional paid-in
capital and retained earnings) on the consolidated balance sheet for the
Borrower and its consolidated Subsidiaries determined in accordance with
Agreement Accounting Principles.
“Consolidated
Total Capitalization” means, as of any date, the sum of (i)
Indebtedness of the Borrower and its consolidated Subsidiaries and (ii)
Consolidated Net Worth, all determined in accordance with Agreement Accounting
Principles.
“Contaminant”
means any waste, pollutant, hazardous substance, toxic substance, hazardous
waste, special waste, petroleum or petroleum-derived substance or waste,
asbestos or polychlorinated biphenyls (“PCBs”), 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 present value of 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.
“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. Without in any way limiting the foregoing, as
used with respect to the Borrower or any of its Subsidiaries, Contractual
Obligations shall include, without limitation, the Financing Facilities and
any
instruments, documents or agreements executed or delivered in connection
therewith by which the Borrower or such Subsidiaries are bound.
“Controlled
Group” means the group consisting of (i) 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 Borrower; (ii) 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 Borrower; and (iii) a member
of the same affiliated service group (within the meaning of Section 414(m)
of
the Code) as the Borrower, any corporation described in clause (i) above
or any partnership or trade or business described in clause (ii)
above.
“Covenant
Leverage Ratio” is defined in Section 7.4(A)
hereof.
“Customary
Permitted Liens” means:
(i) Liens
(other than Environmental Liens and Liens in favor of the IRS or the PBGC or
any
Plan) with respect to the payment of taxes, assessments or governmental charges
in all cases which are not yet due or (if 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 as may be required in accordance with Agreement Accounting
Principles;
(ii) statutory
Liens of landlords and Liens of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other similar Liens imposed by law created in the
ordinary course of business for amounts not yet due 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 as may be required in accordance with Agreement
Accounting Principles;
(iii) Liens
(other than Environmental Liens and Liens in favor of the IRS or the PBGC or
any
Plan) incurred or deposits made in the ordinary course of business in connection
with workers’ compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety, appeal
and
performance bonds; provided that (A) all such Liens do not in the
aggregate materially detract from the value of the Borrower’s or such
Subsidiary’s assets or property taken as a whole or materially impair the use
thereof in the operation of the Borrower’s or such Subsidiary’s businesses taken
as a whole, and (B) all Liens securing bonds to stay judgments or in connection
with appeals do not secure at any time an aggregate amount exceeding
$30,000,000;
(iv) Liens
arising with respect to zoning restrictions, easements, licenses, reservations,
covenants, rights-of-way, utility easements, building restrictions and other
similar charges or encumbrances on the use of real property which do not in
any
case materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Borrower or any
of
its Subsidiaries;
(v) Liens
of attachment or judgment with respect to judgments, writs or warrants of
attachment, or similar process against the Borrower or any of its Subsidiaries
which do not constitute a Default under Section 8.1(H)
hereof;
(vi) any
interest or title of the lessor in the property subject to any operating lease
entered into by the Borrower or any of its Subsidiaries in the ordinary course
of business; and
(vii) Liens
of commercial depository institutions arising in the ordinary course of business
constituting a statutory or common law right of setoff against amounts on
deposit with any such institution.
“Default”
means an event described in Article VIII hereof.
“Disclosed
Litigation” is defined in Section 6.7 hereof.
“Disqualified
Stock” means any preferred stock and any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or
redeemable at the option of the holder thereof, in whole or in part, on or
prior
to the date that is ninety-one (91) days after the Termination
Date.
“Documentation
Agent” means each of Citibank, N.A. (and its successors), The Bank
of Tokyo-Mitsubishi UFJ, Ltd. (and its successors) and Mizuho Corporate Bank,
Ltd. (and its successors) in its capacity as a documentation agent for the
loan
transaction evidenced by this Agreement.
“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.
“EBIT” means,
for any period, on a consolidated basis for the Borrower and its Subsidiaries,
the sum of the amounts for such period, without duplication, of (i) Net Income,
plus (ii) Interest Expense to the extent deducted in computing Net
Income, plus (iii) charges against income for foreign, federal, state and
local taxes to the extent deducted in computing Net Income, plus (iv)
non-cash charges (except any non-cash charges that require accrual of a reserve
for anticipated future cash payments for any period) to the extent deducted
in
computing Net Income, plus (v) other extraordinary non-cash charges to
the extent deducted in computing Net Income, minus (vi) extraordinary
gains to the extent added in computing Net Income.
“EBITDA”
means, for any period, on a consolidated basis for the Borrower and its
Subsidiaries, the sum of the amounts for such period, without duplication,
of
(i) EBIT, plus (ii) depreciation expense to the extent deducted in
computing Net Income, plus (iii) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets, to the extent
deducted in computing Net Income.
“Environmental,
Health or Safety Requirements of Law” means all applicable 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 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.
“Environmental
Property Transfer Act” means any applicable requirement of law that
conditions, restricts, prohibits or requires any notification or disclosure
triggered by the closure of any property or the transfer, sale or lease of
any
property or deed or title for any property for environmental reasons, including,
but not limited to, any so-called “Industrial Site Recovery Act” or “Responsible
Property Transfer Act.”
“Equipment”
means all of the Borrower’s and its Subsidiaries’ present and future (i)
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, (ii) other tangible
personal property (other than the Borrower’s or Subsidiary’s Inventory), and
(iii) 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).
“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.
“Eurodollar
Base Rate” means, with respect to any Eurodollar Rate Loan for any
Interest Period, the rate appearing on Reuters BBA Libor Rates Page 3750 (or
on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service which is generally utilized
in
the syndicated loan market, as determined by the Administrative Agent from
time
to time for purposes of providing quotations of interest rates applicable to
Dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Interest
Period, as the rate for Dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such
time for any reason, then the “Eurodollar Base Rate” with respect to such
Eurodollar Rate Loan for such Interest Period shall be the rate at which Dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period
are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two (2) Business Days prior to the commencement of
such
Interest Period.
“Eurodollar
Rate” means, with respect to any Eurodollar Rate Loan for any
Interest Period, an interest rate per annum (rounded upwards, if necessary,
to
the next 1/16 of 1%) equal to (i) (a) the Eurodollar Base Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate plus (ii) the
Applicable Margin.
“Eurodollar
Rate Loan” means a Loan, or portion thereof, which bears interest
at the Eurodollar Rate.
“Excluded
Taxes” means, in the case of each Lender or applicable Lending
Installation and the Administrative Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender or the Administrative Agent is incorporated or
organized or (ii) the jurisdiction in which the Administrative Agent’s or such
Lender’s principal executive office or such Lender’s applicable Lending
Installation is located.
“Existing
Term Loan Credit Agreement” means that certain Term Loan Credit
Agreement, dated as of September 14, 2007, among the Borrower, the institutions
from time to time parties thereto as lenders, JPMorgan, as the Administrative
Agent, Bank of America, as the Syndication Agent, and Citibank, N.A., as the
Documentation Agent.
“Federal
Funds Effective Rate” means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates per annum
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so
published for any day that is a Business Day, the average (rounded upwards,
if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
“Financing
Facilities” means the Revolving Credit Facility, the Receivables
Purchase Facility, the Senior Notes, the Singapore Credit Facility and any
Permitted Financing Facility.
“Floating
Rate Loan” means a Loan, or portion thereof, which bears interest
by reference to the Alternate Base Rate.
“Foreign
Competition Laws” means competition and foreign investment laws and
regulations of any jurisdiction outside the United States.
“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 Borrower or any member of the Controlled Group, but
which is not covered by ERISA pursuant to Section 4(b)(4) of ERISA.
“Foreign
Pension Plan” means any employee pension benefit plan (as defined
in Section 3(2) of ERISA) which (i) is maintained or contributed to for the
benefit of employees of the Borrower or any other member of the Controlled
Group, (ii) is not covered by ERISA pursuant to Section 4(b)(4) thereof and
(iii) under applicable local law, is required to be funded through a trust
or
other funding vehicle.
“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.
“Hedging
Arrangements” is defined in the definition of “Hedging Obligations”
below.
“Hedging
Agreements” means Hedging Arrangements permitted under Section
7.3(O) that are entered into by the Borrower and any Lender or any affiliate
of any Lender.
“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 (i) 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 or any similar derivative
transactions (“Hedging Arrangements”), and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of
the
foregoing.
“Holders
of Obligations” means the holders of the Obligations from time to
time and the holders of the Hedging Obligations arising from time to time under
Hedging Agreements and shall include their respective successors, transferees
and assigns.
“Indebtedness”
of any 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 terms customary in the trade), which
purchase price is due more than six (6) months from the date of incurrence
of
the obligation in respect thereof, provided that the related obligations are
not
interest bearing, (c) obligations, whether or not assumed, secured by Liens
or
payable out of the proceeds or production from property or assets now or
hereafter owned or acquired by such Person, (d) obligations which are evidenced
by notes, acceptances or other instruments, (e) Capitalized Lease Obligations,
(f) Contingent Obligations in respect of Indebtedness, (g) obligations with
respect to letters of credit, (h) Off-Balance Sheet Liabilities, (i) Receivables
Facility Attributed Indebtedness and (j) Disqualified Stock. The
amount of Indebtedness of any Person at any date shall be without duplication
(1) the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any such Contingent Obligations
at
such date and (2) in the case of Indebtedness of others secured by a Lien to
which the property or assets owned or held by such Person is subject, the lesser
of the fair market value at such date of any asset subject to a Lien securing
the Indebtedness of others and the amount of the Indebtedness
secured.
“Indemnified
Matters” is defined in Section 10.7(B)
hereof.
“Indemnitees”
is defined in Section 10.7(B) hereof.
“Insolvency
Event” is defined in Section 10.14 hereof.
“Intercompany
Indebtedness” is defined in Section 10.14
hereof.
“Interest
Expense” means, for any period, the total interest expense of the
Borrower and its consolidated Subsidiaries, whether paid or accrued, including,
without duplication, Off-Balance Sheet Liabilities (including Receivables
Facility Financing Costs) and the interest component of Capitalized Leases,
all
as determined in conformity with Agreement Accounting Principles.
“Interest
Expense Coverage Ratio” is defined in Section 7.4(B)
hereof.
“Interest
Period” means, with respect to a Eurodollar Rate Loan, a period of
one (1), two (2), three (3) or six (6) months or other periods to the extent
available to all of the Lenders and agreed to between the Borrower and the
Administrative Agent (acting on the instructions of all of the Lenders),
commencing on a Business Day selected by the Borrower on which a Eurodollar
Rate
Loan is made to Borrower pursuant to this Agreement. Such Interest
Period shall end on (but exclude) the day which corresponds numerically to
such
date one, two, three or six months (or such other period) thereafter;
provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month (or
other period), such Interest Period shall end on the last Business Day of such
next, second, third or sixth succeeding month (or other period). 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, however, 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 Borrower
or
any of its Subsidiaries, which are held for sale 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 Borrower or any of its
Subsidiaries, and shall include all right, title and interest of the Borrower
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 Borrower or any of its Subsidiaries.
“Investment”
means, with respect to any Person, (i) 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, (ii) any purchase by that Person of all or
substantially all of the assets of a business conducted by another Person,
and
(iii) 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.
“JPMorgan”
means JPMorgan Chase Bank, N.A., in its individual capacity, and its
successors.
“Lenders”
means the lending institutions listed on the signature pages of this Agreement
and their respective 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.
“Leverage
Ratio” is defined in Section 2.14(D)(ii)
hereof.
“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance or preference, priority or security
agreement or preferential arrangement 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).
“Loan(s)”
means, with respect to a Lender, such Lender’s portion of the Advance consisting
of a term loan made pursuant to Section 2.1 hereof, and collectively, all
Loans, whether made or continued as or converted to Floating Rate Loans or
Eurodollar Rate Loans.
“Loan
Documents” means this Agreement, the Subsidiary Guaranty, any
Assignment and Assumption, any promissory notes issued pursuant to Section
2.12, and all other documents, instruments and agreements executed in
connection therewith or contemplated thereby, as the same may be amended,
restated, supplemented or otherwise modified and in effect from time to
time.
“Loan
Parties” is defined in Section 5.1 hereof.
“Margin
Stock” shall have the meaning ascribed to such term in Regulation
U.
“Material
Adverse Effect” means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries, taken as a whole,
(b) the ability of the Borrower and its Subsidiaries, taken as a whole, to
perform their obligations under the Loan Documents in any material respect,
or
(c) the ability of the Lenders or the Administrative Agent to enforce in any
material respect the Obligations.
“Material
Domestic Subsidiary” means each consolidated Subsidiary (other than
any SPV) of the Borrower (a) incorporated under the laws of any jurisdiction
in
the United States and (b) the total assets of which exceed, as at the end of
any
calendar quarter or, in the case of consummation of a Permitted Acquisition,
at
the time of consummation of such Permitted Acquisition (calculated by the
Borrower on a pro forma basis taking into account
the consummation of such Permitted Acquisition), three percent (3.0%) of the
Consolidated Domestic Assets of the Borrower and its consolidated Subsidiaries
(other than SPVs).
“Material
Foreign Subsidiary” means each consolidated Subsidiary (other than
any SPV) of the Borrower (a) incorporated or organized under the laws of any
foreign jurisdiction and (b) the total assets of which exceed, as at the end
of
any calendar quarter or, in the case of consummation of a Permitted Acquisition,
at the time of consummation of such Permitted Acquisition (calculated by the
Borrower on a pro forma basis taking into account
the consummation of such Permitted Acquisition), five percent (5.0%) of the
Consolidated Assets of the Borrower and its consolidated Subsidiaries (other
than SPVs).
“Material
Indebtedness” means (a) any Indebtedness evidenced by the Financing
Facilities or (b) any other Indebtedness (other than the
Indebtedness hereunder) of a single class with an aggregate outstanding
principal amount equal to or greater than $30,000,000.
“Material
Subsidiaries” means each of the Borrower’s Material Domestic
Subsidiaries and Material Foreign Subsidiaries.
“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,
contributed to by either the Borrower or any member of the Controlled
Group.
“Net
Income” means, for any period, the net earnings (or loss) after
taxes of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
“New
Subsidiary” is defined in Section 7.3(F).
“Non-ERISA
Commitments” means
(i) each
pension, medical, dental, life, accident insurance, disability, group insurance,
sick leave, profit sharing, deferred compensation, bonus, stock option, stock
purchase, retirement, savings, severance, stock ownership, performance,
incentive, hospitalization or other insurance, or other welfare, benefit or
fringe benefit plan, policy, trust, understanding or arrangement of any kind;
and
(ii) each
employee collective bargaining agreement and each agreement, understanding
or
arrangement of any kind, with or for the benefit of any present or
prior officer, director, employee or consultant (including, without limitation,
each employment, compensation, deferred compensation, severance or consulting
agreement or arrangement and any agreement or arrangement associated with a
change in ownership of the Borrower or any member of the Controlled
Group);
to
which the
Borrower or any member of the Controlled Group is a party or with respect to
which the Borrower or any member of the Controlled Group is or will be required
to make any payment other than any Plans.
“Non-U.S.
Lender” is defined in Section 4.5(iv) hereof.
“Obligations”
means all Loans, advances, debts, liabilities, obligations, covenants and duties
owing by the Borrower or any of its Subsidiaries to the Administrative Agent,
any Lender, the Arrangers, any Affiliate of the Administrative Agent or any
Lender, or any Indemnitee, of any kind or nature, present or future, arising
under this Agreement, or any other Loan Document, 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 (and, after the
occurrence and during the continuance of a Default, all attorney’s fees and
disbursements and paralegals’ fees, whether or not reasonable), and any other
sum chargeable to the Borrower or any of its Subsidiaries under this Agreement
or any other Loan Document.
“Off-Balance
Sheet Liabilities” of a Person means, without duplication, (a) any
Receivables Facility Attributed Indebtedness and repurchase obligation or
liability of such Person or any of its Subsidiaries with respect to Receivables
or notes receivable sold by such Person or any of its Subsidiaries (calculated
to include the unrecovered investment of purchasers or transferees of
Receivables or notes receivable or any other obligation of the Borrower or
such
transferor to purchasers/transferees of interests in Receivables or notes
receivables or the agent for such purchasers/transferees), (b) any liability
under any sale and leaseback transactions which do not create a liability on
the
consolidated balance sheet of such Person, (c) any liability under any financing
lease or so-called “synthetic” lease transaction, or (d) any obligations 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.
“Originators”
means the Borrower and/or any of its Subsidiaries in their respective capacities
as parties to any Receivables Purchase Documents, as sellers or transferors
of
any Receivables and Related Security in connection with a Permitted Receivables
Transfer.
“Other
Taxes” is defined in Section 4.5 hereof.
“Participant”
is defined in Section 13.2(A) hereof.
“Payment
Date” means the last day of each March, June, September and
December.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor
thereto.
“Permitted
Acquisition” is defined in Section 7.3(F)
hereof.
“Permitted
Existing Contingent Obligations” means the Contingent Obligations
of the Borrower and its Subsidiaries as of the Closing Date identified on
Schedule 1.1.3 to this Agreement.
“Permitted
Existing Investments” means the Investments of the Borrower and its
Subsidiaries as of the Closing Date identified on Schedule 1.1.1 to this
Agreement.
“Permitted
Existing Liens” means the Liens on assets of the Borrower and its
Subsidiaries as of the Closing Date identified on Schedule 1.1.2 to this
Agreement.
“Permitted
Financing Facility” means any financing agreement (other than the
Revolving Credit Facility, the Receivables Purchase Facility, the Senior Notes
and the Singapore Credit Facility) under which the Borrower or any of its
Subsidiaries incurs or assumes (including in connection with a Permitted
Acquisition) Indebtedness permitted by the terms of this Agreement, together
with any guarantees of such Indebtedness permitted hereunder (if any) and any
other instruments, documents and agreements executed or delivered in connection
therewith, as such Permitted Financing Facility may be amended, restated,
supplemented, modified, extended, refinanced or replaced from time to time
in a
manner that is permitted by the terms of this Agreement and is not materially
adverse to the interests of the Lenders.
“Permitted
Receivables Transfer” means (i) a sale or other transfer by an
Originator to a SPV of Receivables and Related Security for fair market value
and without recourse (except for limited recourse typical of such structured
finance transactions), and/or (ii) a sale or other transfer by a SPV to (a)
purchasers of or other investors in such Receivables and Related Security or
(b)
any other Person (including a SPV) in a transaction in which purchasers or
other
investors purchase or are otherwise transferred such Receivables and Related
Security, in each case pursuant to and in accordance with the terms of the
Receivables Purchase Documents.
“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 in respect
of
which the Borrower 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.
“Pricing
Schedule” means the schedule attached hereto and identified as
such, setting forth the Applicable Margin.
“Prime
Rate” means the rate of interest per annum publicly announced from
time to time by JPMorgan as its prime rate in effect at its principal office
in
New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being
effective.
