FOUR YEAR CREDIT AGREEMENT dated as of March 11, 2011 among STANLEY BLACK & DECKER, INC., as Initial Borrower THE BLACK & DECKER CORPORATION, as Subsidiary Guarantor and THE INITIAL LENDERS NAMED HEREIN, as Initial Lenders and CITIBANK, N.A., as...
Exhibit 10.1
EXECUTION COPY
$1,200,000,000
FOUR YEAR CREDIT AGREEMENT
dated as of March 11, 2011
among
XXXXXXX XXXXX & XXXXXX, INC.,
as Initial Borrower
as Initial Borrower
THE BLACK & XXXXXX CORPORATION,
as Subsidiary Guarantor
as Subsidiary Guarantor
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
as Initial Lenders
and
CITIBANK, N.A.,
as Administrative Agent
as Administrative Agent
CITIGROUP GLOBAL MARKETS INC.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED and
X.X. XXXXXX SECURITIES LLC,
as Lead Arrangers and Book Runners
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED and
X.X. XXXXXX SECURITIES LLC,
as Lead Arrangers and Book Runners
BANK OF AMERICA, N.A.,
as Syndication Agent
as Syndication Agent
TABLE OF CONTENTS
Page | ||||
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | 1 | |||
SECTION 1.01 |
Certain Defined Terms | 1 | ||
SECTION 1.02 |
Computation of Time Periods; Terms Generally | 17 | ||
SECTION 1.03 |
Accounting Terms | 17 | ||
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES | 17 | |||
SECTION 2.01 |
The Commitment | 17 | ||
SECTION 2.02 |
Making the Advances | 20 | ||
SECTION 2.03 |
Fees | 23 | ||
SECTION 2.04 |
Continuation and Conversion | 24 | ||
SECTION 2.05 |
Interest on Advances | 24 | ||
SECTION 2.06 |
Additional Interest on Eurocurrency Rate Advances | 25 | ||
SECTION 2.07 |
Repayment; Prepayment of Advances; Etc | 25 | ||
SECTION 2.08 |
Increased Costs | 27 | ||
SECTION 2.09 |
Payments and Computations | 28 | ||
SECTION 2.10 |
Taxes | 30 | ||
SECTION 2.11 |
Promissory Notes | 30 | ||
SECTION 2.12 |
Use of Proceeds of Advances | 30 | ||
SECTION 2.13 |
Defaulting Lenders | 30 | ||
SECTION 2.14 |
Borrowings by Designated Borrowers | 32 | ||
SECTION 2.15 |
European Monetary Union | 34 | ||
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING | 35 | |||
SECTION 3.01 |
Condition Precedent to Effectiveness | 35 | ||
SECTION 3.02 |
Conditions Precedent to Each Advance | 36 | ||
ARTICLE IV REPRESENTATIONS AND WARRANTIES | 36 | |||
SECTION 4.01 |
Representations and Warranties of the Company | 36 | ||
ARTICLE V COVENANTS OF THE COMPANY | 38 | |||
SECTION 5.01 |
Affirmative Covenants | 38 | ||
SECTION 5.02 |
Negative Covenants | 40 | ||
ARTICLE VI EVENTS OF DEFAULT | 42 | |||
SECTION 6.01 |
Events of Default | 42 | ||
ARTICLE VII THE ADMINISTRATIVE AGENT | 44 | |||
SECTION 7.01 |
Appointment and Authority | 44 | ||
SECTION 7.02 |
Administrative Agent Individually | 44 | ||
SECTION 7.03 |
Duties of Administrative Agent; Exculpatory Provisions | 46 |
(i)
Page | ||||
SECTION 7.04 |
Reliance by Administrative Agent | 47 | ||
SECTION 7.05 |
Indemnification | 47 | ||
SECTION 7.06 |
Delegation of Duties | 47 | ||
SECTION 7.07 |
Resignation of Administrative Agent | 48 | ||
SECTION 7.08 |
Non-Reliance on Administrative Agent and Other Parties | 48 | ||
SECTION 7.09 |
No Other Duties, Etc | 49 | ||
ARTICLE VIII MISCELLANEOUS | 49 | |||
SECTION 8.01 |
Amendments, Etc | 49 | ||
SECTION 8.02 |
Notices, Communications and Treatment of Information | 50 | ||
SECTION 8.03 |
No Waiver; Remedies | 55 | ||
SECTION 8.04 |
Costs and Expenses; Breakage Indemnification | 55 | ||
SECTION 8.05 |
Sharing of Payments, Etc | 56 | ||
SECTION 8.06 |
Binding Effect | 56 | ||
SECTION 8.07 |
Assignments and Participations | 57 | ||
SECTION 8.08 |
Limitation on Assignments and Participations | 59 | ||
SECTION 8.09 |
Withholding | 59 | ||
SECTION 8.10 |
Mitigation | 60 | ||
SECTION 8.11 |
Governing Law; Waiver of Jury Trial | 60 | ||
SECTION 8.12 |
Execution in Counterparts | 60 | ||
SECTION 8.13 |
Submission to Jurisdiction; Etc | 60 | ||
SECTION 8.14 |
Judgment Currency | 61 | ||
SECTION 8.15 |
USA PATRIOT Act | 61 | ||
SECTION 8.16 |
No Fiduciary Duty | 62 | ||
ARTICLE IX GUARANTEE | 62 | |||
SECTION 9.01 |
Guarantee; Limitation of Liability | 62 | ||
SECTION 9.02 |
Acknowledgments, Waivers and Consents | 63 | ||
SECTION 9.03 |
Reinstatement | 65 | ||
SECTION 9.04 |
Subrogation | 66 | ||
SECTION 9.05 |
Remedies | 66 | ||
SECTION 9.06 |
Payments | 66 |
SCHEDULE I
|
ADDRESSES, APPLICABLE LENDING OFFICES AND COMMITMENTS | |
SCHEDULE II
|
MANDATORY COST RATE | |
SCHEDULE III
|
DESIGNATED BORROWER JURISDICTIONS | |
EXHIBIT A-1
|
FORM OF RATE REQUEST | |
EXHIBIT A-2
|
FORM OF NOTICE OF BORROWING | |
EXHIBIT B
|
FORM OF NOTICE OF CONVERSION OR CONTINUATION | |
EXHIBIT C-1
|
FORM OF OPINION OF COUNSEL TO THE COMPANY | |
EXHIBIT C-2
|
FORM OF OPINION OF COUNSEL TO THE SUBSIDIARY GUARANTOR | |
EXHIBIT C-3
|
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL TO THE ADMINISTRATIVE AGENT | |
EXHIBIT D
|
FORM OF ASSIGNMENT AND ACCEPTANCE | |
EXHIBIT E
|
FORM OF NOTE | |
EXHIBIT F
|
FORM OF DESIGNATION LETTER | |
EXHIBIT G
|
FORM OF TERMINATION LETTER |
(ii)
FOUR YEAR CREDIT AGREEMENT
This FOUR YEAR CREDIT AGREEMENT (as amended, supplemented or otherwise modified from time to
time, the “Agreement”) is made as of March 11, 2011 between XXXXXXX XXXXX & XXXXXX, INC., a
Connecticut corporation (the “Company”), THE BLACK & XXXXXX CORPORATION, a Maryland
corporation (the “Subsidiary Guarantor”), the banks, financial institutions and other
institutional lenders (the “Initial Lenders”) listed on the signature pages hereof, and
CITIBANK, N.A. (“Citibank”), as administrative agent (in such capacity, the
“Administrative Agent”) for the Lenders (as hereinafter defined).
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
“Acquiring Person” means any person (other than the ESOP) who is or becomes the
beneficial owner, directly or indirectly, of 10% or more of the Company’s outstanding common stock.
“Additional Commitment Agreement” has the meaning provided in Section 2.01(C)(ii).
“Additional Commitment Lender” has the meaning provided in Section 2.01(C)(ii).
“Administrative Agent’s Account” means, with respect to any Currency, the account of
the Administrative Agent maintained by the Administrative Agent for such Currency and most recently
designated by it by notice to the Lenders and the Company.
“Advance” means an advance by a Lender to a Borrower as part of a Borrowing and refers
to a Base Rate Advance or a Eurocurrency Rate Advance, each of which shall be a “Type” of
Advance. For the purposes of determining the unutilized amount of each Lender’s Commitment at any
time, the amount of each Advance of such Lender that is outstanding in an Alternate Currency shall
be deemed to be the Dollar Equivalent of the amount of such Advance.
“Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Agent’s Group” has the meaning provided in Section 7.02(b).
“Alternate Currencies” means Euros and Pounds Sterling.
“Applicable Base Rate Margin” means, on any day, a rate per annum equal to the higher
of (a) the Applicable Eurocurrency Margin for such day minus 1.00% and (b) 0.00%.
“Applicable Commitment Fee Rate” means, on any date, a rate per annum equal to
(i) 0.080% if on such date the Company’s outstanding Long-Term Indebtedness is rated A+ or
higher by Standard & Poor’s, A1 or higher by Moody’s, or A+ or higher by Fitch,
(ii) 0.100% if on such date clause (i) is inapplicable and the Company’s outstanding Long-Term
Indebtedness is rated A or higher by Standard & Poor’s, A2 or higher by Moody’s, or A or higher by
Fitch,
(iii) 0.125% if on such date clauses (i) and (ii) are inapplicable and the Company’s
outstanding Long-Term Indebtedness is rated A- or higher by Standard & Poor’s, A3 or higher by
Moody’s, or A- or higher by Fitch,
(iv) 0.175% if on such date clauses (i), (ii) and (iii) are inapplicable and the Company’s
outstanding Long-Term Indebtedness is rated BBB+ or higher by Standard & Poor’s, Baa1 or higher by
Moody’s, or BBB+ or higher by Fitch, and
(v) 0.200% if on such date clauses (i), (ii), (iii) and (iv) are inapplicable (including if
such Long-Term Indebtedness is no longer rated by any agency);
provided that if the respective levels of the Company’s outstanding Long-Term Indebtedness
credit ratings differ, the “Applicable Commitment Fee Rate” will be determined based on, (a) if two
of the ratings are at the same level and the other rating is higher or lower than those same
ratings, the level corresponding to the two same ratings shall apply and (b) if each of the three
ratings falls within different levels, then the level corresponding to the rating that is in
between the highest and the lowest ratings shall apply.
“Applicable Eurocurrency Margin” means, on any date for each Eurocurrency Rate
Advance, the rate per annum equal to the Credit Default Swap Spread on the applicable Spread
Determination Date; provided, that the Applicable Eurocurrency Margin shall in no event be less
than a rate per annum equal to the Floor or greater than a rate per annum equal to the Cap.
“Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of a Base Rate Advance and such Lender’s Eurocurrency Lending Office in
the case of a Eurocurrency Rate Advance.
“Applicable Restructuring Charge” means, for any Restructuring Period falling in the
Company’s fiscal year 2010, 2011, 2012, or 2013, amounts relating to one or more of the following:
(i) restructuring charges, including, without limitation, the effect of reconstruction,
recommissioning or reconfiguration of fixed assets for alternative uses, store closure, office
closure, plant closure, facility consolidations, downsizing, shutdown costs (including future lease
commitments and contract termination costs with respect thereto), curtailments or modifications to
pension and post-retirement employee benefit plans, retention, severance, system establishment
costs, and acquisition integration costs; (ii) change of control payments and transaction fees;
(iii) performance-based bonus payments to Xxxxx Xxxxxxxxx; (iv) all expenses and charges related to
any stock based compensation; (v) non-cash inventory step-up charges; and (vi) liabilities under
Section 280G of the Internal Revenue Code and gross-ups related thereto; provided that the sum of
the Applicable Restructuring Charges for all of the
Four Year Credit Agreement
2
Restructuring Periods in the Company’s fiscal
years 2010, 2011, 2012, and 2013 will not exceed $1,200,000,000 in the aggregate, of which not more
than $900,000,000 is cash.
“Approved Electronic Communications” means each Communication that any Loan Party is
obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant to any Loan
Document or the transactions contemplated therein, including any financial statement, financial and
other report, notice, request, certificate and other information material; provided,
however, that, solely with respect to delivery of any such Communication by any Loan Party to the
Administrative Agent and without limiting or otherwise affecting either the Administrative Agent’s
right to effect delivery of such Communication by posting such Communication to the Approved
Electronic Platform or the protections afforded hereby to the Administrative Agent in connection
with any such posting, “Approved Electronic Communication” shall exclude (i) any notice of
borrowing, letter of credit request, swing loan request, notice of conversion or continuation, and
any other notice, demand, communication, information, document and other material relating to a
request for a new, or a conversion or continuation of an existing, Borrowing, (ii) any notice
pursuant to Section 2.07(a) and Section 2.07(b) and any other notice relating to the payment of any
principal or other amount due under any Loan Document prior to the scheduled date therefor,
(iii) all notices of any Default or Event of Default and (iv) any notice, demand, communication,
information, document and other material required to be delivered to satisfy any of the conditions
set forth in Article 3 or any other condition to any Borrowing or other extension of credit
hereunder or any condition precedent to the effectiveness of this Agreement.
“Approved Electronic Platform” has the meaning provided in Section 8.02(b).
“Assignment and Acceptance” means an assignment and acceptance accepted by the
Administrative Agent in substantially the form of Exhibit D hereto.
“Attributable Debt” means, in respect of any lease transaction described in Section
5.02(c), as of the date of determination, the lesser of (i) the sale price of the property so
leased multiplied by a fraction the numerator of which is the remaining portion of the base term of
the lease included in such transaction and the denominator of which is the base term of such lease,
and (ii) the total obligation (discounted to present value at the implicit interest factor,
determined in accordance with generally accepted financial practice, included in the rental
payments or, if such interest factor cannot readily be determined, at a rate of interest of 10% per
annum, compounded semi-annually) of the lessee for rental payments (other than amounts required to
be paid on account of property taxes as well as maintenance, repairs, insurance, water rates and
other items which do not constitute payments for property rights) during the remaining portion of
the base term of the lease included in such transaction.
“Base Rate” means a fluctuating interest rate per annum as shall be in effect from
time to time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by the Reference Bank in New York, New
York, from time to time, as its base rate;
(b) 1/2 of one percent per annum above the Federal Funds Rate; and
(c) the rate equal to the Eurocurrency Rate for a Dollar denominated Advance having an
Interest Period of one month determined for each day that a Base Rate Loan is
Four Year Credit Agreement
3
outstanding
(and in respect of any day that is not a London Banking Day, such rate as in effect on the
immediately preceding London Banking Day) plus 1.00% per annum.
“Base Rate Advance” means an Advance denominated in Dollars that bears interest as
provided in Section 2.05(a).
“Borrowers” means, collectively, the Company and each Designated Borrower.
“Borrowing” means a borrowing consisting of simultaneous Advances of the same Type
made by each of the Lenders to a Borrower pursuant to Section 2.01.
“Business Day” means a day of the year (a) on which banks are not required or
authorized to close in New York City, (b) if the applicable Business Day relates to any
Eurocurrency Rate Advances, on which dealings in Dollars are carried on in the London interbank
market, (c) if such day relates to a Borrowing of, or a payment or prepayment of principal of or
interest on or an Interest Period for an Advance denominated in Pounds Sterling, or a notice with
respect thereto, that is also a day on which commercial banks and foreign exchange markets settle
payments in London, and (d) if such day relates to a Borrowing of, or a payment or prepayment of
principal of or interest on or an Interest Period for an Advance denominated in Euros, or a notice
with respect thereto, that is also a Target Operating Day.
“Cap” means, on any date, a rate per annum equal to
(i) 1.000% if on such date the Company’s outstanding Long-Term Indebtedness is rated A+ or
higher by Standard & Poor’s, A1 or higher by Moody’s, or A+ or higher by Fitch,
(ii) 1.125% if on such date clause (i) is inapplicable and the Company’s outstanding Long-Term
Indebtedness is rated A or higher by Standard & Poor’s, A2 or higher by Moody’s, or A or higher by
Fitch,
(iii) 1.500% if on such date clauses (i) and (ii) are inapplicable and the Company’s
outstanding Long-Term Indebtedness is rated A- or higher by Standard & Poor’s, A3 or higher by
Moody’s, or A- or higher by Fitch,
(iv) 1.750% if on such date clauses (i), (ii) and (iii) are inapplicable and the Company’s
outstanding Long-Term Indebtedness is rated BBB+ or higher by Standard & Poor’s, Baa1 or higher by
Moody’s, or BBB+ or higher by Fitch, and
(v) 2.250% if on such date clauses (i), (ii), (iii) and (iv) are inapplicable (including if
such Long-Term Indebtedness is no longer rated by any agency);
provided that if the respective levels of the Company’s outstanding Long-Term Indebtedness
credit ratings differ, the “Cap” will be determined based on, (a) if two of the ratings are at the
same level and the other rating is higher or lower than those same ratings, the level corresponding
to the two same ratings shall apply and (b) if each of the three ratings falls within different
levels, then the level corresponding to the rating that is in between the highest and the lowest
ratings shall apply.
Four Year Credit Agreement
4
“Capital Lease” means any lease of property, real or personal, the obligations under
which are capitalized on the consolidated balance sheet of the Company and its Subsidiaries.
“Change of Control” means, with respect to the Company, the occurrence of any event,
act or condition which results in either (i) any Person other than the ESOP becoming the beneficial
owner, directly or indirectly, of 30% or more of the outstanding common stock of the Company or
(ii) individuals who constitute the Continuing Directors ceasing for any reason to constitute at
least the majority of the Board of Directors of the Company.
“Citibank” has the meaning specified in the first paragraph of this Agreement.
“Commitment” means, with respect to any Lender, the amount specified opposite such
Lender’s name on Schedule I hereto or, if such Lender has entered into any Assignment and
Acceptance or Additional Commitment Agreement, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 8.07(d), as such amount may be increased or reduced
pursuant to Sections 2.01(b), 2.01(c) and 2.01(d). The aggregate amount of the Commitments on the
date hereof is $1,200,000,000.
“Communications” means each notice, demand, communication, information, document and
other material provided for hereunder or under any other Loan Document or otherwise transmitted
between the parties hereto relating to this Agreement, the other Loan Documents, any Loan Party or
its Affiliates, or the transactions contemplated by this Agreement or the other Loan Documents
including, without limitation, all Approved Electronic Communications.
“Consolidated Net Worth” means the excess over current liabilities of all assets
properly appearing on a consolidated balance sheet of the Company and its Subsidiaries after
deducting the minority interests of others in Subsidiaries.
“Consolidated Subsidiary” means at any date any Subsidiary or other entity the
financial statements of which would, under GAAP, be consolidated with those of the Company in its
consolidated financial statements as of such date.
“Contingent Obligation” as to any Person means any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations
(“primary obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of any such primary obligation or (y) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal
to the stated or determinable amount of the primary obligation in respect of which such Contingent
Obligation is
Four Year Credit Agreement
5
made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
“Continuing Director” means any member of the Board of Directors of the Company who is
not affiliated with an Acquiring Person and who is a member of the Board of Directors of the
Company immediately prior to the time that the Acquiring Person became an Acquiring Person and any
successor to a Continuing Director who is not affiliated with the Acquiring Person and is
recommended to succeed a Continuing Director by a majority of Continuing Directors who are then
members of the Board of Directors of the Company.
“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Credit Default Rate Spread” means the lower of (a) the credit default swap mid-rate
spread of the Company interpolated from the applicable Spread Determination Date to the latest
Extended Termination Date (or, if the period from such Spread Determination Date to the latest
Extended Termination Date is less than one year, then the one-year credit default swap mid-rate
spread of the Company), and (b) the credit default swap mid-rate spread of the Company that is
five (5) years from the applicable Spread Determination Date (“5 Year CDS”), if any; in
each case established on the most recent Spread Determination Date and based on the credit default
swap mid-rate spreads specified by Markit Group Ltd., determined on the Spread Determination Date.
For the avoidance of doubt, in the event there is no 5 Year CDS, then the “Credit Default Rate
Spread” shall be as determined in clause (a) above.
If at any time the Credit Default Rate Spread cannot be determined or is otherwise
unavailable, the Company and the Required Lenders shall negotiate in good faith (for a period of up
to thirty days after the Credit Default Rate Spread first becomes unavailable (such thirty-day
period, the “Negotiation Period”)) to agree on an alternative method for establishing the
Credit Default Rate Spread. The Credit Default Rate Spread at any date of determination thereof
which falls during the Negotiation Period shall be based upon the then most recently available
quote provided by Markit Group Limited (or any successor thereto) of the Credit Default Swap
Spread. If no such alternative method is agreed upon during the Negotiation Period, the Credit
Default Rate Spread at any date of determination subsequent to the end of the Negotiation Period
shall be a rate per annum equal to the applicable Cap.
“Currency” means either Dollars or an Alternate Currency.
“Current Termination Date” has the meaning provided in Section 2.01(d)(i).
“Declining Lender” has the meaning provided in Section 2.01(d)(ii).
“Default” means an event which would constitute an Event of Default but for the giving
of notice, the lapse of time or both.
“Defaulting Lender” means at any time, subject to Section 2.13(c), (i) any Lender that
has failed for two or more Business Days to comply with its obligations under this Agreement to
make an Advance, unless such Lender has notified the Administrative Agent and
Four Year Credit Agreement
6
the Borrower in
writing that such failure is the result of such Lender’s determination that one or more conditions
precedent to funding has not been satisfied (which conditions precedent, together with the
applicable default, if any, will be specifically identified in such writing), (ii) any Lender that
has notified the Administrative Agent or the Company in writing, or has stated publicly, that it
does not intend to comply with its funding obligations hereunder, (iii) any Lender that has
defaulted on its funding obligations under other loan agreements or credit agreements generally or
that has notified, or whose Parent Company has notified, the Administrative Agent or the Company in
writing, or has stated publicly, that it does not intend to comply with its funding obligations
under loan agreements or credit agreements generally, (iv) any Lender that has, for three or more
Business Days after written request of the Administrative Agent or the Company, failed to confirm
in writing to the Administrative Agent and the Company that it will comply with its prospective
funding obligations hereunder (provided that such Lender will cease to be a Defaulting Lender
pursuant to this clause (iv) upon the Administrative Agent’s and the Company’s receipt of such
written confirmation), or (v) any Lender with respect to which a Lender Insolvency Event has
occurred and is continuing with respect to such Lender or its Parent Company. Any determination by
the Administrative Agent that a Lender is a Defaulting Lender under any of clauses (i) through (v)
above will be conclusive and binding absent manifest error, and such Lender will be deemed to be a
Defaulting Lender (subject to Section 2.13(c)) upon notification of such determination by the
Administrative Agent to the Company and the Lenders.
“Designated Borrowers” means any Subsidiary of the Company as to which a Designation
Letter has been delivered to the Administrative Agent in accordance with and together with the
other documents required by Section 2.14, and no Termination Letter has been delivered to the
Administrative Agent thereunder.
“Designation Letter” has the meaning provided in Section 2.l4.
“Dollar Equivalent” means, with respect to any amount denominated in an Alternate
Currency on any date, the amount of Dollars that would be required to purchase such amount of such
Alternate Currency at or about 11:00 A.M. (Local Time) on such date, for delivery two Business Days
later, as determined by the Administrative Agent on the basis of the spot selling rate for the
offering of such Alternate Currency for Dollars in the London foreign exchange market,
determinations thereof made in good faith by the Administrative Agent to be conclusive and binding
on the parties in the absence of manifest error.
“Dollars” and “$” mean lawful money of the United States of America.
“Domestic Lending Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the
Assignment and Acceptance or the Additional Commitment Agreement pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time to time specify in writing
to the Company and the Administrative Agent.
“EBITDA” means, for any period, the sum (without duplication) for the Company and its
Consolidated Subsidiaries on a consolidated basis of the following: (a) net income for such period
plus (b) to the extent deducted in determining net income for such period, the sum of (i)
depreciation and amortization for such period, (ii) Interest Expense for such period and (iii)
taxes for such period. Notwithstanding the foregoing, (1) in calculating EBITDA for any period
Four Year Credit Agreement
7
that includes one or more Restructuring Periods, EBITDA shall be increased by an amount equal to
the Applicable Restructuring Charges for any such Restructuring Periods, (2) in calculating EBITDA
for any period, any impairment charges or asset write-offs, in each case pursuant to Financial
Accounting Standards Board’s Staff Position Accounting Principles Board Opinion No. 144
(“Accounting for the Impairment or Disposal of Long-Lived Assets (Issued 8/01)”), shall be
excluded, (3) in calculating EBITDA for any period, non-cash charges arising from purchase
accounting adjustments (including the effects of such adjustments pushed down to such Person and
its Subsidiaries) in component amounts required or permitted by GAAP, resulting from the write-up
of assets or application of purchase accounting in relation to any consummated acquisition or the
amortization, depreciation, or write-off of any amounts thereof, net of taxes, shall be excluded,
and (4) in calculating EBITDA for any period, charges associated with stock-based compensation
shall be excluded. For the purpose of calculating EBITDA for any period following the acquisition
of The Black & Xxxxxx Corporation, EBITDA for such period shall be calculated after giving pro
forma effect to such acquisition as if such acquisition occurred on the first day of such period.
