Exhibit 10.1
EXECUTION VERSION
Published Deal CUSIP Number: 00000XXX0
Published Revolving Commitment CUSIP Number: 00000XXX0
Dated as of May 24, 2010
Among
INVESCO HOLDING COMPANY LIMITED
and
IVZ, INC.,
as Borrowers
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
and
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
BANC OF AMERICA SECURITIES LLC
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Book Managers
CITIBANK N.A.,
as Syndication Agent
THE BANK OF NEW YORK MELLON,
HSBC BANK USA, NATIONAL ASSOCIATION,
XXXXXX XXXXXXX BANK,
SUNTRUST BANK,
THE TORONTO-DOMINION BANK,
as Co-Documentation Agents
Table of Contents
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Page |
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS |
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1 |
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Section 1.01
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Certain Defined Terms
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1 |
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Section 1.02
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Computation of Time Periods
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22 |
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Section 1.03
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Accounting Terms
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22 |
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Section 1.04
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Letter of Credit Amounts
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23 |
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ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES |
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23 |
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Section 2.01
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The Advances
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23 |
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Section 2.02
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Making the Advances
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24 |
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Section 2.03
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Letters of Credit
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25 |
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Section 2.04
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Swing Line Loans
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34 |
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Section 2.05
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Fees
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37 |
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Section 2.06
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Termination or Reduction of the Commitments
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38 |
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Section 2.07
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Repayment of Advances
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38 |
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Section 2.08
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Interest on Advances
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38 |
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Section 2.09
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Interest Rate Determination
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39 |
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Section 2.10
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Optional Conversion of Advances
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40 |
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Section 2.11
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Prepayments of Advances
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40 |
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Section 2.12
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Increased Costs
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41 |
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Section 2.13
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Illegality; Circumstances Affecting Availability
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43 |
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Section 2.14
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Payments Generally and Computations
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43 |
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Section 2.15
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Taxes
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44 |
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Section 2.16
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Sharing of Payments, Etc
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48 |
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Section 2.17
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Use of Proceeds
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49 |
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Section 2.18
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Cash Collateral and Other Credit Support
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49 |
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Section 2.19
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Joint and Several Liability
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51 |
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ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING |
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54 |
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Section 3.01
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Conditions Precedent to Effectiveness
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54 |
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Section 3.02
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Conditions Precedent to Each Borrowing and Each L/C Credit
Extension
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56 |
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Section 3.03
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Determinations Under Section 3.01
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56 |
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-i-
Table of Contents
(continued)
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Page |
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ARTICLE IV REPRESENTATIONS AND WARRANTIES |
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57 |
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Section 4.01
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Representations and Warranties of the Parent and the Borrowers
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57 |
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ARTICLE V COVENANTS OF THE BORROWER |
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60 |
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Section 5.01
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Affirmative Covenants
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60 |
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Section 5.02
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Negative Covenants
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64 |
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Section 5.03
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Financial Covenants
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68 |
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ARTICLE VI EVENTS OF DEFAULT |
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69 |
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Section 6.01
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Events of Default
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69 |
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Section 6.02
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Application of Funds
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72 |
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ARTICLE VII ADMINISTRATIVE AGENT |
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73 |
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Section 7.01
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Appointment and Authority
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73 |
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Section 7.02
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Rights as a Lender
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74 |
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Section 7.03
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Exculpatory Provisions
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74 |
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Section 7.04
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Reliance by Administrative Agent
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75 |
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Section 7.05
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Delegation of Duties
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75 |
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Section 7.06
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Resignation of Administrative Agent
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75 |
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Section 7.07
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Non-Reliance on Administrative Agent and Other Lenders
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76 |
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Section 7.08
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No Other Duties, Etc
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76 |
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Section 7.09
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Administrative Agent May File Proofs of Claim
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77 |
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Section 7.10
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Guaranty Matters
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77 |
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ARTICLE VIII MISCELLANEOUS |
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78 |
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Section 8.01
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Amendments, Etc
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78 |
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Section 8.02
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Notices; Effectiveness; Electronic Communication
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79 |
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Section 8.03
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No Waiver; Remedies
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81 |
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Section 8.04
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Expenses; Indemnity; Damage Waiver
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81 |
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Section 8.05
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Right of Set-off
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83 |
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Section 8.06
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Successors and Assigns
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84 |
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Section 8.07
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Treatment of Certain Information; Confidentiality
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88 |
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Section 8.08
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Governing Law
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89 |
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-ii-
Table of Contents
(continued)
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Page |
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Section 8.09
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Execution in Counterparts
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89 |
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Section 8.10
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Survival of Representations and Warranties
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89 |
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Section 8.11
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Replacement of Lenders
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90 |
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Section 8.12
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Jurisdiction, Etc
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90 |
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Section 8.13
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Judgment
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91 |
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Section 8.14
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Waiver of Jury Trial
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92 |
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Section 8.15
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USA PATRIOT Act Notice
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92 |
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Section 8.16
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Defaulting Lenders
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92 |
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Section 8.17
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No Advisory or Fiduciary Relationship
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94 |
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Section 8.18
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Interest Rate Limitation
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95 |
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Section 8.19
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Severability
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95 |
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-iii-
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SCHEDULES |
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Schedule I
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List of Applicable Lending Offices |
Schedule 1.01
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Commitments |
Schedule 1.02
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Mandatory Costs |
Schedule 4.01(b)
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Subsidiaries |
Schedule 4.01(d)
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Required Authorizations |
Schedule 4.01(i)
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Disclosed Litigation |
Schedule 5.02(a)
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Existing Liens |
Schedule 8.02
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Administrative Agent’s Office; Certain Addresses for Notices |
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EXHIBITS |
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Form of |
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Exhibit A
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Note |
Exhibit B-1
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Notice of Borrowing |
Exhibit B-2
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Swing Line Loan Notice |
Exhibit C
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Assignment and Assumption |
Exhibit D-1
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Subsidiary Guaranty |
Exhibit D-2
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Parent Guaranty |
Exhibit E
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Opinion of U.S. Counsel for the Borrowers and certain other
Loan Parties |
Exhibit F
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Opinion of U.K. Counsel for IHCL |
Exhibit G
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Opinion of Bermuda Counsel for the Parent |
Exhibit H
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Compliance Certificate |
Exhibit I
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U.K. Tax Compliance Certificate |
-iv-
This
Credit Agreement (the “
Agreement”) is entered into as of May 24, 2010 among
Invesco Holding Company Limited, a company organized under the laws of England and Wales
(“
IHCL”), IVZ, Inc., a Delaware corporation (“
IVZ”, and together with IHCL,
collectively, the “
Borrowers” and each individually, a “
Borrower”),
Invesco Ltd., a
company organized under the laws of Bermuda (the “
Parent”), the banks, financial
institutions and other institutional lenders (the “
Initial Lenders”) listed on the
signature pages hereof, and Bank of America, N.A. (“
Bank of America”), as administrative
agent (the “
Administrative Agent” or “
Agent”) for the Lenders (as hereinafter
defined) and as Swing Line Lender and L/C Issuer (each as hereinafter defined), hereby agree as
follows:
PRELIMINARY STATEMENT
The Borrowers have requested that the Lenders provide a revolving credit facility in a
principal amount of up to $1,250,000,000, and the Lenders are willing to do so on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
“Adjusted Debt” outstanding on any date means the sum, without duplication, of
(a) the aggregate principal amount of all Debt of the Parent and its Subsidiaries, on a
Consolidated basis, outstanding on such date of the kinds referred to in clauses (a), (c),
(d), (e), (f) and (h) (exclusive in clause (h) of the Debt of the kind referred to in
clauses (b) and (g)) of the definition of “Debt” and (b) the aggregate principal amount of
all Debt of the Parent and its Subsidiaries, on a Consolidated basis, outstanding on such
date of the kinds referred to in clause (i) of the definition of Debt that relates to Debt
of other Persons of the kinds referred to in clauses (a), (c), (d), (e), (f) and (h)
(exclusive in clause (h) of the Debt of the kind referred to in clauses (b) and (g)), of the
definition of “Debt”.
“
Administrative Agent’s Account” means the account of the Administrative Agent
maintained by the Administrative Agent at Bank of America with its office at Charlotte,
North Carolina, ABA No. 000000000, Account No. 1366212250600 Bank of America N.A.
New York,
NY Account Name: Corporate Credit Support Re: Invesco.
“Advance” means an advance by a Lender to a Borrower as part of a Borrowing
and, unless such Borrowing is a Swing Line Loan, refers to a Base Rate Advance or a
Eurocurrency Rate Advance (each of which shall be a “Type” of Advance), and, as the
1
context may require, includes an advance of a Swing Line Loan by the Swing Line Lender
to a Borrower.
“Affiliate” means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person or is a
director or officer of such Person. For purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control with”) of a
Person means the possession, direct or indirect, of the power to vote 10% or more of the
Voting Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by contract or
otherwise.
“Applicable All In Drawn LIBOR Spread” means, from time to time, the
percentages per annum based upon the Debt Rating as set forth below:
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Pricing Level |
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Debt Rating |
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All In Drawn LIBOR Spread |
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1 |
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≥ A+/A1
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(i) 75% of CDX Index Spread rate or
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(ii) 1.000%, whichever is greater |
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2 |
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A/A2
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(i) 85% of CDX Index Spread rate or |
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(ii) 1.125%, whichever is greater |
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3 |
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A-/A3
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(i) 100% of CDX Index Spread rate or |
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(ii) 1.375%, whichever is greater |
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4 |
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BBB+/Baa1
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(i) 125% of CDX Index Spread rate or |
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(ii) 1.750%, whichever is greater |
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5 |
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≤ BBB/Baa2
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(i) 150% of CDX Index Spread rate or |
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(ii) 2.250%, whichever is greater |
Where,
“CDX Index Spread” means, as of any date of determination, the spread
associated with the Markit CDX.NA.IG Series 14 or any successor series (5 Year
Period), as available on such date to the applicable office of the Administrative
Agent. The CDX Index Spread will be determined (a) in the case of Eurocurrency Rate
Advances, on the Business Day on which the Eurocurrency Rate for the initial and any
subsequent Interest Period applicable thereto is set and, for such Eurocurrency Rate
Advances with an Interest Period longer than three months, at the end of each
successive three-month period after the first day of such Interest Period and (b) in
the case of Base Rate Advances and Letters of Credit, on the Effective Date and on
the last Business Day of each calendar quarter, commencing with the calendar quarter
in which the Effective Date occurs.
2
“Debt Rating” means, as of any date of determination, the rating as
determined by either S&P or Xxxxx’x (collectively, the “Debt Ratings”) of
(i) IHCL’s non-credit-enhanced, senior unsecured long-term debt, or (ii) if IHCL
does not have any such rated debt, IVZ’s non-credit-enhanced (except as guaranteed
by IHCL and the other Guarantors), senior unsecured long-term debt, or (iii) if
neither IHCL nor IVZ has such rated debt, respectively, the senior credit facility
provided to the Borrowers by this Agreement and the other Loan Documents; provided
that (a) if the respective Debt Ratings issued by the foregoing rating agencies
differ by one level, then the Pricing Level for the higher of such Debt Ratings
shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt
Rating for Pricing Level 5 being the lowest); (b) if there is a split in Debt
Ratings of more than one level, then the Pricing Level that is one level lower than
the Pricing Level of the higher Debt Rating shall apply; (c) if only one Debt Rating
is provided, the Pricing Level that is one level lower than that of such Debt Rating
shall apply; and (d) if no Debt Ratings exist, Pricing Level 5 shall apply.
“Markit” means Markit Group, Ltd.
Initially, the Applicable All In Drawn LIBOR Spread shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 3.01(c)(ix).
Thereafter, each change in the Applicable All In Drawn LIBOR Spread resulting from a
publicly announced change in the Debt Rating shall be effective during the period commencing
on the date of the public announcement thereof and ending on the date immediately preceding
the effective date of the next such change.
“Applicable Lending Office” means, with respect to each Lender, such Lender’s
Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurocurrency
Lending Office in the case of a Eurocurrency Rate Advance.
“Applicable Margin for Base Rate Advances” means, as of any date, the
Applicable Margin for Eurocurrency Rate Advances less 1.00%.
“Applicable Margin for Eurocurrency Rate Advances” means, as of any date, the
Applicable All in Drawn LIBOR Spread less the Applicable Percentage. If the CDX
Index Spread is unavailable on the date of determination, the Applicable All In Drawn LIBOR
Spread will be calculated using the CDX Index Spread in effect on the day immediately prior
to the unavailability of the CDX Index Spread unless and until the Borrowers and the
Required Lenders agree on an alternative method of calculating the Applicable Margin for
Eurocurrency Rate Advances.
“Applicable Percentage” means, as of any date, a percentage per annum
determined by reference to the Debt Rating applicable on such date as set forth below:
3
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Debt Rating |
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Applicable Percentage |
≥ A+/A1
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0.200 |
% |
A/A2
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0.250 |
% |
A-/A3
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0.300 |
% |
BBB+/Baa1
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0.350 |
% |
≤ BBB/Baa2
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0.450 |
% |
Initially, the Applicable Percentage shall be determined based upon the Debt Rating
specified in the certificate delivered pursuant to Section 3.01(c)(ix). Thereafter,
each change in the Applicable Percentage resulting from a publicly announced change in the
Debt Rating shall be effective during the period commencing on the date of the public
announcement thereof and ending on the date immediately preceding the effective date of the
next such change.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender.
“Arrangers” means the entities listed as Joint Lead Arrangers on the cover page
hereto.
“Assignee Group” means two or more Eligible Assignees that are Affiliates of
one another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption agreement
entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent,
in substantially the form of Exhibit C attached hereto.
“Audited Financial Statements” means the audited Consolidated balance sheet of
the Parent and its Subsidiaries for the fiscal year ended December 31, 2009 and the related
Consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year of the Parent and its Subsidiaries, including the notes thereto.
“Bank of America” has the meaning specified in the recital of parties to this
Agreement.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest
of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its “prime rate”, and (c) the
Eurocurrency Rate for an Interest Period of one month plus 1.00%. The “prime rate”
is a rate set by Bank of America based upon various factors including Bank of America’s
costs and desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below such
4
announced rate. Any change (i) in such prime rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public announcement of
such change, and (ii) in the Eurocurrency Rate described in clause (c) above shall take
effect on the date of such change.
“Base Rate Advance” means an Advance denominated in Dollars that bears interest
as provided in Section 2.08(a)(i).
“Borrower” or “Borrowers” has the meaning specified in the recital of
parties to this Agreement.
“Borrower Agent” has the meaning specified therefor in Section 2.19(j).
“Borrowing” means a borrowing consisting of simultaneous Advances of the same
Type, and in the case of Eurocurrency Rate Advances, having the same Interest Period, made
by each of the Lenders pursuant to Section 2.01 or a Swing Line Borrowing, or both,
as the context may require.
“Business Day” means a day of the year other than a day on which banks are
required or authorized by law to close in Xxx Xxxx Xxxx xxx Xxxxxxxxx, Xxxxx Xxxxxxxx and,
if the applicable Business Day relates to any Eurocurrency Rate Advances, a day on which
dealings are carried on in the London interbank market and banks are open for business in
London.
“Capital Leases” means all leases that have been or should be, in accordance
with GAAP, recorded as capital leases.
“Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer or the
Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations,
Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations
in respect of either thereof (as the context may require) cash or deposit account balances
or, if the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree in
its sole discretion, other credit support constituting Cash Equivalents, in each case
pursuant to documentation in form and substance reasonably satisfactory to (a) the
Administrative Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable).
“Cash Collateral” shall have a meaning correlative to the foregoing and shall
include the proceeds of such cash collateral and other credit support. All Cash Collateral
shall be denominated in Dollars or the Equivalent in Dollars of Sterling with respect to
Cash Collateral related to Obligations denominated in Sterling, except as otherwise provided
herein.
“Cash Equivalents” means, at any time (a) debt issued or guaranteed by the
United States government or any agency thereof, maturing not more than 90 days after such
time, (b) commercial paper, maturing not more than 90 days from the date of issue, which is
issued by a corporation (other than an Affiliate of the Parent) rated at least A-1 by S&P or
P-1 by Xxxxx’x, (c) any certificate of deposit, maturing not more than 90 days after the
date of issue, which is issued by a financial institution which is rated at least A-
5
by S&P or A3 by Xxxxx’x, and (d) investments in money market funds that invest
substantially all of their assets in Cash Equivalents of the types described in clauses (a)
through (c) above.
“Commitment” means, as to any Lender, the Dollar amount set forth opposite its
name on Schedule 1.01 or, if such Lender has entered into any Assignment and
Assumption, the Dollar amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.06(c), in each case as such amount may be
reduced pursuant to Section 2.06.
“Compliance Certificate” means a compliance certificate in the form of
Exhibit H attached hereto.
“Consolidated” refers to the consolidation of accounts in accordance with GAAP.
“Convert”, “Conversion” and “Converted” each refers to a
conversion of Advances of one Type into Advances of the other Type pursuant to Section
2.09, 2.10 or 2.13, and with respect to any Eurocurrency Rate Advance in
Sterling that is Converted into a Base Rate Advance pursuant to any such Section, includes a
conversion of such amount of Sterling into Dollars based upon the Equivalent in Dollars of
Sterling.
“Debt” of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than (i) trade payables and other current accruals
incurred in the ordinary course of such Person’s business and payable on customary terms and
(ii) earn-out obligations), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of
such property) (other than trade payables incurred in the ordinary course of such Person’s
business and payable on customary terms), (e) all obligations of such Person as lessee under
Capital Leases, (f) all obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all net payment
obligations of such Person in respect of Hedge Agreements on the date of determination, (h)
all Debt of others referred to in clauses (a) through (g) above or clause (i) below
guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through a written agreement (1) to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of such Debt, (2) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (3) to supply funds to or in any other manner invest
in the debtor (including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (4) otherwise to assure
a creditor against loss, and (i) all Debt referred to in clauses (a) through (h) above
secured by (or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without limitation, accounts
6
and contract rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Debt, but with respect to such Debt that is
non-recourse, only to the extent of the lesser of the amount of such Debt or the fair market
value of the property at the time of determination that is encumbered by such Lien, provided
that, in no event shall “Debt” include any obligations of the Parent or any of its
Subsidiaries incurred in connection with any securitization program described in Section
5.02(c)(ii).
“Debt/EBITDA Ratio” means, as of any date of determination, the ratio of (a)
Adjusted Debt (excluding (i) Subsidiary Non-Recourse Debt , (ii) so long as the Parent and
its Subsidiaries own 100% of the Office Equipment Sale and Leaseback Bonds, liabilities with
respect to the Office Equipment Sale and Leaseback Lease, (iii) the Qualified Equity Portion
of Qualified Securities to the extent such amount is otherwise included in Adjusted Debt,
(iv) in the event that either Borrower or any Guarantor has issued the 2012 Refinancing
Notes in connection with a refinancing of the 2012 Notes, for purposes of calculating the
Debt/EBITDA Ratio for the period of four consecutive fiscal quarters of the Parent ending
March 31, 2012, the lesser of the aggregate outstanding principal amount of (1) the 2012
Notes and (2) the 2012 Refinancing Notes (in each case to the extent otherwise included in
Adjusted Debt), and (v) in the event that either Borrower or any Guarantor has issued the
2013 Refinancing Notes in connection with a refinancing of the 2013 Notes, for purposes of
calculating the Debt/EBITDA Ratio for the period of four consecutive fiscal quarters of the
Parent ending December 31, 2012, the lesser of the aggregate outstanding principal amount of
(1) the 2013 Notes and (2) the 2013 Refinancing Notes (in each case to the extent otherwise
included in Adjusted Debt) to (b) EBITDA (excluding for purpose of this calculation of
EBITDA only that portion of EBITDA attributable to the net income, expenses, losses, charges
and gains of each Special Purpose Subsidiary) for each period of four consecutive fiscal
quarters of the Parent ended on or immediately prior to such time.
“Debt Rating” has the meaning specified in the definition of Applicable All In
Drawn LIBOR Spread.
“Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.
“Defaulting Lender” means, subject to Section 8.16(b), any Lender that,
as determined by the Administrative Agent, (a) has failed to perform any of its funding
obligations hereunder, including in respect of its Advances or participations in respect of
Letters of Credit or Swing Line Loans, within three Business Days of the date required to be
funded by it hereunder, (b) has notified the Borrowers, or the Administrative Agent or any
Lender that it does not intend to comply with its funding obligations or has made a public
statement to that effect with respect to its funding obligations hereunder or under other
agreements in which it commits to extend credit, (c) has failed, within three Business Days
after request by the Administrative Agent, to confirm in a manner satisfactory to the
Administrative Agent that it will comply with its funding obligations, or (d) has, or has a
direct or indirect parent company that has, (i) become the subject of a proceeding under the
bankruptcy code of the United States or any other liquidation,
7
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of
the United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or a custodian appointed for it, or (iii)
taken any action in furtherance of, or indicated its consent to, approval of or acquiescence
in any such proceeding or appointment; provided that a Lender shall not be a Defaulting
Lender solely by virtue of the ownership or acquisition of any equity interest in that
Lender or any direct or indirect parent company thereof by a governmental authority.
“Disclosed Litigation” has the meaning specified in Section 4.01(i).
“Dollars” and the “$” sign each means lawful money of the United States
of America.
“Domestic Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” opposite its name on Schedule I
hereto or in the Assignment and Assumption pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify to the Borrowers
and the Administrative Agent.
“EBITDA” means, for any period, net income (or net loss) of the Parent and its
Subsidiaries, on a Consolidated basis excluding consolidated investment products plus the
sum of (a) interest expense, (b) income tax expense, (c) depreciation expense, (d)
amortization expense, (e) extraordinary losses, (f) exceptional losses, and (g) all non-cash
charges exclusive of any non-cash charge to the extent it represents a reserve for cash
expenditures in any future period, minus (x) extraordinary gains and (y) exceptional gains,
in each case determined in accordance with GAAP for such period, and (z) all non-cash gains
exclusive of gains for which the Parent expects cash proceeds in a future period; provided,
that, for purposes of calculating EBITDA for the Parent and its Subsidiaries for any period,
the EBITDA of any Person (or assets or division of such Person) acquired by the Parent or
any of its Subsidiaries during such period shall be included on a pro forma basis for such
period (assuming the consummation of such acquisition occurred on the first day of such
period).
“Effective Date” has the meaning specified in Section 3.01.
“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person (other than a natural person), subject to such
consents as may be required under Section 8.06(b)(iii); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the Parent, either
Borrower or any of the Parent’s Affiliates or Subsidiaries; and provided further, however,
that an Eligible Assignee shall include only a Lender, an Affiliate of a Lender or another
Person, which, through its lending offices, is capable of lending Sterling to the Borrowers
without the imposition of any additional Indemnifiable Taxes.
8
“Environmental Laws” means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental restrictions relating
to pollution and the protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.
“Equity Interests” means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition from such Person of shares
of capital stock of (or other ownership or profit interests in) such Person, and all of the
other ownership or profit interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
“Equivalent” in Dollars of Sterling on any date means the equivalent in Dollars
of Sterling determined by using the quoted spot rate at which Bank of America’s principal
office in London offers to exchange Dollars for Sterling in London at 11:00 A.M. (London
time) two Business Days prior to such date, and the “Equivalent” in Sterling of
Dollars means the equivalent in Sterling of Dollars determined by using the quoted spot rate
at which Bank of America’s principal office in London offers to exchange Sterling for
Dollars in London at 11:00 A.M. (London time) two Business Days prior to such date.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a
member of any Loan Party’s controlled group, or under common control with any Loan Party,
within the meaning of Section 414 (b) or (c) of the Internal Revenue Code or, for purposes
of Section 412 and 430 of the Internal Revenue Code, under Section 414(m) or (o) of the
Internal Revenue Code.
“ERISA Event” means (a) (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii) at the time when
the requirements of subsection (1) of Section 4043(b) of ERISA (without regard to subsection
(2) of such Section) are applicable to any Loan Party or any ERISA Affiliate an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to a Plan within the following 30 days; (b) the
filing by any Loan Party or any ERISA Affiliate of an application for a minimum funding
waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan pursuant to Section 4041 or 4041A of ERISA
(including any such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by
any Loan Party or any ERISA Affiliate from a Multiple Employer Plan
9
during a plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien under Section 303(k) of
ERISA on the assets of any Loan Party or any ERISA Affiliate shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring any Loan Party or
any ERISA Affiliate to provide security to such Plan pursuant to Section 436(f) of the
Internal Revenue Code; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan, provided, however, that the event or condition set forth in
Section 4042(a)(4) of ERISA shall be an ERISA Event only if the PBGC has notified any Loan
Party or any ERISA Affiliate that it has made a determination under such section or that it
is considering termination of a Plan on such grounds.
“Eurocurrency Base Rate” has the meaning specified in the definition of
Eurocurrency Rate.
“Eurocurrency Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Eurocurrency Lending Office” opposite its name on Schedule
I hereto or in the Assignment and Assumption pursuant to which it became a Lender (or,
if no such office is specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Borrowers and the Administrative
Agent.
“Eurocurrency Rate” means for any Interest Period with respect to a
Eurocurrency Rate Advance, a rate per annum determined by the Administrative Agent pursuant
to the following formula:
|
|
|
|
|
|
|
|
|
|
|
Eurocurrency Base Rate |
|
|
Eurocurrency Rate
|
|
=
|
|
1.00 – Eurocurrency Reserve
|
|
|
|
|
|
|
Percentage |
|
|
Where,
“Eurocurrency Base Rate” means, for such Interest Period:
(a) with respect to each Eurocurrency Rate Advance, the rate per annum equal to
(i) the British Banker’s Association LIBOR Rate (“BBA LIBOR”), as published
by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) as approximately 11:00
A.M. (London time), two Business Days prior to the commencement of such Interest
Period, for deposits in the relevant currency (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period or (ii) if such rate
referenced in the preceding clause (i) is not available at such time for any reason,
then the “Eurocurrency Base Rate” for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which deposits in the
relevant currency for
10
delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurocurrency Rate Advance being made, continued or
Converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch (or other Bank of America branch
or Affiliate) to major banks in the London or other offshore interbank market for
such currency at their request at approximately 11:00 A.M. (London time) two
Business Days prior to the commencement of such Interest Period.
(b) for any interest calculation with respect to a Base Rate Advance on any
date, the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m. (London
time) two Business Days prior to the date of determination, determined daily on each
Business Day for deposits in the relevant currency being delivered in the London
interbank market for a term of one month commencing that day or (ii) if such rate
referenced in the preceding clause (i) is not available at such time for any reason,
the rate per annum determined by the Administrative Agent to be the rate at which
deposits in the relevant currency for delivery on the date of determination in Same
Day Funds in the approximate amount of the Base Rate Advance being made or
maintained by Bank of America and with a term equal to one month would be offered by
Bank of America’s London Branch (or other Bank of America branch or Affiliate) to
major banks in the London or other offshore interbank market for such currency at
their request at the date and time of determination.
“Eurocurrency Reserve Percentage” means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including any emergency, supplemental
or other marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as “Eurocurrency liabilities”). The Eurocurrency Rate for
each outstanding Eurocurrency Rate Advance shall be adjusted automatically as of the
effective date of any change in the Eurocurrency Reserve Percentage.
“Eurocurrency Rate Advance” means an Advance that bears interest as provided in
Section 2.08(a)(ii).
“Events of Default” has the meaning specified in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“
Existing Credit Agreement” means that certain
Credit Agreement dated as of
June 9, 2009 among IVZ, Parent, Bank of America as administrative agent and swingline lender
thereunder, and the lenders party thereto.
11
“Existing Debt” means the Debt of the Parent and its Subsidiaries, on a
Consolidated basis outstanding as of the Effective Date.
“FASB ASC” means the Accounting Standards Codification of the Financial
Accounting Standards Board.
“
Federal Funds Rate” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of
New York on the Business Day next succeeding such day;
provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on
such transactions as determined by the Administrative Agent.
“Fee Letter” means the letter agreement, dated April 19, 2010, among the
Borrowers, the Administrative Agent and Banc of America Securities LLC.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with
respect to the L/C Issuer, such Defaulting Lender’s Pro Rata Share Percentage of the
outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in
accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such
Defaulting Lender’s Pro Rata Share Percentage of Swing Line Loans other than Swing Line
Loans as to which such Defaulting Lender’s participation obligation has been reallocated to
other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.
“GAAP” means generally accepted accounting principles in the United States set
forth in the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a significant
segment of the accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.
“Guarantors” means Parent, Invesco Advisers, Inc., a Delaware corporation,
Invesco North American Holdings, Inc., a Delaware corporation, and Invesco Management Group
Inc., a Delaware corporation, and upon the execution and delivery of an Assumption of
Guaranty (as defined in the Subsidiary Guaranty) pursuant to Section 5.01(f) or
otherwise by any other Subsidiary of the Parent, such other Subsidiary.
12
“Guaranty” means each of the Parent Guaranty and the Subsidiary Guaranty.
“Hedge Agreements” means interest rate swap, cap or collar agreements, interest
rate future or option contracts, currency swap agreements, currency future or option
contracts and other similar agreements.
“IHCL” has the meaning specified in the recital of parties to this Agreement.
“Indemnifiable Taxes” has the meaning specified in Section 2.15(a).
“Initial Lenders” has the meaning specified in the recital of parties to this
Agreement.
“Insufficiency” means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
“
Interest Period” means, for each Eurocurrency Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance or
the date of the Conversion of any Base Rate Advance into such Eurocurrency Rate Advance and
ending on the last day of the period selected by the applicable Borrower pursuant to the
provisions below and, thereafter, with respect to Eurocurrency Rate Advances, each
subsequent period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the applicable Borrower pursuant to the
provisions below. The duration of each such Interest Period for each Eurocurrency Rate
Advance shall be one, two, three or six months, as the applicable Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (
New York City time) on the
third Business Day prior to the first day of such Interest Period, select;
provided,
however, that:
(i) the Borrowers may not select any Interest Period that ends after the
Termination Date;
(ii) Interest Periods commencing on the same date for Eurocurrency Rate
Advances comprising part of the same Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such Interest Period shall
end on the last Business Day of such succeeding calendar month.
13
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.
“ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or
such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of
Credit Application, and any other document, agreement and instrument entered into by the L/C
Issuer and a Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such
Letter of Credit.
“IVZ” has the meaning specified in the recital of parties to this Agreement.
“L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share Percentage. All
L/C Advances shall be denominated in Dollars.
“L/C Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or refinanced as a
Borrowing. All L/C Borrowings shall be denominated in Dollars.
“L/C Credit Extension” means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the amount
thereof.
“L/C Issuer” means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including, without duplication, all L/C Borrowings. For purposes
of computing the amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.04. For all
purposes of this Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the operation of Rule
3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.
“Lenders” means the Initial Lenders and each Person that shall become a party
hereto pursuant to Section 8.06, and as the context requires, includes the Swing
Line Lender.
“Letter of Credit” means any standby letter of credit issued hereunder.
“Letter of Credit Application” means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.
14
“Letter of Credit Expiration Date” means the day that is seven days prior to
the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding
Business Day), except as otherwise provided herein.
“Letter of Credit Fee” has the meaning specified in Section 2.03(h).
“Letter of Credit Sublimit” means an amount equal to $150,000,000. The Letter
of Credit Sublimit is part of, and not in addition to, the Total Commitments.
“Lien” means any lien, security interest or other charge or encumbrance of any
kind, including, without limitation, the lien or retained security title of a conditional
vendor and any easement, right of way or other encumbrance on title to real property.
“Loan Documents” means this Agreement, the Notes, each Guaranty, each Issuer
Document, and any agreement creating or perfecting rights in Cash Collateral pursuant to the
provisions of Section 2.18 of this Agreement.
“Loan Parties” means, collectively, each Borrower and each Guarantor (each
individually, a “Loan Party”).
“Mandatory Costs” means with respect to any period, the percentage rate per
annum determined in accordance with Schedule 1.02.
“Material Adverse Change” means any material adverse change in the business,
condition (financial or otherwise), operations, performance or properties of the Parent and
its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance or properties of the Parent and
its Subsidiaries taken as a whole, (b) the rights and remedies of the Administrative Agent
or any Lender under this Agreement or any Note or (c) the ability of the Borrowers to
perform their obligations under this Agreement or any Note.
“Material Subsidiary” means each Subsidiary of the Parent to which as of the
end of any fiscal year of the Parent is attributed twenty percent or more of the
Consolidated operating income of the Parent and its Subsidiaries taken as a whole,
determined by reference to the most recent annual audited financial statements delivered by
the Parent to the Lenders pursuant to Section 5.01(h) or, in the case of any
Subsidiary of the Parent that is acquired or is merged with or into any other Subsidiary of
the Parent, determined by reference to the pro forma financial statements of the Parent and
its Subsidiaries prepared in accordance with GAAP as of the most recent fiscal year end of
the Parent, giving effect to such acquisition or merger as if such transaction had been
consummated as of the last day of such fiscal year.
“Maturity Date” means the date that is three (3) years after the Effective
Date.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
15
“Multiemployer Plan” means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing
sponsors (including either Borrower or any ERISA Affiliate) at least two of whom are not
under common control, as such a plan is described in Section 4064 of ERISA.
“Note” means a promissory note of the Borrowers payable to the order of any
Lender, in substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of the Borrowers to such Lender resulting from the Advances made by such
Lender, as it may be amended, restated or modified from time to time, or any substitute
therefor or replacement thereof.
“Notice of Borrowing” has the meaning specified in Section 2.02(a).
“Obligations” means all advances to, and debts, liabilities, obligations,
covenants and duties of, either Borrower arising under any Loan Document, whether direct or
indirect, absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or against either
Borrower of any proceeding under the bankruptcy code of the United States or any other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor
relief laws of the United States or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally naming such Borrower as the debtor in
such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.
“Office Equipment Sale and Leaseback” means the sale and leaseback transaction
pursuant to which Invesco Group Services, Inc. sold office equipment for its Atlanta,
Georgia headquarters facility to the Development Authority of Xxxxxx County for an aggregate
price not in excess of $20,000,000 and then leased back such office equipment from the
Development Authority of Xxxxxx County.
“Office Equipment Sale and Leaseback Bonds” means those certain industrial
revenue bonds issued by the Development Authority of Xxxxxx County for the purpose of
financing the purchase by the Development Authority of Xxxxxx County of that certain office
equipment the subject matter of the Office Equipment Sale and Leaseback.
“Office Equipment Sale and Leaseback Lease” the lease by Invesco Group
Services, Inc. of that certain office equipment subject to the Office Equipment Sale and
Leaseback from the Development Authority of Xxxxxx County.
“Other Taxes” has the meaning specified in Section 2.15(b).