“Pro
Rata Share” means, with respect to any Lender, the percentage
obtained by dividing (A) such Lender’s Commitment at such time (in each case, as
adjusted from time to time in accordance with the provisions of this Agreement)
by (B) the Aggregate Commitment at such time; provided, however,
that from and after funding the Advance on the Closing Date, “Pro Rata Share”
means the percentage obtained by dividing (x) the aggregate principal balance
of
such Lender’s Loans at such time by (y) the aggregate outstanding balance of all
Loans at such time.
“Purchasers”
is defined in Section 13.3(A) hereof.
“Receivable(s)”
means and includes all of the Borrower’s and its Subsidiaries’ presently
existing and hereafter arising or acquired accounts, accounts receivable, and
all present and future rights of the Borrower and its Subsidiaries 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.
“Receivables
and Related Security” means the Receivables and the related
security and collections with respect thereto which are sold or transferred
by
any Originator or SPV in connection with any Permitted Receivables
Transfer.
“Receivables
Facility Attributed Indebtedness” means the amount of obligations
outstanding under a receivables purchase facility on any date of determination
that are characterized as principal on the balance sheet of the Borrower, or
would be so characterized as principal if such facility were structured as
a
secured lending transaction rather than as a purchase.
“Receivables
Facility Financing Costs” means such portion of the cash fees,
service charges, and other costs, as well as all collections or other amounts
retained by purchasers of receivables pursuant to a receivables purchase
facility, which are in excess of amounts paid to the Borrower and its
consolidated Subsidiaries under any receivables purchase facility for the
purchase of receivables pursuant to such facility and are the equivalent of
the
interest component of the financing if the transaction were characterized as
an
on-balance sheet transaction.
“Receivables
Purchase Documents” means (i) the 2000 Receivables Sale Agreement
and (ii) the 2000 Receivables Purchase Agreement, or any other series of
receivables purchase or sale agreements generally consistent with terms
contained in comparable structured finance transactions pursuant to which an
Originator or Originators sell or transfer to SPVs all of their respective
right, title and interest in and to certain Receivables and Related
Security for further sale or transfer to other purchasers of or investors in
such assets (in any such case, together with the other documents, instruments
and agreements executed in connection therewith), as any such agreements may
be
amended, restated, supplemented or otherwise modified from time to time, or
any
replacement, refinancing or substitution therefor consistent with the foregoing
provisions of this definition.
“Receivables
Purchase Facility” means the securitization facility made available
to the Borrower, pursuant to which the Receivables and Related Security of
the
Originators are transferred to one or more SPVs, and thereafter to certain
investors, pursuant to the terms and conditions of the Receivables Purchase
Documents.
“Register”
is defined in Section 13.3(D) hereof.
“Regulation
D” means Regulation D of the Board as from time to time in effect
and any successor thereto or other regulation or official interpretation of
said
Board relating to reserve requirements applicable to member banks of the Federal
Reserve System.
“Regulation
T” means Regulation T of the Board as from time to time in effect
and any successor or other regulation or official interpretation of said Board
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).
“Regulation
U” means Regulation U of the Board as from time to time in effect
and any successor or other regulation or official interpretation of said Board
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 as from time to time in effect
and any successor or other regulation or official interpretation of said Board
relating to the extension of credit by foreign lenders for the purpose of
purchasing or carrying margin stock (as defined therein).
“Related
Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration into the environment,
including the movement of Contaminants through or in the air, soil, surface
water or groundwater.
“Replacement
Lender” is defined in Section 2.19 hereof.
“Reportable
Event” means a reportable event as defined in Section 4043 of ERISA
and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days after such event occurs.
“Required
Lenders” means Lenders whose Pro Rata Shares, in
the aggregate, are greater than fifty percent (50%); provided,
however, that, if any Lender shall have failed to fund its Pro Rata
Share
of the Advance, which such Lender is obligated to fund under the terms of this
Agreement and any such failure has not been cured, then for so long as such
failure continues, “Required Lenders” means Lenders (excluding
all Lenders whose failure to fund their respective Pro Rata Shares of such
Loans
has not been so cured) whose Pro Rata Shares represent greater than fifty
percent (50%) of the aggregate Pro Rata Shares of such Lenders;
providedfurther, however, that, from and after the funding
of the Advance, “Required Lenders” means Lenders (without
regard to such Lenders’ performance of their respective obligations hereunder)
whose aggregate ratable shares (stated as a percentage) of the aggregate
outstanding principal balance of all Loans are greater than fifty percent
(50%).
“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, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act, as amended, Foreign
Competition Laws, Regulations T, U and X, ERISA, the Fair Labor Standards Act,
the Worker Adjustment and Retraining Notification Act, 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,
including Environmental, Health or Safety Requirements of Law.
“Revolving
Credit Agreement” means that certain Revolving Credit Agreement,
dated as of November 16, 2004, among the Borrower, the institutions from time
to
time parties thereto as lenders, JPMorgan, as the administrative agent, Bank
of
America, as the syndication agent, and Citibank, N.A., as the documentation
agent, as amended by Amendment No. 1 thereto dated as of September 22, 2005,
Amendment No. 2 thereto dated as of October 21, 2005, Amendment No. 3 thereto
dated as of May 15, 2006 and Amendment No. 4 thereto dated as of September
14,
2007, and as the same may be amended, restated, supplemented or otherwise
modified from time to time in a manner that is not materially adverse to the
interests of the Lenders.
“Revolving
Credit Facility” means the credit facility evidenced by the
Revolving Credit Agreement and the subsidiary guarantees and other instruments,
documents and agreements executed or delivered in connection
therewith.
“Risk-Based
Capital Guidelines” is defined in Section 4.2
hereof.
“Senior
Management Team” means, (a) with respect to the Borrower, each
Authorized Officer, the chief executive officer, secretary or any other member
of management and, (b) with respect to any Subsidiary Guarantor, any chief
executive officer, president, vice president, chief financial officer,
treasurer, secretary or any other member of management.
“Senior
Note Purchase Agreements” means, collectively, the 2003 Note
Purchase Agreement, the 2004 Note Purchase Agreement, the 2005 Note Purchase
Agreement, the 2006 Note Purchase Agreement and the 2007 Note Purchase
Agreement.
“Senior
Notes” means, collectively, the 2003 Senior Notes, the 2004 Senior
Notes, the 2005 Senior Notes, the 2006 Senior Notes and the 2007 Senior
Notes.
“Singapore
Credit Agreement” means that certain Multicurrency Revolving Credit
Facility Agreement, dated 24 August 2005, among Energizer Asia Investments
Pte.
Ltd., a company organized under the laws of Singapore, Energizer Singapore
Pte.
Ltd., a company organized under the laws of Singapore, Sonca Products Ltd.,
a
company organized under the laws of Hong Kong, and Xxxxxx Asia Limited, a
company organized under the laws of Hong Kong, as the borrowers and as
guarantors thereunder, the Borrower, as a guarantor thereunder, the financial
institutions from time to time parties thereto, Citigroup Global Markets
Singapore Pte. Ltd. and Standard Chartered Bank, as the arrangers thereunder,
and Citicorp Investment Bank (Singapore) Limited, as the agent, under which
the
financial institutions party thereto have committed to make loans and other
extensions of credit to the borrowers thereunder in an original aggregate
principal equivalent amount of up to US$325,000,000, which may be funded in
Dollars or Singapore dollars, as amended by that certain Amendment Agreement
dated as of September 28, 2005, the Second Amendment Agreement dated as of
November 8, 2005, the Third Amendment Agreement dated as of May 15, 2006, and
the Fourth Amendment Agreement dated as of September 14, 2007, and as the same
may be further amended, restated, supplemented, modified, extended, or
refinanced or replaced (to the extent such refinancing or replacement is with
the proceeds borrowed under another credit agreement), from time to time in
a
manner that is not materially adverse to the interests of the
Lenders.
“Singapore
Credit Facility” means the credit facility evidenced by the
Singapore Credit Agreement, the Singapore Guarantees and the other instruments,
documents and agreements executed or delivered in connection
therewith.
“Singapore
Guarantees” means those certain guarantees of the Indebtedness and
other obligations of the borrowers under the Singapore Credit Agreement by
the
Borrower and each member of the Singapore Regional Group, as the same may be
amended, restated, supplemented, modified, extended, refinanced or replaced
from
time to time in a manner that is not materially adverse to the interests of
the
Lenders.
“Singapore
Regional Group” means each of Energizer Asia Investments Pte.
Ltd., a company organized under the laws of Singapore, Energizer
Singapore Pte. Ltd., a company organized under the laws of Singapore, Sonca
Products Ltd., a company organized under the laws of Hong Kong, and
Xxxxxx Asia Limited, a company organized under the laws of Hong
Kong.
“Solvent”
means, when used with respect to any Person, that at the time of
determination:
(i) 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
(ii) it
is then able and believes that it will be able to pay its debts as they mature;
and
(iii) 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 and guarantees), 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.
“SPV”
means any special purpose entity established for the purpose of purchasing
receivables in connection with a receivables securitization transaction
permitted under the terms of this Agreement.
“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject, with
respect to the Eurodollar Rate, for eurocurrency funding (currently referred
to
as “Eurocurrency Liabilities” in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation
D. Eurodollar Rate Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time
to
time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
“Subsidiary”
of a Person means (i) any corporation more than 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 (ii)
any
partnership, limited liability company, association, joint venture or similar
business organization more than 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” means a Subsidiary of the Borrower.
“Subsidiary
Guarantors” means (i) as of the Closing Date, all of the Borrower’s
Material Domestic Subsidiaries and all other Subsidiaries which are required
to
become Subsidiary Guarantors pursuant to Section 7.3(Q) as of such date;
(ii) all New Subsidiaries which are Material Domestic Subsidiaries and which
have satisfied the provisions of Section 7.2(K)(a); (iii) all of the
Borrower’s Subsidiaries which become Material Domestic Subsidiaries and which
have satisfied the provisions of Section 7.2(K)(b); and (iv) all other
domestic Subsidiaries which become Subsidiary Guarantors in satisfaction of
the
provisions of Section 7.2(K)(c)(i) or any Subsidiaries which become
Subsidiary Guarantors in satisfaction of the provisions of Section
7.2(K)(c)(ii), in each case with respect to clauses (i) through
(iv) above, other than the SPVs and together with their respective
successors and assigns.
“Subsidiary
Guaranty” means that certain Guaranty dated as of the Closing Date,
executed by the Subsidiary Guarantors in favor of the Administrative Agent,
for
the ratable benefit of the Lenders, as it may be amended, modified, supplemented
and/or restated (including to add new Subsidiary Guarantors), and as in effect
from time to time.
“Supplement”
shall have the meaning set forth in Section 7.2(K).
“Syndication
Agent” means Bank of America (and its successors) in its capacity
as syndication agent for the loan transaction evidenced by this
Agreement.
“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded Taxes.
“Termination
Date” means the earliest to occur of (a) December 3, 2012 and (b)
the date of termination in whole of the Commitments pursuant to Section
9.1 hereof.
“Termination
Event” means (i) a Reportable Event with respect to any Benefit
Plan; (ii) the withdrawal of the Borrower or any member of the Controlled Group
from a Benefit Plan during a plan year in which the Borrower or such Controlled
Group member was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA with respect to such plan; (iii) the imposition of an obligation 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; (iv) the institution by the PBGC or any foreign governmental authority
of proceedings to terminate or appoint a trustee to administer a Benefit Plan
or
Foreign Pension Plan; (v) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of the Borrower or any member of the Controlled Group from a
Multiemployer Plan.
“Transferee”
is defined in Section 13.5 hereof.
“Trigger
Quarter” is defined in Section 7.4(A) hereof.
“2000
Receivables Purchase Agreement” means that certain Receivables
Purchase Agreement, dated as of April 4, 2000, as amended, extended or replaced
in a manner permitted by this Agreement, among Energizer Receivables Funding
Corporation, a Delaware corporation, as the seller thereunder, Eveready Battery
Company, a Delaware Corporation, as the servicer thereunder, Falcon Asset
Securitization Corporation and Bank One, NA, as the agent
thereunder.
“2000
Receivables Sale Agreement” means that certain Receivables Sale
Agreement, dated as of April 4, 2000, as amended, extended or replaced in a
manner permitted by this Agreement, between Eveready Battery Company, Inc.,
a
Delaware corporation, and Energizer Receivables Funding Corporation, a Delaware
corporation and an SPV.
“2003
Note Purchase Agreement” means that certain Note Purchase Agreement
dated as of June 1, 2003 as amended by the First Amendment to Note Purchase
Agreement dated September 26, 2005 among the Borrower and the “Purchasers”
referred to therein, under which the Borrower has issued senior unsecured notes
in an original aggregate principal amount of $700,000,000 (the “2003
Senior Notes”), which shall be pari passu with the Obligations
hereunder and the Hedging Obligations, as such 2003 Senior Notes and such Note
Purchase Agreement may be amended, restated, supplemented, modified, extended,
or refinanced or replaced (to the extent such refinancing or replacement is
with
the proceeds of another private placement issuance), from time to time in a
manner that is not materially adverse to the interests of the
Lenders.
“2003
Senior Notes” is defined in the definition of “2003 Note Purchase
Agreement” above.
“2004
Note Purchase Agreement” means that certain Note Purchase Agreement
dated as of November 1, 2004 as amended by the First Amendment to Note Purchase
Agreement dated September 26, 2005 among the Borrower and the “Purchasers”
referred to therein, under which the Borrower has issued senior unsecured notes
in an original aggregate principal amount of $300,000,000 (the “2004
Senior Notes”), which shall be pari passu with the Obligations
hereunder and the Hedging Obligations, as such 2004 Senior Notes and such Note
Purchase Agreement may be amended, restated, supplemented, modified, extended,
or refinanced or replaced (to the extent such refinancing or replacement is
with
the proceeds of another private placement issuance), from time to time in a
manner that is not materially adverse to the interests of the
Lenders.
“2004
Senior Notes” is defined in the definition of “2004 Note Purchase
Agreement” above.
“2005
Note Purchase Agreement” means that certain Note Purchase Agreement
dated as of August 1, 2005 as amended by the First Amendment to Note Purchase
Agreement dated September 26, 2005 among the Borrower and the “Purchasers”
referred to therein, under which the Borrower has issued senior unsecured notes
in an original aggregate principal amount of $325,000,000 (the “2005
Senior Notes”), which shall be pari passu with the Obligations
hereunder and the Hedging Obligations, as such 2005 Senior Notes and such Note
Purchase Agreement may be amended, restated, supplemented, modified, extended,
or refinanced or replaced (to the extent such refinancing or replacement is
with
the proceeds of another private placement issuance), from time to time in a
manner that is not materially adverse to the interests of the
Lenders.
“2005
Senior Notes” is defined in the definition of “2005 Note Purchase
Agreement” above.
“2006
Note Purchase Agreement” means that certain Note Purchase Agreement
dated as of July 6, 2006 among the Borrower and the “Purchasers” referred to
therein, under which the Borrower has issued senior unsecured notes in an
original aggregate principal amount of $500,000,000 (the “2006 Senior
Notes”), which shall be pari passu with the Obligations hereunder and
the Hedging Obligations, as such 2006 Senior Notes and such Note Purchase
Agreement may be amended, restated, supplemented, modified, extended, or
refinanced or replaced (to the extent such refinancing or replacement is with
the proceeds of another private placement issuance), from time to time in a
manner that is not materially adverse to the interests of the
Lenders.
“2006
Senior Notes” is defined in the definition of “2006 Note Purchase
Agreement” above.
“2007
Note Purchase Agreement” means that certain Note Purchase Agreement
dated as of October 15, 2007 among the Borrower and the “Purchasers” referred to
therein, under which the Borrower has issued senior unsecured notes in an
original aggregate principal amount of $500,000,000 (the “2007 Senior
Notes”), which shall be pari passu with the Obligations hereunder and
the Hedging Obligations, as such 2007 Senior Notes and such Note Purchase
Agreement may be amended, restated, supplemented, modified, extended, or
refinanced or replaced (to the extent such refinancing or replacement is with
the proceeds of another private placement issuance), from time to time in a
manner that is not materially adverse to the interests of the
Lenders.
“2007
Senior Notes” is defined in the definition of “2007 Note Purchase
Agreement” above.
“Type”
means, with respect to any Loan, its nature as a Floating Rate Loan or a
Eurodollar Rate Loan.
“Unmatured
Default” means an event which, but for the lapse of time or the
giving of notice, or both, would constitute a Default.
The
foregoing
definitions shall be equally applicable to both the singular and plural forms
of
the defined terms. 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 hereof.
1.2 References. Any
references to Subsidiaries of the Borrower 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.
THE
TERM
LOAN FACILITY
2.1 Loans.
(a) Upon
the
satisfaction of the conditions precedent set forth in Section 5.1, each
Lender severally and not jointly agrees, on the terms and conditions set forth
in this Agreement, to make a term loan, consisting of a single draw, on the
Closing Date, in Dollars, to the Borrower in an amount equal to such Lender’s
Commitment. Each Loan under this Section 2.1 shall consist of
Loans made by each Lender ratably in proportion to such Lender’s respective Pro
Rata Share. No Loan shall be reborrowed once repaid.
(b) Borrowing/Election
Notice. The Borrower shall deliver to the Administrative Agent a
Borrowing/Election Notice, signed by it, in accordance with the terms of
Section 2.7. The Administrative Agent shall promptly notify
each Lender of such request.
(c) Making
of
Loans. Promptly after receipt of the Borrowing/Election Notice
under Section 2.7 in respect of the Loans, the Administrative Agent shall
notify each Lender by telex or telecopy, or other similar form of transmission,
of the requested Loans. Each Lender shall make available its Loan in
accordance with the terms of Section 2.6. The Administrative
Agent will promptly make the funds so received from the Lenders available to
the
Borrower at the Administrative Agent’s office in Chicago, Illinois on the
Closing Date and shall disburse such proceeds in accordance with the Borrower’s
disbursement instructions set forth in such Borrowing/Election
Notice. The failure of any Lender to deposit the amount described
above with the Administrative Agent on the Closing Date shall not relieve any
other Lender of its obligations hereunder to make its Loan on the Closing
Date.
2.2 Repayment
of
Loans. The Borrower shall repay the principal amount of the Loans
in quarterly installments of $1,500,000 on each Payment
Date prior to the Termination Date, with the remaining unpaid principal balance
due on the Termination Date.
2.3 Rate
Options for
all Loans; Maximum Interest Periods. The Loans may be Floating
Rate Loans or Eurodollar Rate Loans, or a combination thereof, selected by
the
Borrower in accordance with Section 2.9. The Borrower may
select, in accordance with Section 2.9, rate options and Interest Periods
applicable to the Loans; provided that there shall be no more than eight
(8) Interest Periods in effect with respect to all of the Loans at any
time.
