TERM LOAN CREDIT AGREEMENT Dated as of September 14, 2007 among ENERGIZER HOLDINGS, INC. THE INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS JPMORGAN CHASE BANK, N.A., as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent and...
Exhibit
10.1
EXECUTION
COPY
Dated
as of
September 14, 2007
among
ENERGIZER
HOLDINGS,
INC.
THE
INSTITUTIONS
FROM TIME TO TIME
PARTIES
HERETO AS
LENDERS
JPMORGAN
CHASE
BANK, N.A.,
as
Administrative
Agent,
BANK
OF AMERICA,
N.A.,
as
Syndication
Agent
and
CITIBANK,
N.A.,
as
Documentation
Agent
_________________________________________________________________________________
X.X.
XXXXXX
SECURITIES INC., BANC OF AMERICA SECURITIES LLC AND CITIGROUP GLOBAL MARKETS
INC.,
as
Lead Arrangers
and Joint Bookrunners
_________________________________________________________________________________
Table
of
Contents
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1.1 Certain
Defined Terms
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1.2 References
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2.1 Loans
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2.2 Repayment
of Loans
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2.3 Rate
Options for all Loans; Maximum Interest
Periods
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2.4 Prepayments
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2.5 Reduction
of Commitments
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2.6 Method
of Borrowing
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2.7 Method
of Requesting the Advance
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2.8 Amount
of the Advance
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2.9 Method
of Selecting Types and Interest Periods for Conversion and Continuation
of
Loans
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2.10 Default
Rate
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2.11 Method
of Payment
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2.12 Evidence
of Debt; Noteless Agreement
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2.13 Telephonic
Notices
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2.14 Promise
to Pay; Interest Payment Dates; Fees; Interest and Fee
Basis
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2.15 Notification
of the Advance, Interest Rates, Prepayments and Aggregate Commitment
Reductions
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2.16 Lending
Installations
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2.17 Non-Receipt
of Funds by the Administrative
Agent
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2.18 Termination
Date
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2.19 Replacement
of Certain Lenders
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4.1 Yield
Protection
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4.2 Changes
in Capital Adequacy Regulations
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4.3 Availability
of Types of Loans
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4.4 Funding
Indemnification
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4.5 Taxes.
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4.6 Lender
Statements; Survival of Indemnity
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5.1 Funding
Date
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5.2 Closing
Date
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5.3 Each
Loan
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6.1 Organization;
Corporate Powers
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6.2 Authority.
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6.3 No
Conflict; Governmental Consents for the
Borrower
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6.4 Financial
Statements
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6.5 No
Material Adverse Change
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6.6 Taxes.
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6.7 Litigation;
Loss Contingencies and Violations
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6.8 Subsidiaries
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6.9 ERISA
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6.10 Accuracy
of Information
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6.11 Securities
Activities
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6.12 Material
Agreements
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6.13 Compliance
with Laws
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6.14 Assets
and Properties
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6.15 Statutory
Indebtedness Restrictions
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6.16 Insurance
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6.17 Labor
Matters
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6.18 Designated
Acquisition
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6.19 Environmental
Matters
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6.20 Solvency
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6.21 Benefits
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7.1 Reporting
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7.2 Affirmative
Covenants.
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7.3 Negative
Covenants.
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7.4 Financial
Covenants
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8.1 Defaults
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9.1 Termination
of Commitments; Acceleration
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9.2 Defaulting
Lender
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9.3 Amendments
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9.4 Preservation
of Rights
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10.1 Survival
of Representations
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10.2 Governmental
Regulation
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10.3 Performance
of Obligations
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10.4 Headings
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10.5 Entire
Agreement
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10.6 Several
Obligations; Benefits of this
Agreement
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10.7 Expenses;
Indemnification.
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10.8 Numbers
of Documents
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10.9 Accounting
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10.10 Severability
of Provisions
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10.11 Nonliability
of Lenders
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10.12 GOVERNING
LAW
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10.13 CONSENT
TO JURISDICTION; JURY TRIAL.
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10.14 Subordination
of Intercompany Indebtedness
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11.1 Appointment
and Authorization
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11.2 Administrative
Agent and Affiliates
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11.3 Action
by Administrative Agent and Liability of Administrative
Agent
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11.4 Reliance
on Documents and Counsel
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11.5 Employment
of Agents
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11.6 Indemnification
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11.7 Successor
Agent
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11.8 Credit
Decision
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11.9 Administrative
Agent, Arrangers, Syndication Agent, Documentation
Agent
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12.1 Setoff
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12.2 Ratable
Payments
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12.3 Application
of Payments
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12.4 Relations
Among Lenders.
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12.5 Representations
and Covenants Among Lenders
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13.1 Successors
and Assigns
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13.2 Participations.
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13.3 Assignments.
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13.4 Confidentiality
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14.1 Giving
Notice.
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14.2 Change
of Address
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Exhibits
and
Schedules
EXHIBIT
A Commitments
EXHIBIT
B Form
of Borrowing/Election Notice
EXHIBIT
C Form
of Assignment and Assumption
EXHIBIT
D Form
of Borrower’s Counsel’s Opinion
EXHIBIT
E Form
of Officer’s Certificate
EXHIBIT
F Form
of Compliance Certificate
EXHIBIT
G Form
of Supplement to Subsidiary Guaranty
Schedule
1.1.1 Permitted
Existing Investments
Schedule
1.1.2 Permitted
Existing Liens
Schedule
1.1.3 Permitted
Existing Contingent Obligations
Schedule
6.3 Conflicts;
Governmental Consents
Schedule
6.7 Litigation;
Loss Contingencies
Schedule
6.8 Subsidiaries
Schedule
6.19 Environmental
Matters
Schedule
7.3(G) Transactions
with Shareholders and Affiliates
This
Term Loan
Credit Agreement dated as of September 14, 2007 is entered into among ENERGIZER
HOLDINGS, INC., a Missouri corporation, the institutions from time to time
parties hereto as Lenders and JPMORGAN CHASE BANK, N.A., in its capacity as
Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, and CITIBANK,
N.A., as Documentation Agent. The parties hereto agree as
follows:
Certain
Defined
Terms. In addition to the terms defined above, the following
terms used in this Agreement shall have the following meanings, applicable
both
to the singular and the plural forms of the terms defined.
As
used in this
Agreement:
“Accounting
Change” is defined in Section 10.9 hereof.
“Acquisition”
means any transaction, or any series of related transactions, consummated on
or
after the date of this Agreement, by which the Borrower or any of its
Subsidiaries (i) acquires any going business or all or substantially all of
the
assets of any firm, corporation or division thereof, whether through purchase
of
assets, merger or otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions)
at
least a majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency) or a
majority (by percentage of voting power) of the outstanding equity interests
of
another Person.
“Administrative
Agent” means JPMorgan in its capacity as contractual representative for
itself and the Lenders pursuant to Article XI hereof and any successor
Administrative Agent appointed pursuant to Article XI
hereof.
“Administrative
Questionnaire” means an administrative questionnaire in a form supplied by
the Administrative Agent.
“Advance”
means the borrowing hereunder made on the Funding Date in accordance with
Article II and consisting of the aggregate amount of the several Loans
made by the Lenders to the Borrower.
“Affected
Lender” is defined in Section 2.19 hereof.
“Affiliate”
of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
“beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership
of
Capital Stock, by contract or otherwise.
“Agents”
means, collectively, the Administrative Agent, the Syndication Agent and the
Documentation Agent.
“Aggregate
Commitment” means the aggregate of the Commitments of all the Lenders, as
may be reduced from time to time pursuant to the terms hereof. The
initial Aggregate Commitment is One Billion Five Hundred Million and 00/100
Dollars ($1,500,000,000.00).
“Agreement”
means this Term Loan Credit Agreement, as it may be amended, restated,
supplemented or otherwise modified and in effect from time to time.
“Agreement
Accounting Principles” means generally accepted accounting principles as in
effect in the United States from time to time, applied in a manner consistent
with that used in preparing the financial statements of the Borrower referred
to
in Section 6.4 hereof; provided, however, except as
provided in Section 10.9, that with respect to the calculation of
financial ratios and other financial tests required by this Agreement,
“Agreement Accounting Principles” means generally accepted accounting principles
as in effect in the United States as of the date of this Agreement, applied
in a
manner consistent with that used in preparing the financial statements of the
Borrower referred to in Section 6.4 hereof.
“Alternate
Base
Rate” means, for any day, a fluctuating rate of interest per annum equal to
the higher of (i) the Prime Rate for such day and (ii) the sum of (a) the
Federal Funds Effective Rate for such day and (b) one-half of one percent (0.5%)
per annum.
“Applicable
Facility Fee Percentage” means 0.20% per annum.
“Applicable
Margin” means 0.80% per annum.
“Approved
Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions
of
credit in the ordinary course of its business and that is administered or
managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or
an
Affiliate of an entity that administers or manages a Lender.
“Arrangers”
means X.X. Xxxxxx Securities Inc., Banc of America Securities LLC and Citigroup
Global Markets Inc., in their respective capacities as the lead arrangers and
joint bookrunners for the loan transaction evidenced by this
Agreement.
“Asset
Sale”
means, with respect to any Person, the sale, lease, conveyance, disposition
or
other transfer by such Person of any of its assets (including by way of a
sale-leaseback transaction, and including the sale or other transfer of any
of
the Equity Interests of any Subsidiary of such Person) other than (i) the sale
of Inventory in the ordinary course of business and (ii) the sale or other
disposition of any obsolete manufacturing Equipment disposed of in the ordinary
course of business.
“Assignment
and
Assumption” means an assignment and assumption agreement entered into by a
Lender and an assignee (with the consent of any party whose consent is required
by Section 13.3), and accepted by the Administrative Agent, in the form
of Exhibit C or any other form approved by the Administrative
Agent.
“Authorized
Officer” means any of the president, any vice president (including any
executive vice president), the chief financial officer or the
treasurer of the Borrower, acting singly.
“Bank
of
America” means Bank of America, N.A., in its individual capacity, and its
successors.
“Benefit
Plan” means a defined benefit plan as defined in Section 3(35) of ERISA
(other than a Multiemployer Plan or Foreign Pension Plan) in respect of which
the Borrower or any other member of the Controlled Group is, or within the
immediately preceding six (6) years was, an “employer” as defined in Section
3(5) of ERISA.
“Board”
means the Board of Governors of the Federal Reserve System of the United States
of America.
“Borrower”
means Energizer Holdings, Inc., a Missouri corporation, together with its
successors and assigns, including a debtor-in-possession on behalf of the
Borrower.
“Borrowing/Election
Notice” is defined in Section 2.7 hereof.
“Business
Day” means (i) with respect to any borrowing, payment or rate selection of
Loans bearing interest at the Eurodollar Rate, a day (other than a Saturday
or
Sunday) on which banks are open for business in Chicago, Illinois and New York,
New York, and on which dealings in Dollars are carried on in the London
interbank market and (ii) for all other purposes a day (other than a Saturday
or
Sunday) on which banks are open for business in Chicago, Illinois and New York,
New York.
“Capital
Stock” means (i) in the case of a corporation, capital stock, (ii) in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited) and (iv) any other interest or participation that confers
on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
“Capitalized
Lease” of a Person means any lease of property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.
“Capitalized
Lease Obligations” of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be capitalized on a balance sheet
of
such Person prepared in accordance with Agreement Accounting
Principles.
“Cash
Equivalents” means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers’ acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies (fully protected against
currency fluctuations for any such deposits with a term of more than ninety
(90)
days); (iii) shares of money market, mutual or similar funds having assets
in
excess of $100,000,000 and at least 95% of the investments of which are limited
to investment grade securities (i.e., securities rated at least Baa by Xxxxx’x
Investors Service, Inc. or at least BBB by Standard & Poor’s Ratings Group);
and (iv) commercial paper of United States and foreign banks and bank holding
companies and their subsidiaries and United States and foreign finance,
commercial industrial or utility companies which, at the time of acquisition,
are rated A-1 (or better) by Standard & Poor’s Ratings Group or P-1 by
Xxxxx’x Investors Service, Inc.; provided that the maturities of such Cash
Equivalents described in the foregoing clauses (i) through (iv) shall not exceed
365 days; (v) repurchase obligations of any commercial bank organized under
the
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies having a term not more than thirty
(30) days, with respect to securities issued or fully guaranteed or insured
by
the United States government; (vi) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth, territory, political subdivision, taxing authority or by any
foreign government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case
may
be) are rated at least BBB by Standard & Poor’s Ratings Group or at least
Baa by Xxxxx’x Investors Service, Inc.; (vii) securities with maturities of one
year or less from the date of acquisition backed by standby letters of credit
issued by any commercial bank organized under the laws of the United States,
any
state thereof or the District of Columbia (which commercial bank shall have
a
short-term debt rating of A-1 (or better) by Standard & Poor’s
Ratings Group or P-1 by Xxxxx’x Investors Service, Inc.), or by any foreign bank
(which foreign bank shall have a rating of B or better from Thomson BankWatch
Global Issuer Rating or, if not rated by Thomson BankWatch Global Issuer Rating,
which foreign bank shall be an institution acceptable to the Administrative
Agent), or its branches or agencies; or (viii) shares of money market mutual
or
similar funds at least 95% of the assets of which are invested in the types
of
investments satisfying the requirements of clauses (i) through (vii) of this
definition.
“Change”
is
defined in Section 4.2 hereof.
“Change
of
Control” means an event or series of events by which:
(i) any
“person”
or
“group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3
under the Securities Exchange Act of 1934), directly or indirectly, of thirty
percent (30%) or more of the voting power of the then outstanding Capital Stock
of the Borrower entitled to vote generally in the election of the directors
of
the Borrower;
(ii) during
any period
of 12 consecutive calendar months, the board of directors of the Borrower shall
cease to have as a majority of its members individuals who either:
(a) were
directors of
the Borrower on the first day of such period, or
(b) were
elected or
nominated for election to the board of directors of the Borrower at the
recommendation of or other approval by at least a majority of the directors
then
still in office at the time of such election or nomination who were directors
of
the Borrower on the first day of such period, or whose election or nomination
for election was so approved;
(iii) other
than as a
result of a transaction not prohibited under the terms of this Agreement, the
Borrower (a) shall cease to own, of record and beneficially, with sole voting
and dispositive power, 100% of the outstanding shares of Capital Stock of each
of the Subsidiary Guarantors or (b) shall cease to have the power, directly
or
indirectly, to elect all of the members of the board of directors of each of
the
Subsidiary Guarantors; or
(iv) the
Borrower
consolidates with or merges into another corporation or conveys, transfers
or
leases all or substantially all of its property to any Person, or any
corporation consolidates with or merges into the Borrower, in either event
pursuant to a transaction in which the outstanding Capital Stock of the Borrower
is reclassified or changed into or exchanged for cash, securities or other
property.
“Citibank”
means Citibank, N.A., in its individual capacity, and its
successors.
“Closing
Date” means the date of this Agreement.
“Code”
means
the Internal Revenue Code of 1986, as amended, reformed or otherwise modified
from time to time.
“Commission”
means the Securities and Exchange Commission of the United States of America
and
any Person succeeding to the functions thereof.
“Commitment”
means, for each Lender, prior to the Funding Date, the obligation of such Lender
to make Loans not exceeding the amount set forth on Exhibit A to this
Agreement opposite its name thereon under the heading “Commitment” or in the
Assignment and Assumption by which it became a Lender, as such amount may be
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Assumption.
“Consolidated
Assets” means the total assets of the Borrower and its Subsidiaries on a
consolidated basis.
“Consolidated
Domestic Assets” means the total assets of the Borrower and each of its
consolidated Subsidiaries that is incorporated under the laws of any
jurisdiction in the United States.
“Consolidated
Net Worth” means, as of any date, all amounts which would be included under
shareholders’ equity (including capital stock, additional paid-in capital and
retained earnings) on the consolidated balance sheet for the Borrower and its
consolidated Subsidiaries determined in accordance with Agreement Accounting
Principles.
“Consolidated
Total Capitalization” means, as of any date, the sum of (i) Indebtedness of
the Borrower and its consolidated Subsidiaries and (ii) Consolidated Net Worth,
all determined in accordance with Agreement Accounting Principles.
“Contaminant”
means any waste, pollutant, hazardous substance, toxic substance, hazardous
waste, special waste, petroleum or petroleum-derived substance or waste,
asbestos or polychlorinated biphenyls (“PCBs”), and includes but is not limited
to these terms as defined in Environmental, Health or Safety Requirements of
Law.
“Contingent
Obligation”, as applied to any Person, means any Contractual Obligation,
contingent or otherwise, of that Person with respect to any Indebtedness of
another or other obligation or liability of another, including, without
limitation, any such Indebtedness, obligation or liability of another directly
or indirectly guaranteed, endorsed (otherwise than for collection or deposit
in
the ordinary course of business), co-made or discounted or sold with recourse
by
that Person, or in respect of which that Person is otherwise directly or
indirectly liable, including Contractual Obligations (contingent or otherwise)
arising through any agreement to purchase, repurchase, or otherwise acquire
such
Indebtedness, obligation or liability or any security therefor, or to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make
payment other than for value received. The amount of any Contingent
Obligation shall be equal to the present value of the portion of the obligation
so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of
the
portion of the obligation so guaranteed or otherwise supported assuming such
Person is required to perform thereunder, in all other cases.
“Contractual
Obligation”, as applied to any Person, means any provision of any equity or
debt securities issued by that Person or any indenture, mortgage, deed of trust,
security agreement, pledge agreement, guaranty, contract, undertaking, agreement
or instrument, in any case in writing, to which that Person is a party or by
which it or any of its properties is bound, or to which it or any of its
properties is subject. Without in any way limiting the foregoing, as
used with respect to the Borrower or any of its Subsidiaries, Contractual
Obligations shall include, without limitation, the Financing Facilities and
any
instruments, documents or agreements executed or delivered in connection
therewith by which the Borrower or such Subsidiaries are bound.
“Controlled
Group” means the group consisting of (i) any corporation which is a member
of the same controlled group of corporations (within the meaning of Section
414(b) of the Code) as the Borrower; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within
the
meaning of Section 414(c) of the Code) with the Borrower; and (iii) a member
of
the same affiliated service group (within the meaning of Section 414(m) of
the
Code) as the Borrower, any corporation described in clause (i) above or
any partnership or trade or business described in clause (ii)
above.
“Covenant
Leverage Ratio” is defined in Section 7.4(A) hereof.
“Cure
Loan”
is defined in Section 9.2(iii) hereof.
“Customary
Permitted Liens” means:
(i) Liens
(other than
Environmental Liens and Liens in favor of the IRS or the PBGC or any Plan)
with
respect to the payment of taxes, assessments or governmental charges in all
cases which are not yet due or (if foreclosure, distraint, sale or other similar
proceedings shall not have been commenced or any such proceeding after being
commenced is stayed) which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with respect to
which adequate reserves or other appropriate provisions are being maintained
as
may be required in accordance with Agreement Accounting Principles;
(ii) statutory
Liens of
landlords and Liens of suppliers, mechanics, carriers, materialmen, warehousemen
or workmen and other similar Liens imposed by law created in the ordinary course
of business for amounts not yet due or which are being contested in good faith
by appropriate proceedings properly instituted and diligently conducted and
with
respect to which adequate reserves or other appropriate provisions are being
maintained as may be required in accordance with Agreement Accounting
Principles;
(iii) Liens
(other than
Environmental Liens and Liens in favor of the IRS or the PBGC or any Plan)
incurred or deposits made in the ordinary course of business in connection
with
workers’ compensation, unemployment insurance or other types of social security
benefits or to secure the performance of bids, tenders, sales, contracts (other
than for the repayment of borrowed money), surety, appeal and performance bonds;
provided that (A) all such Liens do not in the aggregate materially
detract from the value of the Borrower’s or such Subsidiary’s assets or property
taken as a whole or materially impair the use thereof in the operation of the
Borrower’s or such Subsidiary’s businesses taken as a whole, and (B) all Liens
securing bonds to stay judgments or in connection with appeals do not secure
at
any time an aggregate amount exceeding $30,000,000;
(iv) Liens
arising with
respect to zoning restrictions, easements, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other similar
charges or encumbrances on the use of real property which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(v) Liens
of attachment
or judgment with respect to judgments, writs or warrants of attachment, or
similar process against the Borrower or any of its Subsidiaries which do not
constitute a Default under Section 8.1(H) hereof;
(vi) any
interest or
title of the lessor in the property subject to any operating lease entered
into
by the Borrower or any of its Subsidiaries in the ordinary course of business;
and
(vii) Liens
of commercial
depository institutions arising in the ordinary course of business constituting
a statutory or common law right of setoff against amounts on deposit with any
such institution.
“Default”
means an event described in Article VIII hereof.
“Designated
Acquisition” means the merger of the Target with and into the Designated
Merger Subsidiary in accordance with Delaware General Corporation Law, whereupon
the separate existence of the Designated Merger Subsidiary shall cease, and
the
Target shall be the surviving corporation as a wholly-owned Subsidiary of the
Borrower, all on the terms and conditions set forth in the Designated
Acquisition Agreement.
“Designated
Acquisition Agreement” means that certain Agreement and Plan of Merger,
dated as of July 12, 2007, by and among the Borrower, the Designated Merger
Subsidiary and the Target (for the avoidance of doubt, together with all
exhibits, schedules and appendices thereto).
“Designated
Acquisition Documents” means the Designated Acquisition Agreement, the
Designated Acquisition Stockholder Agreement and all other documents,
instruments and agreements entered into by the Borrower or any of its
Subsidiaries in connection with the Designated Acquisition.
“Designated
Acquisition Stockholder Agreement” means that certain Stockholder Agreement,
dated as of July 12, 2007, by and among the Borrower and the stockholders of
the
Target identified as parties thereto (for the avoidance of doubt, together
with
all exhibits, schedules and appendices thereto).
“Designated
Merger Subsidiary” means ETKM, Inc., a Delaware corporation and a direct,
wholly-owned Subsidiary of the Borrower.
“Disclosed
Litigation” is defined in Section 6.7 hereof.
“Disqualified
Stock” means any preferred stock and any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which
it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the Termination Date.
“Documentation
Agent” means Citibank (and its successors) in its capacity as documentation
agent for the loan transaction evidenced by this Agreement.
“DOL”
means
the United States Department of Labor and any Person succeeding to the functions
thereof.
“Dollar”
and
“$” means dollars in the lawful currency of the United
States.
“EBIT” means,
for any period, on a consolidated basis for the Borrower and its Subsidiaries,
the sum of the amounts for such period, without duplication, of (i) Net Income,
plus (ii) Interest Expense to the extent deducted in computing Net
Income, plus (iii) charges against income for foreign, federal, state and
local taxes to the extent deducted in computing Net Income, plus (iv)
non-cash charges (except any non-cash charges that require accrual of a reserve
for anticipated future cash payments for any period) to the extent deducted
in
computing Net Income, plus (v) other extraordinary non-cash charges to
the extent deducted in computing Net Income, minus (vi) extraordinary
gains to the extent added in computing Net Income.
“EBITDA”
means, for any period, on a consolidated basis for the Borrower and its
Subsidiaries, the sum of the amounts for such period, without duplication,
of
(i) EBIT, plus (ii) depreciation expense to the extent deducted in
computing Net Income, plus (iii) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets, to the extent
deducted in computing Net Income.
“Environmental,
Health or Safety Requirements of Law” means all applicable foreign, federal,
state and local laws or regulations relating to or addressing pollution or
protection of the environment, or protection of worker health or safety,
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 etseq., the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651
etseq., and the Resource Conservation and Recovery Act of 1976,
42
U.S.C. § 6901 etseq., in each case including any amendments
thereto, any successor statutes, and any regulations promulgated thereunder,
and
any state or local equivalent thereof.
“Environmental
Lien” means a lien in favor of any Governmental Authority for (a) any
liability under Environmental, Health or Safety Requirements of Law, or (b)
damages arising from, or costs incurred by such Governmental Authority in
response to, a Release or threatened Release of a Contaminant into the
environment.