“Effective Date” has the meaning provided in Section 3.01.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, or any successors thereto, and the regulations promulgated and the rulings found
thereunder.
“ERISA Controlled Group” means a group consisting of any ERISA Person and all members
of a controlled group of corporations and all trades or businesses (whether or not incorporated)
under common control with such Person that, together with such Person, are treated as a single
employer under regulations promulgated under ERISA.
“ERISA Person” has the meaning provided in Section 3(9) of ERISA for the term
“person.”
“ERISA Plan” means (i) any Plan that (x) is not a Multiemployer Plan and (y) has
Unfunded Benefit Liabilities in excess of $20,000,000 and (ii) any Plan that is a Multiemployer
Plan.
“ESOP” means Xxxxxxx Account Value Plan or any successor plan.
“Euro” has the meaning provided in Section 2.15.
“Eurocurrency Liabilities” has the meaning provided in Regulation D (or any successor
regulation) of the Federal Reserve Board, as in effect from time to time.
“Eurocurrency Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Eurocurrency Lending Office” opposite its name on Schedule I hereto or in
the Assignment and Acceptance or the Additional Commitment Agreement pursuant to which it became a
Lender (or, if no such office of such Lender is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time specify in writing to the Company
and the Administrative Agent.
“Eurocurrency Rate” means, for any Interest Period:
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8
(a) for each Eurocurrency Rate Advance denominated in Dollars comprising part of the same
Borrowing, an interest rate per annum equal to the offered rate for deposits in such Currency as
quoted on the relevant Screen Page at 11:00 A.M. (London time) two London Banking Days before the
first day of such Interest Period in an amount substantially equal to the Reference Bank’s
Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period;
(b) for each Eurocurrency Rate Advance denominated in Pounds Sterling comprising part of the
same Borrowing, (i) an interest rate per annum equal to the offered rate for deposits in such
Currency as quoted on the relevant Screen Page at 11:00 A.M. (London time) on the first day of such
Interest Period, for a period equal to such Interest Period plus (ii) the MCR Cost, if
any; or
(c) for each Eurocurrency Rate Advance denominated in Euros comprising part of the same
Borrowing, (i) an interest rate per annum equal to the offered rate for deposits in such Currency
as quoted on the relevant Screen Page at 11:00 A.M. (Brussels time) two TARGET Days before the
first day of such Interest Period, for a period equal to such Interest Period plus (ii) the
MCR Cost, if any.
“Eurocurrency Rate Advance” means an Advance that bears interest as provided in
Section 2.05(b).
“Eurocurrency Rate Reserve Percentage” for any Lender for any Eurocurrency Rate
Advances owing to such Lender means the reserve percentage applicable two Business Days before the
first day of the applicable Interest Period under regulations issued from time to time by the
Federal Reserve Board for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement) for such Lender with
respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term
equal to the applicable Interest Period.
“Events of Default” has the meaning provided in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended form time to
time, and the rules and regulations promulgated thereunder from time to time in effect.
“Excluded Representation” means the representation and warranty set forth in
Section 4.01(g).
“Existing Credit Agreements” means (a) the Amended and Restated Credit Agreement dated
as of February 27, 2008, as amended, among the Company, the lenders parties thereto and Citibank,
N.A., as administrative agent, and (b) the 364-Day Credit Agreement dated as of March 12, 2010
among the Company, the Subsidiary Guarantor, the lenders parties thereto and Citibank, N.A., as
administrative agent.
“Extended Termination Date” has the meaning provided in Section 2.01(d)(i).
“Federal Bankruptcy Code” means Title 11 of the United States Code entitled
“Bankruptcy”, as amended from time to time, or any successor thereto.
Four Year Credit Agreement
9
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve Board arranged by Federal fund brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such transactions received by the
Reference Bank from three Federal funds brokers of recognized standing selected by the Reference
Bank.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System as
constituted from time to time.
“Fitch” means Fitch Ratings Ltd. and any successor or successors thereto.
“Floor” means, on any date, a rate per annum equal to
(i) 0.250% if on such date the Company’s outstanding Long-Term Indebtedness is rated A+ or
higher by Standard & Poor’s, A1 or higher by Moody’s, or A+ or higher by Fitch,
(ii) 0.375% if on such date clause (i) is inapplicable and the Company’s outstanding Long-Term
Indebtedness is rated A or higher by Standard & Poor’s, A2 or higher by Moody’s, or A or higher by
Fitch,
(iii) 0.500% if on such date clauses (i) and (ii) are inapplicable and the Company’s
outstanding Long-Term Indebtedness is rated A- or higher by Standard & Poor’s, A3 or higher by
Moody’s, or A- or higher by Fitch,
(iv) 0.750% if on such date clauses (i), (ii) and (iii) are inapplicable and the Company’s
outstanding Long-Term Indebtedness is rated BBB+ or higher by Standard & Poor’s, Baa1 or higher by
Moody’s, or BBB+ or higher by Fitch, and
(v) 1.000% if on such date clauses (i), (ii), (iii) and (iv) are inapplicable (including if
such Long-Term Indebtedness is no longer rated by any agency);
provided that if the respective levels of the Company’s outstanding Long-Term Indebtedness
credit ratings differ, the “Floor” will be determined based on, (a) if two of the ratings are at
the same level and the other rating is higher or lower than those same ratings, the level
corresponding to the two same ratings shall apply and (b) if each of the three ratings falls within
different levels, then the level corresponding to the rating that is in between the highest and the
lowest ratings shall apply.
“Foreign Currency Equivalent” means, with respect to any amount in Dollars, the amount
of an Alternate Currency that could be purchased with such amount of Dollars using the reciprocal
of the foreign exchange rate specified in the definition of “Dollar Equivalent”, as determined by
the Administrative Agent, such determinations to be conclusive and binding on the parties in the
absence of manifest error.
“Foreign Currency Sublimit” means the aggregate principal amount of Advances
denominated in Alternate Currencies permitted to be outstanding at any one time, as such
Four Year Credit Agreement
10
amount may
be increased pursuant to Section 2.01(c). The Foreign Currency Sublimit on the date hereof is
$400,000,000.
“GAAP” means United States generally accepted accounting principles as in effect from
time to time.
“Guarantors” means, collectively, the Company and the Subsidiary Guarantor.
“Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts and other
similar agreements.
“Indebtedness” of any Person means, without duplication, (i) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or services (other than
trade payables incurred in the ordinary course of business of such Person), (ii) all indebtedness
of such Person evidenced by a note, bond, debenture or similar instrument, (iii) the principal
component of all Capital Lease obligations of such Person, (iv) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all unreimbursed amounts
drawn thereunder, (v) all indebtedness of any other Person secured by any Lien on any property
owned by such Person, whether or not such indebtedness has been assumed, (vi) all Contingent
Obligations of such Person, and (vii) all indebtedness of such Person in respect of Hedge
Agreements.
“Information” has the meaning provided in Section 8.02(d).
“Information Memorandum” means the document in the form approved by the Company
concerning the Loan Parties and their Subsidiaries which, at the Company’s request and on its
behalf, was prepared in relation to this transaction and distributed by the Lead Arrangers to
selected financial institutions before the date of this Agreement.
“Initial Lenders” has the meaning provided in the first paragraph of this Agreement.
“Interest Coverage Ratio” means, for any period of four consecutive fiscal quarters,
the ratio of (a) EBITDA for such period to (b) Interest Expense for such period.
“Interest Expense” means, for any period, the sum (determined without duplication) of
the aggregate amount of interest reported in respect of such period on the Indebtedness of the
Company and its Consolidated Subsidiaries on a consolidated basis, including, without limitation,
the interest portion of payments under Capital Lease obligations and any capitalized interest but
excluding imputed (non-cash) interest expense in respect of convertible bonds issued by the Company
or any of its Consolidated Subsidiaries as calculated in accordance with the Financial Accounting
Standards Board’s Staff Position Accounting Principles Board Opinion No. 14-1 (“Accounting for
Convertible Debt Instruments That May be Settled in Cash upon Conversion (Including Partial Cash
Settlement)”), minus (i) interest income of the Company and its Consolidated Subsidiaries
on a consolidated basis reported in respect of such period, (ii) interest on deferred compensation
reported in respect of such period, and (iii) any income/expense in respect of such period
associated with spot-to-forward differences or points on foreign currency trades that are included
in interest income/expense as a result of Statement of Financial Accounting Standards No. 133, as
amended and interpreted. For the
Four Year Credit Agreement
11
purpose of calculating Interest Expense for any period following
the acquisition of The Black & Xxxxxx Corporation, Interest Expense for such period shall be
calculated after giving pro forma effect to such acquisition as if such acquisition occurred on the
first day of such period.
“Interest Period” means, for each Eurocurrency Rate Advance comprising part of the
same Borrowing, the period commencing on the date of such Advance or the date of the continuation
of such Eurocurrency Rate Advance or the date of the conversion of any Base Rate Advance into such
Eurocurrency Rate Advance and ending on the last day of the period selected by a Borrower pursuant
to the provisions below. The duration of each such Interest Period shall be one, two, three or six
months as a Borrower may select in the Notice of Borrowing or Notice of Conversion or Continuation
for such Advance, as the case may be; provided that:
(i) a Borrower may not select any Interest Period which ends after the latest Extended
Termination Date;
(ii) whenever the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day; provided that if such extension would cause the last
day of such Interest Period to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall, subject to clause (iv) below, end on the last
Business Day of a calendar month;
(iv) any Interest Period which would otherwise end after the latest Extended
Termination Date shall end on such Extended Termination Date;
(v) if, upon the expiration of any Interest Period with respect to a Borrowing, a
Borrower has failed to elect a new Interest Period to be applicable to such Advances as
provided above, such Borrower (x) if such Borrower is the Company, shall be deemed to have
elected to convert such Advances into a Base Rate Advance effective as of the expiration
date of such current Interest Period and (y) if such Borrower is a Designated Subsidiary,
shall be deemed to have elected a new Interest Period of 1 month to be applicable to such
Advances; and
(vi) Interest Periods commencing on the same date for Eurocurrency Rate Advances
comprising part of the same Borrowing shall be of the same duration.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time
to time, or any successor thereto.
“Lender Appointment Period” has the meaning provided in Section 7.07.
“Lender Insolvency Event” means that (i) a Lender or its Parent Company is insolvent,
or is generally unable to pay its debts as they become due, or admits in writing its inability to
pay its debts as they become due, or makes a general assignment for the benefit of its creditors,
or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency,
Four Year Credit Agreement
12
reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor
or sequestrator or the like has been appointed for such Lender or its Parent Company, or such
Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or
acquiescence in any such proceeding or appointment.
“Lenders” means the Initial Lenders and each Person that shall become a party hereto
pursuant to Section 2.01(c), 2.01(d) or 8.07.
“Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preferential payment arrangement, priority
or other security agreement of any kind or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement, any financing lease having substantially the
same effect as any of the foregoing and the filing of any financing statement or similar instrument
under the Uniform Commercial Code or comparable law of any jurisdiction, domestic or foreign.
“Loan Documents” means, collectively, this Agreement, the Notes, each Designation
Letter and each Termination Letter.
“Loan Parties” means, collectively, the Borrowers and the Guarantors.
“Local Time” means (a) with respect to any Advance denominated or any payment to be
made in Dollars, New York City time, and (b) with respect to any Advance denominated or any payment
to be made in an Alternate Currency, the local time in the Principal Financial Center for such
Alternate Currency.
“London Banking Day” means any day on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits) in London.
“Long-Term Indebtedness” means the long-term Senior Unsecured Indebtedness of the
Company.
“Margin Stock” has the meaning provided in Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
“Material Adverse Effect” means a material adverse effect on the business, financial
condition or results of operations of the Company and its Consolidated Subsidiaries taken as a
whole.
“MCR Cost” means, the percentage rate per annum calculated by the Administrative Agent
in accordance with Schedule II.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor or successors
thereto.
“Multiemployer Plan” means a Plan which is a “multiemployer plan” as defined in
Section 4001(a)(3) of ERISA.
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender.
Four Year Credit Agreement
13
“Note” has the meaning provided in Section 2.11.
“Notice of Borrowing” has the meaning provided in Section 2.02(b).
“Notice of Conversion or Continuation” has the meaning provided in Section 2.04(b).
“Other Taxes” has the meaning provided in Section 2.10(b).
“Parent Company” means, with respect to a Lender, the bank holding company (as defined
in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of such Lender.
“PBGC” means the Pension Benefit Guaranty Corporation established under ERISA, or any
successor thereto.
“Person” means an individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency thereof.
“Plan” means any employee benefit plan covered by Title IV of ERISA, the funding
requirements of which:
(i) were the responsibility of the Company or a member of its ERISA Controlled Group
at any time within the five years immediately preceding the date hereof,
(ii) are currently the responsibility of the Company or a member of its ERISA
Controlled Group, or
(iii) hereafter become the responsibility of the Company or a member of its ERISA
Controlled Group, including any such plans as may have been, or may hereafter be, terminated
for whatever reason.
“Pounds Sterling” means the lawful currency of the United Kingdom.
“Principal Financial Center” means, in the case of any Currency, the principal
financial center in the country of issue of such Currency, as reasonably determined by the
Administrative Agent.
“Principal Property” means all real property and tangible personal property
constituting a manufacturing plant owned by the Company or any of its Subsidiaries, exclusive of
(i) motor vehicles, mobile materials handling equipment and other rolling stock, (ii) office
furnishings and equipment, information and electronic data processing equipment, (iii) any property
financed through obligations issued by a state, territory or possession of the United States, or
any political subdivision or instrumentality of the foregoing, on which the interest cannot, in the
opinion of tax counsel of recognized standing or in accordance with a ruling issued by the Internal
Revenue Service, be included in gross income of the holder under Section 103(a)(1) of the Internal
Revenue Code (or any successor to such provision) as in effect at the time of the issuance of such
obligations, (iv) any real property held for development or sale, or (v) any property and equipment
included therein without deduction of any depreciation reserves
Four Year Credit Agreement
14
the book value of which property
and equipment in the aggregate is less than 10% of Consolidated Net Worth or which the Board of
Directors of the Company determines is not material to the operation of the business of the Company
and its Subsidiaries taken as a whole.
“Principal Subsidiary” means any Subsidiary of the Company which has net sales which
represent 15% or more of the consolidated net sales of the Company and its Consolidated
Subsidiaries taken as a whole.
“Process Agent” has the meaning provided in Section 8.13(b).
“Pro Rata Share” means, with respect to any Lender, the percentage corresponding to
the fraction the numerator of which shall be the amount of the Commitment of such Lender and the
denominator of which shall be the aggregate amount of the Commitments of all Lenders.
“Rate Notification” has the meaning provided in Section 2.02(a).
“Rate Request” has the meaning provided in Section 2.02(a).
“Reference Bank” means Citibank or, if Citibank is no longer the Administrative Agent,
such Person (which shall be a Lender or the Administrative Agent) as shall be designated by the
Company with the consent of the Required Lenders, which consent shall not be unreasonably withheld.
“Register” has the meaning provided in Section 8.07(d).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and such
Person’s and such Person’s Affiliates’ respective managers, administrators, trustees, partners,
directors, officers, employees, agents, fund managers and advisors.
“Relevant Anniversary” has the meaning provided in Section 2.01(d)(i).
“Reportable Event” has the meaning provided in Section 4043(b) of ERISA (other than a
Reportable Event as to which the provision of 30 days notice to the PBGC is waived under applicable
regulations).
“Required Lenders” means at any time Lenders representing in the aggregate at least
51% of the Commitments or, if the Commitments shall have terminated, Lenders representing in the
aggregate at least 51% of the sum of the Advances owing to Lenders hereunder (computed, in the case
of Advances in an Alternate Currency, as the Dollar Equivalent thereof as determined by the
Administrative Agent), provided that if any Lender shall be a Defaulting Lender at such
time, there shall be excluded from the determination of Required Lenders at such time the
Commitments of such Lender at such time.
“Restricting Information” has the meaning provided in Section 8.02(d).
“Restructuring Period” means each fiscal quarter of the Company during fiscal years
2010, 2011, 2012, and 2013.
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15
“Screen Page” means the display designated as Reuters LIBOR01 Page or EURIBOR01 Page,
as the case may be (or such other page as may replace that page for the purpose of displaying
London interbank offered rates or the Euro interbank offered rates of major banks). If more than
one relevant rate appears on said LIBOR01 Page or EURIBOR01 Page with respect to an Interest
Period, the Eurocurrency Rate for that Interest Period will be based upon the arithmetic mean of
such relevant rates.
“SEC Filings” means the Company’s Exchange Act disclosures documents filed with the
Securities and Exchange Commission on Forms 8K, 10K or 10Q (or their equivalents).
“Senior Unsecured Indebtedness” means Indebtedness that is not subordinated to any
other Indebtedness and is not secured or supported by a guarantee, letter of credit or other form
of credit enhancement.
“Spread Determination Date” means the Business Day that is two Business Days prior to
the day of delivery of the request to make, convert or continue, as applicable, each Advance (and
if such Advance is a Eurocurrency Rate Advance with an Interest Period longer than three months,
the Credit Default Rate Spread shall be reset to the Credit Default Rate Spread as reported on the
Business Day that is two Business Days prior to the day that is three months after the later of (i)
the day on which such Eurocurrency Rate Advance was made, converted or continued and (ii) the last
day on which the Credit Default Rate Spread was reset).
“Standard & Poor’s” means Standard & Poor’s Ratings Services and any successor or
successors thereto.
“Subsidiary” of any Person means (i) any corporation 50% or more of whose stock of any
class or classes having by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly through Subsidiaries and
(ii) any partnership, association, joint venture, limited liability company or other entity in
which such Person, directly or indirectly through Subsidiaries, is either a general partner or has
a 50% or more equity interest at the time.
“TARGET” means Trans–European Automated Real–time Gross Settlement Express Transfer
payment system.
“TARGET Day” means any day on which TARGET is open for the settlement of payments in
Euros.
“Target Operating Day” has the meaning provided in Section 2.15.
“Taxes” has the meaning provided in Section 2.10(a).
“Termination Date” means the earlier of (a) March 11, 2015 (as the same may be
extended pursuant to Section 2.01(d)) or (b) the date of termination in whole of the Commitments
pursuant to Section 2.01(b) or Section 6.01; provided, however, that the
Termination Date of any Lender that is a Declining Lender to any requested extension pursuant to
Section 2.01(d) shall be the Current Termination Date in effect immediately prior to the Relevant
Anniversary for all purposes of this Agreement.
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16
“Termination Event” means (i) a Reportable Event, or (ii) the initiation of any action
by the Company, any member of the Company’s ERISA Controlled Group or any ERISA Plan fiduciary to
terminate an ERISA Plan or the treatment of an amendment to an ERISA Plan as a termination under
ERISA, or (iii) the institution of proceedings by the PBGC under Section 4042 of ERISA to terminate
an ERISA Plan or to appoint a trustee to administer any ERISA Plan.
“Termination Letter” has the meaning provided in Section 2.14.
“Type” has the meaning provided in the definition of Advance.
“Unfunded Benefit Liabilities” means with respect to any Plan at any time, the amount
(if any) by which (i) the present value of all benefit liabilities under such Plan as defined in
Section 4001(a)(16) of ERISA, exceeds (ii) the fair market value of all Plan assets allocable to
such benefits, all determined as of the then most recent valuation date for such Plan (on the basis
of assumptions prescribed by the PBGC for the purpose of Section 4044 of ERISA).
SECTION
1.02 Computation of Time Periods; Terms Generally. In this Agreement in the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the words “to” and “until” each mean “to but excluding”. The words
“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”.
SECTION 1.03 Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION
2.01 The Commitment. (a) The Advances. (i) Each Lender agrees, on the
terms and conditions hereinafter set forth to make Advances to the Company and any Designated
Borrower in Dollars or an Alternate Currency from time to time on any Business Day during the
period from the Effective Date until the latest Extended Termination Date applicable to such Lender
in an aggregate amount not to exceed at any time outstanding such Lender’s Commitment;
provided that (A) at no time shall the aggregate outstanding principal amount of all
Advances exceed the total amount of the Commitments at such time; and (B) at no time shall the
Dollar Equivalent of the aggregate outstanding principal amount of all Advances denominated in an
Alternate Currency to the Borrowers exceed the Foreign Currency Sublimit.
(ii) Within the limits of each Lender’s Commitment and subject to the limitation
set forth in Section 2.07(c), each Borrower may borrow, repay, prepay (as provided in
Section 2.07) and reborrow such amount or any portion thereof.
(iii) Each Borrowing shall be in an aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof (or, in the case of a Borrowing denominated in an
Alternate Currency, the Foreign Currency Equivalent thereof in such Alternate Currency,
rounded to the nearest 1,000,000 units of such Alternate Currency)
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17
or, if less, the
aggregate amount of the unused Commitments and shall consist of Advances of the same Type
made on the same day by the Lenders ratably according to their respective Commitments.
(b) Termination and Reduction. The Company shall have the right, upon at
least three Business Days’ notice to the Administrative Agent, to terminate in whole or
reduce each Lender’s Pro Rata Share of the unused Commitments. Each partial reduction of
the Commitments shall be in the aggregate amount of at least $10,000,000 or a larger whole
multiple of $1,000,000.
(c) Increase.
(i) The Company may, at any time but in any event not more than twice during any
calendar year, make a written request (an “Increase Request”) to the Administrative
Agent (who shall forward a copy to each Lender) that the Commitments be increased, in the
amount of $10,000,000 or an integral multiple thereof, provided that after giving
effect to any such increase, the aggregate amount of the Commitments shall not exceed
$1,500,000,000 and the Foreign Currency Sublimit shall not exceed $500,000,000. Such
Increase Request shall include a certification by a senior officer of the Company that (x)
no Default or Event of Default has occurred and is continuing on and as of the date of such
Increase Request and (y) the representations and warranties contained in Section 4.01 are
correct in all material respects on and as of the Increase Date (as defined below), before
and immediately after giving effect to such increase, as though made on and as of such
Increase Date. Any such increase in Commitments shall be effective as of a date (the
“Increase Date”) specified in the related Increase Request that is (i) prior to the
latest Extended Termination Date and (ii) at least 10 days after the date of such Increase
Request. Each Increase Request shall specify the date by which Lenders who wish to increase
their Commitments must consent to such increase (the “Commitment Date”), which date
shall be no later than five Business Days prior to the related Increase Date. Each Lender
that is willing to increase its Commitment (each an “Increasing Lender”), shall
notify the Administrative Agent on or prior to the Commitment Date of the amount by which it
is willing to increase its Commitment, which amount shall not exceed the respective amount
specified in the relevant Increase Request. No Lender shall be obligated to increase its
Commitment pursuant to this Section 2.01(c) and any such increase shall be in the sole
discretion of each Lender. If the Lenders notify the Administrative Agent that they are
willing to increase the amount of their respective Commitments by an aggregate amount that
exceeds the amount of the requested increase, the requested increase shall be allocated
among the Lenders willing to participate therein ratably in accordance with the amount by
which they offered to increase their respective Commitments on the Commitment Date.
(ii) Not later than two (2) days following each Commitment Date, the Administrative
Agent shall notify the Company as to the amount, if any, by which the Lenders are willing to
participate in the requested increase. If the aggregate amount by which the Lenders are
willing to increase their Commitments on any such Commitment Date is less than the requested
amount, then the Commitments of those Lenders that are willing to increase their Commitments
shall be increased as provided in subsection (iii) below and any one or more Persons
eligible to participate as an assignee pursuant to Section 8.07 (which may include any
Lender with the consent of such Lender) (each such
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18
Person, and any Person that agrees to
become a Lender in accordance with Section 2.01(d), an “Additional Commitment
Lender”) that agrees to provide Commitments for the shortfall may become party to this
Agreement by executing and delivering, together with the Company, an agreement in form and
substance satisfactory to the Company and the Administrative Agent (an “Additional
Commitment Agreement”) pursuant to which such Additional Commitment Lender shall
undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment
shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment
Lender shall become a “Lender” for all purposes of this Agreement and, to the extent
provided therein, shall have the rights and obligations of a Lender hereunder;
provided that each such Person or Persons shall provide a Commitment in an amount of
at least $5,000,000.
(iii) On each Increase Date, each Person that accepts an offer to participate in a
requested Commitment increase in accordance with Section 2.01(c) shall become a Lender party
to this Agreement as of such Increase Date and the Commitment of each Increasing Lender
shall be increased as of such Increase Date by the amount set forth in its notice delivered
to the Administrative Agent in accordance with Section 2.01(c)(i) (or by the amount
allocated to such Lender pursuant to the last sentence of Section 2.01(c)(i)), and if on the
Increase Date any Advances are outstanding, the Borrowers shall borrow Advances from the
Additional Commitment Lenders, and/or prepay the outstanding Advances, in such amounts and
in such Currency or Currencies as are required to cause the outstanding Advances to be held
ratably by all Lenders.