2.4 Optional
Prepayments. The 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 Loans
in
an aggregate minimum amount of $5,000,000 and in integral multiples of
$1,000,000 in excess thereof. Eurodollar Rate Loans 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 Borrower may not so prepay Eurodollar Rate
Loans unless it shall have provided at least three (3) Business Days’ prior
written notice to the Administrative Agent of such prepayment and
provided, further, that optional prepayments of Eurodollar Rate
Loans made pursuant to Section 2.1 with respect to the same Interest
Period shall be for the entire amount of all such outstanding Eurodollar Rate
Loans. No optional prepayments may be reborrowed once
made. Optional Prepayments shall not affect the amount of the
principal payments required under Section 2.2.
2.5 Reduction
of
Commitments. After giving effect to the Advance on the Closing
Date, the Aggregate Commitment shall be permanently reduced to
zero.
2.6 Method
of
Borrowing. Not later than 2:00 p.m. (Chicago time) on the Closing
Date, each Lender shall make available its Loan, in immediately available funds,
to the Administrative Agent at its address specified pursuant to Article
XIV. The Administrative Agent will promptly make the funds so
received from the Lenders available to the Borrower at the Administrative
Agent’s aforesaid address.
2.7 Method
of
Requesting the Advance. The Borrower shall give the
Administrative Agent irrevocable notice in substantially the form of Exhibit
B hereto (a “Borrowing/Election Notice”) not later than
11:00 a.m. (Chicago time) (a) on or before the Closing Date if the Loans being
requested are Floating Rate Loans and (b) on or before three (3) Business Days
before the Closing Date if the Loans being requested are Eurodollar Rate Loans,
specifying: (i) the Closing Date (which shall be a Business Day) for
the Advance; (ii) the aggregate amount of the Advance (which shall be equal
to
the Aggregate Commitment); (iii) the Type of Advance selected; and (iv) in
the
case of each Eurodollar Rate Loan, the Interest Period applicable
thereto. Notwithstanding the foregoing, if the Borrower delivers a
Borrowing/Election Notice, signed by it, together with appropriate documentation
in form and substance satisfactory to the Administrative Agent indemnifying
the
Lenders for the amounts described in Section 4.4 on or before the third
(3rd) Business
Day prior to the Closing Date, the Loans made on the Closing Date may be
Eurodollar Rate Loans.
2.8 Amount
of the
Advance. The Advance shall be equal to the amount of the
Aggregate Commitment.
2.9 Method
of
Selecting Types and Interest Periods for Conversion and Continuation of
Loans.
(A) Right
to
Convert. The Borrower may elect from time to time, subject to the
provisions of Section 2.3, this Section 2.9 and Section 5.2
to convert all or any part of a Loan of any Type into any other Type or Types
of
Loans; provided that any conversion of any Eurodollar Rate Loan shall be
made on, and only on, the last day of the Interest Period applicable
thereto.
(B) Automatic
Conversion and Continuation. Floating Rate Loans shall continue
as Floating Rate Loans unless and until such Floating Rate Loans are repaid
or
converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall
continue as Eurodollar Rate Loans until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Rate Loans shall be automatically
converted into Floating Rate Loans unless the Borrower shall have repaid such
Loans or given the Administrative Agent a Borrowing/Election Notice in
accordance with Section 2.9(D) requesting that, at the end of such
Interest Period, such Eurodollar Rate Loans continue as a Eurodollar Rate
Loan.
(C) No
Conversion
Post-Default. Notwithstanding anything to the contrary contained
in Section 2.9(A) or Section 2.9(B), no Loan may be converted into
or continued as a Eurodollar Rate Loan (except with the consent of the Required
Lenders) when any Default has occurred and is continuing.
(D) Borrowing/Election
Notice. The Borrower shall give the Administrative Agent an
irrevocable Borrowing/Election Notice of each conversion of a Floating Rate
Loan
into a Eurodollar Rate Loan or continuation of a Eurodollar Rate Loan not later
than 11:00 a.m. (Chicago time) three (3) Business Days prior to the date of
the
requested conversion or continuation, specifying: (i) the requested
date (which shall be a Business Day) of such conversion or continuation; (ii)
the amount and Type of the Loan to be converted or continued; and (iii) the
amount of Eurodollar Rate Loan(s) into which such Loan is to be converted or
continued, and the duration of the Interest Period applicable
thereto.
(E) Interest
Periods. The Borrower shall select Interest Periods so that, to
the best of the Borrower’s knowledge, it will not be necessary to prepay all or
any portion of any Eurodollar Rate Loan prior to the last day of the applicable
Interest Period in order to make mandatory prepayments as required pursuant
to
the terms hereof. Each Floating Rate Loan and all Obligations other
than Loans shall bear interest from and including the date of the making of
such
Loan, in the case of Floating Rate 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 Alternate Base Rate, changing when and as such
Alternate Base Rate changes. Changes in the rate of interest on that
portion of the Loans maintained as Floating Rate Loans will take effect
simultaneously with each change in the Alternate Base Rate. Each
Eurodollar Rate Loan 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 Eurodollar
Rate Loan, changing when and as the Applicable Margin
changes. Changes in the rate of interest on that portion of the Loans
maintained as Eurodollar Rate Loans will take effect simultaneously with each
change in the Applicable Margin.
2.10 Default
Rate. After the occurrence and during the continuance of a
Default, the Administrative Agent or the Required Lenders may, at their option,
by notice to the Borrower declare that, the interest rate(s) applicable to
the
Obligations (other than Eurodollar Rate Loans) shall be equal to the Alternate
Base Rate, changing as and when the Alternate Base Rate changes, or, for
Eurodollar Rate Loans, the then highest Eurodollar Rate (utilizing the highest
Applicable Margin in effect from time to time), in each case, plus two percent
(2.00%) per annum for all Loans and other Obligations; provided, that
after the occurrence and during the continuance of a Default under Sections
8.1(F), (G) or (I), the interest rate described above shall be
applicable without any election or action on the part of the Administrative
Agent or any other Lender.
2.11 Method
of
Payment. All payments of principal, interest, fees and
commissions hereunder shall be made, without setoff, deduction or counterclaim,
in immediately available funds to the Administrative Agent at the Administrative
Agent’s address specified pursuant to Article XIV, or at any other
Lending Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower, by 2:00 p.m. (Chicago time) on the date
when due and shall be made ratably among the Lenders (unless such amount is
not
to be shared ratably in accordance with the terms hereof). 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 pursuant to Article XIV or at any Lending Installation
specified in a notice received by the Administrative Agent from such
Lender. The Borrower authorizes the Administrative Agent to charge
the account of the Borrower maintained with JPMorgan for each payment of
principal, interest, fees and commissions as it becomes due
hereunder.
2.12 Evidence
of
Debt; Noteless Agreement.
(A) Each
Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made
by
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(B) The
Administrative
Agent shall also maintain accounts in which it will record (i) the amount of
each Loan made hereunder, the Type thereof and the Interest Period, if any,
with
respect thereto, (ii) the amount of any principal or interest due and payable
or
to become due and payable from the Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender’s share thereof.
(C) The
entries made in
the accounts maintained pursuant to clauses (A) and (B) above
shall be prima facie evidence of the existence and amounts of the
Obligations therein recorded unless the Borrower objects to information
contained therein within thirty (30) days of the Borrower’s receipt of such
information; provided,however, 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 Borrower to repay
the Obligations in accordance with the terms of this Agreement.
(D) Any
Lender may
request that its Loans be evidenced by a promissory note. In such
event, the Borrower shall 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 in its reasonable discretion and consistent
with the terms of this Agreement. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (prior to any
assignment pursuant to Section 13.3) be represented by one or more
promissory notes in such form, payable to the order of the payee named therein,
except to the extent that any such Lender subsequently returns any such note
for
cancellation and requests that such Loans once again be evidenced as described
in clauses (A) and (B) above.
2.13 Telephonic
Notices. The Borrower authorizes the Lenders and the
Administrative Agent to extend, convert or continue the Loans, effect selections
of Types of Loans 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 Borrower. The Borrower agrees to
deliver promptly to the Administrative Agent a written confirmation, signed
by
an Authorized Officer of the Borrower, if such confirmation is requested by
the
Administrative Agent or any Lender, of each telephonic notice. 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 with respect to such telephonic notice shall govern absent
manifest error. In case of disagreement concerning such notices, if
the Administrative Agent has recorded telephonic Borrowing/Election Notices,
such recordings will be made available to the Borrower upon the Borrower’s
request therefor.
2.14 Promise
to Pay;
Interest Payment Dates; Fees; Interest and Fee Basis.
(A) Promise
to
Pay. The 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 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 and on any date on which such Floating Rate Loan is prepaid,
whether by acceleration or otherwise (including at
maturity). Interest accrued on each Eurodollar Rate Loan shall be
payable on the last day of its applicable Interest Period, on any date on which
the Eurodollar Rate Loan is prepaid, whether by acceleration or otherwise,
and
at maturity. Interest accrued on each Eurodollar 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 each Payment Date, 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) Agent
and
Arranger Fees.
The
Borrower agrees
to pay to the Administrative Agent and/or the Arrangers, for their own accounts,
fees payable in the amounts and at the times separately agreed upon with the
Borrower.
(D) Interest
and Fee
Basis; Applicable Margin.
(i) Interest
accrued on
Eurodollar Rate Loans and Floating Rate Loans where the basis for calculation
of
such Floating Rate Loans is the Federal Funds Effective Rate shall be calculated
for actual days elapsed on the basis of a year of 360 days, and interest accrued
on Floating Rate Loans where the basis for calculation is the Prime Rate shall
be calculated for actual days elapsed on the basis of a year of 365, or when
appropriate 366, days. 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 2:00 p.m. (Chicago 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) The
Applicable
Margin shall be determined from time to time by reference to the Pricing
Schedule on the basis of the then applicable ratio of (i) the sum of all
Indebtedness of the Borrower and its Subsidiaries to (ii) EBITDA (such ratio,
the “Leverage Ratio”), as described in such Pricing
Schedule. For purposes of such Pricing Schedule, the Leverage Ratio
shall be calculated as of the last day of each fiscal quarter based upon (a)
for
Indebtedness, Indebtedness as of the last day of each such fiscal quarter;
and
(b) for EBITDA, the actual amount for the four-quarter period ending on such
day, calculated, with respect to Permitted Acquisitions, on a
proforma basis using unadjusted historical audited and reviewed
unaudited financial statements obtained from the seller (with the EBITDA
component thereof broken down by fiscal quarter in the Borrower’s reasonable
judgment).
2.15 Notification
of
the Advance, Interest Rates and Prepayments. Promptly after
receipt thereof, the Administrative Agent will notify each Lender of the
contents of each Borrowing/Election Notice and repayment notice received by
it
hereunder. The Administrative Agent will notify each Lender of the
interest rate applicable to each Eurodollar Rate Loan promptly upon
determination of such interest rate and will give each Lender prompt notice
of
each change in the Alternate Base Rate.
2.16 Lending
Installations. Each Lender may book its Loans 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. Subject to the provisions of Section
4.6, each Lender may, by written or facsimile notice to the Administrative
Agent and the Borrower, designate a Lending Installation through which Loans
will be made by it and for whose account Loan payments are to be
made.
2.17 Non-Receipt
of
Funds by the Administrative Agent. Unless the 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 (i)
in
the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account 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 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 the Borrower, the interest rate applicable to the
relevant Loan.
2.18 Termination
Date. This Agreement shall be effective until the Termination
Date. Notwithstanding the termination of this Agreement, until all of
the Obligations (other than contingent indemnity obligations) shall have been
fully and indefeasibly paid and satisfied in cash (to the full extent that
such
Obligations are payable in cash) and all financing arrangements among the
Borrower and the Lenders under or in connection with this Agreement and the
other Loan Documents shall have been terminated, all of the rights and remedies
under this Agreement and the other Loan Documents shall survive.
2.19 Replacement
of
Certain Lenders. In the event a Lender (an “Affected
Lender”) shall have: (i) failed to fund its Pro Rata Share
of the Advance requested by the Borrower, which such Lender is obligated to
fund
under the terms of this Agreement and which failure has not been cured, (ii)
requested compensation from the Borrower under Sections 4.1, 4.2
or 4.5 to recover Taxes, Other Taxes or other additional costs incurred
by such Lender which are not being incurred generally by the other Lenders,
(iii) delivered a notice pursuant to Section 4.3 claiming that such
Lender is unable to extend Eurodollar Rate Loans to the Borrower for reasons
not
generally applicable to the other Lenders or (iv) has invoked Section
10.2, then, in any such case, the Borrower 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 Borrower and a copy to the Borrower 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
five (5) Business Days after the date of such demand, to one or more financial
institutions that comply with the provisions of Section 13.3 which the
Borrower or the Administrative Agent, as the case may be, shall have engaged
for
such purpose (“Replacement Lender”), all of such Affected
Lender’s rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, all Loans owing to it hereunder)
in
accordance with Section 13.3. The Administrative Agent agrees,
upon the occurrence of such events with respect to an Affected Lender and upon
the written request of the Borrower, to use its reasonable efforts to obtain
the
commitments from one or more financial institutions to act as a Replacement
Lender. The Administrative Agent is authorized to execute any
Assignment and Assumption 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. Further, with respect to such assignment the Affected
Lender shall have concurrently received, 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 4.1, 4.2 and 4.5
with respect to such Affected Lender and compensation payable under Section
2.14 in the event of any replacement of any Affected Lender under clause
(ii) or clause (iii) of this Section 2.19; 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 4.1, 4.2, 4.4, 4.5 and 10.7, as well
as to any fees accrued for its account hereunder and not yet paid, and shall
continue to be obligated under Article XI with respect to losses,
obligations, liabilities, damages, penalties, actions, judgments, costs,
expenses or disbursements for matters which occurred prior to the date the
Affected Lender is replaced.
[RESERVED]
YIELD
PROTECTION; TAXES
4.1 Yield
Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or
any
change in the interpretation or administration thereof by any governmental
or
quasi-governmental authority, central bank or comparable agency charged with
the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects
any Lender
or any applicable Lending Installation to any Taxes, or changes the basis of
taxation of payments (other than with respect to Excluded Taxes) to any Lender
in respect of its Loans, or
(ii) 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 Eurodollar Rate Loans),
or
(iii) 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 Loans
or
reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with its Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by reference
to
the amount of Loans held or interest received by it, by an amount deemed
material by such Lender,
and
the result of
any of the foregoing is to increase the cost to such Lender or applicable
Lending Installation of making or maintaining its Loans or Commitment or to
reduce the return received by such Lender or applicable Lending Installation
in
connection with such Loans or Commitment, then, within fifteen (15) days of
demand by such Lender, the Borrower shall pay such Lender such additional amount
or amounts as will compensate such Lender for such increased cost or reduction
in amount received.
Notwithstanding
the
foregoing provisions of this Section 4.1, if any Lender fails to notify
the Borrower of any event or circumstance which will entitle such Lender to
compensation pursuant to this Section 4.1 within ninety (90) days after
such Lender obtains knowledge of such event or circumstance, then such Lender
shall not be entitled to compensation from the Borrower for any amount arising
prior to the date which is ninety (90) days before the date on which such Lender
notifies the Borrower of such event or circumstance.
4.2 Changes
in
Capital Adequacy Regulations. If a Lender determines 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, then, within fifteen (15) days of demand
by
such Lender, the Borrower 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 Loans or its Commitment hereunder (after taking into account
such Lender’s customary policies as to capital
adequacy). “Change” means (i) any change after the
date of this Agreement in the Risk-Based Capital Guidelines 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 date of this Agreement 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 date
of
this Agreement, 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 date of this
Agreement.
4.3 Availability
of
Types of Loans. If any Lender determines that maintenance of its
Eurodollar 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 if the Required Lenders determine that (i) deposits of a type and
maturity appropriate to match fund Eurodollar Rate Loans are not available
or
(ii) the interest rate applicable to Eurodollar Rate Loans does not accurately
reflect the cost of making or maintaining Eurodollar Rate Loans, then the
Administrative Agent shall suspend the availability of Eurodollar Rate Loans
and
require any affected Eurodollar Rate Loans to be repaid or converted to Floating
Rate Loans, subject to the payment of any funding indemnification amounts
required by Section 4.4.
4.4 Funding
Indemnification. If any payment of a Eurodollar Rate Loan occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurodollar Rate Loan
is
not made on the date specified by the Borrower for any reason other than default
by the Lenders, the Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom (excluding loss of margin), including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Rate Loan.
4.5 Taxes.
(i) All
payments by the
Borrower to or for the account of any Lender or the Administrative Agent
hereunder or under any of the other Loan Documents shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 4.5) 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 been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the
Administrative Agent the original copy of a receipt evidencing payment thereof
within thirty (30) days after such payment is made. Such Lender or
the Administrative Agent, as the case may be, shall promptly reimburse the
Borrower for such payments to the extent such Lender or the Administrative
Agent
receives actual knowledge that it has received any tax credit or other benefit
in connection with such tax payments and that such tax credit or benefit is
clearly attributable to this Agreement.
(ii) In
addition, the
Borrower hereby agrees to pay any present or future stamp or documentary taxes
and any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or under any promissory note issued hereunder
or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any promissory note issued hereunder (“Other
Taxes”).
(iii) The
Borrower hereby
agrees to indemnify the Administrative Agent and each Lender for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes
imposed on amounts payable under this Section 4.5) paid by the
Administrative Agent or such Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within
thirty (30) days of the date the Administrative Agent or such Lender makes
demand therefor pursuant to Section 4.6.
(iv) Each
Lender that is
not incorporated or organized under the laws of the United States of America
or
a state thereof (each a “Non-U.S. Lender”) agrees that it will,
not less than ten (10) Business Days after the date of this Agreement, or,
if
later, the date on which such Non-U.S. Lender becomes a party hereto, deliver
to
each of the Borrower and the Administrative Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and deliver to the Administrative
Agent two duly completed copies of United States Internal Revenue Forms W-8BEN
and W-8ECI, certifying in either case that it is entitled to an exemption from
United States backup withholding tax. Each Non-U.S. Lender further
undertakes to deliver to each of the Borrower and the Administrative Agent
(x)
renewals or additional copies of such form (or any successor form) on or before
the date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Administrative Agent. All forms or
amendments described in the preceding sentence shall certify that such Lender
is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For
any period
during which a Non-U.S. Lender has failed to provide the Borrower with an
appropriate form pursuant to clause (iv), above (unless such failure is
due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to
be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 4.5 with respect to Taxes imposed by the United States;
provided that, should a Non-U.S. Lender which is otherwise exempt from
or
subject to a reduced rate of withholding tax become subject to Taxes because
of
its failure to deliver a form required under clause (iv), above, the
Borrower shall take such steps as such Non-U.S. Lender shall reasonably request
(without cost to the Borrower) to assist such Non-U.S. Lender to recover such
Taxes.