“Environmental
Property Transfer Act” means any applicable requirement of law that
conditions, restricts, prohibits or requires any notification or disclosure
triggered by the closure of any property or the transfer, sale or lease of
any
property or deed or title for any property for environmental reasons, including,
but not limited to, any so-called “Industrial Site Recovery Act” or “Responsible
Property Transfer Act.”
“Equipment”
means all of the Borrower’s and its Subsidiaries’ present and future (i)
equipment, including, without limitation, machinery, manufacturing,
distribution, selling, data processing and office equipment, assembly systems,
tools, molds, dies, fixtures, appliances, furniture, furnishings, vehicles,
vessels, aircraft, aircraft engines, and trade fixtures, (ii) other tangible
personal property (other than the Borrower’s or Subsidiary’s Inventory), and
(iii) any and all accessions, parts and appurtenances attached to any of the
foregoing or used in connection therewith, and any substitutions therefor and
replacements, products and proceeds thereof.
“Equity
Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible
into,
or exchangeable for, Capital Stock).
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time, including (unless the context otherwise requires) any rules or
regulations promulgated thereunder.
“Eurodollar
Base
Rate” means, with respect to any Eurodollar Rate Advance for any Interest
Period, the rate appearing on Reuters BBA Libor Rates Page 3750 (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of such service which is generally utilized in the
syndicated loan market, as determined by the Administrative Agent from time
to
time for purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two (2) Business Days prior to the commencement of such Interest Period,
as the rate for Dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for
any reason, then the “Eurodollar Base Rate” with respect to such
Eurodollar Rate Advance for such Interest Period shall be the rate at which
Dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent
in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two (2) Business Days prior to the commencement of
such
Interest Period.
“Eurodollar
Rate” means, with respect to any Eurodollar Rate Advance for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to (a) the Eurodollar Base Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate plus (ii) the Applicable
Margin plus (iii) at all times from and after December 30, 2007, 0.50%
per annum (the “Supplemental Margin”).
“Eurodollar
Rate
Loan” means a Loan, or portion thereof, which bears interest at the
Eurodollar Rate.
“Excluded
Taxes” means, in the case of each Lender or applicable Lending Installation
and the Administrative Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Administrative Agent is incorporated or organized or (ii)
the
jurisdiction in which the Administrative Agent’s or such Lender’s principal
executive office or such Lender’s applicable Lending Installation is
located.
“Existing
Credit
Agreement” means that certain Revolving Credit Agreement, dated as of
November 16, 2004, among the Borrower, the institutions from time to time
parties thereto as lenders, JPMorgan, as the administrative agent, Bank of
America, as the syndication agent, and Citibank, as the documentation agent,
as
amended by Amendment No. 1 thereto dated as of September 22, 2005, Amendment
No.
2 thereto dated as of October 21, 2005 and Amendment No. 3 thereto dated as
of
May 15, 2006, and as the same may be further amended, restated, supplemented
or
otherwise modified from time to time in a manner that is not materially adverse
to the interests of the Lenders.
“Existing
Credit
Facility” means the credit facility evidenced by the Existing Credit
Agreement and the subsidiary guarantees and other instruments, documents and
agreements executed or delivered in connection therewith.
“Facility
Fee” is defined in Section 2.14(C) hereof.
“Federal
Funds
Effective Rate” means, for any day, the weighted average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the rates per annum on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day
by
the Federal Reserve Bank of New York, or, if such rate is not so published
for
any day that is a Business Day, the average (rounded upwards, if necessary,
to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
“Financing”
means, with respect to any Person, the issuance or sale by such Person of any
Disqualified Stock, Equity Interests of such Person or any Indebtedness
consisting of debt securities (including, without limitation, any syndicated
loan other than the Loans made hereunder) of such Person; provided, that
such term shall not include (i) any proceeds of (x) borrowings under the
Borrower’s Existing Credit Agreement up to the maximum commitment amount in
effect on the Funding Date or (y) purchases under the Receivables Purchase
Documents up to the maximum purchase limit in effect on the Funding Date, (ii)
any borrowings by any Subsidiaries incorporated or organized under the laws
of
any foreign jurisdiction under short-term, uncommitted money market lines of
credit representing ordinary course working capital Indebtedness
(provided, however, that the Indebtedness referred to in this clause (ii)
shall in no event include borrowings under any permanent or term financing
in
favor of any such foreign Subsidiary, whether consisting of bonds, single-bank
or syndicated loan facilities or other permanent or term debt securities) or
(iii) any borrowings under the Borrower’s existing money market lines of credit
(as the same may be extended or refinanced).
“Financing
Facilities” means the Existing Credit Facility, the Receivables Purchase
Facility, the Senior Notes and the Singapore Credit Facility.
“Floating
Rate
Loan” means a Loan, or portion thereof, which bears interest by reference to
the Alternate Base Rate.
“Foreign
Competition Laws” means competition and foreign investment laws and
regulations of any jurisdiction outside the United States.
“Foreign
Employee Benefit Plan” means any employee benefit plan as defined in Section
3(3) of ERISA which is maintained or contributed to for the benefit of the
employees of the Borrower or any member of the Controlled Group, but which
is
not covered by ERISA pursuant to Section 4(b)(4) of ERISA.
“Foreign
Pension
Plan” means any employee pension benefit plan (as defined in Section 3(2) of
ERISA) which (i) is maintained or contributed to for the benefit of employees
of
the Borrower or any other member of the Controlled Group, (ii) is not covered
by
ERISA pursuant to Section 4(b)(4) thereof and (iii) under applicable local
law,
is required to be funded through a trust or other funding vehicle.
“Funding
Date” means the date on or after the Closing Date on which the Loans are
advanced hereunder, subject to the satisfaction of the terms and conditions
set
forth in Section 5.1.
“Governmental
Acts” is defined in Section 3.10(A) hereof.
“Governmental
Authority” means any nation or government, any federal, state, local or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative authority or functions
of or
pertaining to government, including any authority or other quasi-governmental
entity established to perform any of such functions.
“Hedging
Arrangements” is defined in the definition of “Hedging Obligations”
below.
“Hedging
Obligations” of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto from
the
fluctuations of interest rates, commodity prices, exchange rates or forward
rates applicable to such party’s assets, liabilities or exchange transactions,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants or any similar derivative transactions (“Hedging
Arrangements”), and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing.
“Holders
of
Obligations” means the holders of the Obligations from time to time and
shall include their respective successors, transferees and assigns.
“Indebtedness”
of any Person means, without duplication, such Person’s (a) obligations for
borrowed money, (b) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such Person’s business payable on terms customary in the trade), which
purchase price is due more than six (6) months from the date of incurrence of
the obligation in respect thereof, provided that the related obligations are
not
interest bearing, (c) obligations, whether or not assumed, secured by Liens
or
payable out of the proceeds or production from property or assets now or
hereafter owned or acquired by such Person, (d) obligations which are evidenced
by notes, acceptances or other instruments, (e) Capitalized Lease Obligations,
(f) Contingent Obligations in respect of Indebtedness, (g) obligations with
respect to letters of credit, (h) Off-Balance Sheet Liabilities, (i) Receivables
Facility Attributed Indebtedness and (j) Disqualified Stock. The
amount of Indebtedness of any Person at any date shall be without duplication
(1) the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any such Contingent Obligations
at
such date and (2) in the case of Indebtedness of others secured by a Lien to
which the property or assets owned or held by such Person is subject, the lesser
of the fair market value at such date of any asset subject to a Lien securing
the Indebtedness of others and the amount of the Indebtedness
secured.
“Indemnified
Matters” is defined in Section 10.7(B)
hereof.
“Indemnitees”
is defined in Section 10.7(B) hereof.
“Insolvency
Event” is defined in Section 10.14 hereof.
“Intercompany
Indebtedness” is defined in Section 10.14 hereof.
“Interest
Expense” means, for any period, the total interest expense of the Borrower
and its consolidated Subsidiaries, whether paid or accrued, including, without
duplication, Off-Balance Sheet Liabilities (including Receivables Facility
Financing Costs) and the interest component of Capitalized Leases, all as
determined in conformity with Agreement Accounting Principles.
“Interest
Expense Coverage Ratio” is defined in Section 7.4(B)
hereof.
“Interest
Period” means, with respect to a Eurodollar Rate Loan, a period of one (1),
two (2), three (3) or six (6) months or other periods to the extent available
to
all of the Lenders and agreed to between the Borrower and the Administrative
Agent (acting on the instructions of all of the Lenders), commencing on a
Business Day selected by the Borrower on which a Eurodollar Rate Loan is made
to
Borrower pursuant to this Agreement. Such Interest Period shall end
on (but exclude) the day which corresponds numerically to such date one, two,
three or six months (or such other period) thereafter; provided,
however, that if there is no such numerically corresponding day in
such
next, second, third or sixth succeeding month (or other period), such Interest
Period shall end on the last Business Day of such next, second, third or sixth
succeeding month (or other period). If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day, provided, however, that
if said next succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business
Day.
“Inventory”
shall mean any and all goods, including, without limitation, goods in transit,
wheresoever located, whether now owned or hereafter acquired by the Borrower
or
any of its Subsidiaries, which are held for sale or lease, furnished under
any
contract of service or held as raw materials, work in process or supplies,
and
all materials used or consumed in the business of Borrower or any of its
Subsidiaries, and shall include all right, title and interest of the Borrower
or
any of its Subsidiaries in any property the sale or other disposition of which
has given rise to Receivables and which has been returned to or repossessed
or
stopped in transit by the Borrower or any of its Subsidiaries.
“Investment”
means, with respect to any Person, (i) any purchase or other acquisition by
that
Person of any Indebtedness, Equity Interests or other securities, or of a
beneficial interest in any Indebtedness, Equity Interests or other securities,
issued by any other Person, (ii) any purchase by that Person of all or
substantially all of the assets of a business conducted by another Person,
and
(iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business.
“IRS”
means
the Internal Revenue Service and any Person succeeding to the functions
thereof.
“JPMorgan”
means JPMorgan Chase Bank, N.A., in its individual capacity, and its
successors.
“Lenders”
means the lending institutions listed on the signature pages of this Agreement
and their respective successors and assigns.
“Lending
Installation” means, with respect to a Lender or the Administrative Agent,
any office, branch, subsidiary or affiliate of such Lender or the Administrative
Agent.
“Lien”
means
any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or security agreement
or preferential arrangement of any kind or nature whatsoever (including, without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement).
“Loan(s)”
means, with respect to a Lender, such Lender’s portion of the Advance consisting
of a term loan made pursuant to Section 2.1 hereof, and collectively, all
Loans, whether made or continued as or converted to Floating Rate Loans or
Eurodollar Rate Loans.
“Loan
Documents” means this Agreement, the Subsidiary Guaranty, any Assignment and
Assumption, any promissory notes issued pursuant to Section 2.12 and all
other documents, instruments and agreements executed in connection therewith
or
contemplated thereby, as the same may be amended, restated, supplemented or
otherwise modified and in effect from time to time.
“Loan
Parties” is defined in Section 5.1 hereof.
“Margin
Stock” shall have the meaning ascribed to such term in Regulation
U.
“Material
Adverse Effect” means a material adverse effect upon (a) the business,
condition (financial or otherwise), operations, performance, properties or
prospects of the Borrower and its Subsidiaries, taken as a whole, (b) the
ability of the Borrower and its Subsidiaries, taken as a whole, to perform
their
obligations under the Loan Documents in any material respect, or (c) the ability
of the Lenders or the Administrative Agent to enforce in any material respect
the Obligations.
“Material
Domestic Subsidiary” means each consolidated Subsidiary (other than any SPV)
of the Borrower (a) incorporated under the laws of any jurisdiction in the
United States and (b) the total assets of which exceed, as at the end of any
calendar quarter or, in the case of consummation of a Permitted Acquisition,
at
the time of consummation of such Permitted Acquisition (calculated by the
Borrower on a proforma basis taking into account the consummation
of such Permitted Acquisition), three percent (3.0%) of the Consolidated
Domestic Assets of the Borrower and its consolidated Subsidiaries (other than
SPVs).
“Material
Foreign Subsidiary” means each consolidated Subsidiary (other than any SPV)
of the Borrower (a) incorporated or organized under the laws of any foreign
jurisdiction and (b) the total assets of which exceed, as at the end of any
calendar quarter or, in the case of consummation of a Permitted Acquisition,
at
the time of consummation of such Permitted Acquisition (calculated by the
Borrower on a proforma basis taking into account the consummation
of such Permitted Acquisition), five percent (5.0%) of the Consolidated Assets
of the Borrower and its consolidated Subsidiaries (other than
SPVs).
“Material
Indebtedness” means (a) any Indebtedness evidenced by the Financing
Facilities or (b) any other Indebtedness (other than the Indebtedness hereunder)
of a single class with an aggregate outstanding principal amount equal to or
greater than $30,000,000.
“Material
Subsidiaries” means each of the Borrower’s Material Domestic Subsidiaries
and Material Foreign Subsidiaries.
“Multiemployer
Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA
which is, or within the immediately preceding six (6) years was, contributed
to
by either the Borrower or any member of the Controlled Group.
“Net
Cash
Proceeds” means, with respect to any Financing by any
Person, (a) cash or Cash Equivalents (freely convertible into
Dollars) received by such Person or any Subsidiary of such Person from such
Financing or (b) cash or Cash Equivalents payments in respect of any other
consideration received by such Person or any Subsidiary of such Person from
such
Financing upon receipt of such cash payments by such Person or such Subsidiary,
in each case, after (i) provision for all income or other taxes measured by
or resulting from such Financing and (ii) payment of all brokerage commissions
and other fees and expenses and commissions related to such
Financing.
“Net
Income”
means, for any period, the net earnings (or loss) after taxes of the Borrower
and its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with Agreement Accounting
Principles.
“New
Subsidiary” is defined in Section 7.3(F).
“Non-ERISA
Commitments” means
(i) each
pension,
medical, dental, life, accident insurance, disability, group insurance, sick
leave, profit sharing, deferred compensation, bonus, stock option, stock
purchase, retirement, savings, severance, stock ownership, performance,
incentive, hospitalization or other insurance, or other welfare, benefit or
fringe benefit plan, policy, trust, understanding or arrangement of any kind;
and
(ii) each
employee
collective bargaining agreement and each agreement, understanding or arrangement
of any kind, with or for the benefit of any present or prior officer,
director, employee or consultant (including, without limitation, each
employment, compensation, deferred compensation, severance or consulting
agreement or arrangement and any agreement or arrangement associated with a
change in ownership of the Borrower or any member of the Controlled
Group);
to
which the Borrower or any member of the Controlled Group is a party or with
respect to which the Borrower or any member of the Controlled Group is or will
be required to make any payment other than any Plans.
“Non
Pro Rata
Loan” is defined in Section 9.2 hereof.
“Non-U.S.
Lender” is defined in Section 4.5(iv) hereof.
“Obligations”
means all Loans, advances, debts, liabilities, obligations, covenants and duties
owing by the Borrower or any of its Subsidiaries to the Agents, any Lender,
the
Arrangers, any Affiliate of the Agents or any Lender, or any Indemnitee, of
any
kind or nature, present or future, arising under this Agreement or any other
Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, guaranty, indemnification, or in any other
manner, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired. The term includes, without limitation, all
interest, charges, expenses, fees, reasonable attorneys’ fees and disbursements,
reasonable paralegals’ fees (and, after the occurrence and during the
continuance of a Default, all attorney’s fees and disbursements and paralegals’
fees, whether or not reasonable), and any other sum chargeable to the Borrower
or any of its Subsidiaries under this Agreement or any other Loan
Document.
“Off-Balance
Sheet Liabilities” of a Person means, without duplication, (a) any
Receivables Facility Attributed Indebtedness and repurchase obligation or
liability of such Person or any of its Subsidiaries with respect to Receivables
or notes receivable sold by such Person or any of its Subsidiaries (calculated
to include the unrecovered investment of purchasers or transferees of
Receivables or notes receivable or any other obligation of the Borrower or
such
transferor to purchasers/transferees of interests in Receivables or notes
receivables or the agent for such purchasers/transferees), (b) any liability
under any sale and leaseback transactions which do not create a liability on
the
consolidated balance sheet of such Person, (c) any liability under any financing
lease or so-called “synthetic” lease transaction, or (d) any obligations arising
with respect to any other transaction which is the functional equivalent of
or
takes the place of borrowing but which does not constitute a liability on the
consolidated balance sheets of such Person and its Subsidiaries.
“Originators”
means the Borrower and/or any of its Subsidiaries in their respective capacities
as parties to any Receivables Purchase Documents, as sellers or transferors
of
any Receivables and Related Security in connection with a Permitted Receivables
Transfer.
“Other
Taxes” is defined in Section 4.5 hereof.
“Participant”
is defined in Section 13.2(A) hereof.
“Payment
Date” means the last day of each March, June, September and
December.
“PBGC”
means
the Pension Benefit Guaranty Corporation, or any successor thereto.
“Permitted
Acquisition” is defined in Section 7.3(F) hereof.
“Permitted
Existing Contingent Obligations” means the Contingent Obligations of the
Borrower and its Subsidiaries identified on Schedule 1.1.3 to this
Agreement.
“Permitted
Existing Investments” means the Investments of the Borrower and its
Subsidiaries identified on Schedule 1.1.1 to this Agreement.
“Permitted
Existing Liens” means the Liens on assets of the Borrower and its
Subsidiaries identified on Schedule 1.1.2 to this Agreement.
“Permitted
Receivables Transfer” means (i) a sale or other transfer by an Originator to
a SPV of Receivables and Related Security for fair market value and without
recourse (except for limited recourse typical of such structured finance
transactions), and/or (ii) a sale or other transfer by a SPV to (a) purchasers
of or other investors in such Receivables and Related Security or (b) any other
Person (including a SPV) in a transaction in which purchasers or other investors
purchase or are otherwise transferred such Receivables and Related Security,
in
each case pursuant to and in accordance with the terms of the Receivables
Purchase Documents.
“Person”
means any individual, corporation, firm, enterprise, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company or other entity of any kind, or any government or
political subdivision or any agency, department or instrumentality
thereof.
“Plan”
means
an employee benefit plan defined in Section 3(3) of ERISA in respect of which
the Borrower or any member of the Controlled Group is, or within the immediately
preceding six (6) years was, an “employer” as defined in Section 3(5) of
ERISA.
“Prime
Rate”
means the rate of interest per annum publicly announced from time to time
by
JPMorgan as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date
such change is publicly announced as being effective.
“Pro
Rata
Share” means, prior to the Funding Date, with respect to any Lender, the
percentage obtained by dividing (A) such Lender’s Commitment at such time (in
each case, as adjusted from time to time in accordance with the provisions
of
this Agreement) by (B) the Aggregate Commitment at such time; provided,
however, that (i) from and after the Funding Date, then “Pro Rata Share”
means the percentage obtained by dividing (x) the aggregate principal
balance of such Lender’s Loans at such time, by (y) the aggregate outstanding
balance of all Loans at such time, and (ii) if all of the Commitments have
terminated prior to the Funding Date, then “Pro Rata Share” means the percentage
obtained by dividing (x) such Lender’s Commitment immediately prior to such
termination by (y) the Aggregate Commitment immediately prior to such
termination.
“Purchasers”
is defined in Section 13.3(A) hereof.
“Receivable(s)”
means and includes all of the Borrower’s and its Subsidiaries’ presently
existing and hereafter arising or acquired accounts, accounts receivable, and
all present and future rights of the Borrower and its Subsidiaries to payment
for goods sold or leased or for services rendered (except those evidenced by
instruments or chattel paper), whether or not they have been earned by
performance, and all rights in any merchandise or goods which any of the same
may represent, and all rights, title, security and guaranties with respect
to
each of the foregoing, including, without limitation, any right of stoppage
in
transit.
“Receivables
and
Related Security” means the Receivables and the related security and
collections with respect thereto which are sold or transferred by any Originator
or SPV in connection with any Permitted Receivables Transfer.
“Receivables
Facility Attributed Indebtedness” means the amount of obligations
outstanding under a receivables purchase facility on any date of determination
that are characterized as principal on the balance sheet of the Borrower, or
would be so characterized as principal if such facility were structured as
a
secured lending transaction rather than as a purchase.
“Receivables
Facility Financing Costs” means such portion of the cash fees, service
charges, and other costs, as well as all collections or other amounts retained
by purchasers of receivables pursuant to a receivables purchase facility, which
are in excess of amounts paid to the Borrower and its consolidated Subsidiaries
under any receivables purchase facility for the purchase of receivables pursuant
to such facility and are the equivalent of the interest component of the
financing if the transaction were characterized as an on-balance sheet
transaction.
“Receivables
Purchase Documents” means (i) the 2000 Receivables Sale Agreement and (ii)
the 2000 Receivables Purchase Agreement, or any other series of receivables
purchase or sale agreements generally consistent with terms contained in
comparable structured finance transactions pursuant to which an Originator
or
Originators sell or transfer to SPVs all of their respective right, title and
interest in and to certain Receivables and Related Security for
further sale or transfer to other purchasers of or investors in such assets
(in
any such case, together with, the other documents, instruments and agreements
executed in connection therewith), as any such agreements may be amended,
restated, supplemented or otherwise modified from time to time, or any
replacement, refinancing or substitution therefor consistent with the foregoing
provisions of this definition.
“Receivables
Purchase Facility” means the securitization facility made available to the
Borrower, pursuant to which the Receivables and Related Security of the
Originators are transferred to one or more SPVs, and thereafter to certain
investors, pursuant to the terms and conditions of the Receivables Purchase
Documents.
“Register”
is defined in Section 13.3(D) hereof.
“Regulation
D” means Regulation D of the Board as from time to time in effect and any
successor thereto or other regulation or official interpretation of said Board
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
“Regulation
T” means Regulation T of the Board as from time to time in effect and any
successor or other regulation or official interpretation of said Board relating
to the extension of credit by and to brokers and dealers of securities for
the
purpose of purchasing or carrying margin stock (as defined
therein).
“Regulation
U” means Regulation U of the Board as from time to time in effect and any
successor or other regulation or official interpretation of said Board relating
to the extension of credit by banks, non-banks and non-broker lenders for the
purpose of purchasing or carrying Margin Stock applicable to member banks of
the
Federal Reserve System.
“Regulation
X” means Regulation X of the Board as from time to time in effect and any
successor or other regulation or official interpretation of said Board relating
to the extension of credit by foreign lenders for the purpose of purchasing
or
carrying margin stock (as defined therein).
“Related
Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration into the environment,
including the movement of Contaminants through or in the air, soil, surface
water or groundwater.
“Relevant
Transaction Documents” means, (i) as of the Closing Date, the Loan Documents
and (ii) from and after the Funding Date, all Transaction
Documents.
“Replacement
Lender” is defined in Section 2.19 hereof.
“Reportable
Event” means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Plan, excluding,
however, such events as to which the PBGC by regulation waived the requirement
of Section 4043(a) of ERISA that it be notified within thirty (30) days after
such event occurs.
“Required
Lenders” means Lenders whose Pro Rata Shares, in the aggregate, are greater
than fifty percent (50%); provided, however, that, if any Lender
shall have failed to fund its Pro Rata Share of the Advance, which such Lender
is obligated to fund under the terms of this Agreement and any such failure
has
not been cured, then for so long as such failure continues, “Required Lenders”
means Lenders (excluding all Lenders whose failure to fund their respective
Pro
Rata Shares of such Loans has not been so cured) whose Pro Rata Shares represent
greater than fifty percent (50%) of the aggregate Pro Rata Shares of such
Lenders; providedfurther, however, that, from and after the
Funding Date, “Required Lenders” means Lenders (without regard to such Lenders’
performance of their respective obligations hereunder) whose aggregate ratable
shares (stated as a percentage) of the aggregate outstanding principal balance
of all Loans are greater than fifty percent (50%).
“Requirements
of
Law” means, as to any Person, the charter and by-laws or other
organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of
its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act of 1933, the Securities Exchange Act
of
1934, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act, as amended, Foreign
Competition Laws, Regulations T, U and X, ERISA, the Fair Labor Standards Act,
the Worker Adjustment and Retraining Notification Act, Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or permit or environmental,
labor, employment, occupational safety or health law, rule or regulation,
including Environmental, Health or Safety Requirements of Law.
“Risk-Based
Capital Guidelines” is defined in Section 4.2 hereof.