“Outstanding Amount” means (i) with respect to Advances and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any
16
borrowings and prepayments or repayments of Advances and Swing Line Loans, as the case
may be, occurring on such date, and (ii) with respect to L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C Obligations
as of such date, including as a result of any reimbursement by the Borrowers of Unreimbursed
Amounts. For Advances and L/C Obligations denominated in Sterling, for purposes of
determining the Outstanding Amount thereof, such amount shall be the Equivalent thereof in
Dollars.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated
in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined
by the Administrative Agent or the Swing Line Lender, as the case may be, in accordance with
banking industry rules on interbank compensation, and (b) with respect to any amount
denominated in Sterling, the rate of interest per annum at which overnight deposits in
Sterling, in an amount approximately equal to the amount with respect to which such rate is
being determined, would be offered for such day by a branch or Affiliate of Bank of America
in the applicable offshore interbank market for such currency to major banks in such
interbank market.
“Parent” has the meaning specified in the recital of parties to this Agreement.
“Parent Guaranty” means that certain Guaranty dated as of the date hereof
executed and delivered by the Parent in favor of the Administrative Agent and the Lenders in
substantially the form of Exhibit D-2, as amended, supplemented or otherwise
modified from time to time.
“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).
“Permitted Liens” means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced except as
otherwise provided: (a) Liens for taxes, assessments or other governmental charges being
contested in good faith by appropriate proceedings promptly initiated and diligently
conducted and for which such reserves or other appropriate provision, if any, as shall be
required by GAAP shall have been made and maintained in accordance with GAAP and past
practices of the Parent and its Subsidiaries therefor and as to which any enforcement,
collection, execution, levy or foreclosure proceeding which shall commence or have commenced
could not reasonably be expected to result in a Material Adverse Effect; (b) statutory Liens
of landlords and Liens of carriers, warehousemen, mechanics and materialmen incurred in the
ordinary course of business for sums not yet due or being contested in good faith by
appropriate proceedings promptly initiated and diligently conducted and for which such
reserves or other appropriate provision, if any, as shall be required by GAAP shall have
been made therefor and as to which any enforcement, collection, execution, levy or
foreclosure proceeding which shall commence or have commenced could not reasonably be
expected to result in a Material Adverse Effect; (c) Liens (other than any Lien imposed by
ERISA) incurred or deposits made in the ordinary course of business (i) in connection with
workers’ compensation, unemployment insurance and other types of social security, (ii) to
secure (or to obtain letters of credit
17
that secure) the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other
similar obligations, in each case not incurred or made in connection with the borrowing of
money, the obtaining of advances or credit or the payment of the deferred purchase price of
property, or (iii) in connection with the cash collateralization of letters of credit
permitted under Section 5.02(g)(iii); (d) any Liens securing attachments or
judgments unless the judgment it secures results or has resulted in an Event of Default
under Section 6.01(f); and (e) leases or subleases granted to others, easements,
rights of way and other encumbrances on title to real property that, in the case of any
property material to the operation of the business of the Parent and its Subsidiaries taken
as a whole, do not render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present purposes.
“Person” means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political subdivision or agency
thereof.
“Plan” means a Single Employer Plan or a Multiple Employer Plan.
“Platform” has the meaning specified in Section 5.01.
“Pro Rata Share” of any amount means, with respect to any Lender at any time,
the product of such amount times such Lender’s Pro Rata Share Percentage at such time.
“Pro Rata Share Percentage” means with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) obtained by dividing such Lender’s
Commitment at such time by the Total Commitments at such time, subject to adjustment as
provided in Section 8.16. If the Commitment of each Lender and the obligations of
the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section
6.02 or if the Total Commitments have expired, then the Pro Rata Share Percentage of
each Lender shall be determined based on the Pro Rata Share Percentage of such Lender most
recently in effect, giving effect to any subsequent assignments. The initial Pro Rata Share
Percentage of each Lender is set forth opposite the name of such Lender on Schedule
1.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.
“Qualified Equity Portion of Qualified Securities” means at any time, the sum
of the amounts obtained by multiplying (x) the amount of each Qualified Security by (y) the
Qualified Equity Percentage at such time of such Qualified Security.
“Qualified Equity Percentage” means, with respect to a Qualified Security, the
lowest percentage (whether specifically stated or implied through calculation) accorded
equity treatment for such Qualified Security by either S&P or Moody’s, as determined by such
rating agencies from time to time.
“Qualified Security” means any security issued by the Parent, a Borrower or any
Guarantor that (i) has attributes of both debt and equity, (ii) is rated by both S&P and
18
Moody’s, (iii) the proceeds of which are accorded a percentage of equity treatment by
both S&P and Moody’s, (iv) matures after the Maturity Date, and (v) ranks in priority of
repayment no higher than pari passu with, and is not structurally superior to, the senior
credit facility provided to the Borrowers under this Agreement and the other Loan Documents
(including, without limitation, all of the Obligations).
“Register” has the meaning specified in Section 8.06(c).
“Related Parties” means with respect to any Person, such Person’s Affiliates
and the partners, directors, officers, employees, agents and advisors of such Person and of
such Person’s Affiliates.
“Relevant Taxing Authority” means the taxing authority with which the
applicable Treaty Form is required to be filed, in the country of residence of a Lender.
“Required Lenders” means at any time Lenders owed greater than 50% of the then
aggregate unpaid principal amount of the Advances and L/C Obligations owing to Lenders (with
the aggregate amount of each Lender’s risk participation and funded participation in Swing
Line Loans and L/C Obligations being deemed owed to such Lender for purposes of this
definition), or, if no such amount is then outstanding, Lenders holding greater than 50% of
the Commitments provided that the portion of the aggregate unpaid principal amount of the
Advances and risk participations and funded participations in Swing Line Loans and L/C
Obligations owing to or deemed owed to, and the Commitment of, any Defaulting Lender shall
be excluded for purposes of making a determination of Required Lenders.
“Same Day Funds” means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and payments in
Sterling, same day or other funds as may be determined by the Administrative Agent, as the
case may be, to be customary in the place of disbursement or payment for the settlement of
international banking transactions in Sterling.
“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. and any successor thereto.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Laws” means the Securities Act, the Exchange Act, Xxxxxxxx-Xxxxx
and the applicable accounting and auditing principles, rules, standards and practices
promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight
Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.
“Significant Subsidiary” means each Subsidiary of the Parent, including each
Borrower, that (a) is organized under the laws of the United States or any political
subdivision thereof or (b) is an operating Subsidiary of the Parent or a Subsidiary of the
Parent that directly or indirectly owns an operating Subsidiary of the Parent.
19
“Single Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than any Loan Party and the ERISA Affiliates.
“Solvent” and “Solvency” mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair salable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such Person’s ability
to pay such debts and liabilities as they mature and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a transaction, for
which such Person’s property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the light of all
the facts and circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
“Special Purpose Subsidiary” means a Subsidiary created or acquired, and wholly
owned, directly or indirectly, by the Parent whose primary business is investing in real
estate properties or other investment assets, the acquisition of which properties or assets
are financed in whole, or in part, with Subsidiary Non-Recourse Debt, and whose primary
assets consist of such real estate properties and other investment assets.
“Sterling” means lawful money of the United Kingdom of Great Britain and
Northern Ireland.
“Subsidiary” of any Person means any corporation, limited liability company,
partnership, joint venture, trust or estate of which (or in which) more than 50% of (a) in
the case of a corporation, the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) in the case of a
limited liability company, partnership or joint venture, the interest in the capital or
profits of such limited liability company, partnership or joint venture or (c) in the case
of a trust or estate, the beneficial interest in such trust or estate, in each instance
above is at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries. Unless otherwise specified, all references to a “Subsidiary” or to
“Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent.
“Subsidiary Guarantor” means each Guarantor other than the Parent.
“Subsidiary Guaranty” means that certain Guaranty dated as of the date hereof
executed and delivered by each Subsidiary Guarantor in favor of the Administrative Agent and
the Lenders in substantially the form of Exhibit D-1, as amended, supplemented or
otherwise modified from time to time.
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“Subsidiary Non-Recourse Debt” means with respect to all Special Purpose
Subsidiaries of the Parent, Debt incurred by such Special Purpose Subsidiaries up to an
aggregate principal amount for all such Special Purpose Subsidiaries at any time outstanding
not to exceed $500,000,000, (i) the proceeds of which are used to finance the acquisition of
real estate properties and other investment assets by such Special Purpose Subsidiary, (ii)
that is not guaranteed by either Borrower or any Guarantor, and (iii) where recourse for
repayment of such Debt is contractually limited to such Special Purpose Subsidiary and the
specific real estate properties or other investment assets of such Special Purpose
Subsidiary financed with the proceeds thereof.
“Swing Line” means the revolving credit facility made available by the Swing
Line Lender pursuant to Section 2.04.
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
“Swing Line Lender” means Bank of America in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B-2.
“Swing Line Sublimit” means an amount equal to the lesser of (a) $100,000,000
and (b) the Total Commitments. The Swing Line Sublimit is part of, and not in addition to,
the Total Commitment.
“Taxes” has the meaning specified in Section 2.15(a).
“Termination Date” means the earlier of (i) the Maturity Date and (ii) the date
of termination in whole of the Commitments pursuant to
Section 2.06 or 6.01.
“Total Commitment” means, at any time, the aggregate amount of the Lenders’
Commitments at such time.
“Treaty Form” means a form of claim for the benefits of an income tax treaty
between the United Kingdom and the country of residence of a Lender or the Administrative
Agent, as is specified from time to time by HM Revenue & Customs in the United Kingdom.
“Type” has the meaning therefor in the definition of Advance.
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
“Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
21
functions) of such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
“Withdrawal Liability” has the meaning specified in Part I of Subtitle E of
Title IV of ERISA.
“2012 Notes” means IHCL’s 5.625% Unsecured Senior Notes due April 17, 2012.
“2012 Refinancing Notes” means unsecured notes issued by either Borrower or any
Guarantor for the express purpose, solely or with other purposes, of refinancing the 2012
Notes, which unsecured notes shall (i) rank in priority of repayment no higher than pari
passu with, and shall not be structurally superior to, the Obligations and (ii) shall mature
after the Maturity Date.
“2013 Notes” means IHCL’s 5.375% Unsecured Senior Notes due February 27, 2013.
“2013 Refinancing Notes” means unsecured notes issued by either Borrower or any
Guarantor for the express purpose, solely or with other purposes, of refinancing the 2013
Notes, which unsecured notes shall (i) rank in priority of repayment no higher than pari
passu with, and shall not be structurally superior to, the Obligations and (ii) shall mature
after the Maturity Date.
Section 1.02 Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.
Section 1.03 Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrowers or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers
shall negotiate in good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrowers and the Parent shall provide to the
Administrative Agent and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations
of such ratio or requirement made before and after giving effect to such change in GAAP.
22
(c) Consolidation. All references herein to Consolidated financial statements of the
Parent and its Subsidiaries or to the determination of any amount for the Parent and its
Subsidiaries on a Consolidated basis or any similar reference shall, in each case, be deemed to
include each entity that the Parent is required to consolidate pursuant to FASB ASC 810 as if such
entity were a Subsidiary as defined herein, provided that for purposes of determining compliance
with the financial covenants set forth in Section 5.03, the consolidation of investment
products shall be disregarded.
(d) Effect of a Section 5.02(b)(ii) Permitted Merger. Upon the event of a merger of
the Parent into a Borrower permitted by Section 5.02(b), all references to the Parent in
this Agreement shall be deemed references to IHCL, unless IHCL is merged into IVZ as permitted by
Section 5.02(b), in which case all references to the Parent shall be deemed references to
IVZ except (i) where such prior reference to the Parent would be a duplicative reference to IHCL or
IVZ, as applicable, in which case the reference to the Parent shall be disregarded, (ii) where such
prior reference to the Parent specifically relates to (A) a prior executed agreement to which the
Parent was in fact a party, (B) financial statements dated prior to such merger, (C) such reference
is a reference to the Parent as a Guarantor, or (D) such reference is contained in the conditions
precedent in Section 3.01, (iii) where such change would result in a prior occurring Event
of Default no longer being deemed an Event of Default (unless such prior occurring Event of Default
has been cured), (iv) with respect to the reference to “Each Subsidiary of the Parent” in
Section 4.01(q), which shall be deemed to be a reference to “Either Borrower or any of its
Subsidiaries”, unless IHCL has been merged into IVZ, in which case such reference shall be a
reference to “the Borrower or any of its Subsidiaries”, and (v) with respect to the reference to
the Parent in Section 4.01(r), which shall continue to be a reference to the Parent as if
such merger had not occurred.
Section 1.04 Letter of Credit Amounts. Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the Equivalent in Dollars of the stated
amount of such Letter of Credit in effect at such time; provided, however, that with respect to any
Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides
for one or more automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Equivalent in Dollars of the maximum stated amount of such Letter
of Credit after giving effect to all such increases and any subsequent decreases, whether or not
such maximum stated amount is in effect at such time.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The Advances. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrowers from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an aggregate principal
amount (based in respect of any Advance denominated in Sterling on the Equivalent in Dollars), not
to exceed at any time outstanding the amount of such Lender’s Commitment less (i) such Lender’s Pro
Rata Share of the Outstanding Amount of all L/C Obligations and (ii) such Lender’s Pro Rata Share
of the Outstanding Amount of all Swing Line Loans. Each Borrowing shall be in an aggregate amount
of $5,000,000 (or the Equivalent thereof in Sterling) or an
23
integral multiple of $1,000,000 (or the Equivalent thereof in Sterling) in excess thereof and
shall consist of Advances of the same Type made on the same day by the Lenders ratably according to
their respective Commitments. Within the limits of each Lender’s Commitment, the Borrowers may
borrow under this Section 2.01, prepay pursuant to Section 2.11 and reborrow under
this Section 2.01.
Section 2.02
Making the Advances. (a) Each Borrowing shall be made on notice, given
not later than (x) 11:00 A.M. (
New York City time) on the third Business Day prior to the date of
the proposed Borrowing in the case of a Borrowing consisting of Eurocurrency Rate Advances
denominated in Dollars, (y) 11:00 A.M. (
New York City time) on the fifth Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing consisting of Eurocurrency Rate Advances
denominated in Sterling, or (z) 11:00 A.M. (
New York City time) on the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the Borrower Agent to the
Administrative Agent, which shall give to each Lender prompt notice thereof. Each such notice of a
Borrowing (a “
Notice of Borrowing”) shall be by telephone, confirmed promptly in writing,
and signed by a duly authorized officer of the Borrower Agent, or any other employee of the
Borrower Agent that is authorized by the President or Chief Financial Officer of the Borrower
Agent, in substantially the form of
Exhibit B-1 hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount
of such Borrowing, (iv) in the case of a Borrowing consisting of Eurocurrency Rate Advances, the
initial Interest Period and whether such Advance shall be in Dollars or in Sterling, and (v)
applicable Borrower. Each Lender shall, before 1:00 P.M. (
New York City time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent’s Account, in Same Day Funds, such Lender’s Pro Rata Share of
such Borrowing. After the Administrative Agent’s receipt of such funds and upon fulfillment of the
applicable conditions set forth in
Article III, the Administrative Agent will make such
funds available to the applicable Borrower at the Administrative Agent’s address referred to in
Section 8.02;
provided,
however, that if, on the date the Notice of Borrowing with respect
to such Borrowing is given by the Borrower Agent, there are L/C Borrowings outstanding, then the
proceeds of such Borrowing,
first, shall be applied to the payment in full of any such L/C
Borrowings, and
second, shall be made available to the applicable Borrower as provided
above.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrowers may
not select Eurocurrency Rate Advances for any Borrowing if the aggregate amount of such Borrowing
is less than $5,000,000 (or the Equivalent thereof in Sterling) or if the obligation of the Lenders
to make Eurocurrency Rate Advances shall then be suspended pursuant to Section 2.09 or
2.13 and (ii) the Eurocurrency Rate Advances may not be outstanding as part of more than
ten separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrowers. In the case
of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurocurrency
Rate Advances, the Borrowers shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date specified in such Notice
of Borrowing for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
24
acquired by such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the time
of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s
Pro Rata Share of such Borrowing, the Administrative Agent may assume that such Lender has made
such amount available to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such
assumption, but shall have no obligation to, make available to the applicable Borrower on such date
a corresponding amount. If and to the extent that such Lender shall not have so made such amount
available to the Administrative Agent, such Lender and the Borrowers severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the applicable Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case of the Borrowers,
the interest rate applicable at the time to Advances comprising such Borrowing and (ii) in the case
of such Lender, the Overnight Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount such amount so repaid shall constitute such Lender’s Advance as part of such
Borrowing for purposes of this Agreement, and thereafter, the Borrowers’ obligation to repay such
amount to the Administrative Agent in accordance with this subsection (d) shall no longer be
required; provided that the Borrowers shall not be relieved of their obligation to pay the interest
on such amount referred to herein unless and only to the extent that such Lender has paid the
interest on such amount referred to herein.
(e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Borrowing.
Section 2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Effective Date until the Letter
of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or Sterling for
the account of either Borrower or its respective Subsidiaries, and to amend or extend
Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2)
to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of either Borrower or its
Subsidiaries (for the avoidance of doubt, including any Letters of Credit with an expiry
date later than the Letter of Credit Expiration Date issued in accordance with Section
2.03(a)(ii)(B) below) and any drawings thereunder; provided that after giving effect to
any L/C Credit Extension with respect to any Letter of Credit (based in respect of any
Letter of Credit denominated in Sterling on the Equivalent in Dollars), (x)
25
the Outstanding Amount of all Advances, all L/C Obligations and all Swing Line Loans shall
not exceed the Total Commitment, (y) the Outstanding Amount of the Advances of any Lender
plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations
plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower
Agent for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrowers that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired or that have
been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of the requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, provided that a requested Letter of Credit may have an expiry date
that occurs more than twelve months after the date of issuance or last extension if
all Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless (i) on or before the Letter of Credit
Expiration Date, the Borrowers have Cash Collateralized 100% of the undrawn amount
of such Letter of Credit, such Cash Collateral to be in the same currency as the
related Letter of Credit or (ii) all the Lenders have otherwise approved such expiry
date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:
(A) any order, judgment or decree of any governmental authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the
Letter of Credit, or any law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any governmental authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or the Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to the Letter of Credit
any restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Effective Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which the L/C Issuer in good xxxxx xxxxx
material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer applicable to letters of credit generally, so long as such
26
policies are consistently applied by the L/C Issuer to its customers generally
and to letters of credit issued by it, such policies are not unusual to similarly
situated financial institutions and such policies are not contrary to the express
contractual obligations of the L/C Issuer under this Agreement;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
the Letter of Credit is in an initial stated amount less than $1,000,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars
or Sterling;
(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to the L/C Issuer (in its sole discretion) with the Borrowers or such Lender to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 8.16(a)(iv)) with respect to the Defaulting Lender arising
from either the Letter of Credit then proposed to be issued or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has actual or potential
Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of
the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue the Letter of Credit in its amended form under the terms
hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not
accept the proposed amendment to the Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
VII with respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article VII included the L/C Issuer with respect to such acts or omissions, and
(B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower Agent delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a duly authorized officer of the Borrower Agent or any other
27
employee of the Borrower Agent that is authorized by the President or Chief Financial
Officer of the Borrower Agent. Such Letter of Credit Application must be received by the
L/C Issuer and the Administrative Agent not later than 11:00 a.m. (
New York City time) at
least one Business Day (or such later date and time as the Administrative Agent and the L/C
Issuer may agree in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing thereunder; (G)
the purpose and nature of the requested Letter of Credit; (H) the applicable Borrower or
Subsidiary on whose account the Letter of Credit is being issued; and (I) such other matters
as the L/C Issuer may reasonably require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally,
the Borrower Agent shall furnish to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower Agent and,
if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless
the L/C Issuer has received written notice from any Lender, the Administrative Agent or any
Loan Party, at least one Business Day prior to the requested date of issuance or amendment
of the applicable Letter of Credit, that one or more applicable conditions contained in
Article III shall not then be satisfied, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the applicable Borrower or the applicable Subsidiary or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices. Immediately upon the issuance of each Letter of Credit (for
the avoidance of doubt, including any Letters of Credit with an expiry date later than the
Letter of Credit Expiration Date issued in accordance with Section 2.03(a)(ii)(B)),
each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Lender’s Pro Rata Share Percentage times the amount of
such Letter of Credit.
(iii) If the Borrower Agent so requests in any applicable Letter of Credit Application,
the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
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prevent any such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Non-Extension Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrower Agent shall not be required to make a
specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Lenders shall be deemed to have authorized (but may not require)
the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry
date not later than the Letter of Credit Expiration Date unless on or before the Letter of
Credit Expiration Date, the Borrowers have complied with the requirements set forth in
Section 2.03(a)(ii)(B), in which case such expiry date shall not extend more than
twelve months past the Letter of Credit Expiration Date unless all Lenders have otherwise
consented thereto; provided, however, that the L/C Issuer shall not permit any such
extension if (A) the L/C Issuer has determined that it would not be permitted, or would have
no obligation, at such time to issue such Letter of Credit in its revised form (as extended)
under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section
2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is seven Business Days before the Non-Extension Notice
Date (1) from the Administrative Agent that the Required Lenders have elected not to permit
such extension or (2) from the Administrative Agent, any Lender or any Loan Party that one
or more of the applicable conditions specified in Section 3.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower Agent and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower Agent and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in Sterling,
the Borrowers shall reimburse the L/C Issuer in Sterling, unless (A) the L/C Issuer (at its
option) shall have specified in such notice that it will require reimbursement in Dollars,
or (B) in the absence of any such requirement for reimbursement in Dollars, the Borrower
Agent shall have notified the L/C Issuer promptly following receipt of the notice of drawing
that the Borrowers will reimburse the L/C Issuer in Dollars. In the case of any such
reimbursement in Dollars of a drawing under a Letter of Credit denominated in Sterling, the
L/C Issuer shall notify the Borrower Agent of the Equivalent in Dollars of the amount of the
drawing promptly following the determination thereof. Not later than 11:00 a.m. (
New York
City time) on the next Business Day succeeding payment by the L/C Issuer under a Letter of
Credit (each such date, an “
Honor Date”), the Borrowers shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the amount of such drawing.
If the Borrowers fail to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Lender of
29
the Honor Date, the amount of the unreimbursed drawing (expressed in the Equivalent in
Dollars thereof in the case of a Letter of Credit denominated in Sterling) (the
“Unreimbursed Amount”), and the amount of such Lender’s Pro Rata Share thereof. In
such event, the Borrower Agent shall be deemed to have requested a Borrowing of Base Rate
Advances to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount
(expressed in the amount of the Equivalent in Dollars thereof in the case of any
Unreimbursed Amount in Sterling), without regard to the minimum and multiples specified in
Section 2.01 for the principal amount of Base Rate Advances, but subject to the
unutilized portion of the Total Commitments and the conditions set forth in Section
3.02 (other than delivery by the Borrower Agent of a Notice of Borrowing). Any notice
given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s office
for Dollar-denominated payments in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m. (New York City time) on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Advance to the Borrowers in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Advances because the conditions set forth in Section 3.02
cannot be satisfied or for any other reason, the Borrowers shall be deemed to have incurred
from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount (expressed in
the amount of the Equivalent in Dollars thereof in the case of any Unreimbursed Amount in
Sterling) that is not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest in accordance with Section 2.08(b).
In such event, each Lender’s payment to the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Lender funds its Advance or L/C Advance pursuant to this Section
2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Lender’s obligation to make Advances or L/C Advances to reimburse the L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
30
which such Lender may have against the L/C Issuer, either Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender’s obligation to make Advances pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 3.02 (other than
delivery by the Borrower Agent of a Notice of Borrowing). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Borrowers to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit,
together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s Advance included
in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the
case may be. A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrowers or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof (based on the Equivalent in Dollars for
any payment received in Sterling) in Dollars .
(ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned by the L/C Issuer
(including pursuant to any settlement entered into by the L/C Issuer in its discretion),
each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Pro
Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the termination
of this Agreement.
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(e) Obligations Absolute. The obligation of the Borrowers to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that a
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit, so long as the L/C Issuer reasonably determined that such draft or certificate
substantially complied with the terms of such Letter of Credit, or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any proceeding under the
bankruptcy code of the United States or any other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of creditors
generally; or
(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, a Borrower or any Subsidiary.
The Borrower Agent shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower
Agent’s instructions or other irregularity, the Borrower Agent will immediately notify the L/C
Issuer. The Borrowers shall be conclusively deemed to have waived any such claim against the L/C
Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and each Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
32
document (other than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrowers hereby assume all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and shall not,
preclude the Borrowers’ pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of the L/C
Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v)
of Section 2.03(e); provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrowers may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrowers which the Borrowers prove were caused
by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
(g) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrowers when a Letter of Credit is issued, the rules of the ISP shall apply to each standby
Letter of Credit.
(h) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share Percentage, in Dollars, a Letter
of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the
Applicable Margin for Eurodollar Rate Advances times the Equivalent in Dollars of the daily
amount available to be drawn under such Letter of Credit; provided, however, any Letter of Credit
Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit
as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the L/C Issuer
pursuant to this Section 2.03 or Section 2.18 shall be payable, to the maximum
extent permitted by applicable Law, to the other Lenders in accordance with the upward adjustments
in their respective Pro Rata Share Percentages allocable to such Letter of Credit pursuant to
Section 8.16(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for
its own account. For purposes of computing the daily amount available to be drawn under any Letter
of Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.04. Letter of Credit Fees shall be (i) due and payable on the first Business Day after the
end of each March,
33
June, September and December, commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)
computed on a quarterly basis in arrears. If there is any change in the Applicable Margin for
Eurodollar Rate Advances during any quarter, the daily amount available to be drawn under each
Letter of Credit shall be computed and multiplied by the Applicable Margin for Eurodollar Rate
Advances separately for each period during such quarter that such Applicable Margin for Eurodollar
Rate Advances was in effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall
accrue at a rate equal to the Applicable Margin for Eurodollar Rate Advances plus 2% per annum.
(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrowers shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on
the Equivalent in Dollars of the daily amount available to be drawn under such Letter of Credit on
a quarterly basis in arrears Such fronting fee shall be due and payable on the tenth Business Day
after the end of each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.04. In addition, the Borrowers shall pay directly to the L/C Issuer for its
own account, in Dollars, the customary issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect. Such customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.
(j) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.
(k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrowers shall be obligated to reimburse the L/C Issuer hereunder for any
and all drawings under such Letter of Credit. The Borrowers hereby acknowledge that the issuance
of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrowers, and
that each Borrower’s respective business derives substantial benefits from the businesses of such
Subsidiaries.
Section 2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, to make Advances (each such Advance, a “Swing Line Loan”) to the
Borrowers from time to time on any Business Day during the period from the Effective Date to the
Termination Date in an aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the
Pro Rata Share of the Outstanding Amount of Advances of the Swing Line Lender, may exceed the
34
amount of such Lender’s Commitment; provided, however, that after giving effect to any Swing
Line Loan, (i) the Outstanding Amount of all Advances, all L/C Obligations and all Swing Line Loans
shall not exceed the Total Commitment, and (ii) the Outstanding Amount of the Advances of any
Lender plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and provided, further, that the Borrowers shall
not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within
the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may
borrow under this Section 2.04, prepay under Section 2.11, and reborrow under this
Section 2.04. Each Swing Line Loan shall be in Dollars. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal to the product of such Lender’s Pro Rata Share Percentage times the amount of such
Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower
Agent’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 3:00 P.M. (New York City time) on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum of $1,000,000, (ii) the
requested borrowing date, which shall be a Business Day and (iii) identifying the applicable
Borrower. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed
and signed by a duly authorized officer of the Borrower Agent or any other employee of the Borrower
Agent that is authorized by the President or Chief Financial Officer of the Borrower Agent.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing
Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 4:00 P.M. (New York City
time) on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the first proviso to the
first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions
specified in Section 3.02 is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 5:00 P.M. (New York City time) on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the applicable Borrower in Same Day Funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrowers (each of which hereby irrevocably authorizes the Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate Advance in an amount
equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a Notice
of Borrowing for purposes hereof) and in
35
accordance with the requirements of Section 2.02, without regard to the minimum
and multiples specified in Section 2.01 for the principal amount of Base Rate
Advances, but subject to the unutilized portion of the Total Commitments and the conditions
set forth in Section 3.02. The Swing Line Lender shall furnish the Borrower Agent
with a copy of the applicable Notice of Borrowing promptly after delivering such notice to
the Administrative Agent. Each Lender shall make an amount equal to its Pro Rata Share of
the amount specified in such Notice of Borrowing available to the Administrative Agent in
immediately available funds (and the Administrative Agent may apply Cash Collateral
available with respect to the applicable Swing Line Loan) for the account of the Swing Line
Lender at the Administrative Agent’s office not later than 1:00 P.M. (New York City time) on
the day specified in such Notice of Borrowing, whereupon, subject to Section
2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Advance to the Borrowers in such amount. The Administrative Agent shall remit the
funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such an Advance in
accordance with Section 2.04(c)(i), the request for Base Rate Advances submitted by
the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line
Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan
and each Lender’s payment to the Administrative Agent for the account of the Swing Line
Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such
participation.
(iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation. A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender’s obligation to make Advances or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, either Borrower or any other Person for any reason whatsoever, (B) in
the case of each Lender’s obligation to purchase and fund risk participations only, the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each Lender’s
obligation to make Advances (but not to fund risk participations in Swing Line Loans)
pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 3.02. No such funding of risk participations shall relieve or otherwise
impair the
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obligation of the Borrowers to repay Swing Line Loans, together with interest as
provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share (determined at
the time of such purchase and funding) of such payment (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s risk
participation was funded) in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender
(including pursuant to any settlement entered into by the Swing Line Lender in its
discretion), each Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing Line Lender. The
obligations of the Lenders under this clause shall survive the payment in full of the all
amounts owing hereunder and under any Loan Document and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower Agent for interest on the Swing Line Loans. Until a Lender
funds its Base Rate Advance or risk participation pursuant to this Section 2.04 to
refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata
Share shall be solely for the account of the Swing Line Lender, and after such Lender funds its
Base Rate Advance or risk participation pursuant to this Section 2.04 to refinance such
Lender’s Pro Rata Share of any Swing Line Loan, such interest shall be for the account of such
Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
Section 2.05 Fees. In addition to certain fees described in subsections (h) and (i)
of Section 2.03:
(a) Facility Fee. The Borrowers agree to pay to the Administrative Agent for the
account of each Lender a facility fee on (i) until the Termination Date, the aggregate amount of
such Lender’s Commitment from the Effective Date in the case of each Initial Lender and from the
effective date specified in the Assignment and Assumption pursuant to which it became a Lender in
the case of each other Lender until the Termination Date and (ii) after the Termination Date in the
event that any Letter of Credit is issued with an expiry date that occurs beyond the Termination
Date, on the aggregate amount of such Lender’s unfunded and funded risk
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participations in all such Letters of Credit until such Letters of Credit have expired and all
L/C Obligations with respect thereto have been paid in full or terminated (the “Extended L/C
Termination Date”), in each case, subject to adjustment as provided in Section 8.16, at
a rate per annum equal to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December (each a “Facility Fee
Payment Date”), commencing with the Facility Fee Payment Date first occurring after the
Effective Date, and, in the case of clause (i) above, on the Termination Date, and in the case of
clause (ii) above on the Extended L/C Termination Date.
(b) Agent’s Fees. The Borrowers shall pay to the Administrative Agent for its own
account such fees as may from time to time be agreed between the Borrowers and the Administrative
Agent, including without limitation in the Fee Letter.
Section 2.06 Termination or Reduction of the Commitments. The Borrowers shall have
the right, upon at least three Business Days’ notice to the Administrative Agent, to terminate in
whole or permanently reduce ratably in part the unused portions of the respective Commitments of
the Lenders, provided that each partial reduction of the Total Commitment shall be in the aggregate
amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof.
Section 2.07 Repayment of Advances.
(a) The Borrowers shall repay to the Administrative Agent for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of all Advances then outstanding
together with all accrued and unpaid interest, fees and costs associated therewith. Repayments
made pursuant to this clause (a) shall be in the same currency in which such outstanding Advances
were made.
(b) The Borrowers shall repay each Swing Line Loan together with accrued and unpaid interest
thereon on the earlier to occur of (i) the date ten (10) Business Days after such Swing Line Loan
is made, and (ii) the Termination Date.
Section 2.08 Interest on Advances.
(a) Scheduled Interest. The Borrowers shall pay interest on the unpaid principal
amount of each Advance owing to each Lender from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin for Base Rate Advances in effect from time to
time, payable in arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such Advance is a
Eurocurrency Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the sum of (x) the Eurocurrency Rate for such Interest Period for such
Advance plus (y) the Applicable Margin for Eurocurrency Rate Advances in
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effect from time to time plus (z) in the case of each Advance in Sterling, the
Mandatory Cost, payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that occurs during
such Interest Period every three months from the first day of such Interest Period and on
the date such Eurocurrency Rate Advance shall be Converted or paid in full.
(iii) Swing Line Loans. With respect to each Swing Line Loan, a rate per annum
equal at all times to the sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin for Base Rate Advances in effect from time to time payable in arrears on
the date of repayment or refinancing, in whole or in part, of such Swing Line Loan.
(b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default, with the consent or at the direction of the Required Lenders, the Borrowers shall pay
interest on (i) the unpaid principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i), (a)(ii) or (a)(iii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid on such Advance
pursuant to clause (a)(i), (a)(ii) or (a)(iii) above and (ii) to the fullest extent permitted by
law, the amount of any interest, fee or other amount payable hereunder that is not paid when due,
from the date such amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times
to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to
clause (a)(i) above.
Section 2.09 Interest Rate Determination.
(a) The Administrative Agent shall give prompt notice to the Borrower Agent and the Lenders of
the applicable interest rate determined by the Administrative Agent for purposes of Section
2.08(a)(i), (ii) or (iii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required Lenders notify the
Administrative Agent that the Eurocurrency Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Required Lenders of making, funding or maintaining their
respective Eurocurrency Rate Advances for such Interest Period, the Administrative Agent shall
forthwith so notify the Borrower Agent and the Lenders, whereupon (i) each Eurocurrency Rate
Advance will automatically, on the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert Base Rate
Advances into, Eurocurrency Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower Agent and the Lenders that the circumstances causing such suspension no longer
exist.
(c) If the Borrowers shall fail to select the duration of any Interest Period for any
Eurocurrency Rate Advances in accordance with the provisions contained in the definition of
“Interest Period” in Section 1.01, the Administrative Agent will forthwith so notify the
Borrower Agent and the Lenders and such Advances will automatically, on the last day of the then
existing Interest Period for such Eurocurrency Rate Advance, Convert into Base Rate Advances.
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(d) On the date on which the aggregate unpaid principal amount of Eurocurrency Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurocurrency Rate Advances shall be suspended.