(vi) Any
Lender that is
entitled to an exemption from or reduction of withholding tax with respect
to
payments under this Agreement or any promissory note issued hereunder pursuant
to the law of any relevant jurisdiction or any treaty shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If
the U.S. IRS or
any other governmental authority of the United States or any other country
or
any political subdivision thereof asserts a claim that the Administrative Agent
did not properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or properly completed,
because such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered its exemption from withholding ineffective, or
for
any other reason other than as a result of the gross negligence or willful
misconduct of the Administrative Agent), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by
the
Administrative Agent as tax, withholding therefor, or otherwise, including
penalties and interest, and including taxes imposed by any jurisdiction on
amounts payable to the Administrative Agent under this subsection, together
with
all costs and expenses related thereto (including attorneys fees and time
charges of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent). The obligations of the
Lenders under this Section 4.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
4.6 Lender
Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Rate Loans to reduce any liability of the Borrower
to
such Lender under Sections 4.1, 4.2 and 4.5 or to avoid the
unavailability of Eurodollar Rate Loans under Section 4.3, so long as
such designation is not, in the reasonable judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a written
statement of such Lender to the Borrower (with a copy to the Administrative
Agent) as to the amount due, if any, under Section 4.1, 4.2,
4.4 or 4.5. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such Sections
in connection with a Eurodollar Rate Loan shall be calculated as though each
Lender funded its Eurodollar Rate Loan through the purchase of a deposit of
the
type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that
is
the case or not, and without regard to loss of margin. Unless
otherwise provided herein, the amount specified in the written statement of
any
Lender shall be payable on demand after receipt by the Borrower of such written
statement. The obligations of the Borrower under Sections 4.1,
4.2, 4.4 and 4.5 shall survive payment of the Obligations
and termination of this Agreement.
CONDITIONS
PRECEDENT
5.1 Closing
Date. The Lenders shall not be required to make the Advance
unless the Closing Date shall have occurred on or prior to December 3, 2007
and
the Borrower has furnished to the Administrative Agent each of the following,
with sufficient copies for the Lenders on or before the Closing Date, all in
form and substance satisfactory to the Administrative Agent and the
Lenders:
(1) Copies
of the
Certificate of Incorporation of the Borrower and each of the Subsidiary
Guarantors (collectively, the “Loan Parties”), together with
all amendments and a certificate of good standing, both certified by the
appropriate governmental officer in its jurisdiction of
incorporation;
(2) Copies,
certified
by the Secretary or Assistant Secretary of each of the Loan Parties, of its
By-Laws and of its Board of Directors’ resolutions authorizing the execution of
the Loan Documents entered into by it;
(3) An
incumbency
certificate, 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 Loan Parties authorized to sign the Loan Documents and
the
officers of the Borrower authorized to make borrowings hereunder, upon which
certificate the Lenders shall be entitled to rely until informed of any change
in writing by the Borrower;
(4) A
certificate, in
form and substance satisfactory to the Administrative Agent, signed by the
chief
financial officer or the treasurer of the Borrower, stating that on the Closing
Date, both before and after giving effect to the Advance, all of the
representations in this Agreement are true and correct in all material respects
and no Default or Unmatured Default has occurred and is continuing;
(5) The
written opinion
of the Loan Parties’ counsel, addressed to the Administrative Agent and the
Lenders, in substantially the form attached hereto as Exhibit D and
containing assumptions and qualifications acceptable to the Administrative
Agent
and the Lenders;
(6) Written
money
transfer instructions to the extent reasonably requested by the Administrative
Agent, addressed to the Administrative Agent and signed by an Authorized Officer
of the Borrower;
(7) Evidence
satisfactory to the Administrative Agent that the Existing Term Loan Credit
Agreement has terminated and that all obligations, indebtedness and liabilities
outstanding under the Existing Term Loan Credit Agreement have been repaid
in
full, or the Borrower has arranged for such termination and repayment from
the
proceeds of the Advance hereunder (as documented in a payoff letter in form
and
substance reasonably satisfactory to the Administrative Agent);
(8) Signature
pages or
counterparts to this Agreement and the Subsidiary Guaranty; and
(9) Such
other
documents as the Administrative Agent or any Lender or its counsel may have
reasonably requested, as reflected on the List of Closing Documents attached
as
Exhibit E to this Agreement.
5.2 Each
Loan. The Lenders shall not be required to make, convert or
continue any Loan unless on the date of such borrowing, conversion or
continuation, both before and after taking into account the proposed borrowing,
conversion or continuation:
(i) There
exists no
Default or Unmatured Default; and
(ii) The
representations
and warranties contained in Article VI are true and correct in all
material respects as of such date.
Each
Borrowing/Election Notice with respect to each such Loan shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 5.2(i) and (ii) have been satisfied.
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 hereunder, the Borrower
hereby represents and warrants as follows to each Lender and the Administrative
Agent as of the Closing Date and thereafter on each date as required
hereunder:
6.1 Organization;
Corporate Powers. Each of the Borrower and its
Material Subsidiaries (i) is a corporation, limited
liability company, partnership or other commercial entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
organization, (ii) is duly qualified to do business as a foreign entity and
is
in good standing under the laws of each jurisdiction in which failure to be
so
qualified and in good standing could reasonably be expected to have a Material
Adverse Effect, and (iii) has all requisite power and authority to own, operate
and encumber its property and to conduct its business as presently conducted
and
as proposed to be conducted.
6.2 Authority.
(A) Each
of the
Borrower and its Subsidiaries has the requisite power and authority to execute,
deliver and perform each of the Loan Documents which are to be executed by
it or
which have been executed by it as required by this Agreement and the other
Loan
Documents and (ii) to file the Loan Documents, if any, which must be filed
by it
or which have been filed by it as required by this Agreement, the other Loan
Documents or otherwise with any Governmental Authority.
(B) The
execution,
delivery, performance and filing, as the case may be, of each of the Loan
Documents which must be executed or filed by the Borrower or any of its
Subsidiaries or which have been executed or filed as required by this Agreement,
the other Loan Documents or otherwise and to which the Borrower or any of its
Subsidiaries is a party, and the consummation of the transactions contemplated
thereby, have been duly approved by the respective boards of directors and,
if
necessary, the shareholders of the Borrower and its Subsidiaries, and such
approvals have not been rescinded. No other action or proceedings on
the part of the Borrower or its Subsidiaries are necessary to consummate such
transactions.
(C) Each
of the Loan
Documents to which the Borrower or any of its Subsidiaries is a party has been
duly executed, delivered or filed, as the case may be, by such party and
constitutes its legal, valid and binding obligation, enforceable against it
in
accordance with its terms (except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles, including concepts of
reasonableness, materiality, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief or other equitable
remedies (whether enforcement is sought by proceedings in equity or at law)),
is
in full force and effect and no material term or condition has been amended,
modified or waived from the terms and conditions contained in the Loan Documents
delivered to the Administrative Agent pursuant to Section 5.1 without the
prior written consent of the Required Lenders (or all of the Lenders if required
by Section 9.3), and the Borrower and its Subsidiaries have performed and
complied with all the material terms, provisions, agreements and conditions
set
forth therein and required to be performed or complied with by the Borrower
or
its Subsidiaries on or before the Closing Date, and no unmatured default,
default or breach of any covenant by any such party exists
thereunder.
6.3 No
Conflict;
Governmental Consents for the Borrower. The execution, delivery
and performance of each of the Loan Documents to which the Borrower or any
of
its Subsidiaries is a party do not and will not (i) conflict with the
certificate or articles of incorporation or by-laws (or equivalent constituent
documents) of the Borrower or any such Subsidiary, (ii) constitute a tortious
interference with any Financing Facility or conflict with, result in a breach
of
or constitute (with or without notice or lapse of time or both) a default under
any Financing Facility, or require termination of any Financing Facility, (iii)
constitute a tortious interference with any such Contractual Obligation (other
than the Financing Facilities) of any Person or conflict with, result in a
breach of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or such Contractual Obligation of the
Borrower or any such Subsidiary, or require termination of any Contractual
Obligation, except such interference, breach, default or
termination which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect, (iv) result in or
require the creation or imposition of any Lien whatsoever upon any of the
property or assets of the Borrower or any such Subsidiary, other than Liens
permitted or created by the Loan Documents, or (v) require any approval of
the
Borrower’s or any such Subsidiary’s Board of Directors (or equivalent governing
body) or shareholders, except such as have been obtained. Except as
set forth on Schedule 6.3 to this Agreement, the execution, delivery and
performance of each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by any
Governmental Authority, including under any Environmental Property Transfer
Act,
except filings, consents or notices which have been made, obtained or given,
or
which, if not made, obtained or given, individually or in the aggregate could
not reasonably be expected to have a Material Adverse Effect.
6.4 Financial
Statements.
The
September 30,
2006, December 31, 2006, March 31, 2007 and June 30, 2007 consolidated financial
statements of the Borrower and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower
and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
6.5 No
Material
Adverse Change. Since September 30, 2006 (determined by reference
to the financial statements prepared with respect to the Borrower and its
Subsidiaries), there has occurred no change in the business, properties,
condition (financial or otherwise), performance, results of operations or
prospects of the Borrower, or the Borrower and its Subsidiaries taken as a
whole
or any other event which has had or would reasonably be expected to have a
Material Adverse Effect.
6.6 Taxes.
(A) Tax
Examinations. All deficiencies which have been asserted against
the Borrower or any of the Borrower’s Subsidiaries as a result of any federal,
state, local or foreign tax examination for each taxable year in respect of
which an examination has been conducted have been fully paid or finally settled
or are being contested in good faith, and no issue has been raised by any taxing
authority in any such examination which, by application of similar principles,
reasonably can be expected to result in assertion by such taxing authority
of a
material deficiency for any other year not so examined which has not been
reserved for in the Borrower’s consolidated financial statements to the extent,
if any, required by Agreement Accounting Principles. Except as
permitted pursuant to Section 7.2(D), neither the Borrower nor any of the
Borrower’s Subsidiaries anticipates any material tax liability with respect to
the years which have not been closed pursuant to applicable law.
(B) Payment
of
Taxes. All tax returns and reports of the Borrower and its
Subsidiaries required to be filed have been timely filed, and all taxes,
assessments, fees and other governmental charges thereupon and upon their
respective property, assets, income and franchises which are shown in such
returns or reports to be due and payable have been paid except those items
which
are being contested in good faith and have been reserved for in accordance
with
Agreement Accounting Principles. The Borrower has no knowledge of any
proposed tax assessment against the Borrower or any of its Subsidiaries that
will have or could reasonably be expected to have a Material Adverse Effect,
except for any such liability in respect of other members of the consolidated
group of which the Borrower previously was a member as a Subsidiary of Xxxxxxx
Purina Company, in respect of which and solely to the extent that (i) the
Borrower is entitled to be indemnified by Xxxxxxx Purina Company or its
successors pursuant to that certain Tax Sharing Agreement, dated as of April
1,
2000, between Xxxxxxx Purina Company and the Borrower (as the same has been
or
may hereafter be amended or otherwise modified) and (ii) the Borrower’s right to
indemnification for such liability is not being contested by Xxxxxxx Purina
Company (or, if previously contested, any such contest has not been resolved
in
favor of Xxxxxxx Purina Company).
6.7 Litigation;
Loss
Contingencies and Violations. Except as set forth in Schedule
6.7 (the “Disclosed Litigation”), as of the Closing Date,
there is no action, suit, proceeding, arbitration or, to the knowledge of any
member of the Borrower’s Senior Management Team, investigation before or by any
Governmental Authority or private arbitrator pending or, to the knowledge of
any
member of the Borrower’s Senior Management Team, threatened against the
Borrower, any of its Subsidiaries or any property of any of
them. Neither (a) any of the Disclosed Litigation nor (b) from and
after the Closing Date, any other action, suit, proceeding, arbitration or,
to
the knowledge of any member of the Borrower’s Senior Management Team,
investigation before or by any Governmental Authority or private arbitrator
pending or, to the knowledge of any member of the Borrower’s Senior Management
Team, threatened against the Borrower, any of its Subsidiaries or any property
of any of them (i) challenges the validity or the enforceability of any material
provision of the Loan Documents or (ii) has had or 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 Borrower prepared
and delivered pursuant to Section 7.1(A) for the fiscal period during
which such material loss contingency was incurred. Neither the
Borrower nor any of its Subsidiaries is (A) in violation of any applicable
Requirements of Law which violation will have or could reasonably be expected
to
have a Material Adverse Effect, or (B) 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 will
have or could reasonably be expected to have a Material Adverse
Effect.
6.8 Subsidiaries. Schedule
6.8 to this Agreement (i) contains, as of the Closing Date, a description
of
the corporate structure of the Borrower, its Subsidiaries and any other Person
in which the Borrower or any of its Subsidiaries holds an Equity Interest in
excess of 5%; and (ii) accurately sets forth, as of the Closing Date, (A) the
correct legal name, the jurisdiction of incorporation or organization and the
jurisdictions in which each of the Borrower and the direct and indirect
Subsidiaries of the Borrower are qualified to transact business as a foreign
corporation, (B) the authorized, issued and outstanding shares of each class
of
Capital Stock of the Borrower and each of its Subsidiaries and the owners of
such shares (on a fully-diluted basis), (C) a summary of the direct and indirect
partnership, joint venture, or other Equity Interests, if any, of the Borrower
and each Subsidiary of the Borrower in any Person that is not a corporation
and
(D) the federal tax identification number of the Borrower and each Subsidiary
Guarantor. After the formation or acquisition of any New Subsidiary
permitted under Section 7.3(F), if requested by the Administrative Agent,
the Borrower shall provide a supplement to Schedule 6.8 to this Agreement
reflecting the addition of such New Subsidiary. Except as disclosed
on Schedule 6.8 (as so supplemented), none of the issued and outstanding
Capital Stock of the Borrower or any of its Subsidiaries is subject to any
vesting, redemption, or repurchase agreement, and there are no warrants or
options outstanding with respect to such Capital Stock. The
outstanding Capital Stock of the Borrower and each of its Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and the stock of the
Borrower’s Subsidiaries is not Margin Stock.
6.9 ERISA. No
Benefit Plan has incurred any material accumulated funding deficiency (as
defined in Sections 302(a)(2) of ERISA and 412(a) of the Code) whether or not
waived. Neither the Borrower nor any member of the Controlled Group
has incurred any material liability to the PBGC which remains outstanding other
than the payment of premiums. As of the last day of the most recent
prior plan year, the market value of assets under each Benefit Plan, other
than
any Multiemployer Plan, was not by a material amount less than the present
value
of benefit liabilities thereunder (determined in accordance with the actuarial
valuation assumptions described therein). Neither the Borrower nor
any member of the Controlled Group has (i) failed to make a required
contribution or payment to a Multiemployer Plan of a material amount or (ii)
incurred a material complete or partial withdrawal under Section 4203 or Section
4205 of ERISA from a Multiemployer Plan. Neither the Borrower nor any
member of the Controlled Group has failed to make an installment or any other
payment of a material amount required under Section 412 of the Code on or before
the due date for such installment or other payment. Each Plan,
Foreign Employee Benefit Plan and Non-ERISA Commitment complies in all material
respects in form, and has been administered in all material respects in
accordance with its terms and, in accordance with all applicable laws and
regulations, including but not limited to ERISA and the Code. There
have been no and there is no prohibited transaction described in Sections 406
of
ERISA or 4975 of the Code with respect to any Plan for which a statutory or
administrative exemption does not exist which could reasonably be expected
to
subject the Borrower or any of is Subsidiaries to material
liability. Neither the Borrower nor any member of the Controlled
Group has taken or failed to take any action which would constitute or result
in
a Termination Event, which action or inaction could reasonably be expected
to
subject the Borrower or any of its Subsidiaries to material
liability. Neither the Borrower nor any member of the Controlled
Group is subject to any material liability under, or has any potential material
liability under, Section 4063, 4064, 4069, 4204 or 4212(c) of
ERISA. The present value of the aggregate liabilities to provide all
of the accrued benefits under any Foreign Pension Plan do not exceed the current
fair market value of the assets held in trust or other funding vehicle for
such
plan by a material amount. 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. For purposes of this Section 6.9, “material” means any
amount, noncompliance or other basis for liability which could reasonably be
expected to subject the Borrower or any of its Subsidiaries to liability,
individually or in the aggregate with each other basis for liability under
this
Section 6.9, in excess of $30,000,000.
6.10 Accuracy
of
Information. The information, exhibits and reports furnished by
or on behalf of the Borrower and any of its Subsidiaries to the Administrative
Agent or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents, the representations and warranties of the Borrower
and
its Subsidiaries contained in the Loan Documents, and all certificates and
documents delivered to the Administrative Agent and the Lenders pursuant to
the
terms thereof, taken as a whole, do not contain as of the date furnished any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
6.11 Securities
Activities. Neither the Borrower nor any of its Subsidiaries is
engaged in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
6.12 Material
Agreements. Neither the Borrower nor any Subsidiary is a party to
any Contractual Obligation or subject to any charter or other corporate or
similar restriction which individually or in the aggregate will have or could
reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries has received notice or has knowledge that
(i) it is in default in the performance, observance or fulfillment of any of
the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, or (ii) any condition exists which, with the giving of notice
or the lapse of time or both, would constitute a default with respect to any
such Contractual Obligation, in each case, except where such default or
defaults, if any, individually or in the aggregate will not have or could not
reasonably be expected to have a Material Adverse Effect.
6.13 Compliance
with
Laws. The Borrower and its Subsidiaries are in compliance with
all Requirements of Law applicable to them and their respective businesses,
in
each case where the failure to so comply individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect.
6.14 Assets
and
Properties. The Borrower and each of its Subsidiaries has legal
title to all of its material assets and properties (tangible and intangible,
real or personal) owned by it or a valid leasehold interest in all of its
material leased assets (except insofar as marketability may be limited by any
laws or regulations of any Governmental Authority affecting such assets), and
all such assets and property are free and clear of all Liens, except Liens
permitted under Section 7.3(C). Substantially all of the
assets and properties owned by, leased to or used by the Borrower and/or each
such Subsidiary of the Borrower are in adequate operating condition and repair,
ordinary wear and tear excepted. Neither this Agreement nor any other
Loan Document, nor any transaction contemplated under any such agreement, will
affect any right, title or interest of the Borrower or such Subsidiary in and
to
any of such assets in a manner that has had or could reasonably be expected
to
have a Material Adverse Effect.
6.15 Statutory
Indebtedness Restrictions. Neither the Borrower nor any of its
Subsidiaries is subject to regulation under 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 Insurance. The
insurance policies and programs in effect with respect to the respective
properties, assets, liabilities and business of the Borrower and its
Subsidiaries reflect coverage that is reasonably consistent with prudent
industry practice.
6.17 Labor
Matters. No attempt to organize the employees of the Borrower or
any of its Subsidiaries, and no labor disputes, strikes or walkouts affecting
the operations of the Borrower or any of its Subsidiaries, is pending, or,
to
the Borrower’s knowledge, threatened, planned or contemplated, which has or
could reasonably be expected to have a Material Adverse Effect.