“Senior
Management Team” means (a) each Authorized Officer, the chief executive
officer, secretary or any other member of management of the Borrower and (b)
any
chief executive officer, president, vice president, chief financial officer,
treasurer, secretary or any other member of management of any Subsidiary
Guarantor.
“Senior
Note
Purchase Agreements” means, collectively, the 2003 Note Purchase Agreement,
the 2004 Note Purchase Agreement, the 2005 Note Purchase Agreement and the
2006
Note Purchase Agreement.
“Senior
Notes” means, collectively, the 2003 Senior Notes, the 2004 Senior Notes,
the 2005 Senior Notes and the 2006 Senior Notes.
“Singapore
Credit Agreement” means that certain Multicurrency Revolving Credit Facility
Agreement, dated 24 August 2005, among Energizer Asia Investments Pte. Ltd.,
a
company organized under the laws of Singapore, Energizer Singapore Pte. Ltd.,
a
company organized under the laws of Singapore, Sonca Products Ltd., a company
organized under the laws of Hong Kong, and Xxxxxx Asia Limited, a company
organized under the laws of Hong Kong, as the borrowers and as guarantors
thereunder, the Borrower, as a guarantor thereunder, the financial institutions
from time to time parties thereto, Citigroup Global Markets Singapore Pte.
Ltd.
and Standard Chartered Bank, as the arrangers thereunder, and Citicorp
Investment Bank (Singapore) Limited, as the agent, under which the financial
institutions party thereto have committed to make loans and other extensions
of
credit to the borrowers thereunder in an original aggregate principal equivalent
amount of up to US$325,000,000, which may be funded in Dollars or Singapore
dollars, as amended by that certain Amendment Agreement dated as of September
28, 2005, the Second Amendment Agreement dated as of November 8, 2005 and the
Third Amendment Agreement dated as of May 15, 2006, and as the same may be
further amended, restated, supplemented, modified, extended, or refinanced
or
replaced (to the extent such refinancing or replacement is with the proceeds
borrowed under another credit agreement) from time to time in a manner that
is
not materially adverse to the interests of the Lenders.
“Singapore
Credit Facility” means the credit facility evidenced by the Singapore Credit
Agreement, the Singapore Guarantees and the other instruments, documents and
agreements executed or delivered in connection therewith.
“Singapore
Guarantees” means those certain guarantees of the Indebtedness and other
obligations of the borrowers under the Singapore Credit Agreement by the
Borrower and each member of the Singapore Regional Group, as the same may be
amended, restated, supplemented, modified, extended, refinanced or replaced
from
time to time in a manner that is not materially adverse to the interests of
the
Lenders.
“Singapore
Regional Group” means each of Energizer Asia Investments Pte.
Ltd., a company organized under the laws of Singapore, Energizer
Singapore Pte. Ltd., a company organized under the laws of Singapore, Sonca
Products Ltd., a company organized under the laws of Hong Kong, and Xxxxxx
Asia Limited, a company organized under the laws of Hong Kong.
“Solvent”
means, when used with respect to any Person, that at the time of
determination:
(i) the
fair value of
its assets (both at fair valuation and at present fair saleable value) is equal
to or in excess of the total amount of its liabilities, including, without
limitation, contingent liabilities; and
(ii) it
is then able and
believes that it will be able to pay its debts as they mature; and
(iii) it
has capital
sufficient to carry on its business as conducted and as proposed to be
conducted.
With
respect to
contingent liabilities (such as litigation and guarantees), such liabilities
shall be computed at the amount which, in light of all the facts and
circumstances existing at the time, represent the amount which can be reasonably
be expected to become an actual or matured liability.
“SPV”
means
any special purpose entity established for the purpose of purchasing receivables
in connection with a receivables securitization transaction permitted under
the
terms of this Agreement.
“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus
the
aggregate of the maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by the
Board to which the Administrative Agent is subject with respect to the
Eurodollar Rate, for eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation
D. Eurodollar Rate Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time
to
time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
“Subsidiary”
of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned
or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii)
any
partnership, limited liability company, association, joint venture or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references
herein to a “Subsidiary” means a Subsidiary of the Borrower. For the
avoidance of doubt, from and after the Funding Date, “Subsidiary” shall mean
each Subsidiary of the Borrower after giving effect to the Designated
Acquisition, and accordingly, shall include the Target (as the successor by
merger with and into the Designated Merger Subsidiary) and its respective
Subsidiaries.
“Subsidiary
Guarantors” means (i) as of the Funding Date, all of the Borrower’s Material
Domestic Subsidiaries and all other Subsidiaries which are required to become
Guarantors pursuant to Section 7.3(Q) as of such date, giving
proforma effect to the consummation of the Designated Acquisition;
(ii) all New Subsidiaries which are Material Domestic Subsidiaries and which
have satisfied the provisions of Section 7.2(K)(a); (iii) all of the
Borrower’s Subsidiaries which become Material Domestic Subsidiaries and which
have satisfied the provisions of Section 7.2(K)(b); and (iv) all other
domestic Subsidiaries which become Subsidiary Guarantors in satisfaction of
the
provisions of Section 7.2(K)(c)(i) or any Subsidiaries which become
Subsidiary Guarantors in satisfaction of the provisions of Section
7.2(K)(c)(ii), in each case with respect to clauses (i) through
(iv) above, other than the SPVs and together with their respective
successors and assigns.
“Subsidiary
Guaranty” means that certain Guaranty dated as of the Closing Date, executed
by the Subsidiary Guarantors in favor of the Administrative Agent, for the
ratable benefit of the Lenders, as it may be amended, modified, supplemented
and/or restated (including to add new Subsidiary Guarantors), and as in effect
from time to time.
“Supplement”
shall have the meaning set forth in Section 7.2(K).
“Supplemental
Margin” is defined in the definition of “Eurodollar Rate”
above.
“Syndication
Agent” means Bank of America (and its successors) in its capacity as
syndication agent for the loan transaction evidenced by this
Agreement.
“Target”
means Playtex Products, Inc., a Delaware corporation.
“Target
Credit
Agreement” means, collectively (i) that certain Credit Agreement, dated as
of February 19, 2004, among the Borrower, the other credit parties party
thereto, General Electric Capital Corporation, the other financial institutions
party thereto and GECC Capital Markets Group Inc. and (ii) that certain Credit
Agreement, dated as of November 28, 2005, among Playtex Limited, GE Canada
Finance Holding Company and the other parties thereto, each as amended,
restated, supplemented or otherwise modified prior to the Funding
Date.
“Target
Indentures” means any and all indentures governing each series of Target
Notes, as supplemented through the Funding Date.
“Target
Notes” means (a) the Target’s 8% Senior Secured Notes due 2011 and (b) the
Target’s 9 3/8% Senior Subordinated Notes due 2011.
“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded Taxes.
“Termination
Date” means the earliest to occur of (a) September 12, 2008, (b) the date of
termination in whole of the Aggregate Commitment pursuant to Section 2.5
or Section 9.1 hereof and (c) if the Designated Acquisition has not
occurred prior thereto, December 31, 2007.
“Termination
Event” means (i) a Reportable Event with respect to any Benefit Plan; (ii)
the withdrawal of the Borrower or any member of the Controlled Group from a
Benefit Plan during a plan year in which the Borrower or such Controlled Group
member was a “substantial employer” as defined in Section 4001(a)(2) of ERISA
with respect to such plan; (iii) the imposition of an obligation under Section
4041 of ERISA to provide affected parties written notice of intent to terminate
a Benefit Plan in a distress termination described in Section 4041(c) of ERISA;
(iv) the institution by the PBGC or any foreign governmental authority of
proceedings to terminate or appoint a trustee to administer a Benefit Plan
or
Foreign Pension Plan; (v) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of the Borrower or any member of the Controlled Group from a
Multiemployer Plan.
“Transaction
Documents” means the Loan Documents and the Designated Acquisition
Documents.
“Transactions”
means (a) the financing transactions evidenced by this Agreement and the other
Loan Documents and (b) the Designated Acquisition.
“Trigger
Quarter” is defined in Section 7.4(A) hereof.
“2000
Receivables Purchase Agreement” means that certain Receivables Purchase
Agreement, dated as of April 4, 2000, as amended, extended or replaced in a
manner permitted by this Agreement, among Energizer Receivables Funding
Corporation, a Delaware corporation, as the seller thereunder, Eveready Battery
Company, a Delaware Corporation, as the servicer thereunder, Falcon Asset
Securitization Corporation and Bank One, NA, as the agent
thereunder
“2000
Receivables Sale Agreement” means that certain Receivables Sale Agreement,
dated as of April 4, 2000, as amended, extended or replaced in a manner
permitted by this Agreement, between Eveready Battery Company, Inc., a Delaware
corporation, and Energizer Receivables Funding Corporation, a Delaware
corporation and an SPV.
“2003
Note
Purchase Agreement” means that certain Note Purchase Agreement dated as of
June 1, 2003 among the Borrower and the “Purchasers” referred to therein, under
which the Borrower has issued senior unsecured notes in an original aggregate
principal amount of $700,000,000 (the “2003 Senior Notes”), which shall be pari
passu with the Obligations hereunder, as such 2003 Senior Notes and such Note
Purchase Agreement may be amended, restated, supplemented, modified, extended,
or refinanced or replaced (to the extent such refinancing or replacement is
with
the proceeds of another private placement issuance), from time to time
in a manner that is not materially adverse to the interests of the
Lenders.
“2003
Senior
Notes” is defined in the definition of “2003 Note Purchase Agreement”
above.
“2004
Note
Purchase Agreement” means that certain Note Purchase Agreement dated as of
November 1, 2004 among the Borrower and the “Purchasers” referred to therein,
under which the Borrower has issued senior unsecured notes in an original
aggregate principal amount of $300,000,000 (the “2004 Senior Notes”), which
shall be pari passu with the Obligations hereunder, as such 2004 Senior Notes
and such Note Purchase Agreement may be amended, restated, supplemented,
modified, extended, or refinanced or replaced (to the extent such refinancing
or
replacement is with the proceeds of another private placement issuance), from
time to time in a manner that is not materially adverse to the interests of
the
Lenders.
“2004
Senior
Notes” is defined in the definition of “2004 Note Purchase Agreement”
above.
“2005
Note
Purchase Agreement” means that certain Note Purchase Agreement dated as of
August 1, 2005 among the Borrower and the “Purchasers” referred to therein,
under which the Borrower has issued senior unsecured notes in an original
aggregate principal amount of $325,000,000 (the “2005 Senior Notes”), which
shall be pari passu with the Obligations hereunder, as such 2005 Senior Notes
and such Note Purchase Agreement may be amended, restated, supplemented,
modified, extended, or refinanced or replaced (to the extent such refinancing
or
replacement is with the proceeds of another private placement issuance), from
time to time in a manner that is not materially adverse to the interests of
the
Lenders.
“2005
Senior
Notes” is defined in the definition of “2005 Note Purchase Agreement”
above.
“2006
Note
Purchase Agreement” means that certain Note Purchase Agreement dated as of
July 6, 2006 among the Borrower and the “Purchasers” referred to therein, under
which the Borrower has issued senior unsecured notes in an original aggregate
principal amount of $500,000,000 (the “2006 Senior Notes”), which shall be pari
passu with the Obligations hereunder, as such 2006 Senior Notes and such Note
Purchase Agreement may be amended, restated, supplemented, modified, extended,
or refinanced or replaced (to the extent such refinancing or replacement is
with
the proceeds of another private placement issuance), from time to time in a
manner that is not materially adverse to the interests of the
Lenders.
“2006
Senior
Notes” is defined in the definition of “2006 Note Purchase Agreement”
above.
“Type”
means, with respect to any Loan, its nature as a Floating Rate Loan or a
Eurodollar Rate Loan.
“Unmatured
Default” means an event which, but for the lapse of time or the giving of
notice, or both, would constitute a Default.
The
foregoing
definitions shall be equally applicable to both the singular and plural forms
of
the defined terms. Any accounting terms used in this Agreement which
are not specifically defined herein shall have the meanings customarily given
them in accordance with generally accepted accounting principles in existence
as
of the date hereof.
References. Any
references to Subsidiaries of the Borrower shall not in any way be construed
as
consent by the Administrative Agent or any Lender to the establishment,
maintenance or acquisition of any Subsidiary, except as may otherwise be
permitted hereunder.
Loans.
Upon
the
satisfaction of the conditions precedent set forth in Section 5.1 each
Lender severally and not jointly agrees, on the terms and conditions set forth
in this Agreement, to make a term loan, consisting of a single draw, on the
Funding Date, in Dollars, to the Borrower in an aggregate amount not to exceed
such Lender’s Pro Rata Share of the Aggregate
Commitment. Notwithstanding the foregoing, on the earlier of the
Funding Date (after giving effect to the foregoing draw) and December 31, 2007,
the Aggregate Commitment and each Lender’s Commitment shall be automatically and
permanently terminated to the extent of the undrawn Aggregate Commitment, as
more specifically described in Section 2.5(b). Each Loan under
this Section 2.1 shall consist of Loans made by each Lender ratably in
proportion to such Lender’s respective Pro Rata Share. No Loan shall
be reborrowed once repaid.
Borrowing/Election
Notice. The Borrower shall deliver to the Administrative Agent a
Borrowing/Election Notice, signed by it, in accordance with the terms of
Section 2.7. The Administrative Agent shall promptly notify
each Lender of such request.
Making
of
Loans. Promptly after receipt of the Borrowing/Election Notice
under Section 2.7 in respect of the Loans, the Administrative Agent shall
notify each Lender by telex or telecopy, or other similar form of transmission,
of the requested Loans. Each Lender shall make available its Loan in
accordance with the terms of Section 2.6. The Administrative
Agent will promptly make the funds so received from the Lenders available to
the
Borrower at the Administrative Agent’s office in Chicago, Illinois on the
Funding Date and shall disburse such proceeds in accordance with the Borrower’s
disbursement instructions set forth in such Borrowing/Election
Notice. The failure of any Lender to deposit the amount described
above with the Administrative Agent on the Funding Date shall not relieve any
other Lender of its obligations hereunder to make its Loan on the Funding
Date.
Repayment
of
Loans. The Loans shall be due and payable in full on the
Termination Date.
Rate
Options for
all Loans; Maximum Interest Periods. The Loans may be Floating
Rate Loans or Eurodollar Rate Loans, or a combination thereof, selected by
the
Borrower in accordance with Section 2.9. The Borrower may
select, in accordance with Section 2.9, rate options and Interest Periods
applicable to the Loans; provided that there shall be no more than eight
(8) Interest Periods in effect with respect to all of the Loans at any
time.
Prepayments.
Optional
Prepayments. The Borrower may from time to time and at any time
upon at least one (1) Business Day’s prior written notice repay or prepay,
without penalty or premium all or any part of outstanding Floating Rate Loans
in
an aggregate minimum amount of $10,000,000 and in integral multiples of
$1,000,000 in excess thereof. Eurodollar Rate Loans may be
voluntarily repaid or prepaid prior to the last day of the applicable Interest
Period, subject to the indemnification provisions contained in Section
4.4, provided, that the Borrower may not so prepay Eurodollar Rate
Loans unless it shall have provided at least three (3) Business Days’ prior
written notice to the Administrative Agent of such prepayment and
provided, further, that optional prepayments of Eurodollar Rate
Loans made pursuant to Section 2.1 with respect to the same Interest
Period shall be for the entire amount of all such outstanding Eurodollar Rate
Loans. No optional prepayments may be reborrowed once
made.
Mandatory
Prepayments. Upon the consummation of any Financing by the
Borrower or any Subsidiary, within three (3) Business Days after the Borrower’s
or any of its Subsidiaries’ receipt of any Net Cash Proceeds from such
Financing, the Borrower shall make a mandatory prepayment of the Obligations
in
an amount equal to one hundred percent (100%) of such Net Cash
Proceeds. The amount of each such mandatory prepayment shall be
applied ratably to the Loans. On the date any such prepayment is
received by the Administrative Agent, such prepayment shall be applied first
to
Floating Rate Loans and to any Eurodollar Rate Loans maturing on such date
and
then to subsequently maturing Eurodollar Rate Loans. All mandatory
prepayments hereunder shall be accompanied by (x) accrued interest and (y)
break
fund payments pursuant to Section 4.4. Nothing in this
Section 2.4(b) shall be construed to constitute the Lenders’ consent
to any Financing which is not expressly permitted by the terms of this
Agreement. No mandatory prepayments may be reborrowed once
made.
Reduction
of
Commitments.
Prior
to the
Funding Date, the Borrower may permanently reduce the Aggregate Commitment
in
whole, or in part ratably among the Lenders, in an aggregate minimum amount
of
$25,000,000 and integral multiples of $5,000,000 in excess of that amount upon
at least three (3) Business Days’ prior written notice to the Administrative
Agent, which notice shall specify the amount of any such reduction.
On
the earlier of
the Funding Date (after giving effect to the draw made thereon) and December
31,
2007, (x) the undrawn Aggregate Commitment shall be automatically and
permanently terminated and (y) each Lender’s undrawn Commitment shall be
automatically and permanently terminated in proportion to its applicable Pro
Rata Share of the Aggregate Commitment.
All
accrued
Facility Fees shall be payable on the effective date of any termination of
the
obligations of the Lenders to make Loans hereunder or any reduction of the
Aggregate Commitment on the amount so reduced.
Method
of
Borrowing. Not later than 2:00 p.m. (Chicago time) on the Funding
Date, each Lender shall make available its Loan, in immediately available funds,
to the Administrative Agent at its address specified pursuant to Article
XIV. The Administrative Agent will promptly make the funds so
received from the Lenders available to the Borrower at the Administrative
Agent’s aforesaid address.
Method
of
Requesting the Advance. The Borrower shall give the
Administrative Agent irrevocable notice in substantially the form of Exhibit
B hereto (a “Borrowing/Election Notice”) not later than 11:00 a.m. (Chicago
time) (a) on or before the Funding Date of the Advance if the Loans being
requested are Floating Rate Loans and (b) on or before three Business Days
before the Funding Date of the Advance if the Loans being requested are
Eurodollar Rate Loans, specifying: (i) the Funding Date (which shall
be a Business Day) for the Advance; (ii) the aggregate amount of the Advance
(which shall not be more than the Aggregate Commitment at such time); (iii)
the
Type of Advance selected; and (iv) in the case of each Eurodollar Rate Loan,
the
Interest Period applicable thereto.
Amount
of the
Advance. The Advance shall not be more than the amount of the
Aggregate Commitment.
Method
of
Selecting Types and Interest Periods for Conversion and Continuation of
Loans.
Right
to
Convert. The Borrower may elect from time to time, subject to the
provisions of Section 2.3, this Section 2.9 and Section 5.3
to convert all or any part of a Loan of any Type into any other Type or Types
of
Loans; provided that any conversion of any Eurodollar Rate Loan shall be
made on, and only on, the last day of the Interest Period applicable
thereto.
Automatic
Conversion and Continuation. Floating Rate Loans shall continue
as Floating Rate Loans unless and until such Floating Rate Loans are repaid
or
converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall
continue as Eurodollar Rate Loans until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Rate Loans shall be automatically
converted into Floating Rate Loans unless the Borrower shall have repaid such
Loans or given the Administrative Agent a Borrowing/Election Notice in
accordance with Section 2.9(D) requesting that, at the end of such
Interest Period, such Eurodollar Rate Loans continue as a Eurodollar Rate
Loan.
No
Conversion
Post-Default. Notwithstanding anything to the contrary contained
in Section 2.9(A) or Section 2.9(B), no Loan may be converted into
or continued as a Eurodollar Rate Loan (except with the consent of the Required
Lenders) when any Default has occurred and is continuing.
Borrowing/Election
Notice. The Borrower shall give the Administrative Agent an
irrevocable Borrowing/Election Notice of each conversion of a Floating Rate
Loan
into a Eurodollar Rate Loan or continuation of a Eurodollar Rate Loan not later
than 11:00 a.m. (Chicago time) three (3) Business Days prior to the date of
the
requested conversion or continuation, specifying: (i) the requested
date (which shall be a Business Day) of such conversion or continuation; (ii)
the amount and Type of the Loan to be converted or continued; and (iii) the
amount of Eurodollar Rate Loan(s) into which such Loan is to be converted or
continued, and the duration of the Interest Period applicable
thereto.
Interest
Periods. The Borrower shall select Interest Periods so that, to
the best of the Borrower’s knowledge, it will not be necessary to prepay all or
any portion of any Eurodollar Rate Loan prior to the last day of the applicable
Interest Period in order to make mandatory prepayments as required pursuant
to
the terms hereof. Each Floating Rate Loan and all Obligations other
than Loans and the Facility Fee shall bear interest from and including the
date
of the making of such Loan, in the case of Floating Rate Loans, and the date
such Obligation is due and owing in the case of such other Obligations, to
(but
not including) the date of repayment thereof at the Alternate Base Rate,
changing when and as such Alternate Base Rate changes. Changes in the
rate of interest on that portion of the Loans maintained as Floating Rate Loans
will take effect simultaneously with each change in the Alternate Base
Rate. Each Eurodollar Rate Loan shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to such Eurodollar Rate Loan, subject to adjustment when and
as
the Supplemental Margin is in effect. Changes in the rate of interest
on that portion of the Loans maintained as Eurodollar Rate Loans will take
effect simultaneously with the implementation of the Supplemental
Margin.
Default
Rate. After the occurrence and during the continuance of a
Default, the Administrative Agent or the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders in accordance with Section 9.3) declare that, (a) all
Loans shall bear interest at 2% plus the rate otherwise applicable to such
Loans
or (b) in the case of any other amount outstanding hereunder, such amount shall
accrue at 2% plus the rate applicable to such fee or other obligation as
provided hereunder.
Method
of
Payment. All payments of principal, interest, fees and
commissions hereunder shall be made, without setoff, deduction or counterclaim,
in immediately available funds to the Administrative Agent at the Administrative
Agent’s address specified pursuant to Article XIV, or at any other
Lending Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower, by 2:00 p.m. (Chicago time) on the date
when due and shall be made ratably among the Lenders (unless such amount is
not
to be shared ratably in accordance with the terms hereof). Each
payment delivered to the Administrative Agent for the account of any Lender
shall be delivered promptly by the Administrative Agent to such Lender in the
same type of funds which the Administrative Agent received at its address
specified pursuant to Article XIV or at any Lending Installation
specified in a notice received by the Administrative Agent from such
Lender. The Borrower authorizes the Administrative Agent to charge
the account of the Borrower maintained with JPMorgan for each payment of
principal, interest, fees and commissions as it becomes due
hereunder.
Evidence
of
Debt; Noteless Agreement.
Each
Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made
by
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
The
Administrative
Agent shall also maintain accounts in which it will record (i) the amount of
each Loan made hereunder, the Type thereof and the Interest Period, if any,
with
respect thereto, (ii) the amount of any principal or interest due and payable
or
to become due and payable from the Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender’s share thereof.
The
entries made in
the accounts maintained pursuant to clauses (A) and (B) above
shall be prima facie evidence of the existence and amounts of the
Obligations therein recorded unless the Borrower objects to information
contained therein within thirty (30) days of the Borrower’s receipt of such
information; provided,however, that the failure
of any Lender or the Administrative Agent to maintain such accounts or any
error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with the terms of this Agreement.
Any
Lender may
request that its Loans be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a
promissory note for such Loans payable to the order of such Lender and in a
form
approved by the Administrative Agent in its reasonable discretion and consistent
with the terms of this Agreement. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (prior to any
assignment pursuant to Section 13.3) be represented by one or more
promissory notes in such form, payable to the order of the payee named therein,
except to the extent that any such Lender subsequently returns any such note
for
cancellation and requests that such Loans once again be evidenced as described
in clauses (A) and (B) above.
Telephonic
Notices. The Borrower authorizes the Lenders and the
Administrative Agent to extend, convert or continue the Advance, effect
selections of Types of Loans and to transfer funds based on telephonic notices
made by any person or persons the Administrative Agent or any Lender in good
faith believes to be acting on behalf of the Borrower. The Borrower
agrees to deliver promptly to the Administrative Agent a written confirmation,
signed by an Authorized Officer of the Borrower, if such confirmation is
requested by the Administrative Agent or any Lender, of each telephonic
notice. If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders, the records
of the Administrative Agent and the Lenders with respect to such telephonic
notice shall govern absent manifest error. In case of disagreement
concerning such notices, if the Administrative Agent has recorded telephonic
Borrowing/Election Notices, such recordings will be made available to the
Borrower upon the Borrower’s request therefor.