(d) Extension of Commitments.
(i) The Company shall have the right, upon no earlier than 60 days but no later
than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice
to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a
“Relevant Anniversary”), to request that the Termination Date then in effect (the
“Current Termination Date”) be extended to the date one year after such Current
Termination Date (such extended date, an “Extended Termination Date”).
(ii) Each Lender acting in its sole and individual discretion will use its
reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant
Anniversary whether it agrees to participate in such extension. Any Lender that does not so
notify the Administrative Agent that it agrees to such extension at least 20 days before the
Relevant Anniversary (each, a “Declining Lender”) shall continue to be a Lender with
a Commitment until the earlier of the Current Termination Date or until such Lender is
replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment
during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant
Anniversary or the Current Termination Date, each Declining Lender with, and add as
“Lenders” under this Agreement, one or more Additional Commitment Lenders with the approval
of the Administrative Agent (not to be unreasonably withheld), each of which Additional
Commitment Lenders shall have entered into an Additional Commitment Agreement pursuant to
which such Additional Commitment Lender shall undertake a Commitment (if any such Additional
Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s
Commitment hereunder), and such Additional
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19
Commitment Lender shall become a “Lender” for all
purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as
the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed
to extend the Termination Date, taking into account any Commitment increases pursuant to
clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the
Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination
Date shall be extended, effective as of the Relevant Anniversary, to the Extended
Termination Date; provided that, if such Commitments shall be less than 100%
of the aggregate amount of the Commitments in effect immediately prior to the Relevant
Anniversary, the Borrowers shall have the right to rescind the request to so extend the
Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to
each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the
case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii)
of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder
pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the
date of the request pursuant to clause (i) above and the Relevant Anniversary;
(2) all representations and warranties contained in Section 4.01 are true and
correct in all material respects on and as of the date of the request pursuant to
clause (i) above and the Relevant Anniversary, including without limitation the
representation and warranty of the Borrowers as to the execution, delivery and
performance by them of this Agreement and the Notes, taking into account such
extension, having been duly authorized by all necessary corporate action (it being
understood and agreed that any representation or warranty which expressly refers by
its terms to a specified date shall be required to be true and correct in all
material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are
Advances outstanding, appropriate adjustments shall be made among the Lenders to
cause the outstanding Advances to be held ratably by all Lenders in accordance with
their respective Commitments as of each such date.
SECTION 2.02 Making the Advances. (a) Determination of Eurocurrency Rate. The
Company (on its own behalf or on behalf of any Designated Borrower) may request the Reference Bank,
no earlier than 9:00 A.M. (New York City time) and no later than 11:00 A.M. (New York City time) on
the third Business Day before a proposed Eurocurrency Rate Advance, to notify the Company of the
Eurocurrency Rate that would be applicable to an Advance in the principal amount, in the Currency,
and with the Interest Period as described by the Company in such request, which request shall be
substantially in the form of Exhibit A-1 hereto (a “Rate Request”). Upon such request, the
Reference Bank shall furnish such interest rate to the Company no later than noon (New York City
time) on the second Business Day before the proposed Eurocurrency Rate Advance by delivering to the
Company a copy of the related Rate Request setting forth such rate and executed by an authorized
officer of the Reference Bank in the space provided therefor (a “Rate Notification”). The
relevant Borrower
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20
shall be entitled to rely on any such notification and such rate shall be
conclusive and binding on the Lenders absent manifest error.
(b) Notice of Borrowing. Each Borrowing shall be made on notice by the Company (on
its own behalf or on behalf of any Designated Borrower) to the Administrative Agent, which
shall give to each Lender prompt notice thereof by telecopier, given not later than 11:00
A.M. (New York City time) on the date of the proposed Borrowing if such Borrowing is to be
comprised of Base Rate Advances and no earlier than 9:00 A.M. (New York City time) and no
later than 4:00 P.M. (New York City time) on the third Business Day prior to such date if
such Borrowing is to be comprised of Eurocurrency Rate Advances. Each such notice of a
Borrowing (a “Notice of Borrowing”) shall be by telecopier, or by telephone confirmed
immediately in writing, in substantially the form of Exhibit A-2 hereto, specifying
therein: (i) the name of the Borrower (which shall be the Company or a Designated
Borrower), (ii) the requested date of such Borrowing, (iii) the Type of Advances comprising
such Borrowing, (iv) the aggregate amount and, for any Designated Borrower, the Currency of
such Borrowing, and (v) in the case of a Borrowing consisting of Eurocurrency Rate Advances,
the initial Interest Period for each such Advance. Each Lender shall, before 1:00 P.M.
(Local Time) on the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent’s Account for
Advances denominated in the relevant Currency, in the relevant Currency and in same day
funds, such Lender’s Pro Rata Share of the requested amount of such Borrowing. Promptly
after the Administrative Agent’s receipt of such funds (and in any event by the close of
business New York City time on the date of such Borrowing) and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will make the funds
so received available to the Company or such other Borrower by depositing the same in such
Currency and in immediately available funds into such account of the Company or such other
Borrower, as applicable, maintained with the Administrative Agent in New York City (if such
Advance is denominated in Dollars) or in the Principal Financial Center for any other
Currency (if such Advance is denominated in an Alternate Currency) as shall have been
specified in the related Notice of Borrowing.
(c) Illegality, Etc. Anything in subsection (a) or (b) above to the contrary
notwithstanding,
(i) if any Lender shall, at least one Business Day before the date of any requested
Eurocurrency Advance or the date of any conversion to or continuation of a Eurocurrency Rate
Advance, notify the Administrative Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or that any central bank or other
governmental authority asserts that it is unlawful, for such Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate Advances or to
fund or maintain Eurocurrency Rate Advances hereunder, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Company, whereupon (A) such
Lender shall have no obligation to make Eurocurrency Rate Advances, or to convert Advances
into Eurocurrency Rate Advances, until such Lender notifies the Company and the
Administrative Agent that the circumstances causing such suspension no longer exist and (B)
each Borrower shall be deemed to have converted all Eurocurrency Rate Advances of such
Lender then outstanding into Base Rate Advances in accordance with Section 2.04 on and as of
the
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21
date of the Administrative Agent’s receipt of such notice, unless and to the extent such
notice directs that one or more Eurocurrency Rate Advances shall be so converted on the last
day of the applicable Interest Period, provided that (w) before giving any such
notice, such Lender agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for such suspension and conversion and
would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender, (x) any request by a Borrower for Eurocurrency Rate Advances during a time when a
Lender’s obligation to make, or convert Advances into, Eurocurrency Rate Advances shall be
suspended hereunder shall be deemed to be a request for, or for conversion into, Base Rate
Advances from such Lender, (y) all Advances that would otherwise be made by such Lender as
Eurocurrency Rate Advances during any such suspension shall instead be made as Base Rate
Advances and (z) in the event any Lender shall notify the Administrative Agent and the
Company of the occurrence of the circumstances causing such suspension under this Section
2.02(c), all payments and prepayments of principal that would otherwise have been applied to
repay the Eurocurrency Rate Advances that would have been made by such Lender or the
converted Eurocurrency Rate Advances shall instead be applied to repay the Base Rate
Advances made by such Lender in lieu of, or resulting from the conversion of, such
Eurocurrency Rate Advances;
(ii) if the Reference Bank cannot furnish the Eurocurrency Rate for any Borrowing
consisting of Eurocurrency Rate Advances because of conditions existing in the London
interbank market, the right of the Borrowers to select Eurocurrency Rate Advances shall be
suspended until the Reference Bank shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist;
(iii) if the Required Lenders shall, at least one Business Day before the date of
any requested Eurocurrency Rate Advance, notify the Administrative Agent that the
Eurocurrency Rate for any Interest Period will not adequately reflect the cost to the
Required Lenders of making, funding or maintaining their respective Eurocurrency Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so notify the
Company and the Lenders, whereupon the Lenders shall have no obligation to make, or convert
Advances into, Eurocurrency Rate Advances until the Administrative Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer exist; and
(iv) if the Required Lenders shall, at least one Business Day before the date of
any Advance to a Designated Borrower, notify the Administrative Agent that the introduction
of or any change in or in the interpretation of any law or regulation makes it unlawful, or
that any central bank or other governmental authority asserts that it is unlawful, for such
Lenders to perform their obligations hereunder to make Advances or to fund or maintain
Advances hereunder to such Designated Borrower, the Administrative Agent shall forthwith
give notice thereof to the other Lenders and the Company, whereupon the Lenders shall have
no obligation to make Advances to such Designated Borrower, until the Administrative Agent
shall notify the Company and the Lenders that the circumstances causing such suspension no
longer exist.
Four Year Credit Agreement
22
(d) Effect of Failure to Fulfill Conditions. Each Notice of Borrowing shall be
irrevocable and binding on the Company and the relevant Designated Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurocurrency Rate
Advances, the relevant Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding anticipated profits), cost or expense reasonably
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date, such indemnity to be paid promptly upon
receipt by the relevant Borrower of a certificate of such Lender setting forth the calculation of
the amount of the indemnity claimed by such Lender.
(e) Funds Available. Unless the Administrative Agent shall have received notice from a
Lender prior to 1:00 P.M. (New York City time) on the date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this
Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to
the relevant Borrower on such date a corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the Administrative Agent, such Lender and
the relevant Borrower severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date such amount is made
available to the relevant Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of the relevant Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of this
Agreement.
(f) Failure to Make Advances. The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for
the failure of any other Lender to make the Advance to be made by such other Lender on the date of
any Borrowing.
SECTION 2.03 Fees. (a) Commitment Fee. The Company agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee in Dollars on the aggregate
amount of such Lender’s unused Commitment from the date hereof in the case of each Lender and, in
the case of each Person which becomes a Lender pursuant to Section 2.01(c), 2.01(d) or 8.07, from
the effective date specified in the Assignment and Acceptance or the Additional Commitment
Agreement pursuant to which it became a Lender, until the Termination Date at the Applicable
Commitment Fee Rate, payable quarterly in arrears on the last day of each March, June, September
and December during the term hereof and on the Termination Date; provided that no
Defaulting Lender shall be entitled to receive any commitment fee in respect of its unused
Commitment for any period during which that Lender is a Defaulting Lender (and the Borrowers shall
not be required to pay
such fee that otherwise would have been required to have been paid to that Defaulting Lender). All
computations of the commitment fee shall be based on a year of 360 days.
Four Year Credit Agreement
23
(b) Administrative Agent’s Fees. The Company shall pay to the Administrative Agent
in Dollars for its own account such fees as may from time to time be agreed between the
Company and the Administrative Agent.
SECTION 2.04 Continuation and Conversion. (a) General. Subject to the other
provisions hereof, each Borrower shall have the option (i) to convert all or any part of an
outstanding Borrowing consisting of Base Rate Advances to a Borrowing consisting of Eurocurrency
Rate Advances, (ii) to convert all or any part of an outstanding Borrowing in Dollars consisting of
Eurocurrency Rate Advances to a Borrowing consisting of Base Rate Advances, or (iii) to continue
all or any part of an outstanding Borrowing consisting of Eurocurrency Rate Advances as a Borrowing
consisting of Eurocurrency Rate Advances for an additional Interest Period; provided that
no Borrowing consisting of Eurocurrency Rate Advances shall be so converted other than as
contemplated by Section 2.02(c) or continued, until the expiration of the Interest Period
applicable thereto.
(b) Notice of Conversion or Continuation. In order to elect to convert or continue
a Borrowing hereunder, the Company (on its own behalf or on behalf of any Designated
Borrower) shall deliver an irrevocable notice thereof (a “Notice of Conversion or
Continuation”) to the Administrative Agent by telecopier or by telephone confirmed
immediately in writing, no later than (i) 11:00 A.M., (New York City time) on the proposed
conversion date in the case of a conversion to Base Rate Advances and (ii) no earlier than
9:00 A.M. (New York City time) and no later than 4:00 P.M. (New York City time) on the third
Business Day in advance of the proposed conversion or continuation date in the case of a
conversion to, or a continuation of, Eurocurrency Rate Advances, substantially in the form
of Exhibit B hereto. A Notice of Conversion or Continuation shall specify (w) the requested
conversion or continuation date (which shall be a Business Day), (x) the amount and Type of
the Advances to be converted or continued, (y) whether a conversion or continuation is
requested, and (z) in the case of a conversion to, or a continuation of, Eurocurrency Rate
Advances, the requested Interest Period. The relevant Eurocurrency Rate for such Interest
Period in the case of a conversion to, or a continuation of, Eurocurrency Rate Advances
shall be determined in the manner provided in Section 2.02(a) as if such conversion or
continuation is instead new Eurocurrency Rate Advances in such amount, on such date and for
such Interest Period. If the Company fails to give a Notice of Conversion or Continuation
with respect to an outstanding Borrowing consisting of Eurocurrency Rate Advances in Dollars
as provided in clause (ii) above, the Company shall be deemed to have converted such
Eurocurrency Rate Advances into Base Rate Advances in accordance with this Section 2.04 if
such Advances are outstanding after the last day of the Interest Period with respect
thereto. If the Company fails to give a Notice of Conversion or Continuation with respect
to an outstanding Borrowing consisting of Eurocurrency Rate Advances in an Alternate
Currency as provided in clause (ii) above, the Company shall be deemed to have converted
such Eurocurrency Rate Advances into a Eurocurrency Rate Advance with an Interest Period of
one (1) month in accordance with this Section 2.04 if such Advances are outstanding after
the last day of the Interest Period with respect thereto.
SECTION
2.05 Interest on Advances. Each Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender from the date the proceeds of
Four Year Credit Agreement
24
such Advance
are made available to such Borrower until such principal amount shall be paid in full, at the
following rates per annum:
(a) Base Rate Advances. If such Advance is a Base Rate Advance, a rate per annum
equal to the Base Rate in effect from time to time plus the Applicable Base Rate Margin,
payable in arrears quarterly on the last Business Day of each fiscal quarter during the
period such Base Rate Advance remains outstanding and on the date such Base Rate Advance
shall be paid in full;
(b) Eurocurrency Rate Advances. If such Advance is a Eurocurrency Rate Advance, a
rate per annum equal at all times during the Interest Period for such Advance to the sum of
the Eurocurrency Rate for such Interest Period plus the Applicable Eurocurrency Margin for
such Interest Period, payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each day which occurs
during such Interest Period every three months from the first day of such Interest Period;
(c) Default Rate. In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of all Advances and,
to the extent permitted by law, overdue interest in respect of all Advances, shall bear
interest at a rate per annum equal to the sum of two percent (2%) plus the interest rate
otherwise applicable hereunder to such principal amount in effect from time to time. In the
event that, and for so long as, any Default under Section 6.01(a) shall have occurred and be
continuing, the outstanding principal amount of the Advance with respect to which such
Default has occurred and is continuing shall bear interest at a rate per annum equal to the
sum of two percent (2%) plus the interest rate otherwise applicable hereunder to such
principal amount in effect from time to time.
SECTION 2.06 Additional Interest on Eurocurrency Rate Advances. Each Borrower shall pay
to each Lender, during each period as such Lender shall be required under regulations of the
Federal Reserve Board to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each
Eurocurrency Rate Advance of such Lender outstanding during such period, from the later of the date
such reserves are required and the making of such Advance until the earlier of the date such
reserves are no longer required and such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i) the Eurocurrency Rate for the
Interest Period applicable to such Advance from (ii) the rate obtained by dividing such
Eurocurrency Rate by a percentage equal to 100% minus the average Eurocurrency Rate Reserve
Percentage of such Lender during such period, payable on each date on which interest is payable on
such Advance. Such Lender shall determine the amount of such additional interest, if any, and
promptly notify the relevant Borrower through the Administrative Agent of the amount thereof.
SECTION 2.07 Repayment; Prepayment of Advances; Etc.(a) Repayment. Each
Borrower shall repay to the Administrative Agent for the ratable account of each Lender on the
Termination Date applicable to such Lender the aggregate principal amount of the Advances owing to
such Lenders then outstanding.
Four Year Credit Agreement
25
(b) Prepayment of Advances. (i) No Borrower shall have the right to prepay
any principal amount of any Advances other than as provided in this Section 2.07. Any
Borrower may, upon notice no later than 11:00 A.M. (New York City time) on the second
Business Day before the prepayment of Eurocurrency Rate Advances, and no later than 11:00
A.M. (New York City time) on the day of the prepayment in the case of Base Rate Advances, in
either case to the Administrative Agent and stating the proposed date and principal amount
of the prepayment, and if such notice is given such Borrower shall, prepay the outstanding
principal amount of the Advances comprising part of the same Borrowing in whole or ratably
in part, together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that each partial prepayment shall be in the aggregate
principal amount of at least $5,000,000 or a larger whole multiple of $1,000,000 (or, in the
case of Advances denominated in an Alternate Currency, the Foreign Currency Equivalent
thereof in such Alternate Currency, rounded to the nearest 1,000,000 units of such Alternate
Currency) and, in the case of a payment or prepayment of a Eurocurrency Rate Advance other
than on the last day of the Interest Period for such Advance as provided herein, shall have
the consequences set forth in Section 8.04(b).
(ii) The Company shall notify the Administrative Agent immediately upon becoming
aware of any Change of Control. Upon receipt of such notice and for a period of 90 days
thereafter, the Required Lenders shall be entitled, by written notice to the Company
received within such period, to terminate the Commitments in whole and require the Company
and any other Borrower to prepay all outstanding Advances within 5 Business Days of its
receipt of such notice, together with any accrued and unpaid interest thereon to the date of
such prepayment and any other amounts due hereunder. Notwithstanding any other provision
contained herein, a Change of Control shall not, in and of itself, constitute a Default
hereunder.
(c) Alternate Currency Revaluation. (i) If at any time by reason of
fluctuations in foreign exchange rates (1) the aggregate outstanding principal amount of all
Advances (for which purpose the amount of any Advance that is denominated in an Alternate
Currency shall be deemed to be the Dollar Equivalent thereof as of the date of
determination) exceeds 105% of the aggregate amount of the Commitments at such time or (2)
the aggregate outstanding principal amount of all Advances denominated in Alternate
Currencies exceeds 105% of the Foreign Currency Sublimit at such time, the Administrative
Agent shall use all reasonable efforts to give prompt written notice thereof to the Company,
specifying the amount to be prepaid under this clause (i), and the Company shall, within
five Business Days of the date of such notice, prepay the Advances, or cause Advances to be
prepaid, in an amount so that after giving effect thereto the aggregate outstanding
principal amount of the Advances (determined as aforesaid) does not exceed the aggregate
amount of the Commitments; provided that any such payment shall be accompanied by any
amounts payable under Section 8.04(b). The determination of which Advances to prepay
hereunder shall be at the sole option of the
Company. The determinations of the Administrative Agent hereunder shall be conclusive
and binding on the Borrowers in the absence of manifest error.
(ii) In addition, if on the last day of any Interest Period the aggregate
outstanding principal amount of the Advances (for which purpose the amount of any Advance
that is denominated in an Alternate Currency shall be deemed to be the Dollar
Four Year Credit Agreement
26
Equivalent
thereof as of the date of determination), would exceed 100% of the aggregate amount of the
Commitments, the Administrative Agent shall use all reasonable efforts to give prompt
written notice thereof to the Company, specifying the amount to be prepaid under this clause
(ii), and the Company shall, within five Business Days of the date of such notice, prepay
the Advances, or cause Advances to be prepaid, or reduce the requested Advances in such
amounts that after giving effect to such action the aggregate outstanding principal amount
of the Advances does not exceed the aggregate amount of the Commitments; provided
that any such payment shall be accompanied by any amounts payable under Section 8.04(b).
The determination of which Advances to prepay hereunder shall be at the sole option of the
Company. The determinations of the Administrative Agent hereunder shall be conclusive and
binding on the Borrowers in the absence of manifest error.
SECTION 2.08 Increased Costs. (a) Changes in Law, Etc. If, due to (i) the
introduction of or any change in or in the official interpretation of any law or regulation on or
after the date of this Agreement, or (ii) the compliance with any guideline or request not
applicable on the date of this Agreement from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the cost to any Lender of
agreeing to make or making, funding or maintaining Eurocurrency Rate Advances, then upon demand by
such Lender received by the Company (with a copy of such demand to the Administrative Agent)
accompanied by the certificate described in the next sentence, pay, or cause to be paid, to the
Administrative Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost, such amounts to be due and payable within two Business Days of
such Lender’s invoice therefor. A certificate as to the amount of such increased cost, submitted
to the Company and the Administrative Agent by such Lender, shall be conclusive and binding on the
Borrowers for all purposes, absent manifest error.
(b) Capital Adequacy. If, due to (i) the introduction of or any change in
or in the official interpretation of any law or regulation on or after the date of this
Agreement, or (ii) the compliance with any guideline or request not applicable on the date
of this Agreement from any central bank or other governmental authority (whether or not
having the force of law), any Lender determines that the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such Lender has been
or would be affected and that the amount of such capital is increased by or based upon the
existence of such Lender’s Advances or commitment to lend hereunder and other commitments of
this type, then, upon demand by such Lender received by the Company within such time from
the relevant change or introduction described above as is reasonably required in order to
determine the effect thereof (with a copy of such demand to the Administrative Agent)
accompanied by a certificate of such Lender as to the amounts demanded, the Company shall
pay, or cause to be paid, to the Administrative
Agent for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation, as the case may
be, to the extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender’s Advances or commitment to lend hereunder, such
amounts to be due and payable within two days of such Lender’s invoice therefor. A
certificate as to such amounts submitted to the Company and the Administrative Agent by such
Lender shall be conclusive and binding on the Borrowers for all purposes, absent manifest
error. For the avoidance of doubt, this Section 2.08(b) shall apply to all requests, rules,
guidelines or directives concerning capital adequacy
Four Year Credit Agreement
27
issued in connection with the
Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, regardless of the date adopted,
issued, promulgated or implemented.
SECTION 2.09 Payments and Computations. (a) Manner of Payment. Each Borrower
shall make each payment hereunder and under the Notes without deduction, setoff or counterclaim not
later than 11:00 A.M. (Local Time) on the day when due to the Administrative Agent at the
Administrative Agent’s Account in the Principal Financial Center for the relevant Currency in same
day funds. The Administrative Agent will promptly thereafter cause to be distributed like Currency
and funds relating to the payment of principal or interest or commitment fees ratably (other than
amounts payable pursuant to Section 2.02(d), 2.06, 2.08, 2.10 or 8.04(b)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this Agreement. Upon any
Additional Commitment Lender becoming a Lender hereunder as a result of a Commitment increase
pursuant to Section 2.01(c) or an extension of the Termination Date pursuant to Section 2.01(d),
and upon the Administrative Agent’s receipt of such Lender’s Additional Commitment Agreement and
recording of the information contained therein in the Register, from and after the applicable
Increase Date, Relevant Anniversary or Current Termination Date, as the case may be, the
Administrative Agent shall make all payments hereunder and under any Notes issued in connection
therewith in respect of the interest assumed thereby to the Additional Commitment Lender. Upon its
acceptance of an Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and under the
Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the
parties to such Assignment and Acceptance (which shall not include any Borrower) shall make all
appropriate adjustments in such payments for periods prior to such effective date directly between
themselves. The making by any Borrower of any payment to the Administrative Agent for the account
of any Lender as herein provided shall pro tanto discharge the relevant obligation
of such Borrower to such Lender.
(b) Setoff. If a Default or Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, in whatever currency) at any time held and
other indebtedness at any time owing by such Lender to any Borrower against any of and all
the obligations of such Borrower now or hereafter existing under this Agreement and the
Notes held by such Lender, although such obligations may be unmatured. The rights
of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
(c) Interest. All computations of interest based on (i) the Base Rate and
the Eurocurrency Rate for Advances denominated in Pounds Sterling shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and (ii)
the Eurocurrency Rate for Advances denominated in a Currency other than Pounds Sterling or
the Federal Funds Rate and all computations of interest pursuant to Section 2.06 shall be
made by the Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day) occurring in the
period for which such interest is payable. Each determination by
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the Reference Bank of an
interest rate for any Advance hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Business Days. Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be included in
the computation of payment of interest or commitment fee, as the case may be; provided that
if such extension would cause payment of interest on or principal of Eurocurrency Rate
Advances to be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Assumption of Payment. Unless the Administrative Agent shall have
received notice from a Borrower prior to the date on which any payment is due to the Lenders
hereunder that such Borrower will not make such payment in full, the Administrative Agent
may assume that such Borrower has made such payment in full to the Administrative Agent on
such date and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent such Borrower shall not have so made such payment in full to
the Administrative Agent, each Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal Funds Rate (if such Advance is
denominated in Dollars) or at the London interbank offered rate for the relevant Currency
(if such Advance is denominated in an Alternate Currency).