6.18 Environmental
Matters. (A) Except as disclosed on Schedule 6.18 to this
Agreement:
(i) the
operations of
the Borrower and its Subsidiaries comply in all material respects with
Environmental, Health or Safety Requirements of Law;
(ii) the
Borrower and
its Subsidiaries have all material permits, licenses or other authorizations
required under Environmental, Health or Safety Requirements of Law and are
in
material compliance with such permits;
(iii) neither
the
Borrower, any of its Subsidiaries nor any of their respective present property
or operations, or, to the Borrower’s or any of its Subsidiaries’ knowledge, any
of their respective past property or operations, are subject to or the subject
of, any investigation known to the Borrower or any of its Subsidiaries, any
judicial or administrative proceeding, order, judgment, decree, settlement
or
other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any material remedial
action; or (C) any material claims or liabilities arising from the Release
or
threatened Release of a Contaminant into the environment;
(iv) there
is not now,
nor to the Borrower’s or any of its Subsidiaries’ knowledge has there ever been,
on or in the property of the Borrower or any of its Subsidiaries any landfill,
waste pile, underground storage tanks, aboveground storage tanks, surface
impoundment or hazardous waste storage facility of any kind, any polychlorinated
biphenyls (PCBs) used in hydraulic oils, electric transformers or other
equipment, or any asbestos containing material that would result in material
remediation costs or material penalties to the Borrower or any of its
Subsidiaries; and
(v) neither
the
Borrower nor any of its Subsidiaries has any material Contingent Obligation
in
connection with any Release or threatened Release of a Contaminant into the
environment.
(B) For
purposes of this Section 6.18“material” means any noncompliance or other
basis for liability which could reasonably be likely to subject the Borrower
or
any of its Subsidiaries to liability, individually or in the aggregate with
each
other basis for liability under this Section 6.18, in excess of
$30,000,000.
6.19 Solvency. After
giving effect to (i) the Loans to be made hereunder, (ii) the other transactions
contemplated by this Agreement and the other Loan Documents and (iii) the
payment and accrual of all transaction costs with respect to the foregoing,
the
Borrower is, and the Borrower and its Subsidiaries taken as a whole are,
Solvent.
6.20 Benefits. Each
of the Borrower and its Subsidiaries will benefit from the financing arrangement
established by this Agreement. The Administrative Agent and the
Lenders have stated and the Borrower acknowledges that, but for the agreement
by
each of the Subsidiary Guarantors to execute and deliver the Subsidiary
Guaranty, the Administrative Agent and the Lenders would not have made available
the credit facilities established hereby on the terms set forth
herein.
COVENANTS
The
Borrower
covenants and agrees that so long as any Commitments are outstanding and
thereafter until all of the Obligations (other than contingent indemnity
obligations) shall have been fully and indefeasibly paid and satisfied in cash
and all financing arrangements among the Borrower and the Lenders shall have
been terminated, unless the Required Lenders shall otherwise give prior written
consent:
7.1 Reporting. The
Borrower shall:
(A) Financial
Reporting. Furnish to the Administrative Agent (with sufficient
copies for each of the Lenders, which the Administrative Agent shall promptly
deliver to the Lenders):
(i) Quarterly
Reports. As soon as practicable, and in any event within
forty-five (45) days after the end of each of the Borrower’s first three fiscal
quarters, the consolidated balance sheet of the Borrower and its Subsidiaries
as
at the end of such period and the related consolidated statements of income
and
cash flows of the Borrower and its Subsidiaries for such fiscal quarter and
for
the period from the beginning of the then current fiscal year to the end of
such
fiscal quarter, certified by the chief financial officer or treasurer of the
Borrower on behalf of the Borrower as fairly presenting the consolidated
financial position of the Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and cash flows for the periods
indicated in accordance with Agreement Accounting Principles, subject to normal
year-end audit adjustments and the absence of footnotes.
(ii) Annual
Reports. As soon as practicable, and in any event within ninety
(90) days after the end of each fiscal year, (a) the consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at the
end
of such fiscal year and the related consolidated and consolidating statements
of
income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries
for such fiscal year, and in comparative form the corresponding figures for
the
previous fiscal year along with consolidating schedules in form and substance
sufficient to calculate the financial covenants set forth in Section 7.4,
and (b) an audit report on the consolidated financial statements (but not the
consolidating financial statements or schedules) listed in clause (a)
hereof of independent certified public accountants of recognized national
standing, which audit report shall be unqualified and shall state that such
financial statements fairly present the consolidated financial position of
the
Borrower and its Subsidiaries as at the dates indicated and the results of
their
operations and cash flows for the periods indicated in conformity with Agreement
Accounting Principles 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
Compliance Certificate. Together with each delivery of any
financial statements (a) pursuant to clauses (i) and (ii) of this
Section 7.1(A), an officer’s certificate from the chief financial officer
or treasurer of the Borrower, substantially in the form of Exhibit F
attached hereto and made a part hereof, stating that (x) the representations
and
warranties of the Borrower contained in Article VI hereof shall have been
true and correct in all material respects as of the date of such officer’s
certificate and (y) 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 G attached hereto and made a part
hereof, signed by the Borrower’s chief financial officer or treasurer setting
forth calculations for the period which demonstrate compliance, when applicable,
with the provisions of Section 7.2(K), Sections 7.3(A) through
(Q) and Section 7.4, and which calculate the Leverage Ratio for
purposes of determining the then Applicable Margin.
(B) Notice
of
Default and Adverse Developments. Promptly upon any of the chief
executive officer, chief operating officer, chief financial officer, treasurer
or controller of the Borrower obtaining actual knowledge (i) of any condition
or
event which constitutes a Default or Unmatured Default, or becoming aware that
any Lender or Administrative Agent has given any written notice with respect
to
a claimed Default or Unmatured Default under this Agreement, (ii) that any
Person having the authority to give such a notice has given any written notice
to the Borrower or any Subsidiary of the Borrower or taken any other action
with
respect to a claimed default or event or condition of the type referred to
in
Section 8.1(E), or (iii) that any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect
has occurred 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 Borrower has taken, is taking and proposes to take with respect
thereto.
(C) ERISA
Notices. Deliver or cause to be delivered to the Administrative
Agent and the Lenders, at the Borrower’s expense, the following information and
notices as soon as reasonably possible, and in any event:
(i) within
ten (10)
Business Days after any member of the Controlled Group obtains knowledge that
a
Termination Event has occurred which could reasonably be expected to subject
the
Borrower to liability individually or in the aggregate in excess of $25,000,000,
a written statement of the chief financial officer or treasurer of the Borrower
describing such Termination Event and the action, if any, which the member
of
the Controlled Group has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS, DOL or
PBGC
with respect thereto;
(ii) within
ten (10)
Business Days after the filing of any funding waiver request with the IRS,
a
copy of such funding waiver request and thereafter all communications received
by the Borrower or a member of the Controlled Group with respect to such request
within ten (10) Business Days after such communication is received;
and
(iii) within
ten (10)
Business Days after the Borrower or any member of the Controlled Group knows
or
has reason to know that (a) a Multiemployer Plan has been terminated, (b) the
administrator or plan sponsor of a Multiemployer Plan intends to terminate
a
Multiemployer Plan, or (c) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan, a notice
describing such matter.
For
purposes of
this Section 7.1(C), the Borrower and any member of the Controlled Group
shall be deemed to know all facts known by the administrator of any Plan of
which the Borrower or any member of the Controlled Group is the plan
sponsor.
(D) Other
Indebtedness. Deliver to the Administrative Agent (i) a copy of
each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer’s certificate) delivered by or on
behalf of the Borrower to the holders of funded Material Indebtedness,
including, without limitation holders of Indebtedness under any Financing
Facility, 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
or other communication is delivered to such holders, and (ii) a copy of each
notice received by the Borrower from the holders of funded Material Indebtedness
who are authorized and/or have standing to deliver such notice pursuant to
the
terms of such Indebtedness, such delivery to be made promptly after such notice
is received by the Borrower.
(E) Other
Reports. Deliver or cause to be delivered to the Administrative
Agent and the Lenders copies of all financial statements, reports and notices,
if any, sent by the Borrower to its securities holders or filed with the
Commission by the Borrower, other than Reports on Form 8-K which contain only
information furnished pursuant to Item 12 thereof.
(F) Environmental
Notices. As soon as possible and in any event within ten (10)
days after receipt by the Borrower, deliver or cause to be delivered to the
Administrative Agent a copy of (i) any notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may be liable to any Person as a
result of the Release by the Borrower, any of its Subsidiaries, or any other
Person of any Contaminant into the environment, and (ii) any notice alleging
any
violation of any Environmental, Health or Safety Requirements of Law by the
Borrower or any of its Subsidiaries if, in either case, such notice or claim
relates to an event which could reasonably be expected to subject the Borrower
and each of its Subsidiaries to liability individually or in the
aggregate in excess of $25,000,000.
(G) Additional
Permitted Financing Facilities; Amendments to or Refinancings of Existing
Financing Facilities and Material Indebtedness. Promptly after
the execution thereof, deliver or cause to be delivered to the Administrative
Agent copies of (i) the documents evidencing the Indebtedness extended to the
Borrower or any of its Subsidiaries under a Permitted Financing Facility having
an aggregate principal outstanding or committed amount equal to or greater
than
$30,000,000 and (ii) all material amendments, restatements, supplements,
modifications, extensions, or refinancings or replacements to or of, as the
case
may be, any of the documents evidencing all or any portion of the Indebtedness
extended to the Borrower or any of its Subsidiaries under any of the Financing
Facilities and any other Material Indebtedness; provided, however,
that nothing herein shall eliminate the necessity or advisability of providing
advance copies of draft documentation of the foregoing to the Administrative
Agent for review in order to ensure the permissibility of any such Indebtedness,
amendments, restatements, supplements, modifications, extensions, or
refinancings or replacements.
(H) Other
Information. 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 Borrower, any of its
Subsidiaries, or their respective businesses and assets, including, without
limitation, schedules identifying and describing any Asset Sale (and the use
of
the net cash proceeds thereof), as from time to time may be reasonably requested
by the Administrative Agent.
7.2 Affirmative
Covenants.
(A) Corporate
Existence, Etc. Except as permitted pursuant to Section
7.3(H), the Borrower shall, and shall cause each of its Subsidiaries to, at
all times maintain its 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.
(B) Corporate
Powers; Conduct of Business. The Borrower shall, and shall cause
each of its Material 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 would
reasonably be expected to have a Material Adverse Effect. The
Borrower will, and will cause each Material Subsidiary to, carry on and conduct
its business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted unless the failure of the
Borrower or its Material Subsidiaries to carry on and conduct its business
as so
described would not reasonably be expected to have a Material Adverse
Effect.
(C) Compliance
with
Laws, Etc. The Borrower shall, and shall cause its Subsidiaries
to, (a) comply with all Requirements of Law and all restrictive covenants
affecting such Person or the business, properties, assets or operations of
such
Person, and (b) obtain as needed all permits necessary for its operations and
maintain such permits in good standing unless, in either case, failure to comply
or obtain such permits would not reasonably be expected to have a Material
Adverse Effect.
(D) Payment
of Taxes
and Claims; Tax Consolidation. The Borrower shall pay, and cause
each of its Subsidiaries to pay, (i) all 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 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(C)) upon any of the Borrower’s or
such Subsidiary’s property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, 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
Borrower shall maintain for itself and its Subsidiaries, or shall cause each
of
its Subsidiaries to maintain in full force and effect, insurance policies and
programs, with such deductibles or self-insurance amounts as reflect coverage
that is reasonably consistent with prudent industry practice as determined
by
the Borrower.
(F) Inspection
of
Property; Books and Records; Discussions. The Borrower shall
permit and cause each of the Borrower’s Subsidiaries to permit, any authorized
representative(s) designated by either the Administrative Agent or any Lender
to
visit and inspect any of the properties of the Borrower or any of its
Subsidiaries, to examine their respective financial and accounting records
and
other material 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 independent certified public
accountants, all upon reasonable notice and at such reasonable times during
normal business hours, as often as may be reasonably requested (provided that
an
officer of the Borrower or any of its Subsidiaries may, if it so desires, be
present at and participate in any such discussion). The Borrower
shall keep and maintain, and cause each of the Borrower’s Subsidiaries to keep
and maintain, in all material respects, 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. If a Default has occurred and is continuing, the
Borrower, upon the Administrative Agent’s request, shall turn over copies of any
such records to the Administrative Agent or its representatives.
(G) ERISA
Compliance. The Borrower shall, and shall cause each of the
Borrower’s Subsidiaries to, establish, maintain and operate all Plans to comply
in all material respects with the provisions of ERISA and shall operate all
Plans and Non-ERISA Commitments to comply in all material respects with the
applicable provisions of the Code, all other applicable laws, and the
regulations and interpretations thereunder and the respective requirements
of
the governing documents for such Plans and Non-ERISA Commitments, except for
any
noncompliance which, individually or in the aggregate, could not reasonably
be
expected to have a Material Adverse Effect.
(H) Maintenance
of
Property. The Borrower shall cause all property necessary for the
conduct of its business or the business of any Subsidiary to be maintained
and
kept in good condition, repair and working order 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 Borrower may be necessary for the conduct of its business; provided,
however, that nothing in this Section 7.2(H) shall prevent the
Borrower from discontinuing the operation or maintenance of any of such property
if such discontinuance is, in the judgment of the Borrower, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Administrative Agent or the
Lenders.
(I) Environmental
Compliance. The Borrower and its Subsidiaries shall comply with
all Environmental, Health or Safety Requirements of Law, except where
noncompliance will not have or is not reasonably likely to subject the Borrower
or any of its Subsidiaries, individually or in the aggregate, to liability
in
excess of $30,000,000.
(J) Use
of
Proceeds. The Borrower shall use the proceeds of the Loans solely
to refinance indebtedness outstanding under the Existing Term Loan Credit
Agreement and to finance the transaction costs and expenses incurred in
connection therewith and herewith.
(K) Addition
of
Subsidiary Guarantors.
(a) New
Subsidiaries. The Borrower shall cause each New Subsidiary that
is, at any time, a Material Domestic Subsidiary (other than a SPV) to deliver
to
the Administrative Agent an executed Supplement to become a Subsidiary Guarantor
under the Subsidiary Guaranty in the form of Exhibit H attached hereto (a
“Supplement”) and appropriate corporate resolutions, opinions
and other documentation in form and substance reasonably satisfactory to the
Administrative Agent, such Supplement and other documentation to be delivered
to
the Administrative Agent as promptly as possible upon the creation, acquisition
of or capitalization thereof or if otherwise necessary to remain in compliance
with Section 7.3(Q), but in any event within thirty (30) days of such
creation, acquisition or capitalization.
(b) Additional
Material Domestic Subsidiaries. If any consolidated Subsidiary of
the Borrower (other than a New Subsidiary to the extent addressed in Section
7.2(K)(a) or a SPV) becomes a Material Domestic Subsidiary, the Borrower
shall cause any such Material Domestic Subsidiary to deliver to the
Administrative Agent an executed Supplement to become a Subsidiary Guarantor
and
appropriate corporate resolutions, opinions and other documentation in form
and
substance reasonably satisfactory to the Administrative Agent in connection
therewith, such Supplement and other documentation to be delivered to the
Administrative Agent as promptly as possible but in any event within thirty
(30)
days following the date on which such consolidated Subsidiary became a Material
Domestic Subsidiary.
(c) Additional
Subsidiary Guarantors.
(i) If
at any time a
member of the Senior Management Team of the Borrower has actual knowledge that
the aggregate assets of all of the Borrower’s domestic consolidated Subsidiaries
(other than SPVs) which are not Subsidiary Guarantors exceed ten percent (10%)
of Consolidated Domestic Assets of the Borrower and its consolidated
Subsidiaries (other than the SPVs), as calculated by the Borrower, the Borrower
shall cause such domestic consolidated Subsidiaries as are necessary to reduce
such aggregate assets to or below ten percent (10%) of such Consolidated
Domestic Assets to deliver to the Administrative Agent executed Supplements
to
become Subsidiary Guarantors and appropriate corporate resolutions, opinions
and
other documentation in form and substance reasonably satisfactory to the
Administrative Agent in connection therewith, such Supplements and other
documentation to be delivered to the Administrative Agent as promptly as
possible but in any event within thirty (30) days following the initial date
on
which a member of the Senior Management Team of the Borrower obtained actual
knowledge that such aggregate assets exceed ten percent (10%) of such
Consolidated Domestic Assets.
(ii) If
at any time any
Subsidiary of the Borrower which is not a Subsidiary Guarantor guaranties any
Indebtedness of the Borrower for which the Borrower is a primary obligor (other
than solely as a guarantor of obligations of its Affiliates or other third
parties), other than the Indebtedness hereunder, the Borrower shall cause such
Subsidiary to deliver to the Administrative Agent an executed Supplement to
become a Subsidiary Guarantor and appropriate corporate resolutions, opinions
and other documentation in form and substance reasonably satisfactory to the
Administrative Agent in connection therewith, such Supplement and other
documentation to be delivered to the Administrative Agent prior to or
concurrently with the delivery of the guaranty of such other
Indebtedness.
7.3 Negative
Covenants.
(A) Subsidiary
Indebtedness. The Borrower shall not permit any of its
Subsidiaries directly or indirectly to create, incur, assume or otherwise become
or remain directly or indirectly liable with respect to any Indebtedness,
except:
(i) Indebtedness
of the
Subsidiaries under the Subsidiary Guaranty;
(ii) Indebtedness
in
respect of guaranties executed by any Subsidiary Guarantor with respect to
any
Indebtedness of the Borrower, provided such Indebtedness is not incurred by
the
Borrower in violation of this Agreement;
(iii) Indebtedness
in
respect of obligations secured by Customary Permitted Liens;
(iv) Indebtedness
constituting Contingent Obligations permitted by Section
7.3(E);
(v) Indebtedness
arising from loans (a) from any Subsidiary to any wholly-owned Subsidiary or
(b)
from the Borrower to any wholly-owned Subsidiary; provided, that if any
Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness
shall be expressly subordinate to the payment in full in cash of the Obligations
on terms satisfactory to the Administrative Agent;
(vi) Indebtedness
in
respect of Hedging Obligations permitted under Section
7.3(O);
(vii) Indebtedness
with
respect to surety, appeal and performance bonds obtained by any of the
Borrower’s Subsidiaries in the ordinary course of business;
(viii) Indebtedness
incurred in connection with the Receivables Purchase Documents, provided, that
Receivables Facility Attributed Indebtedness incurred in connection therewith
does not exceed $250,000,000 in the aggregate at any time outstanding;
and
(ix) Other
Indebtedness
in addition to that referred to elsewhere in this Section 7.3(A) incurred
by the Borrower’s Subsidiaries; provided that no Default or Unmatured
Default shall have occurred and be continuing at the date of such incurrence
or
would result therefrom; and providedfurther that the aggregate
outstanding amount of all Indebtedness incurred by the Borrower’s Subsidiaries
(other than Indebtedness incurred pursuant to clauses (i), (ii),
(v), (vi) and (viii) of this Section 7.3(A)) shall
not at any time exceed 25% of the Borrower’s Consolidated Total
Capitalization.