Promise
to Pay;
Interest Payment Dates; Fees; Interest and Fee Basis.
Promise
to
Pay. The Borrower unconditionally promises to pay when due the
principal amount of each Loan and all other Obligations incurred by it, and
to
pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the other Loan Documents.
Interest
Payment
Dates. Interest accrued on each Floating Rate Loan shall be
payable on each Payment Date, commencing with the first such date to occur
after
the date hereof and on any date on which such Floating Rate Loan is prepaid,
whether by acceleration or otherwise (including at
maturity). Interest accrued on each Eurodollar Rate Loan shall be
payable on the last day of its applicable Interest Period, on any date on which
the Eurodollar Rate Loan is prepaid, whether by acceleration or otherwise,
and
at maturity. Interest accrued on each Eurodollar Rate Loan having an
Interest Period longer than three months shall also be payable on the last
day
of each three-month interval during such Interest Period. Interest
accrued on the principal balance of all other Obligations shall be payable
in
arrears (i) on each Payment Date, commencing on the first such day following
the
incurrence of such Obligation, (ii) upon repayment thereof in full or in part,
and (iii) if not theretofore paid in full, at the time such other Obligation
becomes due and payable (whether by acceleration or otherwise).
Facility
Fees. The Borrower shall pay to the Administrative Agent, for the
account of the Lenders in accordance with their Pro Rata Shares, from and after
the Closing Date until the Termination Date, a facility fee (the “Facility Fee”)
accruing at the per annum rate of the then Applicable Facility Fee Percentage,
on the Aggregate Commitment (whether used or unused) (or from and after the
Funding Date, the aggregate principal amount of all Loans). All such
Facility Fees payable under this clause (C) shall be payable quarterly in
arrears on each Payment Date occurring after the Closing Date (with the first
such payment being calculated for the period from the Closing Date and ending
on
September 30, 2007) and on the Termination Date.
Supplemental
Fees. On each of March 14, 2008 and June 14, 2008, the Borrower
shall pay to the Administrative Agent, for the account of the Lenders in
accordance with their Pro Rata Shares, a supplemental fee of 0.075% on the
then
outstanding aggregate principal amount of the Loans as of the relevant date
of
determination.
Interest
and Fee
Basis. Facility Fees and interest accrued on Eurodollar Rate
Loans and Floating Rate Loans where the basis for calculation of such Floating
Rate Loans is the Federal Funds Effective Rate shall be calculated for actual
days elapsed on the basis of a year of 360 days, and interest accrued on
Floating Rate Loans where the basis for calculation is the Prime Rate shall
be
calculated for actual days elapsed on the basis of a year of 365, or when
appropriate 366, days. Interest shall be payable for the day an
Obligation is incurred but not for the day of any payment on the amount paid
if
payment is received prior to 2:00 p.m. (Chicago time) at the place of
payment. If any payment of principal of or interest on a Loan or any
payment of any other Obligations shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest, fees and commissions in connection with such
payment.
Notification
of
the Advance, Interest Rates, Prepayments and Aggregate Commitment
Reductions. Promptly after receipt thereof, the Administrative
Agent will notify each Lender of the contents of each Aggregate Commitment
reduction notice, Borrowing/Election Notice and repayment notice received by
it
hereunder. The Administrative Agent will notify each Lender of the
interest rate applicable to each Eurodollar Rate Loan promptly upon
determination of such interest rate and will give each Lender prompt notice
of
each change in the Alternate Base Rate.
Lending
Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any
such Lending Installation. Subject to the provisions of
Section 4.6, each Lender may, by written or facsimile notice to the
Administrative Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
Non-Receipt
of
Funds by the Administrative Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the
date
on which it is scheduled to make payment to the Administrative Agent of (i)
in
the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been
made. The Administrative Agent may, but shall not be obligated to,
make the amount of such payment available to the intended recipient in reliance
upon such assumption. If such Lender or the Borrower, as the case may
be, has not in fact made such payment to the Administrative Agent, the recipient
of such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount
was
so made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to (i) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day or (ii)
in
the case of payment by the Borrower, the interest rate applicable to the
relevant Loan.
Termination
Date. This Agreement shall be effective until the Termination
Date. Notwithstanding the termination of this Agreement, until all of
the Obligations (other than contingent indemnity obligations) shall have been
fully and indefeasibly paid and satisfied in cash (to the full extent that
such
Obligations are payable in cash) and all financing arrangements among the
Borrower and the Lenders under or in connection with this Agreement and the
other Loan Documents shall have been terminated, all of the rights and remedies
under this Agreement and the other Loan Documents shall survive.
Replacement
of
Certain Lenders. In the event a Lender (an “Affected
Lender”) shall have: (i) failed to fund its Pro Rata Share of the
Advance requested by the Borrower, which such Lender is obligated to fund under
the terms of this Agreement and which failure has not been cured, (ii) requested
compensation from the Borrower under Sections 4.1, 4.2 or
4.5 to recover Taxes, Other Taxes or other additional
costs incurred by
such Lender which are not being incurred generally by the other Lenders, (iii)
delivered a notice pursuant to Section 4.3 claiming that such Lender is
unable to extend Eurodollar Rate Loans to the Borrower for reasons not generally
applicable to the other Lenders or (iv) has invoked Section 10.2, then,
in any such case, the Borrower or the Administrative Agent may make written
demand on such Affected Lender (with a copy to the Administrative Agent in
the
case of a demand by the Borrower and a copy to the Borrower in the case of
a
demand by the Administrative Agent) for the Affected Lender to assign, and
such
Affected Lender shall use commercially reasonable efforts to assign five (5)
Business Days after the date of such demand, to one or more financial
institutions that comply with the provisions of Section 13.3 which the
Borrower or the Administrative Agent, as the case may be, shall have engaged
for
such purpose (“Replacement Lender”), all of such Affected Lender’s rights
and obligations under this Agreement and the other Loan Documents (including,
without limitation, its Commitment and all Loans owing to it) in
accordance with Section 13.3. The Administrative Agent agrees,
upon the occurrence of such events with respect to an Affected Lender and upon
the written request of the Borrower, to use its reasonable efforts to obtain
the
commitments from one or more financial institutions to act as a Replacement
Lender. The Administrative Agent is authorized to execute any
Assignment and Assumption as attorney-in-fact for any Affected Lender failing
to
execute and deliver the same within five (5) Business Days after the date of
such demand. Further, with respect to such assignment the Affected
Lender shall have concurrently received, in cash, all amounts due and owing
to
the Affected Lender hereunder or under any other Loan Document, including,
without limitation, the aggregate outstanding principal amount of the Loans
owed
to such Lender, together with accrued interest thereon through the date of
such
assignment, amounts payable under Sections 4.1, 4.2 and 4.5
with respect to such Affected Lender and compensation payable under Section
2.14(C) in the event of any replacement of any Affected Lender under clause
(ii) or clause (iii) of this Section 2.19; provided that upon such
Affected Lender’s replacement, such Affected Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 4.1,
4.2, 4.4, 4.5 and 10.7, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under Article XI with respect to losses, obligations,
liabilities, damages, penalties, actions, judgments, costs, expenses or
disbursements for matters which occurred prior to the date the Affected Lender
is replaced. Upon the replacement of any Affected Lender pursuant to
this Section 2.19, the provisions of Section 9.2 shall continue to
apply with respect to Loans which are then outstanding with respect to which
the
Affected Lender failed to fund its Pro Rata Share and which failure has not
been
cured.
Yield
Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or
any
change in the interpretation or administration thereof by any governmental
or
quasi-governmental authority, central bank or comparable agency charged with
the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
subjects
any Lender
or any applicable Lending Installation to any Taxes, or changes the basis of
taxation of payments (other than with respect to Excluded Taxes) to any Lender
in respect of its Loans, or
imposes
or
increases or deems applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Rate Loans),
or
imposes
any other
condition the result of which is to increase the cost to any Lender or any
applicable Lending Installation of making, funding or maintaining its Loans
or
reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with its Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by reference
to
the amount of Loans held or interest received by it, by an amount deemed
material by such Lender,
and
the result of
any of the foregoing is to increase the cost to such Lender or applicable
Lending Installation of making or maintaining its Loans or Commitment or to
reduce the return received by such Lender or applicable Lending Installation
in
connection with such Loans or Commitment, then, within fifteen (15) days of
demand by such Lender, the Borrower shall pay such Lender such additional amount
or amounts as will compensate such Lender for such increased cost or reduction
in amount received.
Notwithstanding
the
foregoing provisions of this Section 4.1, if any Lender fails to notify
the Borrower of any event or circumstance which will entitle such Lender to
compensation pursuant to this Section 4.1 within ninety (90) days after
such Lender obtains knowledge of such event or circumstance, then such Lender
shall not be entitled to compensation from the Borrower for any amount arising
prior to the date which is ninety (90) days before the date on which such Lender
notifies the Borrower of such event or circumstance.
Changes
in
Capital Adequacy Regulations. If a Lender determines the amount
of capital required or expected to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such Lender is
increased as a result of a Change, then, within fifteen (15) days of demand
by
such Lender, the Borrower shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender reasonably determines is attributable to
this Agreement, its Loans or its Commitment hereunder (after taking into account
such Lender’s customary policies as to capital adequacy). “Change”
means (i) any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) any adoption of or change in any other law, governmental
or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. “Risk-Based Capital Guidelines” means (i) the
risk-based capital guidelines in effect in the United States on the date of
this
Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled “International Convergence of Capital
Measurements and Capital Standards,” including transition rules, and any
amendments to such regulations adopted prior to the date of this
Agreement.
Availability
of
Types of Loans. If any Lender determines that maintenance of its
Eurodollar Rate Loans at a suitable Lending Installation would violate any
applicable law, rule, regulation, or directive, whether or not having the force
of law, or if the Required Lenders determine that (i) deposits of a type and
maturity appropriate to match fund Eurodollar Rate Loans are not available
or
(ii) the interest rate applicable to Eurodollar Rate Loans does not accurately
reflect the cost of making or maintaining Eurodollar Rate Loans, then the
Administrative Agent shall suspend the availability of Eurodollar Rate Loans
and
require any affected Eurodollar Rate Loans to be repaid or converted to Floating
Rate Loans, subject to the payment of any funding indemnification amounts
required by Section 4.4.
Funding
Indemnification. If any payment of a Eurodollar Rate Loan occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurodollar Rate Loan
is
not made on the date specified by the Borrower for any reason other than default
by the Lenders, the Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom (excluding loss of margin), including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Rate Loan.
Taxes.
All
payments by the
Borrower to or for the account of any Lender or the Administrative Agent
hereunder or under any of the other Loan Documents shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 4.5) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the
Administrative Agent the original copy of a receipt evidencing payment thereof
within thirty (30) days after such payment is made. Such Lender or
the Administrative Agent, as the case may be, shall promptly reimburse the
Borrower for such payments to the extent such Lender or the Administrative
Agent
receives actual knowledge that it has received any tax credit or other benefit
in connection with such tax payments and that such tax credit or benefit is
clearly attributable to this Agreement.
In
addition, the
Borrower hereby agrees to pay any present or future stamp or documentary taxes
and any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or under any promissory note issued hereunder
or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any promissory note issued hereunder (“Other Taxes”).
The
Borrower hereby
agrees to indemnify the Administrative Agent and each Lender for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes
imposed on amounts payable under this Section 4.5) paid by the
Administrative Agent or such Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within
thirty (30) days of the date the Administrative Agent or such Lender makes
demand therefor pursuant to Section 4.6.
Each
Lender that is
not incorporated or organized under the laws of the United States of America
or
a state thereof (each a “Non-U.S. Lender”) agrees that it will, not less than
ten (10) Business Days after the date of this Agreement, or, if later, the
date
on which such Non-U.S. Lender becomes a party hereto, deliver to each of the
Borrower and the Administrative Agent a United States Internal Revenue Form
W-8
or W-9, as the case may be, and deliver to the Administrative Agent two duly
completed copies of United States Internal Revenue Forms W-8BEN and W-8ECI,
certifying in either case that it is entitled to an exemption from United States
backup withholding tax. Each Non-U.S. Lender further undertakes to
deliver to each of the Borrower and the Administrative Agent (x) renewals or
additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence of
any
event requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested by the
Borrower or the Administrative Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of
any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such Lender
advises the Borrower and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax.
For
any period
during which a Non-U.S. Lender has failed to provide the Borrower with an
appropriate form pursuant to clause (iv), above (unless such failure is
due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to
be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 4.5 with respect to Taxes imposed by the United States;
provided that, should a Non-U.S. Lender which is otherwise exempt from
or
subject to a reduced rate of withholding tax become subject to Taxes because
of
its failure to deliver a form required under clause (iv), above, the
Borrower shall take such steps as such Non-U.S. Lender shall reasonably request
(without cost to the Borrower) to assist such Non-U.S. Lender to recover such
Taxes.
Any
Lender that is
entitled to an exemption from or reduction of withholding tax with respect
to
payments under this Agreement or any promissory note issued hereunder pursuant
to the law of any relevant jurisdiction or any treaty shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
If
the U.S. IRS or
any other governmental authority of the United States or any other country
or
any political subdivision thereof asserts a claim that the Administrative Agent
did not properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or properly completed,
because such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered its exemption from withholding ineffective, or
for
any other reason other than as a result of the gross negligence or willful
misconduct of the Administrative Agent), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by
the
Administrative Agent as tax, withholding therefor, or otherwise, including
penalties and interest, and including taxes imposed by any jurisdiction on
amounts payable to the Administrative Agent under this subsection, together
with
all costs and expenses related thereto (including attorneys fees and time
charges of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent). The obligations of the
Lenders under this Section 4.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
Lender
Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Rate Loans to reduce any liability of the Borrower
to
such Lender under Sections 4.1, 4.2 and 4.5 or to avoid the
unavailability of Eurodollar Rate Loans under Section 4.3, so long as
such designation is not, in the reasonable judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a written
statement of such Lender to the Borrower (with a copy to the Administrative
Agent) as to the amount due, if any, under Section 4.1, 4.2,
4.4 or 4.5. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such Sections
in connection with a Eurodollar Rate Loan shall be calculated as though each
Lender funded its Eurodollar Rate Loan through the purchase of a deposit of
the
type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that
is
the case or not, and without regard to loss of margin. Unless
otherwise provided herein, the amount specified in the written statement of
any
Lender shall be payable on demand after receipt by the Borrower of such written
statement. The obligations of the Borrower under Sections 4.1,
4.2, 4.4 and 4.5 shall survive payment of the Obligations
and termination of this Agreement.
Funding
Date. The Lenders shall not be required to make the Advance
unless the Closing Date has occurred (or will occur concurrently with the
Funding Date) and the Borrower has furnished to the Administrative Agent each
of
the following, with sufficient copies for the Lenders on or before December
31,
2007, all in form and substance satisfactory to the Administrative Agent and
the
Lenders:
Copies
of the
Certificate of Incorporation of the Borrower and each of the Subsidiary
Guarantors (collectively, the “Loan Parties”), together with all amendments and
a certificate of good standing, both certified by the appropriate governmental
officer in its jurisdiction of incorporation;
Copies,
certified
by the Secretary or Assistant Secretary of each of the Loan Parties, of its
By-Laws and of its Board of Directors’ resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for any Lender) authorizing
the
execution of the Loan Documents entered into by it;
An
incumbency
certificate, executed by the Secretary or Assistant Secretary of each of the
Loan Parties, which shall identify by name and title and bear the signature
of
the officers of the Loan Parties authorized to sign the Loan Documents and
the
officers of the Borrower authorized to make borrowings hereunder, upon which
certificate the Lenders shall be entitled to rely until informed of any change
in writing by the Borrower;
A
certificate, in
form and substance satisfactory to the Administrative Agent, signed by the
chief
financial officer or the treasurer of the Borrower, stating that on the Funding
Date, both before and after giving effect to the Designated Acquisition and
the
Advance, (a) all of the representations in this Agreement are true and correct
in all material respects and no Default or Unmatured Default has occurred and
is
continuing or would result after giving effect to the Designated Acquisition
or
the Advance (and, for the avoidance of doubt, after nullifying the effect of
Section 7.3(R) hereto) and (b) no “Default” or “Unmatured Default” has
occurred and is continuing under and as defined in the Existing Credit Agreement
or would result after giving effect to the Designated Acquisition or the
Advance, including, in satisfaction of Section 7.1(A)(iv) hereof,
confirmation that each of the conditions to a “Permitted Acquisition” under and
as defined in the Existing Credit Agreement have been satisfied in accordance
with its terms, including, without limitation, the proforma
covenant compliance required by Section 7.3(F) of the Existing Credit
Agreement;
(a)
The written
opinion of the Loan Parties’ counsel, addressed to the Administrative Agent and
the Lenders, in substantially the form attached hereto as Exhibit D and
containing assumptions and qualifications acceptable to the Administrative
Agent
and the Lenders and (b) to the extent the same is required to be delivered
under
the Designated Acquisition Agreement or otherwise as a condition to or in
connection with the Designated Acquisition, a copy of an opinion of counsel,
in
form and substance satisfactory to the Administrative Agent and the Lenders,
with respect to the enforceability of the Designated Acquisition Agreement
and
compliance by the Borrower and its Subsidiaries with all applicable laws in
connection with the Designated Acquisition;
Evidence
satisfactory to the Administrative Agent that (i) all conditions precedent
to
the consummation of the Designated Acquisition have been satisfied or, except
with respect to the matters required to be addressed herein, waived, and all
of
the representations and warranties in the Designated Acquisition Agreement
are
accurate in all material respects as of the date on which the Designated
Acquisition is consummated; (ii) the Designated Acquisition has been approved
by
all necessary corporate action of the Borrower’s and the Target’s respective
Boards of Directors and shareholders; (iii) the Designated Acquisition Agreement
includes a condition precedent to the consummation of the Designated Acquisition
(which, for the avoidance of doubt, has not been amended or waived) providing
that no “Material Adverse Change” (under and as defined in the Designated
Acquisition Agreement) shall have occurred with respect to the Target; (iv)
all
required governmental approvals related to the Designated Acquisition have
been
obtained and all related filings made and any applicable waiting periods shall
have expired or been terminated, including those prescribed by the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act, as amended, and by any applicable
Foreign Competition Laws; and (v) on the Funding Date the “Effective Time” under
and as defined in the Designated Acquisition Agreement shall occur and,
accordingly, the Designated Acquisition shall be consummated;
Written
money
transfer instructions reasonably requested by the Administrative Agent,
addressed to the Administrative Agent and signed by an Authorized Officer of
the
Borrower;
Evidence
reasonably
satisfactory to the Administrative Agent that (a) either (i) the Target has
paid
(or made arrangements to pay concurrently with the making of the Advance) all
principal, interest, fees and premiums on the Target Notes and any other amounts
outstanding under the Target Indentures and has terminated such Target
Indentures and all instruments, documents and agreements relating thereto,
and/or (ii) the Target has taken, has caused to be taken or has made
arrangements to take concurrently with the making of the Advance any and all
actions required by the Target Indentures to defease and/or satisfy and
discharge in full the terms of the Target Indentures, the Target Notes and
all
instruments, documents and agreements relating thereto, and (b) all Liens
granted in connection with the Target Indentures and the Target Notes are being
terminated and released as of the Funding Date;
Evidence
(in the
form of a payoff letter and related termination documents in form and substance
reasonably satisfactory to the Administrative Agent) that the Target and its
Subsidiaries have paid (or made arrangements to pay concurrently with the making
of the Advance) all principal, interest, fees and premiums, if any, on all
loans
and other financial accommodations outstanding under the Target Credit Agreement
and has terminated such agreement and all instruments, documents and agreements
relating thereto, and all Liens granted in connection with the Target Credit
Agreement are being terminated and released as of the Funding Date;
A
supplement to
Schedule 6.8 hereto reflecting the consummation of the Designated
Acquisition;
Signature
pages or
counterparts to the Subsidiary Guaranty; and
Fully
executed and
effective amendments to, or consents under, the Existing Credit Facility and
the
Singapore Credit Facility.
The
Borrowing/Election Notice with respect to the Advance shall constitute a
representation and warranty by the Borrower that, on and as of the Funding
Date,
both before and after taking into account the consummation of the Designated
Acquisition and the Advance, (a) there exists no Default or Unmatured Default
and (b) the representations and warranties contained in Article VI are
true and correct in all material respects.
Closing
Date. This Agreement shall not be effective unless the Borrower
has furnished to the Administrative Agent each of the following, with sufficient
copies for the Lenders, all in form and substance satisfactory to the
Administrative Agent and the Lenders:
Signature
pages or
counterparts to this Agreement (and the Agents and each Lender as of the Closing
Date shall have delivered their respective signature pages to this
Agreement);
To
the extent not
previously delivered, signature pages or counterparts to the side letter among
the Agents, the Arrangers and the Borrower dated as of the date hereof;
and
A
certificate, in
form and substance satisfactory to the Administrative Agent, signed by the
chief
financial officer or the treasurer of the Borrower, stating that on the Closing
Date all the representations in this Agreement made by the Borrower are true
and
correct in all material respects and no Default or Unmatured Default has
occurred and is continuing.
Each
Loan. The Lenders shall not be required to convert or continue
any Loan unless on the date of such conversion or continuation, both before
and
after taking into account the proposed conversion or continuation:
(i) There
exists no Default or Unmatured Default; and
(ii) The
representations and warranties contained in Article VI are true and
correct in all material respects as of such date.
Each
Borrowing/Election Notice with respect to each such Loan a shall constitute
a
representation and warranty by the Borrower that the conditions contained in
Sections 5.3(i) and (ii) have been satisfied.
In
order to induce
the Administrative Agent and the Lenders to enter into this Agreement and to
make the Loans and the other financial accommodations hereunder, the Borrower
hereby represents and warrants as follows to each Lender and the Administrative
Agent as of the Closing Date, the Funding Date (giving effect to the
consummation of the Designated Acquisition), and thereafter on each date as
required hereunder (other than with respect to Section 6.18, which shall
only be made by the Borrower as of the Funding Date):
Organization;
Corporate Powers. Each of the Borrower and its Material
Subsidiaries (i) is a corporation, limited liability company, partnership or
other commercial entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) is duly qualified
to do business as a foreign entity and is in good standing under the laws of
each jurisdiction in which failure to be so qualified and in good standing
could
reasonably be expected to have a Material Adverse Effect, and (iii) has all
requisite power and authority to own, operate and encumber its property and
to
conduct its business as presently conducted and as proposed to be
conducted.
Authority.
Each
of the
Borrower and its Subsidiaries has the requisite power and authority to execute,
deliver and perform each of the Transaction Documents which are to be executed
by it in connection with the Transactions or which have been executed by it
as
required by this Agreement and the other Loan Documents and (ii) to file the
Transaction Documents which must be filed by it in connection with the
Transactions or which have been filed by it as required by this Agreement,
the
other Loan Documents or otherwise with any Governmental Authority.
The
execution,
delivery, performance and filing, as the case may be, of each of the Relevant
Transaction Documents which must be executed or filed by the Borrower or any
of
its Subsidiaries in connection with the Transactions or which have been executed
or filed as required by this Agreement, the other Relevant Transaction Documents
or otherwise and to which the Borrower or any of its Subsidiaries is a party,
and the consummation of the transactions contemplated thereby, have been duly
approved by the respective boards of directors and, if necessary, the
shareholders of the Borrower and its Subsidiaries, and such approvals have
not
been rescinded. No other action or proceedings on the part of the
Borrower or its Subsidiaries are necessary to consummate such
transactions.