(f) Rate Information. The Reference Bank shall notify the Company and the
Administrative Agent of the Base Rate in effect on the first Business Day on which a Base
Rate Advance is outstanding and each day on which a change in the Base Rate occurs, each in
sufficient detail to enable the Company to calculate interest payments hereunder with
respect to Base Rate Advances, and shall provide such information to any Lender promptly
upon its request. The Company will provide to the Administrative Agent (i) promptly upon
receipt thereof copies of the information received by the Company pursuant to the
immediately preceding sentence or any Rate Notification received pursuant to Section
2.02(a), (ii) promptly upon the making of any interest payment with respect to a Base Rate
Advance hereunder a schedule based on such information setting forth the Base Rate for each
day in the period in which such Advance
was outstanding, and (iii) promptly upon obtaining knowledge thereof, notice of any
change in the rating assigned by Standard & Poor’s, Moody’s, or Fitch to the Company’s
Long-Term Indebtedness and the date of such change, provided that the Company’s failure to
provide any of the foregoing information shall be deemed not to be a Default or Event of
Default hereunder.
(g) Currency of Payments. All payments of principal of and interest on,
and any amounts payable under Section 2.06 in respect of, an Advance that is denominated in
a particular Currency shall be made in such Currency, and all other amounts payable under
this Agreement (except as specified in Section 9.06) shall be paid in Dollars.
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SECTION 2.10 Taxes. (a) General. Any and all payments by each Loan Party
hereunder or under the Notes shall be made in accordance with Section 2.09, free and clear of and
without deduction for any and all taxes, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto (which are, with respect to payments by the Company or the
Subsidiary Guarantor only, not in effect or not imposed on the date of this Agreement);
excluding, in the case of each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it by the jurisdiction under the laws of which such Lender
or the Administrative Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as “Taxes”).
(b) Other Taxes. In addition, each Loan Party agrees to pay any stamp or
documentary taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under the Notes or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement not in effect or not imposed
on the date of this Agreement or the Notes (hereinafter referred to as “Other Taxes”) upon
notice from the Lender.
(c) Tax Indemnity. Each Loan Party will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section 2.10) paid by such Lender or the Administrative Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such Lender or the Administrative
Agent (as the case may be) makes written demand therefor.
(d) Receipt. Within 30 days after the date of any payment of Taxes, each
Loan Party will furnish to the Administrative Agent, at its address referred to in Section
8.02, the original or a certified copy of a receipt evidencing payment thereof.
SECTION 2.11 Promissory Notes. Any Lender may request that Advances of any Type made by
it be evidenced by a promissory note. In such event, the relevant Borrower shall prepare, execute
and deliver to such Lender a promissory note payable to such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) substantially in the form of Exhibit E (a
“Note”) in the case of the Advances. Thereafter, such Advances evidenced by such
promissory note and interest thereon shall at all times (including after assignment pursuant to
Section 8.07) be represented by one or more promissory notes in such form payable to the payee
named therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.12 Use of Proceeds of Advances. Each Borrower will use the proceeds of the
Advances solely for general corporate purposes, including, without limitation, for the acquisition
of Margin Stock.
SECTION 2.13 Defaulting Lenders. (a) Notwithstanding anything to the contrary
contained in this Agreement, any payment of principal, interest, fees or other amounts
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received by
the Administrative Agent for the account of any Defaulting Lender under this Agreement (whether
voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) shall be applied at such
time or times as may be determined by the Administrative Agent as follows: first, to the payment
of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as
the Company may request (so long as no Default or Event of Default exists), to the funding of any
Advance in respect of which that Defaulting Lender has failed to fund its portion thereof as
required by this Agreement, as determined by the Administrative Agent; third, to the payment of any
amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction
obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement; fourth, so long as no Default or Event of Default
exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court
of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of
such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such
Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided
that if (x) such payment is a payment of the principal amount of any Advance in respect of which
such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made
at a time when the applicable conditions set forth in Article III were satisfied or waived, such
payment shall be applied solely to pay the Advances of all Non-Defaulting Lenders on a pro rata
basis prior to being applied to the payment of any Advances of such Defaulting Lender and
provided further that any amounts held as cash collateral for funding obligations
of a Defaulting Lender shall be returned to such Defaulting Lender upon the termination of this
Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to
pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.13
shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.
(b) No Commitment of any Lender shall be increased or otherwise affected, and, except as
otherwise expressly provided in this Section 2.13, performance by the Borrowers of their
obligations shall not be excused or otherwise modified as a result of the operation of this
Section 2.13. The rights and remedies against a Defaulting Lender under this Section 2.13 are
in addition to any other rights and remedies which the Borrowers, the Administrative Agent or any
Lender may have against such Defaulting Lender.
(c) If the Company and the Administrative Agent agree in writing in their reasonable
determination that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which may include
arrangements with respect to any cash collateral), that Lender will, to the extent applicable,
purchase that portion of outstanding Advances of the other Lenders or take such other actions as
the Administrative Agent may determine to be necessary to cause such Advances to be held on a pro
rata basis by the Lenders in accordance with their pro rata share, whereupon such Lender will cease
to be a Defaulting Lender; provided that no adjustments will be made retroactively with
respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a
Defaulting Lender; and provided, further, that except to the extent otherwise
expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will
constitute a waiver or release of any claim of any party hereunder arising from such Lender’s
having been a Defaulting Lender.
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SECTION 2.14 Borrowings by Designated Borrowers. (a) The Company may, at any time
or from time to time, upon not less than 10 Business Day’s notice to the Administrative Agent,
designate one or more Subsidiaries organized in any of the jurisdictions listed on Schedule III or,
subject to the final two paragraphs of this clause (a) below, any other jurisdiction, as Borrowers
hereunder. Upon any such designation of a Subsidiary and the Administrative Agent’s receipt of
each of the following (copies of which will be promptly furnished by the Administrative Agent to
the Lenders), which shall be in form and substance reasonably satisfactory to the Administrative
Agent, such Subsidiary shall be a Designated Borrower and a Borrower entitled to make Borrowings on
and subject to the terms and conditions of this Agreement:
(i) Executed Counterparts. A designation letter (a “Designation
Letter”) in duplicate, in substantially the form of Exhibit F, duly completed and
executed by the Company and such Designated Borrower and delivered to the Administrative
Agent at least ten Business Days before the date on which such Subsidiary is to become a
Designated Borrower;
(ii) Opinion of Counsel to the Designated Borrower. A favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the date of the
Designation Letter) of reputable counsel to such Designated Borrower (which may be internal
counsel) in the relevant jurisdiction (and such Designated Borrower hereby and by delivery
of such Designation Letter instruct such counsel to deliver such opinion to the Lenders and
the Administrative Agent), as to the due organization of such Designated Borrower under the
laws of its jurisdiction of organization, the due authorization, execution and delivery by
such Designated Borrower of such Designation Letter and of the making of Borrowings by it
hereunder, the obtaining of all licenses, approvals and consents of, and the making of all
filings and registrations with, any applicable Governmental Authority required in connection
therewith and the legality, validity and
binding effect and enforceability thereof, and such other legal matters relating
thereto as the Administrative Agent may reasonably request;
(iii) Corporate Documents. Such documents and certificates as the
Administrative Agent may reasonably request (including without limitation certified copies
of the charter and by-laws of such Designated Borrower and of resolutions of its Board of
Directors authorizing such Designated Borrower’s acceptance of the Company’s designation as
a “Designated Borrower” and its becoming a Borrower under this Agreement, and of all
documents evidencing all other necessary corporate or other action required with respect to
such Designated Borrower becoming party to this Agreement;
(iv) Process Agent. Evidence that the Process Agent has agreed to act as
agent for service of process in New York, New York on behalf of such Designated Borrower
under the Loan Documents.
(v) Expenses. Evidence that such Designated Borrower or the Company shall
have paid any and all expenses reasonably incurred by the Administrative Agent (including
the reasonable fees and expenses of counsel to the Administrative Agent) in connection with
its designation as a Designated Borrower; and
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(vi) Other Items. Such other documents relating thereto as the
Administrative Agent or any Lender or special New York counsel to the Administrative Agent
may reasonably request, including any documentation and other evidence which may be
requested by the Administrative Agent or any Lender to comply with and/or administer any
“know your customer” or other customer identification related policies and procedures
required under applicable laws and regulations.
If the Company shall designate as a Designated Borrower hereunder any Subsidiary not
organized under the laws of the United States or any State thereof, any Lender may, with
notice to the Administrative Agent and the Company, fulfill its Commitment by causing an
Affiliate of such Lender to act as the Lender in respect of such Designated Borrower (and
such Lender shall, to the extent of Advances made to such Designated Borrower, be deemed for
all purposes hereof to have pro tanto assigned such Advances and participations to such
Affiliate in compliance with the provisions of Section 8.07).
As soon as practicable after receiving notice from the Company or the Administrative
Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any
event no later than five Business Days after the delivery of such notice, for a Designated
Borrower that is organized under the laws of a jurisdiction other than of the United States
or a political subdivision thereof or a jurisdiction listed on Schedule III, any Lender that
may not legally lend to, establish credit for the account of and/or do any business
whatsoever with such Designated Borrower directly or through an Affiliate of such Lender as
provided in the immediately preceding paragraph (a “Protesting Lender”) shall so
notify the Company and the Administrative Agent in writing. With respect to each Protesting
Lender, the Company shall, effective on or before the date that such Designated Borrower
shall have the right to borrow hereunder, either (A) notify the Administrative Agent and
such Protesting Lender that the Commitments of such Protesting Lender shall be terminated;
provided that such
Protesting Lender shall have received payment of an amount equal to the outstanding
principal of its Advances, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, or (B) cancel its request to designate such Subsidiary as a
“Designated Borrower” hereunder.
(b) So long as all principal of and interest on all Advances made to any Designated
Borrower and all other amounts payable by such Designated Borrower under this Agreement and
the other Loan Documents have been paid in full, the Company may terminate the status of
such Designated Borrower as a Borrower hereunder by furnishing to the Administrative Agent a
letter (a “Termination Letter”) in substantially the form of Exhibit G, duly completed and
executed by the Company. Any Termination Letter furnished hereunder shall be effective upon
receipt thereof by the Administrative Agent, which shall promptly so notify the Lenders.
Notwithstanding the foregoing, the delivery of a Termination Letter with respect to any
Designated Borrower shall not terminate (i) any obligation of such Borrower that remains
unpaid at the time of such delivery (including without limitation any obligation arising
thereafter in respect of such Borrower under Section 2.08 or Section 2.10) or (ii) the
obligations of the Company under Article IX with respect to any unpaid obligations of such
Borrower.
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SECTION 2.15 European Monetary Union. (a) Definitions. In this Section 2.15
and in each other provision of this Agreement to which reference is made in this Section 2.15
(whether expressly or impliedly), the following terms have the meanings given to them in this
Section 2.15:
“EMU” shall mean economic and monetary union as contemplated in the Treaty on
European Union.
“EMU Legislation” shall mean legislative measures of the European Council for
the introduction of, changeover to or operation of a single or unified European currency,
being in part the implementation of the third stage of EMU.
“Euro” shall mean the single currency of Participating Member States of the
European Union.
“Participating Member State” shall mean each state so described in any EMU
Legislation.
“Target Operating Day” shall mean any day that is not (i) a Saturday or Sunday,
(ii) Christmas Day or New Year’s Day or (iii) any other day on which the Trans-European
Real-time Gross Settlement Express Transfer system (or any successor settlement system) is
not operating (as determined by the Administrative Agent).
“Treaty on European Union” shall mean the Treaty of Rome of March 25, 1957, as
amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was signed at
Maastricht on February 7, 1992, and came into force on November 1, 1993), as amended from
time to time.
(b) Payments by the Administrative Agent Generally. With respect to the payment of
any amount denominated in the Euro, the Administrative Agent shall not be liable to the
Company or any of the Lenders in any way whatsoever for any delay, or the consequences of
any delay, in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken all relevant
steps to achieve, on the date required by this Agreement, the payment of such amount in
immediately available, freely transferable, cleared funds to the account of the Company or
any Lender, as the case may be, in the Principal Financial Center in the Participating
Member State which the Company or, as the case may be, such Lender shall have specified for
such purpose. In this paragraph (b), “all relevant steps” shall mean all such steps as may
be prescribed from time to time by the regulations or operating procedures of such clearing
or settlement system as the Administrative Agent may from time to time reasonably determine
for the purpose of clearing or settling payments of the Euro.
(c) Determination of Eurocurrency Rate. For the purposes of determining the date
on which the applicable rate for Eurocurrency Rate Advances is determined under this
Agreement for any Advance denominated in the Euro for any Interest Period therefor,
references in this Agreement to London Banking Days shall be deemed to be references to
Target Operating Days.
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ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01 Condition Precedent to Effectiveness.This Agreement shall become effective
as of the time of the delivery of all evidence referenced in clause (g) below on the date (the
“Effective Date”), which shall be on or before March 11, 2011, as of which the
Administrative Agent shall confirm to the Company that it has received the following, each dated
such day, in form and substance satisfactory to the Administrative Agent and (except for any Notes)
in sufficient copies for each Lender:
(a) Executed Counterparts. From each party hereto either (i) a counterpart
of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to
the Administrative Agent (which may include telecopy transmission of a signed signature page
to this Agreement) that such party has signed a counterpart of this Agreement;
(b) Authority and Approvals. Certified copies of the resolutions of the
Board of Directors of each of the Company and of the Subsidiary Guarantor (or equivalent
documents) authorizing and approving this Agreement, the other Loan Documents to which it is
a party and the transactions contemplated hereby and thereby and certified copies of all
documents evidencing all necessary corporate action and all other necessary action
(corporate, partnership or otherwise) and governmental approvals, if any, with respect to
this Agreement and the other Loan Documents to which it is a party;
(c) Secretary’s or Assistant Secretary’s Certificate. A certificate of the
Secretary or an Assistant Secretary of each of the Company and of the Subsidiary
Guarantor, dated the Effective Date, certifying the names and true signatures of the
officers of such Guarantor authorized to execute and deliver this Agreement, the Notes, and
the other documents to which it is a party and to be delivered hereunder;
(d) Legal Opinions. An opinion of counsel to the Company and of the
Subsidiary Guarantor, respectively, dated the Effective Date, substantially in the form of
Exhibit C-1 and Exhibit C-2 hereto and an opinion of special New York counsel to the
Administrative Agent, dated the Effective Date, substantially in the form of Exhibit C-3
hereto;
(e) Closing Certificate. A certificate of a senior financial officer of
the Company, dated the Effective Date, certifying that the representations and warranties
set forth in Article IV are true on such date as if made on and as of such date and that no
Default or Event of Default has occurred and is continuing on such date; and
(f) Termination of Commitments; Fees and Expenses. Evidence satisfactory
to the Administrative Agent that (i) the commitments under the Existing Credit Agreements
have been terminated and all accrued fees, expenses, interest, principal and other amounts
thereunder have been paid, and each of the Lenders that is a party to an Existing Credit
Agreement hereby waives any requirement of prior notice in respect of the termination of
commitments or prepayment of advances under such Existing Credit Agreement, and (ii) the
Company shall have paid to the Administrative Agent for account
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of the Lenders such up-front
fees in connection with the execution of this Agreement as the Company and the
Administrative Agent shall have agreed upon.
SECTION 3.02 Conditions Precedent to Each Advance. The obligation of each Lender
to make each Advance (including the initial Advance) as part of a Borrowing shall be subject to the
further conditions precedent that (i) on the date of such Borrowing the following statements shall
be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by the
relevant Borrower of the proceeds of such Advance shall constitute a representation and warranty by
such Borrower that on the date of such Advance the following statements shall be true): (x) the
representations and warranties contained in Section 4.01 (other than the Excluded Representation)
and, to the extent applicable, in the Designation Letter of such Borrower are correct in all
material respects on and as of the date of such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as though made on and as of such date
(it being understood and agreed that any representation or warranty which expressly refers by its
terms to a specified date shall be required to be true and correct in all material respects only as
of such date), and (y) no event has occurred and is continuing, or would result from such Borrowing
or from the application of the proceeds therefrom, that would constitute a Default or Event of
Default; and (ii) in the case of a requested Borrowing the proceeds of which are to be used to buy
or carry any Margin Stock, the Company shall deliver to the Administrative Agent a certificate of a
senior financial officer of the Company accompanying the relevant Notice of Borrowing setting forth
in reasonable detail the basis upon which the Company has made the representation set forth in the
third sentence of Section 4.01(l) on and as of the date of such Borrowing, before and after giving
effect to such Borrowing and to the application of the proceeds therefrom, together with (if so
requested by the Administrative Agent) a duly completed Form U-1 or Form G-3 satisfactory to the
Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Company. The Company
represents and warrants as follows:
(a) Corporate Existence. The Company is a corporation duly organized and
validly existing under the laws of the State of Connecticut. The Subsidiary Guarantor is a
corporation duly organized and validly existing under the laws of the State of Maryland.
(b) Corporate Authorization, Etc. The execution, delivery and performance
by each Guarantor of this Agreement and the Notes to which it is a party are within such
Guarantor’s corporate powers, have been duly authorized by all necessary corporate action
and do not contravene (i) the charter or bylaws of such Guarantor or (ii) any law or
contractual restriction binding on or affecting the Company or any of its Subsidiaries.
(c) No Approvals. No authorization, approval or action by, and no notice
to or filing with, any governmental authority or regulatory body is required for the due
execution, delivery and performance by either Guarantor of this Agreement or the Notes to
which it is a party.
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(d) Enforceability. This Agreement is and, upon issuance and delivery
thereof in accordance with this Agreement, each Note to which it is to be a party will be
the legal, valid and binding obligations of each Guarantor, enforceable against such
Guarantor in accordance with their respective terms.
(e) Financial Information. The consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of January 1, 2011, and the related statements of
income and retained earnings of the Company and its Consolidated Subsidiaries for the fiscal
year then ended, copies of which have been furnished to the Lenders, fairly present in all
material respects the financial condition of the Company and its Consolidated Subsidiaries
as of such date and the results of the operations of the Company and its Consolidated
Subsidiaries for the period ended on such date, all in accordance with GAAP consistently
applied.
(f) No Litigation. Except as disclosed or otherwise reflected in the
Company’s Annual Report on Form 10-K for the year ended January 1, 2011, there is no pending
or (to the best of the Company’s knowledge) threatened action or proceeding against the
Company or any of its Subsidiaries or relating to any of their respective properties before
any court, governmental agency or arbitrator, which could reasonably be expected to have a
Material Adverse Effect or which purports to affect the legality, validity or enforceability
of this Agreement or any Note.
(g) No Material Adverse Effect. Since January 1, 2011, there has been no
event, act or condition which has had a Material Adverse Effect.
(h) Environmental Matters. Except as disclosed or otherwise reflected in
the Company’s Annual Report on Form 10-K for the year ended January 1, 2011, neither the
Company nor any of its Subsidiaries has received notice or otherwise obtained knowledge of
any claim, demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect arising in connection with
(i) any non-compliance with or violation of the requirements of any applicable federal,
state or local environmental health or safety statutes or regulations, or (ii) the release
or threatened release of any toxic or hazardous waste, substance or constituent into the
environment.
(i) Investment Company. Neither Guarantor is an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.
(j) Disclosure. The information furnished in writing by or on behalf of
any Loan Party to the Lenders in connection with the negotiation, execution and delivery of
this Agreement or any other Loan Document does not contain any material misstatements of
fact or omit to state a material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading.
(k) No Defaults. Neither Guarantor (i) is in default under or with respect
to this Agreement or any Note to which it is a party, and (ii) is in default under or with
respect to any other agreement, instrument or undertaking to which it is a party or by
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which it or any of its property is bound in any respect which could reasonably be
expected to result in a Material Adverse Effect.
(l) Use of Proceeds, Etc. All proceeds of each Advance will be used by each
Borrower only in accordance with the provisions of Section 2.12. No Borrower is or will be
engaged in the business of extending credit for the purpose of buying or carrying Margin
Stock and no proceeds of any Advance will be used to extend credit to others for the purpose
of buying or carrying any Margin Stock. Neither the making of any Advance nor the use of
the proceeds thereof will violate or be inconsistent with the provisions of Regulations U or
X issued by the Board of Governors of the Federal Reserve System.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01 Affirmative Covenants. So long as any Advance or any other amount owing
hereunder shall remain unpaid or any Lender shall have any Commitment hereunder:
(a) Financial Information. The Company will furnish to the Lenders:
(i) Quarterly Financial Statements. Within 50 days after the close of each
quarterly accounting period in each fiscal year of the Company, the consolidated balance
sheet of the Company and its Consolidated Subsidiaries as at the end of such quarterly
period and the related consolidated and consolidating statements of income, retained
earnings and cash flows for such quarterly period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, in each case setting forth
comparative figures for the related periods in the prior fiscal year.
(ii) Annual Financial Statements. Within 95 days after the close of each
fiscal year of the Company, the consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at the end of such fiscal year and the related consolidated
statement of income, retained earnings and cash flows for such fiscal year, setting forth
comparative figures for the preceding fiscal year and reported on without qualification by
independent certified public accountants of recognized national standing, in each case
together with a report of such accounting firm stating that in the course of its regular
audit of the consolidated financial statements of the Company, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm has obtained no
knowledge of any Default or Event of Default relating to accounting matters (including,
without limitation, in respect of Section 5.01(f)), or if in the opinion of such accounting
firm such a Default or Event of Default has occurred and is continuing, a statement as to
the nature thereof.
(iii) Officer’s Certificates. At the time of the delivery of the financial
statements under clauses (i) and (ii) above, a certificate of a senior financial officer of
the Company which certifies (x) that such financial statements fairly present the financial
condition and the results of operations of the Company and its Consolidated Subsidiaries
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on the dates and for the periods indicated, and (y) that such officer has reviewed the
terms of this Agreement and has made, or caused to be made under his or her supervision, a
review in reasonable detail of the business and condition of the Company and its
Consolidated Subsidiaries during the accounting period covered by such financial statements,
and that as a result of such review such officer has concluded that no Default or Event of
Default has occurred during the period commencing at the beginning of the accounting period
covered by the financial statements accompanied by such certificate and ending on the date
of such certificate or, if any Default or Event of Default has occurred, specifying the
nature and extent thereof and, if continuing, the action the Company proposes to take in
respect thereof. Such certificate shall set forth the calculations required to establish
whether the Company was in compliance with the provisions of Section 5.01(f) for the
twelve-month period ending as at the end of the accounting period covered by the financial
statements accompanied by such certificate.
(iv) Notice of Default or Litigation. Promptly after any Loan Party obtains
knowledge thereof, notice of (i) the occurrence of any Default or Event of Default, or (ii)
any litigation or governmental proceeding pending or threatened against any Loan Party or
other event, act or condition which could reasonably be expected to result in a Material
Adverse Effect.
(v) SEC Filings. Promptly upon transmission thereof, copies of all regular and
periodic financial information, proxy materials and other information and reports, if any,
which the Company shall file with the Securities and Exchange Commission or any governmental
agencies substituted therefor or which the Company shall send to its stockholders.
(vi) Other Information. From time to time, and as soon as reasonably
practicable, such other information or documents (financial or otherwise) as any Lender
through the Administrative Agent may from time to time reasonably request.
Reports and financial statements required to be delivered by the Company pursuant clauses (i), (ii)
and (v) of this Section 5.01 (a) shall be deemed to have been delivered on the date on which it
posts such reports, or reports containing such financial statements, on its website on the Internet
at xxx.xxxxxxxxxxxxxxxxxxxxx.xxx, or when such reports, or reports containing such
financial statements are posted on the website of the Securities and Exchange Commission at
xxx.xxx.xxx; provided that it shall deliver such paper copies of the reports and financial
statements referred to in Clauses (i), (ii) and (v) of this Section 5.01(a) to the Administrative
Agent or any Lender who request it to deliver such paper copies until written notice to cease
delivering paper copies is given by the Administrative Agent or such Lender.
(b) Compliance with Law. The Company shall, and shall cause each of its
Subsidiaries to, comply with all applicable laws, rules, statutes, regulations, decrees and
orders of all governmental bodies, domestic or foreign, in respect of the conduct of their
business and the ownership of their property, except such non-compliance as could not
reasonably be expected to result in a Material Adverse Effect at the time of such
non-compliance or in the foreseeable future.
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(c) Payment of Taxes. The Company shall pay or cause to be paid, and
shall cause each of its Subsidiaries to pay or cause to be paid, when due, all taxes,
charges and assessments and all other lawful claims required to be paid by the Company or
such Subsidiaries, except (x) as contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves have been established with respect thereto in
accordance with GAAP and (y) where such nonpayment could not reasonably be expected to
result in a Material Adverse Effect.
(d) Preservation of Corporate Existence. Except as otherwise permitted by this
Agreement, the Company shall, and shall cause each of its Subsidiaries to, do all things
necessary to preserve, renew and keep in full force and effect its corporate existence and
the licenses, permits, rights and franchises necessary to the proper conduct of its
business, except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any of its Subsidiaries will engage in any
business if, as a result, the general nature of the business, taken on a consolidated basis,
which would then be engaged in by the Company and its Subsidiaries would be substantially
changed from the general nature of the business engaged in by the Company and its
Subsidiaries on the date of this Agreement.