(B) Sales
of
Assets. Neither the Borrower nor any of its Subsidiaries shall
sell, assign, transfer, lease, convey or otherwise dispose of any property,
whether now owned or hereafter acquired, or any income or profits therefrom,
or
enter into any agreement to do so, except:
(i) sales
of Inventory
in the ordinary course of business;
(ii) the
disposition in
the ordinary course of business of Equipment that is obsolete, excess or no
longer used or useful in the Borrower’s or its Subsidiaries’
businesses;
(iii) any
Permitted
Receivables Transfer; provided that the amount of Receivables Facility
Attributed Indebtedness does not exceed $250,000,000 in the aggregate at any
time outstanding;
(iv) sales,
transfers or
other dispositions of property to the Borrower or a Subsidiary Guarantor;
and
(v) sales,
assignments,
transfers, leases, conveyances or other dispositions of other assets (other
than
pursuant to clauses (i), (ii), (iii) and (iv) above)
if such transaction (a) is for not less than fair market value, and (b) when
combined with all such other transactions (each such transaction being valued
at
book value) occurring during the fiscal year in which such proposed transaction
occurred represents the disposition of not greater than fifteen percent (15%)
of
the Borrower’s Consolidated Assets (such Consolidated Assets being calculated
for the end of the fiscal year immediately preceding that in which such
transaction is proposed to be entered into).
(C) Liens. Neither
the Borrower nor any of its Subsidiaries shall directly or indirectly create,
incur, assume or permit to exist any Lien on or with respect to any of their
respective property or assets except:
(i) (a)
Liens, if any,
created by the Loan Documents or otherwise securing the Obligations and (b)
Liens created by the “Loan Documents” under and as defined in the Revolving
Credit Agreement or otherwise securing the “Obligations” (as such terms are
defined in the Revolving Credit Agreement), provided, that such Liens are shared
on an equal and ratable basis with the Lenders with respect to the Obligations
hereunder;
(ii) Customary
Permitted
Liens;
(iii) Liens
arising under
the Receivables Purchase Documents; and
(iv) other
Liens,
including Permitted Existing Liens, (a) securing Indebtedness of the Borrower
and/or (b) securing Indebtedness of the Borrower’s Subsidiaries as permitted
pursuant to Section 7.3(A), all of which, when taken together, secure
Indebtedness in an aggregate outstanding principal amount not to exceed five
percent (5%) of Consolidated Assets at any time.
In
addition,
neither the Borrower nor any of its Subsidiaries shall become a party to any
agreement, note, indenture or other instrument, or take any other action, which
would prohibit the creation of a Lien on any of its properties or other assets
in favor of the Administrative Agent for the benefit of itself and the Holders
of Obligations, as collateral for the Obligations; provided, that any
agreement, note, indenture or other instrument in connection with purchase
money
indebtedness (including Capitalized Leases) may prohibit the creation of a
Lien
in favor of the Administrative Agent for the benefit of itself and the Holders
of Obligations on the items of property obtained with the proceeds of such
purchase money indebtedness; provided, further, that (a) each
Senior Note Purchase Agreement in connection with the Senior Notes may prohibit
the creation of a Lien in favor of the Administrative Agent for the benefit
of
itself and the Holders of Obligations, as collateral for the
Obligations, (b) the Receivables Purchase Documents may
prohibit the creation of a Lien with respect to all of the assets of the SPV
and
with respect to the Receivables and Related Security of any of the Originators
in favor of the Administrative Agent for the benefit of itself and the Holders
of Obligations, as collateral for the Obligations, (c) the Revolving Credit
Agreement may prohibit the creation of a Lien in favor of the Administrative
Agent, for the benefit of itself and the Holders of Obligations, as collateral
for the Obligations unless the holders of the obligations under the Revolving
Credit Agreement shall be provided with an equal and ratable Lien and (d) the
Singapore Credit Agreement may prohibit the creation of a Lien by the Borrower
on the Capital Stock or assets of members of the Singapore Regional Group to
secure the Obligations.
(D) Investments. Except
to the extent permitted pursuant to paragraph (G) below, neither the
Borrower nor any of its Subsidiaries shall directly or indirectly make or own
any Investment except:
(i) Investments
in cash
and Cash Equivalents;
(ii) Permitted
Existing
Investments in an amount not greater than the amount thereof on the Closing
Date;
(iii) Investments
in
trade receivables or received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in
the
ordinary course of business;
(iv) Investments
consisting of deposit accounts maintained by the Borrower and its
Subsidiaries;
(v) Investments
consisting of non-cash consideration from a sale, assignment, transfer, lease,
conveyance or other disposition of property permitted by Section
7.3(B);
(vi) Investments
in any
consolidated Subsidiaries (other than joint ventures);
(vii) Investments
in
joint ventures and nonconsolidated Subsidiaries in an aggregate amount not
to
exceed $50,000,000;
(viii) Investments
constituting Permitted Acquisitions;
(ix) Investments
constituting Indebtedness permitted by Section 7.3(A) or Contingent
Obligations permitted by Section 7.3(E);
(x) Investments
in the
SPVs (a) required in connection with the Receivables Purchase Documents and
(b)
resulting from the transfers permitted by Section 7.3(B)(iii);
and
(xi) Investments
in
addition to those referred to elsewhere in this Section 7.3(D) in an
aggregate amount not to exceed $50,000,000.
(E) Contingent
Obligations. None of the Borrower’s Subsidiaries shall directly
or indirectly create or become or be liable with respect to any Contingent
Obligation, except: (i) recourse obligations resulting from endorsement of
negotiable instruments for collection in the ordinary course of business; (ii)
Permitted Existing Contingent Obligations; (iii) obligations, warranties, and
indemnities, not relating to Indebtedness of any Person, which have been or
are
undertaken or made in the ordinary course of business and not for the benefit
of
or in favor of an Affiliate of the Borrower or such Subsidiary; (iv) Contingent
Obligations with respect to surety, appeal and performance bonds obtained by
the
Borrower or any Subsidiary in the ordinary course of business; (v) Contingent
Obligations of the Subsidiary Guarantors under the Subsidiary Guaranty; (vi)
Contingent Obligations of Subsidiaries which are Subsidiary Guarantors under
a
guaranty of the Indebtedness of the Borrower evidenced by the Revolving Credit
Agreement, the Senior Notes, the Senior Note Purchase Agreements and any
Permitted Financing Facility; (vii) Contingent Obligations of the Borrower
or
any of its Subsidiaries arising under the Receivables Purchase Documents; (viii)
Contingent Obligations of the Singapore Regional Group under the Singapore
Guarantees; (ix) Contingent Obligations of non-domestic Subsidiaries represented
by guarantees of obligations of other non-domestic Subsidiaries; (x) Contingent
Obligations of Subsidiaries which are guarantors under a guaranty of
Indebtedness of a Subsidiary of the Borrower (including a Permitted Financing
Facility) permitted under Section 7.3(A)(ix); and (xi) Contingent
Obligations incurred in the ordinary course of business by any of the Borrower’s
Subsidiaries in respect of obligations of any Subsidiary.
(F) Conduct
of
Business; New Subsidiaries; Acquisitions. Except as expressly
provided in clause (c) in the definition of “Permitted Acquisition”
below, neither the Borrower nor any of its Subsidiaries shall engage
in any
business other than the businesses engaged in by the Borrower and its
Subsidiaries on the date of such transaction and any business or activities
which are substantially similar, related or incidental thereto. The
Borrower may create, acquire in a Permitted Acquisition or capitalize any
Subsidiary (a “New Subsidiary”) after the date hereof if (i) no
Default or Unmatured Default shall have occurred and be continuing or would
result therefrom; (ii) after such creation, acquisition or capitalization,
all
of the representations and warranties contained herein shall be true and
correct; and (iii) after such creation, acquisition or capitalization the
Borrower shall be in compliance with the terms of Sections 7.2(K)
and 7.3(Q).
Without
in any way
limiting the foregoing, neither the Borrower nor any of its Subsidiaries shall
make any Acquisitions, other than Acquisitions meeting the following
requirements or otherwise approved by the Required Lenders (each such
Acquisition constituting a “Permitted
Acquisition”):
(a) 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,
and all of the representations and warranties contained herein shall be true
and
correct on and as of the date such Acquisition with the same effect as though
made on and as of such date;
(b) the
purchase is
consummated on a non-hostile basis pursuant to a negotiated acquisition
agreement approved by the board of directors or other applicable governing
body
of the seller prior to the commencement of such Acquisition; provided,
however, that nothing in this clause (b) shall prevent the
Borrower from enforcing its rights against a seller following a default in
such
seller’s obligations under any such agreement;
(c) the
businesses
being acquired shall be consumer product companies or other businesses that
are
substantially similar, related or incidental to the businesses or activities
engaged in by the Borrower and its Subsidiaries as of the Closing Date, as
well
as suppliers to or distributors of products similar to those of the Borrower
and
its Subsidiaries; provided, however, that the Borrower and its
Subsidiaries shall be permitted to acquire businesses that do not satisfy the
foregoing criteria in this clause (c) so long as the aggregate purchase
price for all such acquisitions does not exceed five percent (5%) of the
Borrower’s consolidated tangible net assets (on a
pro forma basis) as of the date of the consummation
of such Acquisition; and
(d) prior
to each such
Acquisition, the Borrower shall determine that after giving effect to such
Acquisition and the incurrence of any Indebtedness by the Borrower or any of
its
Subsidiaries, to the extent permitted by this Agreement, in connection
therewith, on a proforma basis acceptable to the Administrative
Agent, the Borrower would have been in compliance with the financial covenants
in Section 7.4 for the applicable period being tested and not otherwise
in Default.
(G) Transactions
with Shareholders and Affiliates. Except for (a) the transactions
set forth on Schedule 7.3(G), (b) Permitted Receivables Transfers and (c)
Investments permitted by Section 7.3(D), neither the Borrower 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 any holder or
holders of any of the Equity Interests of the Borrower, or with any Affiliate
of
the Borrower which is not its Subsidiary, on terms that are less favorable
to
the Borrower 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.
(H) Restriction
on
Fundamental Changes. Neither the Borrower 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 Borrower’s or any such Subsidiary’s business or
property, whether now or hereafter acquired, except (i) transactions permitted
under Sections 7.3(B) or 7.3(F) (including the liquidation,
winding up or dissolution of a Subsidiary in connection with a transaction
permitted under Section 7.3(B)) and (ii) a Subsidiary of the Borrower may
be merged into, liquidated into or consolidated with the Borrower (in which
case
the Borrower shall be the surviving corporation) or any wholly-owned Subsidiary
of the Borrower; provided if a Subsidiary Guarantor is merged into,
liquidated into or consolidated with another Subsidiary of the Borrower, the
surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to
the
extent required under Section 7.2(K) or 7.3(Q)
hereunder.
(I) Sales
and
Leasebacks. Neither the Borrower nor any of its Subsidiaries
shall become liable, directly, by assumption or by Contingent Obligation, with
respect to any lease, whether an operating lease or a Capitalized Lease, of
any
property (whether real or personal or mixed), (i) which it or one of its
Subsidiaries sold or transferred or is to sell or transfer to any other Person,
or (ii) which it 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 it or one of its Subsidiaries to any other Person in connection
with such lease, unless in either case the sale involved is not prohibited
under
Section 7.3(B) and the lease involved is not prohibited under Section
7.3(A).
(J) Margin
Regulations; Use of Proceeds. Neither the Borrower nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement (i) to purchase or carry Margin Stock in violation
of any of the regulations of the Board, including Regulations T, U and
X or (ii) for any purpose other than those set forth in Section
7.2(J).
(K) ERISA. The
Borrower shall not:
(i) permit
to exist any
accumulated funding deficiency (as defined in Sections 302 of ERISA and 412
of
the Code), with respect to any Benefit Plan, whether or not waived;
(ii) terminate,
or
permit any Controlled Group member to terminate, any Benefit Plan which would
result in liability of the Borrower or any Controlled Group member under Title
IV of ERISA;
(iii) fail,
or permit any
Controlled Group member to fail, to pay any required installment or any other
payment required under Section 412 of the Code on or before the due date for
such installment or other payment; or
(iv) permit
any unfunded
liabilities with respect to any Foreign Pension Plan;
except
where such
transactions, events, circumstances, or failures are not, individually or in
the
aggregate, reasonably expected to result in liability individually or in the
aggregate in excess of $25,000,000 or have a Material Adverse
Effect.
(L) Corporate
Documents. Neither the Borrower nor any of its Subsidiaries shall
amend, modify or otherwise change any of the terms or provisions in any of
their
respective constituent documents as in effect on the date hereof in any manner
adverse to the interests of the Lenders, without the prior written consent
of
the Required Lenders.
(M) Fiscal
Year. Neither the Borrower nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from
a
twelve-month period ending September 30 of each year.
(N) Subsidiary
Covenants. The Borrower will not, and will not permit any
Subsidiary to, create or otherwise cause to become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to
pay
dividends or make any other distribution on its stock, redeem or repurchase
its
stock, make any other similar payment or distribution, pay any Indebtedness
or
other obligation owed to the Borrower or any other Subsidiary, make loans or
advances or other Investments in the Borrower or any other Subsidiary, to sell,
transfer or otherwise convey any of its property to the Borrower or any other
Subsidiary or merge, consolidate with or liquidate into the Borrower or any
other Subsidiary other than pursuant to (i) this Agreement, the Revolving Credit
Agreement or any other Permitted Financing Facility; provided,
however, that the restrictions in a Permitted Financing Facility shall
be
no more adverse to the Lenders than the provisions set forth in this Agreement
and in any event (x) shall not prohibit any Subsidiary from paying dividends
or
making any other distribution on its stock to, redeem or repurchase its stock
from, or making any other similar payment or distribution to, the Borrower
or
any Subsidiary Guarantor, and (y) shall not prohibit the Borrower or any
Subsidiary from paying any Indebtedness or other obligation owed to, making
loans or advances or other Investments in, selling, transferring or otherwise
conveying any of its property to, or merge, consolidate with or liquidating
into, the Borrower or any Subsidiary Guarantor, all as established by the
Borrower to the reasonable satisfaction of the Administrative Agent, (ii) the
Receivables Purchase Documents and (iii) the Singapore Credit Agreement;
provided, that the Singapore Credit Agreement shall not in any way
prohibit any member of the Singapore Regional Group from paying dividends or
making any other distribution on its stock, redeeming or repurchasing its stock,
making any other similar payment or distribution, or paying any Indebtedness
or
other obligation owed to the Borrower or any Subsidiary Guarantor.
(O) Hedging
Obligations. The Borrower shall not and shall not permit any of
its Subsidiaries to enter into any Hedging Arrangements other than Hedging
Arrangements entered into by the Borrower or its Subsidiaries pursuant to which
the Borrower or such Subsidiary has hedged its or its Subsidiaries’ reasonably
estimated interest rate, foreign currency or commodity exposure and which are
of
a non-speculative nature.
(P) Issuance
of
Disqualified Stock. From and after the Closing Date, neither the
Borrower, nor any of its Subsidiaries shall issue any Disqualified
Stock. All issued and outstanding Disqualified Stock shall be treated
as Indebtedness for borrowed money for all purposes of this Agreement, and
the
amount of such deemed Indebtedness shall be the aggregate amount of the
liquidation preference of such Disqualified Stock.
(Q) Non-Guarantor
Subsidiaries. Subject to the grace period set forth in Section
7.2(K)(c)(i), the Borrower will not at any time permit the aggregate assets
of all of the Borrower’s domestic consolidated Subsidiaries (other than the
SPVs) which are not Subsidiary Guarantors to exceed ten percent (10%) of
Consolidated Domestic Assets of the Borrower and its consolidated Subsidiaries
(other than the SPVs). The Borrower shall not permit any of its
Subsidiaries (including non-domestic Subsidiaries) to guaranty any Indebtedness
of the Borrower for which the Borrower is a primary obligor (other than solely
as a guarantor of obligations of its Affiliates or other third parties) other
than the Indebtedness hereunder unless each such Subsidiary is a Subsidiary
Guarantor under the Subsidiary Guaranty.
7.4 Financial
Covenants. The Borrower shall comply with the
following:
(A) Maximum
Leverage
Ratio. The Borrower shall not permit the ratio of (i) the sum of
all Indebtedness of the Borrower and its Subsidiaries minus, solely for the
purposes of the calculation of the Covenant Leverage Ratio pursuant to this
Section 7.4(A), Receivables Facility Attributed Indebtedness to (ii)
EBITDA (such ratio, the “Covenant Leverage Ratio”) at any time
to be greater than 3.50 to 1.00; provided that if, at the end of any fiscal
quarter, the Covenant Leverage Ratio is greater than 3.50 to 1.00 and the
Borrower has entered into a transaction or transactions, including, but not
limited to, Permitted Acquisitions or repurchases of the Borrower's Capital
Stock within the two most recently ended fiscal quarters (including such fiscal
quarter) (a fiscal quarter in which all such conditions are satisfied, a
“Trigger Quarter”), then the Covenant Leverage Ratio may be
greater than 3.50 to 1.00 but shall not exceed 4.00 to 1.00 for such Trigger
Quarter and the next succeeding three fiscal quarters; provided that, following
the occurrence of a Trigger Quarter, no subsequent Trigger Quarter shall be
deemed to have occurred or to exist for any reason unless and until the Covenant
Leverage Ratio has returned to less than or equal to 3.50 to 1.00 as of the
end
of at least one fiscal quarter following the occurrence of such initial Trigger
Quarter; provided, further that, the Covenant Leverage Ratio shall return to
less than or equal to 3.50 to 1.00 no later than the fourth fiscal quarter
after
such initial Trigger Quarter. The Covenant Leverage Ratio shall be
calculated as of the last day of each fiscal quarter based upon (a) for
Indebtedness and Receivables Facility Attributed Indebtedness, Indebtedness
and
Receivables Facility Attributed Indebtedness, as the case may be, as of the
last
day of each such fiscal quarter; and (b) for EBITDA, the actual amount for
the
four-quarter period ending on such day, calculated, with respect to Permitted
Acquisitions, on a proforma basis using unadjusted historical
audited and reviewed unaudited financial statements obtained from the seller
(with the EBITDA component thereof broken down by fiscal quarter in the
Borrower’s reasonable judgment).
(B) Minimum
Interest
Expense Coverage Ratio. The Borrower shall maintain a ratio (the
“Interest Expense Coverage Ratio”) for any applicable period of
(a) EBIT for such period to (b) Interest Expense for such period of greater
than
3.00 to 1.00 for each fiscal quarter. The Interest Expense Coverage
Ratio shall be calculated as of the last day of each fiscal quarter for the
four-quarter period ending on such day, calculated, with respect to Permitted
Acquisitions, on a proforma basis using unadjusted historical
audited and reviewed unaudited financial statements obtained from the seller
(with the EBITDA component thereof broken down by fiscal quarter in the
Borrower’s reasonable judgment).