Section 2.10 Optional Conversion of Advances. The Borrowers may on any Business Day,
upon notice given to the Administrative Agent not later than 11:00 A.M. (New York City time) on the
third Business Day, with respect to Advances in Dollars, or the fifth Business Day, with respect to
Advances in Sterling, prior to the date of the proposed Conversion and subject to the provisions of
Sections 2.09 and 2.13, Convert all Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any Conversion of Eurocurrency
Rate Advances into Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurocurrency Rate Advances, any Conversion of Base Rate Advances into Eurocurrency Rate
Advances shall be in an amount not less than the minimum amount specified in Section
2.02(b) and no Conversion of any Advances shall result in more separate Eurocurrency Rate
Borrowings than permitted under Section 2.02(b). Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Advances
to be Converted, and (iii) if such Conversion is into Eurocurrency Rate Advances, the duration of
the initial Interest Period for each such Advance. Each notice of Conversion shall be irrevocable
and binding on the Borrowers.
Section 2.11 Prepayments of Advances.
(a) Optional Prepayments. The Borrowers may, upon notice to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, given not later than
11:00 A.M. (New York City time) on the third Business Day, with respect to Advances in Dollars, or
the fifth Business Day, with respect to Advances in Sterling, prior to the date of such proposed
prepayment, in the case of Eurocurrency Rate Advances, and not later than 11:00 A.M. (New York City
time) on the day of such proposed prepayment, in the case of Base Rate Advances, and if such notice
is given the Borrowers shall, prepay the Outstanding Amount of the Advances comprising part of the
same Borrowing in whole or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid, with such prepayment to be made in the currency in
which such Advances were made; provided, however, that (x) except in the case of prepayments of
Swing Line Loans, as described in clause (z) below, each partial prepayment shall be in an
aggregate principal amount of $5,000,000 or the Equivalent thereof in Sterling or an integral
multiple of $1,000,000 or the Equivalent thereof in Sterling in excess thereof, (y) in the event of
any such prepayment of a Eurocurrency Rate Advance, the Borrowers shall be obligated to reimburse
the Lenders in respect thereof pursuant to Section 8.04(c) and (z) in the case of a Swing
Line Loan, the Borrowers may prepay the Outstanding Amount of such Swing Line Loan, together with
accrued interest to the date of such prepayment on the principal amount prepaid, at any time in
minimum increments of $100,000.
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(b) Mandatory Prepayments.
(i) If at any time the sum of (A) the aggregate principal amount of all Advances
denominated in Dollars then outstanding plus (B) the Equivalent in Dollars of the aggregate
principal amount of all Advances denominated in Sterling then outstanding plus (C) the
aggregate amount of all L/C Obligations denominated in Dollars then outstanding plus (D) the
Equivalent in Dollars of the aggregate amount of all L/C Obligations denominated in Sterling
outstanding exceeds the Total Commitment on such date, the Borrowers shall, within two
Business Days after receipt of such notice given pursuant to (ii) below, prepay the
outstanding principal amount of any Advances and/or Cash Collateralize 100% of the L/C
Obligations pursuant to this Section 2.11(b) in an aggregate amount sufficient to
reduce such sum to an amount not to exceed the Total Commitment on such date.
(ii) Each prepayment made pursuant to this Section 2.11(b) (A) shall be made
together with any interest accrued to the date of such prepayment on the principal amounts
prepaid and, in the case of any prepayment of a Eurocurrency Rate Advance on a date other
than the last day of an Interest Period or at its maturity, any additional amounts which the
Borrowers shall be obligated to reimburse to the Lenders in respect thereof pursuant to
Section 8.04(c), and (B) shall be made in the currency in which the Advances subject
to such prepayment were made. The Administrative Agent shall give prompt notice of any
prepayment required under this Section 2.11(b) to the Borrower Agent and the
Lenders.
(c) Hedging Agreements. All Hedging Agreements, if any, between the Borrowers and any
Lender or its affiliates are independent agreements governed by the written provisions of such
Hedging Agreements, which will remain in full force and effect, unaffected by any repayment,
prepayment, acceleration, reduction, increase or change in terms of this Agreement or the Notes,
except as otherwise expressly provided in said written swap agreements, and any payoff statements
from the Administrative Agent relating to this Agreement shall not apply to said Hedging
Agreements, except as otherwise expressly provided in such payoff statement.
Subject to Section 8.16, each prepayment pursuant to this Section 2.11 (other than
prepayments of Swing Line Loans) shall be applied to the Advances of the Lenders in accordance with
their respective Pro Rata Share Percentages.
Section 2.12 Increased Costs.
(a) If, due to either (i) the introduction of or any change in or in the interpretation of any
law or regulation occurring after the date hereof, (ii) the compliance with any guideline or
request from any central bank or other governmental authority (whether or not having the force of
law) issued or made after the date hereof, or (iii) the Mandatory Cost, as calculated hereunder,
not representing the cost to any Lender or the L/C Issuer of complying with the requirements of the
Bank of England and/or the Financial Services Authority or the European Central Bank in relation to
its making, funding or maintaining Eurocurrency Rate Advances or participating in, issuing or
maintaining Letters of Credit, there shall be any increase in the cost to any Lender of agreeing to
make or making, funding or maintaining Eurocurrency Rate Advances or to any
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Lender or the L/C Issuer of participating in, issuing or maintaining any Letters of Credit
(excluding for purposes of this Section 2.12 any such increased costs resulting from (i)
Indemnifiable Taxes or Other Taxes (as to which Section 2.15 shall govern) and (ii) changes
in taxes measured by or imposed upon the net income or gross income or franchise taxes, or taxes
measured by or imposed upon capital or net worth, or branch taxes, of such Lender, its Applicable
Lending Office or the L/C Issuer), then the Borrowers shall from time to time, within ten days of
demand by such Lender or the L/C Issuer (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender or the L/C Issuer additional amounts
sufficient to compensate such Lender or the L/C Issuer for such increased cost; provided that,
before making any such demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different Applicable Lending
Office and the L/C Issuer agrees to use reasonable efforts to assign its rights and obligations
hereunder to another of its offices, branches or affiliates if the making of such a designation or
assignment would avoid the need for, or reduce the amount of, such additional cost and would not,
in the reasonable judgment of such Lender or the L/C Issuer, be otherwise disadvantageous to such
Lender or the L/C Issuer.
(b) If any Lender or the L/C Issuer reasonably determines that compliance with any law or
regulation or any guideline or request from any central bank or other governmental authority
regarding capital adequacy (whether or not having the force of law) issued or made after the date
hereof affects or would affect the amount of capital required or expected to be maintained by such
Lender or the L/C Issuer or any corporation controlling such Lender or the L/C Issuer and that the
amount of such capital is increased by or based upon the existence of such Lender’s commitment to
lend hereunder, the L/C Issuer’s commitment to issue Letters of Credit hereunder, and other
commitments of similar types, and such Lender or the L/C Issuer reasonably determines that the rate
of return on its or such controlling corporation’s capital as a consequence is reduced to a level
below that which such Lender, the L/C Issuer or such controlling corporation would have achieved
but for the occurrence of such conditions, then, within ten days of demand by such Lender or the
L/C Issuer (with a copy of such demand to the Administrative Agent), the Borrowers shall pay to the
Administrative Agent for the account of such Lender or the L/C Issuer, from time to time as
specified by such Lender or the L/C Issuer, additional amounts sufficient to compensate such
Lender, the L/C Issuer or such corporation in the light of such circumstances, to the extent that
such Lender or the L/C Issuer reasonably determines such increase in capital to be allocable to the
existence of such Lender’s or the L/C Issuer’s commitment to lend hereunder.
(c) If a Lender changes its Applicable Lending Office or the L/C Issuer assigns its rights and
obligations hereunder to another of its offices, branches or affiliates (other than pursuant to
this Section 2.12 or Section 2.13 or 2.15(g)) and the effect of such
change, as of the date of such change, would be to cause the Borrowers to become obligated to pay
any additional amounts under this Section 2.12, the Borrowers shall not be obligated to pay
such additional amount.
(d) A certificate of a Lender or the L/C Issuer setting forth the amount of any claim made
under this Section 2.12 and identifying with reasonable specificity the basis for
calculating such amount, shall be delivered to the Borrower Agent and the Administrative Agent and
shall be conclusive absent manifest error.
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Section 2.13 Illegality; Circumstances Affecting Availability. Notwithstanding any
other provision of this Agreement, if any Lender shall notify the Administrative Agent (who will
promptly notify the Borrower Agent and the other Lenders) that the introduction of or any change in
or in the interpretation of any law or regulation after the date hereof makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for any Lender or its
Eurocurrency Lending Office to perform its obligations hereunder to make Advances for which
interest is determined by reference to the Eurocurrency Rate or to fund or maintain such Advances
hereunder, or if the Administrative Agent determines that by reason of circumstances affecting
foreign exchange and interbank markets generally, the Eurocurrency Rate cannot be determined, then
(A) each Eurocurrency Rate Advance will automatically, upon such notice, Convert into a Base Rate
Advance (the interest rate on which Base Rate Advances shall, if necessary to avoid any illegality,
be determined by the Administrative Agent without reference to the Eurocurrency Rate component of
the Base Rate), and (B) the obligation of the Lenders to make Eurocurrency Rate Advances, Convert
Base Rate Advances into Eurocurrency Rate Advances or, if necessary to avoid any illegality, to
make Base Rate Advances the interest rate on which is determined by reference to the Eurocurrency
Rate component of the Base Rate shall be suspended until the Administrative Agent shall notify the
Borrower Agent and the Lenders that the circumstances causing such suspension or inability to
determine the Eurocurrency Rate no longer exist or that such Lender has entered into one or more
Assignment and Assumptions pursuant to Section 8.06 assigning its Commitment to one or more
Eligible Assignees; provided that, before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a designation would not, in
the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
Section 2.14 Payments Generally and Computations.
(a) General. All payments hereunder and under the Notes to be made by the Borrowers
shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.
The Borrowers shall make each payment hereunder and under the Notes not later than 11:00 A.M. (New
York City time) on the day when due in Dollars, in the case of Advances denominated in Dollars, or
in Sterling, in the case of Advances denominated in Sterling, to the Administrative Agent at the
Administrative Agent’s Account in Same Day Funds. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.12, 2.15 or
8.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of an Assignment and Assumption and recording of the
information contained therein in the Register pursuant to Section 8.06(c), from and after
the effective date specified in such Assignment and Assumption, the Administrative Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Assumption shall make all
appropriate adjustments in such payments for periods prior to such effective date directly between
themselves.
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(b) All computations of interest based on the Base Rate (including in each case where the Base
Rate is determined by reference to the Eurocurrency Rate) or the Federal Funds Rate and all
computations of interest in respect of Advances denominated in Sterling shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurocurrency Rate (other than (i) any case where the Base
Rate is determined by reference to the Eurocurrency Rate, and (ii) in respect of interest on
Advances in Sterling) and of facility fees, shall be made by the Administrative Agent on the basis
of a year of 360 days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or facility fees are
payable. Each determination by the Administrative Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
facility fee, as the case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances to be made in the next following calendar
month, or cause any payment of interest on or principal of Advances to be made after the Maturity
Date, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from the Borrower Agent prior
to the date on which any payment is due to the Lenders or the L/C Issuer hereunder that the
Borrowers will not make such payment in full, the Administrative Agent may assume that the
Borrowers have made such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender
or the L/C Issuer, as the case may be, on such due date an amount equal to the amount then due such
Lender or the L/C Issuer. If and to the extent the Borrowers shall not have so made such payment
in full to the Administrative Agent, each Lender or the L/C Issuer, as the case may be, shall repay
to the Administrative Agent forthwith on demand such amount distributed to such Lender or the L/C
Issuer together with interest thereon, for each day from the date such amount is distributed to
such Lender or the L/C Issuer until the date such Lender or the L/C Issuer repays such amount to
the Administrative Agent, at the Overnight Rate.
Section 2.15 Taxes.
(a) Except as otherwise required by law, any and all payments by the Borrowers hereunder,
under the Notes or under any other Loan Document issued hereunder shall be made, in accordance with
Section 2.14, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect
thereto (all such taxes, levies, imposts, deductions, charges, withholdings, and liabilities in
respect of payments hereunder, under the Notes or under any other Loan Document, along with any
penalties, additions to tax, interest and reasonable expenses arising therefrom or with respect
thereto (whether or not correctly or legally imposed or asserted by the relevant taxing authority),
collectively being hereafter referred to as “Taxes”), excluding, in the case of payments
made to any Lender, the L/C Issuer or the Administrative Agent (A) Taxes imposed on or measured by
its net income, and franchise Taxes, branch Taxes, Taxes on doing business and Taxes measured by or
imposed upon its capital or net worth, in each case imposed as a result of
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such Lender (and or such Lender’s Applicable Lending Office), the L/C Issuer or the
Administrative Agent being organized under the laws of, or being a legal resident of, or having a
fixed place of business or a permanent establishment or doing business in the jurisdiction imposing
such Tax (other than any such connection arising solely from such Lender (and or such Lender’s
Applicable Lending Office), the L/C Issuer or the Administrative Agent having executed, delivered
or performed its obligations, or having received a payment, or having enforced its rights and
remedies, under this Agreement or any of the other Loan Documents), (B) United States branch
profits tax or any similar tax imposed by any jurisdiction in which either Borrower is located, (C)
in the case of a Lender (including such a Lender when acting in the capacity of L/C Issuer)
organized under the laws of a jurisdiction outside the United States, any United States withholding
tax that is required to be imposed on amounts payable to such Lender (including such a Lender when
acting in the capacity of L/C Issuer) pursuant to applicable laws in force at the time such Lender
becomes a party hereto (or designates a new Applicable Lending Office), (D) as provided in
Section 2.15(g), (E) any tax imposed by Sections 1471-1474 of the Code, (F) United Kingdom
withholding Taxes except to the extent such United Kingdom withholding Taxes would not have been
imposed but for a change, after the date such Lender or the Administrative Agent (as the case may
be) becomes a party hereto, in United Kingdom tax law or officially published HM Revenue & Customs
practice or an amendment or revocation, after the date such Lender or the Administrative Agent (as
the case may be) becomes a party hereto, of an applicable United Kingdom income tax treaty with
Austria, Denmark, Finland, France, Germany, Ireland, Iceland, Luxembourg, Netherlands, Norway,
Sweden, Switzerland or the United States, and (G) United Kingdom Taxes imposed as a result of the
failure of HM Revenue & Customs to approve, on or before a payment of interest to a Lender
hereunder, a claim by such Lender for exemption from such United Kingdom Taxes, where such failure
is due to such Lender’s failure to submit a validly completed and executed Treaty Form within a
reasonable time after such Lender would have been allowed to submit such Treaty Form, it being
understood that after any such approval by HM Revenue & Customs of such Lender’s claim for
exemption, such United Kingdom Taxes with respect to such Lender shall not be excluded from the
application of this Section 2.15(a) (any non-excluded Taxes hereinafter referred to as
“Indemnifiable Taxes”). If either Borrower shall be required by law to deduct any
Indemnifiable Taxes from or in respect of any sum payable hereunder, under any Note issued
hereunder or under any other Loan Document to any Lender, the L/C Issuer or the Administrative
Agent or, if the Administrative Agent shall be required by law to deduct any Indemnifiable Taxes
from or in respect of any sum paid or payable hereunder, under any Note or under any other Loan
Document to any Lender or the L/C Issuer, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions for Indemnifiable Taxes (including
deductions for Indemnifiable Taxes, whether by such Borrower or the Administrative Agent,
applicable to additional sums payable under this Section 2.15) such Lender, the L/C Issuer
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, (ii) such Borrower (or, as the case may be and as
required by applicable law, the Administrative Agent) shall make such deductions and (iii) such
Borrower (or, as the case may be and as required by applicable law, the Administrative Agent) shall
pay the full amount deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrowers shall timely pay in accordance with applicable laws any present
or future stamp or documentary taxes or any other excise (other than income) or
45
property taxes, charges or similar levies that arise from any payment made hereunder, under
the Notes or under any other Loan Document or from the execution, delivery or registration of, or
performing under this Agreement, the Notes, any other Loan Document or any document to be furnished
under or in connection with any thereof or any modification or amendment in respect of this
Agreement, the Notes or any other Loan Document (hereinafter referred to as “Other Taxes”);
provided that for the avoidance of doubt, the Taxes imposed by Sections 1471-1474 of the Code shall
not be treated as Other Taxes.
(c) The Borrowers shall indemnify each Lender, the L/C Issuer and the Administrative Agent for
the full amount of Indemnifiable Taxes or Other Taxes imposed on or paid by such Lender, the L/C
Issuer or the Administrative Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto. This indemnification shall be
made within 30 days from the date such Lender, the L/C Issuer or the Administrative Agent (as the
case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Indemnifiable Taxes under Section
2.15(a) by the Borrowers, the Borrower Agent shall furnish to the Administrative Agent, at its
address referred to in Section 8.02, the original or a certified copy of a receipt
evidencing such payment to the extent such receipt is received by the Borrowers, or other written
proof of payment reasonably satisfactory to the Administrative Agent showing payment thereof. In
the case of any payment hereunder or under the Notes issued hereunder by or on behalf of a Borrower
organized under the laws of the United Kingdom through an account or branch outside the United
Kingdom or by or on behalf of the Borrower by a payor that is not a United Kingdom person, if the
Borrower determines that no Indemnifiable Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Administrative Agent, at such address, an
opinion of counsel acceptable to the Administrative Agent stating that such payment is exempt from
Indemnifiable Taxes.
(e) Each Lender organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assignment and Assumption pursuant to which it becomes a Lender in
the case of each other Lender, and from time to time thereafter as requested in writing by the
Borrower Agent shall provide each of the Administrative Agent and the Borrower Agent with (i) two
original Internal Revenue Service Form W-8BEN, W-8ECI, or W-8IMY as appropriate, or any successor
or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt
from United States withholding tax and (ii) to the extent that any such form or other certification
becomes obsolete with respect to any Lender, such Lender shall, upon the written request of the
Borrower Agent to such Lender and the Administrative Agent, promptly provide either an updated or
successor form or certification to the Borrower Agent and the Administrative Agent unless, in each
case, any change in treaty, law or regulation has occurred after the date such Lender becomes a
party hereunder which renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such Lender so advises the
Borrower Agent and the Administrative Agent. Each Lender that is a “United States person” within
the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver to the Borrower Agent
and the Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other
documentation or information prescribed by applicable laws or reasonably requested by the
46
Borrower Agent or the Administrative Agent as will enable the Borrowers or the Administrative
Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding
or information reporting requirements.
(f) Each Lender shall (i) as soon as reasonably practicable following the date it becomes a
party hereto, submit to its Relevant Taxing Authority a validly completed Treaty Form (or successor
Treaty Form thereto) claiming exemption from United Kingdom withholding Tax on interest, or (ii)(A)
on or before the date it becomes a party hereto, furnish to the Borrower, with a copy to the
Administrative Agent, a certificate substantially in the form of Exhibit I (a “U.K. Tax
Compliance Certificate”) certifying that such Lender (1) is a “bank” within the meaning of
Section 879 of the Income Tax Xxx 0000 of the United Kingdom and (2) is within the charge to
corporation tax in the United Kingdom with respect to payment hereunder and (B) agree, upon
reasonable request by the Borrower, to provide to the Borrower and the Administrative Agent, to the
extent it is legally entitled to do so, such other forms as may be required by law in order to
establish the legal entitlement of such Lender to an exemption from United Kingdom withholding Tax
with respect to payments under this Agreement and the Notes issued hereunder, unless, in each case,
any change in treaty, law or regulation has occurred after the date such Lender becomes a party
hereunder which renders any such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so advises the Borrower
and the Administrative Agent.
(g) For any period with respect to which a Lender has failed to provide the Borrower Agent
with the appropriate form described in Section 2.15(e) (other than if the Borrower Agent
has failed to timely request with reasonable notice any appropriate renewal, successor or other
form or if any such form otherwise is not required under subsection (e) or (f)), such Lender shall
not be entitled to indemnification under Section 2.15(a) or (c) with respect to
Indemnifiable Taxes imposed by the United Kingdom or the United States by reason of such failure;
provided, however, that should a Lender become subject to Indemnifiable Taxes or United Kingdom or
United States withholding Taxes because of its failure to deliver a form required hereunder, the
Borrowers shall take such steps as such Lender shall reasonably request to assist such Lender to
recover such Indemnifiable Taxes or United Kingdom or United States withholding Taxes.
(h) If a condition or an event occurs which would, or would upon the passage of time or giving
notice, result in the payment of any additional amounts pursuant to this Section 2.15, each
Lender agrees to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending Office and the L/C
Issuer agrees to use its reasonable efforts to assign its rights and obligations hereunder to
another of its offices, branches or affiliates if the making of such a change or assignment would
avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue
and would not, in the reasonable judgment of such Lender or the L/C Issuer, be otherwise
disadvantageous to such Lender or the L/C Issuer.
(i) If the Administrative Agent, the L/C Issuer or any Lender, in its sole opinion, determines
that it has finally and irrevocably received or been granted a refund in respect of any
Indemnifiable Taxes or Other Taxes as to which indemnification has been paid by the Borrowers
pursuant to Section 2.15(a) or (c), it shall promptly remit such refund to the
Borrowers, net of all out-of-pocket expenses of the Administrative Agent, the L/C Issuer or such
Lender; provided,
47
however, that the Borrowers upon the request of the Administrative Agent, the L/C Issuer or
such Lender, agree promptly to return such refund to such party in the event such party is required
to repay such refund to the relevant taxing authority. The Administrative Agent, the L/C Issuer or
such Lender shall provide the Borrower Agent with a copy of any notice or assessment from the
relevant taxing authority (deleting any confidential information contained therein) requiring the
repayment of such refund. Nothing contained herein shall impose an obligation on the
Administrative Agent, the L/C Issuer or any Lender to apply for any refund or to disclose to any
party any information regarding their proprietary information regarding tax affairs and
computations. If the Borrowers determine in good faith that a reasonable basis exists for
contesting any Taxes for which indemnification has been demanded hereunder, the relevant Lender,
the L/C Issuer or the Administrative Agent, as applicable, to the extent permitted by law, rule or
regulation, shall reasonably cooperate with the Borrowers in challenging such Taxes at the
Borrowers’ expense if so requested by the Borrower Agent in writing. If any Indemnifiable Taxes or
Other Taxes are imposed that result in an indemnification or payment obligation on any Borrower,
such Borrower shall be entitled to challenge or dispute the imposition of such Indemnifiable Taxes
or Other Taxes with the applicable taxing authority in an appropriate proceeding diligently
conducted, and such Borrower shall be permitted to control such proceeding, including as to
settlement.
(j) If a Lender changes its Applicable Lending Office or the L/C Issuer assigns its rights and
obligations hereunder to another of its offices, branches or affiliates (other than pursuant to
subsection (g) above or Section 2.12 or 2.13) and the effect of such change, as of
the date of such change, would be to cause the Borrowers to become obligated to pay any additional
amounts under this Section 2.15, the Borrowers shall not be obligated to pay such
additional amount.
(k) A certificate of a Lender or the L/C Issuer setting forth such amount or amounts as shall
be necessary to compensate such Lender or the L/C Issuer specified in Section 2.15(a),
(b), or (c) above, as the case may be, and identifying with reasonable specificity
the basis for calculation of such amount or amounts, shall be delivered to the Borrower Agent and
the Administrative Agent and shall be conclusive absent manifest error.
(l) The obligations of a Lender and the L/C Issuer under this Section 2.15 shall
survive the termination of this Agreement and the payment of the Advances and all other Obligations
hereunder.
Section 2.16 Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Advances owing to it (other than pursuant to Section 2.12, 2.15 or
8.04(c)), or the participations in L/C Obligations or in Swing Line Loans held by it, in
excess of its ratable share of payments on account of the Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations in the Advances
(and subparticipations in L/C Obligations and Swing Line Loans) owing to them as shall be necessary
to cause such purchasing Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to
the purchasing Lender the purchase price to the extent of such recovery together with an amount
48
equal to such Lender’s ratable share (according to the proportion of (i) the amount of such
Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrowers agree that any Lender so purchasing a participation from
another Lender pursuant to this Section 2.16 may, to the fullest extent permitted by law,
exercise all of its rights of payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of
such participation. Notwithstanding the foregoing, the provisions of this Section shall not be
construed to apply to (x) any payment that is in excess of such Lender’s ratable share made by or
on behalf of the Borrowers pursuant to and in accordance with the express terms of this Agreement
(including those provisions providing for the application of funds when a Defaulting Lender exists)
or (y) the application of Cash Collateral or other credit support (and proceeds thereof) in respect
of obligations relating to Letters of Credit or Swing Line Loans (including related Lender
participation obligations) provided for in 2.18.
Section 2.17
Use of Proceeds. The proceeds of the Advances shall be available (and
the Borrowers agree that they shall use such proceeds) solely (i) for working capital, capital
expenditures, and for other lawful purposes (including, without limitation, to provide liquidity
support for commercial paper issued by the Borrowers, acquisition financing and repurchases of
equity, Existing Debt or other Debt of the Parent and its Subsidiaries to the extent not prohibited
by this Agreement), and (ii) to repay in full all amounts outstanding under the Existing
Credit
Agreement.
Section 2.18 Cash Collateral and Other Credit Support.
(a) Certain Credit Support Events.
(i) Upon the request of the Administrative Agent or the L/C Issuer (A) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, (B) if, as of the Letter of Credit Expiration
Date, any L/C Obligation for any reason remains outstanding, or (C) if the Outstanding
Amount of all L/C Obligations exceeds the Letter of Credit Sublimit, the Borrowers shall, in
the case of clause (A) and (B) above, promptly Cash Collateralize 100% of the then
Outstanding Amount of all L/C Obligations, and in the case of clause (C) above, promptly
Cash Collateralize 100% of such excess.
(ii) At any time (A) a Defaulting Lender exists, (B)(1) the Borrower Agent requests a
Letter of Credit or a Swing Line Loan or (2) a Letter of Credit or a Swing Line Loan is
outstanding, and (C) the Pro Rata Share Percentages of each non-Defaulting Lender can not
fully be adjusted as set forth in Section 8.16(a)(iv), then the Administrative Agent
and the L/C Issuer or Swing Line Lender, as applicable, may, in their sole discretion,
require that the Borrowers enter into arrangements satisfactory to the Administrative Agent
and the L/C Issuer or the Swing Line Lender, as applicable, for the delivery of Cash
Collateral to the Administrative Agent in an amount sufficient to cover all Fronting
Exposure (after giving effect to Section 8.16(a)(iv) and any Cash Collateral
provided by the Defaulting Lender). With respect to the circumstances described in clause
(B)(1) above, such arrangements shall be a condition to the Advance of such
49
Swing Line Loan or the issuance of such Letter of Credit. With respect to the
circumstances described in clause (B)(2) above, such arrangements shall be made no later
than five (5) Business Days after written notice to the Borrower Agent from the
Administrative Agent, the L/C Issuer or the Swing Line Lender that the circumstances in
clause (A) and (C) above exist, unless the Borrowers (x) have replaced such Defaulting
Lender prior to such time in accordance with the terms of this Agreement or (y) in the case
of a Swing Line Loan, have otherwise repaid such Swing Line Loan, or (z) in the case of a
Letter of Credit, have otherwise caused such Letter of Credit to be terminated or replaced.
(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Borrowers, and to the extent provided by any Defaulting Lender,
such Lender, agree that to the extent any Cash Collateral is provided to the Administrative Agent
under any of this Section 2.18 or Sections 2.03, 2.11, 6.02 or
8.16, the Borrowers or such Lender, as applicable, will at such time grant to (and subject
to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C
Issuer and the Lenders (including the Swing Line Lender), a first priority security interest in all
such Cash Collateral (including all deposit accounts and all balances therein, all other property
so provided as collateral pursuant hereto, and all proceeds of the foregoing) pursuant to a
security agreement and a Cash Collateral account control agreement, in each case, to be mutually
agreed and entered into between the Borrowers, or the Defaulting Lender, as the case may be, and
the Administrative Agent, all as security for the obligations to which such Cash Collateral may be
applied pursuant to Section 2.18(c). If at any time the Administrative Agent determines
that Cash Collateral is subject to any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of such Cash Collateral is less than the
applicable Fronting Exposure and other obligations secured thereby, the Borrowers or the relevant
Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the
Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.
(c) Application. Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under any of this Section 2.18 or Sections 2.03,
2.11, 6.02 or 8.16 in respect of Letters of Credit or Swing Line Loans
shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans,
obligations to fund participations therein (including, as to Cash Collateral provided by a
Defaulting Lender, any interest accrued on such obligation) and other obligations for which the
Cash Collateral was so provided, prior to any other application of such property as may be provided
for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 8.06(b)(vi))) or (ii) the Administrative Agent’s good
faith determination that there exists excess Cash Collateral; provided, however, (x) that Cash
Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance
of a Default or Event of Default (and following application as provided in this Section
2.18 may
50
be otherwise applied in accordance with Section 6.02), and (y) the Person providing
Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash
Collateral shall not be released but instead held to support future anticipated Fronting Exposure
or other obligations.
(e) Claims against Defaulting Lenders. No action taken, permitted to be taken or
omitted to be taken by the Borrowers, the Administrative Agent, the Swing Line Lender or any Lender
under this Section 2.18 or any of the other terms or provisions of this Agreement shall
constitute or be deemed to be a waiver or release of any claim the Borrowers, the Administrative
Agent, the Swing Line Lender or any other Lender may have against a Defaulting Lender for its
failure to comply with any of the terms or provisions of this Agreement.
Section 2.19 Joint and Several Liability. Notwithstanding any other provision of this
Agreement, each Borrower shall be jointly and severally liable as a primary obligor, and not merely
as surety, for any and all Obligations now or hereafter owed by either Borrower to the
Administrative Agent, the L/C Issuer and the Lenders, whether voluntary or involuntary and however
arising, whether direct or acquired by any Lender by assignment or succession, whether due or not
due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether
either Borrower may be liable individually or jointly with others, or whether recovery upon such
Obligations may be or hereafter become barred by any statute of limitations, or whether such
Obligations may be or hereafter become otherwise unenforceable (such Obligations, the
“Borrowers’ Liabilities”). Moreover, for valuable consideration, each Borrower
unconditionally guarantees and promises to pay to Administrative Agent, on behalf of itself and the
Lenders, as and when due, in lawful money of the United States, any and all of the Borrowers’
Liabilities. Notwithstanding the foregoing, the liability of each Borrower individually with
respect to its Borrowers’ Liabilities shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of any applicable state law.
(a) The guaranty of each Borrower hereunder shall be a continuing guaranty relating to any
Borrowers’ Liabilities, including those arising under successive transactions which shall either
continue Obligations or from time to time renew any Obligations after such Obligations shall have
been satisfied. Any payment by either Borrower shall not reduce the Borrowers’ maximum obligation
hereunder. The guaranty of each Borrower hereunder is a guaranty of payment and not of collection.
(b) The Obligations of each Borrower are independent, and a separate action or actions may be
brought and prosecuted against one Borrower whether action is brought against the other Borrower or
whether the other Borrower is joined in any such action or actions; and each Borrower waives the
benefit of any statute of limitations affecting its liability hereunder.
(c) Each Borrower agrees that neither the Administrative Agent nor any Lender shall have any
responsibility to inquire into the apportionment, allocation or disposition of the proceeds of any
Credit Extension as between the Borrowers, and acknowledges that its liability hereunder shall not
be reduced or diminished by such Borrower, the Administrative Agent or the other Borrower giving or
receiving of notices and other communications, making requests
51
for, or effecting conversions or continuations of, Loans or Letters of Credit, executing and
delivering certificates, or receiving or allocating disbursements from the Lenders. Each Borrower
acknowledges that the handling of any Advances, Letters of Credit or other Obligations made
hereunder or under any other Loan Document on a joint borrowing basis as set forth in this
Agreement is solely an accommodation to the Borrowers and is done at their request. Each Borrower
agrees that no Lender nor the Administrative Agent nor the L/C Issuer shall incur any liability to
such Borrower as a result of such accommodation.
(d) Each Borrower represents and warrants to the Administrative Agent and the Lenders that the
request for any joint handling of any Advances, Letters of Credit or other Obligations made
hereunder or under any other Loan Document was made because the Borrowers are engaged in related
operations and are interdependent. Each Borrower expects to derive benefit, directly or
indirectly, from the availability of each Advance, Letter of Credit or other Obligation because the
successful operation of each Borrower is dependent on the continued successful performance of the
functions of the Borrowers as a group.
(e) Each Borrower represents and warrants to the Administrative Agent and the Lenders that (i)
it has established adequate means of obtaining from the other Borrower on a continuing basis
financial and other information pertaining to the business, operations and condition (financial and
otherwise) of the other Borrower and its respective property, and (ii) it now is and hereafter will
be completely familiar with the business, operations and condition (financial and otherwise) of the
other Borrower, and its property. Each Borrower hereby waives and relinquishes any duty on the
part of the Administrative Agent to disclose to such Borrower any matter, fact or thing relating to
the business, operations or condition (financial or otherwise) of the other Borrower, or the
property of the other Borrower, whether now or hereafter known by the Administrative Agent or any
Lender during the term of this Agreement.
(f) Each Borrower expressly waives any right to require the Administrative Agent and the
Lenders to marshal assets in favor of either Borrower or any other Person or to proceed against the
other Borrower or any other Person or any collateral provided by the other Borrower or any other
Person, and agrees that the Administrative Agent and the Lenders may proceed against either
Borrower and/or collateral in such order as they shall determine in their sole and absolute
discretion. The Administrative Agent and the Lenders may file a separate action or actions against
either Borrower, whether action is brought or prosecuted with respect to any other security or
against any other Person, or whether any other Person is joined in any such action or actions.
Each Borrower agrees that the Administrative Agent and the Lenders and the other Borrower may deal
with each other in connection with the Obligations, the Borrowers’ Liabilities or otherwise, or
alter any contracts or agreements now or hereafter existing between any of them, in any manner
whatsoever, all without in any way altering or affecting the obligations of such Borrower under the
Loan Documents.