Each
of the
Transaction Documents to which the Borrower or any of its Subsidiaries is a
party has been duly executed, delivered or filed, as the case may be, by such
party and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms (except as enforceability may be limited
by bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles, including
concepts of reasonableness, materiality, good faith and fair dealing and the
possible unavailability of specific performance, injunctive relief or other
equitable remedies (whether enforcement is sought by proceedings in equity
or at
law)), is in full force and effect (other than as a result of expiration in
accordance with its terms) and no material term or condition has been amended,
modified or waived from the terms and conditions contained in the Transaction
Documents delivered to the Administrative Agent pursuant to Sections 5.1
and 5.2 without the prior written consent of the Required Lenders (or all
of the Lenders if required by Section 9.3), and the Borrower and its
Subsidiaries have, and, to the best of the Borrower’s and its Subsidiaries’
knowledge, all other parties thereto have, performed and complied with all
the
material terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by such parties on or before the
Closing Date or Funding Date, as applicable, and no unmatured default, default
or breach of any covenant by any such party exists thereunder.
No
Conflict;
Governmental Consents for the Borrower. The execution, delivery
and performance of each of the Loan Documents and other Transaction Documents
to
which the Borrower or any of its Subsidiaries is a party do not and will not
(i)
conflict with the certificate or articles of incorporation or by-laws (or
equivalent constituent documents) of the Borrower or any such Subsidiary, (ii)
constitute a tortious interference with any Financing Facility or conflict
with,
result in a breach of or constitute (with or without notice or lapse of time
or
both) a default under any Financing Facility, or require termination of any
Financing Facility, (iii) constitute a tortious interference with any
Contractual Obligation (other than the Financing Facilities) of any Person
or
conflict with, result in a breach of or constitute (with or without notice
or
lapse of time or both) a default under any Requirement of Law (including,
without limitation, any Environmental Property Transfer Act) or such Contractual
Obligation of the Borrower or any such Subsidiary, or require termination of
any
such Contractual Obligation, except such interference, breach, default or
termination which individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect, (iv) result in or require the
creation or imposition of any Lien whatsoever upon any of the property or assets
of the Borrower or any such Subsidiary, other than Liens permitted or created
by
the Loan Documents, or (v) require any approval of the Borrower’s or any such
Subsidiary’s Board of Directors (or equivalent governing body) or shareholders
except such as have been obtained. Except as set forth on Schedule
6.3 to this Agreement, the execution, delivery and performance of each of
the Transaction Documents to which the Borrower or any of its Subsidiaries
is a
party do not and will not require any registration with, consent or approval
of,
or notice to, or other action to, with or by any Governmental Authority,
including under any Environmental Property Transfer Act, except filings,
consents or notices which have been made, obtained or given, or which, if not
made, obtained or given, individually or in the aggregate could not reasonably
be expected to have a Material Adverse Effect.
Financial
Statements. The September 30, 2006, December 31, 2006, March 30,
2006 and June 30, 2007 consolidated financial statements of the Borrower and
its
Subsidiaries heretofore delivered to the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the date such
statements were prepared and fairly present the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
No
Material
Adverse Change. Since September 30, 2006 (determined by reference
to the financial statements prepared with respect to the Borrower and its
Subsidiaries), there has occurred no change in the business, properties,
condition (financial or otherwise), performance, results of operations or
prospects of the Borrower, or the Borrower and its Subsidiaries taken as a
whole
or any other event which has had or would reasonably be expected to have a
Material Adverse Effect.
Taxes.
Tax
Examinations. All deficiencies which have been asserted against
the Borrower or any of the Borrower’s Subsidiaries as a result of any federal,
state, local or foreign tax examination for each taxable year in respect of
which an examination has been conducted have been fully paid or finally settled
or are being contested in good faith, and no issue has been raised by any taxing
authority in any such examination which, by application of similar principles,
reasonably can be expected to result in assertion by such taxing authority
of a
material deficiency for any other year not so examined which has not been
reserved for in the Borrower’s consolidated financial statements to the extent,
if any, required by Agreement Accounting Principles. Except as
permitted pursuant to Section 7.2(D), neither the Borrower nor any of the
Borrower’s Subsidiaries anticipates any material tax liability with respect to
the years which have not been closed pursuant to applicable law.
Payment
of
Taxes. All tax returns and reports of the Borrower and its
Subsidiaries required to be filed have been timely filed, and all taxes,
assessments, fees and other governmental charges thereupon and upon their
respective property, assets, income and franchises which are shown in such
returns or reports to be due and payable have been paid except those items
which
are being contested in good faith and have been reserved for in accordance
with
Agreement Accounting Principles. The Borrower has no knowledge of any
proposed tax assessment against the Borrower or any of its Subsidiaries that
will have or could reasonably be expected to have a Material Adverse Effect,
except for any such liability in respect of other members of the consolidated
group of which the Borrower previously was a member as a Subsidiary of Xxxxxxx
Purina Company, in respect of which and solely to the extent that (i) the
Borrower is entitled to be indemnified by Xxxxxxx Purina Company or its
successors pursuant to that certain Tax Sharing Agreement, dated as of April
1,
2000, between Xxxxxxx Purina Company and the Borrower (as the same has been
or
may hereafter be amended or otherwise modified) and (ii) the Borrower’s right to
indemnification for such liability is not being contested by Xxxxxxx Purina
Company (or, if previously contested, any such contest has not been resolved
in
favor of Xxxxxxx Purina Company).
Litigation;
Loss
Contingencies and Violations. Except as set forth in Schedule
6.7 (the “Disclosed Litigation”), as of the Closing Date, there is no
action, suit, proceeding, arbitration or, to the knowledge of any member of
the
Borrower’s Senior Management Team, investigation before or by any Governmental
Authority or private arbitrator pending or, to the knowledge of any member
of
the Borrower’s Senior Management Team, threatened against the Borrower, any of
its Subsidiaries or any property of any of them. Neither (a) any of
the Disclosed Litigation nor (b) from and after the Closing Date, any other
action, suit, proceeding, arbitration or, to the knowledge of any member of
the
Borrower’s Senior Management Team, investigation before or by any Governmental
Authority or private arbitrator pending or, to the knowledge of any member
of
the Borrower’s Senior Management Team, threatened against the Borrower, any of
its Subsidiaries or any property of any of them (i) challenges the validity
or
the enforceability of the Transactions or any material provision of the
Transaction Documents or (ii) has had or could reasonably be expected to have
a
Material Adverse Effect. There is no material loss contingency within
the meaning of Agreement Accounting Principles which has not been reflected
in
the consolidated financial statements of the Borrower prepared and delivered
pursuant to Section 7.1(A) for the fiscal period during which such
material loss contingency was incurred. Neither the Borrower nor any
of its Subsidiaries is (A) in violation of any applicable Requirements of Law
which violation will have or could reasonably be expected to have a Material
Adverse Effect, or (B) subject to or in default with respect to any final
judgment, writ, injunction, restraining order or order of any nature, decree,
rule or regulation of any court or Governmental Authority which will have or
could reasonably be expected to have a Material Adverse Effect.
Subsidiaries. Schedule
6.8 to this Agreement (i) contains, as of the Closing Date (and, after
receipt of the supplement to such Schedule 6.8 on the Funding Date, as of
the Funding Date), a description of the corporate structure of the Borrower
its
Subsidiaries and any other Person in which the Borrower or any of its
Subsidiaries holds an Equity Interest in excess of 5%; and (ii) accurately
sets
forth, as of the Closing Date, (A) the correct legal name, the
jurisdiction of incorporation or organization and the jurisdictions in which
each of the Borrower and the direct and indirect Subsidiaries of the Borrower
are qualified to transact business as a foreign corporation, (B) the authorized,
issued and outstanding shares of each class of Capital Stock of the Borrower
and
each of its Subsidiaries and the owners of such shares (on a fully-diluted
basis), and (C) a summary of the direct and indirect partnership, joint venture,
or other Equity Interests, if any, of the Borrower and each Subsidiary of the
Borrower in any Person that is not a corporation. On the Funding Date
and, if requested by the Administrative Agent, after the formation or
acquisition of any New Subsidiary permitted under Section 7.3(F), the
Borrower shall provide a supplement to Schedule 6.8 to this Agreement
reflecting the Designated Acquisition or the addition of such New Subsidiary,
as
the case may be. Except as disclosed on Schedule 6.8 (as so
supplemented) none of the issued and outstanding Capital Stock of the Borrower
or any of its Subsidiaries is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options outstanding with respect to
such
Capital Stock. The outstanding Capital Stock of the Borrower and each
of its Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable and the stock of the Borrower’s Subsidiaries is not Margin
Stock.
ERISA. No
Benefit Plan has incurred any material accumulated funding deficiency (as
defined in Sections 302(a)(2) of ERISA and 412(a) of the Code) whether or not
waived. Neither the Borrower nor any member of the Controlled Group
has incurred any material liability to the PBGC which remains outstanding other
than the payment of premiums. As of the last day of the most recent
prior plan year, the market value of assets under each Benefit Plan, other
than
any Multiemployer Plan, was not by a material amount less than the present
value
of benefit liabilities thereunder (determined in accordance with the actuarial
valuation assumptions described therein). Neither the Borrower nor
any member of the Controlled Group has (i) failed to make a required
contribution or payment to a Multiemployer Plan of a material amount or (ii)
incurred a material complete or partial withdrawal under Section 4203 or Section
4205 of ERISA from a Multiemployer Plan. Neither the Borrower nor any
member of the Controlled Group has failed to make an installment or any other
payment of a material amount required under Section 412 of the Code on or before
the due date for such installment or other payment. Each Plan,
Foreign Employee Benefit Plan and Non-ERISA Commitment complies in all material
respects in form, and has been administered in all material respects in
accordance with its terms and, in accordance with all applicable laws and
regulations, including but not limited to ERISA and the Code. There
have been no and there is no prohibited transaction described in Sections 406
of
ERISA or 4975 of the Code with respect to any Plan for which a statutory or
administrative exemption does not exist which could reasonably be expected
to
subject the Borrower or any of is Subsidiaries to material
liability. Neither the Borrower nor any member of the Controlled
Group has taken or failed to take any action which would constitute or result
in
a Termination Event, which action or inaction could reasonably be expected
to
subject the Borrower or any of its Subsidiaries to material
liability. Neither the Borrower nor any member of the Controlled
Group is subject to any material liability under, or has any potential material
liability under, Section 4063, 4064, 4069, 4204 or 4212(c) of
ERISA. The present value of the aggregate liabilities to provide all
of the accrued benefits under any Foreign Pension Plan do not exceed the current
fair market value of the assets held in trust or other funding vehicle for
such
plan by a material amount. With respect to any Foreign Employee
Benefit Plan other than a Foreign Pension Plan, reasonable reserves have been
established in accordance with prudent business practice or where required
by
ordinary accounting practices in the jurisdiction in which such plan is
maintained. For purposes of this Section 6.9, “material”
means any amount, noncompliance or other basis for liability which
could
reasonably be expected to subject the Borrower or any of its Subsidiaries to
liability, individually or in the aggregate with each other basis for liability
under this Section 6.9, in excess of $30,000,000.
Accuracy
of
Information. The information, exhibits and reports furnished by
or on behalf of the Borrower and any of its Subsidiaries to the Administrative
Agent or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents, the representations and warranties of the Borrower
and
its Subsidiaries contained in the Loan Documents, and all certificates and
documents delivered to the Administrative Agent and the Lenders pursuant to
the
terms thereof, including, without limitation, the Designated Acquisition
Agreement, taken as a whole, do not contain as of the date furnished any untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
Securities
Activities. Neither the Borrower nor any of its Subsidiaries is
engaged in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
Material
Agreements. Neither the Borrower nor any Subsidiary is a party to
any Contractual Obligation or subject to any charter or other corporate or
similar restriction which individually or in the aggregate will have or could
reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries has received notice or has knowledge that
(i) it is in default in the performance, observance or fulfillment of any of
the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, or (ii) any condition exists which, with the giving of notice
or the lapse of time or both, would constitute a default with respect to any
such Contractual Obligation, in each case, except where such default or
defaults, if any, individually or in the aggregate will not have or could not
reasonably be expected to have a Material Adverse Effect.
Compliance
with
Laws. The Borrower and its Subsidiaries are in compliance with
all Requirements of Law applicable to them and their respective businesses,
in
each case where the failure to so comply individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect.
Assets
and
Properties. The Borrower and each of its Subsidiaries has legal
title to all of its material assets and properties (tangible and intangible,
real or personal) owned by it or a valid leasehold interest in all of its
material leased assets (except insofar as marketability may be limited by any
laws or regulations of any Governmental Authority affecting such assets), and
all such assets and property are free and clear of all Liens, except Liens
permitted under Section 7.3(C). Substantially all of the
assets and properties owned by, leased to or used by the Borrower and/or each
such Subsidiary of the Borrower are in adequate operating condition and repair,
ordinary wear and tear excepted. Neither this Agreement nor any
Transaction Document, nor any transaction contemplated under any such agreement,
will affect any right, title or interest of the Borrower or such Subsidiary
in
and to any of such assets in a manner that has had or could reasonably be
expected to have a Material Adverse Effect.
Statutory
Indebtedness Restrictions. Neither the Borrower nor any of its
Subsidiaries is subject to regulation under the Federal Power Act, the
Interstate Commerce Act, or the Investment Company Act of 1940, or any other
federal or state statute or regulation which limits its ability to incur
indebtedness or its ability to consummate the transactions contemplated
hereby.
Insurance. The insurance
policies and programs in effect with respect to the respective properties,
assets, liabilities and business of the Borrower and its Subsidiaries reflect
coverage that is reasonably consistent with prudent industry
practice.
Labor
Matters. No attempt to organize the employees of the Borrower or
any of its Subsidiaries, and no labor disputes, strikes or walkouts affecting
the operations of the Borrower or any of its Subsidiaries, is pending, or,
to
the Borrower’s knowledge, threatened, planned or contemplated, which has or
could reasonably be expected to have a Material Adverse Effect.
Designated
Acquisition. (i) All conditions precedent to the consummation of
the Designated Acquisition have been satisfied or, except with respect to the
matters required to be addressed herein, waived, and all of the representations
and warranties in the Designated Acquisition Agreement are accurate in all
material respects as of the date on which the Designated Acquisition is
consummated; (ii) the Designated Acquisition has been approved by all necessary
corporate action of the Borrower’s and the Target’s respective Boards of
Directors and shareholders; (iii) the Designated Acquisition Agreement includes
a condition precedent to the consummation of the Designated Acquisition (which,
for the avoidance of doubt, has not been amended or waived) providing that
no
“Material Adverse Change” (under and as defined in the Designated Acquisition
Agreement) shall have occurred with respect to the Target; (iv) all required
governmental approvals related to the Designated Acquisition have been obtained
and all related filings made and any applicable waiting periods shall have
expired or been terminated, including those prescribed by the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act, as amended, and by any Foreign Competition Laws;
and
(v) on the Funding Date the “Effective Time” under and as defined in the
Designated Acquisition Agreement shall occur and, accordingly, the Designated
Acquisition shall be consummated.
Environmental
Matters. (iv)
Except as
disclosed on Schedule 6.19 to this Agreement
the
operations of
the Borrower and its Subsidiaries comply in all material respects with
Environmental, Health or Safety Requirements of Law;
the
Borrower and
its Subsidiaries have all material permits, licenses or other authorizations
required under Environmental, Health or Safety Requirements of Law and are
in
material compliance with such permits;
neither
the
Borrower, any of its Subsidiaries nor any of their respective present property
or operations, or, to the Borrower’s or any of its Subsidiaries’ knowledge, any
of their respective past property or operations, are subject to or the subject
of, any investigation known to the Borrower or any of its Subsidiaries, any
judicial or administrative proceeding, order, judgment, decree, settlement
or
other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any material remedial
action; or (C) any material claims or liabilities arising from the Release
or
threatened Release of a Contaminant into the environment;
there
is not now,
nor to the Borrower’s or any of its Subsidiaries’ knowledge has there ever been,
on or in the property of the Borrower or any of its Subsidiaries any landfill,
waste pile, underground storage tanks, aboveground storage tanks, surface
impoundment or hazardous waste storage facility of any kind, any polychlorinated
biphenyls (PCBs) used in hydraulic oils, electric transformers or other
equipment, or any asbestos containing material that would result in material
remediation costs or material penalties to the Borrower or any of its
Subsidiaries; and
neither
the
Borrower nor any of its Subsidiaries has any material Contingent Obligation
in
connection with any Release or threatened Release of a Contaminant into the
environment.
For
purposes of
this Section 6.19“material” means any noncompliance or other basis for
liability which could reasonably be likely to subject the Borrower or any of
its
Subsidiaries to liability, individually or in the aggregate with each other
basis for liability under this Section 6.19, in excess of
$30,000,000.
Solvency. After
giving effect to (i) the Loans to be made on the Funding Date, (ii) the other
transactions contemplated by this Agreement and the other Transaction Documents,
including consummation of the Designated Acquisition, and (iii) the payment
and
accrual of all transaction costs with respect to the foregoing, the Borrower
is,
and the Borrower and its Subsidiaries taken as a whole are,
Solvent.
Benefits. Each
of the Borrower and its Subsidiaries will benefit from the financing arrangement
established by this Agreement. The Administrative Agent and the
Lenders have stated and the Borrower acknowledges that, but for the agreement
by
each of the Subsidiary Guarantors to execute and deliver the Subsidiary
Guaranty, the Administrative Agent and the Lenders would not have made available
the credit facilities established hereby on the terms set forth
herein.
Subject
to
Section 7.3(R) below, the Borrower covenants and agrees that so long as
any Commitments are outstanding and thereafter until all of the Obligations
(other than contingent indemnity obligations) shall have been fully and
indefeasibly paid and satisfied in cash and all financing arrangements among
the
Borrower and the Lenders shall have been terminated, unless the Required Lenders
shall otherwise give prior written consent:
Reporting. The
Borrower shall:
Financial
Reporting. Furnish to the Administrative Agent (with sufficient
copies for each of the Lenders, which the Administrative Agent shall promptly
deliver to the Lenders):
Quarterly
Reports. As soon as practicable, and in any event within
forty-five (45) days after the end of each of the Borrower’s first three fiscal
quarters, the consolidated balance sheet of the Borrower and its Subsidiaries
as
at the end of such period and the related consolidated statements of income
and
cash flows of the Borrower and its Subsidiaries for such fiscal quarter and
for
the period from the beginning of the then current fiscal year to the end of
such
fiscal quarter, certified by the chief financial officer or treasurer of the
Borrower on behalf of the Borrower as fairly presenting the consolidated
financial position of the Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and cash flows for the periods
indicated in accordance with Agreement Accounting Principles, subject to normal
year-end audit adjustments and the absence of footnotes.
Annual
Reports. As soon as practicable, and in any event within ninety
(90) days after the end of each fiscal year, (a) the consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at the
end
of such fiscal year and the related consolidated and consolidating statements
of
income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries
for such fiscal year, and in comparative form the corresponding figures for
the
previous fiscal year along with consolidating schedules in form and substance
sufficient to calculate the financial covenants set forth in Section 7.4,
and (b) an audit report on the consolidated financial statements (but not the
consolidating financial statements or schedules) listed in clause (a)
hereof of independent certified public accountants of recognized national
standing, which audit report shall be unqualified and shall state that such
financial statements fairly present the consolidated financial position of
the
Borrower and its Subsidiaries as at the dates indicated and the results of
their
operations and cash flows for the periods indicated in conformity with Agreement
Accounting Principles and that the examination by such accountants in connection
with such consolidated financial statements has been made in accordance with
generally accepted auditing standards.
Officer’s
Compliance Certificate. Together with each delivery of any
financial statements (a) pursuant to clauses (i) and (ii) of this
Section 7.1(A), an Officer’s Certificate from the chief financial officer
or treasurer of the Borrower, substantially in the form of Exhibit E
attached hereto and made a part hereof, stating that (x) the representations
and
warranties of the Borrower contained in Article VI hereof shall have been
true and correct in all material respects as of the date of such Officer’s
Certificate and (y) as of the date of such Officer’s Certificate no Default or
Unmatured Default exists, or if any Default or Unmatured Default exists, stating
the nature and status thereof and (b) pursuant to clauses (i) and
(ii) of this Section 7.1(A), a compliance certificate,
substantially in the form of Exhibit F attached hereto and made a part
hereof, signed by the Borrower’s chief financial officer or treasurer, setting
forth calculations for the period which demonstrate compliance, when applicable,
with the provisions of Section 7.2(K), Sections 7.3(A) through
(Q) and Section 7.4.
Compliance
of
Designated Acquisition with the Existing Credit Agreement. On or
prior to the date on which the Designated Acquisition shall be consummated,
evidence satisfactory to the Administrative Agent that each of the conditions
to
a “Permitted Acquisition” under and as defined in the Existing Credit Agreement
shall have been satisfied in accordance with its terms, including, without
limitation, a confirmation of proforma covenant compliance as
required by Section 7.3(F) of the Existing Credit Agreement.
Notice
of
Default and Adverse Developments. Promptly upon any of the chief
executive officer, chief operating officer, chief financial officer, treasurer
or controller of the Borrower obtaining actual knowledge (i) of any condition
or
event which constitutes a Default or Unmatured Default, or becoming aware that
any Lender or Administrative Agent has given any written notice with respect
to
a claimed Default or Unmatured Default under this Agreement, (ii) that any
Person having the authority to give such a notice has given any written notice
to the Borrower or any Subsidiary of the Borrower or taken any other action
with
respect to a claimed default or event or condition of the type referred to
in
Section 8.1(E), or (iii) that any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect
has occurred specifying (a) the nature and period of existence of any such
claimed default, Default, Unmatured Default, condition or event, (b) the notice
given or action taken by such Person in connection therewith, and (c) what
action the Borrower has taken, is taking and proposes to take with respect
thereto.
ERISA
Notices. Deliver or cause to be delivered to the Administrative
Agent and the Lenders, at the Borrower’s expense, the following information and
notices as soon as reasonably possible, and in any event:
within
ten (10)
Business Days after any member of the Controlled Group obtains knowledge that
a
Termination Event has occurred which could reasonably be expected to subject
the
Borrower to liability individually or in the aggregate in excess of $25,000,000,
a written statement of the chief financial officer or treasurer of the Borrower
describing such Termination Event and the action, if any, which the member
of
the Controlled Group has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS, DOL or
PBGC
with respect thereto;
within
ten (10)
Business Days after the filing of any funding waiver request with the IRS,
a
copy of such funding waiver request and thereafter all communications received
by the Borrower or a member of the Controlled Group with respect to such request
within ten (10) Business Days after such communication is received;
and
within
ten (10)
Business Days after the Borrower or any member of the Controlled Group knows
or
has reason to know that (a) a Multiemployer Plan has been terminated, (b) the
administrator or plan sponsor of a Multiemployer Plan intends to terminate
a
Multiemployer Plan, or (c) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan, a notice
describing such matter.
For
purposes of
this Section 7.1(C), the Borrower and any member of the Controlled Group
shall be deemed to know all facts known by the administrator of any Plan of
which the Borrower or any member of the Controlled Group is the plan
sponsor.
Other
Indebtedness. Deliver to the Administrative Agent (i) a copy of
each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer’s certificate) delivered by or on
behalf of the Borrower to the holders of funded Material Indebtedness,
including, without limitation, holders of Indebtedness under any Financing
Facility, pursuant to the terms of the agreements governing such Indebtedness,
such delivery to be made at the same time and by the same means as such notice
or other communication is delivered to such holders, and (ii) a copy of each
notice received by the Borrower from the holders of funded Material Indebtedness
who are authorized and/or have standing to deliver such notice pursuant to
the
terms of such Indebtedness, such delivery to be made promptly after such notice
is received by the Borrower.
Other
Reports. Deliver or cause to be delivered to the Administrative
Agent and the Lenders copies of all financial statements, reports and notices,
if any, sent by the Borrower to its securities holders or filed with the
Commission by the Borrower, other than Reports on Form 8-K which contain only
information furnished pursuant to Item 12 thereof.
Environmental
Notices. As soon as possible and in any event within ten (10)
days after receipt by the Borrower, deliver or cause to be delivered to the
Administrative Agent a copy of (i) any notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may be liable to any Person as a
result of the Release by the Borrower, any of its Subsidiaries, or any other
Person of any Contaminant into the environment, and (ii) any notice alleging
any
violation of any Environmental, Health or Safety Requirements of Law by the
Borrower or any of its Subsidiaries if, in either case, such notice or claim
relates to an event which could reasonably be expected to subject the Borrower
and each of its Subsidiaries to liability individually or in the
aggregate in excess of $25,000,000.