(e) Maintenance of Books and Records. The Company will maintain financial
records in accordance with GAAP, consistently applied. The representatives of the
Administrative Agent or any of the Lenders shall have the right to visit and inspect any of
the properties of the Company and of any of its Subsidiaries, to examine their books of
account and records and take notes and make transcripts therefrom, and to discuss their
affairs, finances and accounts with, and be advised as to the same by, their officers upon
reasonable prior notice at such reasonable times and intervals as may be requested (subject
to the standard policies of the Company and its Subsidiaries as to access, safety and,
without prejudice to the reasonable requirements of lending institutions and their
regulatory supervisors, confidentiality).
(f) Interest Coverage Ratio. The Company shall maintain, for each period of
four consecutive fiscal quarters of the Company, an Interest Coverage Ratio of not less than
3.50 to 1.00.
SECTION 5.02 Negative Covenants. So long as any Advance or any other amount owing
hereunder shall remain unpaid or any Lender shall have any Commitment hereunder:
(a) No Liens. The Company shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist, directly or indirectly, any Lien
on any Principal Property now owned or hereafter acquired (unless the Company secures the
Advances made hereunder equally and ratably with such Lien), other than:
(i) Liens existing and disclosed to the Lenders in writing prior to the date hereof;
(ii) Liens for taxes not yet due or which are being contested in good faith by
appropriate proceedings diligently conducted and with respect to which adequate reserves are
being maintained in accordance with GAAP;
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(iii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and other 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
diligently conducted and with respect to which adequate bonds have been posted;
(iv) Liens incurred or deposits made in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(v) easements, rights-of-way, zoning and similar restrictions and other similar charges
or encumbrances not interfering with the ordinary conduct of the business of the Company or
any of its Subsidiaries and which do not detract materially from the value of the property
to which they attach or impair materially the use thereof by the Company or any of its
Subsidiaries;
(vi) Liens on property of any Person existing at the time such Person becomes a
Subsidiary of the Company and not created in contemplation thereof;
(vii) Liens securing Indebtedness owed by a Subsidiary of the Company to the Company or
another Subsidiary of the Company;
(viii) any Lien arising solely by operation of law in the ordinary course of business
or which is contained in a contract for the purchase or sale of goods or services entered
into in the ordinary course of business;
(ix) Liens on any property existing at the time of acquisition but only if the amount
of outstanding Indebtedness secured thereby does not exceed the lesser of the fair market
value or the purchase price of the property as purchased;
(x) any Lien securing the purchase price of revenues or assets purchased after the date
hereof or the cost of repairing or altering, constructing, developing or substantially
improving all or any part of such revenues or assets; provided that such Lien
attaches only to such revenues or assets (including any improvements) and the Indebtedness
thereby secured does not exceed the lesser of the fair market value or the purchase price of
the revenues or assets (including any improvements) as purchased;
(xi) any other Liens on Principal Properties securing Indebtedness which in the
aggregate, together with Attributable Debt, does not exceed 10% of Consolidated Net Worth at
any time outstanding; and
(xii) any extension, renewal or replacement of any of the Liens referred to above;
provided that the Indebtedness secured by any such extension, renewal or replacement
does not exceed the sum of the principal amount of the Indebtedness originally secured
thereby and any fee incurred in connection with such transaction.
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(b) Merger, Etc. The Company shall not (i) enter into any merger or
consolidation, or liquidate, wind up or dissolve (or suffer any liquidation, wind-up or
dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose
of, in one transaction or series of transactions, all or substantially all of its business
or property, whether now or hereafter acquired, or (ii) permit any of its Subsidiaries to do
so, if such action could reasonably be expected to have a Material Adverse Effect, except
that (1) any wholly-owned Subsidiary of the Company may merge into or convey, sell, lease or
transfer all or substantially all of its assets to, the Company or any other wholly-owned
Subsidiary of the Company and (2) the Company or any of its Subsidiaries may enter into any
merger or consolidation so long as in the case of a transaction involving the Company, the
Company, or in the case of any other transaction, a Subsidiary of the Company, is the
surviving entity in such transaction and, after giving effect thereto, no Default or Event
of Default shall have occurred or be continuing.
(c) Sale-Leasebacks. The Company shall not, and shall not permit any of its
Subsidiaries to, become liable, directly or indirectly, with respect to any lease, whether
an operating lease or a Capital Lease, of any property (whether real or personal or mixed)
whether now owned or hereafter acquired, (i) which the Company or such Subsidiary has sold
or transferred or is to sell or transfer to any other Person, or (ii) which the Company or
such Subsidiary intends to use for substantially the same purposes as any other property
which has been or is to be sold or transferred by the Company or such Subsidiary to any
other Person in connection with such lease. Notwithstanding the foregoing, the Company and
its Subsidiaries shall be permitted to become liable with respect to the leases described
above so long as all Attributable Debt, together with the Liens described in Section
5.02(a)(xi), does not exceed 10% of Consolidated Net Worth at any time outstanding.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following events (“Events of Default”)
shall occur and be continuing:
(a) Any Borrower shall fail to pay when due (or, if any such failure is due solely to
technical or administrative difficulties relating to the transfer of such amounts, within
two Business Days after its due date) any principal of any Advance; or any Borrower shall
fail to pay when due any interest on any Advance, any fee (other than the fees referenced in
Section 2.03) or any other amount payable by it hereunder or under any Note and five (5)
days shall have elapsed from the date such interest, fees or other amounts were due; or with
respect to the fees payable pursuant to Section 2.03, any Borrower shall fail to pay any
such fee when due and two Business Days shall have elapsed from the Company’s receipt of
notice of such nonpayment from the Administrative Agent or any Lender; or
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(b) Any representation or warranty made by any Loan Party herein or pursuant to
this Agreement or any other Loan Document (including without limitation in any certificate
of such Loan Party delivered pursuant hereto) shall prove to have been incorrect in any
material respect when made or deemed made; or
(c) The Company or any other Loan Party, as applicable, shall fail to perform any term,
covenant or agreement contained in Section 5.01(a)(iv), the first sentence of 5.01(d),
5.01(f) or 5.02 on its part to be performed or observed; or
(d) Any Loan Party shall fail to perform any term, covenant or agreement contained in
this Agreement (except those described in clauses (a) and (c) above) and such failure shall
continue for 30 days; or
(e) A court having jurisdiction in the premises shall enter a decree or order for
relief in respect of any Loan Party or any Principal Subsidiary in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or other
similar official of such Loan Party or such Principal Subsidiary or for any substantial part
of its property, or ordering the winding up or liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days; or
(f) Any Loan Party or any Principal Subsidiary shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
shall consent to the entry of any order for relief in an involuntary case under any such
law, or shall consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such Loan Party or such
Principal Subsidiary or for any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action in furtherance of any of the foregoing; or
(g) (A) Any Loan Party or any Principal Subsidiary shall fail to make any payment in
respect of Indebtedness when due (whether by scheduled maturity, required prepayment,
acceleration or otherwise, but after giving effect to any applicable grace period ) if the
aggregate amount of such payment is $100,000,000 or more, or (B) any breach, default or
event of default shall occur and be continuing (and applicable grace and notice periods
shall have expired) under any agreement or indenture relating to any Indebtedness of such
Loan Party or such Principal Subsidiary in an aggregate amount of $100,000,000 or more, and,
except in the case of financial covenant defaults, the maturity of any such Indebtedness has
been accelerated in accordance with the terms thereof; or
(h) (A) Any Termination Event shall occur, or (B) any Plan shall have an unfunded
liability, which means the excess, if any, of a Plan’s benefit liabilities under Section
4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in accordance
with the assumptions used for funding that Plan pursuant to Section 412 of the Internal
Revenue Code for the applicable plan year, or (C) the Company or any member of its ERISA
Controlled Group shall fail to pay when due an amount which it shall have become liable to
pay to the PBGC, any Plan or a trust established under Title
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IV of ERISA, or (D) a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that an ERISA Plan must be terminated or have a
trustee appointed to administer any ERISA Plan, or (E) the Company or a member of its ERISA
Controlled Group suffers a partial or complete withdrawal from a Multiemployer Plan or is in
“default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan, or (F) a proceeding shall be instituted against the Company or any
member of its ERISA Controlled Group to enforce Section 515 of ERISA, or (G) any other event
or condition shall occur or exist with respect to any Plan, if such events, transactions or
conditions set forth in clauses (A) through (G) above could singly or in the aggregate be
reasonably expected to have a Material Adverse Effect; or
(i) If there shall remain in force, undischarged, unsatisfied and unstayed, for more
than 30 days, whether or not consecutive, any final judgment against any Loan Party or any
Principal Subsidiary which, when added to any other outstanding final judgments which remain
undischarged, unsatisfied and unstayed for more than 30 days against such Loan Party or any
such Principal Subsidiary, exceeds $100,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare the obligation of each Lender
to make Advances to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice to the Company, declare
all Advances, the Notes, all interest thereon and all other amounts payable under this Agreement to
be forthwith due and payable, whereupon all Advances, the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by each Borrower;
provided, however, that in the case of any of the Events of Default specified in
clauses (e) or (f) above with respect to any Borrower, (A) the obligation of each Lender to make
Advances shall automatically be terminated and (B) the Advances, the Notes, all such interest and
all such amounts shall automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by each Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment and Authority. Each Lender hereby irrevocably appoints
Citibank to act on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this
Article (other than the provisions of Section 7.07) are solely for the benefit of the
Administrative Agent and the Lenders, and neither the Company nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions.
SECTION 7.02 Administrative Agent Individually. (a) The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the Administrative
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Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless
the context otherwise requires, include the Person serving as the Administrative Agent hereunder in
its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to,
act as the financial advisor or in any other advisory capacity for and generally engage in any kind
of business with the Company or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
(b) Each Lender understands that the Person serving as Administrative Agent, acting in
its individual capacity, and its Affiliates (collectively, the “Agent’s Group”) are engaged
in a wide range of financial services and businesses (including investment management,
financing, securities trading, corporate and investment banking and research) (such services
and businesses are collectively referred to in this Section 7.02 as “Activities”) and may
engage in the Activities with or on behalf of one or more of the Loan Parties or their
respective Affiliates. Furthermore, the Agent’s Group may, in undertaking the Activities,
engage in trading in financial products or undertake other investment businesses for its own
account or on behalf of others (including the Loan Parties and their Affiliates and
including holding, for its own account or on behalf of others, equity, debt and similar
positions in the Company, another Loan Party or their respective Affiliates), including
trading in or holding long, short or derivative positions in securities, loans or other
financial products of one or more of the Loan Parties or their Affiliates. Each Lender
understands and agrees that in engaging in the Activities, the Agent’s Group may receive or
otherwise obtain information concerning the Loan Parties or their Affiliates (including
information concerning the ability of the Loan Parties to perform their respective
Obligations hereunder and under the other Loan Documents) which information may not be
available to any of the Lenders that are not members of the Agent’s Group. None of the
Administrative Agent or any member of the Agent’s Group shall have any duty to disclose to
any Lender or use on behalf of the Lenders, and shall not be liable for the failure to so
disclose or use, any information whatsoever about or derived from the Activities or
otherwise (including any information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any Loan Party or any
Affiliate of any Loan Party) or to account for any revenue or profits obtained in connection
with the Activities, except that the Administrative Agent shall deliver or otherwise make
available to each Lender such documents as are expressly required by any Loan Document to be
transmitted by the Administrative Agent to the Lenders.
(c) Each Lender further understands that there may be situations where members of the
Agent’s Group or their respective customers (including the Loan Parties and their
Affiliates) either now have or may in the future have interests or take actions that may
conflict with the interests of any one or more of the Lenders (including the interests of
the Lenders hereunder and under the other Loan Documents). Each Lender agrees that no
member of the Agent’s Group is or shall be required to restrict its activities as a result
of the Person serving as Administrative Agent being a member of the Agent’s Group, and that
each member of the Agent’s Group may undertake any Activities without further consultation
with or notification to any Lender. None of (i) this Agreement or any other Loan Document,
(ii) the receipt by the Agent’s Group of information (including
Information) concerning the Loan Parties or their Affiliates (including information
concerning the ability of the Loan Parties to perform their respective Obligations
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hereunder and under the other Loan Documents) or (iii) any other matter shall give rise
to any fiduciary, equitable or contractual duties (including without limitation any duty of
trust or confidence) owing by the Administrative Agent or any member of the Agent’s Group to
any Lender including any such duty that would prevent or restrict the Agent’s Group from
acting on behalf of customers (including the Loan Parties or their Affiliates) or for its
own account.
SECTION 7.03 Duties of Administrative Agent; Exculpatory Provisions. (a) The
Administrative Agent’s duties hereunder and under the other Loan Documents are solely ministerial
and administrative in nature and the Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, but shall be required to act or refrain
from acting (and shall be fully protected in so acting or refraining from acting) upon the written
direction of the Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided that the Administrative
Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent or any of its Affiliates to liability or that is contrary to
any Loan Document or applicable law.
(b) The Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall
believe in good faith shall be necessary, under the circumstances as provided in Sections
8.01 or 8.03) or (ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default or Event of
Default or the event or events that give or may give rise to any Default or Event of Default
unless and until the Company or any Lender shall have given notice to the Administrative
Agent describing such Default or Event of Default and such event or events.
(c) Neither the Administrative Agent nor any member of the Agent’s Group shall be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty,
representation or other information made or supplied in or in connection with this
Agreement, any other Loan Document or the Information Memorandum, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in connection
herewith or therewith or the adequacy, accuracy and/or completeness of the information
contained therein, (iii) the performance or observance of any of the covenants, agreements
or other terms or conditions set forth herein or therein or the occurrence of any Default or
Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other Loan Document or (v) the satisfaction of any condition set forth in
Article 3 or elsewhere herein, other than (but subject to the foregoing clause (ii)) to
confirm receipt of items expressly required to be delivered to the Administrative Agent.
(d) Nothing in this Agreement or any other Loan Document shall require the
Administrative Agent or any of its Related Parties to carry out any “know your customer” or
other checks in relation to any Person on behalf of any Lender and each Lender confirms to
the Administrative Agent that it is solely responsible for any such checks it is
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required to carry out and that it may not rely on any statement in relation to such
checks made by the Administrative Agent or any of its Related Parties.
SECTION 7.04 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Borrowing that by its terms
must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless an officer of the Administrative Agent responsible
for the transactions contemplated hereby shall have received notice to the contrary from such
Lender prior to the making of such Loan, and such Lender shall not have made available to the
Administrative Agent such Lender’s ratable portion of such Borrowing. The Administrative Agent may
consult with legal counsel (who may be counsel for the Company or any other Loan Party),
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.
SECTION 7.05 Indemnification. The Lenders agree to indemnify the Administrative Agent
(to the extent not reimbursed by the Company), ratably according to the respective principal
amounts of their Commitments, as then or most recently in effect, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of this Agreement and the
Notes, or any action taken or omitted by the Administrative Agent under this Agreement and the
Notes, provided that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are
found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted
from the Administrative Agent’s gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent is not reimbursed for such expenses by the Company.
SECTION 7.06 Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of its duties and
exercise its rights and powers by or through their respective Related Parties. Each such
sub-agent and the Related Parties of the Administrative Agent and each such sub-agent shall be
entitled to the benefits of all provisions of this Article 7 and Section 8.04 (as though such
sub-agents were the “Administrative Agent” under the Loan Documents) as if set forth in full herein
with respect thereto.
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SECTION 7.07 Resignation of Administrative Agent. The Administrative Agent may
at any time give notice of its resignation to the Lenders and the Company. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor, which shall be a bank with an office in New York, or an Affiliate
of any such bank with an office in New York, and which successor shall be reasonably acceptable to
the Company. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation (such 30-day period, the “Lender Appointment Period”), then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent
meeting the qualifications set forth above. In addition and without any obligation on the part of
the retiring Administrative Agent to appoint, on behalf of the Lenders, a successor Administrative
Agent, the retiring Administrative Agent may at any time upon or after the end of the Lender
Appointment Period notify the Company and the Lenders that no qualifying Person has accepted
appointment as successor Administrative Agent and the effective date of such retiring
Administrative Agent’s resignation. Upon the resignation effective date established in such notice
and regardless of whether a successor Administrative Agent has been appointed and accepted such
appointment, the retiring Administrative Agent’s resignation shall nonetheless become effective and
(i) the retiring Administrative Agent shall be discharged from its duties and obligations as
Administrative Agent hereunder and under the other Loan Documents and (ii) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this paragraph. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties as
Administrative Agent of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations as Administrative
Agent hereunder or under the other Loan Documents (if not already discharged therefrom as provided
above in this paragraph). The fees payable by the Company to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed between the Company
and such successor. After the retiring Administrative Agent’s resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 8.04 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
SECTION 7.08 Non-Reliance on Administrative Agent and Other Parties. (a) Each Lender
confirms to the Administrative Agent, each other Lender and each of their respective Related
Parties that it (i) possesses (individually or through its Related Parties) such knowledge and
experience in financial and business matters that it is capable, without reliance on the
Administrative Agent, any other Lender or any of their respective Related Parties, of evaluating
the merits and risks (including tax, legal, regulatory, credit, accounting and other
financial matters) of (x) entering into this Agreement, (y) making Loans and other extensions
of credit hereunder and under the other Loan Documents and (z) taking or not taking actions
hereunder and thereunder, (ii) is financially able to bear such risks and (iii) has determined that
entering into this Agreement and making Loans and other extensions of credit hereunder and under
the other Loan Documents is suitable and appropriate for it.
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(b) Each Lender acknowledges that (i) it is solely responsible for making its own
independent appraisal and investigation of all risks arising under or in connection with
this Agreement and the other Loan Documents, (ii) it has, independently and without reliance
upon the Administrative Agent, any other Lender or any of their respective Related Parties,
made its own appraisal and investigation of all risks associated with, and its own credit
analysis and decision to enter into, this Agreement based on such documents and information,
as it has deemed appropriate and (iii) it will, independently and without reliance upon the
Administrative Agent, any other Lender or any of their respective Related Parties, continue
to be solely responsible for making its own appraisal and investigation of all risks arising
under or in connection with, and its own credit analysis and decision to take or not take
action under, this Agreement and the other Loan Documents based on such documents and
information as it shall from time to time deem appropriate, which may include, in each case:
(i) the financial condition, status and capitalization of the Company and each other
Loan Party;
(ii) the legality, validity, effectiveness, adequacy or enforceability of this
Agreement and each other Loan Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with any Loan
Document;
(iii) determining compliance or non-compliance with any condition hereunder to the
making of a Loan and the form and substance of all evidence delivered in connection with
establishing the satisfaction of each such condition; and
(iv) the adequacy, accuracy and/or completeness of the Information Memorandum and any
other information delivered by the Administrative Agent, any other Lender or by any of their
respective Related Parties under or in connection with this Agreement or any other Loan
Document, the transactions contemplated hereby and thereby or any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in
connection with any Loan Document.
SECTION 7.09 No Other Duties, Etc. Anything herein to the contrary notwithstanding,
none of the Persons acting as Bookrunners, Lead Arrangers or Syndication Agent listed on the cover
page hereof shall have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or as a
Lender hereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, nor consent to any departure by any Loan Party therefrom,
shall in any event be effective unless the same shall be in writing and signed by the Company and
the relevant other Loan Party, if applicable, and the Required Lenders, and then
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49
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that (a) the written consent of the Company and each
Lender directly affected thereby shall be required in order to amend or waive any provision of the
Agreement or the Notes which would have the effect of (i) a reduction in principal, interest or
fees payable to such Lender under this Agreement or the Notes, (ii) the postponement of any date
fixed for the payment of any principal, interest or fees under this Agreement or the Notes
(excluding any such postponement pursuant to Section 2.01(d)), (iii) an increase in the Commitments
(excluding any such increases pursuant to Section 2.01(c)) or (iv) amending or waiving compliance
Section 2.08; (b) the written consent of the Company and all the Lenders shall be required in order
to amend or waive any provision of the Agreement or the Notes which would have the effect of (i)
amending or waiving compliance with the last sentence of Section 2.01(a), Section 8.05 or this
Section 8.01, (ii) amending the definition of Required Lenders or (iii) any release or modification
of any Guarantor’s guarantee under Article IX; (c) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Administrative Agent under this Agreement, and (d)
the Commitment of any Lender shall not be extended without the prior written consent of such
Lender.
SECTION 8.02 Notices, Communications and Treatment of Information. (a)
Notices. (i) All notices, demands, requests, consents and other communications provided
for in this Agreement shall be given in writing, or by any telecommunication device capable of
creating a written record (including electronic mail), and addressed to the party to be notified as
follows:
(1) | if to the Company or any other Loan Party, |
Xxxxxxx Xxxxx & Xxxxxx , Inc.
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxxx 00000
Attention of: Treasurer
Telecopier No.: (000) 000-0000
E-Mail Address:
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxxx 00000
Attention of: Treasurer
Telecopier No.: (000) 000-0000
E-Mail Address:
(2) | if to the Administrative Agent |
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of:
Telecopier No.:
E-Mail Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of:
Telecopier No.:
E-Mail Address:
(3) if to any Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire
or at such other address as shall be notified in writing (x) in the case of the Company and the
Administrative Agent, to the other parties and (y) in the case of all other parties, to the Company
and the Administrative Agent.
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50
(ii) All notices, demands, requests, consents and other communications described
in clause (i) shall be effective (1) if delivered by hand, including any overnight courier
service, upon personal delivery, (2) if delivered by mail, when deposited in the mails, (3)
if delivered by posting to an Approved Electronic Platform, an Internet website or a similar
telecommunication device requiring that a user have prior access to such Approved Electronic
Platform, website or other device (to the extent permitted by Section 8.02(b) to be
delivered thereunder), when such notice, demand, request, consent and other communication
shall have been made generally available on such Approved Electronic Platform, Internet
website or similar device to the class of Person being notified (regardless of whether any
such Person must accomplish, and whether or not any such Person shall have accomplished, any
action prior to obtaining access to such items, including registration, disclosure of
contact information, compliance with a standard user agreement or undertaking a duty of
confidentiality) and such Person has been notified in respect of such posting that a
communication has been posted to the Approved Electronic Platform and (4) if delivered by
electronic mail or any other telecommunications device, when transmitted to an electronic
mail address (or by another means of electronic delivery) as provided in clause (i);
provided, however, that notices and communications to the Administrative Agent
pursuant to Article 7 shall not be effective until received by the Administrative Agent; and
provided further, however, that notices and communications to the Company delivered via
telecopier, electronic mail or other telecommunications device shall not be effective until
verbal confirmation of receipt of such communication by the Treasurer is provided to the
sending party.
(iii) Notwithstanding clauses (i) and (ii) (unless the Administrative Agent requests
that the provisions of clause (i) and (ii) be followed) and any other provision in this
Agreement or any other Loan Document providing for the delivery of any Approved Electronic
Communication by any other means, the Loan Parties shall deliver all Approved Electronic
Communications to the Administrative Agent by properly transmitting such Approved Electronic
Communications in an electronic/soft medium in a format acceptable to the Administrative
Agent to xxxxxxxxxxxxxxx@xxxxxxxxx.xxx or such other electronic mail address (or similar
means of electronic delivery) as the Administrative Agent may notify to the Company.
Nothing in this clause (iii) shall prejudice the right of the Administrative Agent or any
Lender to deliver any Approved Electronic Communication to any Loan Party in any manner
authorized in this Agreement or to request that the Company effect delivery in such manner.
(b) Posting of Approved Electronic Communications. (i) Each of the Lenders and each
Loan Party agrees that the Administrative Agent may, but shall not be obligated
to, make the Approved Electronic Communications available to the Lenders by posting
such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic
platform chosen by the Administrative Agent to be its electronic transmission system (the
“Approved Electronic Platform”).
(ii) Although the Approved Electronic Platform and its primary web portal are secured
with generally-applicable security procedures and policies implemented or modified by the
Administrative Agent from time to time (including, as of the Closing Date, a dual firewall
and a User ID/Password Authorization System) and the Approved Electronic Platform is secured
through a single-user-per-deal authorization method whereby each user may access the
Approved Electronic Platform only on a deal-by-deal
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51
basis, each of the Lenders and each Loan Party acknowledges and agrees that the
distribution of material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such distribution. In
consideration for the convenience and other benefits afforded by such distribution and for
the other consideration provided hereunder, the receipt and sufficiency of which is hereby
acknowledged, each of the Lenders and each Loan Party hereby approves distribution of the
Approved Electronic Communications through the Approved Electronic Platform and understands
and assumes the risks of such distribution.
(c) (i) THE APPROVED ELECTRONIC PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS
ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NONE OF THE ADMINISTRATIVE AGENT OR ANY OTHER
MEMBER OF THE AGENT’S GROUP WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED
ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM AND EACH EXPRESSLY DISCLAIMS
ANY LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC COMMUNICATIONS OR THE
APPROVED ELECTRONIC PLATFORM EXCEPT FOR ERRORS OR OMISSIONS CAUSED BY THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF THE ADMINISTRATIVE AGENT OR ANY OTHER MEMBER OF THE AGENT’S GROUP.
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN
CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM.