(g) Each Borrower expressly waives any and all defenses now or hereafter arising or asserted
by reason of (i) any disability or other defense of the other Borrower, any Guarantor or any other
Person with respect to any Obligations, (ii) the unenforceability or invalidity as to the other
Borrower, any Guarantor or any other Person of the Obligations, (iii) the unenforceability or
invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing
perfection or failure of priority of any security for the Obligations, (iv) the cessation
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for any cause whatsoever of the liability of either Borrower, any Guarantor or any other
Person (other than by reason of the full payment and performance of all Obligations), (v) to the
extent permitted by law, any failure of the Administrative Agent and the Lenders to give notice of
sale or other disposition to either Borrower, any Guarantor or any other Person or any defect in
any notice that may be given in connection with any sale or disposition, (vi) to the extent
permitted by law, any failure of the Administrative Agent and the Lenders to comply with applicable
laws in connection with the sale or other disposition of any collateral or other security for any
Obligation, including without limitation any failure of the Administrative Agent and the Lenders to
conduct a commercially reasonable sale or other disposition of any collateral or other security for
any obligation, (vii) any act or omission of the Administrative Agent and the Lenders, that
directly or indirectly results in or aids the discharge or release of either Borrower or any
Guarantor or the Obligations or any other security or guaranty therefor by operation of law or
otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither
be larger in amount nor in other respects more burdensome than that of the principal or which
reduces a surety’s or guarantor’s obligation in proportion to the principal obligation, (ix) any
failure of the Administrative Agent and the Lenders to file or enforce a claim in any bankruptcy or
other proceeding with respect to the other Borrower, any Guarantor or any other Person, (x) the
election by the Administrative Agent and the Lenders, in any bankruptcy proceeding of the other
Borrower or any Guarantor, of the application or non-application of Section 1111(b)(2) of the
United States Bankruptcy Code, (xi) any extension of credit or the grant of any Lien under Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code in connection with the bankruptcy of the other Borrower or
any Guarantor, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy
Code, or (xiii) any agreement or stipulation with the other Borrower or any Guarantor with respect
to the provision of adequate protection in any bankruptcy proceeding of any Person.
(h) Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan
Document to which either Borrower is a party, each Borrower hereby waives, so long as any Lender
shall have any Commitment hereunder, any Advance or other Obligation hereunder shall remain unpaid
or unsatisfied or any Letter of Credit or other L/C Obligation shall remain outstanding, with
respect to the other Borrower and its successors and assigns (including any surety) and all rights
at law or in equity to subrogation, to reimbursement, to exoneration, to contribution, to setoff or
to any other rights that could accrue to a surety against a principal, to a guarantor against a
maker, to an accommodation party against the party accommodated, or to a holder or transferee
against a maker and which either Borrower may have or hereafter acquire against the other Borrower
or any other Person in connection with or as a result of the execution, delivery and/or performance
of this Agreement or any other Loan Document. Each Borrower agrees that, so long as any Lender
shall have any Commitment hereunder, any Advance or other Obligation hereunder shall remain unpaid
or unsatisfied or any Letter of Credit or other L/C Obligation shall remain outstanding, it shall
not have or assert any such rights against the other Borrower or its successors and assigns or any
other party (including any surety), either directly or as an attempted setoff to any action
commenced against either Borrower by the other Borrower (as borrower or in any other capacity) or
any other party. Each Borrower hereby acknowledges and agrees that this waiver is intended to
benefit the Administrative Agent and the Lenders and shall not limit or otherwise affect Borrowers’
liability hereunder, under any other Loan Document to which either Borrower is a party, or the
enforceability hereof or thereof.
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(i) Any obligations of either Borrower or any Guarantor to the other Borrower, now or
hereafter existing, including but not limited to any obligations to a Borrower or a Guarantor as
subrogee of the Administrative Agent and the Lenders or resulting from a Borrower’s performance
under this guaranty, are hereby subordinated to the Borrowers’ Liabilities. Such obligations of a
Borrower or a Guarantor to the other Borrower, if the Administrative Agent so requests, shall be
enforced, and performance received by such Borrower or such Guarantor as trustee for the
Administrative Agent and the Lenders, and the proceeds thereof shall be paid over to the
Administrative Agent for the benefit of the Administrative Agent and the Lenders on account of the
Obligations of the Borrowers to the Administrative Agent and the Lenders, but without reducing or
affecting in any manner the liability of either Borrower under the other provisions of the guaranty
contained herein.
(j) Each Borrower irrevocably appoints IVZ (the “Borrower Agent”) as its agent for all
purposes relevant to this Agreement and each of the other Loan Documents, including (i) the giving
and receipt of all notices (including any Notice of Borrowing) and any Issuer Document, (ii) the
execution and delivery of all documents, instruments and certificates contemplated herein and all
modifications hereto, (iii) the receipt of the proceeds of any Advances made by the Lenders to
either Borrower hereunder, and (iv) for receiving service of process. Any acknowledgment, consent,
direction, certification or other action which might otherwise be valid or effective only if given
or taken by all Borrowers, or by either or each Borrower acting singly, shall be valid and
effective if given or taken only by the Borrower Agent, whether or not either Borrower joins
therein. Any notice, demand, consent, acknowledgement, direction, certification or other
communication received from the Borrower Agent in accordance with the terms of this Agreement or
any other Loan Document shall be deemed to have been received from each Borrower (to the extent
delivery by such Borrower is required by or appropriate under the terms of this Agreement). Any
notice, demand, consent, acknowledgement, direction, certification or other communication required
to be delivered by any Lender, the Administrative Agent or the L/C Issuer to either Borrower, or
the Borrowers collectively, shall be deemed to have been so delivered if delivered to the Borrower
Agent, and any proceeds of any Advances made by the Lenders to be made available to either Borrower
shall be deemed to have been made available to such Borrower if made available to the Borrower
Agent.
(k) Notwithstanding anything to the contrary contained herein, to the extent this Agreement
requires payment of an amount by “each Borrower”, “the Borrowers” or “a Borrower”, such payment
shall be made by the Borrowers, jointly and severally, without duplication.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01 Conditions Precedent to Effectiveness. This Agreement shall become
effective on the date (the “Effective Date”) that the following conditions precedent have
been satisfied:
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(a) The Borrowers shall have paid all fees and expenses of the Administrative Agent, the L/C
Issuer and the Lenders payable hereunder and accrued as of the Effective Date (including the
accrued fees and expenses of counsel to the Administrative Agent).
(b) On the Effective Date, the following statements shall be true and the Administrative Agent
shall have received for the account of each Lender a certificate signed by a duly authorized
officer of the Borrower Agent, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in
all material respects on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Administrative Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the Administrative Agent and
(except for the Notes) in sufficient copies for each Lender:
(i) Executed counterparts of this Agreement from all parties hereto.
(ii) If requested by a Lender, a Note payable to the order of such Lender, in a
principal amount equal to each such Lender’s Commitment.
(iii) Certified copies of the resolutions of the Board of Directors (or committee
thereof) of each Borrower and each other Loan Party approving this Agreement, the Notes and
each Guaranty to which it is or is to be a party, and of all documents evidencing other
necessary corporate action and governmental and other third party approvals and consents, if
any, with respect to this Agreement, the Notes and each Guaranty.
(iv) A certificate of the Director, Secretary or an Assistant Secretary of each Loan
Party certifying the names and true signatures of the officers of such Loan Party authorized
to sign the Loan Documents to which it is a party and the other documents to be delivered
hereunder.
(v) A Subsidiary Guaranty executed by each Subsidiary Guarantor, and the Parent
Guaranty duly executed by the Parent.
(vi) An opinion of Xxxxxx & Bird LLP, counsel for the Borrowers and certain other Loan
Parties, in substantially the form of Exhibit E attached hereto.
(vii) An opinion of Linklaters, English counsel for IHCL, in substantially the form of
Exhibit F attached hereto and to such other matters as any Lender through the
Administrative Agent may reasonably request.
(viii) An opinion of XXXXXXX, Bermuda counsel for the Parent, in substantially the form
of Exhibit G attached hereto and to such other matters as any Lender through the
Administrative Agent may reasonably request.
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(ix) An acceptance of the appointment of the Process Agent (as such term is defined in
Section 8.12) for each of the Parent and IHCL.
(x) A certificate signed by the chief financial officer of IHCL certifying the current
Debt Ratings.
(d) All amounts outstanding, if any, under the Existing
Credit Agreement shall have been paid,
and the Existing
Credit Agreement shall have been terminated (including termination of all
commitments thereunder) in writing satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received (i) the Consolidated financial statements of
the Parent and its Subsidiaries for the fiscal quarter ended March 31, 2010 and (ii) the financial
projections of the Parent and its Subsidiaries on a Consolidated basis for the fiscal years ended
2010, 2011, 2012, 2013 and 2014, in each case, in form and substance reasonably satisfactory to the
Administrative Agent.
Section 3.02 Conditions Precedent to Each Borrowing and Each L/C Credit Extension.
The obligation of each Lender to make an Advance on the occasion of each Borrowing and the
obligation of the L/C Issuer to make an L/C Credit Extension shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such Borrowing or date of
such L/C Credit Extension the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing or Letter of Credit Application and the acceptance by the Borrowers
of the proceeds of such Borrowing or the issuance of such Letter of Credit, as applicable, shall
constitute a representation and warranty by the Borrowers that on the date of such Borrowing or the
date of such L/C Credit Extension, such statements are true):
(a) the representations and warranties contained in Section 4.01 (excluding, in
the case of Borrowings, clauses (g) and (i)(i) of Section 4.01) are correct in all
material respects on and as of the date of such date, before and after giving effect to such
Borrowing or such Letter of Credit Extension and to the application of the proceeds
therefrom, as though made on and as of such date except to the extent such representations
and warranties specifically relate to an earlier date, in which case such representations
and warranties shall have been correct in all material respects on and as of such earlier
date (other than in the case of the representations and warranties made in Section
4.01(d), which shall be correct in all material respects on and as of such date of
Borrowing or date of L/C Credit Extension as though made on and as of such date, without
regard to any earlier date referenced therein);
(b) no event has occurred and is continuing, or would result from such Borrowing or
from the application of the proceeds therefrom or such L/C Credit Extension that constitutes
a Default; and
(c) the Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
Lender shall have received a Notice of Borrowing or Letter of Credit Application, as
applicable, in accordance with the requirements hereof.
Section 3.03 Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to
have
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consented to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Administrative Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that the Borrowers, by
notice to the Lenders, designates as the proposed Effective Date, specifying its objection thereto.
The Administrative Agent shall promptly notify the Lenders and the Borrowers of the occurrence of
the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Parent and the Borrowers. Each of
the Parent and each Borrower represents and warrants as follows:
(a) Each Loan Party (i) is duly organized or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, (ii) is duly qualified and
in good standing in each other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except where the failure to so
qualify or be licensed is not reasonably likely to have a Material Adverse Effect and (iii) has all
requisite power and authority (including, without limitation, all governmental licenses, permits
and other approvals) to own or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted except where failure to possess such power or authority
is not reasonably likely to have a Material Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all
Subsidiaries of each Loan Party as of the Effective Date, showing as of such date (as to each such
Subsidiary) the jurisdiction of its incorporation or organization and identifying, as of the
Effective Date, each Subsidiary that is a Material Subsidiary. All of the outstanding capital
stock of all such Subsidiaries owned by a Loan Party or a Subsidiary of a Loan Party has been
validly issued, is fully paid and non-assessable and, other than directors’ qualifying shares, is
owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens (other than
Permitted Liens). Each such Subsidiary (i) is duly organized or formed, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or organization, (ii) is duly
qualified and in good standing in each other jurisdiction in which it owns or leases property or in
which the conduct of its business requires it to so qualify or be licensed except where the failure
to so qualify or be licensed is not reasonably likely to have a Material Adverse Effect and (iii)
has all requisite power and authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted except where failure to possess such
power or authority is not reasonably likely to have a Material Adverse Effect.
(c) The execution, delivery and performance by each Loan Party of this Agreement, the Notes
and each other Loan Document to which it is or is to be a party, and the incurrence of the
obligations provided for herein and therein, are within such Loan Party’s corporate powers, have
been duly authorized by all necessary corporate action, and do not (i) contravene such Loan Party’s
charter or bylaws, (ii) violate any law (including, without limitation, the Exchange Act),
57
rule, regulation (including, without limitation, Regulations T, U and X of the Board of
Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination
or award, (iii) conflict with or result in the breach of, or constitute a default under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on
or affecting any Loan Party, any of its Subsidiaries or any of their properties or (iv) except as
otherwise provided for under this Agreement, result in or require the creation or imposition of any
Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries.
No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach
of which is reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for (i) the due
execution, delivery, or performance by any Loan Party of this Agreement, the Notes or any other
Loan Document to which it is or is to be a party, or (ii) the exercise by the Administrative Agent
or any Lender of its rights under the Loan Documents as of Effective Date, except for the
authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d), all of
which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each of the Notes and each other Loan Document when delivered
hereunder will have been, duly executed and delivered by each Loan Party party thereto. This
Agreement is, and each of the Notes and each other Loan Document when delivered hereunder will be,
the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such
Loan Party in accordance with its terms except as the same may be limited by bankruptcy, insolvency
and other similar laws affecting the rights of creditors generally and the availability of
equitable remedies for the enforcement of certain obligations contained herein or therein and as
may be limited by equitable principles generally.
(f) The Consolidated and consolidating balance sheets of the Parent and its Subsidiaries as at
December 31, 2009, and the related Consolidated and consolidating statements of income and
Consolidated statement of cash flows of the Parent and its Subsidiaries for the fiscal year then
ended, and the Consolidated and consolidating balance sheets of the Parent and its Subsidiaries as
at March 31, 2010, and the related Consolidated and consolidating statements of income and
Consolidated statement of cash flows of the Parent and its Subsidiaries for the three months then
ended, duly certified by the chief financial officer of the Parent, copies of which have been
furnished to each Lender in accordance with
Section 5.01(j) of the Existing
Credit
Agreement, fairly present, subject, in the case of said balance sheets as at March 31, 2010, and
said statements of income and cash flows for the three months then ended, to year-end audit
adjustments, the Consolidated and consolidating financial condition of the Parent and its
Subsidiaries as at such dates and the Consolidated and consolidating results of the operations of
the Parent and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP
applied on a consistent basis.
(g) Since December 31, 2009, there has been no Material Adverse Change.
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(h) No written information, exhibit or report furnished by any Loan Party to any Agent or any
Lender in connection with the negotiation of the Loan Documents or pursuant to the terms of the
Loan Documents contains any untrue statement of a material fact or omits to state a material fact
necessary to make the statements made therein not misleading in light of the circumstances under
which they were made.
(i) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party
or, to the knowledge of the Loan Parties, after commercially reasonable diligence, any of its
Subsidiaries pending or, to the knowledge of the Loan Parties, after commercially reasonable
diligence, threatened before any court, governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect as of the Effective Date (other than the
matters described on Schedule 4.01(i) hereto (the “Disclosed Litigation”)) and
there has been no change or other development in the Disclosed Litigation which is reasonably
likely to result in a Material Adverse Change, or (ii) purports to affect the legality, validity or
enforceability of this Agreement, any Note or any other Loan Document or the consummation of the
transactions contemplated hereby.
(j) Following application of the proceeds of each Advance, not more than 25 percent of the
value of the assets (of either Borrower, of the Borrowers collectively, or of the Borrowers and
their Subsidiaries on a Consolidated basis) subject to the provisions of Section 5.02(a) or
5.02(c) or subject to any restriction contained in any agreement or instrument between a
Borrower and any Lender or any Affiliate of any Lender relating to Debt and within the scope of
Section 6.01(e) will be margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System). Neither the making of any Advance nor the use
of proceeds thereof will violate or be inconsistent with the provisions of Regulations T, U or X of
the Board of Governors of the Federal Reserve System.
(k) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan
that has resulted in or is reasonably expected to result in a Material Adverse Effect.
(l) No Plan is “at risk” as defined in Section 430(i)(4) of the Internal Revenue Code.
(m) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to
incur (i) any liability under Section 4064 or 4069 of ERISA or (ii) any Withdrawal Liability to any
Multiemployer Plan that in either event has resulted or would be reasonably likely to result in a
Material Adverse Effect.
(n) Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and, to the best knowledge of any Loan Party or any ERISA
Affiliate, no such Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.
(o) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been
included in all tax returns (Federal, state, local and foreign) required to be filed and has paid
all taxes shown thereon to be due, together with applicable interest and penalties, except (i)
where failure to file such tax returns or pay such taxes would not reasonably be expected to have
59
a Material Adverse Effect or (ii) for such taxes that are being contested in good faith by
appropriate proceedings for which adequate reserves have been provided in accordance with GAAP.
(p) Neither any Loan Party nor any of its Subsidiaries is an “investment company”, or a
company “controlled by” an “investment company”, as such terms are defined in the Investment
Company Act of 1940, as amended (except that for purposes of this sentence, the term “Subsidiary”
shall not include any “investment company” a majority of which is owned by a Loan Party or one of
its Affiliates as a result of the initial seed capital contributed by such Loan Party or such
Affiliate to such “investment company” for its shares). Neither the making of any Advances nor the
application of the proceeds or repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such Act or any rule, regulation or
order of the Securities and Exchange Commission thereunder.
(q) Each Subsidiary of the Parent engaged in advisory or management activities, if any, is
duly registered as an investment adviser as and to the extent required under the Investment
Advisers Act of 1940, as amended, and the rules and regulations promulgated thereunder. Each
Subsidiary of the Parent engaged in the broker-dealer business, if any, is duly registered as a
broker-dealer as and to the extent required under the Exchange Act, as amended, and the rules and
regulations promulgated thereunder and, as and to the extent required is a member in good standing
of the Financial Institutions Regulatory Authority, Inc.
(r) As of the Effective Date, neither the Parent nor any of its Subsidiaries is in default and
no waiver of default is in effect with respect to the payment of any principal or interest of any
Existing Debt for borrowed money.
(s) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
ARTICLE V
COVENANTS OF THE BORROWER
Section 5.01 Affirmative Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder or any Letter of Credit or other L/C Obligation shall
remain outstanding (except any Letters of Credit or L/C Obligations that remain outstanding after
the Commitments have been terminated for which Cash Collateral has been provided), each of the
Parent and each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply,
in all material respects, with all applicable laws, rules, regulations and orders, such compliance
to include (to the extent applicable), without limitation, compliance with the Investment Company
Act of 1940, Investment Advisers Act of 1940, as amended, ERISA and Environmental Laws, except
where the failure to do so would not, and would not be reasonably expected to, have a Material
Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to
pay and discharge, before the same shall become delinquent, all taxes, assessments, claims and
governmental charges or levies imposed upon it or upon its property, except to the extent that
60
any failure to do so would not, and would not be reasonably expected to, have a Material
Adverse Effect; provided, however, that neither the Parent nor any of its Subsidiaries shall be
required to pay or discharge any such tax, assessment, claim or charge that is being contested in
good faith and by proper proceedings and as to which appropriate reserves are being maintained.
(c) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause each
of its Subsidiaries to preserve and maintain, its existence, legal structure, legal name, rights
(charter and statutory), permits, licenses, approvals, registrations, privileges and franchises;
provided, however, the Parent and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(b); and provided further that (i) no Subsidiary of the Parent
other than a Loan Party shall be required to maintain its existence and (ii) neither the Parent nor
any of its Subsidiaries shall be required to preserve or maintain any legal structure, right,
permit, license, approval, registration, privilege or franchise, unless, in any such case with
respect to (i) or (ii) above, the failure to do so would, or would be reasonably expected to, (A)
have a Material Adverse Effect or (B) release any Loan Party from its obligations under any Loan
Document.
(d) Visitation Rights. At any reasonable time and from time to time, permit the
Administrative Agent or any of the Lenders or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account of, and visit the properties of,
the Parent and any of its Subsidiaries, and to discuss the affairs, finances and accounts of the
Parent and any of its Subsidiaries with any of their officers or directors and with their
independent certified public accountants, all of which shall be at the expense of the Borrowers
upon and during the continuance of an Event of Default.
(e) Keeping of Books. Keep, and cause each of its Significant Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Parent and each such Significant
Subsidiary in accordance with GAAP applicable to such Person in effect from time to time.
(f) New Material Subsidiaries. Promptly and in any event within 30 days following the
request of the Required Lenders made after either (i) the organization or acquisition of any new
Material Subsidiary or (ii) the delivery of audited annual financial statements pursuant to
Section 5.01(h) that indicate that a Subsidiary of the Parent that is not at such time a
Guarantor is a Material Subsidiary, cause such Material Subsidiary to execute and deliver a joinder
agreement to the Subsidiary Guaranty in form and substance reasonably satisfactory to the
Administrative Agent, together with such documents as the Required Lenders may request evidencing
corporate action taken to authorize such execution and delivery and the incumbency and signatures
of officers of such Material Subsidiary, provided that a Material Subsidiary shall not be required
to become a Guarantor if (A) a guaranty by such Material Subsidiary would result in materially
adverse tax consequences to the Parent and its Subsidiaries or shareholders of the Parent or (B) a
guaranty by such Material Subsidiary is prohibited or limited by regulatory requirements or
applicable law.
(g) Use of Proceeds. Use the proceeds of the Advances solely as provided in
Section 2.17 and otherwise in accordance with the terms hereof.
(h) Reporting Requirements. Furnish to the Administrative Agent and the Lenders:
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(i) as soon as available and in any event within 45 days after the end of each of
the first three quarters of each fiscal year of the Parent, a copy of the Form 10-Q filed
with the Securities and Exchange Commission for such quarter for the Parent and its
Subsidiaries, containing a Consolidated and, consistent with past practice, consolidating
balance sheets of the Parent and its Subsidiaries as of the end of such quarter and
Consolidated and, consistent with past practice, consolidating statements of income and
Consolidated cash flows of the Parent and its Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by the chief financial officer of the Parent as
having been prepared in accordance with GAAP and a Compliance Certificate of the chief
financial officer of the Parent as to compliance with the terms of this Agreement and
setting forth in reasonable detail the calculations necessary to demonstrate compliance with
Sections 5.03(a) and (b);
(ii) as soon as available and in any event within 90 days after the end of each fiscal
year of the Parent, a copy of the Form 10-K filed with the Securities and Exchange
Commission for such year for the Parent and its Subsidiaries, containing a Consolidated
balance sheet of the Parent and its Subsidiaries and, consistent with past practice,
consolidating balance sheets of the Parent and its Subsidiaries as of the end of such fiscal
year and a Consolidated and, consistent with past practice, a consolidating statement of
income and Consolidated cash flows of the Parent and its Subsidiaries for such fiscal year,
in each case accompanied by (i) a report and opinion as to such Consolidated financial
statements by Ernst & Young LLP or other independent public accountants approved by the
audit committee of the Parent’s board of directors and, if other than Deloitte & Touche LLP,
KPMG LLP, or PricewaterhouseCoopers LLP, reasonably acceptable to the Required Lenders (the
“Auditor”), which report and opinion shall be prepared in accordance with applicable
audit standards, and which report and opinion shall not be subject to any “going concern” or
like qualification or exception or any qualification or exception as to the scope of such
audit, and (ii) a Compliance Certificate of the chief financial officer of the Parent as to
compliance with the terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Sections 5.03(a) and
(b);
(iii) as soon as possible and in any event within five days after the occurrence of
each Default continuing on the date of such statement, a statement of the chief financial
officer of the Parent setting forth details of such Default and the action that the Parent
has taken and proposes to take with respect thereto;
(iv) promptly after the commencement thereof, notice of all actions and proceedings
before any court, governmental agency or arbitrator affecting the Parent or any of its
Subsidiaries of the type described in Section 4.01(i);
(v) (A) promptly and in any event within 20 days after any Loan Party or any ERISA
Affiliate knows or has reason to know that (1) any ERISA Event has occurred which could
result in a material liability of any Loan Party or any ERISA Affiliate, or (2) any Loan
Party or any ERISA Affiliate has incurred or is reasonably expected to incur a material
liability under Section 4064 or 4069 of ERISA, a statement of the chief financial
62
officer of the Borrowers describing such ERISA Event and the circumstances giving rise
to, and the amount of such liability and the action, if any, that such Loan Party or such
ERISA Affiliate has taken and proposes to take with respect thereto and (B) within two
Business Days of the date any records, documents or other information must be furnished to
the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information;
(vi) promptly and in any event within two Business Days after receipt thereof by any
Loan Party or any ERISA Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer any Plan;
(vii) promptly upon request from the Administrative Agent or any Lender, copies of each
Schedule SB (Single Employer Defined Benefit Plan Actuarial Information) to the annual
report (Form 5500 Series) required to be filed with respect to each Plan whose funding
target attainment percentage (as defined in Section 302(d)(2) of ERISA) is less than 100%;
(viii) promptly and in any event within 20 days after receipt thereof by any Loan Party
or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition on any Loan Party or any ERISA Affiliate of Withdrawal
Liability in a material amount by any such Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such Multiemployer Plan or (C)
the amount of liability incurred, or that may be incurred, by any Loan Party or any ERISA
Affiliate in connection with any event described in clause (A) or (B);
(ix) promptly and in any event within five Business Days after the organization or
acquisition of any Material Subsidiary, notice of such event;
(x) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the Parent,
and copies of all annual, regular, periodic and special reports and registration statements
which the Parent may file or be required to file with the SEC under Section 13 or 15(d) of
the Exchange Act, and not otherwise required to be delivered to the Administrative Agent
pursuant hereto;
(xi) promptly, of any announcement by Xxxxx’x or S&P of any change in a Debt Rating or
outlook; and
(xii) such other information respecting the Parent or any of its Subsidiaries as the
Administrative Agent or any Lender acting through the Administrative Agent may from time to
time reasonably request.
Documents required to be delivered pursuant to Section 5.01(h)(i) or (ii) may
be delivered electronically by e-mailing such information to an e-mail address of the
Administrative Agent as specified to the Borrowers by the Administrative Agent from time to time.
The Administrative Agent shall promptly post such documents on the Borrowers’ behalf onto the
Platform. Such information shall be deemed to have been delivered to the Lenders on the date
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such documents are posted to the Platform. In addition, such documents may be delivered by posting
the documents on the Parent’s website on the Internet, and if so delivered, shall be deemed to have
been delivered on the date on which the Parent posts such documents, or provides a link thereto on
the Parent’s website on the Internet at the website address listed on Schedule 8.02;
provided that the Parent shall notify the Administrative Agent (by facsimile or electronic mail) of
the posting of any such documents and, if requested by the
Administrative Agent, provide to
the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be
required to provide copies of the Compliance Certificate required by Section 5.01(h)(i) and
(ii) to the Administrative Agent by facsimile or electronic mail. Except for such Compliance
Certificate, the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Parent with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Parent and the Borrowers hereby acknowledge that (a) the Administrative Agent and/or the
Arrangers will make available to the Lenders and the L/C Issuer information provided by or on
behalf of the Parent and/or the Borrowers hereunder (collectively, “Borrower Materials”) by
posting the Borrower Materials on IntraLinks or another similar electronic system (the
“Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that
do not wish to receive material non-public information with respect to either Borrower or its
securities) (each, a “Public Lender”). Each of the Parent and the Borrowers hereby agree
that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the
Parent and the Borrowers shall be deemed to have authorized the Administrative Agent, each
Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to the Parent and each Borrowers or its securities for
purposes of United States Federal and state securities laws (provided, however, that to the extent
such Borrower Materials constitute Information, they shall be treated as set forth in Section
8.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Investor”; and (z) the Administrative Agent and each
Arranger shall be entitled to treat the Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public Investor.”
Section 5.02 Negative Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder or any Letter of Credit or other L/C Obligation shall
remain outstanding (except for any Letters of Credit or L/C Obligations that remain outstanding
after the Commitments have been terminated for which Cash Collateral has been provided), neither
the Parent nor either Borrower will at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with respect to any of its
properties of any character (including, without limitation, accounts) whether now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any accounts or
other
64
right to receive income, excluding, however, from the operation of the foregoing restrictions
the following:
(i) Permitted Liens;
(ii) Liens granted pursuant to any Loan Document;
(iii) Liens on deposit accounts of the Parent and its Subsidiaries in respect of their
cash pooling operations;
(iv) purchase money Liens upon or in real property or equipment acquired or held by the
Parent or any of its Subsidiaries in the ordinary course of business to secure the purchase
price of such property or equipment or to secure Debt incurred solely for the purpose of
financing the acquisition of any such property or equipment, or Liens existing on any such
property or equipment at the time of acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to finance the acquisition of such
property); provided, however, that no such Lien shall extend to or cover any properties of
any character other than the property or equipment being acquired, and no such extension,
renewal or replacement shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced; and provided further that the aggregate principal
amount of the Debt secured by Liens permitted by this clause (iv) and clause (v) below shall
not exceed $100,000,000 at any time outstanding;
(v) Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Parent or any Subsidiary of the Parent or becomes a Subsidiary of the
Parent; provided that such Liens were not created in contemplation of such merger,
consolidation or investment and do not extend to any assets other than those of the Person
merged into or consolidated with the Parent or such Subsidiary or acquired by the Parent or
such Subsidiary; provided, further, that the aggregate principal amount of the Debt secured
by Liens permitted by this clause (v) and clause (iv) above shall not exceed $100,000,000 at
any time outstanding;
(vi) Liens arising pursuant to one or more securitization programs permitted pursuant
to Section 5.02(c)(ii);
(vii) the replacement, extension or renewal of any Lien permitted by clauses (iv) and
(v) above upon or in the same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or addition of any direct or contingent
obligor) of the Debt secured thereby;
(viii) Liens existing as of the Effective Date as described on Schedule
5.02(a);
(ix) Liens which are floating charges under English law in the form of an “industry
standard” granted by Invesco Perpetual Life Limited (“IPLL”) on its revolving
business assets (without attaching to any particular asset until the floating charge
crystallises on insolvency events which will result in steps being taken to make payment
of a dividend to creditors or where the reinsurance creditor reasonably considers this
may
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happen) to reinsurance creditors to support the obligations of IPLL thereto under
reinsurance contracts and limited in the amount secured to the amount which would have been
recoverable had the secured amount been an unsecured debt owed to a direct policy holder of
IPLL;
(x) Liens to secure Subsidiary Non-Recourse Debt, provided that no such Lien shall
extend to or cover any properties or assets other than the property or assets being acquired
with such Subsidiary Non-Recourse Debt and proceeds thereof; and
(xi) Liens on assets sold and leased back pursuant to sale and leaseback transactions
permitted by Section 5.02(c)(vii).
(b) Mergers, Etc. Merge into or consolidate with any Person or permit any Person to
merge into it, or permit any of its Subsidiaries to do so, except that
(i) Parent or any Subsidiary of the Parent may merge or consolidate with any other
Subsidiary of the Parent;
(ii) any Subsidiary of the Parent may merge with any other Person, provided that such
merger does not result in the loss by the Parent in any fiscal year of business operations
or assets which, when aggregated with all other such mergers and all dispositions of assets
permitted by Section 5.02(c)(iii) (taking into account the proviso in such
Section 5.02(c)(iii)) for such fiscal year, generated more than twenty percent (20%)
of the Consolidated operating income of the Parent during the immediately preceding fiscal
year of the Parent;
provided, however, that in each case, immediately after giving effect thereto, (A) no event shall
occur and be continuing that constitutes a Default, (B) if a Borrower is party to such merger or
consolidation, then a Borrower is the surviving corporation or company, as the case may be, and (C)
in the case of any merger or consolidation to which a Guarantor, but not a Borrower, is a party,
the surviving corporation or company, as the case may be, is a Guarantor;.
(c) Sales, Etc. of Assets. Sell, lease (as lessor), transfer or otherwise dispose of,
or permit any of its Subsidiaries to sell, lease (as lessor), transfer or otherwise dispose of, any
assets, or grant any option or other right to purchase, lease or otherwise acquire any assets,
except:
(i) in a transaction authorized by subsection (b) of this Section;
(ii) the sale or other disposition to a third-party investor by the Parent or any of
its Subsidiaries of its rights to receive distribution fees and contingent deferred sales
charges pursuant to a securitization program;
(iii) the Parent and its Subsidiaries may, during any fiscal year of the Parent (the
“Test Year”), sell, lease, transfer or otherwise dispose of assets (including equity
securities owned by such Persons) which, when aggregated with all other such dispositions
and all mergers permitted by Section 5.02(b)(ii) (where such merger resulted
in the loss by the Parent or a Subsidiary, as applicable, of business operations or
assets)
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for such Test Year, generated up to, but not exceeding, twenty percent (20%) of the
Consolidated operating income of the Parent during the immediately preceding fiscal year of
the Parent; provided, that any determination of compliance with this clause (iii) shall take
into account contributions to Consolidated operating income as measured on a pro forma basis
for such immediately preceding fiscal year resulting from any acquisition by the Parent or
its Subsidiaries of operating assets (or acquisition of equity securities of any Person
holding such assets) that occurred during such Test Year or that is anticipated to occur
within the twelve (12) month period immediately following the date on which the Parent or
its Subsidiary, as applicable, shall have entered into a definitive agreement for such
acquisition if such definitive agreement is entered into during such Test Year.
(iv) any Subsidiary of the Parent (other than a Loan Party) may sell, lease, transfer
or otherwise dispose of up to (and including) all or substantially all of its assets to the
Parent or any other Subsidiary of the Parent;
(v) any Guarantor may sell, lease, transfer or otherwise dispose of all or
substantially all of its assets to any Loan Party or any other Subsidiary of the Parent;
provided, that, in the case of any such sale, lease, transfer or other disposition to a
Subsidiary that is not a Loan Party, such transferee Subsidiary shall execute and deliver to
the Administrative Agent a joinder agreement to the Subsidiary Guaranty, in form and
substance reasonably satisfactory to the Administrative Agent, prior to such sale, lease,
transfer or other disposition;
(vi) either Borrower may sell, lease, transfer or otherwise dispose of all or
substantially all of its assets to the other Borrower;
(vii) sales or other dispositions of obsolete equipment and furniture;
(viii) sales of assets pursuant to sale and leaseback transactions; and
(ix) the sale, transfer or other disposition of cash, cash equivalents and securities
in the ordinary course of business.
(d) Change in Nature of Business. Make, or permit any of its Significant Subsidiaries
to make, any material change in the nature of its business as carried on at the date hereof;
provided, however, that nothing contained herein shall restrict or limit such Persons from engaging
in any business (including by way of investment or acquisition) that is reasonably related,
complimentary or ancillary to the businesses of the Parent and its Subsidiaries carried on as of
the date hereof.
(e) Accounting Changes. Make or permit, or permit any of its Significant Subsidiaries
to make or permit, any material change in accounting policies or reporting practices, except (i) as
required by Securities Laws, the Securities Exchange Commission or GAAP applicable to the Parent or
such Significant Subsidiary, (ii) with respect to any Significant Subsidiary, to adopt GAAP, or
(iii) any change by a Significant Subsidiary to International Financial Reporting Standards as may
be required by applicable regulatory authorities.
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(f) Transactions with Affiliates. Conduct, or permit any of its Subsidiaries to
conduct, transactions with any of their Affiliates except in the ordinary course of business of and
pursuant to the reasonable requirements of the Parent’s, such Borrower’s or such Subsidiary’s
business and upon fair and reasonable terms that are no less favorable to the Parent, such Borrower
or such Subsidiary, as the case may be, than those which would be obtained in a comparable
arm’s-length transaction with a Person not an Affiliate; provided that the foregoing restrictions
shall not apply to
(i) any transaction (A) between or among the Parent and its Subsidiaries not involving
any other Affiliates, (B) with any Special Purpose Subsidiary, and (C) between the Parent or
any of its Subsidiaries and their respective employees to make loans to such employees for
purposes of exercising stock options of such employees and paying tax liabilities of such
employees associated therewith, provided that the total of all such loans shall not exceed
$25,000,000 in an aggregate principal amount at any one time outstanding; and
(ii) transactions between the Parent or any Subsidiary or other “Investment Company”
sponsored by the Parent or any Subsidiary or for which the Parent or any Subsidiary provides
advisory, administrative, supervisory, management, consulting, underwriting or similar
services, that are otherwise permissible under the Investment Company Act of 1940, the
Investment Advisers Act of 1940, the applicable management or underwriting contract, and any
other applicable law, rule, regulation or order.