Amendments
to
and Refinancings of Financing Facilities. Promptly after the
execution thereof, deliver or cause to be delivered to the Administrative Agent
copies of all material amendments to, or refinancings or replacements of, any
of
the documents evidencing all or any portion of the Indebtedness extended to
the
Borrower or any of its Subsidiaries under any of the Financing Facilities and
any other Material Indebtedness.
Other
Information. Promptly upon receiving a request therefor from the
Administrative Agent, prepare and deliver to the Administrative Agent and the
Lenders such other information with respect to the Borrower, any of its
Subsidiaries, or their respective businesses and assets, including, without
limitation, schedules identifying and describing any Asset Sale (and the use
of
the net cash proceeds thereof), as from time to time may be reasonably requested
by the Administrative Agent.
Affirmative
Covenants.
Corporate
Existence, Etc. Except as permitted pursuant to Section
7.3(H), the Borrower shall, and shall cause each of its Subsidiaries to, at
all times maintain its existence and preserve and keep, or cause to be preserved
and kept, in full force and effect its rights and franchises material to its
businesses.
Corporate
Powers; Conduct of Business. The Borrower shall, and shall cause
each of its Material Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires
it to
be so qualified and where the failure to be so qualified will have or would
reasonably be expected to have a Material Adverse Effect. The
Borrower will, and will cause each Material Subsidiary to, carry on and conduct
its business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted unless the failure of the
Borrower or its Material Subsidiaries to carry on and conduct its business
as so
described would not reasonably be expected to have a Material Adverse
Effect.
Compliance
with
Laws, Etc. The Borrower shall, and shall cause its Subsidiaries
to, (a) comply with all Requirements of Law and all restrictive covenants
affecting such Person or the business, properties, assets or operations of
such
Person, and (b) obtain as needed all permits necessary for its operations and
maintain such permits in good standing unless, in either case, failure to comply
or obtain such permits would not reasonably be expected to have a Material
Adverse Effect.
Payment
of Taxes
and Claims; Tax Consolidation. The Borrower shall pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and other
governmental charges imposed upon it or on any of its properties or assets
or in
respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 7.3(C)) upon any of the Borrower’s or
such Subsidiary’s property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, that no
such taxes, assessments and governmental charges referred to in clause
(i) above or claims referred to in clause (ii) above (and interest,
penalties or fines relating thereto) need be paid if being contested in good
faith by appropriate proceedings diligently instituted and conducted and if
such
reserve or other appropriate provision, if any, as shall be required in
conformity with Agreement Accounting Principles shall have been made
therefor.
Insurance. The
Borrower shall maintain for itself and its Subsidiaries, or shall cause each
of
its Subsidiaries to maintain in full force and effect, insurance policies and
programs, with such deductibles or self-insurance amounts as reflect coverage
that is reasonably consistent with prudent industry practice as determined
by
the Borrower.
Inspection
of
Property; Books and Records; Discussions. The Borrower shall
permit and cause each of the Borrower’s Subsidiaries to permit, any authorized
representative(s) designated by either the Administrative Agent or any Lender
to
visit and inspect any of the properties of the Borrower or any of its
Subsidiaries, to examine their respective financial and accounting records
and
other material data relating to their respective businesses or the transactions
contemplated hereby (including, without limitation, in connection with
environmental compliance, hazard or liability), and to discuss their affairs,
finances and accounts with their officers and independent certified public
accountants, all upon reasonable notice and at such reasonable times during
normal business hours, as often as may be reasonably requested (provided that
an
officer of the Borrower or any of its Subsidiaries may, if it so desires, be
present at and participate in any such discussion). The Borrower
shall keep and maintain, and cause each of the Borrower’s Subsidiaries to keep
and maintain, in all material respects, proper books of record and account
in
which entries in conformity with Agreement Accounting Principles shall be made
of all dealings and transactions in relation to their respective businesses
and
activities. If a Default has occurred and is continuing, the
Borrower, upon the Administrative Agent’s request, shall turn over copies of any
such records to the Administrative Agent or its representatives.
ERISA
Compliance. The Borrower shall, and shall cause each of the
Borrower’s Subsidiaries to, establish, maintain and operate all Plans to comply
in all material respects with the provisions of ERISA and shall operate all
Plans and Non-ERISA Commitments to comply in all material respects with the
applicable provisions of the Code, all other applicable laws, and the
regulations and interpretations thereunder and the respective requirements
of
the governing documents for such Plans and Non-ERISA Commitments, except for
any
noncompliance which, individually or in the aggregate, could not reasonably
be
expected to have a Material Adverse Effect.
Maintenance
of
Property. The Borrower shall cause all property necessary for the
conduct of its business or the business of any Subsidiary to be maintained
and
kept in good condition, repair and working order and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment
of
the Borrower may be necessary for the conduct of its business; provided,
however, that nothing in this Section 7.2(H) shall prevent the
Borrower from discontinuing the operation or maintenance of any of such property
if such discontinuance is, in the judgment of the Borrower, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Administrative Agent or the
Lenders.
Environmental
Compliance. (a) The Borrower and its Subsidiaries shall comply
with all Environmental, Health or Safety Requirements of Law, except where
noncompliance will not have or is not reasonably likely to subject the Borrower
or any of its Subsidiaries, individually or in the aggregate, to liability
in
excess of $30,000,000.
Use
of
Proceeds. The Borrower shall use the proceeds of the Loans solely
to finance the Designated Acquisition (including to pay merger consideration
owing to former shareholders of the Target and to refinance certain existing
indebtedness of the Target and its Subsidiaries) and the transaction costs
and
expenses incurred in connection therewith and herewith.
Addition
of
Subsidiary Guarantors. (a) New
Subsidiaries. The Borrower shall cause each New Subsidiary that
is, at any time, a Material Domestic Subsidiary (other than a SPV) to deliver
to
the Administrative Agent an executed Supplement to become a Subsidiary Guarantor
under the Subsidiary Guaranty in the form of Exhibit G attached hereto (a
“Supplement”) and appropriate corporate resolutions, opinions and other
documentation in form and substance reasonably satisfactory to the
Administrative Agent, such Supplement and other documentation to be delivered
to
the Administrative Agent as promptly as possible upon the creation, acquisition
of or capitalization thereof or if otherwise necessary to remain in compliance
with Section 7.3(Q), but in any event within thirty (30) days of such
creation, acquisition or capitalization.
(b) Additional
Material Domestic Subsidiaries. If any consolidated Subsidiary of
the Borrower (other than a New Subsidiary to the extent addressed in Section
7.2(K)(a) or a SPV) becomes a Material Domestic Subsidiary, the Borrower
shall cause any such Material Domestic Subsidiary to deliver to the
Administrative Agent an executed Supplement to become a Subsidiary
Guarantor and appropriate corporate resolutions, opinions and other
documentation in form and substance reasonably satisfactory to the
Administrative Agent in connection therewith, such Supplement and other
documentation to be delivered to the Administrative Agent as promptly as
possible but in any event within thirty (30) days following the date on which
such consolidated Subsidiary became a Material Domestic Subsidiary.
(c) Additional
Subsidiary Guarantors. (v)If at any time a member of the Senior
Management Team of the Borrower has actual knowledge that the aggregate assets
of all of the Borrower’s domestic consolidated Subsidiaries (other than SPVs)
which are not Subsidiary Guarantors exceed ten percent (10%) of Consolidated
Domestic Assets of the Borrower and its consolidated Subsidiaries (other than
the SPVs), as calculated by the Borrower, the Borrower shall cause such domestic
consolidated Subsidiaries as are necessary to reduce such aggregate assets
to or
below ten percent (10%) of such Consolidated Domestic Assets to deliver to
the
Administrative Agent executed Supplements to become Subsidiary Guarantors and
appropriate corporate resolutions, opinions and other documentation in form
and
substance reasonably satisfactory to the Administrative Agent in connection
therewith, such Supplements and other documentation to be delivered to the
Administrative Agent as promptly as possible but in any event within thirty
(30)
days following the initial date on which a member of the Senior Management
Team
of the Borrower obtained actual knowledge that such aggregate assets exceed
ten
percent (10%) of such Consolidated Domestic Assets.
If
at any time any
Subsidiary of the Borrower which is not a Subsidiary Guarantor guaranties any
Indebtedness of the Borrower for which the Borrower is a primary obligor (other
than solely as a guarantor of obligations of its Affiliates or other third
parties), other than the Indebtedness hereunder, the Borrower shall cause such
Subsidiary to deliver to the Administrative Agent an executed Supplement to
become a Subsidiary Guarantor and appropriate corporate resolutions, opinions
and other documentation in form and substance reasonably satisfactory to the
Administrative Agent in connection therewith, such Supplement and other
documentation to be delivered to the Administrative Agent concurrently with
the
delivery of the guaranty of such other Indebtedness.
For
the avoidance
of doubt and notwithstanding the foregoing, no Subsidiary Guaranty shall be
required to be delivered prior to the Funding Date; provided,
however, that no thirty-day grace period described in any of the
foregoing subsections of this Section 7.2(K) shall apply to any of the
Subsidiary Guarantees required to be delivered on the Funding Date (as described
in clause (i) of the definition of “Subsidiary Guarantors”) and related
deliveries required as a condition to the Funding Date pursuant to Section
5.1 hereto.
Negative
Covenants.
Subsidiary
Indebtedness. The Borrower shall not permit any of its
Subsidiaries directly or indirectly to create, incur, assume or otherwise become
or remain directly or indirectly liable with respect to any Indebtedness,
except:
Indebtedness
of the
Subsidiaries under the Subsidiary Guaranty;
Indebtedness
in
respect of guaranties executed by any Subsidiary Guarantor with respect to
any
Indebtedness of the Borrower, provided such Indebtedness is not incurred
by the Borrower in violation of this Agreement;
Indebtedness
in
respect of obligations secured by Customary Permitted Liens;
Indebtedness
constituting Contingent Obligations permitted by Section
7.3(E);
Indebtedness
arising from loans (a) from any Subsidiary to any wholly-owned Subsidiary or
(b)
from the Borrower to any wholly-owned Subsidiary; provided, that if any
Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness
shall be expressly subordinate to the payment in full in cash of the Obligations
on terms satisfactory to the Administrative Agent;
Indebtedness
in
respect of Hedging Obligations permitted under Section
7.3(O);
Indebtedness
with
respect to surety, appeal and performance bonds obtained by any of the
Borrower’s Subsidiaries in the ordinary course of business;
Indebtedness
incurred in connection with the Receivables Purchase Documents, provided,
that Receivables Facility Attributed Indebtedness incurred in connection
therewith does not exceed $250,000,000 in the aggregate at any time outstanding;
and
Other
Indebtedness
in addition to that referred to elsewhere in this Section 7.3(A) incurred
by the Borrower’s Subsidiaries; provided that no Default or Unmatured
Default shall have occurred and be continuing at the date of such incurrence
or
would result therefrom; and providedfurther that the aggregate
outstanding amount of all Indebtedness incurred by the Borrower’s Subsidiaries
(other than Indebtedness incurred pursuant to clauses (i), (ii),
(v), (vi) and (viii) of this Section 7.3(A)) shall
not at any time exceed 25% of the Borrower’s Consolidated Total
Capitalization.
Sales
of
Assets. Neither the Borrower nor any of its Subsidiaries shall
sell, assign, transfer, lease, convey or otherwise dispose of any property,
whether now owned or hereafter acquired, or any income or profits therefrom,
or
enter into any agreement to do so, except:
sales
of Inventory
in the ordinary course of business;
the
disposition in
the ordinary course of business of Equipment that is obsolete, excess or no
longer used or useful in the Borrower’s or its Subsidiaries’
businesses;
any
Permitted
Receivables Transfer; provided that the amount of Receivables Facility
Attributed Indebtedness does not exceed $250,000,000 in the aggregate at any
time outstanding;
sales,
transfers or
other dispositions of property to the Borrower or a Subsidiary Guarantor;
and
sales,
assignments,
transfers, leases, conveyances or other dispositions of other assets (other
than
pursuant to clauses (i), (ii), (iii) and (iv) above)
if such transaction (a) is for not less than fair market value, and (b) when
combined with all such other transactions (each such transaction being valued
at
book value) occurring during the fiscal year in which such proposed transaction
occurred represents the disposition of not greater than fifteen percent (15%)
of
the Borrower’s Consolidated Assets (such Consolidated Assets being calculated
for the end of the fiscal year immediately preceding that in which such
transaction is proposed to be entered into).
Liens. Neither
the Borrower nor any of its Subsidiaries shall directly or indirectly create,
incur, assume or permit to exist any Lien on or with respect to any of their
respective property or assets except:
(a)
Liens, if any,
created by the Loan Documents or otherwise securing the Obligations and (b)
Liens created by the “Loan Documents” under and as defined in the Existing
Credit Agreement or otherwise securing the “Obligations” (as such terms are
defined in the Existing Credit Agreement), provided, that such Liens are
shared on an equal and ratable basis with the Lenders with respect to the
Obligations hereunder;
Customary
Permitted
Liens;
Liens
arising under
the Receivables Purchase Documents; and
other
Liens,
including Permitted Existing Liens, (a) securing Indebtedness of the Borrower
and/or (b) securing Indebtedness of the Borrower’s Subsidiaries as permitted
pursuant to Section 7.3(A), all of which, when taken together, secure
Indebtedness in an aggregate outstanding principal amount not to exceed five
percent (5%) of Consolidated Assets at any time.
In
addition, neither the Borrower nor any of its Subsidiaries shall become a party
to any agreement, note, indenture or other instrument, or take any other action,
which would prohibit the creation of a Lien on any of its properties or other
assets in favor of the Administrative Agent for the benefit of itself and the
Holders of Obligations, as collateral for the Obligations; provided, that
any agreement, note, indenture or other instrument in connection with purchase
money indebtedness (including Capitalized Leases) may prohibit the creation
of a
Lien in favor of the Administrative Agent for the benefit of itself and the
Holders of Obligations on the items of property obtained with the proceeds
of
such purchase money indebtedness; provided, further, that (a) each
Senior Note Purchase Agreement in connection with the Senior Notes may prohibit
the creation of a Lien in favor of the Administrative Agent for the benefit
of
itself and the Holders of Obligations, as collateral for the Obligations, (b)
the Receivables Purchase Documents may prohibit the creation of a Lien with
respect to all of the assets of the SPV and with respect to the Receivables
and
Related Security of any of the Originators in favor of the Administrative Agent
for the benefit of itself and the Holders of Obligations, as collateral for
the
Obligations, (c) the Existing Credit Agreement may prohibit the creation of
a
Lien in favor of the Administrative Agent, for the benefit of itself and the
Holders of Secured Obligations, as collateral for the Obligations unless the
holders of the obligations under the Existing Credit Agreement shall be provided
with an equal and ratable Lien and (d) the Singapore Credit Agreement may
prohibit the creation of a Lien by the Borrower on the Capital Stock or assets
of members of the Singapore Regional Group to secure the
Obligations.
Investments. Except
to the extent permitted pursuant to paragraph (G) below, neither the
Borrower nor any of its Subsidiaries shall directly or indirectly make or own
any Investment except:
Investments
in cash
and Cash Equivalents;
Permitted
Existing
Investments in an amount not greater than the amount thereof on the Closing
Date;
Investments
in
trade receivables or received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in
the
ordinary course of business;
Investments
consisting of deposit accounts maintained by the Borrower and its
Subsidiaries;
Investments
consisting of non-cash consideration from a sale, assignment, transfer, lease,
conveyance or other disposition of property permitted by Section
7.3(B);
Investments
in any
consolidated Subsidiaries (other than joint ventures);
Investments
in
joint ventures and nonconsolidated Subsidiaries in an aggregate amount not
to
exceed $50,000,000;
Investments
constituting Permitted Acquisitions;
Investments
constituting Indebtedness permitted by Section 7.3(A) or Contingent
Obligations permitted by Section 7.3(E);
Investments
in the
SPVs (a) required in connection with the Receivables Purchase Documents and
(b)
resulting from the transfers permitted by Section 7.3(B)(iii);
and
Investments
in
addition to those referred to elsewhere in this Section 7.3(D) in an
aggregate amount not to exceed $50,000,000.
Contingent
Obligations. None of the Borrower’s Subsidiaries shall directly
or indirectly create or become or be liable with respect to any Contingent
Obligation, except: (i) recourse obligations resulting from endorsement of
negotiable instruments for collection in the ordinary course of business; (ii)
Permitted Existing Contingent Obligations; (iii) obligations, warranties, and
indemnities, not relating to Indebtedness of any Person, which have been or
are
undertaken or made in the ordinary course of business and not for the benefit
of
or in favor of an Affiliate of the Borrower or such Subsidiary; (iv) Contingent
Obligations with respect to surety, appeal and performance bonds obtained by
the
Borrower or any Subsidiary in the ordinary course of business; (v) Contingent
Obligations of the Subsidiary Guarantors under the Subsidiary Guaranty; (vi)
Contingent Obligations of Subsidiaries which are guarantors under a guaranty
of
the Indebtedness evidenced by the Existing Credit Agreement, the Senior Notes
and the Senior Note Purchase Agreements; (vii) Contingent Obligations of the
Borrower or any of its Subsidiaries arising under the Receivables Purchase
Documents; (viii) Contingent Obligations of the Singapore Regional Group under
the Singapore Guarantees; (ix) Contingent Obligations of non-domestic
Subsidiaries represented by guarantees of obligations of other non-domestic
Subsidiaries; (x) Contingent Obligations of Subsidiaries which are guarantors
under a guaranty of Indebtedness permitted under Section 7.3(A)(ix); and
(xi) Contingent Obligations incurred in the ordinary course of business by
any
of the Borrower’s Subsidiaries in respect of obligations of any
Subsidiary.
Conduct
of
Business; New Subsidiaries; Acquisitions. Except as expressly
provided in clause (c) in the definition of “Permitted Acquisition”
below, neither the Borrower nor any of its Subsidiaries shall engage
in any
business other than the businesses engaged in by the Borrower and its
Subsidiaries on the date of such transaction and any business or activities
which are substantially similar, related or incidental thereto. The
Borrower may create, acquire in a Permitted Acquisition or capitalize any
Subsidiary (a “New Subsidiary”) after the date hereof if (i) no Default or
Unmatured Default shall have occurred and be continuing or would result
therefrom; (ii) after such creation, acquisition or capitalization, all of
the
representations and warranties contained herein shall be true and correct;
and
(iii) after such creation, acquisition or capitalization the Borrower shall
be
in compliance with the terms of Sections 7.2(K) and
7.3(Q).
Without
in any way
limiting the foregoing, neither the Borrower nor any of its Subsidiaries shall
make any Acquisitions, other than (x) the Designated Acquisition, subject to
the
conditions specified in this Agreement and (y) other Acquisitions meeting the
following requirements or otherwise approved by the Required Lenders (each
of
such Designated Acquisition or any other Acquisition complying with the
following requirements being referred to as a “Permitted
Acquisition”):
no
Default or
Unmatured Default shall have occurred and be continuing or would result from
such Acquisition or the incurrence of any Indebtedness in connection therewith,
and all of the representations and warranties contained herein shall be true
and
correct on and as of the date such Acquisition with the same effect as though
made on and as of such date;
the
purchase is
consummated on a non-hostile basis pursuant to a negotiated acquisition
agreement approved by the board of directors or other applicable governing
body
of the seller prior to the commencement of such Acquisition; provided,
however, that nothing in this clause (b) shall prevent the
Borrower from enforcing its rights against a seller following a default in
such
seller’s obligations under any such agreement;
the
businesses
being acquired shall be consumer product companies or other businesses that
are
substantially similar, related or incidental to the businesses or activities
engaged in by the Borrower and its Subsidiaries as of the Closing Date, as
well
as suppliers to or distributors of products similar to those of the Borrower
and
its Subsidiaries; provided, however, that the Borrower and its
Subsidiaries shall be permitted to acquire businesses that do not satisfy the
foregoing criteria in this clause (c) so long as the aggregate purchase
price for all such acquisitions does not exceed five percent (5%) of the
Borrower’s consolidated tangible net assets (on a proforma basis)
as of the date of the consummation of such Acquisition; and
prior
to each such
Acquisition, the Borrower shall determine that after giving effect to such
Acquisition and the incurrence of any Indebtedness by the Borrower or any of
its
Subsidiaries, to the extent permitted by Section 7.3(A), in connection
therewith, on a proforma basis using historical audited and
reviewed unaudited financial statements obtained from the seller, broken down
by
fiscal quarter in the Borrower’s reasonable judgment, as if the Acquisition and
such incurrence of Indebtedness had occurred on the first day of the
twelve-month period ending on the last day of the Borrower’s most recently
completed fiscal quarter, the Borrower would have been in compliance with the
financial covenants in Section 7.4 and not otherwise in
Default.
Transactions
with Shareholders and Affiliates. Except for (a) the transactions
set forth on Schedule 7.3(G), (b) Permitted Receivables Transfers and (c)
Investments permitted by Section 7.3(D), neither the Borrower nor any of
its Subsidiaries shall directly or indirectly enter into or permit to exist
any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder or
holders of any of the Equity Interests of the Borrower, or with any Affiliate
of
the Borrower which is not its Subsidiary, on terms that are less favorable
to
the Borrower or any of its Subsidiaries, as applicable, than those that might
be
obtained in an arm’s length transaction at the time from Persons who are not
such a holder or Affiliate.
Restriction
on
Fundamental Changes. Neither the Borrower nor any of its
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of the Borrower’s or any such Subsidiary’s business or
property, whether now or hereafter acquired, except (i) transactions permitted
under Sections 7.3(B) or 7.3(F) (including the liquidation, winding up
or dissolution of a Subsidiary in connection with a transaction
permitted under Section 7.3(B)), and (ii) a Subsidiary of the Borrower may
be merged into, liquidated into or consolidated with the Borrower (in which
case
the Borrower shall be the surviving corporation) or any wholly-owned Subsidiary
of the Borrower; provided if a Subsidiary Guarantor is merged into,
liquidated into or consolidated with another Subsidiary of the Borrower, the
surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to
the
extent required under Section 7.2(K) or 7.3(Q)
hereunder.
Sales
and
Leasebacks. Neither the Borrower nor any of its Subsidiaries
shall become liable, directly, by assumption or by Contingent Obligation, with
respect to any lease, whether an operating lease or a Capitalized Lease, of
any
property (whether real or personal or mixed), (i) which it or one of its
Subsidiaries sold or transferred or is to sell or transfer to any other Person,
or (ii) which it or one of its Subsidiaries intends to use for substantially
the
same purposes as any other property which has been or is to be sold or
transferred by it or one of its Subsidiaries to any other Person in connection
with such lease, unless in either case the sale involved is not prohibited
under
Section 7.3(B) and the lease involved is not prohibited under Section
7.3(A).
Margin
Regulations; Use of Proceeds. Neither the Borrower nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement (i) to purchase or carry Margin Stock in violation
of any of the regulations of the Board, including Regulations T, U and X or
(ii)
for any purpose other than to finance the Designated Acquisition (including
to
pay merger consideration owing to former shareholders of the Target and to
refinance certain existing indebtedness of the Target and its Subsidiaries)
and
the transaction costs and expenses incurred in connection
therewith.
ERISA. The
Borrower shall not:
permit
to exist any
accumulated funding deficiency (as defined in Sections 302 of ERISA and 412
of
the Code), with respect to any Benefit Plan, whether or not waived;
terminate,
or
permit any Controlled Group member to terminate, any Benefit Plan which would
result in liability of the Borrower or any Controlled Group member under Title
IV of ERISA;
fail,
or permit any
Controlled Group member to fail, to pay any required installment or any other
payment required under Section 412 of the Code on or before the due date for
such installment or other payment; or
permit
any unfunded
liabilities with respect to any Foreign Pension Plan;
except
where such
transactions, events, circumstances, or failures are not, individually or in
the
aggregate, reasonably expected to result in liability individually or in the
aggregate in excess of $25,000,000 or have a Material Adverse
Effect.