DEFAULTS
8.1 Defaults. Each
of the following occurrences shall constitute a Default under this
Agreement:
(A) Failure
to Make
Payments When Due. The Borrower shall (i) fail to pay when due
any of the Obligations consisting of principal with respect to the Loans 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 Borrower shall fail duly and punctually to
perform or observe any agreement, covenant or obligation binding on the Borrower
or there shall otherwise be a breach of any covenant under:
(i) Sections
7.1
or 7.2 (other than Section 7.2(K)) and such failure or breach
shall continue unremedied for thirty (30) days after the earlier to occur of
(a)
the date on which written notice from the Administrative Agent or any Lender
is
received by the Borrower of such breach and (b) the date on which a member
of
the Senior Management Team of the Borrower or any Subsidiary Guarantor had
knowledge of the existence of such breach or should have known of the existence
of such breach; or
(ii) Sections
7.2(K), 7.3 or 7.4.
(C) Breach
of
Representation or Warranty. Any representation or warranty made
or deemed made by the Borrower to the Administrative Agent or any Lender herein
or by the Borrower or any of its Subsidiaries in any of the other Loan Documents
or in any statement or certificate at any time given by any such Person pursuant
to any of the Loan Documents shall be false or misleading in any material
respect on the date as of which made (or deemed made).
(D) Other
Defaults. The Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered
by
paragraphs (A) or (B) of this Section 8.1), or the Borrower
or any of its Subsidiaries shall default in the performance of or compliance
with any term contained in any of the other Loan Documents, and such default
shall continue for thirty (30) days after the earlier to occur of (a) the date
on which written notice from the Administrative Agent or any Lender is received
by the Borrower of such breach and (b) the date on which a member of the Senior
Management Team of the Borrower or any Subsidiary Guarantor had knowledge of
the
existence of such breach or should have known of the existence of such
breach.
(E) Default
as to
Other Indebtedness. The Borrower or any of its Subsidiaries shall
fail to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), beyond any period of grace
provided, with respect to any Indebtedness (other than Indebtedness hereunder)
which individually or together with other such Indebtedness as to which any
such
failure exists (other than hereunder) constitutes Material Indebtedness; or
any
breach, default or event of default (including any “Amortization Event” or event
of like import in connection with the Receivables Purchase Facility) shall
occur, or any other condition shall exist under any instrument, agreement or
indenture pertaining to any such Material Indebtedness, beyond any period of
grace, if any, provided with respect thereto, if the effect thereof is to cause
an acceleration, mandatory redemption, a requirement that the Borrower or any
of
its Subsidiaries offer to purchase such Material Indebtedness or other required
repurchase of such Material Indebtedness, or permit the holder(s) of such
Material Indebtedness to accelerate the maturity of any such Material
Indebtedness or require a redemption or other repurchase of such Material
Indebtedness; or any such Material Indebtedness shall be otherwise declared
to
be due and payable (by acceleration or otherwise) or required to be prepaid,
redeemed or otherwise repurchased by the Borrower or any of its Subsidiaries
(other than by a regularly scheduled required prepayment) prior to the stated
maturity thereof.
(F) Involuntary
Bankruptcy; Appointment of Receiver, Etc.
(i) An
involuntary case
shall be commenced against the Borrower or any of the Borrower’s Material
Subsidiaries 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 Borrower or any of the Borrower’s Material
Subsidiaries 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 Borrower or any of the Borrower’s Material Subsidiaries
or over all or a substantial part of the property of the Borrower or any of
the
Borrower’s Material Subsidiaries shall be entered; or an interim receiver,
trustee or other custodian of the Borrower or any of the Borrower’s Material
Subsidiaries or of all or a substantial part of the property of the Borrower
or
any of the Borrower’s Material Subsidiaries shall be appointed or a warrant of
attachment, execution or similar process against any substantial part of the
property of the Borrower or any of the Borrower’s Material Subsidiaries shall be
issued and any such event shall not be stayed, dismissed, bonded or discharged
within sixty (60) days after entry, appointment or issuance.
(G) Voluntary
Bankruptcy; Appointment of Receiver, Etc. The Borrower or any of
the Borrower’s Material Subsidiaries (i) shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in
effect, (ii) shall 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) shall 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) shall make any assignment for the benefit of creditors, (v)
shall
take any corporate action to authorize any of the foregoing or (vi) is generally
not paying, or admits in writing its inability to pay, its debts as they become
due.
(H) Judgments
and
Attachments. Any money judgment(s) (other than a money judgment
covered by insurance as to which the insurance company has not disclaimed or
reserved the right to disclaim coverage), writ or warrant of attachment, or
similar process against the Borrower or any of its Subsidiaries or any of their
respective assets involving in any single case or in the aggregate an amount
in
excess of $30,000,000 is or are entered and shall remain undischarged,
unvacated, unbonded or unstayed for a period of sixty (60) days or in any event
later than fifteen (15) days prior to the date of any proposed sale
thereunder.
(I) Dissolution. Any
order, judgment or decree shall be entered against the Borrower 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 Borrower shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement.
(J) Loan
Documents. At any time, for any reason, any Loan Document as a
whole that materially affects the ability of the Administrative Agent, or any
of
the Lenders to enforce the Obligations ceases to be in full force and effect
or
the Borrower or any of the Borrower’s Subsidiaries party thereto seeks to
repudiate its obligations under any Loan Document.
(K) Termination
Event. Any Termination Event occurs which the Required Lenders
believe is reasonably likely to subject either the Borrower or any of its
Subsidiaries to liability individually or in the aggregate in excess of
$30,000,000.
(L) 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 Required Lenders believe the
substantial business hardship upon which the application for the waiver is
based
could reasonably be expected to subject either the Borrower or any of its
Subsidiaries to liability individually or in the aggregate in excess of
$30,000,000.
(M) Change
of
Control. A Change of Control shall occur.
(N) Hedging
Agreements. Nonpayment by the Borrower of any material obligation
under any Hedging Agreement or the breach by the Borrower of any material term,
provision or condition contained in any such Hedging Agreement.
(O) Environmental
Matters. The Borrower or any of its Subsidiaries shall be the
subject of any proceeding or investigation pertaining to (i) the Release by
the
Borrower or any of its Subsidiaries of any Contaminant into the environment,
(ii) the liability of the Borrower or any of its Subsidiaries arising from
the
Release by any other Person of any Contaminant into the environment, or (iii)
any violation of any Environmental, Health or Safety Requirements of Law which
by the Borrower or any of its Subsidiaries, which, in any case, has or is
reasonably likely to subject either the Borrower or its Subsidiaries to
liability individually or in the aggregate in excess of
$30,000,000.
(P) Subsidiary
Guarantor Revocation. Any Subsidiary Guarantor shall terminate or
revoke any of its obligations under the Subsidiary Guaranty or breach any of
the
material terms of such Subsidiary Guaranty.
(Q) Receivables
Purchase Document Events. A “Termination Event” (as defined in
the 2000 Receivables Sale Agreement), an “Amortization Event” (as defined in the
2000 Receivables Purchase Agreement) or any other breach or event of like import
under any replacement Receivables Purchase Documents permitted hereby (any
such
event, a “Receivables Facility Trigger Event”) shall (i) occur
with respect to the conduct or performance of (a) any Originator, (b) any
servicer of the Receivables (so long as such servicer is the Borrower or a
Subsidiary thereof) under the Receivables Purchase Documents, (c) any guarantor
of the obligations of any Originator or servicer under the Receivables Purchase
Documents or (d) any of their respective Subsidiaries other than an SPV and
(ii)
result in the termination of reinvestments of collections or proceeds of
Receivables and Related Security under any agreements evidencing Receivables
Facility Attributed Indebtedness (it being understood and agreed that the
occurrence of a Receivables Facility Trigger Event resulting solely from (x)
the
conduct or performance of an SPV and/or (y) the performance or quality of the
Receivables securing the obligations under the Receivables Purchase Documents,
taken together with the circumstances described in the foregoing clause
(ii), shall not give rise to a Default under this Section
8.1(Q)).
A
Default shall be
deemed “continuing” until cured or until waived in writing in accordance with
Section 9.3.
ACCELERATION,
DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1 Termination
of
Commitments; Acceleration. If any Default described in Section
8.1(F), (G) or (I) occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder (if any) 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 may
terminate or suspend the obligations of the Lenders to make Loans hereunder
(if
any), 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 Borrower expressly
waives.
9.2 [Reserved.]
9.3 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 Borrower 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 Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of each Lender adversely affected thereby
(which shall be deemed to include all Lenders in the case of clauses (iii),
(v),
(vi), (viii) or (ix) below):
(i) Postpone
or extend
the Termination Date or any other date fixed for any payment of principal of,
or
interest on, the Loans or any fees or other amounts payable to such Lender
(other than any modifications of the provisions relating to amounts, timing
or
application of prepayments of the Loans and other Obligations, which
modifications shall require the approval only of the Required
Lenders).
(ii) Reduce
the
principal amount of any Loans, or reduce the rate or extend the time of payment
of interest or fees thereon (other than (a) a waiver of the application of
the
default rate of interest pursuant to Section 2.10 hereof and (b) as a
result of a change in the definition of Leverage Ratio or any of the components
thereof or the method of calculation thereof).
(iii) Reduce
the
percentage specified in the definition of Required Lenders or any other
percentage of Lenders 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”.
(iv) Increase
the amount
of the Commitment of such Lender hereunder or increase such Lender’s Pro Rata
Share.
(v) Permit
the Borrower
to assign its rights under this Agreement.
(vi) Other
than pursuant
to a transaction permitted by the terms of this Agreement, release any guarantor
from its obligations under the Subsidiary Guaranty.
(vii) Waive
or amend any
of the conditions set forth in Section 5.1.
(viii) Amend
Section
12.1 or 12.2.
(ix) Amend
this
Section 9.3.
No
amendment of any
provision of this Agreement relating to the Administrative Agent shall be
effective without the written consent of the Administrative
Agent. The Administrative Agent may waive payment of the fee required
under Section 13.3(B)(iii) without obtaining the consent of any of the
Lenders.
9.4 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 notwithstanding the existence of a Default or the inability
of
the Borrower to satisfy the conditions precedent to such Loan 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 Lenders required pursuant to Section 9.3,
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 all of the Obligations (other than contingent
indemnity obligations) shall have been fully and indefeasibly paid and satisfied
in cash and all financing arrangements among the Borrower and the Lenders shall
have been terminated.
GENERAL
PROVISIONS
10.1 Survival
of
Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive delivery of this Agreement
and the making of the Loans herein contemplated.
10.2 Governmental
Regulation. Anything contained in this Agreement to the contrary
notwithstanding, no Lender shall be obligated to extend credit to the Borrower
in violation of any limitation or prohibition provided by any applicable statute
or regulation.
10.3 Performance
of
Obligations. The Borrower agrees that after the occurrence and
during the continuance of a Default, the Administrative Agent may, but shall
have no obligation to, make any payment or perform any act required of the
Borrower under any Loan Document to the extent the Administrative Agent
determines that such action shall be necessary or advisable in order to protect
or preserve the rights of the Lenders hereunder. The Administrative
Agent shall use its reasonable efforts to give the Borrower notice of any action
taken under this Section 10.3 prior to the taking of such action or
promptly thereafter provided the failure to give such notice shall not affect
the Borrower’s obligations in respect thereof. The Borrower agrees to
pay the Administrative Agent, upon demand, the principal amount of all funds
advanced by the Administrative Agent under this Section 10.3, together
with interest thereon at the rate from time to time applicable to Floating
Rate
Loans from the date of such advance until the outstanding principal balance
thereof is paid in full. If the Borrower fails to make payment in
respect of any such advance under this Section 10.3 within one (1)
Business Day after the date the Borrower receives written demand therefor from
the Administrative Agent, the Administrative Agent shall promptly notify each
Lender and each Lender agrees that it shall thereupon make available to the
Administrative Agent, in Dollars in immediately available funds, the amount
equal to such Lender’s Pro Rata Share of such advance. If such funds
are not made available to the Administrative Agent by such Lender within one
(1)
Business Day after the Administrative Agent’s demand therefor, the
Administrative Agent will be entitled to recover any such amount from such
Lender together with interest thereon at the Federal Funds Effective Rate for
each day during the period commencing on the date of such demand and ending
on
the date such amount is received. The failure of any Lender to make
available to the Administrative Agent its Pro Rata Share of any such
unreimbursed advance under this Section 10.3 shall neither relieve any
other Lender of its obligation hereunder to make available to the Administrative
Agent such other Lender’s Pro Rata Share of such advance on the date such
payment is to be made nor increase the obligation of any other Lender to make
such payment to the Administrative Agent. All outstanding principal
of, and interest on, advances made under this Section 10.3 shall
constitute Obligations subject to the terms of this Agreement until paid in
full
by the Borrower.
10.4 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.
10.5 Entire
Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent and the Lenders
and
supersede all prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter thereof
other than the terms of any prior letters, agreements or understandings which
are expressly stated to survive the execution and delivery of this
Agreement.
10.6 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. 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.
10.7 Expenses;
Indemnification.
(A) Expenses. The
Borrower shall reimburse the Administrative Agent and the Arrangers for any
reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys’ and paralegals’ fees and time charges of attorneys and
paralegals for the Administrative Agent and the Arrangers, which attorneys
and
paralegals may be employees of the Administrative Agent or the Arrangers) paid
or incurred by the Administrative Agent or the Arrangers in connection with
the
preparation, negotiation, execution, delivery, syndication, review, amendment
modification and, after the occurrence and during the continuance of a Default
or an Unmatured Default, administration of the Loan Documents. The
Borrower also agrees to reimburse the Administrative Agent and the Arrangers
and
the Lenders 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 and the Arrangers and the Lenders,
which
attorneys and paralegals may be employees of the Administrative Agent or the
Arrangers or the Lenders) paid or incurred by the Administrative Agent or the
Arrangers or any Lender in connection with the collection of the Obligations
and
enforcement of the Loan Documents; provided, that after the occurrence
and during the continuance of a Default, the Borrower agrees to reimburse the
Administrative Agent, the Arrangers and the Lenders for all such costs and
out-of-pocket expenses, whether or not reasonable.
(B) Indemnity. The
Borrower further agrees to defend, protect, indemnify, and hold harmless the
Administrative Agent, the Syndication Agent, each Arranger and each and all
of
the Lenders and each of their respective Affiliates, and each of the
Administrative Agent’s, Syndication Agent’s or such Arranger’s, Lender’s, or
Affiliate’s respective officers, directors, trustees, investment advisors,
employees, attorneys and agents (including, without limitation, those retained
in connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article V) (collectively, the
“Indemnitees”) from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitees in connection with
any investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by,
or
asserted against such Indemnitees in any manner relating to or arising out
of:
(i) this
Agreement, the
other Loan Documents, or any act, event or transaction related or attendant
thereto, the making of the Loans, the management of such Loans, the use or
intended use of the proceeds of the Loans hereunder, or any of the other
transactions contemplated by the Loan Documents; or
(ii) any
liabilities,
obligations, responsibilities, losses, damages, personal injury, death, punitive
damages, economic damages, consequential damages, treble damages, intentional,
willful or wanton injury, damage or threat to the environment, natural resources
or public health or welfare, costs and expenses (including, without limitation,
attorney, expert and consulting fees and costs of investigation, feasibility
or
remedial action studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent, past, present
or
future relating to violation of any Environmental, Health or Safety Requirements
of Law arising from or in connection with the past, present or future operations
of the Borrower, its Subsidiaries or any of their respective predecessors in
interest, or, the past, present or future environmental, health or safety
condition of any respective property of the Borrower or its Subsidiaries, the
presence of asbestos-containing materials at any respective property of the
Borrower or its Subsidiaries or the Release or threatened Release of any
Contaminant into the environment (collectively, the “Indemnified
Matters”);
provided,
however, the Borrower shall have no obligation to an Indemnitee hereunder
with respect to Indemnified Matters caused by or resulting from the willful
misconduct or gross negligence of such Indemnitee with respect to the Loan
Documents, as determined by the final non-appealed judgment of a court of
competent jurisdiction. If the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it
is
violative of any law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
Each
Indemnitee,
with respect to any action against it in respect of which indemnity may be
sought under this Section, shall give written notice of the commencement of
such
action to the Borrower within a reasonable time after such Indemnitee is made
a
party to such action. Upon receipt of any such notice by the
Borrower, unless such Indemnitee shall be advised by its counsel that there
are
or may be legal defenses available to such Indemnitee that are different from,
in addition to, or in conflict with, the defenses available to the Borrower
or
any of its Subsidiaries, the Borrower may participate with the Indemnitee in
the
defense of such Indemnified Matter, including the employment of counsel
consented to by such Indemnitee (which consent shall not be unreasonably
withheld); provided, however, nothing provided herein shall
entitle (a) the Borrower or any of its Subsidiaries to assume the defense of
such Indemnified Matter or (b) any Indemnitee to effect any settlement in
respect of any indemnified matter without the Borrower’s consent, such consent
not to be unreasonably withheld or delayed.
(C) Waiver
of
Certain Claims; Settlement of Claims. The Borrower further agrees
to assert no claim against any of the Indemnitees on any theory of liability
seeking consequential, special, indirect, exemplary or punitive
damages. No settlement of any claim asserted against or likely to be
asserted against an Indemnitee shall be entered into by the Borrower or any
if
its Subsidiaries with respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transactions evidenced by this
Agreement or the other Loan Documents (whether or not the Administrative Agent
or any Lender or any other Indemnitee is a party thereto) unless such settlement
releases such Indemnitee from any and all liability with respect
thereto.
(D) Survival
of
Agreements. The obligations and agreements of the Borrower under
this Section 10.7 shall survive the termination of this
Agreement.
10.8 Numbers
of
Documents. 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.
10.9 Accounting. Except
as provided to the contrary herein, all accounting terms used herein shall
be
interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles. If any changes in
generally accepted accounting principles are hereafter required or permitted
and
are adopted by the Borrower or any of its Subsidiaries with the agreement of
its
independent certified public accountants and such changes result in a change
in
the method of calculation of any of the financial covenants, tests, restrictions
or standards herein or in the related definitions or terms used therein
(“Accounting Changes”), the parties hereto agree, at the
Borrower’s request, to enter into negotiations, in good faith, in order to amend
such provisions in a credit neutral manner so as to reflect equitably such
changes with the desired result that the criteria for evaluating the Borrower’s
and its Subsidiaries’ financial condition shall be the same after such changes
as if such changes had not been made; provided, however, until
such provisions are amended in a manner reasonably satisfactory to the
Administrative Agent and the Required Lenders, no Accounting Change shall be
given effect in such calculations and all financial statements and reports
required to be delivered hereunder shall be prepared in accordance with
Agreement Accounting Principles without taking into account such Accounting
Changes. In the event such amendment is entered into, all references
in this Agreement to Agreement Accounting Principles shall mean generally
accepted accounting principles as of the date of such amendment.
10.10 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.