(g) Non-Guarantor Subsidiary Debt. Permit its Subsidiaries, other than a Borrower and
Subsidiaries that are Guarantors, collectively to incur Adjusted Debt in excess of $200,000,000 in
aggregate principal amount at any one time outstanding; provided, however, that the foregoing
restriction shall not apply to any (i) Adjusted Debt of a Subsidiary (including any Person that
will be or become a Subsidiary) of the Parent (including any refinancings, amendments or extensions
of such Adjusted Debt that do not increase, or provide for the increase of, the aggregate principal
amount of such Adjusted Debt) that is incurred or assumed in connection with (A) a transaction that
is permitted pursuant to Section 5.02(b) or (B) in connection with the purchase or
acquisition of all of the capital stock of, or all or substantially all of the assets of, another
Person, (ii) Subsidiary Non-Recourse Debt, and (iii) letters of credit entered into pursuant to and
in accordance with regulatory requirements in the ordinary course of such Subsidiary’s unit
investment trust business.
Section 5.03 Financial Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder or any Letter of Credit or other L/C Obligation shall
remain outstanding, the Parent will:
(a) Debt/EBITDA Ratio. Maintain at the end of each fiscal quarter of the Parent a
Debt/EBITDA Ratio not greater than the ratio set forth below opposite such fiscal quarter:
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|
|
|
|
|
Maximum |
|
|
Debt/EBITDA |
Fiscal Quarters Ending |
|
Ratio |
|
Effective Date through December 31, 2011
|
|
3.25 to 1.00 |
Each fiscal quarter ending thereafter
|
|
3.00 to 1.00 |
(b) Coverage Ratio. Maintain at the end of each fiscal quarter of the Parent a ratio
of EBITDA (excluding for purpose of this calculation of EBITDA only that portion of EBITDA
attributable to the net income, expenses, losses, charges and gains of each Special Purpose
Subsidiary) for the four consecutive fiscal quarters of the Parent ended on or immediately prior to
the date of determination to interest payable on, and amortization of debt discount in respect of,
Adjusted Debt (excluding from Adjusted Debt for purposes of this Section 5.03(b) (i)
Subsidiary Non-Recourse Debt and (ii) so long as the Parent and its Subsidiaries own 100% of the
Office Equipment Sale and Leaseback Bonds, liabilities with respect to the Office Equipment Sale
and Leaseback Lease, in each case to the extent otherwise included in Adjusted Debt) for such
period, of not less than 4.00 to 1.00.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any Advance or any L/C Obligation when
the same becomes due and payable; the Borrowers shall fail to provide any Cash Collateral required
by Section 2.03(a)(ii)(B) on or prior to the Letter of Credit Expiration Date; or either
Borrower shall fail to pay any interest on any Advance or any L/C Obligation or make any other
payment of fees or other amounts payable under this Agreement or any Note within three Business
Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Parent, either Borrower or any Loan Party under
any Loan Document or by the Parent or either Borrower (or any of its respective officers) in
connection with any Loan Document shall prove to have been incorrect in any material respect when
made; or
(c) (i) The Parent or either Borrower shall fail to perform or observe any term, covenant or
agreement contained in Sections 5.01(c), (d) or (h), 5.02 or
5.03, or (ii) the Parent or either Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be performed or observed if
such failure shall remain unremedied for 30 days after written notice thereof shall have been given
to the Borrowers by the Administrative Agent or any Lender; or
(d) The Parent or any of its Subsidiaries shall fail to pay any principal of or premium or
interest on any Debt that is outstanding in a principal or notional amount of at least
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$62,500,000 (or the equivalent thereof in any other currencies) in the aggregate (but
excluding Debt outstanding hereunder) of the Parent or such Subsidiary (as the case may be), when
the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be
prepaid or redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) The Parent or any of its Significant Subsidiaries or any Guarantor shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall
be instituted by or against the Parent or any of its Significant Subsidiaries or any Guarantor
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 45 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any substantial part of its
property) shall occur; or the Parent or any of its Significant Subsidiaries or any Guarantor shall
take any corporate action to authorize any of the actions set forth above in this subsection (e);
or
(f) Any judgment or order for the payment of money in excess of $62,500,000 (or the equivalent
thereof in any other currencies) shall be rendered against the Parent or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment
or order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; provided, however, that any such judgment or order shall not be an Event of Default under
this Section 6.01(f) if and for so long as (i) the amount of such judgment or order in
excess of $62,500,000 (or the equivalent thereof in any other currencies) is covered by a valid and
binding policy of insurance between the defendant and the insurer covering payment thereof and (ii)
such insurer, which shall be rated at least “A” by A.M. Best Company, has been notified of, and has
not disputed the claim made for payment of, the amount of such excess amount; or
(g) Any non-monetary judgment or order shall be rendered against the Parent or any of its
Subsidiaries that could be reasonably expected to have a Material Adverse Effect, and there shall
be any period of 30 consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
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(h) (i) Any Person or two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Exchange Act), directly or indirectly, of Voting Stock of the Parent (or other securities
convertible into such Voting Stock) representing 33% or more of the combined voting power of all
Voting Stock of the Parent; or (ii) during the period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of the Parent cease to be
composed of individuals (A) who were members of that board or equivalent governing body on the
first day of such period, (B) whose election or nomination to that board or equivalent governing
body was approved (including approval solely for purposes of satisfying this provision) by
individuals referred to in clause (A) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body or (C) whose election or nomination
to that board or other equivalent governing body was approved (including approval solely for
purposes of satisfying this provision) by individuals referred to in clauses (A) and (B) above
constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body; or
(i) Any ERISA Event shall have occurred with respect to a Plan, or any Loan Party or any ERISA
Affiliate shall have incurred or be reasonably expected to incur liability under Section 4064 or
4069 of ERISA, and the sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect to which
an ERISA Event shall have occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates incurred or expected to be incurred with respect to Section 4064 or 4069 of ERISA
or related to such ERISA Event) exceeds $31,250,000; or
(j) Any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an
amount that, when aggregated with all other amounts required to be paid to Multiemployer Plans by
the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $31,250,000 or requires payments exceeding $6,250,000 per annum; or
(k) Any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, and as a result of such reorganization or termination the
aggregate annual contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or termination occurs by an amount
exceeding $31,250,000;
(l) Any governmental authority or regulatory body shall have enacted, issued, promulgated,
enforced or entered any law, rule, regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) which is in effect and which prohibits, enjoins or otherwise
restricts the Parent or any of its Subsidiaries in a manner that has a Material Adverse Effect; or
71
(m) Any material provision of either Guaranty shall for any reason cease to be valid and
binding on any applicable Guarantor or any Guarantor shall so state in writing, but in either case,
only if such event could reasonably be expected to have a Material Adverse Effect;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the obligation of each Lender
to make Advances and any obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon the same shall forthwith terminate, (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrowers, declare the Advances and the
Notes, all the L/C Borrowings, all interest thereon and all other amounts payable under this
Agreement and the Notes to be forthwith due and payable and pursue all rights under any Guaranty,
whereupon the Advances and the Notes, all the L/C Borrowings, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the Borrowers and (iii)
shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers,
require that the Borrowers Cash Collateralize the outstanding Letters of Credit (in an amount equal
to 100% of the then Outstanding Amount thereof); provided, however, that in the event of an actual
or deemed entry of an order for relief with respect to the Parent or any Significant Subsidiary or
any Guarantor under the bankruptcy code of the United States, or any other liquidation,
conservatorship, bankruptcy, reorganization or other similar debtor relief laws of the United
States, the United Kingdom or Bermuda, (A) the obligation of each Lender to make Advances and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically be terminated, (B)
the Notes, all such interest and all such amounts (including without limitation all L/C Borrowings)
shall automatically become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrowers and (C) the
obligation of the Borrowers to Cash Collateralize the outstanding Letters of Credit as aforesaid
shall automatically become effective, in each case without further act of the Administrative Agent
or any Lender.
Section 6.02 Application of Funds. After the exercise of remedies provided for in
Section 6.01 (or after the Notes and the L/C Borrowings have automatically become
immediately due and payable and the outstanding Letters of Credit have automatically been required
to be Cash Collateralized as set forth in Section 6.01), any amounts received on account of
the Obligations shall, subject to the provisions of Sections 2.18 and 8.16, be
applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article II) payable to the Administrative
Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and
the L/C Issuer and amounts payable under Article II), ratably among them in proportion to
the respective amounts described in this clause Second payable to them;
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Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on any L/C Borrowings (which have not been funded by L/C Advances) payable only to the L/C
Issuer, and interest on any Swing Line Loans payable only to the Swing Line Lender, ratably among
the L/C Issuer and the Swing Line Lender in proportion to the respective amounts described in this
clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal on
any L/C Borrowings (which have not been funded by L/C Advances) to the L/C Issuer and Swing Line
Loans payable only to the Swing Line Lender; ratably among the L/C Issuer and the Swing Line Lender
in proportion to the respective amounts described in this clause Fourth payable to them;
Fifth, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees, interest on any of the Advances (other than Swing Line Loans) and L/C
Advances, payable to the Lenders, ratably among them in proportion to the respective amounts
described in this clause Fifth held by them;
Sixth, to payment of that portion of the Obligations constituting unpaid principal on
any of the Advances (other than Swing Line Loans) and L/C Advances, ratably among the Lenders in
proportion to the respective amounts described in this clause Sixth held by them;
Seventh, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of the L/C Obligations comprised of 100% of the aggregate undrawn amount
of outstanding Letters of Credit to the extent not otherwise Cash Collateralized by the Borrowers
pursuant to Sections 2.03 or 2.18.
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrowers or as otherwise required by law.
Subject to Sections 2.03(c) and 2.18, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Seventh above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.
ARTICLE VII
ADMINISTRATIVE AGENT
Section 7.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and neither the Borrowers, the Parent nor any other Loan Party shall have rights as
a third party beneficiary of any of such provisions.
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Section 7.02 Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with the Parent,
the Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.
Section 7.03 Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other Loan Documents.
Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Parent, the Borrowers or any of their respective Affiliates that is communicated to or obtained
by the Person serving as the 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 (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 6.01 and 8.01) or (ii)
in the absence of its own gross negligence or willful misconduct, provided, such limitation of
liability of the Administrative Agent shall not prohibit or limit any cause of action either
Borrower may otherwise have against any Lender. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by the Borrowers, a Lender or the L/C Issuer.
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 or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set
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forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Article III or
elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
Section 7.04 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) reasonably believed by it to
be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
reasonably believed by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to the making of an
Advance, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such
Advance or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Parent or 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 good
faith in accordance with the advice of any such counsel, accountants or experts.
Section 7.05 Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its rights and powers by
or through their respective Related Parties. The exculpatory provisions of this Article 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.
Section 7.06 Resignation of Administrative Agent. The Administrative Agent may at any
time give notice of its resignation to the Lenders, the L/C Issuer and the Borrowers. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in consultation with
the Borrowers so long as no Event of Default has occurred and is continuing, to appoint a
successor, which shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrowers and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from
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its duties and obligations hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section;
provided, such Lenders so acting directly shall be and be deemed to be protected by all indemnities
and other provisions herein for the benefit and protection of the Administrative Agent as if each
such Lender were itself the Administrative Agent. Upon the acceptance of a successor’s appointment
as Administrative Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and
the retiring Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom as provided above
in this Section). The fees payable by the Borrowers to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers
and such successor. After the retiring Administrative Agent’s resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 8.04 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this Section
shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of
a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
and Swing Line Lender; (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from
all of its respective duties and obligations hereunder or under the other Loan Documents; and (c)
the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.
Section 7.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and
the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties 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 and the L/C Issuer also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their Related Parties
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 other Loan Document or any related agreement or any document furnished hereunder or
thereunder.
Section 7.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding,
none of the Arrangers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender or the L/C Issuer.
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Section 7.09 Administrative Agent May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Advance or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrowers) shall be entitled and empowered,
by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Advances, L/C Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and
the Administrative Agent and their respective agents and counsel, and all other amounts, due the
Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h) and
(i), 2.05 and 8.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.05 and 8.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting any amount owing by a Loan Party to a Lender or
the Administrative Agent or the rights of any Lender or the L/C Issuer or to authorize the
Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such
proceeding.
Section 7.10 Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize
the Administrative Agent, at its option and in its discretion, to release any Subsidiary Guarantor
from its obligations under the Subsidiary Guaranty if such Person ceases to be a Subsidiary of the
Borrowers or a Subsidiary of the Parent as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Lenders shall promptly confirm in
writing the Administrative Agent’s authority to release any Guarantor from its obligations under
the Subsidiary Guaranty pursuant to this Section 7.10.
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ARTICLE VIII
MISCELLANEOUS
Section 8.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by either Borrower or any
other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and
the Borrowers or the applicable Loan Party, as the case may be, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 3.01 without the written consent of each
Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated),
increase any Lenders pro rata share requirement to fund any Advance or participate in any Swing
Line Loan or Letter of Credit (other than as set forth in Section 8.16), or require any
Lender to make Advances or participate in Letters of Credit in any currency other than Dollars or
Sterling, in each case, without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on any Advance or L/C
Borrowing, or (subject to clause (iii) of the last proviso to this Section 8.01) any fees
or other amounts payable hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby; provided, however, that only the consent of the Required
Lenders shall be necessary to amend Section 2.08(b) or to waive any obligation of the
Borrowers to pay Letter of Credit Fees at rate equal to the Applicable Margin for Eurodollar Rate
Advances plus 2% per annum;
(e) change Section 2.16 or Section 6.02 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;
(f) change any provision of this Section or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders required to amend, waive
or otherwise modify any rights hereunder or make any determination or grant any consent hereunder
without the written consent of each Lender;
(g) except in connection with permitted mergers under Section 5.02(b), permitted asset
sales under Section 5.02(c) and other transactions permitted hereunder and in accordance
with Section 7.10 hereof, release any Guarantor from its Guaranty (or release any Borrower
from its joint and several liability hereunder and under the other Loan Documents) without the
written consent of each Lender; or
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(h) change Section 2.03(a)(ii) or change Section 2.03(b)(iii) in a manner that
would (1) allow a Letter of Credit to have an expiry date more than twelve (12) months after the
date of issuance or last extension, (2) change the conditions for the issuance or extension of a
Letter of Credit having an expiry date later than the Letter of Credit Expiration Date, or (3)
allow any Auto-Extension Letter of Credit to have an expiry date more than twelve months past the
Letter of Credit Expiration Date, in each case, without the consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed
by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C
Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be
issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing
Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all Lenders may be effected
with the consent of all Lenders other than Defaulting Lenders), except that (i) the Commitment of
any Defaulting Lender may not be increased or extended without the consent of such Lender and (ii)
any waiver, amendment or other modification requiring the consent of all Lenders or each affected
Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders
shall require the consent of such Defaulting Lender.
Section 8.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (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 telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrowers, the Parent, the Administrative Agent, the L/C Issuer or the
Swing Line Lender, to the address, telecopier number, electronic mail address(es) or
telephone number specified for such Person on Schedule 8.02; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail
address(es) or telephone number specified for such Lender’s Domestic Lending Office on
Schedule I.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next Business Day for the
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recipient). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder, except for any notice of service of process under Section 8.12 or
otherwise which shall be given in writing only as provided by applicable law, may be delivered or
furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant
to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender or the L/C Issuer pursuant to Article II. The Administrative Agent
or the Borrowers 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.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Parent,
either Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the
Parent’s, either Borrower’s or the Administrative Agent’s transmission of Borrower Materials
through the Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment
to have resulted from the gross negligence or willful misconduct of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to either Borrower, any Lender,
the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrowers, the Parent, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone
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number for notices and other communications hereunder by notice to the other parties hereto.
Each other Lender may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrowers, the Parent, the Administrative Agent, the L/C
Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative
Agent from time to time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Notices of Borrowing and Swing Line Loan Notices) that the Administrative Agent or such
Lender reasonably believes has been given by or on behalf of the Borrowers even if (i) such notices
were not made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrowers shall indemnify the Administrative Agent, the
L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice that the Administrative
Agent, such Lender or such Related Party reasonably believes has been given by or on behalf of the
Borrowers. All telephonic notices to and other telephonic communications with the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents
to such recording.
Section 8.03 No Waiver; Remedies. No failure on the part of any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay in exercising, any right, remedy,
power or privilege hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, remedy, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
Section 8.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable out of pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated); (ii) all reasonable out of pocket expenses
incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out of pocket expenses incurred
by the Administrative Agent, any Lender or the L/C Issuer (including the reasonable fees, charges
and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection
with the Advances made or the Notes or Letters of Credit issued
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hereunder, including all such out of pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Advances or Notes or Letters of Credit.
(b) Indemnification by the Borrowers. The Borrowers agree to indemnify and hold
harmless the Administrative Agent (and each sub-agent thereof), each Lender and the L/C Issuer,
each of their respective Affiliates, and each Related Party of any of the foregoing Persons (each,
an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, reasonable fees, charges, disbursements and expenses
of counsel for any Indemnified Party) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation or proceeding or preparation
of a defense in connection therewith) the Notes, this Agreement, any other Loan Document, any of
the transactions contemplated herein or therein (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), the actual or proposed use
of the proceeds of the Advances, or, in the case of the Administrative Agent (and any such
sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents except to the extent such claim, damage, loss, liability or expense resulted from
such Indemnified Party’s gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or proceeding is brought
by a Borrower or any other Loan Party, its respective directors, shareholders or creditors or an
Indemnified Party or any other Person and regardless of whether any Indemnified Party is otherwise
a party thereto and whether or not the transactions contemplated hereby are consummated.
(c) Other Costs. If any payment of principal of, or Conversion of, any Eurocurrency
Rate Advance is made (i) by a Borrower to or for the account of a Lender other than on the last day
of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to
Section 2.09(d), 2.11 or 2.13, acceleration of the maturity of the Notes
pursuant to Section 6.01 or for any other reason, or (ii) by an Eligible Assignee to a
Lender other than on the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 8.06 as a result of a
demand by the Borrowers pursuant to Section 8.11, the Borrowers shall, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent
for the account of such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance, less the return such Lender reasonably expects to receive
on its redeployment of funds.
(d) Reimbursement by Lenders. To the extent that either Borrower for any reason fails
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be
paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party thereof, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Pro Rata Share
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(determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought and without regard to the last sentence in the definition of Pro Rata Share Percentage) 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 any such sub-agent) or the L/C Issuer in its capacity as such, or against
any Related Party thereof acting for the Administrative Agent (or any such sub-agent) or the L/C
Issuer in connection with such capacity. The obligations of the Lenders under this subsection (d)
are subject to the provisions of Section 2.02(e).
(e) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each hereby waives, any claim against any
Indemnified Party, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Advance or Letter of Credit or the use of the
proceeds thereof. No Indemnified Party referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby except as a result of such Indemnified Party’s gross negligence of willful
misconduct.
(f) Payments. All amounts due under this Section shall be payable not later than ten
(10) Business Days after demand therefor.
(g) Survival. Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained in this
Section and Sections 2.12 and 2.15 herein shall survive the resignation of
the Administrative Agent, the replacement of any Lender, the termination of the Total Commitment
and the repayment, satisfaction or discharge of all the other Obligations.
Section 8.05 Right of Set-off. Upon the occurrence and during the continuance of any
Event of Default, each Lender, the L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender, the L/C Issuer or any such
Affiliate to or for the credit or the account of a Borrower against any and all of the obligations
of the Borrowers now or hereafter existing under this Agreement or any other Loan Document to such
Lender or the L/C Issuer or the Note held by such Lender, whether or not such Lender or the L/C
Issuer shall have made any demand under this Agreement, any other Loan Document or such Note and
although such obligations may be unmatured; provided, that in the event that any Defaulting Lender
shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately
to the Administrative Agent for further application in accordance with the provisions of
Section 8.16 and, pending such payment, shall be segregated by such Defaulting Lender from
its other funds and deemed held in trust for the benefit of the Administrative Agent and the
Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a
statement describing in reasonable detail the Obligations owing to such Defaulting
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Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify
the Borrowers after any such set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of each Lender, the L/C
Issuer and their respective Affiliates under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that such Lender, the L/C
Issuer and their respective Affiliates may have.
Section 8.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent, the
L/C Issuer and each Lender (except by operation of law or to the extent permitted hereunder) and no
Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of this Section, (ii)
by way of participation in accordance with the provisions of subsection (d) of this
Section, and (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Advances (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that
any such assignment shall be subject to the following conditions:
(i) Minimum Amounts. (A) In the case of an assignment of the entire remaining
amount of the assigning Lender’s Commitment and the Advances and the L/C Advances at the
time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, no minimum amount need be assigned; (B) and in any case not described in
subsection b(i)(A) of this Section, the aggregate amount of the Commitment (which for this
purpose includes Advances outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Advances of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified
in the Assignment and Assumption, as of the Trade Date, shall not be less than $10,000,000
and increments of $1,000,000 in excess thereof unless each of the Administrative Agent and,
so long as no Event of Default has occurred and is continuing, the Borrowers otherwise
consent (each such consent not to be unreasonably withheld or delayed); provided, however,
that concurrent assignments to members of an Assignee Group and concurrent assignments from
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members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee
and members of its Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met;
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Advances and the L/C Advances or the Commitment
assigned, except that this clause (ii) shall not apply to rights of the Swing Line Lender in
respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and in addition:
(A) the consent of the Borrowers (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; provided that the Borrowers shall be
deemed to have consented to any such assignment unless it shall object thereto by
written notice to the Administrative Agent within five (5) Business Days after
having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund;
(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. The Eligible Assignee, if it is not a
Lender, shall deliver to the Administrative Agent an administrative questionnaire and the
Administrative Agent shall further deliver such administrative questionnaire to the
Borrowers.
(v) No Assignment to Certain Persons. No such assignment shall be made to (A)
either Borrower, the Parent or any of either Borrower’s or Parent’s Affiliates or
Subsidiaries, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person
which, upon becoming a Lender hereunder, would constitute any of the foregoing Persons
described in this clause (B), or (C) to a natural person.
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(vi) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment by such Lender shall
be effective unless and until, in addition to the other conditions thereto set forth herein,
the applicable assignor or assignee shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon distribution thereof as
appropriate (which may be outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the consent of the
Borrowers and the Administrative Agent, the applicable pro rata share of Loans previously
requested but not funded by the Defaulting Lender, to each of which the applicable assignee
and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment
liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender
hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full
pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in
accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any
assignment of rights and obligations of any Defaulting Lender hereunder shall become
effective under applicable law without compliance with the provisions of this paragraph,
then the assignee of such interest shall be deemed to be a Defaulting Lender for all
purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement with respect to the
interest assigned and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement in addition to any rights and
obligations it may theretofore have as a Lender, 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 2.12,
2.15, and 8.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Upon request, the Borrowers (at their expense) shall execute
and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, shall maintain at the Administrative Agent’s office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Advances and L/C Advances owing to
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, absent manifest error, and the Borrowers, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. In addition, the Administrative Agent shall maintain on the Register the
designation, and revocation of designation, of any Lender as a Defaulting Lender
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of which it has received notice. The Register shall be available for inspection by the
Borrowers and the Lenders at any reasonable time and from time to time upon reasonable prior
notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender, the Parent, the Borrowers or any of the Parent’s or the Borrowers’
respective Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Advances (including such Lender’s participations L/C Obligations and/or Swing
Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the L/C
Issuer and the Lenders shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to Section
8.01 that affects such Participant. Subject to subsection (e) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.12,
2.15 and 8.04 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 8.05 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.16 as though
it were a Lender.
(e) Limitation upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 2.12 or 2.15 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 Borrowers’ prior written
consent. A Participant that would be a foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 2.15 unless the Borrowers are notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.15 as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note(s), if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of
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a paper-based recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other similar state laws
based on the Uniform Electronic Transactions Act.
(h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Advances pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’
notice to the Borrowers and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to
the Borrowers and the Lenders, resign as Swing Line Lender. In the event of any such resignation,
the Borrowers shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing
Line Lender hereunder; provided, however, that no failure by the Borrowers to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding
as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Advances or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America
resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make Base Rate Advances or fund
risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the
appointment of a successor and acceptance of such appointment by the successor L/C Issuer and/or
Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be,
and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to Bank of America to effectively assume the obligations of Bank of America with respect to such
Letters of Credit.
Section 8.07 Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the L/C Issuer and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors
and representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it or its Affiliates (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, 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 or any
credit insurance provider, in each case, relating to either Borrower and its obligations, (g)
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with the consent of the Parent or either Borrower or (h) to the extent such Information (x)
becomes publicly available other than as a result of a breach of this Section actually
known to or caused by the disclosing party or (y) becomes available to the Administrative Agent,
any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a
source other than the Parent or a Borrower.
For purposes of this Section, “Information” means all information received
from the Parent, either Borrower or any Subsidiary of the Parent relating to the Parent, a Borrower
or any such Subsidiary or any of their respective businesses, other than any such information that
is available to the Administrative Agent, the L/C Issuer or any Lender on a nonconfidential basis
prior to disclosure by the Parent, a Borrower or any such Subsidiary, provided that, in the case of
information received from the Parent, a Borrower or any such Subsidiary 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 of the Administrative Agent, the L/C Issuer and the Lenders acknowledges that (a) the
Information may include material non-public information concerning the Parent, a Borrower or a
Subsidiary of either thereof, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such material
non-public information in accordance with applicable law, including Federal and state securities
laws with respect to Lenders subject to such laws and only to the extent such laws are applicable
to such Lender.
Section 8.08 Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 8.09 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by
telecopier or other electronic transmission shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 8.10 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent, the L/C Issuer and each Lender, regardless of any investigation made by the
Administrative Agent, the L/C Issuer or any Lender or on their behalf and notwithstanding that the
Administrative Agent, the L/C Issuer or any Lender may have had notice or knowledge of any Default
at the time of any Borrowing, any Advance or any L/C Credit Extension, and shall continue in full
force and effect as long as any Advance or any other Obligation hereunder shall remain unpaid or
unsatisfied or any Letter of Credit or L/C Obligation shall remain outstanding.
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Section 8.11 Replacement of Lenders. (i) If any Lender requests compensation under
Section 2.12, (ii) if the Borrowers are required to pay any additional amount to any Lender
or any governmental authority for the account of any Lender pursuant to Section 2.15, (iii)
if any Lender is, or within fifteen (15) Business Days of such assignment or delegation was, a
Defaulting Lender, (iv) if any Lender is unable to make Eurocurrency Rate Advances pursuant to
Section 2.13, or (v) if any Lender shall fail to provide any consent, or consent to any
waiver or amendment, agreed to by the Required Lenders then the Borrowers may, at its sole expense
and effort, upon written notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 8.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided
that:
(a) the Borrowers shall have paid (or cause to be paid) to the Administrative Agent the
assignment fee specified in Section 8.06(b);
(b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Advances and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents (including any amounts under Section
8.04(c)) from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrowers (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under
Section 2.12 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable laws;
(e) no Default or Event of Default shall have occurred and be continuing; and
(f) such parties to the assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption and the assignee shall deliver to the Administrative Agent an
administrative questionnaire.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.
Section 8.12 Jurisdiction, Etc.
(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or the Notes, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by
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law, in such federal court. Each of the Parent and IHCL hereby agrees that service of process
in any such action or proceeding brought in any such New York State court or in such federal court
may be made upon the Parent c/o the Borrowers at its offices at 0000 Xxxxxxxxx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx 00000, Attention: General Counsel (the “Process Agent”), and hereby
further agrees that the failure of the Process Agent to give any notice of any such service to the
Parent or IHCL, as applicable, shall not impair or affect the validity of such service or of any
judgment rendered in any action or proceeding based thereon. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or the
Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) To the extent that either the Parent or either Borrower has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, each of the Parent and each Borrower hereby irrevocably waives
such immunity in respect of its obligations under this Agreement and the other Loan Documents.
Section 8.13 Judgment.
(a) Rate of Exchange. If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under the Notes in another currency into Dollars, the
parties hereto agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which, in accordance with normal banking procedures, the
Administrative Agent could purchase such other currency with Dollars in New York City, New York, at
the close of business on the Business Day immediately preceding the day on which final judgment is
given, together with any premiums and costs of exchange payable in connection with such purchase.
(b) Indemnity. The obligation of the Borrowers in respect of any sum due from it to
the Administrative Agent or any Lender hereunder or under any Note shall, notwithstanding any
judgment in a currency other than Dollars, be discharged only to the extent that on the Business
Day next succeeding receipt by the Administrative Agent or such Lender of any sum adjudged to be so
due in such other currency, the Administrative Agent or such Lender, as the case may be, may, in
accordance with normal banking procedures, purchase Dollars with such other currency. If the
Dollars so purchased are less than the sum originally due to the Administrative Agent or such
Lender in Dollars, the Borrowers agree, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or such Lender against such loss, and if the
Dollars so purchased exceed the sum originally due to any the Administrative Agent or any
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Lender in Dollars, the Administrative Agent or such Lender agrees to remit to the Borrowers
such excess.
Section 8.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 8.15 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrowers and the Parent that pursuant to the requirements of the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is
required to obtain, verify and record information that identifies each Borrower, which information
includes the name and address of each Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrowers in accordance with the Act.
Each Borrower shall, promptly following a request by the Administrative Agent or any Lender,
provide all documentation and other information that the Administrative Agent or such Lender
requests in order to comply with its ongoing obligations under applicable “know your customer” and
anti-money laundering rules and regulations, including the Act.
Section 8.16 Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender as provided in Section 8.16(b), to the extent permitted by
applicable law:
(i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 8.01.
(ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 8.05), shall be applied at such time or times as
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may be determined by the Administrative Agent as follows: first, to the payment of any
amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to
the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C
Issuer or Swing Line Lender hereunder; third, if so determined by the Administrative Agent
or requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for
future funding obligations of that Defaulting Lender of any participation in any Swing Line
Loan or Letter of Credit; fourth, as the Borrowers may request (so long as no Default or
Event of Default exists), to the funding of any Advance or L/C Advance in respect of which
that Defaulting Lender has failed to fund its portion thereof as required by this Agreement,
as determined by the Administrative Agent; fifth, if so determined by the Administrative
Agent and the Borrowers, to be held in a non-interest bearing deposit account and released
in order to satisfy obligations of that Defaulting Lender to fund Advances under this
Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or
Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained
by any Lender, the L/C Issuer or Swing Line Lender against that Defaulting Lender as a
result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh,
so long as no Default or Event of Default exists, to the payment of any amounts owing to the
Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the
Borrowers against that Defaulting Lender as a result of that Defaulting Lender’s breach of
its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that if (x) such payment is a
payment of the principal amount of any Advances or L/C Borrowings in respect of which that
Defaulting Lender has not fully funded its appropriate share and (y) such Advances or L/C
Borrowings were made at a time when the conditions set forth in Section 3.02 were
satisfied or waived, such payment shall be applied solely to pay the Advances of, and L/C
Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to
the payment of any Advances of, or L/C Borrowings owed to, that Defaulting Lender. Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section 8.16(a)(ii) shall be deemed paid to and redirected by that
Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees. That Defaulting Lender (A) shall not be entitled to receive
any facility fee pursuant to Section 2.05(a) except to the extent allocable to the
sum of (1) the Outstanding Amount of Advances and L/C Advances funded by it and (2) its Pro
Rata Share of the stated amount of Letters of Credit and Swing Line Loans for which it has
provided Cash Collateral pursuant to Section 2.03, Section 2.04, Section
2.18, or Section 8.16(a)(ii), as applicable, and (B) shall be limited in its
right to receive Letter of Credit Fees as provided in Section 2.03(h). In the event
that any such Defaulting Lender’s participation obligation has not been reallocated to other
Lenders or Cash Collateralized in accordance with the terms hereof, the Borrowers shall (x)
be required to pay to each of the L/C Issuer and the Swing Line Lender, as applicable, the
amount of such fee allocable to its Fronting Exposure arising from that Defaulting Lender
and (y) not be required to pay the remaining amount of such fee that otherwise would have
been required to have been paid to that Defaulting Lender.
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(iv) Reallocation of Pro Rata Share Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03
and 2.04, the “Pro Rata Share Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender; provided, that,
(i) each such reallocation shall be given effect only if, at the date the applicable Lender
becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the aggregate
obligation of each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of
(1) the Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding
Amount of the Advances and L/C Advances of that Lender.
(b) Defaulting Lender Cure. If the Borrowers, the Administrative Agent, Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Advances of the other Lenders
or take such other actions as the Administrative Agent may determine to be necessary to cause the
Advances and funded and unfunded participations in Letters of Credit and Swing Line Loans to be
held on a pro rata basis by the Lenders in accordance with their Pro Rata Share Percentage (without
giving effect to Section 8.16(a)(iv)), whereupon that Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and
provided, further, that except to the extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lender’s having been a Defaulting Lender.
The Administrative Agent, the L/C Issuer or the Swing Line Lender will promptly notify the
Borrowers at the time the Administrative Agent, the L/C Issuer or the Swing Line Lender determines
or is otherwise informed of the existence of a Defaulting Lender.
Section 8.17 No Advisory or Fiduciary Relationship. In connection with all aspects of
each transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each of the Parent, the Borrowers and each
other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i)
(A) the arranging and other services regarding this Agreement provided by the Administrative Agent,
the Lenders and the Arrangers are arm’s-length commercial transactions between the Parent, the
Borrowers, each other Loan Party and their respective Affiliates, on the one hand, and the
Administrative Agent, the Lenders and the Arrangers, on the other hand, (B) each of the Parent, the
Borrowers and the other Loan Parties has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate, and (C) each of the Parent, the Borrowers and
each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each
of the Administrative Agent, the Lenders and
94
each Arranger is and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent
or fiduciary for the Borrowers, any other Loan Party or any of their respective Affiliates, or any
other Person and (B) neither the Administrative Agent nor any Lender or Arranger has any obligation
to the Borrowers, any other Loan Party or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the Administrative Agent, each Lender and each Arranger and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Parent, the Borrowers, the other Loan Parties and their respective
Affiliates, and neither the Administrative Agent nor any Lender or Arranger has any obligation to
disclose any of such interests to the Parent, the Borrowers, any other Loan Party or any of their
respective Affiliates. To the fullest extent permitted by law, each of the Parent, each Borrower
and each other Loan Party hereby waives and releases any claims that it may have against the
Administrative Agent or any Lender or any Arranger with respect to any breach or alleged breach of
agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
Section 8.18 Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents
shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the
“Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an
amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the
Loans or, if it exceeds such unpaid principal, refunded to the Borrowers. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
Section 8.19 Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions
of this Section 8.19, if and to the extent that the enforceability of any provisions in
this Agreement relating to Defaulting Lenders shall be limited by the bankruptcy code of the United
States or any comparable bankruptcy, insolvency, receivership, reorganization or other debtor
relief laws, as determined in good faith by the Administrative Agent, the L/C Issuer or the Swing
Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent
not so limited.