(ii) Each of the Lenders and each Loan Party agrees that the Administrative Agent may,
but (except as may be required by applicable law) shall not be obligated to, store the
Approved Electronic Communications on the Approved Electronic Platform in accordance with
the Administrative Agent’s generally-applicable document retention procedures and policies.
(d) Confidentiality. Each of the Administrative Agent and the Lenders agree to
maintain the confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
managers, administrators, trustees, partners, directors, officers, employees, agents,
advisors and other representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it or its Affiliates (including
any self-regulatory authority, such as the National Association of Insurance Commissioners),
(c) to the extent required by applicable laws or regulations or by any subpoena or similar
legal process or in connection with assignments or pledges made in accordance with Section
8.08(c), (d) to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially
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52
the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective party and direct or indirect counterparty (or
its managers, administrators, trustees, partners, directors, officers, employees, agents,
advisors and other representatives) to any swap, derivative or other transaction under which
payments are to be made by reference to the Company and its obligations, this Agreement or
payments hereunder or other credit insurance provider relating to the Company and its
obligations, this Agreement or payments hereunder, (iii) any rating agency, or (iv) the
CUSIP Service Bureau or any similar organization, (g) with the consent of the Company or (h)
to the extent such Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Administrative Agent, any Lender or
any of their respective Affiliates on a nonconfidential basis from a source other than the
Company.
For purposes of this Section, “Information” means all information received from the
Company or any of its Subsidiaries relating to the Company or any of its Subsidiaries or any of
their respective businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Company or
any of its Subsidiaries, provided that, in the case of information received from the
Company or any of its Subsidiaries 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.
(e) Treatment of Information. (i) Certain of the Lenders may enter into this
Agreement and take or not take action hereunder or under the other Loan Documents on the
basis of information that does not contain material non-public information with respect to
any of the Loan Parties or their securities (“Restricting Information”). Other Lenders may
enter into this Agreement and take or not take action hereunder or under the other Loan
Documents on the basis of information that may contain Restricting Information. Each Lender
acknowledges that United States federal and state securities laws prohibit any person from
purchasing or selling securities on the basis of material, non-public information concerning
the issuer of such securities or, subject to certain limited exceptions, from communicating
such information to any other Person. Neither the Administrative Agent nor any of its
Related Parties shall, by making any Communications (including Restricting Information)
available to a Lender, by participating in any conversations or other interactions with a
Lender or otherwise, make or be deemed to make any statement with regard to or otherwise
warrant that any such information or Communication does or does not contain Restricting
Information nor shall the Administrative Agent or any of its Related Parties be responsible
or liable in any way for any decision a Lender may make to limit or to not limit its access
to Restricting Information. In particular, none of the Administrative Agent or any of its
Related Parties (i) shall have, and the Administrative Agent, on behalf of itself and each
of its Related Parties, hereby disclaims, any duty to ascertain or inquire as to whether or
not a Lender has or has not limited its access to Restricting Information, such Lender’s
policies or procedures regarding the safeguarding of material, nonpublic information or such
Lender’s compliance with applicable laws related thereto or (ii) shall have, or incur, any
liability to any Loan Party or Lender or any of their respective Related Parties arising out
Four Year Credit Agreement
53
of or relating to the Administrative Agent or any of its Related Parties providing or
not providing Restricting Information to any Lender.
(ii) Each Loan Party agrees that (i) all Communications it provides to the
Administrative Agent intended for delivery to the Lenders whether by posting to the Approved
Electronic Platform or otherwise shall be clearly and conspicuously marked “PUBLIC” if such
Communications do not contain Restricting Information which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking
Communications “PUBLIC,” each Loan Party shall be deemed to have authorized the
Administrative Agent and the Lenders to treat such Communications as either publicly
available information or not material information (although, in this latter case, such
Communications may contain sensitive business information and, therefore, remain subject to
the confidentiality undertakings of Section 8.02(c)) with respect to such Loan Party or its
securities for purposes of United States Federal and state securities laws, (iii) all
Communications marked “PUBLIC” may be delivered to all Lenders and may be made available
through a portion of the Approved Electronic Platform designated “Public Side Information,”
and (iv) the Administrative Agent shall be entitled to treat any Communications that are not
marked “PUBLIC” as Restricting Information and may post such Communications to a portion of
the Approved Electronic Platform not designated “Public Side Information.” Neither the
Administrative Agent nor any of its Affiliates shall be responsible for any statement or
other designation by a Loan Party regarding whether a Communication contains or does not
contain material non-public information with respect to any of the Loan Parties or their
securities nor shall the Administrative Agent or any of its Affiliates incur any liability
to any Loan Party, any Lender or any other Person for any action taken by the Administrative
Agent or any of its Affiliates based upon such statement or designation, including any
action as a result of which Restricting Information is provided to a Lender that may decide
not to take access to Restricting Information. Nothing in this clause (ii) shall modify or
limit a Lender’s obligations under Section 8.02(b) with regard to Communications and the
maintenance of the confidentiality of or other treatment of Information.
(iii) Each Lender acknowledges that circumstances may arise that require it to refer to
Communications that might contain Restricting Information. Accordingly, each Lender agrees
that it will nominate at least one designee to receive Communications (including Restricting
Information) on its behalf and identify such designee (including such designee’s contact
information) on such Lender’s Administrative Questionnaire. Each Lender agrees to notify
the Administrative Agent from time to time of such Lender’s designee’s e-mail address to
which notice of the availability of Restricting Information may be sent by electronic
transmission.
(iv) Each Lender acknowledges that Communications delivered hereunder and under the
other Loan Documents may contain Restricting Information and that such Communications are
available to all Lenders generally. Each Lender that elects not to take access to
Restricting Information does so voluntarily and, by such election, acknowledges and agrees
that the Administrative Agent and other Lenders may have access to Restricting Information
that is not available to such electing Lender. None of the Administrative Agent or any
Lender with access to Restricting Information shall have any duty to disclose such
Restricting Information to such electing Lender or to use such
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54
Restricting Information on behalf of such electing Lender, and shall not be liable for
the failure to so disclose or use, such Restricting Information.
(v) The provisions of the foregoing clauses of this subsection (d) are designed to
assist the Administrative Agent, the Lenders and the Loan Parties, in complying with their
respective contractual obligations and applicable law in circumstances where certain Lenders
express a desire not to receive Restricting Information notwithstanding that certain
Communications hereunder or under the other Loan Documents or other information provided to
the Lenders hereunder or thereunder may contain Restricting Information. Neither the
Administrative Agent nor any of its Related Parties warrants or makes any other statement
with respect to the adequacy of such provisions to achieve such purpose nor does the
Administrative Agent or any of its Related Parties warrant or make any other statement to
the effect that any Loan Party’s or Lender’s adherence to such provisions will be sufficient
to ensure compliance by such Loan Party or Lender with its contractual obligations or its
duties under applicable law in respect of Restricting Information and each of the Lenders
and each Loan Party assumes the risks associated therewith.
SECTION 8.03 No Waiver; Remedies. No failure on the part of any Lender or the
Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Note
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04 Costs and Expenses; Breakage Indemnification. (a) The Company agrees to
pay on demand all reasonable costs and expenses, if any (including, without limitation, reasonable
counsel fees and expenses), of (i) the Administrative Agent in connection with the negotiation,
syndication, execution and delivery of this Agreement, the other Loan Documents and the other
documents delivered hereunder and (ii) the Administrative Agent and each Lender in connection with
enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the
Notes and the other documents to be delivered hereunder, including, without limitation, reasonable
counsel fees and expenses in connection with the enforcement of rights under this Section 8.04(a).
(b) If any payment, prepayment or conversion of any Eurocurrency Rate Advance is made
by the Company or a Designated Borrower, as applicable, to or for the account of a Lender
other than on the last day of the Interest Period for such Advance, as a result of
acceleration of the maturity of the Advances and the Notes pursuant to Section 6.01 or for
any other reason other than in connection with Section 2.02(c), such Borrower shall, upon
demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses which it may reasonably incur as a
result of such payment, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Advance.
(c) The Company agrees to indemnify and hold harmless the Administrative Agent and each
Lender and each of their affiliates and their officers, directors, employees, agents and
advisors (each, an “Indemnified Party”) from and against any and
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55
all claims, damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any investigation,
litigation or proceeding arising out of, related to or in connection with the actual or
proposed use of the proceeds of the Advances, including in connection with any acquisition
or proposed acquisition by the Company or any Subsidiary of the Company of another Person or
one or more businesses of another Person (whether by means of a stock purchase, asset
acquisition or otherwise), whether or not such investigation, litigation or proceeding is
brought by the Company, its directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated, except to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or
willful misconduct. The Company agrees not to assert any claim against any Indemnified
Party on any theory of liability, for consequential, indirect, special or punitive damages
arising out of or otherwise relating to this Agreement or any of the transactions
contemplated hereby or the actual or proposed use of the proceeds of the Advances.
(d) Without prejudice to the survival of any other agreement of the Loan Parties
hereunder, the agreements and obligations of the Loan Parties contained in Sections 2.08,
2.10 and 8.04 shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the Notes.
SECTION 8.05 Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) on
account of the Advances owing to it (other than pursuant to Section 2.02(d), 2.06, 2.08, 2.10 or
8.04(b)) in excess of its ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall
be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent
of such recovery together with an amount equal to such Lender’s ratable share (according to the
proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Company agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 8.05 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right of setoff) with
respect to such participation as fully as if such Lender were the direct creditor of the Company in
the amount of such participation.
SECTION 8.06 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Company, the Subsidiary Guarantor, each Designated Borrower, the Administrative
Agent and the Lenders and their respective successors and assigns, except that no Loan Party shall
have the right to assign its rights or obligations hereunder or under any Note or
any interest herein or therein (other than as permitted by Section 5.02(b)) without the prior
written consent of all of the Lenders.
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56
SECTION 8.07 Assignments and Participations. (a) Each Lender may assign to one or
more Persons (other than the Company or any of its Affiliates) all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a portion of its
Commitment, and the Advances owing to it and the Note or Notes held by it); provided, however, that
(i) each such assignment (other than assignment to an affiliate of such Lender) shall require the
prior written consent of the Company, which consent shall not be unreasonably withheld or delayed,
and which consent of the Company shall not be required if an Event of Default exists, (ii) each
such assignment shall be of a constant, and not a varying, percentage of all rights and obligations
under this Agreement, (iii) except in the case of an assignment to a Person that, immediately prior
to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under
this Agreement, the amount of the Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and Acceptance with respect to
such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof, and (iv) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance (which shall include the agreement of the assignee party to such assignment, for the
benefit of the Borrowers, to be bound by the terms and provisions of this Agreement to the same
extent as if it were an original party hereto), together with any Note subject to such assignment
and the assignor or assignee shall pay to the Administrative Agent a processing and recordation fee
of $3,500. Upon such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y)
the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released
from its obligations under this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee appoints and authorizes the Administrative Agent to take
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57
such
action as agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vi) such assignee
agrees that it will perform in accordance with their terms all of the obligations that by
the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender
and an assignee, together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit D hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt notice
thereof to the Company. In the case of any Lender that holds a Note, within five Business
Days after its receipt of such notice, the relevant Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in simultaneous exchange for the surrendered
Note a new Note to the order of such assignee in an amount equal to the Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and shall otherwise be
in substantially the form of Exhibit E. Such Assignment and Acceptance shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Person as a Lender and the resulting adjustment of the Commitments, if any,
arising from such assignment of Commitments to such Person.
(d) The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at its address referred to in Section 8.02 a copy of each
Assignment and Acceptance and each Additional Commitment Agreement delivered to and accepted
by it and a register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender from time to time
(the “Register”). In addition, the Administrative Agent shall maintain on the Register
information regarding the designation and revocation of designation of any Lender as a
Defaulting Lender. The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Loan Parties, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for inspection by the
Company or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or other financial
institutions, or other entities engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course of their
business, in all or a portion of its rights and/or obligations under this Agreement
(including, without limitation, all or a portion of its Commitment and the Advances
owing to it and the Note or Notes held by it); provided that (i) such Lender’s obligations
under this Agreement (including, without limitation, its Commitment) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the Borrowers for the performance of
such obligations, (iii) the Loan Parties shall continue to deal solely and
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directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement and
(iv) such participant’s right to consent to any modification, waiver or release of any of
the provisions of this Agreement shall be limited to the right to consent to (A) any
reduction in principal, interest or fees payable to such Lender under this Agreement, (B)
the postponement of any date fixed for the payment of any principal, interest or fees under
this Agreement and (C) any amendments to the foregoing clauses (A) and (B).
SECTION 8.08 Limitation on Assignments and Participations. (a) Any Lender may, in
connection with any actual or proposed assignment or participation pursuant to Section 8.07,
disclose to the actual or proposed assignee or participant any information relating to any Loan
Party furnished to such Lender by or on behalf of such Loan Party; provided that the actual or
proposed assignee or participant shall have agreed prior to any such disclosure to preserve the
confidentiality of any confidential information relating to such Loan Party received by it from
such Lender or such Loan Party.
(b) Notwithstanding anything in Section 8.07 to the contrary, no Lender shall have the
right to assign its rights and obligations hereunder or any interest therein or to sell
participations to one or more banks or other financial institutions in all or a portion of
its rights hereunder or any interest therein where the result of such assignment or
participation would be reasonably expected to entitle the Lender to claim additional amounts
pursuant to Section 2.02(d), 2.06, 2.08, 2.10 or 8.04 or would otherwise result in an
increase in a Borrower’s obligations.
(c) Anything in this Section 8.08 to the contrary notwithstanding, any Lender may
assign and pledge all or any portion of its rights to payment of the Advances owing to it
hereunder to any Federal Reserve Bank or Central Bank(and its transferees) as collateral
security (i) pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any applicable Operating Circular issued by such Federal Reserve Bank or Central
Bank or (ii) to any central bank having jurisdiction over such Lender. No such assignment
shall have the effect of releasing such Lender from its obligations hereunder.
SECTION 8.09 Withholding. If any Lender, or any Person that becomes a party to this
Agreement pursuant to Section 2.01(c), 2.01(d) or 8.07, is not incorporated under the laws of the
United States of America or a state thereof, such Person agrees that, prior to the first date on
which any payment is due to it hereunder, it will deliver to each of the Company and the
Administrative Agent (i) two duly completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI or successor applicable form, as the case may be, certifying in each case that
such Person is entitled to receive payments under this Agreement, without deduction or withholding
of any United States federal income taxes, and (ii) an Internal Revenue Service Form W-8BEN or
successor applicable form, as the case may be, to establish an exemption from United States backup
withholding tax. Each Person which delivers to the Company a Form W-
8BEN or W-8ECI pursuant to the preceding sentence further undertakes to deliver to each of the
Company and the Administrative Agent two further copies of Form W-8BEN or W-8ECI, or successor
applicable forms, or other manner of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after the occurrence of any event requiring a change
in the most recent form previously delivered by it to the Company and the Administrative Agent, and
such extensions or renewals thereof as may reasonably be requested
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by the Company or the
Administrative Agent, certifying in the case of a Form W-8BEN or W-8ECI that such Person is
entitled to receive payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless in any such case 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
Person from duly completing and delivering any such form with respect to it and such Person advises
the Company and the Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax, and in the case of a Form W-8BEN,
establishing an exemption from United States backup withholding tax.
SECTION 8.10 Mitigation. In the event that any Lender claims any amounts under
Sections 2.02(d), 2.06, 2.08, 2.10 or 8.04(b), it shall use all reasonable efforts (consistent with
its internal policies and legal and regulatory restrictions) to take actions (including, without
limitation, changing the jurisdiction of its Applicable Lending Office) so as to eliminate such
additional amounts; provided that such Lender shall not be required to take any action if, in its
reasonable judgment, such action would be materially disadvantageous to it.
SECTION 8.11 Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.12 Execution in Counterparts. This Agreement may be executed in any number
of counterparts each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an executed counterpart of
a signature page to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 8.13 Submission to Jurisdiction; Etc.
(a) Submission to Jurisdiction. Each Loan Party hereby submits to the exclusive
jurisdiction of the United States District Court for the Southern District of New York and
of any New York State court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement and the Notes.
(b) Service of Process. Each Designated Borrower agrees that service of process in any
action or proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to CT Corporation System
(the “Process Agent”) as agent for such Designated Borrower in New York, New York for
service of process at its address at 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other address of which the Administrative Agent shall
have been notified in writing by such Designated Borrower; provided that, if the Process
Agent ceases to act as such Designated Borrower’s agent for service of process, such
Designated Borrower will, by an instrument reasonably satisfactory to the Administrative
Agent, appoint another Person (subject to the approval of the Administrative Agent) in the
Borough of Manhattan, New York, New York to act as such
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Designated Borrower’s agent for
service of process. Each other party hereto irrevocably consents to service of process in
the manner provided for notices in Section 8.02. Nothing in this Agreement will affect the
right of any party hereto to serve process in any other manner permitted by applicable law.
(c) Waiver of Venue. Each Loan Party irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and a claim that such proceeding
brought in such a court has been brought in an inconvenient forum.
SECTION 8.14 Judgment Currency. This is an international loan transaction in which
the specification of Dollars or an Alternate Currency, as the case may be (the “Specified
Currency”), and any payment in New York City or the country of the Specified Currency, as the
case may be (the “Specified Place”), is of the essence, and, except as otherwise provided
in this Agreement, the Specified Currency shall be the currency of account in all events relating
to Advances denominated in the Specified Currency. Except as otherwise provided in this Agreement,
the payment obligations of the Designated Borrowers under this Agreement and the other Loan
Documents shall not be discharged by an amount paid in another currency or in another place,
whether pursuant to a judgment or otherwise, to the extent that the amount so paid on conversion to
the Specified Currency and transfer to the Specified Place under normal banking procedures does not
yield the amount of the Specified Currency at the Specified Place due hereunder. If for the
purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in the
Specified Currency into another currency (the “Second Currency”), the rate of exchange
which shall be applied shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the Specified Currency with the Second Currency on the Business
Day next preceding that on which such judgment is rendered. The obligation of each Designated
Borrower in respect of any such sum due from it to the Administrative Agent or any Lender in
respect of any judgment in any court shall, notwithstanding the rate of exchange actually applied
in rendering such judgment, be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be
due hereunder or under the Notes in the Second Currency to the Administrative Agent or such Lender,
as the case may be, may in accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Second Currency so adjudged to be
due; and the Company hereby, as a separate obligation and notwithstanding any such judgment, agrees
to indemnify the Administrative Agent or such Lender, as the case may be, against, and to pay the
Administrative Agent or such Lender, as the case may be, on demand in the Specified Currency, any
difference between the sum originally due to the Administrative Agent or such Lender, as the case
may be, for such judgment in the Specified Currency and the amount of the Specified Currency so
purchased and transferred.
SECTION 8.15 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 the Loan Parties, which information includes the name and address of the Borrowers
and other information that will allow such Lender to identify the Loan Parties in accordance with
the Act.
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SECTION 8.16 No Fiduciary Duty. The Administrative Agent, each Lender and their
Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have
economic interests that conflict with those of the Loan Parties. Each of the Loan Parties agrees
that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or
agency relationship or fiduciary or other implied duty between the Lenders and any Loan Party, its
stockholders or its affiliates. Each of the Loan Parties acknowledge and agree that (i) the
transactions contemplated by the Loan Documents are arm’s-length commercial transactions between
the Lenders, on the one hand, and each of the Loan Parties, on the other, (ii) in connection
therewith and with the process leading to such transaction each of the Lenders is acting solely as
a principal and not the agent or fiduciary of any Loan Party, its management, stockholders,
creditors or any other person, (iii) no Lender has assumed an advisory or fiduciary responsibility
in favor of any Loan Party with respect to the transactions contemplated hereby or the process
leading thereto (irrespective of whether any Lender or any of its affiliates has advised or is
currently advising any Loan Party on other matters) or any other obligation to any Loan Party
except the obligations expressly set forth in the Loan Documents and (iv) each of the Loan Parties
has consulted its own legal and financial advisors to the extent it deemed appropriate. Each of
the Loan Parties further acknowledges and agrees that it is responsible for making its own
independent judgment with respect to such transactions and the process leading thereto. Each of
the Loan Parties agree that it will not claim that any Lender has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to any Loan Party, in connection with such
transaction or the process leading thereto.
ARTICLE IX
GUARANTEE
SECTION 9.01 Guarantee; Limitation of Liability. (a) To induce the other parties to enter
into this Agreement and for other valuable consideration, receipt of which is hereby acknowledged,
each of the Guarantors, jointly and severally, hereby unconditionally and irrevocably guarantees to
the Administrative Agent, each Lender and their respective successors and permitted assigns the
prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the
principal of and interest on the Advances to and the Notes of each other Loan Party and all other
amounts whatsoever now or hereafter payable or becoming payable by each other Loan Party under this
Agreement and each other Loan Document, in each case strictly in accordance with the terms thereof
(collectively, the “Guaranteed Obligations”). Each Guarantor hereby further agrees that if
any other Loan Party shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, such Guarantor will promptly pay the
same, without any demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration
or otherwise) in accordance with the terms of such extension or renewal. This Section 9.01 is a
continuing guarantee and is a guarantee of payment and is not merely a guarantee of collection and
shall apply to all Guaranteed Obligations whenever arising.
(b) Each Guarantor, and by its acceptance of this Article IX, the Administrative Agent and
each Lender, hereby confirms that it is the intention of all such Persons that this Article IX and
the obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of any bankruptcy law, the Uniform Fraudulent
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Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar foreign, federal or state law to the extent applicable to this
guarantee and the obligations of each Guarantor hereunder. To effectuate the foregoing intention,
the Administrative Agent, the Lenders and the Guarantors hereby irrevocably agree that the
obligations of the Subsidiary Guarantor under this Article IX at any time shall be limited to the
maximum amount as will result in the obligations of such Guarantor under this Article IX not
constituting a fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to the Administrative Agent or any Lender under this Article IX or any
other guarantee, such Guarantor will contribute, to the maximum extent permitted by law, such
amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount
paid to the Administrative Agent and the Lenders under or in respect of the Loan Documents.
SECTION 9.02 Acknowledgments, Waivers and Consents. Each Guarantor agrees that its
obligations under Section 9.01 shall be primary, absolute, irrevocable and unconditional under any
and all circumstances and that the guarantee therein is made with respect to any Guaranteed
Obligations now existing or in the future arising. Without limiting the foregoing, each Guarantor
agrees that:
(a) The occurrence of any one or more of the following shall not affect the
enforceability or effectiveness of this Article IX in accordance with its terms or affect,
limit, reduce, discharge or terminate the liability of such Guarantor, or the rights,
remedies, powers and privileges of the Administrative Agent or any Lender, under this
Article IX:
(i) any modification or amendment (including by way of amendment, extension, renewal or
waiver), or any acceleration or other change in the time for payment or performance of the
terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other
agreement or instrument whatsoever relating thereto, or any modification of the Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination
or enforcement of the liability of any other guarantee of all or any part of the Guaranteed
Obligations;
(iii) any application of the proceeds of any other guarantee (including the obligations
of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part
of the Guaranteed Obligations in any such manner and to such extent as the Administrative
Agent may determine;
(iv) any release of any other Person (including any other guarantor with respect to all
or any part of the Guaranteed Obligations) from any personal liability with respect to all
or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms
and in such manner as the Administrative Agent may determine or as applicable law may
dictate, of all or any part of the Guaranteed Obligations or any other guarantee of
(including any letter of credit issued with respect to) all or any part of the Guaranteed
Obligations;
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(vi) the giving of any consent to the merger or consolidation of, the sale of
substantial assets by, or other restructuring or termination of the corporate existence of,
any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any other Loan Party or any other guarantor of all or any
part of the Guaranteed Obligations or any collateral provided by any other Person or the
exercise of any rights, remedies, powers and privileges of the Administrative Agent and the
Lenders under the Loan Documents or otherwise in such order and such manner as the
Administrative Agent may determine, regardless of whether the Administrative Agent or the
Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or
privilege before proceeding to call upon or otherwise enforce this Article IX;
(viii) the entering into such other transactions or business dealings with any other
Loan Party, any Subsidiary or affiliate thereof or any other guarantor of all or any part of
the Guaranteed Obligations as the Administrative Agent or any Lender may desire; or
(ix) all or any combination of any of the actions set forth in this Section 9.02(a).