Corporate
Documents. Neither the Borrower nor any of its Subsidiaries shall
amend, modify or otherwise change any of the terms or provisions in any of
their
respective constituent documents as in effect on the date hereof in any manner
adverse to the interests of the Lenders, without the prior written consent
of
the Required Lenders.
Fiscal
Year. Neither the Borrower nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from
a
twelve-month period ending September 30 of each year.
Subsidiary
Covenants. The Borrower will not, and will not permit any
Subsidiary to, create or otherwise cause to become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to
pay
dividends or make any other distribution on its stock, redeem or repurchase
its
stock, make any other similar payment or distribution, pay any Indebtedness
or
other obligation owed to the Borrower or any other Subsidiary, make loans or
advances or other Investments in the Borrower or any other Subsidiary, to sell,
transfer or otherwise convey any of its property to the Borrower or any other
Subsidiary or merge, consolidate with or liquidate into the Borrower or any
other Subsidiary other than pursuant to (i) this Agreement or the Existing
Credit Agreement, (ii) the Receivables Purchase Documents and (iii) the
Singapore Credit Agreement; provided, that the Singapore Credit Agreement
shall not in any way prohibit any member of the Singapore Regional Group from
paying dividends or making any other distribution on its stock, redeeming or
repurchasing its stock, making any other similar payment or distribution, or
paying any Indebtedness or other obligation owed to the Borrower or any
Subsidiary Guarantor.
Hedging
Obligations. The Borrower shall not and shall not permit any of
its Subsidiaries to enter into any Hedging Arrangements other than Hedging
Arrangements entered into by the Borrower or its Subsidiaries pursuant to which
the Borrower or such Subsidiary has hedged its or its Subsidiaries’ reasonably
estimated interest rate, foreign currency or commodity exposure and which are
of
a non-speculative nature.
Issuance
of
Disqualified Stock. From and after the Closing Date, neither the
Borrower, nor any of its Subsidiaries shall issue any Disqualified
Stock. All issued and outstanding Disqualified Stock shall be treated
as Indebtedness for borrowed money for all purposes of this Agreement, and
the
amount of such deemed Indebtedness shall be the aggregate amount of the
liquidation preference of such Disqualified Stock.
Non-Guarantor
Subsidiaries. The Borrower will not at any time permit the
aggregate assets of all of the Borrower’s domestic consolidated Subsidiaries
(other than the SPVs) which are not Subsidiary Guarantors to exceed ten percent
(10%) of Consolidated Domestic Assets of the Borrower and its consolidated
Subsidiaries (other than the SPVs). The Borrower shall not permit any
of its Subsidiaries (including non-domestic Subsidiaries) to guaranty any
Indebtedness of the Borrower for which the Borrower is a primary obligor (other
than solely as a guarantor of obligations of its Affiliates or other third
parties) other than the Indebtedness hereunder unless each such Subsidiary
is a
Subsidiary Guarantor under the Subsidiary Guaranty.
Temporary
Suspension of Certain Terms of the Negative
Covenants. Notwithstanding anything to the contrary in this
Section 7.3, until the date on which amendments to, or consents under,
each of the Existing Credit Facility and the Singapore Credit Facility have
been
delivered to the Administrative Agent, (a) the terms of Section 7.3(C)
shall not prohibit the creation of a Lien by the Borrower of any of it
Subsidiaries on any of its properties or other assets in favor of the agent
under the Existing Credit Facility (for the benefit of itself and the lenders
thereunder) or the agent under the Singapore Credit Facility (for the benefit
of
itself and the lenders thereunder), in either case, as collateral for the
obligations under such facility, (b) the last paragraph of Section 7.3(C)
shall not apply to the Existing Credit Facility or the Singapore Credit
Facility, (c) Section 7.3(Q) shall have no force or effect and (d) the
terms of this Section 7.3 shall not encumber or restrict the ability of
any Subsidiary to pay dividends or make any other distribution on its stock,
redeem or repurchase its stock, make any other similar payment or distribution,
pay any Indebtedness or other obligation owed to the Borrower or any other
Subsidiary, make loans or advances or other Investments in the Borrower or
any
other Subsidiary, to sell, transfer or otherwise convey any of its property
to
the Borrower or any other Subsidiary or merge, consolidate with or liquidate
into the Borrower or any other Subsidiary. For the avoidance of
doubt, it is understood and agreed that (x) the Advance shall not be made
hereunder unless and until fully executed and effective amendments to, or
consents under, the Existing Credit Facility and the Singapore Credit Facility
have been delivered to the Administrative Agent and the Lenders as required
by
Section 5.1 and (y) on and as of the Funding Date, this Section
7.3(R) shall be of no further force and effect, including for the purpose of
confirming the absence of any Default or Unmatured Default as a condition to
making the Advance as required by Section 5.1.
Financial
Covenants. The Borrower shall comply with the
following:
Maximum
Leverage
Ratio. The Borrower shall not permit the ratio of (i) the sum of
all Indebtedness of the Borrower and its Subsidiaries minus, solely for the
purposes of the calculation of the Covenant Leverage Ratio pursuant to this
Section 7.4(A), Receivables Facility Attributed Indebtedness to (ii)
EBITDA (such ratio, the “Covenant Leverage Ratio”) at any time to be greater
than 3.50 to 1.00; provided that if, at the end of any fiscal quarter, the
Covenant Leverage Ratio is greater than 3.50 to 1.00 and the Borrower has
entered into a transaction or transactions, including, but not limited to,
Permitted Acquisitions or repurchases of the Borrower’s Capital Stock within the
two most recently ended fiscal quarters (including such fiscal quarter) (a
fiscal quarter in which all such conditions are satisfied, a “Trigger Quarter”),
then the Covenant Leverage Ratio may be greater than 3.50 to 1.00 but shall
not
exceed 4.00 to 1.00 for such Trigger Quarter and the next succeeding three
fiscal quarters; provided that, following the occurrence of a Trigger
Quarter, no subsequent Trigger Quarter shall be deemed to have occurred or
to
exist for any reason unless and until the Covenant Leverage Ratio has returned
to less than or equal to 3.50 to 1.00 as of the end of at least one fiscal
quarter following the occurrence of such initial Trigger Quarter;
provided, further that, the Covenant Leverage Ratio shall return
to less than or equal to 3.50 to 1.00 no later than the fourth fiscal quarter
after such initial Trigger Quarter. The Covenant Leverage Ratio shall
be calculated as of the last day of each fiscal quarter based upon (a) for
Indebtedness and Receivables Facility Attributed Indebtedness, Indebtedness
and
Receivables Facility Attributed Indebtedness, as the case may be, as of the
last
day of each such fiscal quarter; and (b) for EBITDA, the actual amount for
the
four-quarter period ending on such day, calculated, with respect to Permitted
Acquisitions, on a proforma basis using unadjusted historical
audited and reviewed unaudited financial statements obtained from the seller
(with the EBITDA component thereof broken down by fiscal quarter in the
Borrower’s reasonable judgment).
Minimum
Interest
Expense Coverage Ratio. The Borrower shall maintain a ratio (the
“Interest Expense Coverage Ratio”) for any applicable period of (a) EBIT for
such period to (b) Interest Expense for such period of greater than 3.00 to
1.00
for each fiscal quarter. The Interest Expense Coverage Ratio shall be
calculated as of the last day of each fiscal quarter for the four-quarter period
ending on such day, calculated, with respect to Permitted Acquisitions, on
a
proforma basis using unadjusted historical audited and reviewed
unaudited financial statements obtained from the seller (with the EBITDA
component thereof broken down by fiscal quarter in the Borrower’s reasonable
judgment).
Defaults. Each
of the following occurrences shall constitute a Default under this
Agreement:
Failure
to Make
Payments When Due. The Borrower shall (i) fail to pay when due
any of the Obligations consisting of principal with respect to the Loans or
(ii)
shall fail to pay within five (5) Business Days of the date when due any of
the
other Obligations under this Agreement or the other Loan Documents.
Breach
of
Certain Covenants. The Borrower shall fail duly and punctually to
perform or observe any agreement, covenant or obligation binding on the Borrower
or there shall otherwise be a breach of any covenant under:
Sections
7.1
or 7.2 (other than Section 7.2(K)) and such failure or breach
shall continue unremedied for thirty (30) days after the earlier to occur of
(a)
the date on which written notice from the Administrative Agent or any Lender
is
received by the Borrower of such breach and (b) the date on which a member
of
the Senior Management Team of the Borrower or any Subsidiary Guarantor had
knowledge of the existence of such breach or should have known of the existence
of such breach; or
Sections
7.2(K),
7.3 or 7.4.
Breach
of
Representation or Warranty. Any representation or warranty made
or deemed made by the Borrower to the Administrative Agent or any Lender herein
or by the Borrower or any of its Subsidiaries in any of the other Loan Documents
or in any statement or certificate at any time given by any such Person pursuant
to any of the Loan Documents shall be false or misleading in any material
respect on the date as of which made (or deemed made).
Other
Defaults. The Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered
by
paragraphs (A) or (B) of this Section 8.1), or the Borrower
or any of its Subsidiaries shall default in the performance of or compliance
with any term contained in any of the other Loan Documents, and such default
shall continue for thirty (30) days after the earlier to occur of (a) the date
on which written notice from the Administrative Agent or any Lender is received
by the Borrower of such breach and (b) the date on which a member of the Senior
Management Team of the Borrower or any Subsidiary Guarantor had knowledge of
the
existence of such breach or should have known of the existence of such
breach.
Default
as to
Other Indebtedness. The Borrower or any of its Subsidiaries shall
fail to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), beyond any period of grace
provided, with respect to any Indebtedness (other than Indebtedness hereunder)
which individually or together with other such Indebtedness as to which any
such
failure exists (other than hereunder) constitutes Material Indebtedness; or
any
breach, default or event of default (including any “Amortization Event” or event
of like import in connection with the Receivables Purchase Facility) shall
occur, or any other condition shall exist under any instrument, agreement or
indenture pertaining to any such Material Indebtedness having such aggregate
outstanding principal amount, beyond any period of grace, if any, provided
with
respect thereto, if the effect thereof is to cause an acceleration, mandatory
redemption, a requirement that the Borrower or any of its Subsidiaries offer
to
purchase such Material Indebtedness or other required repurchase of such
Material Indebtedness, or permit the holder(s) of such Material Indebtedness
to
accelerate the maturity of any such Material Indebtedness or require a
redemption or other repurchase of such Material Indebtedness; or any such
Material Indebtedness shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or otherwise
repurchased by the Borrower or any of its Subsidiaries (other than by a
regularly scheduled required prepayment) prior to the stated maturity
thereof.
Involuntary
Bankruptcy; Appointment of Receiver, Etc.
An
involuntary case
shall be commenced against the Borrower or any of the Borrower’s Material
Subsidiaries and the petition shall not be dismissed, stayed, bonded or
discharged within sixty (60) days after commencement of the case; or a court
having jurisdiction in the premises shall enter a decree or order for relief
in
respect of the Borrower or any of the Borrower’s Material
Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency
or other similar law now or hereinafter in effect; or any other similar relief
shall be granted under any applicable federal, state, local or foreign
law.
A
decree or order
of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over the Borrower or any of the Borrower’s Material Subsidiaries
or over all or a substantial part of the property of the Borrower or any of
the
Borrower’s Material Subsidiaries shall be entered; or an interim receiver,
trustee or other custodian of the Borrower or any of the Borrower’s Material
Subsidiaries or of all or a substantial part of the property of the Borrower
or
any of the Borrower’s Material Subsidiaries shall be appointed or a warrant of
attachment, execution or similar process against any substantial part of the
property of the Borrower or any of the Borrower’s Material Subsidiaries shall be
issued and any such event shall not be stayed, dismissed, bonded or discharged
within sixty (60) days after entry, appointment or issuance.
Voluntary
Bankruptcy; Appointment of Receiver, Etc. The Borrower or any of
the Borrower’s Material Subsidiaries (i) shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in
effect, (ii) shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under
any
such law, (iii) shall consent to the appointment of or taking possession by
a
receiver, trustee or other custodian for all or a substantial part of its
property, (iv) shall make any assignment for the benefit of creditors, (v)
shall
take any corporate action to authorize any of the foregoing or (vi) is generally
not paying, or admits in writing its inability to pay, its debts as they become
due.
Judgments
and
Attachments. Any money judgment(s) (other than a money judgment
covered by insurance as to which the insurance company has not disclaimed or
reserved the right to disclaim coverage), writ or warrant of attachment, or
similar process against the Borrower or any of its Subsidiaries or any of their
respective assets involving in any single case or in the aggregate an amount
in
excess of $30,000,000 is or are entered and shall remain undischarged,
unvacated, unbonded or unstayed for a period of sixty (60) days or in any event
later than fifteen (15) days prior to the date of any proposed sale
thereunder.
Dissolution. Any
order, judgment or decree shall be entered against the Borrower decreeing its
involuntary dissolution or split up and such order shall remain undischarged
and
unstayed for a period in excess of sixty (60) days; or the Borrower shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement.
Loan
Documents. At any time, for any reason, any Loan Document as a
whole that materially affects the ability of the Administrative Agent, or any
of
the Lenders to enforce the Obligations ceases to be in full force and effect
or
the Borrower or any of the Borrower’s Subsidiaries party thereto seeks to
repudiate its obligations under any Loan Document.
Termination
Event. Any Termination Event occurs which the Required Lenders
believe is reasonably likely to subject either the Borrower or any of its
Subsidiaries to liability individually or in the aggregate in excess of
$30,000,000.
Waiver
of
Minimum Funding Standard. If the plan administrator of any Plan
applies under Section 412(d) of the Code for a waiver of the minimum funding
standards of Section 412(a) of the Code and the Required Lenders believe the
substantial business hardship upon which the application for the waiver is
based
could reasonably be expected to subject either the Borrower or any of its
Subsidiaries to liability individually or in the aggregate in excess of
$30,000,000.
Change
of
Control. A Change of Control shall occur.
[Reserved.]
Environmental
Matters. The Borrower or any of its Subsidiaries shall be the
subject of any proceeding or investigation pertaining to (i) the Release by
the
Borrower or any of its Subsidiaries of any Contaminant into the environment,
(ii) the liability of the Borrower or any of its Subsidiaries arising from
the
Release by any other Person of any Contaminant into the environment, or (iii)
any violation of any Environmental, Health or Safety Requirements of Law which
by the Borrower or any of its Subsidiaries, which, in any case, has or is
reasonably likely to subject either the Borrower or its Subsidiaries to
liability individually or in the aggregate in excess of
$30,000,000.
Subsidiary
Guarantor Revocation. Any Subsidiary Guarantor shall terminate or
revoke any of its obligations under the Subsidiary Guaranty or breach any of
the
material terms of such Subsidiary Guaranty.
Receivables
Purchase Document Events. A “Termination Event” (as defined in
the 2000 Receivables Sale Agreement), an “Amortization Event” (as defined in the
2000 Receivables Purchase Agreement) or any other breach or event of like import
under any replacement Receivables Purchase Documents permitted hereby (any
such
event, a “Receivables Facility Trigger Event”) shall (i) occur with respect to
the conduct or performance of (a) any Originator, (b) any servicer of the
Receivables (so long as such servicer is the Borrower or a Subsidiary thereof)
under the Receivables Purchase Documents, (c) any guarantor of the obligations
of any Originator or servicer under the Receivables Purchase Documents or (d)
any of their respective Subsidiaries other than an SPV and (ii) result in the
termination of reinvestments of collections or proceeds of Receivables and
Related Security under any agreements evidencing Receivables Facility Attributed
Indebtedness (it being understood and agreed that the occurrence of a
Receivables Facility Trigger Event resulting solely from (x) the conduct or
performance of an SPV and/or (y) the performance or quality of the Receivables
securing the obligations under the Receivables Purchase Documents, taken
together with the circumstances described in the foregoing clause (ii), shall
not give rise to a Default under this Section 8.1(Q)).
A
Default shall be
deemed “continuing” until cured or until waived in writing in accordance with
Section 9.3.
Termination
of
Commitments; Acceleration. If any Default described in Section
8.1(F), (G) or (I) occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder shall automatically terminate
and the Obligations shall immediately become due and payable without any
election or action on the part of the Administrative Agent or any
Lender. If any other Default occurs, the Required Lenders may
terminate or suspend the obligations of the Lenders to make Loans hereunder
or
declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower expressly
waives.
Defaulting
Lender. In the event that any Lender fails to fund its Pro Rata
Share of the Advance requested or deemed requested by the Borrower, which such
Lender is obligated to fund under the terms of this Agreement (the funded
portion of the Advance being hereinafter referred to as a “Non Pro Rata Loan”),
until the earlier of such Lender’s cure of such failure and the termination of
the Commitments, the proceeds of all amounts thereafter repaid to the
Administrative Agent by the Borrower and otherwise required to be applied to
such Lender’s share of all other Obligations pursuant to the terms of this
Agreement shall be advanced to the Borrower by the Administrative Agent on
behalf of such Lender to cure, in full or in part, such failure by such Lender,
but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in
this Agreement to the contrary:
the
foregoing
provisions of this Section 9.2 shall apply only with respect to the
proceeds of payments of Obligations and shall not affect the conversion or
continuation of Loans pursuant to Section 2.9;
any
such Lender
shall be deemed to have cured its failure to fund its Pro Rata Share, of the
Advance at such time as an amount equal to such Lender’s original Pro Rata Share
of the requested principal portion of the Advance is fully funded to the
Borrower, whether made by such Lender itself or by operation of the terms of
this Section 9.2, and whether or not the Non Pro Rata Loan with respect
thereto has been repaid, converted or continued;
amounts
advanced to
the Borrower to cure, in full or in part, any such Lender’s failure to fund its
Pro Rata Share of the Advance (“Cure Loans”) shall bear interest at the rate
applicable to Floating Rate Loans in effect from time to time, and for all
other
purposes of this Agreement shall be treated as if they were Floating Rate
Loans;
regardless
of
whether or not a Default has occurred or is continuing, and notwithstanding
the
instructions of the Borrower as to its desired application, all repayments
of
principal which, in accordance with the other terms of this Agreement, would
be
applied to the outstanding Floating Rate Loans shall be applied first,
ratably to all Floating Rate Loans constituting Non Pro Rata Loans,
second, ratably to Floating Rate Loans other than those constituting Non
Pro Rata Loans or Cure Loans and, third, ratably to Floating Rate Loans
constituting Cure Loans;
for
so long as and
until the earlier of any such Lender’s cure of the failure to fund its Pro Rata
Share of the Advance and the termination of the Commitments, the term “Required
Lenders” for purposes of this Agreement shall mean Lenders (excluding all
Lenders whose failure to fund their respective Pro Rata Share of the Advance
have not been so cured) whose Pro Rata Shares represent greater than fifty
percent (50%) of the aggregate Pro Rata Shares of such Lenders; and
for
so long as and
until any such Lender’s failure to fund its Pro Rata Share of the Advance is
cured in accordance with Section 9.2(ii), such Lender shall not be
entitled to any Facility Fees with respect to its Commitment or Loans, which
Facility Fees shall accrue in favor of the Lenders which have funded their
respective Pro Rata Share of the Advance, and shall be allocated among such
performing Lenders ratably based upon their relative Commitments or
Loans.
Amendments. Subject
to the provisions of this Article IX, the Required Lenders (or the
Administrative Agent with the consent in writing of the Required Lenders) and
the Borrower may enter into agreements supplemental hereto for the purpose
of
adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of each Lender (which is not a defaulting
Lender under the provisions of Section 9.2) adversely affected thereby
(which shall be deemed to include all Lenders in the case of clauses
(iii), (v), (vi) or (viii) below):
Postpone
or extend
the Termination Date or any other date fixed for any payment of principal of,
or
interest on, the Loans or any fees or other amounts payable to such Lender
(other than any modifications of the provisions relating to amounts, timing
or
application of prepayments of the Loans and other Obligations, which
modifications shall require the approval only of the Required
Lenders).
Reduce
the
principal amount of any Loans, or reduce the rate or extend the time of payment
of interest or fees thereon (other than a waiver of the application of the
default rate of interest pursuant to Section 2.10 hereof).
Reduce
the
percentage specified in the definition of Required Lenders or any other
percentage of Lenders specified to be the applicable percentage in this
Agreement to act on specified matters or amend the definitions of “Required
Lenders” or “Pro Rata Share”.
Increase
the amount
of the Commitment of such Lender hereunder or increase such Lender’s Pro Rata
Share.
Permit
the Borrower
to assign its rights under this Agreement.
Other
than pursuant
to a transaction permitted by the terms of this Agreement, release any guarantor
from its obligations under the Subsidiary Guaranty.
Waive
or amend any
of the conditions set forth in Section 5.1.
Amend
Section
12.1 or 12.2.
Amend
this
Section 9.3.
No
amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent. The Administrative Agent may waive payment of the fee required
under Section 13.3(B)(iii) without obtaining the consent of any of the
Lenders.
Preservation
of
Rights. No delay or omission of the Lenders or the Administrative
Agent to exercise any right under the Loan Documents shall impair such right
or
be construed to be a waiver of any Default or an acquiescence therein, and
the
making of a Loan notwithstanding the existence of a Default or the inability
of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of
the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to Section 9.3,
and then only to the extent in such writing specifically set
forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent and the Lenders until all of the Obligations (other than contingent
indemnity obligations) shall have been fully and indefeasibly paid and satisfied
in cash and all financing arrangements among the Borrower and the Lenders shall
have been terminated.
Survival
of
Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive delivery of this Agreement
and the making of the Loans herein contemplated.
Governmental
Regulation. Anything contained in this Agreement to the contrary
notwithstanding, no Lender shall be obligated to extend credit to the Borrower
in violation of any limitation or prohibition provided by any applicable statute
or regulation.
Performance
of
Obligations. The Borrower agrees that after the occurrence and
during the continuance of a Default, the Administrative Agent may, but shall
have no obligation to, make any payment or perform any act required of the
Borrower under any Loan Document to the extent the Administrative Agent
determines that such action shall be necessary or advisable in order to protect
or preserve the rights of the Lenders hereunder. The Administrative
Agent shall use its reasonable efforts to give the Borrower notice of any action
taken under this Section 10.3 prior to the taking of such action or
promptly thereafter provided the failure to give such notice shall not affect
the Borrower’s obligations in respect thereof. The Borrower agrees to
pay the Administrative Agent, upon demand, the principal amount of all funds
advanced by the Administrative Agent under this Section 10.3, together
with interest thereon at the rate from time to time applicable to Floating
Rate
Loans from the date of such advance until the outstanding principal balance
thereof is paid in full. If the Borrower fails to make payment in
respect of any such advance under this Section 10.3 within one (1)
Business Day after the date the Borrower receives written demand therefor from
the Administrative Agent, the Administrative Agent shall promptly notify each
Lender and each Lender agrees that it shall thereupon make available to the
Administrative Agent, in Dollars in immediately available funds, the amount
equal to such Lender’s Pro Rata Share of such advance. If such funds
are not made available to the Administrative Agent by such Lender within one
(1)
Business Day after the Administrative Agent’s demand therefor, the
Administrative Agent will be entitled to recover any such amount from such
Lender together with interest thereon at the Federal Funds Effective Rate for
each day during the period commencing on the date of such demand and ending
on
the date such amount is received. The failure of any Lender to make
available to the Administrative Agent its Pro Rata Share of any such
unreimbursed advance under this Section 10.3 shall neither relieve any
other Lender of its obligation hereunder to make available to the Administrative
Agent such other Lender’s Pro Rata Share of such advance on the date such
payment is to be made nor increase the obligation of any other Lender to make
such payment to the Administrative Agent. All outstanding principal
of, and interest on, advances made under this Section 10.3 shall
constitute Obligations subject to the terms of this Agreement until paid in
full
by the Borrower.
Headings. Section
headings in the Loan Documents are for convenience of reference only, and shall
not govern the interpretation of any of the provisions of the Loan
Documents.
Entire
Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent and the Lenders
and
supersede all prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter thereof
except as specifically set forth in a side letter among the Agents, the
Arrangers and the Borrower, dated as of the Closing Date.
Several
Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to
which
the Administrative Agent is authorized to act as such). The failure
of any Lender to perform any of its obligations hereunder shall not relieve
any
other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns.