[Signature Pages Follow]
95
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers or other representatives thereunto duly authorized, as of the date first above
written.
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BORROWERS:
INVESCO HOLDING COMPANY LIMITED
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By: |
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Name: |
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Title: |
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IVZ, INC.
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By: |
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Name: |
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Title: |
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PARENT:
INVESCO LTD.
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By: |
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Name: |
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Title: |
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ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent
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By: |
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Name: |
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Title: |
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CREDIT AGREEMENT
Signature Page
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LENDERS:
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
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By: |
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Name: |
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Title: |
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CREDIT AGREEMENT
Signature Page
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CITIBANK
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By: |
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Name: |
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Title: |
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CREDIT AGREEMENT
Signature Page
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[OTHER LENDERS]
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By: |
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Name: |
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Title: |
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CREDIT AGREEMENT
Signature Page
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
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Name of Initial Lender |
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Domestic Lending Office |
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Eurocurrency Lending Office |
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Bank of America, N.A. |
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See Schedule 8.02 |
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Citibank N.A. |
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0000 Xxxxx Xxxx, Xxxxxxxx III |
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0000 Xxxxx Xxxx, Xxxxxxxx XXX |
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Xxx Xxxxxx, Xxxxxxxx 00000 |
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Xxx Xxxxxx, Xxxxxxxx 00000 |
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Attention:
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Xxxxx Xxxxxx
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Attention:
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Xxxxx Xxxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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Xxxxxx Xxxxxxx Bank, N.A. |
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000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx |
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000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx |
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Xxxx Xxxx Xxxx, XX 00000 |
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Xxxx Xxxx Xxxx, XX 00000 |
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Attention:
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Xxxxxx X. Xxxxxxx
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Attention:
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Xxxxxx X. Xxxxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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The Bank of New York Mellon |
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One Xxxx Xxxxxx, 00xx Xxxxx |
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One Wall Street, 17th Floor |
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New York, New York 10286 |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention:
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Xxxxxxxx Xxxxxx
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Attention:
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Xxxxxxxx Xxxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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SunTrust Bank |
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000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx |
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000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx |
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Xxxxxxx, Xxxxxxx 00000 |
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Xxxxxxx, Xxxxxxx 00000 |
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Attention:
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Xxxxxxx Xxxxxxx
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Attention:
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Xxxxxxx Xxxxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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HSBC Bank USA, NA |
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One HSBC Center |
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Xxx XXXX Xxxxxx |
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Xxxxxxx, Xxx Xxxx 00000 |
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Xxxxxxx, Xxx Xxxx 00000 |
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Attention:
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Xxxxx X. Xxxxx
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Attention:
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Xxxxx X. Xxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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Toronto Dominion (New York) LLC |
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00 Xxxx 00xx Xxxxxx |
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00 Xxxx 00xx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention:
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Xxxx Xxxxxxxx
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Attention:
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Xxxx Xxxxxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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JPMorgan Chase Bank |
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000 Xxxx Xxxxxx, Xxxxx 4 |
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000 Xxxx Xxxxxx, Xxxxx 0 |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention:
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Xxxxxx Xxxx
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Attention:
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Xxxxxx Xxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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Schedule I
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Name of Initial Lender |
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Domestic Lending Office |
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Eurocurrency Lending Office |
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State Street Bank and Trust Company |
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000 Xxxxxxxxxx Xxxxxx, Tower 2 |
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000 Xxxxxxxxxx Xxxxxx, Xxxxx 0 |
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Xxxxxx, Xxxxxxxxxxxxx 00000 |
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Xxxxxx, Xxxxxxxxxxxxx 00000 |
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Attention:
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Xxxx Xxxxxx
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Attention:
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Xxxx Xxxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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Xxxxx Fargo Bank, National Association |
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00 Xxxxx 0xx Xxxxxx |
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00 Xxxxx 0xx Xxxxxx |
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MAC N9305-075 |
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MAC X0000-000 |
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Xxxxxxxxxxx, Xxxxxxxxx 00000 |
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Xxxxxxxxxxx, Xxxxxxxxx 00000 |
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Attention:
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Xxxxxx Xxxxxxxxx
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Attention:
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Xxxxxx Xxxxxxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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Credit Suisse AG, Cayman Islands |
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Eleven Madison Avenue |
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Eleven Madison Avenue |
Branch |
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New York, New York 10010 |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention:
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Xxx Xxxxx
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Attention:
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Xxx Xxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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Xxxxxxx Sachs Bank USA |
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000 Xxxx Xxxxxx |
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000 Xxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention:
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Xxxxxx Xxxxxx
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Attention:
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Xxxxxx Xxxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
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Barclays Bank PLC |
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Xxxxx 00, 0 Xxxxxxxxx Xxxxx |
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Xxxxx 11, 1 Xxxxxxxxx Place |
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London, E14 5HP |
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Xxxxxx, X00 0XX |
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Attention:
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Xxxx Xxxxx
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Attention:
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Xxxx Xxxxx |
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Telephone:
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00 (0) 00 0000 0000
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Telephone:
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00 (0) 00 0000 0000 |
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Facsimile:
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N/A
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Facsimile:
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N/A |
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BNP Paribas |
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000 Xxxxxxx Xxxxxx |
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000 Xxxxxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention:
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Xxxx Xxxxxxx
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Attention:
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Xxxx Xxxxxxx |
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Telephone:
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000-000-0000
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Telephone:
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000-000-0000 |
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Facsimile:
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000-000-0000
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Facsimile:
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000-000-0000 |
Schedule I
SCHEDULE 1.01
COMMITMENTS
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Lender |
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Commitment |
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Applicable Percentage |
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Bank of America, N.A. |
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$ |
120,000,000.00 |
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9.600000000 |
% |
Citibank N.A. |
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$ |
120,000,000.00 |
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9.600000000 |
% |
The Bank of New York Mellon |
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$ |
107,000,000.00 |
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8.560000000 |
% |
HSBC Bank USA, NA |
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$ |
107,000,000.00 |
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8.560000000 |
% |
Xxxxxx Xxxxxxx Bank, N.A. |
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$ |
107,000,000.00 |
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8.560000000 |
% |
SunTrust Bank |
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$ |
107,000,000.00 |
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8.560000000 |
% |
Toronto Dominion (New York) LLC |
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$ |
107,000,000.00 |
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8.560000000 |
% |
JPMorgan Chase Bank, N.A. |
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$ |
75,000,000.00 |
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6.000000000 |
% |
State Street Bank and Trust Company |
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$ |
75,000,000.00 |
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6.000000000 |
% |
Xxxxx Fargo Bank, National Association |
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$ |
75,000,000.00 |
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6.000000000 |
% |
Credit Suisse AG, Cayman Islands Branch |
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$ |
75,000,000.00 |
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6.000000000 |
% |
Xxxxxxx Sachs Bank USA |
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$ |
75,000,000.00 |
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6.000000000 |
% |
Barclays Bank PLC |
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$ |
50,000,000.00 |
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4.000000000 |
% |
BNP Paribas |
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$ |
50,000,000.00 |
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4.000000000 |
% |
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Total |
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$ |
1,250,000,000.00 |
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100.00000000 |
% |
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Schedule 1.01
SCHEDULE 1.02
MANDATORY COST FORMULA
1. |
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The Mandatory Cost (to the extent applicable) is an addition to the interest rate to
compensate Lenders for the cost of compliance with: |
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(a) |
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the requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its functions);
or |
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(b) |
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the requirements of the European Central Bank. |
2. |
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On the first day of each Interest Period (or as soon as practicable thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum. The
Administrative Agent will, at the request of the Borrowers or any Lender, deliver to the
Borrowers or such Lender as the case may be, a statement setting forth the calculation of any
Mandatory Cost. |
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3. |
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The Additional Cost Rate for any Lender lending from a Eurocurrency Lending Office in a
Participating Member State will be the percentage notified by that Lender to the
Administrative Agent. This percentage will be certified by such Lender in its notice to the
Administrative Agent as the cost (expressed as a percentage of such Lender’s participation in
all Advances made from such Eurocurrency Lending Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of Advances made from that Eurocurrency
Lending Office. |
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4. |
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The Additional Cost Rate for any Lender lending from a Eurocurrency Lending Office in the
United Kingdom will be calculated by the Administrative Agent as follows: |
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(a) |
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in relation to any Advance in Sterling: |
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AB+C(B-D)+E x 0.01
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per cent per annum |
100
- (A+C) |
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(b) |
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in relation to any Advance in any currency other than Sterling: |
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E x 0.01
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per cent per annum |
300 |
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Schedule 1.02
Where:
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“A” |
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is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements. |
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“B” |
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is the percentage rate of interest (excluding the Applicable Margin, the
Mandatory Cost and any interest charged on overdue amounts pursuant to Section
2.07(b) and, in the case of interest (other than on overdue amounts) charged at the
Default Rate, without counting any increase in interest rate effected by the charging
of the Default Rate) payable for the relevant Interest Period of such Advance. |
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“C” |
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is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England. |
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“D” |
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is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits. |
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“E” |
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is designed to compensate Lenders for amounts payable under the Fees
Regulations and is calculated by the Administrative Agent as being the average of the
most recent rates of charge supplied by the Lenders to the Administrative Agent
pursuant to paragraph 7 below and expressed in pounds per £1,000,000. |
5. |
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For the purposes of this Schedule: |
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(a) |
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“Eligible Liabilities” and “Special Deposits” have the meanings
given to them from time to time under or pursuant to the Bank of England Act 1998 or
(as may be appropriate) by the Bank of England; |
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(b) |
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“Fees Regulations” means the FSA Supervision Manual or such other law
or regulation as may be in force from time to time in respect of the payment of fees
for the acceptance of deposits; |
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(c) |
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“Fee Tariffs” means the fee tariffs specified in the Fees Regulations
under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated
fee required pursuant to the Fees Regulations but taking into account any applicable
discount rate); |
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(d) |
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“EMU Legislation” means the legislative measures of the European
Council for the introduction of, changeover to or operation of a single or unified
European currency. |
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(e) |
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“Participating Member State” means each state so described in any EMU
Legislation. |
Schedule 1.02
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(f) |
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“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Regulations. |
6. |
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In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative result
obtained by subtracting D from B shall be taken as zero. The resulting figures shall be
rounded to four decimal places. |
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7. |
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If requested by the Administrative Agent or the Borrowers, each Lender with a Eurocurrency
Lending Office in the United Kingdom or a Participating Member State shall, as soon as
practicable after publication by the Financial Services Authority, supply to the
Administrative Agent and the Borrowers, the rate of charge payable by such Lender to the
Financial Services Authority pursuant to the Fees Regulations in respect of the relevant
financial year of the Financial Services Authority (calculated for this purpose by such Lender
as being the average of the Fee Tariffs applicable to such Lender for that financial year) and
expressed in pounds per £1,000,000 of the Tariff Base of such Lender. |
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8. |
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Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without limitation, each Lender
shall supply the following information in writing on or prior to the date on which it becomes
a Lender: |
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(a) |
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its jurisdiction of incorporation and the jurisdiction of the Eurocurrency
Lending Office out of which it is making available its participation in the relevant
Advance; and |
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(b) |
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any other information that the Administrative Agent may reasonably require for
such purpose. |
Each Lender shall promptly notify the Administrative Agent in writing of any change to the
information provided by it pursuant to this paragraph.
9. |
|
The percentages or rates of charge of each Lender for the purpose of A, C and E above shall
be determined by the Administrative Agent based upon the information supplied to it pursuant
to paragraphs 7 and 8 above and on the assumption that, unless a Lender
notifies the Administrative Agent to the contrary, each Lender’s obligations in relation to
cash ratio deposits, Special Deposits and the Fees Regulations are the same as those of a
typical bank from its jurisdiction of incorporation with a Eurocurrency Lending Office in the
same jurisdiction as such Lender’s Eurocurrency Lending Office. |
|
10. |
|
The Administrative Agent shall have no liability to any Person if such determination results
in an Additional Cost Rate which over- or under-compensates any Lender and shall be entitled
to assume that the information provided by any Lender pursuant to paragraphs 3,
7 and 8 above is true and correct in all respects. |
Schedule 1.02
11. |
|
The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on the information provided by each Lender pursuant to paragraphs 3, 7 and
8 above. |
|
12. |
|
Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall,
in the absence of manifest error, be conclusive and binding on all parties hereto. |
|
13. |
|
The Administrative Agent may from time to time, after consultation with the Borrowers and the
Lenders, determine and notify to all parties any amendments which are required to be made to
this Schedule in order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or any of its functions)
and any such determination shall, in the absence of manifest error, be conclusive and binding
on all parties hereto. |
Schedule 1.02
SCHEDULE 4.01(b)
SUBSIDIARIES
|
|
|
|
|
|
|
Company Name |
|
Country |
1.
|
|
1371 Preferred Inc.
|
|
Canada |
2.
|
|
A I M Capital Management Company Limited
|
|
Ireland |
3.
|
|
AIM GP Canada Inc
|
|
Canada |
4.
|
|
AMVESCAP Limited
|
|
United Kingdom |
5.
|
|
AT Planning Services, Inc.
|
|
United States |
6.
|
|
Atlantic Trust Group, Inc.
|
|
United States |
7.
|
|
Atlantic Wealth Holdings Limited
|
|
United Kingdom |
8.
|
|
Atlantic Wealth Management International Limited
|
|
Jersey |
9.
|
|
Atlantic Wealth Management Limited
|
|
United Kingdom |
10.
|
|
C M Investment Nominees Limited
|
|
United Kingdom |
11.
|
|
Chancellor Citiventure 96 Partner (Cayman) Ltd
|
|
Cayman Islands |
12.
|
|
Coff Associates (Cayman) Limited
|
|
Cayman Islands |
13.
|
|
CPCO Associates (Cayman) Limited
|
|
Xxxxxx Xxxxxxx |
00.
|
|
Xxxxxx Xxxxxxxxxx Xxxxxxx
|
|
Xxxxxx Xxxxxxx |
15.
|
|
Finemost Limited
|
|
United Kingdom |
16.
|
|
Fund Management Company
|
|
USA |
17.
|
|
Huaneng Invesco WLR Investment Consulting Company Ltd.
|
|
China |
18.
|
|
HVH Immobilien- und Xxxxxxxxxxxx XxxX
|
|
Xxxxxxx |
00.
|
|
HVH USA, Inc.
|
|
USA |
20.
|
|
IAS Asset I LLC
|
|
United States |
21.
|
|
IAS Operating Partnership LP
|
|
United States |
22.
|
|
IMC Investments I LLC
|
|
United States |
23.
|
|
INVESCO (B.V.I.) NOMINEES LIMITED
|
|
Virgin Islands, British |
24.
|
|
INVESCO (Cayman Islands) Ltd.
|
|
Cayman Islands |
25.
|
|
Invesco A I M Management Company Limited
|
|
Ireland |
26.
|
|
Invesco Administration Services Limited
|
|
United Kingdom |
27.
|
|
Invesco Advisers, Inc.*
|
|
USA |
28.
|
|
Invesco Aim Global Holdings, Inc.
|
|
USA |
29.
|
|
Invesco Aim Retirement Services, Inc.
|
|
USA |
30.
|
|
INVESCO Asset Management (Bermuda) Ltd
|
|
Bermuda |
31.
|
|
Invesco Asset Management (Japan) Limited
|
|
Japan |
32.
|
|
Invesco Asset Management (Schweiz) AG
|
|
Switzerland |
33.
|
|
Invesco Asset Management Asia Limited
|
|
Hong Kong |
34.
|
|
Invesco Asset Management Australia (Holdings) Ltd
|
|
Australia |
35.
|
|
Invesco Asset Management Deutschland GmbH
|
|
Germany |
36.
|
|
INVESCO Asset Management Ireland Holdings Limited
|
|
Ireland |
37.
|
|
INVESCO Asset Management Ireland Limited
|
|
Ireland |
38.
|
|
Invesco Asset Management Limited
|
|
United Kingdom |
Schedule 4.01(b)
|
|
|
|
|
|
|
Company Name |
|
Country |
39.
|
|
Invesco Asset Management Xxxxxxxxxx XxxX
|
|
Xxxxxxx |
00.
|
|
Invesco Asset Management Pacific Limited
|
|
Hong Kong |
41.
|
|
Invesco Asset Management SA
|
|
France |
42.
|
|
Invesco Asset Management Singapore Ltd
|
|
Singapore |
43.
|
|
Invesco Australia Limited
|
|
Australia |
44.
|
|
Invesco Canada Holdings Inc.
|
|
Canada |
45.
|
|
INVESCO CE SA
|
|
Belgium |
46.
|
|
Invesco CE Services SA
|
|
Belgium |
47.
|
|
INVESCO Continental Europe Holdings SA
|
|
Luxembourg |
48.
|
|
INVESCO Distributors, Inc.
|
|
USA |
49.
|
|
Invesco Fund Managers Limited*
|
|
United Kingdom |
50.
|
|
INVESCO Funds Group, Inc.
|
|
USA |
51.
|
|
INVESCO Global Asset Management (Bermuda) Limited
|
|
Bermuda |
52.
|
|
INVESCO Global Asset Management Limited
|
|
Ireland |
53.
|
|
Invesco Global Investment Funds Limited
|
|
United Kingdom |
54.
|
|
Invesco Group Limited
|
|
United Kingdom |
55.
|
|
Invesco Group Services, Inc.
|
|
USA |
56.
|
|
Invesco GT Asset Management PLC
|
|
United Kingdom |
57.
|
|
Invesco Holding Company Limited
|
|
United Kingdom |
58.
|
|
INVESCO Holding Germany Ltd & Co OHG
|
|
Germany |
59.
|
|
XXXXXXX Xxxxxxx X.X.
|
|
Xxxxxxxxxxx |
00.
|
|
Invesco Hong Kong Limited
|
|
Hong Kong |
61.
|
|
Invesco Hungary LLC
|
|
Hungary |
62.
|
|
Invesco Inc.
|
|
Canada |
63.
|
|
Invesco Insurance Agency, Inc.
|
|
USA |
64.
|
|
INVESCO International (Southern Africa) Limited
|
|
South Africa |
65.
|
|
Invesco International Holdings Limited
|
|
United Kingdom |
66.
|
|
INVESCO International Limited
|
|
Jersey |
67.
|
|
INVESCO International Nominees Limited
|
|
Jersey |
68.
|
|
Invesco Investment Services, Inc.
|
|
USA |
69.
|
|
Invesco Investments (Bermuda) Ltd.
|
|
Bermuda |
70.
|
|
Invesco Kapitalanlagegesellschaft mbH
|
|
Germany |
71.
|
|
INVESCO Management GmbH
|
|
Germany |
72.
|
|
Invesco Management Group, Inc.
|
|
USA |
73.
|
|
INVESCO Management S.A.
|
|
Luxembourg |
74.
|
|
Invesco Mortgage Capital Inc.
|
|
United States |
75.
|
|
INVESCO National Trust Company
|
|
USA |
76.
|
|
Invesco North American Group Limited
|
|
United Kingdom |
77.
|
|
Invesco North American Holdings, Inc.
|
|
USA |
78.
|
|
Invesco Pacific Group Limited
|
|
United Kingdom |
79.
|
|
Invesco Pacific Holdings Limited
|
|
Bermuda |
80.
|
|
INVESCO Pacific Partner Ltd
|
|
Bermuda |
Schedule 4.01(b)
|
|
|
|
|
|
|
Company Name |
|
Country |
81.
|
|
Invesco Pension Trustees Limited
|
|
United Kingdom |
82.
|
|
Invesco Perpetual Life Limited
|
|
United Kingdom |
83.
|
|
INVESCO Powershares Capital Management Ireland Limited
|
|
Ireland |
84.
|
|
Invesco PowerShares Capital Management LLC*
|
|
USA |
85.
|
|
INVESCO Private Capital Investments, Inc.
|
|
USA |
86.
|
|
INVESCO Private Capital Verwaltung GMBH (in liquidation 25.4.07)
|
|
Germany |
87.
|
|
Invesco Private Capital, Inc.
|
|
United States |
88.
|
|
INVESCO Properties Limited
|
|
Ireland |
89.
|
|
INVESCO Real Estate Germany LLC
|
|
USA |
90.
|
|
INVESCO Real Estate GmbH
|
|
Germany |
91.
|
|
Invesco Real Estate Limited
|
|
United Kingdom |
92.
|
|
Invesco Real Estate Management S.a.r.l.
|
|
Luxembourg |
93.
|
|
Invesco Realty Asia I, Ltd
|
|
Cayman Islands |
94.
|
|
INVESCO Realty, Inc.
|
|
USA |
95.
|
|
Invesco Savings Scheme (Nominees) Limited
|
|
United Kingdom |
96.
|
|
Invesco Senior Secured Management, Inc.
|
|
USA |
97.
|
|
INVESCO Services Ltd OHG
|
|
Germany |
98.
|
|
Invesco Taiwan Limited
|
|
R.O.C. |
99.
|
|
Invesco Trimark Dealer Inc./Courtage Invesco Trimark Inc.
|
|
Canada |
100.
|
|
Invesco Trimark Ltd./Invesco Trimark Ltée
|
|
Canada |
101.
|
|
Invesco UK Holdings PLC
|
|
United Kingdom |
102.
|
|
Invesco UK Limited
|
|
United Kingdom |
103.
|
|
Invesco WLR Limited
|
|
Hong Kong |
104.
|
|
Invesco WLR Private Equity Investment Management Limited
|
|
Hong Kong |
105.
|
|
Investment Fund Administrators Limited
|
|
Ireland |
106.
|
|
IPE Xxxx Management Ltd
|
|
united states |
107.
|
|
IRE (Cayman) Limited
|
|
Cayman Islands |
108.
|
|
IRE (China) Limited
|
|
China |
109.
|
|
IRE (Hong Kong) Limited
|
|
Hong Kong |
110.
|
|
IRE Japan, Ltd
|
|
Japan |
111.
|
|
IVZ Finance Limited
|
|
Ireland |
112.
|
|
IVZ Immobilien Xxxxxxxxxxx XxxX
|
|
Xxxxxxx |
000.
|
|
IVZ Mauritius Services Private Limited
|
|
Mauritius |
114.
|
|
IVZ, Inc.
|
|
USA |
115.
|
|
Xxxxx Xxxxxx Limited
|
|
United Kingdom |
116.
|
|
PCM Properties LLC
|
|
United States |
117.
|
|
Perpetual Holdings, Inc.
|
|
United States |
118.
|
|
Perpetual plc
|
|
United Kingdom |
119.
|
|
Perpetual Portfolio Management Limited
|
|
United Kingdom |
120.
|
|
Perpetual Unit Trust Management (Nominees) Limited
|
|
United Kingdom |
121.
|
|
Xxxx XX Management LP
|
|
United states |
122.
|
|
Xxxx Expansion Associates LP
|
|
United States |
Schedule 4.01(b)
|
|
|
|
|
|
|
Company Name |
|
Country |
123.
|
|
Sermon Lane Nominees Limited
|
|
United Kingdom |
124.
|
|
Sovereign G/.P. Holdings Inc
|
|
USA |
125.
|
|
Xxxxx Xxx Investment Counsel, Inc.
|
|
United States |
126.
|
|
V.V. Edinburgh R.W. G.P. Limited (in liquidation)
|
|
United Kingdom |
127.
|
|
V.V. Epsom G.P. Limited (in liquidation)
|
|
United Kingdom |
128.
|
|
V.V. General Partner Limited (in liquidation)
|
|
United Kingdom |
129.
|
|
V.V. Glasgow (No.1) G.P. Limited (in liquidation)
|
|
United Kingdom |
130.
|
|
X.X. Xxxxxx Keynes G.P. Limited (in liquidation)
|
|
United Kingdom |
131.
|
|
V.V. Nominees Limited (in liquidation)
|
|
United Kingdom |
132.
|
|
V.V. Northampton (No.2) G.P. Limited (in liquidation)
|
|
United Kingdom |
133.
|
|
V.V. Northampton G.P. Limited (in liquidation)
|
|
United Kingdom |
134.
|
|
V.V. Reading G.P. Limited (in liquidation)
|
|
United Kingdom |
135.
|
|
V.V. Real Property G.P. Limited (in liquidation)
|
|
United Kingdom |
136.
|
|
V.V. Real Property Nominees Limited (in liquidation)
|
|
United Kingdom |
137.
|
|
V.V. Redhill G.P. Limited (in liquidation)
|
|
United Kingdom |
138.
|
|
V.V. Slough G.P. Limited (in liquidation)
|
|
United Kingdom |
139.
|
|
V.V. Soho G.P. Limited (in liquidation)
|
|
United Kingdom |
140.
|
|
X.X. Xxxxxxxx G.P. Limited (in liquidation)
|
|
United Kingdom |
141.
|
|
X.X. Xxxxxxx G.P. Limited (in liquidation)
|
|
United Kingdom |
142.
|
|
VV CR 1s.r.o.
|
|
Czech Republic |
143.
|
|
VV Immobilien Verwaltungs GmbH
|
|
Germany |
144.
|
|
VV Immobilien Verwaltungs und Beteiligungs GmbH
|
|
Germany |
145.
|
|
VV USA LLC
|
|
USA |
146.
|
|
X.X. Xxxx & Co, LLC
|
|
United States |
147.
|
|
X.X. Xxxx & Co. (India) LLC
|
|
United States |
148.
|
|
X.X. Xxxx M & T, LLC
|
|
United States |
149.
|
|
X.X.Xxxx & Co., LLC
|
|
United States |
150.
|
|
XX Xxxx (India) Private Limited
|
|
United States |
151.
|
|
XX Xxxx DIP Management LLC
|
|
United States |
152.
|
|
WLR China Energy Associates Ltd
|
|
Cayman Islands |
153.
|
|
WLR Euro Wagon Management Ltd
|
|
United states |
Schedule 4.01(b)
SCHEDULE 4.01(d)
REQUIRED AUTHORIZATIONS
None.
Schedule 4.01(d)
SCHEDULE 4.01(i)
DISCLOSED LITIGATION
None.
Schedule 4.01(i)
SCHEDULE 5.02(a)
EXISTING LIENS
None.
SCHEDULE 8.02
ADMINISTRATIVE AGENT’S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
BORROWERS:
Invesco Holding Company Limited
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
E-Mail: xxx_xxxxx@xxxxxxx.xxx
Website Address: Xxxxxxx.xxx
IVZ, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
E-Mail: xxx_xxxxx@xxxxxxx.xxx
Website Address: Xxxxxxx.xxx
ADMINISTRATIVE AGENT:
Administrative Agent’s Office (For payments and Requests for Credit Extensions):
Bank of America, N.A.
One Independence Center
000 Xxxxx Xxxxx Xxxxxx
Mail Code: NC1-001-04-39
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
E-Mail: xxxx.xxxxxxx@xxxx.xxx
Wiring Information:
Account No.: 1366212250600
Reference: IVZ, Inc.
ABA No.: 000000000
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Bank of America Plaza
000 Xxxxx Xxxxx Xxxxxx
Mail Code: NC1-002-15-36
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
E-Mail: xxxxxxx.x.xxxxxx@xxxx.xxx
SWING LINE LENDER:
Bank of America, N.A.
One Independence Center
000 Xxxxx Xxxxx Xxxxxx
Mail Code: NC1-001-04-39
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
E-Mail: xxxx.xxxxxxx@xxxx.xxx
Wiring Information:
Account No.: 1366212250600
Reference: IVZ, Inc.
ABA No.: 000000000
LC ISSUER’S OFFICE:
(For fee payments due LC Issuer only and new LC requests and amendments):
Bank of America, N.A.
Trade Operations
0 Xxxxx Xxx
Mail Code: PA6-580-02-30
Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
E-Mail: xxxx.x.xxxxxx@xxxxxxxxxxxxx.xxx
Wiring Information:
Xxxx xx Xxxxxxx, X.X, Xxxxxxxxx, XX
Account No.: 04535-883980
Reference: IVZ, Inc. and LC #
ABA No.: 000000000 (New York, NY)
Attention: Scranton Standby
EXHIBIT A
FORM OF NOTE
|
|
|
|
|
|
U.S.$
|
|
Dated: May 24, 2010 |
FOR VALUE RECEIVED, the undersigned
, INVESCO HOLDING COMPANY LIMITED, a company organized
under the laws of England and Wales (“
IHCL”), and
IVZ, INC., a Delaware corporation
(together with IHCL, the “
Borrowers” and each individually, a “
Borrower”), HEREBY
PROMISE TO PAY to the order of
(the “
Lender”) for the account
of its Applicable Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$
[amount of the Lender’s Commitment in figures] or, if
less, the aggregate principal amount of the Advances made by the Lender to the Borrowers pursuant
to the Credit Agreement dated as of May 24, 2010 among the Borrowers,
INVESCO LTD., the Lender and
certain other lenders from time to time party thereto, and BANK OF AMERICA, N.A., as Administrative
Agent for the Lender and such other lenders and as Swing Line Lender and L/C Issuer (as amended,
restated, supplemented or otherwise modified from time to time, the “
Credit Agreement”)
outstanding on the Termination Date. Capitalized terms used but not defined herein shall have the
meanings specified therefor in the Credit Agreement.
The Borrowers promise to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Advance are payable to Bank of America, N.A.,
as Administrative Agent, at its account maintained at Bank of America, N.A. with its office at
Charlotte, North Carolina, ABA No. 000000000, Account No. 1366212250600, Bank of America, N.A. New
York, NY Account Name: Corporate Credit Support, Re: Invesco in same day funds. Each Advance owing
to the Lender by the Borrowers pursuant to the Credit Agreement, and all payments made on account
of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed
on the grid attached hereto which is part of this Note.
This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit
Agreement. The Credit Agreement, among other things, (i) provides for the making of Advances by
the Lender to the Borrowers from time to time in an aggregate amount not to exceed at any time
outstanding the Dollar amount first above mentioned or the Equivalent thereof in Sterling, the
indebtedness of the Borrowers resulting from each such Advance being evidenced by this Note, (ii)
contains provisions for determining the Dollar Equivalent of Advances denominated in Sterling and
(iii) contains provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to the maturity hereof
upon the terms and conditions therein specified.
[Remainder of page left blank intentionally; signature page follows.]
A-1
Form of Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
|
|
|
|
|
|
INVESCO HOLDING COMPANY LIMITED
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
IVZ, INC.
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
A-2
Form of Note
ADVANCES AND PAYMENTS OF PRINCIPAL
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of |
|
|
|
|
|
|
|
|
Principal Paid or |
|
Unpaid Principal |
|
|
Date |
|
Amount of Advance |
|
Prepaid |
|
Balance |
|
Notation Made By |
|
|
|
|
|
|
|
|
|
A-3
Form of Note
EXHIBIT B-1
FORM OF NOTICE OF BORROWING
[Date]
Bank of America, N.A.
One Independence Center
000 Xxxxx Xxxxx Xxxxxx
Mail Code: NC1-001-04-39
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of May 24
, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “
Credit Agreement”),
among INVESCO HOLDING COMPANY LIMITED, a company organized under the laws of England and Wales
(“
IHCL”), IVZ, INC., a Delaware corporation (“
IVZ”, together with IHCL, the
“
Borrowers” and each individually, a “
Borrower”),
INVESCO LTD., the Lenders from
time to time party thereto, and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer. Capitalized terms used but not defined herein shall have the meanings specified
therefor in the Credit Agreement.
IVZ, in its capacity as Borrower Agent, hereby give you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the Borrowers hereby request a Borrowing under
the Credit Agreement, and in that connection sets forth below the information relating to such
Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the Credit
Agreement:
|
(i) |
|
The Business Day of the Proposed Borrowing is , 20_. |
|
|
(ii) |
|
The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances]
[Eurocurrency Rate Advances]. |
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(iii) |
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The aggregate amount of the Proposed Borrowing is [$ ]
[£ ]. |
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[(iv) |
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The initial Interest Period for each Eurocurrency Rate Advance made as part of
the Proposed Borrowing is month[s].] |
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 (other than
clauses (g) and (i)(i) of Section 4.01) of the Credit Agreement are correct in all
material respects, before and after giving effect to the Proposed Borrowing and to the
application
B-1-1
Form of Notice of Borrowing
of the proceeds therefrom, as though made on and as of such date except to the extent
such representations and warranties specifically relate to an earlier date, in which case
such representations and warranties shall have been correct in all material respects on and
as of such earlier date (other than in the case of the representations and warranties made
in Section 4.01(d), which shall be correct in all material respects on and as of the
date of the Proposed Borrowing as though made on and as of such date, without regard to any
earlier date referenced therein); and
(B) no event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
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Very truly yours,
IVZ, INC., as Borrower Agent
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By: |
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Name: |
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Title: |
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B-1-2
Form of Notice of Borrowing
EXHIBIT B-2
FORM OF SWING LINE LOAN NOTICE
Date: , 201__
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To: |
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Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent |
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of May 24
, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “
Credit Agreement”),
among INVESCO HOLDING COMPANY LIMITED, a company organized under the laws of England and Wales
(“
IHCL”), IVZ, INC., a Delaware corporation (“IVZ”, together with IHCL, the
“
Borrowers” and each individually, a “
Borrower”),
INVESCO LTD., the Lenders from
time to time party thereto, and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer. Capitalized terms used but not defined herein shall have the meanings specified
therefor in the Credit Agreement.
IVZ, in its capacity as Borrower Agent, hereby request a Swing Line Loan:
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1. |
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On (a Business Day). |
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2. |
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In the amount of $ . |
The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Credit Agreement.