10.11 Nonliability
of
Lenders. The relationship between the Borrower 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 Borrower. Neither the
Administrative Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with
any
phase of the Borrower’s business or operations.
10.12 GOVERNING
LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF
OF ITSELF AND THE LENDERS, AT NEW YORK, NEW YORK BY ACKNOWLEDGING AND AGREEING
TO IT THERE. ANY DISPUTE BETWEEN THE 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 GOVERNED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
10.13 CONSENT
TO
JURISDICTION; JURY TRIAL.
(A) EXCLUSIVE
JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), 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 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. THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED
AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH
PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWER OR (2) IN ORDER
TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON ANY
SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
IN
FAVOR OF SUCH PERSON BUT SHALL ONLY BE PERMITTED TO BRING ANY SUCH PERMISSIVE
COUNTERCLAIM IN A PROCEEDING BROUGHT PURSUANT TO CLAUSE
(A). THE 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. THE
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.
(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 10.7 AND THIS SECTION 10.13, WITH ITS
COUNSEL.
10.14 Subordination
of
Intercompany Indebtedness. The Borrower agrees that any and all
claims of the Borrower against any of its Subsidiaries that is a Subsidiary
Guarantor with respect to any “Intercompany Indebtedness” (as hereinafter
defined), any endorser, obligor or any other guarantor of all or any part of
the
Obligations, or against any of its properties shall be subordinate and subject
in right of payment to the prior payment, in full and in cash, of all
Obligations and Hedging Obligations under Hedging Agreements; provided
that, and not in contravention of the foregoing, so long as no Default has
occurred and is continuing the Borrower may make loans to and receive payments
in the ordinary course with respect to such Intercompany Indebtedness from
each
such Subsidiary Guarantor to the extent permitted by the terms of this Agreement
and the other Loan Documents. Notwithstanding any right of the
Borrower to ask, demand, xxx for, take or receive any payment from any
Subsidiary Guarantor, all rights, liens and security interests of the Borrower,
whether now or hereafter arising and howsoever existing, in any assets of any
Subsidiary Guarantor shall be and are subordinated to the rights of the Holders
of Obligations and the Administrative Agent in those assets. The
Borrower shall have no right to possession of any such asset or to foreclose
upon any such asset, whether by judicial action or otherwise, unless and until
all of the Obligations (other than contingent indemnity obligations) and the
Hedging Obligations under Hedging Agreements shall have been fully paid and
satisfied (in cash) and all financing arrangements pursuant to any Loan Document
or Hedging Agreement among the Borrower and the Holders of Obligations (or
any
affiliate thereof) have been terminated. If all or any part of the
assets of any Subsidiary Guarantor, or the proceeds thereof, are subject to
any
distribution, division or application to the creditors of such Subsidiary
Guarantor, whether partial or complete, voluntary or involuntary, and whether
by
reason of liquidation, bankruptcy, arrangement, receivership, assignment for
the
benefit of creditors or any other action or proceeding, or if the business
of
any such Subsidiary Guarantor is dissolved or if substantially all of the assets
of any such Subsidiary Guarantor are sold, then, and in any such event (such
events being herein referred to as an “Insolvency Event”), any
payment or distribution of any kind or character, either in cash, securities
or
other property, which shall be payable or deliverable upon or with respect
to
any indebtedness of any Subsidiary Guarantor to the Borrower
(“Intercompany Indebtedness”) shall be paid or delivered
directly to the Administrative Agent for application on any of the Obligations
and Hedging Obligations under the Hedging Agreements, due or to become due,
until such Obligations and Hedging Obligations (other than contingent indemnity
obligations) shall have first been fully paid and satisfied (in
cash). Should any payment, distribution, security or instrument or
proceeds thereof be received by the Borrower upon or with respect to the
Intercompany Indebtedness after an Insolvency Event prior to the satisfaction
of
all of the Obligations (other than contingent indemnity obligations) and Hedging
Obligations under Hedging Agreements and the termination of all financing
arrangements pursuant to any Loan Document or Hedging Agreement among the
Borrower and the Holders of Obligations (and their affiliates), the Borrower
shall receive and hold the same in trust, as trustee, for the benefit of the
Holders of Obligations and shall forthwith deliver the same to the
Administrative Agent, for the benefit of such Persons, in precisely the form
received (except for the endorsement or assignment of the Borrower where
necessary), for application to any of the Obligations and such Hedging
Obligations, due or not due, and, until so delivered, the same shall be held
in
trust by the Borrower as the property of the Holders of
Obligations. If the Borrower fails to make any such endorsement or
assignment to the Administrative Agent, the Administrative Agent or any of
its
officers or employees are irrevocably authorized to make the
same. The Borrower agrees that until the Obligations (other than the
contingent indemnity obligations) and such Hedging Obligations have been paid
in
full (in cash) and satisfied and all financing arrangements pursuant to any
Loan
Document or Hedging Agreement among the Borrower and the Holders of Obligations
(and their affiliates) have been terminated, the Borrower will not assign or
transfer to any Person (other than the Administrative Agent) any claim the
Borrower has or may have against any Subsidiary Guarantor.
THE
ADMINISTRATIVE AGENT
11.1 Appointment
and
Authorization. Each of the Lenders hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent
to
take such actions on its behalf and to exercise such powers as are delegated
to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
11.2 Administrative
Agent and Affiliates. The bank serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not
the
Administrative Agent, and such bank and its Affiliates may accept deposits
from,
lend money to and generally engage in any kind of business with the Borrower
or
any Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
11.3 Action
by
Administrative Agent and Liability of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary
or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent
is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.3), and (c) except as expressly
set forth herein, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating
to
the Borrower or any of its Subsidiaries that is communicated to or obtained
by
the bank serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.3) or in the absence of
its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower
or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition
set
forth in Article V or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
11.4 Reliance
on
Documents and Counsel. The Administrative Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for
the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
11.5 Employment
of
Agents. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with
the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
11.6 Indemnification. To
the extent that the Borrower fails to pay any amount required to be paid by
it
to the Administrative Agent or the Arrangers under any of the Loan Documents,
including under Section 10.7(A) or (B) of this Agreement but
without affecting the Borrower’s obligations with respect thereto, each Lender
severally agrees to pay to the Administrative Agent or the Arrangers, as the
case may be, ratably in accordance with such Lender’s Pro Rata Share (determined
as of the time that the applicable unreimbursed expense or indemnity payment
is
sought) of such unpaid amount; provided, that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case
may
be, was incurred by or asserted against the Administrative Agent or the
Arrangers, in their respective capacity as such.
11.7 Successor
Agent. Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may
resign at any time by notifying the Lenders and the Borrower. Upon
any such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may,
on
behalf of the Lenders, appoint a successor Administrative Agent which shall
be a
bank with an office in New York, New York, or an Affiliate of any such
bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall 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. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder,
the provisions of this Article and Section 10.7 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
11.8 Credit
Decision. Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based
on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or
thereunder.
11.9 Administrative
Agent, Arrangers, Syndication Agent, Documentation Agents. 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 “Syndication Agent,”
“Documentation Agent” or “Arranger” shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than 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 “Syndication Agent,” “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 agreement set forth in Section
11.8, 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.
SETOFF;
RATABLE PAYMENTS
12.1 Setoff. In
addition to, and without limitation of, any rights of the Lenders under
applicable law, if any Default occurs and is continuing, any indebtedness from
any Lender to the 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.
12.2 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) 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.
12.3 Application
of
Payments. The Administrative Agent shall, unless otherwise
specified at the direction of the Required Lenders which direction shall be
consistent with the last sentence of this Section 12.3, apply all
payments and prepayments in respect of any Obligations received after the
occurrence and during the continuance of a Default or Unmatured Default 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
Borrower;
(B) second,
to
pay interest on and then principal of any advance made under Section 10.3
for which the Administrative Agent has not then been paid by the Borrower or
reimbursed by the Lenders;
(C) third,
to
pay Obligations in respect of any fees, expenses, reimbursements or indemnities
then due to the Administrative Agent;
(D) fourth,
to
pay Obligations in respect of any fees, expenses, reimbursements or indemnities
then due to the Lenders;
(E) fifth,
to
pay interest due in respect of Loans;
(F) sixth,
to
the ratable payment or prepayment of principal outstanding on Loans and Hedging
Obligations under Hedging Agreements; and
(G) seventh,
to
the ratable payment of all other Obligations.
Unless
otherwise
designated (which designation shall only be applicable prior to the occurrence
of a Default) by the Borrower, all principal payments in respect of Loans shall
be applied to the outstanding Loans first, to repay outstanding Floating Rate
Loans, and then to repay outstanding Eurodollar Rate Loans with those
Eurodollar Rate Loans which have earlier expiring Interest Periods being repaid
prior to those which have later expiring Interest Periods. The order
of priority set forth in this Section 12.3 and the related provisions of
this Agreement are set forth solely to determine the rights and priorities
of
the Administrative Agent and the Lenders as among themselves. The
order of priority set forth in clauses (D) through (G) of this
Section 12.3 may at any time and from time to time be changed by
the
Required Lenders without necessity of notice to or consent of or approval by
the
Borrower, or any other Person. The order of priority set forth in
clauses (A) through (C) of this Section 12.3 may be changed
only with the prior written consent of the Administrative Agent.
12.4 Relations
Among
Lenders.
(A) Except
with respect
to the exercise of set-off rights of any Lender in accordance with Section
12.1, the proceeds of which are applied in accordance with this Agreement,
and except as set forth in the following sentence, each Lender agrees that
it
will not take any action, nor institute any actions or proceedings, against
the
Borrower or any other obligor hereunder or with respect to any Loan Document,
without the prior written consent of the Required Lenders or, as may be provided
in this Agreement or the other Loan Documents, at the direction of the
Administrative Agent.
(B) 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. The
Administrative Agent shall have the exclusive right on behalf of the Lenders,
at
the direction of the Required Lenders, to enforce on the payment of the
principal of and interest on any Loan after the date such principal or interest
has become due and payable pursuant to the terms of this Agreement.
12.5 Representations
and Covenants Among Lenders. Each Lender represents and covenants
for the benefit of all other Lenders and the Administrative Agent that such
Lender is not satisfying and shall not satisfy any of its obligations pursuant
to this Agreement with any assets considered for any purposes of ERISA or
Section 4975 of the Code to be assets of or on behalf of any “plan” as defined
in section 3(3) of ERISA or section 4975 of the Code, regardless of whether
subject to ERISA or Section 4975 of the Code.
BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors
and
Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that (i) the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by
the
Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Article XIII. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants (to the extent provided in Section 13.2) and, to the extent
expressly contemplated hereby, the Related Parties of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement. The Administrative Agent may treat the
Person which made any Loan or which holds any note as the owner thereof for
all
purposes hereof unless and until such Person complies with Section 13.3;
provided,however, that the Administrative Agent
may in its discretion (but shall not be required to) follow instructions from
the Person which made any Loan or which holds any note to direct payments
relating to such Loan or note to another Person. Any assignee of the
rights to any Loan or any note agrees by acceptance of such assignment 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 the rights to any
Loan (whether or not a note has been issued in evidence thereof), shall be
conclusive and binding on any subsequent holder or assignee of the rights to
such Loan.
13.2 Participations.
(A) Permitted
Participants; Effect. Any Lender may, without the consent of the
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the
sole
right to enforce this Agreement and to approve any amendment, modification
or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of
the
Participant, agree to any amendment, modification or waiver described in the
proviso to Section 9.3 that adversely affects such
Participant. Subject to paragraph (B) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
4.1, 4.2, 4.3, 4.4 and 4.5 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
Section 13.3. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 12.1 as though it were
a Lender, provided such Participant agrees to be subject to Section 12.2
as though it were a Lender.
(B) Limitation
of
Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 4.1, 4.2 or 4.5
than the applicable Lender would have been entitled to receive with respect
to
the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Non-U.S. Lender if it were a
Lender shall not be entitled to the benefits of Section 4.5 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
4.5 as though it were a Lender.
13.3 Assignments.
(A) Consents. Subject
to the conditions set forth in paragraph (B) below, any Lender may assign to
one
or more assignees (“Purchasers”) all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of: (i) the Borrower;
provided that no consent of the Borrower shall be required for an
assignment to a Purchaser that is a Lender, an Affiliate of a Lender or an
Approved Fund or, if a Default has occurred and is continuing, any other
assignee and (ii) the Administrative Agent.
(B) Conditions. Assignments
shall be subject to the following additional conditions:
(i) except
in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent; provided that no such consent of the Borrower
shall be required if an Event of Default has occurred and is
continuing;
(ii) each
partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement, provided that
this clause shall not be construed to prohibit the assignment of a proportionate
part of all the assigning Lender’s rights and obligations in respect of its
Commitments or Loans;
(iii) the
parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500;
and
(iv) the
assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire in which the assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material
non-public information about the Borrower and its affiliates, the Subsidiary
Guarantors and their related parties or their respective securities) will be
made available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including Federal and
state securities laws.
(C) Effect;
Effective Date. Subject to acceptance and recording thereof
pursuant to paragraph (D) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be
a
party hereto and, to the extent of the interest assigned by such Assignment
and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the
benefits of Sections 4.1, 4.2, 4.3, 4.4, 4.5
and 10.7). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section
13.3 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
Section 13.2.
(D) The
Register. The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation
of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from
time
to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent and
the
Lenders may treat each Person whose name is recorded in the Register pursuant
to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable
time
and from time to time upon reasonable prior notice.
(E) Recording. Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in this Section 13.3 and any
written consent to such assignment required by this Section 13.3, the
Administrative Agent shall accept such Assignment and Assumption and record
the
information contained therein in the Register; provided that if either
the assigning Lender or the assignee shall have failed to make any payment
required to be made by it pursuant to Sections 2.17 or 11.6, the
Administrative Agent shall have no obligation to accept such Assignment and
Assumption and record the information therein in the Register unless and until
such payment shall have been made in full, together with all accrued interest
thereon. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(F) Pledge
to a
Federal Reserve Bank. Any Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement
to
secure obligations of such Lender, including without limitation any pledge
or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee
or
assignee for such Lender as a party hereto.
13.4 Confidentiality. Each
Agent and Lender agrees to maintain the confidentiality of the Information
(as
defined below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
Requirement of Law or by any subpoena or similar legal process, (d) to any
other
party to this Agreement, (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those
of
this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any rating agency, insurer or insurance broker or actual
or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower, its Subsidiaries and their obligations, (g) with
the
consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to any Agent or Lender on a non-confidential basis from a
source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to any Agent or Lender on a non-confidential basis prior to
disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
EACH
LENDER
ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 13.4 FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE
SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING
THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW,
INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL
INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY
CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS AFFILIATES,
THE SUBSIDIARY GUARANTORS (AND THEIR RELATED PARTIES OR THEIR RESPECTIVE
SECURITIES) AND ITS SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS
TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT
MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE
PROCEDURES AND APPLICABLE LAW.
NOTICES
14.1 Giving
Notice.
(a) Except
in the case
of notices and other communications expressly permitted to be given by telephone
(and subject to paragraph (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(i) if
to the Borrower,
to it at 000 Xxxxxxxxx Xxxxxxxxxx Xxxxx, Xx. Xxxxx, XX 00000, Attention of
Xxxxxxx X. Xxx, Vice President and Treasurer (Telecopy No. (000)
000-0000);
(ii) if
to the
Administrative Agent, to it at 00 Xxxxx Xxxxxxxx, Xxxxxxx, XX 00000, Attention
of Xxxxx Xxxxxxxxx (Telecopy No. (000) 000-0000), with a copy to 00 Xxxxx
Xxxxxxxx, Xxxxxxx, XX 00000, Attention of Xxxxxxx Xxxxxxxxxx (Telecopy No.
(000)
000-0000); and
(iii) if
to any other
Lender, to it at its address (or telecopy number) set forth below its signature
hereto.
(b) Notices
and other
communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant to
Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or the Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.
(c) Any
party hereto
may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of
receipt.
14.2 Change
of
Address. The Borrower, 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.
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 Borrower, the Administrative Agent,
the Syndication Agent and the Lenders.
USA
PATRIOT ACT
Each
Lender hereby
notifies each Loan Party that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to obtain, verify and record information
that identifies each Loan Party, which information includes the name and address
of such Loan Party and other information (including all applicable “know your
customer” requirements) that will allow such Lender to identify such Loan Party
in accordance with the Act.
[Remainder
of
This Page Intentionally Blank]
IN
WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have
executed this Agreement as of the date first above written.
[SIGNATURE
PAGES TO BE POSTED SEPARATELY]
|
Status
|
Applicable
Margin
|
|
Level
I
Status
|
0.40%
|
|
Level
II
Status
|
0.50%
|
|
Level
III
Status
|
0.625%
|
|
Level
IV
Status
|
0.75%
|
|
Level
V
Status
|
1.00%
|
“Financials”
means
the annual
or quarterly financial statements of the Borrower delivered pursuant to
Section 7.1(A)(i) and (ii) of the Credit Agreement, as
applicable.
“Level
I Status” exists at any
date if, as of the last day of the fiscal quarter of the Borrower referred
to in
the most recent Financials, the Leverage Ratio is less than or equal to 2.00
to
1.00.
“Level
II Status” exists at
any date if, as of the last day of the fiscal quarter of the Borrower referred
to in the most recent Financials, (i) the Borrower has not qualified for Level
I
Status and (ii) the Leverage Ratio is less than or equal to 2.50 to
1.00.
“Level
III Status” exists at
any date if, as of the last day of the fiscal quarter of the Borrower referred
to in the most recent Financials, (i) the Borrower has not qualified for Level
I
Status or Level II Status and (ii) the Leverage Ratio is less than or equal
to
3.00 to 1.00.
“Level
IV Status” exists at
any date if, as of the last day of the fiscal quarter of the Borrower referred
to in the most recent Financials, (i) the Borrower has not qualified for Level
I
Status, Level II Status or Level III Status and (ii) the Leverage Ratio is
less
than or equal to 3.50 to 1.00.
“Level
V Status” exists at any
date if, as of the last day of the fiscal quarter of the Borrower referred
to in
the most recent Financials, the Borrower has not qualified for Level I Status,
Level II Status, Level III Status or Level IV Status.
“Status”
means
Level I Status,
Level II Status, Level III Status, Level IV Status or Level V
Status.
The
Applicable Margin shall be determined in
accordance with the foregoing table based on the Borrower’s Status as reflected
in the then most recent Financials. Adjustments, if any, to the
Applicable Margin shall be effective five (5) Business Days after the
Administrative Agent has received the applicable Financials. If the
Borrower fails to deliver the Financials to the Administrative Agent at the
time
required pursuant to the Credit Agreement, then the Applicable Margin shall
be
determined based upon Level V Status until five (5) days after such Financials
are so delivered. For the period from the Closing Date until five (5)
Business Days after the Administrative Agent’s receipt of the Financials for the
fiscal quarter ending December 31, 2007, the Applicable Margin shall be
determined based upon Level V Status.