Expenses;
Indemnification.
Expenses. The
Borrower shall reimburse the Administrative Agent and the Arrangers for any
reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys’ and paralegals’ fees and time charges of attorneys and
paralegals for the Administrative Agent and the Arrangers, which attorneys
and
paralegals may be employees of the Administrative Agent or the Arrangers) paid
or incurred by the Administrative Agent or the Arrangers in connection with
the
preparation, negotiation, execution, delivery, syndication, review, amendment
modification and, after the occurrence and during the continuance of a Default
or an Unmatured Default, administration of the Loan Documents. The
Borrower also agrees to reimburse the Administrative Agent and the Arrangers
and
the Lenders for any reasonable costs and out-of-pocket expenses (including
reasonable attorneys’ and paralegals’ fees and time charges of attorneys and
paralegals for the Administrative Agent and the Arrangers and the Lenders,
which
attorneys and paralegals may be employees of the Administrative Agent or the
Arrangers or the Lenders) paid or incurred by the Administrative Agent or the
Arrangers or any Lender in connection with the collection of the Obligations
and
enforcement of the Loan Documents; provided, that after the occurrence
and during the continuance of a Default, the Borrower agrees to reimburse the
Administrative Agent, the Arrangers and the Lenders for all such costs and
out-of-pocket expenses, whether or not reasonable.
Indemnity. The
Borrower further agrees to defend, protect, indemnify, and hold harmless the
Administrative Agent, each Arranger and each and all of the Lenders and each
of
their respective Affiliates, and each of the Administrative Agent or such
Arranger’s, Lender’s, or Affiliate’s respective officers, directors, trustees,
investment advisors, employees, attorneys and agents (including, without
limitation, those retained in connection with the satisfaction or attempted
satisfaction of any of the conditions set forth in Article V)
(collectively, the “Indemnitees”) from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitees in connection with
any investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by,
or
asserted against such Indemnitees in any manner relating to or arising out
of:
this
Agreement, the
other Loan Documents or any of the Transaction Documents, or any act, event
or
transaction related or attendant thereto or to the Transactions and the making
of the Loans hereunder, the management of such Loans, the use or intended use
of
the proceeds of the Loans hereunder, or any of the other transactions
contemplated by the Transaction Documents; or
any
liabilities,
obligations, responsibilities, losses, damages, personal injury, death, punitive
damages, economic damages, consequential damages, treble damages, intentional,
willful or wanton injury, damage or threat to the environment, natural resources
or public health or welfare, costs and expenses (including, without limitation,
attorney, expert and consulting fees and costs of investigation, feasibility
or
remedial action studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent, past, present
or
future relating to violation of any Environmental, Health or Safety Requirements
of Law arising from or in connection with the past, present or future operations
of the Borrower, its Subsidiaries or any of their respective predecessors in
interest, or, the past, present or future environmental, health or safety
condition of any respective property of the Borrower or its Subsidiaries, the
presence of asbestos-containing materials at any respective property of the
Borrower or its Subsidiaries or the Release or threatened Release of any
Contaminant into the environment (collectively, the “Indemnified
Matters”);
provided,
however, the Borrower shall have no obligation to an Indemnitee hereunder
with respect to Indemnified Matters caused by or resulting from the willful
misconduct or gross negligence of such Indemnitee with respect to the Loan
Documents, as determined by the final non-appealed judgment of a court of
competent jurisdiction. If the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it
is
violative of any law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
Each
Indemnitee,
with respect to any action against it in respect of which indemnity may be
sought under this Section, shall give written notice of the commencement of
such
action to the Borrower within a reasonable time after such Indemnitee is made
a
party to such action. Upon receipt of any such notice by the
Borrower, unless such Indemnitee shall be advised by its counsel that there
are
or may be legal defenses available to such Indemnitee that are different from,
in addition to, or in conflict with, the defenses available to the Borrower
or
any of its Subsidiaries, the Borrower may participate with the Indemnitee in
the
defense of such Indemnified Matter, including the employment of counsel
consented to by such Indemnitee (which consent shall not be unreasonably
withheld); provided, however, nothing provided herein
shall entitle (a) the Borrower or any of its Subsidiaries to assume the defense
of such Indemnified Matter or (b) any Indemnitee to effect any settlement in
respect of any indemnified matter without the Borrower’s consent, such consent
not to be unreasonably withheld.
Waiver
of
Certain Claims; Settlement of Claims. The Borrower further agrees
to assert no claim against any of the Indemnitees on any theory of liability
seeking consequential, special, indirect, exemplary or punitive
damages. No settlement of any claim asserted against or likely to be
asserted against an Indemnitee shall be entered into by the Borrower or any
if
its Subsidiaries with respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transactions evidenced by this
Agreement, the other Loan Documents or in connection with the Transactions
(whether or not the Administrative Agent or any Lender or any Indemnitee is
a
party thereto) unless such settlement releases such Indemnitee from any and
all
liability with respect thereto.
Survival
of
Agreements. The obligations and agreements of the Borrower under
this Section 10.7 shall survive the termination of this
Agreement.
Numbers
of
Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to
each
of the Lenders.
Accounting. Except
as provided to the contrary herein, all accounting terms used herein shall
be
interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles. If any changes in
generally accepted accounting principles are hereafter required or permitted
and
are adopted by the Borrower or any of its Subsidiaries with the agreement of
its
independent certified public accountants and such changes result in a change
in
the method of calculation of any of the financial covenants, tests, restrictions
or standards herein or in the related definitions or terms used therein
(“Accounting Changes”), the parties hereto agree, at the Borrower’s request, to
enter into negotiations, in good faith, in order to amend such provisions in
a
credit neutral manner so as to reflect equitably such changes with the desired
result that the criteria for evaluating the Borrower’s and its Subsidiaries’
financial condition shall be the same after such changes as if such changes
had
not been made; provided, however, until such provisions are
amended in a manner reasonably satisfactory to the Administrative Agent and
the
Required Lenders, no Accounting Change shall be given effect in such
calculations and all financial statements and reports required to be delivered
hereunder shall be prepared in accordance with Agreement Accounting Principles
without taking into account such Accounting Changes. In the event
such amendment is entered into, all references in this Agreement to Agreement
Accounting Principles shall mean generally accepted accounting principles as
of
the date of such amendment.
Severability
of
Provisions. Any provision in any Loan Document that is held to be
inoperative, unenforceable, or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation, enforceability,
or
validity of that provision in any other jurisdiction, and to this end the
provisions of all Loan Documents are declared to be severable.
Nonliability
of
Lenders. The relationship between the Borrower and the Lenders
and the Administrative Agent shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have
any fiduciary responsibilities to the Borrower. Neither the
Administrative Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with
any
phase of the Borrower’s business or operations.
GOVERNING
LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF
OF ITSELF AND THE LENDERS, AT NEW YORK, NEW YORK BY ACKNOWLEDGING AND AGREEING
TO IT THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM
IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE GOVERNED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
CONSENT
TO
JURISDICTION; JURY TRIAL.
EXCLUSIVE
JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK. EACH OF THE
PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION
(A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING
THE DISPUTE.
OTHER
JURISDICTIONS. THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED
AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH
PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWER OR (2) IN ORDER
TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON ANY
SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
IN
FAVOR OF SUCH PERSON BUT SHALL ONLY BE PERMITTED TO BRING ANY SUCH PERMISSIVE
COUNTERCLAIM IN A PROCEEDING BROUGHT PURSUANT TO CLAUSE
(A). THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
VENUE. THE
BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUMNONCONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
WAIVER
OF JURY
TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL
TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR
ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR
A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
ADVICE
OF
COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS
OF
SECTION 10.7 AND THIS SECTION 10.13, WITH ITS
COUNSEL.
Subordination
of
Intercompany Indebtedness. The Borrower agrees that any and all
claims of the Borrower against any of its Subsidiaries that is a Subsidiary
Guarantor with respect to any “Intercompany Indebtedness” (as hereinafter
defined), any endorser, obligor or any other guarantor of all or any part of
the
Obligations, or against any of its properties shall be subordinate and subject
in right of payment to the prior payment, in full and in cash, of all
Obligations; provided that, and not in contravention of the foregoing, so
long as no Default has occurred and is continuing the Borrower may make loans
to
and receive payments in the ordinary course with respect to such Intercompany
Indebtedness from each such Subsidiary Guarantor to the extent permitted by
the
terms of this Agreement and the other Loan Documents. Notwithstanding
any right of the Borrower to ask, demand, xxx for, take or receive any payment
from any Subsidiary Guarantor, all rights, liens and security interests of
the
Borrower, whether now or hereafter arising and howsoever existing, in any assets
of any Subsidiary Guarantor shall be and are subordinated to the rights of
the
Holders of Obligations and the Administrative Agent in those
assets. The Borrower shall have no right to possession of any such
asset or to foreclose upon any such asset, whether by judicial action or
otherwise, unless and until all of the Obligations (other than contingent
indemnity obligations) shall have been fully paid and satisfied (in cash) and
all financing arrangements pursuant to any Loan Document among the Borrower
and
the Holders of Obligations (or any affiliate thereof) have been
terminated. If all or any part of the assets of any Subsidiary
Guarantor, or the proceeds thereof, are subject to any distribution, division
or
application to the creditors of such Subsidiary Guarantor, whether partial
or
complete, voluntary or involuntary, and whether by reason of liquidation,
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding, or if the business of any such Subsidiary
Guarantor is dissolved or if substantially all of the assets of any such
Subsidiary Guarantor are sold, then, and in any such event (such events being
herein referred to as an “Insolvency Event”), any payment or distribution of any
kind or character, either in cash, securities or other property, which shall
be
payable or deliverable upon or with respect to any indebtedness of any
Subsidiary Guarantor to the Borrower (“Intercompany Indebtedness”) shall be paid
or delivered directly to the Administrative Agent for application on any of
the
Obligations, due or to become due, until such Obligations (other than contingent
indemnity obligations) shall have first been fully paid and satisfied (in
cash). Should any payment, distribution, security or instrument or
proceeds thereof be received by the Borrower upon or with respect to the
Intercompany Indebtedness after an Insolvency Event prior to the satisfaction
of
all of the Obligations (other than contingent indemnity obligations) and the
termination of all financing arrangements pursuant to any Loan Document among
the Borrower and the holders of Obligations (and their affiliates), the Borrower
shall receive and hold the same in trust, as trustee, for the benefit of the
Holders of Obligations and shall forthwith deliver the same to the
Administrative Agent, for the benefit of such Persons, in precisely the form
received (except for the endorsement or assignment of the Borrower where
necessary), for application to any of the Obligations, due or not due, and,
until so delivered, the same shall be held in trust by the Borrower as the
property of the Holders of Obligations. If the Borrower fails to make
any such endorsement or assignment to the Administrative Agent, the
Administrative Agent or any of its officers or employees are irrevocably
authorized to make the same. The Borrower agrees that until the
Obligations (other than the contingent indemnity obligations) have been paid
in
full (in cash) and satisfied and all financing arrangements pursuant to any
Loan
Document among the Borrower and the Holders of Obligations (and their
affiliates) have been terminated, the Borrower will not assign or transfer
to
any Person (other than the Administrative Agent) any claim the Borrower has
or
may have against any Subsidiary Guarantor.
Appointment
and
Authorization. Each of the Lenders hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent
to
take such actions on its behalf and to exercise such powers as are delegated
to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
Administrative
Agent and Affiliates. The bank serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not
the
Administrative Agent, and such bank and its Affiliates may accept deposits
from,
lend money to and generally engage in any kind of business with the Borrower
or
any Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
Action
by
Administrative Agent and Liability of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary
or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent
is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.3), and (c) except as expressly
set forth herein, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating
to
the Borrower or any of its Subsidiaries that is communicated to or obtained
by
the bank serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.3) or in the absence of
its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower
or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition
set
forth in Article V or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
Reliance
on
Documents and Counsel. The Administrative Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for
the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Employment
of
Agents. The Administrative Agent may perform any and all its
duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise
its
rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with
the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Indemnification. To
the extent that the Borrower fails to pay any amount required to be paid by
it
to the Administrative Agent or the Arrangers under any of the Loan Documents,
including under Section 10.7(A) or (B) of this Agreement, each
Lender severally agrees to pay to the Administrative Agent or the Arrangers,
as
the case may be, ratably in accordance with such Lender’s Pro Rata Share
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided, that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as
the
case may be, was incurred by or asserted against the Administrative Agent or
the
Arrangers, in their respective capacity as such.
Successor
Agent. Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may
resign at any time by notifying the Lenders and the Borrower. Upon
any such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may,
on
behalf of the Lenders, appoint a successor Administrative Agent which shall
be a
bank with an office in New York, New York, or an Affiliate of any such
bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested
with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder,
the provisions of this Article and Section 10.7 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Credit
Decision. Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based
on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or
thereunder.
Administrative
Agent, Arrangers, Syndication Agent, Documentation Agent. None of
the Persons identified on the cover page to this Agreement, the signature pages
to this Agreement or otherwise in this Agreement as a “Syndication Agent,”
“Documentation Agent” or “Arranger” shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than if such Person
is a Lender, those applicable to all Lenders as such. Without
limiting the foregoing, none of the Persons identified on the cover page to
this
Agreement, the signature pages to this Agreement or otherwise in this Agreement
as a “Syndication Agent,” “Documentation Agent” or “Arranger” shall have or be
deemed to have any fiduciary duty to or fiduciary relationship with any
Lender. In addition to the agreement set forth in Section
11.8, each of the Lenders acknowledges that it has not relied, and will not
rely, on any of the Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
Setoff. In
addition to, and without limitation of, any rights of the Lenders under
applicable law, if any Default occurs and is continuing, any indebtedness from
any Lender to the Borrower (including all account balances, whether provisional
or final and whether or not collected or available) may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or not
the
Obligations, or any part hereof, shall then be due.
Ratable
Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans. If
any Lender, whether in connection with setoff or amounts which might be subject
to setoff or otherwise, receives collateral or other protection for its
Obligation or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to the obligations
owing to them. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be
made.
Application
of
Payments. Subject to the provisions of Section 9.2, the
Administrative Agent shall, unless otherwise specified at the direction of
the
Required Lenders which direction shall be consistent with the last sentence
of
this Section 12.3, apply all payments and prepayments in respect of any
Obligations received after the occurrence and during the continuance of a
Default or Unmatured Default in the following order:
first,
to pay
interest on and then principal of any portion of the Loans which the
Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the
Borrower;
second,
to pay
interest on and then principal of any advance made under Section 10.3 for
which the Administrative Agent has not then been paid by the Borrower or
reimbursed by the Lenders;
third,
to pay
Obligations in respect of any fees, expenses, reimbursements or indemnities
then
due to the Administrative Agent;
fourth,
to pay
Obligations in respect of any fees, expenses, reimbursements or indemnities
then
due to the Lenders;
fifth,
to pay
interest due in respect of Loans;
sixth,
to the
ratable payment or prepayment of principal outstanding on Loans;
and
seventh,
to the
ratable payment of all other Obligations.
Unless
otherwise
designated (which designation shall only be applicable prior to the occurrence
of a Default) by the Borrower, all principal payments in respect of Loans shall
be applied to the outstanding Loans first, to repay outstanding Floating Rate
Loans, and then to repay outstanding Eurodollar Rate Loans with those
Eurodollar Rate Loans which have earlier expiring Interest Periods being repaid
prior to those which have later expiring Interest Periods. The order
of priority set forth in this Section 12.3 and the related provisions of
this Agreement are set forth solely to determine the rights and priorities
of
the Administrative Agent and the Lenders as among themselves. The
order of priority set forth in clauses (D) through (G) of this
Section 12.3 may at any time and from time to time be changed by
the
Required Lenders without necessity of notice to or consent of or approval by
the
Borrower, or any other Person. The order of priority set forth in
clauses (A) through (C) of this Section 12.3 may be changed
only with the prior written consent of the Administrative Agent.
Relations
Among
Lenders.
Except
with respect
to the exercise of set-off rights of any Lender in accordance with Section
12.1, the proceeds of which are applied in accordance with this Agreement,
and except as set forth in the following sentence, each Lender agrees that
it
will not take any action, nor institute any actions or proceedings, against
the
Borrower or any other obligor hereunder or with respect to any Loan Document,
without the prior written consent of the Required Lenders or, as may be provided
in this Agreement or the other Loan Documents, at the direction of the
Administrative Agent.
The
Lenders are not
partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the
Administrative Agent) authorized to act for, any other Lender. The
Administrative Agent shall have the exclusive right on behalf of the Lenders,
at
the direction of the Required Lenders, to enforce on the payment of the
principal of and interest on any Loan after the date such principal or interest
has become due and payable pursuant to the terms of this Agreement.
Representations
and Covenants Among Lenders. Each Lender represents and covenants
for the benefit of all other Lenders and the Administrative Agent that such
Lender is not satisfying and shall not satisfy any of its obligations pursuant
to this Agreement with any assets considered for any purposes of ERISA or
Section 4975 of the Code to be assets of or on behalf of any “plan” as defined
in section 3(3) of ERISA or section 4975 of the Code, regardless of whether
subject to ERISA or Section 4975 of the Code.
Successors
and
Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that (i) the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by
the
Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Article XIII. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants (to the extent provided in Section 13.2) and, to the extent
expressly contemplated hereby, the Related Parties of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement. The Administrative Agent may treat the
Person which made any Loan or which holds any note as the owner thereof for
all
purposes hereof unless and until such Person complies with Section 13.3;
provided,however, that the Administrative Agent
may in its discretion (but shall not be required to) follow instructions from
the Person which made any Loan or which holds any note to direct payments
relating to such Loan or note to another Person. Any assignee of the
rights to any Loan or any note agrees by acceptance of such assignment to be
bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the owner of the rights to any
Loan (whether or not a note has been issued in evidence thereof), shall be
conclusive and binding on any subsequent holder or assignee of the rights to
such Loan.
Participations.
Permitted
Participants; Effect. Any Lender may, without the consent of the
Borrower or the Administrative Agent sell participations to one or more banks
or
other entities (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of
its
Commitment and the Loans owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the
sole
right to enforce this Agreement and to approve any amendment, modification
or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of
the
Participant, agree to any amendment, modification or waiver described in the
proviso to Section 9.3 that adversely affects such
Participant. Subject to paragraph (B) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
4.1, 4.2, 4.3, 4.4 and 4.5 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
Section 13.3. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 12.1 as though it were
a Lender, provided such Participant agrees to be subject to Section 12.2
as though it were a Lender.
Limitation
of
Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 4.1, 4.2 or 4.5
than the applicable Lender would have been entitled to receive with respect
to
the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Non-U.S. Lender if it were a
Lender shall not be entitled to the benefits of Section 4.5 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
4.5 as though it were a Lender.
Assignments.
Consents. Subject
to the conditions set forth in paragraph (B) below, any Lender may assign to
one
or more assignees (“Purchasers”) all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans
at the time owing to it) with the prior written consent (such consent not to
be
unreasonably withheld) of: (i) the Borrower; provided that no consent of
the Borrower shall be required for an assignment to a Purchaser that is a
Lender, an Affiliate of a Lender or an Approved Fund or, if a Default has
occurred and is continuing, any other assignee; and (ii) the Administrative
Agent.
Conditions. Assignments
shall be subject to the following additional conditions:
except
in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent; provided that no such consent of the Borrower
shall be required if an Event of Default has occurred and is
continuing;
each
partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement, provided that
this clause shall not be construed to prohibit the assignment of a proportionate
part of all the assigning Lender’s rights and obligations in respect of its
Commitments or Loans;
the
parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500;
and
the
assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire in which the assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material
non-public information about the Borrower and its affiliates, the Subsidiary
Guarantors and their related parties or their respective securities) will be
made available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including Federal and
state securities laws.
Effect;
Effective Date. Subject to acceptance and recording thereof
pursuant to paragraph (D) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be
a
party hereto and, to the extent of the interest assigned by such Assignment
and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the
benefits of Sections 4.1, 4.2, 4.3, 4.4, 4.5
and 10.7). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section
13.3 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
Section 13.2.
The
Register. The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation
of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from
time
to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by
the Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
Recording. Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in this Section 13.3 and any
written consent to such assignment required by this Section 13.3, the
Administrative Agent shall accept such Assignment and Assumption and record
the
information contained therein in the Register; provided that if either
the assigning Lender or the assignee shall have failed to make any payment
required to be made by it pursuant to Sections 2.2(D), 2.17,
3.6, 3.7 or 11.6, the Administrative Agent shall have
no
obligation to accept such Assignment and Assumption and record the information
therein in the Register unless and until such payment shall have been made
in
full, together with all accrued interest thereon. No assignment shall
be effective for purposes of this Agreement unless it has been recorded in
the
Register as provided in this paragraph.
Pledge
to a
Federal Reserve Bank. Any Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement
to
secure obligations of such Lender, including without limitation any pledge
or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee
or
assignee for such Lender as a party hereto.
Confidentiality. Each
Agent and Lender agrees to maintain the confidentiality of the Information
(as
defined below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
Requirement of Law or by any subpoena or similar legal process, (d) to any
other
party to this Agreement, (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those
of
this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors)
to
any swap or derivative transaction relating to the Borrower, its Subsidiaries
and their obligations, (g) with the consent of the Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to any Agent or Lender on
a
non-confidential basis from a source other than the Borrower. For the
purposes of this Section, “Information” means all information received from the
Borrower relating to the Borrower or its business, other than any such
information that is available to any Agent or Lender on a non-confidential
basis
prior to disclosure by the Borrower; provided that, in the case of
information received from the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided
in
this Section shall be considered to have complied with its obligation to do
so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
EACH
LENDER ACKNOWLEDGES THAT INFORMATION AS
DEFINED IN SECTION 13.4 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY
INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER
AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS
THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL
NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.
ALL
INFORMATION, INCLUDING REQUESTS FOR WAIVERS
AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT
TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL
INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE
BORROWER AND ITS AFFILIATES, THE SUBSIDIARY GUARANTORS (AND THEIR RELATED
PARTIES OR THEIR RESPECTIVE SECURITIES) AND ITS
SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND
THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE
QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES
AND
APPLICABLE LAW.
Giving
Notice.
Except
in the case
of notices and other communications expressly permitted to be given by telephone
(and subject to paragraph (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
if
to the Borrower,
to it at 000 Xxxxxxxxx Xxxxxxxxxx Xxxxx, Xx. Xxxxx, XX 00000, Attention of
Xxxxxxx X. Xxx, Vice President and Treasurer (Telecopy No. (000)
000-0000);
if
to the
Administrative Agent, to it at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention
of
Xxxxxxx Xxxxx (Telecopy No. (000) 000-0000), with a copy to 000 X. Xxxxxxxx
Xxxxxx, Xxxxxxx, XX 00000, Attention of Xxxxxxx Xxxxxxxxxx (Telecopy No. (000)
000-0000); and
if
to any other
Lender, to it at its address (or telecopy number) set forth below its signature
hereto.
Notices
and other
communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant to
Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or the Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.
Any
party hereto
may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of
receipt.
Change
of
Address. The Borrower, the Administrative Agent and any Lender
may each change the address for service of notice upon it by a notice in writing
to the other parties hereto.
This
Agreement may
be executed in any number of counterparts, all of which taken together shall
constitute one agreement, and any of the parties hereto may execute this
Agreement by signing any such counterpart. This Agreement shall be
effective on the Closing Date when it has been executed by the Borrower, the
Agents and the Lenders, and each other condition to the Closing Date set forth
in Section 5.2 has been satisfied.
Each
Lender hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot
Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender to identify the Borrower in
accordance with the Act.
[Remainder
of This
Page Intentionally Blank]
IN
WITNESS WHEREOF,
the Borrower, the Lenders and the Administrative Agent have executed this
Agreement as of the date first above written.
|
ENERGIZER
HOLDINGS, INC., as the Borrower
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|
By:
|
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|
Name:
|
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|
Title:
|
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|
JPMORGAN
CHASE BANK, N.A., as Administrative Agent and as a Lender
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
BANK
OF
AMERICA, N.A., as Syndication Agent and as a Lender
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
CITIBANK,
N.A., as Documentation Agent and as a Lender
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
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