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Very Truly Yours,
IVZ, INC., as Borrower Agent
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By: |
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Name: |
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Title: |
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B-2-1
Form of Swing Line Loan Notice
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are
several and not joint.]4 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated
herein by reference and made a part of this Assignment and Assumption as if set forth herein in
full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities5) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an]
“Assigned Interest”). Each such sale and
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1 |
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For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language. |
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2 |
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For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language. |
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3 |
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Select as appropriate. |
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4 |
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Include bracketed language if there are
either multiple Assignors or multiple Assignees. |
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5 |
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Include all applicable subfacilities. |
C-1
Form of Assignment and Assumption
assignment is without recourse to [the][any] Assignor and, except as expressly provided in
this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1. |
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Assignor[s]:
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2. |
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Assignee[s]:
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify
Lender]] |
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3. |
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Borrowers: INVESCO HOLDING COMPANY LIMITED and IVZ, INC. |
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4. |
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Administrative Agent: BANK OF AMERICA, N.A., as the administrative agent under the
Credit Agreement |
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5. |
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Credit Agreement: Credit Agreement dated as of May 24, 2010 among INVESCO HOLDING
COMPANY LIMITED, a company organized under the laws of England and Wales (“IHCL”),
IVZ, INC., a Delaware corporation (together with IHCL, the “Borrowers” and each
individually, a “Borrower”), INVESCO LTD., as Parent, the Lenders from time to time
party thereto, and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer, as the same may be amended, restated, supplemented or otherwise modified from time to
time. |
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6. |
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Assigned Interest: |
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Aggregate Amount of |
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Percentage |
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Commitment for all |
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Amount of |
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Assigned of |
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Assignor[s]6 |
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Assignee[s]7 |
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Lenders8 |
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Commitment Assigned |
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Commitment9 |
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CUSIP Number |
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$
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$
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% |
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$
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$ |
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$
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$
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% |
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Effective Date: , 20___[
TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
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6 |
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List each Assignor, as appropriate. |
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7 |
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List each Assignee, as appropriate. |
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8 |
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Amounts in this column and in the column
immediately to the right to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the
Effective Date. |
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9 |
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Set forth, to at least 9 decimals, as a
percentage of the Commitment of all Lenders thereunder. |
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10 |
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To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date. |
C-2
Form of Assignment and Assumption
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF ASSIGNOR]
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By: |
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Title: |
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ASSIGNEE
[NAME OF ASSIGNEE]
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By: |
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Title: |
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C-3
Form of Assignment and Assumption
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Consented to and Accepted:
BANK OF AMERICA, N.A. as
Swing Line Lender and L/C Issuer
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By: |
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Title: |
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[Consented to and]11 Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
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By: |
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Title: |
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[Consented to:]12
IVZ, INC.
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By: |
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Title: |
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INVESCO HOLDING COMPANY LIMITED
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By: |
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Title: |
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11 |
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To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement. |
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12 |
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To be added only if the consent of the
Borrower is required by the terms of the Credit Agreement. |
C-4
Form of Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
8.06(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents,
if any, as may be required under Section 8.06(b)(iii) of the Credit Agreement), (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by [the][such] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [the][such] Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 5.01(j) thereof, as applicable, and such
other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, (vi) 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 Assignment and Assumption and to purchase
[the][such] Assigned Interest, and (vii) if it is a foreign lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and
without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will
C-5
Form of Assignment and Assumption
perform in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
C-6
Form of Assignment and Assumption
EXHIBIT D-1
FORM OF SUBSIDIARY GUARANTY
See attached.
D-1-1
Form of Subsidiary Guaranty
EXECUTION VERSION
GUARANTY
This GUARANTY dated May 24, 2010 made by INVESCO ADVISERS, INC., a Delaware corporation,
INVESCO NORTH AMERICAN HOLDINGS, INC., a Delaware corporation, and INVESCO MANAGEMENT GROUP INC., a
Delaware corporation (each, individually, a “Guarantor” and collectively, the
“Guarantors”), in favor of the Administrative Agent, the L/C Issuer and each of the Lenders
(as each such term is defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT. The Lenders and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender are parties to a Credit Agreement dated as of the date hereof (said
Agreement, as it may hereafter be amended, restated, supplemented or otherwise modified from time
to time, being the “
Credit Agreement”, the terms defined therein are used herein as therein
defined) with Invesco Holding Company Limited, a company organized under the laws of England and
Wales (“
IHCL”), IVZ, Inc., a Delaware corporation (“
IVZ”, and together with IHCL,
collectively, the “
Borrowers” and each individually, a “
Borrower”) and
Invesco Ltd.
(the “
Parent”). The Guarantors may receive a portion of the proceeds of the Advances under
the Credit Agreement and will derive substantial direct and indirect benefit from the transactions
contemplated by the Credit Agreement. It is a condition precedent to the effectiveness of the
Credit Agreement and the making of Advances by the Lenders thereunder that the Guarantors shall
have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders to make
Advances under the Credit Agreement from time to time, each Guarantor hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor hereby, jointly and
severally, unconditionally and irrevocably guarantees the punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all obligations of each other Loan Party now or
hereafter existing under the Loan Documents, whether for principal, interest, fees, expenses or
otherwise (such obligations, including, without limitation, the obligations of the Borrowers under
Section 2.15 of the Credit Agreement, being the “Guaranteed Obligations”), and
agrees to pay any and all expenses (including reasonable counsel fees and expenses) incurred by the
Administrative Agent, the L/C Issuer or any Lender in enforcing any rights under this Guaranty.
Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by a Loan Party to the
Administrative Agent, the L/C Issuer or any Lender under the Loan Documents but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving such Loan Party.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be joint and several and
unconditional, irrespective of the validity, regularity or enforceability of any Loan Document, the
absence of any action to enforce the same, any waiver or consent by the Administrative Agent, the
L/C Issuer or any Lender with respect to any provisions hereof or thereof, the recovery of any
judgment against either Borrower, any action to enforce the same, or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a Guarantor (other than a
defense of payment in full or complete performance). Each
Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of either Borrower, any right to
require a proceeding first against such Borrower, protest, notice and all demands whatsoever and
covenants that this Guaranty shall not be discharged except by complete performance of the
obligations contained in the Credit Agreement, the Notes and this Guaranty. This Guaranty is a
guarantee of payment and not of collection.
(c) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent, the L/C
Issuer and each Lender, hereby confirms that it is the intention of all such Persons that this
Guaranty and the obligations of each Guarantor hereunder not constitute a fraudulent transfer or
conveyance for purposes of bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to
this Guaranty and the obligations of each Guarantor hereunder. To effectuate the foregoing
intention, the Administrative Agent, the L/C Issuer, the Lenders and each Guarantor hereby
irrevocably agree that the obligations of such Guarantor under this Guaranty at any time shall be
limited to the maximum amount as will result in the obligations of such Guarantor under this
Guaranty not constituting a fraudulent transfer or conveyance.
Section 2. Waiver of Subrogation. Until the Credit Agreement is terminated and all
of the Guaranteed Obligations have been paid in full, each Guarantor hereby irrevocably waives and
agrees not to exercise any claim or other rights which it may now or hereafter acquire against
either Borrower that arise from the existence, payment, performance or enforcement of such
Borrower’s obligations under the Credit Agreement and each Guarantor’s obligations under this
Guaranty, in any such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of the Administrative Agent, the L/C Issuer or the Lenders against either Borrower,
whether or not such claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from either Borrower, directly or
indirectly, in cash or other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to a Guarantor in violation of
the preceding sentence and any of the Guaranteed Obligations shall not have been paid in full, such
amount shall have been deemed to have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Administrative Agent, the L/C Issuer or the Lenders and shall forwith
be paid to the Administrative Agent to be credited and applied to the Guaranteed Obligations in
favor of the Administrative Agent, the L/C Issuer and the Lenders, whether matured or unmatured, in
accordance with the terms of the Loan Documents. Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and
that the waiver set forth in this Section 2 is knowingly made in contemplation of such
benefits.
Section 3. No Set-Off. Each payment to be made by a Guarantor hereunder in respect
of its obligations shall be payable in the currency or currencies in which such obligations are
denominated, and shall be made without set-off, counterclaim, reduction or diminution of any kind
or nature.
Section 4. Obligations Absolute; Obligations Not Affected. The obligations of each
Guarantor hereunder shall be continuing and shall remain in full force and effect until all the
Guaranteed Obligations have been paid and satisfied in full. The obligations of each Guarantor
hereunder shall not be affected, impaired or diminished in any way by any act, omission, matter or
thing whatsoever, occurring before, upon or after any demand for payment hereunder (and whether or
not known or consented to by the Guarantors, the Administrative Agent, the L/C Issuer or any of the
Lenders) which, but for this provision, might constitute a whole or partial defense to a claim
against any Guarantor hereunder or might operate to release or otherwise exonerate any Guarantor
from any of its obligations hereunder or otherwise affect such obligations, whether occasioned by
default of any of the Lenders or otherwise, including, without limitation:
(a) any limitation of status or power, disability, incapacity or other circumstance relating
to either Borrower or any other Person, including any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, winding-up or other proceeding involving or
affecting either Borrower or any other Person;
(b) any irregularity, defect, unenforceability or invalidity in respect of any indebtedness or
other obligation of either Borrower or any other Person under the Loan Documents;
(c) any failure of either Borrower, the Parent or any other Guarantor, whether or not without
fault on its part, to perform or comply with any of the provisions of any Loan Document to which it
is a party, or to give notice thereof to the Guarantors;
(d) the taking or enforcing or exercising or the refusal or neglect to take or enforce or
exercise any right or remedy from or against either Borrower or any other Person or their
respective assets or the release or discharge of any such right or remedy;
(e) the granting of time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and other indulgences to either Borrower or any other Person;
(f) any change in the time, manner or place of payment of, or in any other term of, any of the
Guaranteed Obligations, or any other amendment, variation, supplement, replacement or waiver of, or
any consent to departure from, any of the Loan Documents, including, without limitation, any
increase or decrease in the principal amount of or interest on Advances with respect to any of the
Loan Documents;
(g) any change in the ownership, control, name, objects, businesses, assets, capital structure
or constitution of either Borrower, the Parent, such Guarantor, any other Guarantor or any other
Person;
(h) the occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any governmental authority or court amending,
varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect,
any of the Guaranteed Obligations, the obligations of the Guarantors under this Guaranty or the
obligations of the Parent under the Parent Guaranty; and
(i) any other circumstance that might otherwise constitute a legal or equitable discharge or
defense of either Borrower or the Parent under the Loan Documents to which it is a party or of the
Guarantors in respect of this Guaranty (other than a defense of payment in full or complete
performance).
Section 5. Waiver. Without in any way limiting the provisions of Section 1
hereof, each Guarantor hereby waives notice of acceptance hereof, notice of any liability of such
Guarantor hereunder, notice or proof of reliance by the Administrative Agent, the L/C Issuer or the
Lenders upon the obligations of such Guarantor hereunder, and diligence, presentment, demand for
payment on either Borrower, protest, notice of dishonor or non-payment of any of the Guaranteed
Obligations, or other notice or formalities to either Borrower, the Parent or any Guarantor of any
kind whatsoever.
Section 6. No Obligation To Take Action Against the Borrowers. None of the
Administrative Agent, the L/C Issuer or any of the Lenders shall have any obligation to enforce or
exhaust any rights or remedies or to take any other steps under any security for the Guaranteed
Obligations or against either Borrower or any other Person or any property of either Borrower or
any other Person before the Administrative Agent, the L/C Issuer or the Lenders are entitled to
demand payment and performance by the Guarantors of their liabilities and obligations under this
Guaranty.
Section 7. Dealing with the Borrowers and Others. The Administrative Agent, the L/C
Issuer or the Lenders, without releasing, discharging, limiting or otherwise affecting in whole or
in part the obligations and liabilities of each Guarantor hereunder and without the consent of or
notice to any Guarantor, may:
(a) grant time, renewals, extensions, compromises, concessions, waivers, releases, discharges
and other indulgences to either Borrower or any other Person;
(b) take or abstain from taking security or collateral from either Borrower or from perfecting
security or collateral of either Borrower;
(c) release, discharge, compromise, realize, enforce or otherwise deal with or do any act or
thing in respect of (with or without consideration) any and all collateral, mortgages or other
security given by either Borrower, the Parent, or any third party with respect to the obligations
or matters contemplated by the Loan Documents;
(d) accept compromises or arrangements from either Borrower or the Parent;
(e) apply all monies at any time received from either Borrower or the Parent or from any
security upon such part of the obligations as the Lenders may see fit or change any such
application in whole or in part from time to time as the Lenders may see fit; and
(f) otherwise deal with, or waive or modify their right to deal with, either Borrower and all
other Persons and any security as the Lenders or the Administrative Agent or the L/C Issuer may see
fit.
Section 8. Governing Law, Waiver of Jury Trial.
(a) This Guaranty shall be governed by, and construed in accordance with, the laws of the
State of New York.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Guaranty, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and determined in any such New
York State court or, to the extent permitted by law, in such federal court. Each Guarantor agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Guaranty shall affect any right that any party may otherwise have to bring any action or
proceeding relating to this Guaranty in the courts of any jurisdiction.
(c) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty in any New York
State or federal court. Each Guarantor hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) To the extent that any Guarantor has or hereafter may acquire any immunity from the
jurisdiction of any court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself
or its property, each Guarantor hereby irrevocably waives such immunity in respect of its
obligations under this Guaranty and the other Loan Documents.
(e) Each Guarantor agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Guaranty shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty in the courts of any
jurisdiction.
(f) Each Guarantor hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of the Loan Documents, the transactions contemplated thereby or the actions of the
Administrative Agent, the L/C Issuer or any Lender in the negotiation, administration, performance
or enforcement thereof.
Section 9. Judgment.
(a) Rate of Exchange. If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in another currency into Dollars, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which, in accordance with normal banking procedures, the Administrative Agent
could purchase such other currency with Dollars in New York City, New York, at the close of
business on the Business Day immediately preceding the day on which final judgment is given,
together with any premiums and costs of exchange payable in connection with such purchase.
(b) Indemnity. The obligation of each Guarantor in respect of any sum due from it to
the Administrative Agent, the L/C Issuer or any Lender hereunder shall, notwithstanding any
judgment in a currency other than Dollars, be discharged only to the extent that on the Business
Day next succeeding receipt by the Administrative Agent, the L/C Issuer or such Lender of any sum
adjudged to be so due in such other currency, the Administrative Agent, the L/C Issuer or such
Lender, as the case may be, may, in accordance with normal banking procedures, purchase Dollars
with such other currency. If the Dollars so purchased are less than the sum originally due to the
Administrative Agent, the L/C Issuer or such Lender in Dollars, each Guarantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent,
the L/C Issuer or such Lender against such loss, and if the Dollars so purchased exceed the sum
originally due to any the Administrative Agent, the L/C Issuer or any Lender in Dollars, the
Administrative Agent, the L/C Issuer or such Lender agrees to remit to such Guarantor such excess.
Section 10. Reinstatement. Each Guarantor agrees that this Guaranty shall continue
to be effective or be reinstated, as the case may be, at any time payment received by the
Administrative Agent, the L/C Issuer or any Lender in respect of any Guaranteed Obligations is
rescinded or must be restored for any reason, or is repaid by the Administrative Agent, the L/C
Issuer or any Lender in whole or in part in good faith settlement of any pending or threatened
avoidance claim.
[Signature Page Follows]
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered
by its officer thereunto duly authorized as of the date first above written.
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INVESCO ADVISERS, INC.
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INVESCO NORTH AMERICAN HOLDINGS, INC.
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INVESCO MANAGEMENT GROUP INC.
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EXHIBIT D-2
FORM OF PARENT GUARANTY
See attached.
D-2-1
Form of Parent Guaranty
EXECUTION VERSION
GUARANTY
This
GUARANTY dated May 24, 2010 made by
INVESCO LTD., a company organized under the laws of
Bermuda (the “
Guarantor”), in favor of the Administrative Agent, the L/C Issuer and each of
the Lenders (as each such term is defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT. The Lenders and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender are parties to a Credit Agreement dated as of the date hereof (said
Agreement, as it may hereafter be amended, restated, supplemented or otherwise modified from time
to time, being the “Credit Agreement”, the terms defined therein are used herein as therein
defined) with Guarantor, Invesco Holding Company Limited, a company organized under the laws of
England and Wales (“IHCL”) and IVZ, Inc., a Delaware corporation (together with IHCL,
collectively, the “Borrowers” and each individually, a “Borrower”). The Guarantor
may receive a portion of the proceeds of the Advances under the Credit Agreement and will derive
substantial direct and indirect benefit from the transactions contemplated by the Credit Agreement.
It is a condition precedent to the effectiveness of the Credit Agreement and the making of
Advances by the Lenders thereunder that the Guarantor shall have executed and delivered this
Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders to make
Advances under the Credit Agreement from time to time, the Guarantor hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) The Guarantor hereby
unconditionally and irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of each other Loan Party now or
hereafter existing under the Loan Documents, whether for principal, interest, fees, expenses or
otherwise (such obligations, including, without limitation, the obligations of the Borrowers under
Section 2.15 of the Credit Agreement, being the “Guaranteed Obligations”), and
agrees to pay any and all expenses (including reasonable counsel fees and expenses) incurred by the
Administrative Agent, the L/C Issuer or any Lender in enforcing any rights under this Guaranty.
Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by a Loan Party to the
Administrative Agent, the L/C Issuer or any Lender under the Loan Documents but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving such Loan Party.
(b) The Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of any Loan Document, the absence of any
action to enforce the same, any waiver or consent by the Administrative Agent, the L/C Issuer or
any Lender with respect to any provisions hereof or thereof, the recovery of any judgment against
either Borrower, any action to enforce the same, or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the Guarantor (other than a defense of
payment in full or complete performance). The Guarantor hereby waives the benefit of diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of either Borrower, any right to require a proceeding first
against such Borrower, protest, notice and all demands whatsoever and covenants that this
Guaranty shall not be discharged except by complete performance of the obligations contained in the
Credit Agreement, the Notes and this Guaranty. This Guaranty is a guarantee of payment and not of
collection.
(c) The Guarantor, and by its acceptance of this Guaranty, the Administrative Agent, the L/C
Issuer and each Lender, hereby confirms that it is the intention of all such Persons that this
Guaranty and the obligations of the Guarantor hereunder not constitute a fraudulent transfer or
conveyance for purposes of bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to
this Guaranty and the obligations of the Guarantor hereunder. To effectuate the foregoing
intention, the Administrative Agent, the L/C Issuer, the Lenders and the Guarantor hereby
irrevocably agree that the obligations of such Guarantor under this Guaranty at any time shall be
limited to the maximum amount as will result in the obligations of such Guarantor under this
Guaranty not constituting a fraudulent transfer or conveyance.
Section 2. Waiver of Subrogation. Until the Credit Agreement is terminated and all
of the Guaranteed Obligations have been paid in full, the Guarantor hereby irrevocably waives and
agrees not to exercise any claim or other rights which it may now or hereafter acquire against
either Borrower that arise from the existence, payment, performance or enforcement of such
Borrower’s obligations under the Credit Agreement and the Guarantor’s obligations under this
Guaranty, in any such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of the Administrative Agent, the L/C Issuer or the Lenders against either Borrower,
whether or not such claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from either Borrower, directly or
indirectly, in cash or other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to the Guarantor in violation
of the preceding sentence and any of the Guaranteed Obligations shall not have been paid in full,
such amount shall have been deemed to have been paid to the Guarantor for the benefit of, and held
in trust for the benefit of, the Administrative Agent, the L/C Issuer or the Lenders and shall
forwith be paid to the Administrative Agent to be credited and applied to the Guaranteed
Obligations in favor of the Administrative Agent, the L/C Issuer and the Lenders, whether matured
or unmatured, in accordance with the terms of the Loan Documents. The Guarantor acknowledges that
it will receive direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waiver set forth in this Section 2 is knowingly made in
contemplation of such benefits.
Section 3. No Set-Off. Each payment to be made by the Guarantor hereunder in respect
of its obligations shall be payable in the currency or currencies in which such obligations are
denominated, and shall be made without set-off, counterclaim, reduction or diminution of any kind
or nature.
Section 4. Obligations Absolute; Obligations Not Affected. The obligations of the
Guarantor hereunder shall be continuing and shall remain in full force and effect until all the
Guaranteed Obligations have been paid and satisfied in full. The obligations of the Guarantor
hereunder shall not be affected, impaired or diminished in any way by any act, omission, matter
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or thing whatsoever, occurring before, upon or after any demand for payment hereunder (and
whether or not known or consented to by the Guarantor, the Administrative Agent, the L/C Issuer or
any of the Lenders) which, but for this provision, might constitute a whole or partial defense to a
claim against the Guarantor hereunder or might operate to release or otherwise exonerate the
Guarantor from any of its obligations hereunder or otherwise affect such obligations, whether
occasioned by default of any of the Lenders or otherwise, including, without limitation:
(a) any limitation of status or power, disability, incapacity or other circumstance relating
to either Borrower or any other Person, including any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, winding-up or other proceeding involving or
affecting either Borrower or any other Person;
(b) any irregularity, defect, unenforceability or invalidity in respect of any indebtedness or
other obligation of either Borrower or any other Person under the Loan Documents;
(c) any failure of either Borrower or any Subsidiary Guarantor, whether or not without fault
on its part, to perform or comply with any of the provisions of any Loan Document to which it is a
party, or to give notice thereof to the Guarantor;
(d) the taking or enforcing or exercising or the refusal or neglect to take or enforce or
exercise any right or remedy from or against either Borrower or any other Person or their
respective assets or the release or discharge of any such right or remedy;
(e) the granting of time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and other indulgences to either Borrower or any other Person;
(f) any change in the time, manner or place of payment of, or in any other term of, any of the
Guaranteed Obligations, or any other amendment, variation, supplement, replacement or waiver of, or
any consent to departure from, any of the Loan Documents, including, without limitation, any
increase or decrease in the principal amount of or interest on Advances with respect to any of the
Loan Documents;
(g) any change in the ownership, control, name, objects, businesses, assets, capital structure
or constitution of either Borrower, any Subsidiary Guarantor, the Guarantor or any other Person;
(h) the occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any governmental authority or court amending,
varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect,
any of the Guaranteed Obligations, the obligations of the Guarantor under this Guaranty or the
obligations of any Subsidiary Guarantor under the Subsidiary Guaranty; and
(i) any other circumstance that might otherwise constitute a legal or equitable discharge or
defense of either Borrower or any Subsidiary Guarantor under the Loan Documents
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to which it is a party or of the Guarantor in respect of this Guaranty (other than a defense
of payment in full or complete performance).
Section 5. Waiver. Without in any way limiting the provisions of Section 1
hereof, the Guarantor hereby waives notice of acceptance hereof, notice of any liability of the
Guarantor hereunder, notice or proof of reliance by the Administrative Agent, the L/C Issuer or the
Lenders upon the obligations of the Guarantor hereunder, and diligence, presentment, demand for
payment on either Borrower, protest, notice of dishonor or non-payment of any of the Guaranteed
Obligations, or other notice or formalities to either Borrower, any Subsidiary Guarantor or the
Guarantor of any kind whatsoever.
Section 6. No Obligation To Take Action Against the Borrowers. None of the
Administrative Agent, the L/C Issuer or any of the Lenders shall have any obligation to enforce or
exhaust any rights or remedies or to take any other steps under any security for the Guaranteed
Obligations or against either Borrower or any other Person or any property of either Borrower or
any other Person before the Administrative Agent, the L/C Issuer or the Lenders are entitled to
demand payment and performance by the Guarantor of its liabilities and obligations under this
Guaranty.
Section 7. Dealing with the Borrowers and Others. The Administrative Agent, the L/C
Issuer or the Lenders, without releasing, discharging, limiting or otherwise affecting in whole or
in part the obligations and liabilities of the Guarantor hereunder and without the consent of or
notice to the Guarantor, may:
(a) grant time, renewals, extensions, compromises, concessions, waivers, releases, discharges
and other indulgences to either Borrower or any other Person;
(b) take or abstain from taking security or collateral from either Borrower or from perfecting
security or collateral of either Borrower;
(c) release, discharge, compromise, realize, enforce or otherwise deal with or do any act or
thing in respect of (with or without consideration) any and all collateral, mortgages or other
security given by either Borrower, any Subsidiary Guarantor or any third party with respect to the
obligations or matters contemplated by the Loan Documents;
(d) accept compromises or arrangements from either Borrower or any Subsidiary Guarantor;
(e) apply all monies at any time received from either Borrower, any Subsidiary Guarantor or
from any security upon such part of the obligations as the Lenders may see fit or change any such
application in whole or in part from time to time as the Lenders may see fit; and
(f) otherwise deal with, or waive or modify their right to deal with, either Borrower and all
other Persons and any security as the Lenders, the Administrative Agent or the L/C Issuer may see
fit.
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Section 8. Governing Law, Waiver of Jury Trial.
(c) This Guaranty shall be governed by, and construed in accordance with, the laws of the
State of New York.
(d) The Guarantor hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in any such New York
State court or, to the extent permitted by law, in such federal court. The Guarantor hereby agrees
that service of process in any such action or proceeding brought in any such New York State court
or in such federal court may be made upon such Guarantor c/o IVZ, Inc. at its offices at 0000
Xxxxxxxxx Xxxxxx X.X., Xxxxxxx, Xxxxxxx 00000, Attention: General Counsel (the “Process
Agent”), and hereby further agrees that the failure of the Process Agent to give any notice of
any such service to such Guarantor shall not impair or affect the validity of such service or of
any judgment rendered in any action or proceeding based thereon. The Guarantor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Guaranty shall affect any right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty in the courts of any jurisdiction.
(e) The Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty in any New York
State or federal court. The Guarantor hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(f) To the extent that the Guarantor has or hereafter may acquire any immunity from the
jurisdiction of any court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself
or its property, the Guarantor hereby irrevocably waives such immunity in respect of its
obligations under this Guaranty and the other Loan Documents.
(g) The Guarantor agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Guaranty shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty in the courts of any
jurisdiction.
(h) The Guarantor hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of the Loan Documents, the transactions contemplated thereby or the actions of
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the Administrative Agent, the L/C Issuer or any Lender in the negotiation, administration,
performance or enforcement thereof.
Section 9. Judgment.
(i) Rate of Exchange. If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in another currency into Dollars, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which, in accordance with normal banking procedures, the Administrative Agent could
purchase such other currency with Dollars in New York City, New York, at the close of business on
the Business Day immediately preceding the day on which final judgment is given, together with any
premiums and costs of exchange payable in connection with such purchase.
(j) Indemnity. The obligation of the Guarantor in respect of any sum due from it to
the Administrative Agent, the L/C Issuer or any Lender hereunder shall, notwithstanding any
judgment in a currency other than Dollars, be discharged only to the extent that on the Business
Day next succeeding receipt by the Administrative Agent, the L/C Issuer or such Lender of any sum
adjudged to be so due in such other currency, the Administrative Agent, the L/C Issuer or such
Lender, as the case may be, may, in accordance with normal banking procedures, purchase Dollars
with such other currency. If the Dollars so purchased are less than the sum originally due to the
Administrative Agent, the L/C Issuer or such Lender in Dollars, the Guarantor agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Administrative Agent, the L/C
Issuer or such Lender against such loss, and if the Dollars so purchased exceed the sum originally
due to any of the Administrative Agent, the L/C Issuer or any Lender in Dollars, the Administrative
Agent, the L/C Issuer or such Lender agrees to remit to the Guarantor such excess.
Section 10. Reinstatement. The Guarantor agrees that this Guaranty shall continue to
be effective or be reinstated, as the case may be, at any time payment received by the
Administrative Agent, the L/C Issuer or any Lender in respect of any Guaranteed Obligations is
rescinded or must be restored for any reason, or is repaid by the Administrative Agent, the L/C
Issuer or any Lender in whole or in part in good faith settlement of any pending or threatened
avoidance claim.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered
by its officer thereunto duly authorized as of the date first above written.
EXHIBIT E
FORM OF OPINION OF U.S. COUNSEL
FOR THE BORROWERS AND CERTAIN OTHER LOAN PARTIES
See attached.
E-1
Form
of Opinion of U.S. Counsel
for the Borrower and Certain Other Loan Parties
Alston&Bird llp
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
000-000-0000
Fax: 000-000-0000
xxx.xxxxxx.xxx
May 24, 2010
To each of the Lenders party
to the Credit Agreement dated
as of June 9, 2009
among IVZ, Inc., Invesco Holding
Company Limited, Invesco Ltd.,
said Lenders and Bank of America, N.A.,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to IVZ, Inc., a Delaware corporation (“IVZ”), Invesco Holding
Company Limited, a company organized under the laws of England and Wales (“IHCL”; together with
IVZ, each individually a “Borrower” and collectively, the “Borrowers”) and Invesco Ltd., a company
incorporated in the Islands of Bermuda (the “Parent”), in connection with that certain Credit
Agreement dated as of the date hereof (the “Credit Agreement”) among the Borrower, the Parent, the
Lenders party thereto (the “Lenders”) and Bank of America, N.A., as Administrative Agent (the
“Agent”) for the Lenders and as Swingline Lender and L/C Issuer. We have also acted as special
counsel to the Parent in connection with that certain Guaranty dated as of the date hereof (the
“Parent Guaranty”) in favor of the Agent and the Lenders and to Invesco Advisers, Inc., a Delaware
corporation (“Invesco Advisers”), Invesco Management Group Inc., a Delaware corporation (“Invesco
Management”) and Invesco North American Holdings, Inc., a Delaware corporation (“INAH”; together
with Invesco Advisers and Invesco Management, the “Subsidiary Guarantors”) in connection with that
certain Guaranty dated as of the date hereof (the “Subsidiary Guaranty”) in favor of the Agent and
the Lenders. This opinion is being delivered pursuant to Section 3.01(c)(vi) of the Credit
Agreement. Capitalized terms used herein but not otherwise defined herein shall have the
respective meanings accorded such terms in the Credit Agreement.
In rendering this opinion, we have reviewed the following documents, instruments and
agreements (the following instruments and documents listed in items
(a) – (d) below are
collectively referred to herein as the “Transaction Documents”):
Atlanta • Charlotte • Dallas • Los Angeles • New York • Research Triangle • Silicon Valley • Ventura County • Washington, D.C.
May 24, 2010
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(a) the Credit Agreement; |
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(b) the Notes; |
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(c) the Parent Guaranty; and |
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(d) the Subsidiary Guaranty. |
In addition to the foregoing, we have reviewed (i) the certificates of incorporation certified
by the Secretary of State of the State of Delaware of IVZ and each Subsidiary Guarantor, (ii) the
by-laws of IVZ and each Subsidiary Guarantor, (iii) the resolutions of the board of directors of
IVZ and each Subsidiary Guarantor with respect to the transactions contemplated by the Transaction
Documents (items (i) through (iii) collectively, the “Organizational Documents”), (iv) certificates
of public officials concerning the legal existence and good standing of IVZ and each Subsidiary
Guarantor, (v) certificates of corporate officers and (vi) originals or copies, certified or
otherwise identified to our satisfaction, of documents, corporate records, and other instruments,
and made such further legal and factual examinations, as we have deemed necessary for the purposes
of expressing the opinions set forth herein.
In making the examinations described above and in rendering the opinions expressed below, we
have assumed: (a) the genuineness of all signatures, (b) the legal capacity of natural persons, (c)
the authenticity of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic copies and the authenticity
of the originals of such documents, (d) the due authorization, execution and delivery of the
Transaction Documents by all parties thereto (other than IVZ and the Subsidiary Guarantors with
respect to any Transaction Documents to which they are a party), (e) that such Transaction
Documents are legal, valid and binding obligations of the parties thereto enforceable against all
such parties thereto (other than the Borrowers, the Parent and the Subsidiary Guarantors), (f) all
parties to the Transaction Documents (other than IVZ and the Subsidiary Guarantors) have the full
power, authority and legal right to perform their respective obligations under such Transaction
Documents, (g) that all of the representations and warranties made by the Borrowers, the Parent and
the Subsidiary Guarantors in the Transaction Documents are true and correct as to the factual
matters therein, (h) the Lenders and the Agent have acted in good faith and without notice of any
defense against enforcement of rights created by the transactions (the “Transactions”) contemplated
by the Credit Agreement and the other Transaction Documents, (i) each party to the Credit Agreement
and the other Transaction Documents has complied with all laws applicable to it that affect the
Transactions, (j) the Transactions comply with any test required by any applicable law of good
faith or fairness, (k) each applicable law or regulation for which we are deemed to be responsible
is published, accessible and generally available to lawyers practicing in the State of New York,
(l) there is no understanding or agreement not embodied in the Transaction Documents among parties
to the Transactions that would modify any term of a Transaction Document or any right or obligation
of a party thereto, and (m) with
May 24, 2010
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respect to the Transactions and the Transaction Documents, there has been no mutual mistake of fact
and there exists no fraud or duress.
We have relied, with your permission, upon the representations and warranties contained in the
Credit Agreement and the other Transaction Documents to the extent the same relate to matters of
fact relevant to the opinions expressed herein and upon certificates of public officials and
certain officers of each of the Borrowers, the Parent and the Subsidiary Guarantors with respect to
the factual matters contained therein.
In addition we have assumed, with your permission, the following matters (as to which we
understand you are relying solely upon the opinions of Linklaters, U.K. counsel to IHCL and
XXXXXXX, Bermuda counsel to the Parent):
(a) IHCL is a limited company formed and existing under the laws of England.
(b) The Parent is an exempted company incorporated with limited liability and existing under
the laws of Bermuda.
(c) ICHL has the power to execute, deliver and perform the Transaction Documents to which it
is a party, and the Parent has all requisite corporate power to enter into, execute, deliver
and perform its obligations under the Transaction Documents to which it is a party.
(d) The execution, delivery and performance by each of IHCL and the Parent of the
Transaction Documents to which it is a party have been duly authorized by all requisite
corporate action of each of IHCL and the Parent.
(e) Each of IHCL and the Parent has duly executed and delivered each Transaction Document to
which it is a party.
Based upon the foregoing and subject to the assumptions, exceptions and qualifications set
forth herein and Annex I hereto, we are of the opinion that:
1. IVZ is (a) a validly existing corporation and in good standing under the laws of the State
of Delaware and (b) has the corporate power and authority to execute and deliver, and to perform
its obligations under, the Credit Agreement and the Notes.
2. Each Subsidiary Guarantor is (a) a validly existing corporation and in good standing under
the laws of the State of Delaware and (b) has the corporate power and authority to execute and
deliver, and to perform its obligations under, the Subsidiary Guaranty.
May 24, 2010
Page 4
3. The execution, delivery and performance by IVZ and each Subsidiary Guarantor of each
Transaction Document to which IVZ or such Subsidiary Guarantor is a party have been duly authorized
by all necessary corporate action of IVZ and each Subsidiary Guarantor. Each of IVZ and each
Subsidiary Guarantor has duly executed and delivered each Transaction Document to which it is a
party.
4. The Credit Agreement constitutes, and after giving effect to the initial Borrowing, each
Note will constitute, a valid and legally binding obligation of the Borrowers, enforceable in
accordance with its terms, except to the extent that the enforcement thereof may be limited by the
limitations set forth on Annex I hereto.
5. Each of the Credit Agreement and the Parent Guaranty constitutes a valid and legally
binding obligation of the Parent, enforceable in accordance with its terms, except to the extent
that enforcement thereof may be limited by the limitations set forth in Annex I hereto.
6. The Subsidiary Guaranty constitutes a valid and legally binding obligation of each of the
Subsidiary Guarantors, except to the extent that enforcement thereof may be limited by the
limitations set forth in Annex I hereto.