(b) The enforceability and effectiveness of this Article IX and the liability of such
Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and
the Lenders, under this Article IX shall not be affected, limited, reduced, discharged or
terminated, and each Guarantor hereby expressly waives to the fullest extent permitted by
law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed
Obligations, any Loan Document or any other agreement or instrument whatsoever relating to
all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed
Obligations, including the effect of any statute of limitations that may bar the enforcement
of all or any part of the Guaranteed Obligations or the obligations of any other guarantor
of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other
guarantee (including any letter of credit) of all or any part of the Guaranteed Obligations
or the lack of perfection or continuing perfection or failure of the priority of any
Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any other Loan Party
or any other guarantor with respect to all or any part of the Guaranteed Obligations (other
than, subject to Section 9.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of
any other Loan Party or any other Person (including any other guarantor of all or any part
of the Guaranteed Obligations), to exhaust any collateral for all or any part of the
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Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may
have against such other Loan Party or any other guarantor of all or any part of the
Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or
reduce such or any other Person’s liability, the Administrative Agent and the Lenders being
under no obligation to take any such action notwithstanding the fact that all or any part of
the Guaranteed Obligations may be due and payable and that such other Loan Party may be in
default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim which any other Loan Party or any other
guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all
or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which
such Guarantor may have with respect to all or any part of any obligations owed to such
Guarantor by the Administrative Agent or any Lender (other than, without prejudice to
Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation
which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file
or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts,
or appointment of a custodian, liquidator or the like of it, or similar proceedings
commenced by or against any Person, including any discharge of, or bar or stay against
collecting, all or any part of the Guaranteed Obligations (or any interest on all or any
part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized
under this Article IX or by any other provision of any Loan Document or any omission to take
any such action;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority
or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, each Guarantor expressly waives, for the
benefit of the Administrative Agent and the Lenders, all diligence, presentment,
demand for payment or performance, notices of nonpayment or nonperformance, protest,
notices of protest, notices of dishonor and all other notices or demands of any kind or
nature whatsoever, and any requirement that the Administrative Agent or any Lender exhaust
any right, power or remedy or proceed against any other Loan Party under any Loan Document
or other agreement or instrument referred to herein or therein, or against any other Person
under any other guarantee of, or security for, any of the Guaranteed Obligations, and all
notices of acceptance of this Article IX or of the existence, creation, incurring or
assumption of new or additional Guaranteed Obligations.
SECTION 9.03 Reinstatement. The obligations of each Guarantor under this Article IX
shall be automatically reinstated if and to the extent that for any reason any payment by or on
behalf of any other Loan Party in respect of the Guaranteed Obligations is rescinded or
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must
otherwise be restored or returned by the Administrative Agent or any Lender, whether as a result of
insolvency, any proceedings in bankruptcy, dissolution, liquidation or reorganization or otherwise.
SECTION 9.04 Subrogation. Each Guarantor hereby agrees that, until the final payment
in full of all Guaranteed Obligations, it shall not exercise any right or remedy arising by reason
of any performance by it of its guarantee in Section 9.01, whether by subrogation, reimbursement,
contribution or otherwise, against any other Loan Party or any other guarantor of any of the
Guaranteed Obligations or any security for any of the Guaranteed Obligations.
SECTION 9.05 Remedies. Each Guarantor agrees that, as between such Guarantor and the
Administrative Agent and the Lenders, the obligations of any other Loan Party under this Agreement
or any other Loan Documents may be declared to be forthwith due and payable as provided in Section
6.01 (and shall be deemed to have become automatically due and payable in the circumstances
provided in said Section 6.01) for purposes of Section 9.01, notwithstanding any stay, injunction
or other prohibition preventing such declaration (or such obligations from becoming automatically
due and payable) as against such other Loan Party and that, in the event of such declaration (or
such obligations being deemed to have become automatically due and payable), such obligations
(whether or not due and payable by such other Loan Party) shall forthwith become due and payable by
such Guarantor for purposes of Section 9.01.
SECTION 9.06 Payments. Each payment by any Guarantor under this Article IX shall be
made in accordance with Section 2.09 in the Currency in which the Guaranteed Obligations in respect
of which such payment is made are denominated, without deduction, set-off or counterclaim at the
Administrative Agent’s Account and free and clear of any and all present and future Taxes.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective signatories thereunto duly authorized, as of the date first above written.
XXXXXXX XXXXX & XXXXXX, INC. |
||||
By | /s/ Xxxxxxxxx X. Xxxxx | |||
Name: | Xxxxxxxxx X. Xxxxx | |||
Title: | Assistant Treasurer | |||
THE BLACK & XXXXXX CORPORATION, as Subsidiary Guarantor |
||||
By | /s/ Xxxxxxxxx X. Xxxxx | |||
Name: | Xxxxxxxxx X. Xxxxx | |||
Title: | Assistant Treasurer | |||
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CITIBANK, N.A., as Administrative Agent and as Lender |
||||
By | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | Vice President | |||
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XXXXXXX XXXX XX XXXXXXX, N.A. |
||||
By | /s/ Xxxxxxx X. XxXxxxxxxx | |||
Name: | Xxxxxxx X. XxXxxxxxxx | |||
Title: | Managing Director | |||
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X.X. XXXXXX XXXXX BANK, N.A. |
||||
By | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Vice President | |||
BARCLAYS BANK PLC |
||||
By | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Assistant Vice President | |||
BNP PARIBAS |
||||
By | /s/ Xxxx Xxxxxxx | |||
Name: | Xxxx Xxxxxxx | |||
Title: | Managing Director | |||
By | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Vice President | |||
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
||||
By | /s/ Xxxx X. Toronto | |||
Name: | Xxxx X. Toronto | |||
Title: | Managing Director | |||
By | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Associate | |||
XXXXXXX SACHS BANK USA |
||||
By | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Authorized Signatory | |||
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UBS LOAN FINANCE LLC |
||||
By | /s/ Xxxx X. Xxxx | |||
Name: | Xxxx X. Xxxx | |||
Title: | Associate Director | |||
By | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Associate Director | |||
XXXXX FARGO BANK, N.A. |
||||
By | /s/ Xxxxxx Xxxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxxx | |||
Title: | Director | |||
THE BANK OF NEW YORK MELLON |
||||
By | /s/ Xxxx X. Xxxx | |||
Name: | Xxxx X. Xxxx | |||
Title: | Managing Director | |||
XXXXXX XXXXXXX BANK, N.A. |
||||
By | /s/ Xxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxx Xxxxx | |||
Title: | Authorized Signatory | |||
HSBC BANK USA, NATIONAL ASSOCIATION |
||||
By | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Vice President | |||
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ING BANK N.V., DUBLIN BRANCH |
||||
By | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Director | |||
By | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Director | |||
ROYAL BANK OF CANADA |
||||
By | /s/ Xxxxxxxx Xxx-You | |||
Name: | Xxxxxxxx Xxx-You | |||
Title: | Attorney-In-Fact | |||
RBS CITIZENS, N.A. |
||||
By | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Senior Vice President | |||
THE BANK OF NOVA SCOTIA |
||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Managing Director | |||
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES |
||||
By | /s/ Xxxxxxx Xxxxxx | |||
Name: | Xxxxxxx xxxxxx | |||
Title: | Assistant Vice President | |||
By | /s/ Xxxxx Xxx | |||
Name: | Xxxxx Xxx | |||
Title: | Associate | |||
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SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) |
||||
By | /s/ Xxxxx Xxxxxxx-Park | |||
Name: | Xxxxx Xxxxxxx-Park | |||
Title: | ||||
By | /s/ Xxxxxx Xxxxx | |||
Name: | Xxxxxx Xxxxx | |||
Title: | ||||
SOCIETE GENERALE |
||||
By | /s/ Xxxxxxxx Xxxxxxx | |||
Name: | Xxxxxxxx Xxxxxxx | |||
Title: | Director | |||
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
||||
By | /s/ Xxxxx Xxxxxxxxx | |||
Name: | Xxxxx Xxxxxxxxx | |||
Title: | Authorized Signatory | |||
Four Year Credit Agreement
73
SCHEDULE I
ADDRESS AND APPLICABLE LENDING OFFICES
Name of Lenders and Addresses | ||||
For Notices | Domestic Lending Office | Eurocurrency Lending Office | ||
Citibank, N.A. Building #3 0000 Xxxxx Xx Xxx Xxxxxx, XX 00000 |
Citibank, N.A. Building #3 0000 Xxxxx Xx Xxx Xxxxxx, XX 00000 |
Citibank, N.A. Building #3 0000 Xxxxx Xx Xxx Xxxxxx, XX 00000 |
||
Attn: Bank Loan Syndications Fax 000-000-0000 |
Attn: Bank Loan Syndications Fax 000-000-0000 |
Attn: Bank Loan Syndications Fax 000-000-0000 |
||
Bank of America, N.A. 000 Xxxxxxx Xxxxxx Xxxxxx, XX 00000 |
Bank of America, N.A. 000 Xxxxxxx Xxxxxx Xxxxxx, XX 00000 |
Bank of America, N.A. 000 Xxxxxxx Xxxxxx Xxxxxx, XX 00000 |
||
Attn: Xxxx XxXxxxxxxx Tel: (000) 000.0000 Fax: (000) 000.0000 |
Attn: Xxxx XxXxxxxxxx Tel: (000) 000.0000 Fax: (000) 000.0000 |
Attn: Xxxx XxXxxxxxxx Tel: (000) 000.0000 Fax: (000) 000.0000 |
SCHEDULE I
SCHEDULE I (cont’d)
LENDERS AND COMMITMENTS
Lenders | Commitment | |||
Citibank, N.A. |
$ | 100,000,000 | ||
Bank of America, N.A. |
100,000,000 | |||
X.X. Xxxxxx Xxxxx Bank, N.A. |
100,000,000 | |||
Barclays Bank PLC |
80,000,000 | |||
BNP Paribas |
80,000,000 | |||
Credit Suisse AG Cayman Islands Branch |
80,000,000 | |||
Xxxxxxx Sachs Bank USA |
80,000,000 | |||
UBS Loan Finance LLC |
80,000,000 | |||
Xxxxx Fargo Bank, N.A. |
80,000,000 | |||
The Bank of New York Mellon |
60,000,000 | |||
Xxxxxx Xxxxxxx Bank, N.A. |
50,000,000 | |||
HSBC Bank USA, National Association |
40,000,000 | |||
ING Bank N.V., Dublin Branch |
40,000,000 | |||
Royal Bank of Canada |
40,000,000 | |||
Royal Bank of Scotland |
40,000,000 | |||
The Bank of Nova Scotia |
30,000,000 | |||
Commerzbank AG, New York and Grand Cayman Branches |
30,000,000 | |||
Skandinaviska Enskilda Xxxxxx XX |
30,000,000 | |||
Societe Generale |
30,000,000 | |||
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
30,000,000 | |||
TOTAL |
$ | 1,200,000,000 |
SCHEDULE I
SCHEDULE II
MANDATORY COST RATE
Calculation of Mandatory Cost Rate
1. | The MCR Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank. | |
2. | On the first day of each Interest Period for any Advance denominated in Pounds Sterling or Euros (or as soon as possible thereafter) the Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender participating in such Advance, in accordance with the paragraphs set out below. The MCR Cost will be calculated by the Administrative Agent as a weighted average of such Lenders’ Additional Cost Rates (weighted in proportion to the percentage participation of each such Lender in the relevant Advance) and will be expressed as a percentage rate per annum. | |
3. | The Additional Cost Rate for any Lender lending from an Applicable Lending Office in a Participating Member State (as defined in Section 2.15) will be the percentage notified by that Lender to the Administrative Agent. This percentage will be certified by that Lender in its notice to the Administrative Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender’s participation in all Advances made from that Applicable Lending Office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Applicable Lending Office. | |
4. | The Additional Cost Rate for any Lender lending from an Applicable Lending Office in the United Kingdom will be calculated by the Administrative Agent as follows: |
(a) | in relation to an Advance made in Pounds Sterling: |
AB + C(B - D) + E × 0.01
|
per cent. per annum |
(b) | in relation to a Advance made in any Alternate Currency other than Pounds Sterling: |
E × 0.01
|
per cent. per annum. |
SCHEDULE II
Where: |
A | is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which such Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements. | ||
B | is the percentage rate of interest (excluding the Applicable Margin and the MCR Cost and, if applicable, any additional amount of interest specified in Section 2.07(b)) payable for the relevant Interest Period on the Advance. | ||
C | is the percentage (if any) of Eligible Liabilities which such Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England. | ||
D | is the percentage rate per annum payable by the Bank of England to the Administrative Agent on interest bearing Special Deposits. | ||
E | is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Administrative Agent as being the average of the most recent rates of charge supplied by the Reference Banks to the Agent pursuant to paragraph 7 below and expressed in Pounds Sterling per £1,000,000; |
5. | For the purposes of this Schedule: |
(a) | “Eligible Liabilities” has the meaning given to it from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England. | ||
(b) | “Fees Rules” means the rules on periodic fees contained in the Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits. | ||
(c) | “Fee Tariffs” means the fee tariffs specified in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate). | ||
(d) | “Special Deposits” has the meaning given to it from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England. | ||
(e) | “Tariff Base” has the meaning given to it in, and will be calculated in accordance with, the Fees Rules. |
6. | In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places. | |
7. | If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Administrative Agent, the |
SCHEDULE II
rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in Pounds Sterling per £1,000,000 of the Tariff Base of that Reference Bank. | ||
8. | Each Lender shall supply any information required by the Administrative Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following information on or prior to the date on which it becomes a Lender: |
(a) | the jurisdiction of its Applicable Lending Office; and | ||
(b) | any other information that the Agent may reasonably require for such purpose. |
Each Lender shall promptly notify the Administrative Agent of any change to the information provided by it pursuant to this paragraph. | ||
9. | The percentages of each Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the Administrative Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Administrative Agent to the contrary, each Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with an Applicable Lending Office in the same jurisdiction as its Applicable Lending Office. | |
10. | The Administrative Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender and shall be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects. | |
11. | The Administrative Agent shall distribute the additional amounts received as a result of the MCR to the Lenders on the basis of the Additional Cost Rate for each Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above. | |
12. | Any determination by the Administrative Agent pursuant to this Schedule II in relation to a formula, the MCR, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all Parties. | |
13. | The Administrative Agent may from time to time, after consultation with the Company and the Lenders, determine and provide notice to the Company and the Lenders of any amendments which are required to be made to this Schedule II in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties to the Credit Agreement. |
SCHEDULE II
SCHEDULE III
DESIGNATED BORROWER JURISDICTIONS
United Kingdom
Belgium
Luxembourg
Switzerland
SCHEDULE III
EXHIBIT A-1
RATE REQUEST
Citibank, N.A., as Reference Bank
under the Credit Agreement
referred to below
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: [________]
under the Credit Agreement
referred to below
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: [________]
[Date]
Ladies and Gentlemen:
The undersigned, Xxxxxxx Xxxxx & Xxxxxx, Inc., refers to the Four Year Credit Agreement, dated
as of March 11, 2011 (as amended, modified or supplemented from time to time, the “Credit
Agreement”, the terms defined therein being used herein as therein defined) among the
undersigned, The Black & Xxxxxx Corporation, certain Lenders parties thereto, and Citibank, N.A.,
as Administrative Agent for said Lenders and hereby requests notification from you pursuant to
Section 2.02(a) thereof of the Eurocurrency Rate which is applicable to the Advance to be made (or
converted or continued) on ____, 20__ in the principal amount of [$____] [€____]
[£____] with the Interest Period of _____ months.
Very truly yours, XXXXXXX XXXXX & XXXXXX, INC. |
||||
By | ||||
Name: | ||||
Title: |
TO BE COMPLETED AND RETURNED BY
REFERENCE BANK:
The rate requested above,
determined as required by
the Credit Agreement, is .
determined as required by
the Credit Agreement, is .
CITIBANK, N.A., as Reference Bank |
||||
By | ||||
Authorized Officer | ||||
A1-1
EXHIBIT A-2
NOTICE OF BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: [________]
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: [________]
[Date]
Ladies and Gentlemen:
The undersigned, Xxxxxxx Xxxxx & Xxxxxx, Inc., refers to the Four Year Credit Agreement, dated
as of March 11, 2011 (as amended, modified or supplemented from time to time, the “Credit
Agreement”, the terms defined therein being used herein as therein defined), among the
undersigned, The Black & Xxxxxx Corporation, certain Designated Borrowers, certain Lenders parties
thereto, and Citibank, N.A., as Administrative Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests
a Borrowing on the following terms under the Credit Agreement, and in that connection sets forth
below the information relating to such Borrowing (the “Proposed Borrowing”) as required by
Section 2.02(b) of the Credit Agreement:
(i) The Borrower is _______________.
(ii) The Business Day of the Proposed Borrowing is ______, 20___.
(iii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate]1 [Eurocurrency Rate].
(iv) The aggregate amount of the Proposed Borrowing is [$]2 [€] [£] ______ .
[(v)] The Initial Interest Period for each Eurocurrency Rate Advance made as part of
the Proposed Borrowing is _____ month[s]].
1 | not available for any Designated Borrower | |
2 | not available for any Designated Borrower |
A2-1
[(v) The proceeds of the Proposed Borrowing are to be used to buy or carry Margin
Stock, and attached hereto are the certificates required pursuant to Section 3.02(ii) of the
Credit Agreement and a duly completed Form U-1 or Form G-3.]3
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of the Credit Agreement
(other than the Excluded Representation) are correct in all material respects, before and after
giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such Proposed Borrowing or
from the application of the proceeds therefrom, which constitutes a Default or Event of Default.
Very truly yours, XXXXXXX XXXXX & XXXXXX, INC. |
||||
By | ||||
Name: | ||||
Title: |
3 | if applicable |
A2-2
EXHIBIT B
NOTICE OF CONVERSION OR CONTINUATION
[Date]
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: [________]
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: [________]
Ladies and Gentlemen:
The undersigned, Xxxxxxx Xxxxx & Xxxxxx, Inc., refers to the Four Year Credit Agreement, dated
as of March 11, 2011 (as amended, modified or supplemented from time to time, the “Credit
Agreement”, the terms defined therein being used herein as therein defined), among the
undersigned, The Black & Xxxxxx Corporation, certain Lenders parties thereto, and Citibank, N.A.,
as Administrative Agent for said Lenders, and hereby gives you notice, pursuant to Section 2.04(b)
of the Credit Agreement that [the undersigned] [NAME OF DESIGNATED BORROWER] hereby elects to
[convert][continue] the Borrowing consisting of [Base Rate][Eurocurrency Rate] Advances:
(i) which is in the amount of $_____;
(ii) which, in the case of a Borrowing consisting of Eurocurrency Rate Advances, has
an Interest Period of _ month(s);4 and
(iii) which was borrowed (or previously converted or continued) on ________, 20_.
Omit clause (ii) if Committed Borrowing consisted of Base Rate Advances. |
B-1
Such [conversion][continuation] shall become effective on ______, 20_, at
which time such Advances shall be [converted into][continued as] [Base Rate][Eurocurrency Rate]
Advances:
(i) which is in the amount of $ ______;5
and
(ii) which has an Interest Period of__ month(s)6.
Very truly yours, XXXXXXX XXXXX & XXXXXX, INC. |
||||
By | ||||
Name: | ||||
Title: |
2 | Omit clause (i) if conversion or continuation is for entire amount of Committed Borrowing. | |
3 | Omit clause (ii) if conversion is into Base Rate Advance. |
B-2
EXHIBIT C-1
FORM OF OPINION OF COUNSEL TO THE COMPANY
March 11, 2011
To each of the Lenders and to
Citibank, N.A., as Administrative Agent
For the Lenders
Citibank, N.A., as Administrative Agent
For the Lenders
Re: | The $1,200,000,000 Four year Credit Agreement among Xxxxxxx Xxxxx & Xxxxxx, Inc., The Black & Xxxxxx Corporation, the Lenders party thereto and Citibank, N.A., as Administrative Agent |
Ladies and Gentlemen:
I am in-house counsel to, and represented, Xxxxxxx Xxxxx & Xxxxxx, Inc., a Connecticut
corporation (the “Company”) and The Black & Xxxxxx Corporation, a Maryland corporation ( the
“Subsidiary Guarantor”) in connection with the negotiation, execution and delivery of that certain
$1,200,000,000 Four Year Credit Agreement, dated as of the date hereof, by and among the Company,
the Subsidiary Guarantor, the lenders party thereto (the “Lenders”) and Citibank, N.A., as
administrative agent for the Lenders (in such capacity, the “Administrative Agent”) (the “Credit
Agreement”).
This opinion is being delivered pursuant to Section 3.01(d) of the Credit Agreement.
Capitalized terms used herein and not expressly defined herein have the definitions specified in
the Credit Agreement.
In addition to the Credit Agreement, I have examined originals, certified copies or copies
otherwise identified as being true copies of the following:
(a) | the Certificate of Incorporation of the Company, as amended, as of the date hereof, | ||
(b) | the Bylaws of the Company as in effect as of the date hereof; | ||
(c) | the resolutions duly adopted at a meeting of the Board of Directors of the Company authorizing, among other things, the execution, delivery and |
performance by the Company of the Credit Agreement and the transactions contemplated thereby; | |||
(d) | the Certificate of Legal Existence of the Company as of February 23, 2011 issued by the Connecticut Secretary of State; | ||
(e) | the Certificate of the Treasurer of the Company, dated as of the date hereof, a copy of which is attached hereto as Exhibit A (the “Treasurer’s Certificate”); and | ||
(f) | a copy of the Company’s Annual Report on Form 10-K for the year ended January 1, 2011 (the “Form 10-K”) filed with the Securities and Exchange Commission. |
With your concurrence, the opinions hereafter expressed, whether or not qualified by language
such as “to my knowledge”, are based solely upon (1) my review of the Credit Agreement, and (2)
inquiry among officers of the Company that have given substantive attention to the negotiation of
the Credit Agreement, and (3) such review of published sources of law as I have deemed necessary.
I have, in rendering the legal opinions set forth herein, made and, with your concurrence, the
opinions hereafter expressed are based upon, certain assumptions which are described in
Schedule A hereto. My opinions hereafter expressed are limited to the laws of the State
of New York, the corporate laws of the State of Connecticut and Federal law.
The opinions hereafter expressed with respect to the enforceability of any provisions of the
Credit Agreement or any rights or remedies granted to the Lenders or the Administrative Agent under
the Credit Agreement, are subject to the general qualifications that such rights and remedies may
be subject to and affected by:
(i) applicable bankruptcy, insolvency, reorganization, receivership, moratorium, or assignment
for the benefit of creditors laws and other laws affecting the rights and remedies of creditors
generally, including without limitation laws regarding fraudulent transfers, fraudulent
conveyances, preferences, avoidance, automatic stay and turn-over;
(ii) general principles of equity, including without limitation those governing the
availability of equitable remedies, affording equitable defenses, requiring good faith, fair
dealing and reasonableness in the performance and enforcement of a contract, and affording defenses
based upon unconscionability, lack of notice, impracticability or impossibility of performance;
(iii) general rules of contract law with respect to matters such as the election of remedies,
the limits of severability, mutuality of obligations, and opportunity to cure, limitations on the
enforceability of indemnification, contribution or exculpation provisions under applicable
securities laws or otherwise and limitations on the enforceability of provisions that are in
violation of public policy; and
(iv) determination by the courts in which litigation may be instituted that certain provisions
of the Credit Agreement pertaining to the payment of legal expenses, including attorneys’ fees, the
waiving of hearings, the designation of federal and state courts as having jurisdiction and/or
venue are reasonable and comply with, or are permitted by, applicable constitutional provisions and
by applicable laws, regulations and rules of court.
I express no opinion as to the enforceability of any provision in the Credit Agreement which
purports to excuse or indemnify the Lenders or the Administrative Agent from any liability for
negligent or intentional acts or omissions. I note that my opinion in paragraph 1 below as to the
good standing of the Company is limited to the information provided in the certificate of the
Secretary of State of the State of Connecticut to the effect that the Company has legal existence.
I express no opinion concerning any provision in the Credit Agreement which purports to (i)
establish evidentiary standards or make determinations conclusive, (ii) waive any rights which may
not by law be waived (including the rights to notice and hearing), or (iii) effectuate any
provision contained in the Credit Agreement which purports to limit the Lenders’ or the
Administrative Agent’s liability. The provisions of the Credit Agreement regarding the declaration
of a default or event of default may be subject to enforcement of a court imposed standard of
materiality in determining whether an actionable event of default exists.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Company is a corporation validly existing and in good standing under the laws of the
State of Connecticut.
2. The execution, delivery and performance by the Company and the Subsidiary Guarantor of the
Credit Agreement and the consummation of the transaction contemplated thereby are (a) in the case
of the Company, within its power and authority and have been duly authorized by all necessary
proceedings under its organizational documents , and (b) did not and do not (i) in the case of the
Company, violate or conflict with any provision of its organizational documents, (ii) violate or
conflict with any law, rule or regulation of any governmental authority applicable to the Company
or the Subsidiary Guarantor,, (iii) require the Company or the Subsidiary Guarantor to obtain any
approval, consent or waiver of, or make any filing with, any governmental agency or body (other
than approvals, consents or waivers already obtained or filings already made), (iv) require the
consent or authorization of, or approval by, or notice to, any party to any material contract or
agreement listed as an Exhibit to the Form 10-K to which the Company or the Subsidiary Guarantor is
a party, except for such consents, authorizations, approvals or notices that (assuming the power
and authority of the consenting entity and the authority and capacity of the person signing on its
behalf) have been obtained or made, or (v) violate or conflict with any judgment, order or decree
of which I have knowledge to which the
Company or the Subsidiary Guarantor is a party or by which any of their respective assets or
properties are bound.
3. The Credit Agreement has been duly executed and delivered by the Company; and the Credit
Agreement constitutes the legal, valid and binding obligations of the Company and the Subsidiary
Guarantor, enforceable against each of them in accordance with its terms.
4. The Company is not an “investment company,” or a company “controlled” by an “investment
company,” within the meaning of the Investment Company Act of 1940, as amended.
This opinion is rendered to you for your benefit in connection with the transactions
contemplated by the Credit Agreement and may not be relied upon by any other party without our
prior written consent. Notwithstanding the foregoing, any person that becomes a Lender in
accordance with the provisions of the Credit Agreement may rely on the opinions expressed herein as
if this letter were addressed to such Lender on the date hereof.
Very truly yours,
SCHEDULE A
ASSUMPTIONS
In rendering the legal opinion, I have made certain customary assumptions described below:
1. Each natural person executing the Credit Agreement and has sufficient legal
capacity to enter into the Credit Agreement and perform the transactions contemplated
thereby.
2. Each person other than the Company has all requisite power and authority and has
taken all necessary corporate or other action to enter into the Credit Agreement, to
the extent necessary to make the Credit Agreement enforceable against it.
3. Each person other than the Company and the Subsidiary Guarantor has complied with
all legal requirements pertaining to its status as such status relates to its rights
to enforce the Credit Agreement against the Company and the Subsidiary Guarantor.
4. All documents examined by me in connection with rendering this opinion are
accurate, complete and authentic, each original is authentic, each copy conforms to
an authentic original and (other than signatures on behalf of the Company and the
Subsidiary Guarantor) all signatures are genuine.
5. All official public records are accurate, complete and properly indexed and filed.
6. There has not been any mutual mistake of fact or misunderstanding, fraud, duress,
or undue influence by or among any of the parties to the Credit Agreement.
7. The conduct of the parties to the Credit Agreement has complied in the past and
will comply in the future with any requirement of good faith, fair dealing and
conscionability.
8. Each person other than the Company and the Subsidiary Guarantor has acted in good
faith and without notice of any defense against the enforcement of any rights created
by, or adverse claim to any property or security interest transferred or created as
part of, the transaction contemplated by the Credit Agreement.
C1-1
9. All parties, other than Company and the Subsidiary Guarantor, to or bound by the
Credit Agreement will act in accordance with, and will refrain from taking any action
that is forbidden by, the terms and conditions of the Credit Agreement.
C1-2
EXHIBIT C-2
FORM OF OPINION OF COUNSEL TO THE SUBSIDIARY GUARANTOR
March 11, 2011
To each of the Lenders party to the
Four Year Credit Agreement
referred to below and Citibank, N.A.,
as Administrative Agent
Four Year Credit Agreement
referred to below and Citibank, N.A.,
as Administrative Agent
Re: | Four Year Credit Agreement referred to below |
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section 3.01(d) of the Four Year Credit
Agreement, dated as of March __, 2011 (the “Credit Agreement”), between Xxxxxxx Xxxxx & Xxxxxx,
Inc., a Connecticut corporation, The Black & Xxxxxx Corporation, a Maryland corporation (the
“Subsidiary Guarantor”), and each of you. Capitalized terms that are used but not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.
We have acted as counsel to the Subsidiary Guarantor in connection with the execution and delivery
of the Credit Agreement. In our capacity as counsel for the Subsidiary Guarantor, and for purposes
of the opinions expressed herein, we have examined the following:
(a) | A counterpart of the Credit Agreement executed by the Subsidiary Guarantor on the date hereof; | |
(b) | The charter and the bylaws of the Subsidiary Guarantor as in effect on the date hereof (together, the “Governing Documents”); | |
(c) | The records of proceedings and actions of the board of directors of the Subsidiary Guarantor in respect of the execution, delivery and performance of the Credit Agreement and the transactions contemplated thereby; | |
(d) | A certificate of the State Department of Assessments and Taxation of the State of Maryland, dated March 11, 2011, to the effect that, among other things, the Subsidiary Guarantor is (i) duly incorporated under and by virtue of the laws of the State of Maryland and (ii) is duly authorized to exercise in the State of Maryland all the powers recited in its charter and to transact business in the State of Maryland; and | |
(e) | The other documents furnished on the date hereof by the Subsidiary Guarantor pursuant to Section 3.01(b) and (c) of the Credit Agreement. |
For purposes of the opinions expressed herein, we have relied as to factual matters on certificates
of officers and representatives of the Subsidiary Guarantor and have obtained such further
assurances as we deemed necessary or appropriate. We also have relied on, and assumed the accuracy
of, the representations and warranties made by the Subsidiary Guarantor in the Credit
C3-1
Agreement, including all exhibits thereto (except to the extent those representations and
warranties involve legal conclusions).
In expressing the opinions set forth herein, we have assumed that (i) all documents submitted to us
as originals are authentic, (ii) all documents submitted to us as copies conform with the originals
of those documents, (iii) all signatures on all documents submitted to us for examination are
genuine, (iv) each natural person executing any such document is legally competent to do so and (v)
all public records reviewed by us or on our behalf are accurate and complete.
Based on the foregoing and subject to the assumptions, qualifications and limitations set forth
herein, we are of the opinion that:
1. | The Subsidiary Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Maryland. |
2. The execution, delivery and performance by the Subsidiary Guarantor of the Credit Agreement
and the consummation of the transactions contemplated thereby are within the corporate power of
the Subsidiary Guarantor, have been duly authorized by all necessary proceedings under the
Governing Documents and do not (i) violate or conflict with any provision of the Governing
Documents, (ii) violate or conflict with any law, rule or regulation of any governmental
authority of the State of Maryland applicable to the Subsidiary Guarantor, or (iii) require the
Subsidiary Guarantor to obtain any approval or consent of, or make any filing with, any
governmental agency or body of the State of Maryland.
3. | The Credit Agreement has been duly executed and delivered by the Subsidiary Guarantor. | |
4. | The choice of New York law to govern the Credit Agreement is a valid and effective choice of law under the laws of the State of Maryland, and, in a properly presented case, a Maryland court and a federal court sitting in the State of Maryland and applying Maryland choice of law principles would recognize and enforce the choice of New York law, to the extent the law of that state is chosen, to govern the Credit Agreement, which expressly states that, in whole or in part, New York law shall be the governing law. If a Maryland court or a federal court sitting in the State of Maryland and applying Maryland law were to hold that, notwithstanding the choice of law set forth therein, the Credit Agreement is to be governed by and construed in accordance with the laws of the State of Maryland, the Credit Agreement would constitute, under the laws of the State of Maryland, the legal, valid and binding obligation of the Subsidiary Guarantor enforceable against the Subsidiary Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally, and except that the remedy of specific performance and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding, whether at law or in equity, may be brought. |
With respect to our opinion set forth in numbered paragraph 2 above as to violations of or
conflicts with laws, rules or regulations and requirements of approvals or consents of or filings
C2-2
with governmental agencies or bodies, our opinion is limited to the laws, rules and regulations of
the State of Maryland that, in our experience, would typically be applicable to Maryland
corporations entering into credit transactions similar to that which is contemplated by the Credit
Agreement. With respect to our opinion set forth in numbered paragraph 4 above as to the legal,
valid and binding obligation of the Subsidiary Guarantor and the enforceability thereof, we are
assuming that, in order to induce the Subsidiary Guarantor to enter into the Credit Agreement,
Xxxxxxx Xxxxx & Xxxxxx, Inc. has provided fair and sufficient consideration to the Subsidiary
Guarantor.
We express no opinion as to the laws of any jurisdiction other than the laws of the State of
Maryland.
This letter and the opinions set forth herein are being furnished by us to you solely for your
benefit in connection with the transactions contemplated by the Credit Agreement and may not be
relied upon by any person or for any other purpose without our prior written consent.
Notwithstanding the foregoing, any Person that becomes a Lender in accordance with the provisions
of the Credit Agreement may rely on the opinions expressed herein as if this letter were addressed
to such Lender on the date hereof. The opinions set forth herein are limited to the matters set
forth in this letter and no other opinions should be inferred beyond the matters expressly stated.
Very truly yours, Miles & Stockbridge P.C. |
||||
By: | ||||
Principal | ||||
C2-3
EXHIBIT C-3
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL TO
THE ADMINISTRATIVE AGENT
THE ADMINISTRATIVE AGENT
March 11, 2011
To the Initial Lenders party to the Credit
Agreement referred to below and to
Citibank, N.A., as Administrative Agent
Agreement referred to below and to
Citibank, N.A., as Administrative Agent
Xxxxxxx Xxxxx & Xxxxxx, Inc.
Ladies and Gentlemen:
We have acted as counsel to Citibank, N.A., as Administrative Agent (the “Agent”), in
connection with the Four Year Credit Agreement, dated as of March 11, 2011 (the “Credit
Agreement”), among Xxxxxxx Xxxxx & Xxxxxx, Inc., a Connecticut corporation (the
“Company”), The Black & Xxxxxx Corporation, a Maryland corporation (the “Subsidiary
Guarantor”), and each of you. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
In that connection, we have reviewed originals or copies of the following documents:
(a) A copy of the Credit Agreement executed by each of the Company and the Subsidiary
Guarantor and
(b) The Notes executed by the Company and delivered on the date hereof.
The documents described in the foregoing clauses (a) and (b) are collectively referred to herein as
the “Opinion Documents.”
We have also reviewed originals or copies of such other agreements and documents as we have
deemed necessary as a basis for the opinions expressed below.
In our review of the Opinion Documents and other documents, we have assumed:
A. | The genuineness of all signatures. |
B. | The authenticity of the originals of the documents submitted to us. |
C. | The conformity to authentic originals of any documents submitted to us as copies. |
C3-1
D. | As to matters of fact, the truthfulness of the representations made in the Credit Agreement and the other Opinion Documents. |
E. | That each of the Opinion Documents is the legal, valid and binding obligation of each party thereto, other than the Loan Parties, enforceable against each such party in accordance with its terms. |
F. | That: |
(i) Each Loan Party is an entity duly organized and validly existing under the laws of
the jurisdiction of its organization.
(ii) Each Loan Party has full power to execute, deliver and perform, and has duly
executed and delivered, the Opinion Documents to which it is a party.
(iii) The execution, delivery and performance by each Loan Party of the Opinion
Documents to which it is a party have been duly authorized by all necessary action
(corporate or otherwise) and do not:
(1) contravene its certificate or articles of incorporation,
by-laws or other organizational documents;
(2) except with respect to Generally Applicable Law, violate any
law, rule or regulation applicable to it; or
(3) result in any conflict with or breach of any agreement or
document binding on it of which any addressee hereof has knowledge,
has received notice or has reason to know.
(iv) Except with respect to Generally Applicable Law, no authorization, approval or
other action by, and no notice to or filing with, any governmental authority or regulatory
body or (to the extent the same is required under any agreement or document binding on it of
which an addressee hereof has knowledge, has received notice or has reason to know) any
other third party is required for the due execution, delivery or performance by any Loan
Party of any Opinion Documents to which it is a party or, if any such authorization,
approval, action, notice or filing is required, it has been duly obtained, taken, given or
made and is in full force and effect.
We have not independently established the validity of the foregoing assumptions.
“Generally Applicable Law” means the federal law of the United States of America, and
the law of the State of New York (including the rules or regulations promulgated thereunder or
pursuant thereto), that a New York lawyer exercising customary professional diligence would
reasonably be expected to recognize as being applicable to the Loan Parties, the Opinion Documents
or the transactions governed by the Opinion Documents. Without limiting the generality of the
foregoing definition of Generally Applicable Law, the term “Generally Applicable Law” does not
include any law, rule or regulation that is applicable to any Loan Party, the Opinion Documents or
such transactions solely because such law, rule or regulation is part of a regulatory regime
applicable to any party to any of the Opinion Documents or any of its affiliates due to the
specific assets or business of such party or such affiliate.
C2-2
Based upon the foregoing and upon such other investigation as we have deemed necessary and
subject to the qualifications set forth below, we are of the opinion that each Opinion Document is
the legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party in
accordance with its terms.
Our opinion expressed above is subject to the following qualifications:
(a) Our opinion is subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally (including
without limitation all laws relating to fraudulent transfers).
(b) Our opinion is subject to the effect of general principles of equity, including
without limitation concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(c) We express no opinion with respect to the enforceability of indemnification
provisions, or of release or exculpation provisions, contained in the Opinion Documents to
the extent that enforcement thereof is contrary to public policy regarding the
indemnification against or release or exculpation of criminal violations, intentional harm
or violations of securities laws.
(d) We express no opinion with respect to the enforceability of any indemnity against
loss in converting into a specified currency the proceeds or amount of a court judgment in
another currency.
(e) We express no opinion with respect to Section 8.13 of the Credit Agreement to
the extent that such Section (i) implies that a federal court of the United States has
subject matter jurisdiction or (ii) purports to grant any court exclusive jurisdiction.
(f) Our opinion is limited to Generally Applicable Law.
A copy of this opinion letter may be delivered by any of you to any person that becomes a
Lender in accordance with the provisions of the Credit Agreement. Any such person may rely on the
opinions expressed above as if this opinion letter were addressed and delivered to such person on
the date hereof.
This opinion letter is rendered to you in connection with the transactions contemplated by the
Opinion Documents. This opinion letter may not be relied upon by you or any person entitled to
rely on this opinion pursuant to the preceding paragraph for any other purpose without our prior
written consent.
This opinion letter speaks only as of the date hereof. We expressly disclaim any
responsibility to advise you of any development or circumstance of any kind, including any change
of law or fact, that may occur after the date of this opinion letter that might affect the opinions
expressed herein.
Very truly yours,
SLH
C2-3
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Four Year Credit Agreement dated as of March 11, 2011 (as amended or
modified from time to time, the “Credit Agreement”) among Xxxxxxx Xxxxx & Xxxxxx, Inc., a
Connecticut corporation (the “Company”), The Black & Xxxxxx Corporation, the Lenders (as
defined in the Credit Agreement) and Citibank, N.A., as Administrative Agent for the Lenders (the
“Administrative Agent”). Terms defined in the Credit Agreement are used herein with the
same meaning.
The “Assignor” and the “Assignee” referred to on Schedule I hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, an interest in and to the Assignor’s rights and obligations under
the Credit Agreement as of the date hereof equal to the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the Credit Agreement. After giving effect
to such sale and assignment, the Assignee’s Commitment and the amount of the Advances owing to the
Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Company or the performance or observance by the Company of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches
the Note held by the Assignor and requests that the Administrative Agent exchange such Note
for a new Note payable to the order of the Assignee in an amount equal to the Commitment assumed by
the Assignee pursuant hereto or new Notes payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount equal to
the Commitment retained by the Assignor under the Credit Agreement, respectively, as specified on
Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Administrative Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental thereto; (iv) agrees
that it will perform in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; (v) agrees, for the benefit of the
Company, that it will be bound by the terms and provisions of the Credit
D-1
Agreement to the same extent as if it were an original party thereto; and (vi) attaches any U.S.
Internal Revenue Service forms required under Section 8.09 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance and recording by the Administrative Agent. The effective date
for this Assignment and Acceptance (the “Effective Date”) shall be the date of acceptance
hereof by the Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative Agent, as of the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from and after the
Effective Date, the Administrative Agent shall make all payments under the Credit Agreement and the
Notes in respect of the interest assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit Agreement and the
Notes for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the
law of the State of New York.
8. This Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier
shall be effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment
and Acceptance to be executed by their officers thereunto duly authorized as of the date specified
thereon.
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: |
D-2
Schedule 1
to
Assignment and Acceptance
to
Assignment and Acceptance
Percentage interest assigned: |
__________ | % | ||
Assignee’s Commitment: |
$ | __________ | ||
Aggregate outstanding principal amount of
Advances assigned: |
$ | __________ | ||
Principal amount of Note payable to Assignee: |
$ | __________ | ||
Principal amount of Note payable to Assignor: |
$ | __________ | ||
Effective Date7: |
___________, 20__ |
[NAME OF ASSIGNOR], as Assignor |
||||
By | ||||
Name: | ||||
Title: | ||||
Dated: _______________, 20__ [NAME OF ASSIGNEE], as Assignee |
||||
By | ||||
Name: | ||||
Title: | ||||
Dated: _______________, 20__ |
||||
6 | This date should be no earlier than five Business Days after the delivery of this Assignment and Acceptance to the Agent. |
D-3
Domestic Lending Office:
[Address]
[Address]
Eurocurrency Lending Office:
[Address]
[Address]
Accepted this__________ day
of _______________, 20__
of _______________, 20__
CITIBANK, N.A., as Administrative Agent |
||||
By | ||||
Name: | ||||
Title: | ||||
[Approved this __________ day
of _______________, 20__
of _______________, 20__
XXXXXXX XXXXX & XXXXXX, INC. |
||||
By | ||||
Name: | ||||
Title: |
D-4
EXHIBIT E
PROMISSORY NOTE
[$][€][£]______ | Dated: __________ |
FOR VALUE RECEIVED, the undersigned, [XXXXXXX XXXXX & XXXXXX, INC., a Connecticut corporation]
[DESIGNATED BORROWER, a [________] corporation] (the “Borrower”), HEREBY PROMISES TO PAY to
the order of [NAME OF LENDER] (the “Lender”) the principal sum of [$][€][£] or, if less, the aggregate principal amount of all Advances made by the Lender to the Borrower
pursuant to the Credit Agreement referred to below outstanding on the Termination Date, and such
amount shall be paid on or prior to the Termination Date as provided in the Credit Agreement
referred to below.
Capitalized terms used herein and not defined herein shall have the meanings provided in the
Credit Agreement referred to below.
The Borrower promises to pay interest on the principal amount of each Advance from the date of
such Advance until such principal amount is paid in full, at such interest rates, and payable at
such times, as are specified in the Credit Agreement referred to below.
Both principal of and interest on each Advance are payable in the Currency in which such
Advance was denominated to Citibank, N.A., as Administrative Agent, at the Administrative Agent’s
Account in the Principal Financial Center for such Currency for the account of the Lender, in same
day funds. Each Advance made by the Lender to the Borrower and the maturity thereof, and all
payments made on account of the principal amount thereof, shall be recorded by the Lender and,
prior to any transfer hereof, endorsed on the grid attached hereto which is a part of this
Promissory Note, which recordation shall be conclusive and binding absent manifest error but the
failure to make such recording shall not have any effect on the Lender’s rights hereunder.
This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Four Year Credit Agreement dated as of March 11, 2011 (as amended, modified or supplemented
from time to time, the “Credit Agreement”), among [Xxxxxxx Xxxxx & Xxxxxx, Inc./the
Borrower], The Black & Xxxxxx Corporation, certain Designated Borrowers (if any), the Lender and
certain other lenders parties thereto, and Citibank, N.A., as Administrative Agent for the Lender
and such other lenders. The Credit Agreement, among other things, (i) provides for the making of
Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the Dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events and
also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
E-1
[XXXXXXX XXXXX & XXXXXX, INC.] [DESIGNATED BORROWER] |
||||
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: |
E-2
EXHIBIT F
FORM OF DESIGNATION LETTER
[Date]
To Citibank, N.A.,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
as Administrative Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: [__________]
Ladies and Gentlemen:
We make reference to the $1,200,000,000 Four Year Credit Agreement dated as of March 11, 2011
(the “Credit Agreement”) among Xxxxxxx Xxxxx & Xxxxxx, Inc. (the “Company”), The
Black & Xxxxxx Corporation, certain Designated Borrowers (if any), the Lenders party thereto and
Citibank, N.A., as Administrative Agent. Terms defined in the Credit Agreement are used herein as
defined therein.
The Company hereby designates [____________] (the “Designated Borrower”), a
corporation duly incorporated under the laws of [_____________] and a Subsidiary, as a Company in
accordance with Section 2.14 of the Credit Agreement.
The Designated Borrower hereby accepts the above designation and hereby expressly and
unconditionally accepts all of the obligations of a Borrower under the Credit Agreement, adheres to
the Credit Agreement and agrees and confirms that, upon your execution and return to the Company of
the enclosed copy of this letter, it shall be a Borrower for all purposes of the Credit Agreement,
joins in each of the waivers, appointments and submissions in Article VIII thereof, and will
perform and comply with the terms and provisions of the Credit Agreement applicable to it as if it
had originally executed the Credit Agreement as a Borrower. The Designated Borrower hereby
authorizes and empowers the Company to act as its representative and attorney-in-fact for the
purposes of signing documents and giving and receiving notices (including notices of Borrowing
under the Credit Agreement) and other communications in connection with the Credit Agreement and
the transactions contemplated thereby and for the purposes of modifying or amending any provision
of the Credit Agreement and further agrees that the Administrative Agent and each Lender may
conclusively rely on the foregoing authorization.
The Designated Borrower represents and warrants to the Administrative Agent and each Lender
the following:
(a) | Corporate Existence. The Designated Borrower is an entity duly organized and validly existing under the laws of its jurisdiction of formation. |
F-1
(b) | Corporate Authorization, Etc. The performance of its obligations under the Credit Agreement and the execution, delivery and performance by the Designated Borrower of this Designation Letter and any Note executed by the Designated Borrower are within the Designated Borrower’s corporate powers, have been duly authorized by all necessary corporate action and do not contravene (i) the Designated Borrower’s charter documents of (ii) any law or contractual restriction binding on or affecting the Designated Borrower. |
(c) | No Approvals. No authorization, approval or action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Designated Borrower’s of this Designation Letter and any Note executed by the Designated Borrower or the performance of its obligations under the Credit Agreement. |
(d) | Enforceability. Each of the Credit Agreement and this Designation Letter is and, upon issuance and delivery thereof in accordance with the Credit Agreement, each Note executed by the Designated Borrower will be the legal, valid and binding obligations of the Designated Borrower, enforceable against the Designated Borrower in accordance with their respective terms. |
(e) | Investment Company. The Designated Borrower is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
(f) | No Defaults. The Designated Borrower is not in default under or with respect to any agreement, instrument or undertaking to which it is a party or by which it or any of its property is bound in any respect which could reasonably be expected to result in a Material Adverse Effect. |
(g) | Use of Proceeds, Etc. All proceeds of each Advance made to the Designated Borrower will be used by it only in accordance with the provisions of Section 2.12 of the Credit Agreement. It is not, nor will be, engaged in the business of extending credit for the purpose of buying or carrying Margin Stock and no proceeds of any Advance will be used by it to extend credit to others for the purpose of buying or carrying any Margin Stock. Neither the making of any Advance to the Designated Borrower nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulations U or X issued by the Board of Governors of the Federal Reserve System. |
The Designated Borrower agrees that the address set forth below its name on its
signature page hereto shall be its “Address for Notices” for all purposes of the Credit
Agreement (including Section 8.13 thereof). The Designated Borrower acknowledges its
receipt of the notice of each Lender, provided pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), set forth in
Section 8.15 of the Credit Agreement.
F-2
To the extent that the Designated Borrower or any of its Property has or hereafter may
acquire, in any jurisdiction in which judicial proceedings may at any time be commenced with
respect to the Credit Agreement or any other Loan Document, any immunity from jurisdiction, legal
proceedings, attachment (whether before or after judgment), execution, judgment or set-off, the
Designated Borrower hereby irrevocably agrees not to claim and hereby irrevocably waives such
immunity.
XXXXXXX XXXXX & XXXXXX, INC. |
||||
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: | ||||
[NAME OF DESIGNATED BORROWER] |
||||
By | ||||
Name: | ||||
Title: | ||||
Address for Notices: | ||||
[_________________] [_________________] [_________________] |
||||
Attention: [____________] Telecopier: [____________] Telephone: [____________] |
||||
ACCEPTED AND AGREED: CITIBANK, N.A., as Administrative Agent |
||||
By | ||||
Name: | ||||
Title: |
F-3
EXHIBIT G
FORM OF TERMINATION LETTER
[Date] |
To Citibank, N.A.,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
as Administrative Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: [__________]
Ladies and Gentlemen:
We make reference to the $1,200,000,000 Four Year Credit Agreement dated as of March 11, 2011
(the “Credit Agreement”) among Xxxxxxx Xxxxx & Xxxxxx, Inc. (the “Company”), The
Black & Xxxxxx Corporation, certain Designated Borrowers (if any), the Lenders party thereto and
Citibank, N.A., as Administrative Agent. Terms defined in the Credit Agreement are used herein as
defined therein.
The Company hereby terminates the status as a Designated Borrower of [_________________], a
corporation incorporated under the laws of [_______________], in accordance with Section 2.14 of
the Credit Agreement, effective as of the date of receipt of this notice by the Administrative
Agent. The undersigned hereby represents and warrants that all principal and interest on any
Advance of the above-referenced Designated Borrower and all other amounts payable by such
Designated Borrower pursuant to the Credit Agreement have been paid in full on or prior to the date
hereof. Notwithstanding the foregoing, this Termination Letter shall not affect any obligation
which by the terms of the Credit Agreement survives termination thereof.
XXXXXXX XXXXX & XXXXXX, INC. |
||||
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: | ||||
G-1