7. No approval, authorization or other action by, and no notice to or filing with, any
governmental authority or regulatory body (each an “Approval”) is required under the laws of the
States of New York or Delaware or the United States of America for the valid execution, delivery
and performance by (a) the Borrowers or the Parent of the Credit Agreement, (b) the Borrowers of
the Notes, (c) the Parent of the Parent Guaranty, or (d) any Subsidiary Guarantor of the Subsidiary
Guaranty, except such Approvals, if any, as have been obtained, given or made.
8. The execution and delivery by each of IVZ and each Subsidiary Guarantor of the Transaction
Documents to which it is a party do not and if each of IVZ and each Subsidiary Guarantor were to
perform its obligations under the such Transaction Documents such performance would not (a) violate
the Organizational Documents of IVZ or any Subsidiary Guarantor; or (b) violate any existing
constitutional provision, statute, or regulation of the States of New York or Delaware or the
United States of America.
9. The execution and delivery by the Parent and the performance of its obligations under the
Credit Agreement and the Parent Guaranty will not constitute a violation of any existing
constitutional provision, statute, or regulation of the State of New York or the United States of
America.
10. The execution and delivery by IHCL and the performance of its obligations under the Credit
Agreement will not constitute a violation of any existing constitutional provision, statute, or
regulation of the State of New York or the United States of America.
May 24, 2010
Page 5
With respect to the opinions expressed in paragraphs 1 and 2 above regarding valid existence
and good standing of IVZ and the Subsidiary Guarantors in the State of Delaware, such opinions are
based solely upon certificates provided by the Secretary of State of the State of Delaware, copies
of which have been delivered to you in connection with the closing of the transactions contemplated
by the Transaction Documents, and such opinions are limited to the meanings ascribed to such
certifications by the Secretary of State of the State of Delaware. We have assumed that all
certifications were properly given and remain accurate as of the date hereof.
We are members of the Bar of the State of New York, and we express no opinion as to the laws
(including either of the Borrowers’, the Parent’s, or any of the Subsidiary Guarantors’ compliance
or noncompliance with the laws) of any jurisdictions other than the federal laws of the United
States, the laws of the State of New York and the General Corporation Law of the State of Delaware
as currently in effect in the State of Delaware (without regard to judicial interpretation thereof
or rules or regulations promulgated thereunder). We note, however, that we are not admitted to
practice law in the State of Delaware.
This opinion is limited to the matters stated herein, and no opinion may be implied or
inferred beyond those opinions expressly stated. Opinions rendered herein are as of the date
hereof, and we make no undertaking and expressly disclaim any duty to supplement such opinions if,
after the date hereof, facts and circumstances come to our attention or changes in the law occur
which could affect such opinions. We express no opinion or advice as to any law (a) that might be
violated by any misrepresentation, omission or fraudulent act, (b) to which the Borrowers, the
Parent or the Subsidiary Guarantors may be subject as a result of your legal or regulatory status,
your sale or transfer of any Loans or other Obligations or interests therein or your involvement in
the transactions contemplated by the Transaction Documents, or (c) identified in clause (s) of
Annex I.
This opinion is rendered solely for your benefit and for the benefit of any Lender that may
hereafter become a Lender under the Credit Agreement. This opinion may not be used or relied upon
by any other person or entity, and may not be disclosed, quoted, filed with a governmental agency
or otherwise referred to without our prior written consent except to your bank examiners and any
other governmental authority or self-regulatory body to which you report or to which you are
subject to review, or as required by law or regulation or pursuant to legal process.
May 24, 2010
Page 6
This opinion may be disclosed to, but may not be relied upon by, your accountants, lawyers and
other advisors so long as such accountants and other advisors agree not to disclose, quote or file
this opinion without our prior written consent.
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Very truly yours,
Xxxxxx & Bird LLP
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By: |
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Partner |
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ANNEX I
Enforceability Limitations
(a) The effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights and remedies of creditors. This limitation includes the effect of the United
States Bankruptcy Code (the “Bankruptcy Code”) in its entirety, including, without limitation,
matters of contract rejection, fraudulent conveyance and obligation, turn-over, preference,
equitable subordination, automatic stay, discharge, conversion of a non-recourse obligation into a
recourse obligation, and substantive consolidation. It also includes state laws regarding
fraudulent transfers, obligations, and conveyances, and state receivership laws.
(b) The effect of general principles of equity, whether applied by a court of law or equity.
This limitation includes the following concepts: (i) principles governing the availability of
specific performance, injunctive relief or other traditional equitable remedies; (ii) principles
affording traditional equitable defenses (e.g., waiver, laches and estoppel); (iii) good faith and
fair dealing; (iv) reasonableness; (v) materiality of the breach; (vi) impracticability or
impossibility of performance; (vii) the effect of obstruction or failure to perform or otherwise
act in accordance with an agreement by any person; (viii) unconscionability and (ix) the possible
unenforceability under certain circumstance of provisions providing for indemnification or
contribution that are contrary to public policy.
(c) The possible unenforceability of provisions purporting to waive certain rights of
guarantors.
(d) The possible unenforceability of provisions requiring indemnification for, or providing
exculpation, release, or exemption from liability for, action or inaction, to the extent such
action or inaction involves negligence or willful misconduct.
(e) The possible unenforceability of provisions purporting to require arbitration of disputes.
(f) The possible unenforceability of provisions imposing increased interest rates or late
payment charges upon delinquency in payment or default or providing for liquidated damages or for
premiums on prepayment, acceleration, redemption, cancellation, or termination, to the extent any
such provisions are deemed to be penalties or forfeitures.
(g) The possible unenforceability of waivers or advance consents that have the effect of (i)
waiving statutes of limitation, marshaling of assets or similar requirements, (ii) consenting to or
waiving objections to the jurisdiction of courts or the venue of actions, (iii) waiving the right
to jury trial or, in certain cases, notices.
(h) The possible unenforceability of provisions that waivers or consents by a party may not be
given effect unless in writing or in compliance with particular requirements or that a person’s
course of dealing, course of performance, or the like or failure or delay in taking action
May 24, 2010
Page 2
may not constitute a waiver of related rights or provisions or that one or more waivers may
not under certain circumstances constitute a waiver of other matters of the same kind.
(i) The effect of course of dealing, course of performance, or the like, that would modify the
terms of an agreement or the respective rights or obligations of the parties under an agreement.
(j) The possible unenforceability of provisions that enumerated remedies are not exclusive or
that a party has the right to pursue multiple remedies without regard to other remedies elected or
that all remedies are cumulative.
(k) The possible unenforceability of provisions that determinations by a party or a party’s
designee are conclusive or deemed conclusive.
(l) The possible unenforceability of provisions permitting modifications or amendments of an
agreement only in writing.
(m) The possible unenforceability of provisions that the provisions of an agreement are
severable.
(n) The effect of laws requiring mitigation of damages.
(o) The possible unenforceability of provisions permitting the exercise, under certain
circumstances, of rights without notice or without providing opportunity to cure failures to
perform.
(p) The effect of agreements or provisions in the Transaction Documents as to rights of set
off otherwise than in accordance with the applicable law.
(q) The effect of laws that govern and afford judicial discretion regarding the determination
of damages and entitlement to attorneys’ fees and other costs.
(r) The possible unenforceability of Section 6.01(h)(ii) of the Credit Agreement.
(s) The following matters, including their effects and the effects of noncompliance, are not
covered by implication or otherwise in any opinion expressed herein: (a) any statutes,
administrative decisions, ordinances, rules or regulations of any county, municipality or other
political subdivision of any state, (b) antitrust and unfair competition law, (c) securities law,
(d) fiduciary obligations, (e) pension and employee benefit law (e.g., ERISA), (f) fraudulent
May 24, 2010
Page 3
transfer
law, (g) environmental law, (h) land use and subdivision law, (i) Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, (j) Exon-Xxxxxx Amendment under the Omnibus Trade and
Competitiveness Act of 1988, (k) bulk transfer law, (l) tax law, (m) patent, copyright, trademark
and other intellectual property law, (n) racketeering law (e.g., RICO), (o) criminal statutes of
general application (e.g., mail fraud and wire fraud), (p) occupational health and safety law
(e.g., OSHA), (q) labor law, (r) law concerning national or local emergency, possible deference to
acts of sovereign states, and criminal and civil forfeiture laws, (s) law relating to permissible
rates, computations, or disclosure of interest (e.g., usury), (t) any laws, regulations, directives
and executive orders that prohibit or limit the enforceability of obligations based on attributes
of the party seeking enforcement (e.g., the Trading with the Enemy Act and the International
Emergency Economic Powers Act), (u) the Anti-Terrorism Order, as amended, all rules and regulations
promulgated thereunder and all Federal, state and local laws, statutes, ordinances, orders,
governmental rules, regulations, licensing requirements and policies relating to the Anti-Terrorism
Order (including without limitation the Executive order of September 23, 2001 Blocking Property and
Prohibiting Transactions with Persons Who Commit and Threaten to Commit or Support Terrorism) and
the ownership and operation of, or otherwise regulation of, companies that conduct, operate or
otherwise pursue the business or businesses now and in the future conducted, operated or otherwise
pursued by any of the Borrower, the Parent or the Subsidiary Guarantors including, without
limitation, the importation, transportation, manufacturing, dealing, purchase, use or storage of
explosive materials, and (v) the USA Patriot Act of 2001 and the rules, regulations and policies
promulgated thereunder and any foreign assets control regulations of the United States Treasury
Department or any enabling legislation or orders relating thereto.
EXHIBIT F
FORM OF OPINION OF ENGLISH COUNSEL FOR IHCL
See attached.
F-1
Form of Opinion of U.K. Counsel for IHCL
Xxxxxxxxxx XXX
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone (x00) 00 0000 0000
Facsimile (x00) 00 0000 0000
DX Box Number 10 CDE
To the Administrative Agent and
the Lenders from time to time party to
the Agreement
(as defined below)
c/o Bank of America, N.A.
24 May 2010
Dear Sirs
1 |
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Introduction |
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We have acted as English legal advisers to Invesco Holding Company Limited in its capacity
as a Borrower (the “Company”) in connection with a U.S.$1,250,000.000 3-year credit
agreement dated as of 24 May 2010 between, amongst others, the Company, IVZ, Inc., a
Delaware corporation (“IVZ”), Invesco Ltd., a company organised under the laws of Bermuda,
the Lenders named in it and Bank of America, N.A., as Administrative Agent, Swing
Line Lender and L/C Issuer (the “Agreement”) and the promissory notes to be
issued to each of the Lenders named in the Agreement pursuant to the Agreement (the
“Notes”). |
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2 |
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English Law |
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This opinion is limited to English law as applied by the English courts and published and in
effect on the date of this opinion. It is given on the basis that all matters relating to it
will be governed by, and that it (including all terms used in it) will be construed in
accordance with, English law. |
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3 |
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Scope of Inquiry |
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For the purpose of this opinion, we have examined the following documents |
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3.1 |
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A PDF copy of the executed Agreement. |
This communication is confidential and may be privileged or otherwise protected by work
product immunity.
Linklaters LLP is a limited liability partnership registered in England and Wales with
registered number 0C326345_ It is a law firm regulated by the Solicitors Regulation
Authority. The term partner in relation to Linklaters LLP is used to refer to a member of
Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms
or entities with equivalent standing and qualifications. A list of the names of the members
of Linklaters LLP together with a list of those non-members who are designated as partners
and their professional qualifications is open to inspection at its registered office, Xxx
Xxxx Xxxxxx, Xxxxxx XX0X 0XX or on xxx.xxxxxxxxxx.xxx and such persons are either
solicitors, registered foreign lawyers or European lawyers.
Please refer to xxx.xxxxxxxxxx.xxx/xxxxxxxxxx for important information on our regulatory
position.
Al2046359
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3.2 |
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A template form of Note. |
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3.3 |
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A copy of the Certificate of Incorporation and the Certificates of Incorporation on Change of
Name of the Company. |
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3.4 |
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A copy of the Memorandum and Articles of Association of the Company. |
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3.5 |
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A copy of a written resolution of the Directors of the Company dated 21 May 2010. |
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3.6 |
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A copy of an unanimous written resolution of the shareholders of the Company dated 21
May 2010. |
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3.7 |
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A certificate from the Company dated 24 May 2010 in relation to the documents referred to
above. |
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3.8 |
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The results of an on-line search in respect of the Company on the Companies House Direct
Service made on 24 May 2010 at 11.20 AM (the “Search”). |
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3.9 |
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The results of a telephone search in respect of the Company at the Central Register of
Winding Up Petitions made on 24 May 2010 at 11:23 AM (the “Telephone Search”). |
4 |
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Assumptions |
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For the purpose of this opinion, we have made the following assumptions: |
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4.1 |
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All copy documents conform to the originals and all originals are genuine and complete. |
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4.2 |
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Each signature is the genuine signature of the individual concerned. |
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4.3 |
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The documents referred to in paragraphs 3.3 and 3.4 are up-to-date. |
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4.4 |
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The written resolutions referred to in paragraphs 3.5 and 3.6 were validly passed and
remain in full force and effect without modification. |
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4.5 |
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The Agreement and the Notes are within the capacity and powers of, and have been validly
authorised and signed by, each party other than the Company. |
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4.6 |
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The Agreement and the Notes have been signed on behalf of the Company by a person
authorised by the written resolution referred to in paragraph 3,5. |
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4.7 |
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The Agreement and the Notes are valid, binding and enforceable on each party under New
York law by which they are expressed to be governed. |
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4.8 |
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The Agreement and the Notes have the same meaning and effect under New York law as
they would have if they were interpreted under English law by an English court and
there are no provisions of New York law which would affect this opinion. |
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4.9 |
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There are no dealings between the parties that affect the Agreement or the Notes. |
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4.10 |
|
So far as this opinion relates to the joint and several liability and guarantee
of the Company for all borrowings of IVZ under the Agreement, it is given on the
assumption that such joint and several liability and guarantee of the Company have been
given in good faith and for the purpose of carrying on its business and that, when they
were given, there were reasonable grounds for believing that undertaking such joint and
several liability and guarantee would benefit the Company. |
Page 3 of 5
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4.11 |
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None of the proceeds of the facilities provided pursuant to the Agreement
will be used
directly or indirectly to finance or refinance an acquisition of shares in
contravention of Sections 678 or 679 of the Companies Xxx 0000 (as amended). |
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4.12 |
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All applicable provisions of the Financial Services and Markets Xxx 0000 and
any applicable secondary legislation made under it have been complied with with respect
to the Agreement and the Notes. |
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4,13 |
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The Notes are not and will not be offered or sold in the UK, except to any
person whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their businesses
and no public offer of the Notes will be made in the UK, except to any legal entity
which is authorised or regulated to operate in the financial markets or, if not so
authorised or regulated, whose corporate purpose is solely to invest in securities. |
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4.14 |
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With respect to the Notes, this opinion speaks as if the Notes have been
entered into on the date of the Agreement in all material respects in the same form as
the template referred to in paragraph 3.2. |
5 |
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Opinion |
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Based on the documents referred to and assumptions in paragraphs 3 and 4 and
subject to the qualifications in paragraph 6 and to any matters not disclosed to us, we are
of the following opinion: |
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5.1 |
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The Company has been incorporated and is existing as a company with limited liability
under the laws of England. |
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5.2 |
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The Company has the corporate power to enter into and perform the Agreement and the
Notes. |
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5.3 |
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The Company has taken all necessary corporate action to authorise its entry into and
performance of the Agreement and the Notes. |
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5.4 |
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Under English law, there are no governmental or regulatory consents, approvals or
authorisations required by the Company for its entry into and performance of the
Agreement or the Notes. |
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5.5 |
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Under English law, there are no registration, filing or similar formalities
required to ensure
the legality, validity, binding effect and enforceability against the Company of the
Agreement or the Notes. |
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5.6 |
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The entry into and performance of the Agreement and the Notes by the Company does not
violate English law or the Memorandum or Articles of Association of the Company. |
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5.7 |
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Save for in the circumstances set out in paragraphs 6.11 and 6.12, if proceedings were
brought before the English courts and the choice of New York law as the governing law
of the Agreement is pleaded and proved as a fact in accordance with English procedural
and evidential rules, the choice of New York law as the governing law of the Agreement
would be recognised in England. |
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5.8 |
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A final and conclusive judgment against the Company for the payment of a
specific sum of
money rendered by a United States Federal or New York State court sitting in New York City |
Page 4 of 5
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arising out of or in connection with the Agreement or the Notes will be recognised by
and enforceable in the English courts as creating a debt enforceable against the
Company if: |
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(i) |
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the foreign court had jurisdiction over the Company in accordance
with English law (and, in our opinion, for these purposes, the English courts
will recognise a contractual submission to the jurisdiction of a United States
Federal or New York State court sitting in New York City); |
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(ii) |
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the foreign judgment was not contrary to English public policy, for
multiple damages or based on a provision of law specified under the Protection of
Trading Xxxxxxxxx Xxx 0000 nor obtained by fraud or in breach of the rules of
natural justice; |
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(iii) |
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the foreign judgment was not inconsistent with an earlier judgment
relating to the same issue of a court having jurisdiction over the matter; |
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v) |
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the foreign judgment does not require the Company to perform an act which would be illegal in the country of performance; and |
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(v) |
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the foreign proceedings were not of a revenue or penal nature. |
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5.9 |
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No stamp duty or registration or similar tax is payable under English law in connection with
the parties entering into the Agreement or the Notes. |
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This opinion is subject to the following qualifications: |
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6.1 |
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This opinion is subject to any limitations arising from bankruptcy, insolvency, liquidation,
moratorium, reorganisation and other laws of general application relating to or
affecting the rights of creditors. |
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6.2 |
|
The enforcement in England of the Agreement, the Notes and of foreign judgments will be
subject to English rules of civil procedure. |
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6.3 |
|
In England, remedies such as specific performance and injunction may not be available. |
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6.4 |
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An English court may not give effect to Section 8.04 (Expenses; Indemnity; Damage
Waiver) of the Agreement in respect of the costs of litigation brought before an English court. |
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6.5 |
|
A certificate, determination, notification, opinion or the like might be held by the English
courts not to be conclusive, final or binding if it could be shown to have an
unreasonable or arbitrary basis or in the event of manifest error despite any provision
in the Agreement to the contrary. |
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6.6 |
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We do not express any opinion as to any taxation matters, except for paragraphs 5.9. |
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6.7 |
|
Claims may become barred under the Limitation Xxx 0000. |
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6.8 |
|
So far as they relate to United Kingdom stamp duties, the undertakings and indemnities
given by the Company in Section 2.15 (Taxes) of the Agreement may be void
under Section 117 of the Stamp Xxx 0000. |
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6.9 |
|
Any provision of the Agreement which constitutes, or purports to constitute, a
restriction on
the exercise of any statutory power may be ineffective. |
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6.10 |
|
Our opinion that the Company is existing is based on the Search and the
Telephone Search. It should be noted that the Search and the Telephone Search are not
capable of revealing conclusively whether or not a winding-up or administration petition
or order has been presented or made, a receiver appointed, a company voluntary
arrangement proposed or approved or any other insolvency proceeding commenced. |
|
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6.11 |
|
If proceedings were brought before the English courts, effect may be given
to the overriding
mandatory provisions of the law of the country where the obligations arising out of a
contract have to be or have been performed, in so far as those provisions render the
performance of the contract unlawful. In such circumstances, the relevant obligations
may not be enforceable. |
|
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6.12 |
|
Further circumstances referred to in paragraph 5.7 are as follows: |
|
(a) |
|
where all other elements relevant to the Agreement at the time of the choice are
located in: |
|
(i) |
|
a country other than the United States, it is
possible that the choice of New
York law will not prejudice the application of provisions of the law
of that other country which cannot be derogated from by agreement; |
|
|
(ii) |
|
one or more EU Member States, it is possible that
the choice of New York
law will not prejudice the application of provisions of EU law (where
appropriate, as implemented in England) which cannot be derogated from
by agreement; |
|
(b) |
|
the English courts may have regard to the law of the country in which performance
takes place in relation to the manner of performance and the steps to be taken
in the event of defective performance; and |
|
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(c) |
|
the English courts may not be restricted from applying overriding mandatory
provisions of English law and if there is a provision of New York law that is
manifestly incompatible with English public policy, it is possible that the
English courts may not apply it. |
7 |
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Reliance |
|
|
|
This opinion is solely for your benefit and solely for the purpose of the Agreement
and the Notes. It is not to be transmitted to anyone else nor is it to be relied upon by
anyone else or for any other purpose or quoted or referred to in any public document or
filed with anyone without our written consent, except as otherwise required by law or
regulation, and provided that a copy may be provided to your professional advisers, auditors
and regulators, solely for the purpose of the Agreement and the Notes and of giving their
opinion and subject to the same restrictions. |
Yours faithfully
Linklaters LLP
Page 2 of 5
EXHIBIT G
FORM OF OPINION OF BERMUDA COUNSEL FOR THE PARENT
See attached.
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The Administrative Agent and
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e-mail: |
The Lenders from time to time party to the Agreement
(as defined below)
|
|
xxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
direct dial: |
c/o Bank of America, N.A.
000 X Xxxxx Xxxxxx
Xxxxxxxxx XX 00000-0000
|
|
Tel x0 000 000 0000
Fax x0 000 000 0000
your ref: |
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xxxxxxx ref: |
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137506.17 |
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|
24 May 2010 |
Dear Sirs
Invesco Ltd. (the “Company”)
We have acted as Bermuda legal advisers to the Company in its capacity as the parent of Invesco
Holding Company Limited, a company organised under the laws of England and Wales (“IHCL”), which in
turn is the parent company of IVZ, Inc., a Delaware corporation (together with IHCL, collectively,
the “Borrowers”), in connection with a (i) revolving credit facility which provides for revolving
borrowings of a principal amount of up to US$1,250,000,000, inter alia, between the Lenders as
defined therein, Bank of America, N.A., as administrative agent (the “Administrative Agent”), the
Borrowers and the Company (the “Agreement”) and (ii) a guaranty made by the Company in favour of
the Lenders (as defined therein) (the “Parent Guaranty”). The Company has requested that we
provide this opinion in connection with the following agreements:
|
(i) |
|
the Agreement; and |
|
|
(ii) |
|
the Parent Guaranty, |
(The Agreement and the Parent Guaranty are hereinafter collectively referred to as the
“Subject Agreements”.)
For the purposes of this opinion we have examined and relied upon the documents (the “Documents”)
listed, and in some cases defined, in the schedule to this opinion (the “Schedule”) together with
such other documentation as we have considered requisite to this opinion. Unless otherwise defined
herein, capitalised terms have the meanings assigned to them in the Agreement.
Assumptions
In stating our opinion we have assumed:
(a) |
|
the authenticity, accuracy and completeness of all Documents and other documentation examined
by us submitted to us as originals and the conformity to authentic original documents of all
Documents and other such documentation submitted to us as certified, conformed, notarised,
faxed or photostatic copies; |
|
(b) |
|
that each of the Documents and other such documentation which was received by electronic
means is complete, intact and in conformity with the transmission as sent; |
|
(c) |
|
the genuineness of all signatures on the Documents; |
|
(d) |
|
the authority, capacity and power of each of the persons signing the Documents (other than
the Company in respect of the Subject Agreements); |
|
(e) |
|
that any representation, warranty or statement of fact or law, other than as to the laws of
Bermuda, made in any of the Documents is true, accurate and complete; |
|
(f) |
|
that the Subject Agreements constitute the legal, valid and binding obligations of each of
the parties thereto, other than the Company, under the laws of its jurisdiction of
incorporation or its jurisdiction of formation; |
|
(g) |
|
that the Subject Agreements have been validly authorised, executed and delivered by each of
the parties thereto, other than the Company, and the performance thereof is within the
capacity and powers of each such party thereto, and that each such party to which the Company
purportedly delivered the Subject Agreements has actually received and accepted delivery of
such Subject Agreements; |
|
(h) |
|
that the Subject Agreements will effect, and will constitute legal, valid and binding
obligations of each of the parties thereto, enforceable in accordance with their terms, under
the laws of the State of New York by which they are expressed to be governed; |
Page 3
(i) |
|
that the Subject Agreements are in the proper legal form to be admissible in evidence and
enforced in the New York courts and in accordance with the laws of the State of New York; |
|
(j) |
|
that there are no provisions of the laws or regulations of any jurisdiction other than
Bermuda which would be contravened by the execution or delivery of the Subject Agreements or
which would have any implication in relation to the opinion expressed herein and that, in so
far as any obligation under, or action to be taken under, the Subject Agreements is required
to be performed or taken in any jurisdiction outside Bermuda, the performance of such
obligation or the taking of such action will constitute a valid and binding obligation of each
of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue
of the laws of that jurisdiction; |
|
(k) |
|
that none of the parties to the Subject Agreements maintains a place of business (as defined
in section 4(6) of the Investment Business Act 2003), in Bermuda; |
|
(l) |
|
that the records which were the subject of the Company Search were complete and accurate at
the time of such search and disclosed all information which is material for the purposes of
this opinion and such information has not since the date of the Company Search been materially
altered; |
|
(m) |
|
that the records which were the subject of the Litigation Search were complete and accurate
at the time of such search and disclosed all information which is material for the purposes of
this opinion and such information has not since the date of the Litigation Search been
materially altered; |
|
(n) |
|
that the Resolutions are in full force and effect, have not been rescinded, either in whole
or in part, and accurately record the resolutions passed by the Directors of the Company (the
“Directors”) in a meeting which was duly convened and at which a duly constituted quorum was
present and voting throughout (the “Board”) and that there is no matter affecting the
authority of the Directors to effect entry by the Company into the Subject Agreements, not
disclosed by the Constitutional Documents or the Resolutions, which would have any adverse
implication in relation to the opinions expressed herein; |
Page 4
(o) |
|
that the Administrative Agent and the Lenders from time to time party to the Agreement have
no express or constructive knowledge of any circumstance whereby any Director of the Company,
when the Board adopted the Resolutions, failed to discharge his fiduciary duty owed to the
Company and to act honestly and in good faith with a view to the best interests of the
Company; |
|
(p) |
|
that the Company has entered into its obligations under the Subject Agreements in good faith
for the purpose of carrying on its business and that, at the time it did so, there were
reasonable grounds for believing that the transactions contemplated by the Subject Agreements
would benefit the Company; and |
|
(q) |
|
that each transaction to be entered into pursuant to the Subject Agreements is entered into
in good faith and for full value and will not have the effect of preferring one creditor over
another. |
Opinion
Based upon and subject to the foregoing and subject to the reservations set out below and to any
matters not disclosed to us, we are of the opinion that:
(1) |
|
The Company is an exempted company incorporated with limited liability and existing under the
laws of Bermuda. The Company possesses the capacity to xxx and be sued in its own name. |
|
(2) |
|
The Company has all requisite corporate power and authority to enter into, execute, deliver,
and perform its obligations under the Subject Agreements and to take all action as may be
necessary to complete the transactions contemplated thereby. |
|
(3) |
|
The execution, delivery and performance by the Company of the Subject Agreements and the
transactions contemplated thereby have been duly authorised by all necessary corporate action
on the part of the Company. |
|
(4) |
|
The Subject Agreements have been duly executed by the Company and each constitutes legal,
valid and binding obligations of the Company, enforceable against the Company in accordance
with its terms. |
Page 5
(5) |
|
No consent, licence or authorisation of, filing with, or other act by or in respect of, any
governmental authority or court of Bermuda is required to be obtained by the Company in
connection with the execution, delivery or performance by the Company of the Subject
Agreements or to ensure the legality, validity, admissibility into evidence or enforceability
as to the Company, of the Subject Agreements. |
|
(6) |
|
The execution, delivery and performance by the Company of the Subject Agreements and the
transactions contemplated thereby do not and will not violate, conflict with or constitute a
default under (i) any requirement of any law or any regulation of Bermuda or (ii) the
Constitutional Documents. |
|
(7) |
|
The choice of the laws of the State of New York as the proper law to govern the Subject
Agreements is a valid choice of law under Bermuda law and such choice of law would be
recognised, upheld and applied by the courts of Bermuda as the proper law of the Subject
Agreements in proceedings brought before them in relation to the Subject Agreements, provided
that (i) the point is specifically pleaded; (ii) such choice of law is valid and binding under
the laws of the State of New York; and (iii) recognition would not be contrary to public
policy as that term is understood under Bermuda law. |
|
|
|
It is our view that public policy in Bermuda is a common law principle amounting to a
judicial impression of what is or is not in the general public interest or in accordance
with the policies of the government of Bermuda as expressed primarily through legislation.
While the concept is amorphous and subject to evolution, and application of this principle
to specific circumstances cannot be accomplished with any degree of precision, we have no
basis for concluding that any of the provisions in the Subject Agreements are contrary to
public policy in Bermuda. |
|
(8) |
|
The submission by the Company to the jurisdiction of a United States Federal court sitting in
New York City or a New York State court pursuant to the Subject Agreements is not contrary to
Bermuda law and would be recognised by the courts of Bermuda as a legal, valid and binding
submission to the jurisdiction of a United States Federal court sitting in New York City or a
New York State court, if such submission is accepted by such courts and is legal, valid and
binding under the laws of the State of New York. |
Page 6
(9) |
|
A final and conclusive judgment of a competent foreign court against the Company based upon
the Subject Agreements (other than a court of jurisdiction to which The Judgments (Reciprocal
Enforcement) Xxx 0000 applies, and it does not apply to a United States Federal court sitting
in New York City or a New York State court) under which a sum of money is payable (not being a
sum payable in respect of taxes or other charges of a like nature, in respect of a fine or
other penalty, or in respect of multiple damages as defined in The Protection of Trading
Interests Act 1981) may be the subject of enforcement proceedings in the Supreme Court of
Bermuda under the common law doctrine of obligation by action on the debt evidenced by the
judgment of such competent foreign court. A final opinion as to the availability of this
remedy should be sought when the facts surrounding the foreign court’s judgment are known,
but, on general principles, we would expect such proceedings to be successful provided that: |
|
(i) |
|
the court which gave the judgment was competent to hear the action in
accordance with private international law principles as applied in Bermuda; and |
|
|
(ii) |
|
the judgment is not contrary to public policy in Bermuda, has not
been obtained by fraud or in proceedings contrary to natural justice and is not
based on an error in Bermuda law. |
|
|
Enforcement of such a judgment against assets in Bermuda may involve the conversion of the
judgment debt into Bermuda dollars, but the Bermuda Monetary Authority has indicated that
its present policy is to give the consents necessary to enable recovery in the currency of
the obligation. |
|
|
|
No stamp duty or similar or other tax or duty is payable in Bermuda on the enforcement of a
foreign judgment. Court fees will be payable in connection with proceedings for
enforcement. |
|
(10) |
|
Based solely upon the Company Search and the Litigation Search: |
|
(i) |
|
no litigation, administrative or other proceeding of or before any
governmental authority of Bermuda is pending against the Company; and |
|
|
(ii) |
|
no notice to the Registrar of Companies of the passing of a resolution of
members or creditors to wind up or the appointment of a liquidator or |
Page 7
|
|
|
receiver has been given. No petition to wind up the Company or application to
reorganise its affairs pursuant to a Scheme of Arrangement or application for the
appointment of a receiver has been filed with the Supreme Court. |
(11) |
|
The Company has received an assurance from the Ministry of Finance granting an exemption,
until 28 March 2016, from the imposition of tax under any applicable Bermuda law computed on
profits or income or computed on any capital asset, gain or appreciation, or any tax in the
nature of estate duty or inheritance tax, provided that such exemption shall not prevent the
application of any such tax or duty to such persons as are ordinarily resident in Bermuda and
shall not prevent the application of any tax payable in accordance with the provisions of the
Land Tax Xxx 0000 or otherwise payable in relation to land in Bermuda leased to the Company.
There are, subject as otherwise provided in this opinion, no Bermuda taxes, stamp or
documentary taxes, duties or similar charges now due, or which could in the future become due,
in connection with the execution, delivery, performance or enforcement of the Subject
Agreements or the transactions contemplated thereby, or in connection with the admissibility
in evidence thereof and the Company is not required by any Bermuda law or regulation to make
any deductions or withholdings in Bermuda from any payment it may make thereunder. |
Reservations
We have the following reservations:
(a) |
|
The term “enforceable” as used in this opinion means that there is a way of ensuring that
each party performs an agreement or that there are remedies available for breach. |
|
(b) |
|
We express no opinion as to the availability of equitable remedies such as specific
performance or injunctive relief, or as to any matters which are within the discretion of the
courts of Bermuda in respect of any obligations of the Company as set out in the Subject
Agreements. In particular, we express no opinion as to the enforceability of any present or
future waiver of any provision of law (whether substantive or procedural) or of any right or
remedy which might otherwise be available presently or in the future under the Subject
Agreements. |
Page 8
(c) |
|
Enforcement of the obligations of the Company under the Subject Agreements may be limited or
affected by applicable laws from time to time in effect relating to bankruptcy, insolvency or
liquidation or any other laws or other legal procedures affecting generally the enforcement of
creditors’ rights. |
|
(d) |
|
Enforcement of the obligations of the Company may be the subject of a statutory limitation of
the time within which such proceedings may be brought. |
|
(e) |
|
We express no opinion as to any law other than Bermuda law and none of the opinions expressed
herein relates to compliance with or matters governed by the laws of any jurisdiction except
Bermuda. This opinion is limited to Bermuda law as applied by the Courts of Bermuda at the
date hereof. |
|
(f) |
|
Where an obligation is to be performed in a jurisdiction other than Bermuda, the courts of
Bermuda may refuse to enforce it to the extent that such performance would be illegal under
the laws of, or contrary to public policy of, such other jurisdiction. |
|
(g) |
|
We express no opinion as to the validity, binding effect or enforceability of any provision
incorporated into any of the Subject Agreements by reference to a law other than that of
Bermuda, or as to the availability in Bermuda of remedies which are available in other
jurisdictions. |
|
(h) |
|
Where a person is vested with a discretion or may determine a matter in his or its opinion,
such discretion may have to be exercised reasonably or such an opinion may have to be based on
reasonable grounds. |
|
(i) |
|
Any provision in the Subject Agreements that certain calculations or certificates will be
conclusive and binding will not be effective if such calculations or certificates are
fraudulent or erroneous on their face and will not necessarily prevent juridical enquiries
into the merits of any claim by an aggrieved party. |
|
(j) |
|
We express no opinion as to the validity or binding effect of any provision in the Subject
Agreements for the payment of interest at a higher rate on overdue amounts than on amounts
which are current, or that liquidated damages are or may be payable. Such a provision may not
be enforceable if it could be established that the amount expressed as being payable was in
the nature of a penalty; that is |
Page 9
|
|
to say a requirement for a stipulated sum to be paid irrespective of, or necessarily
greater than, the loss likely to be sustained. If it cannot be demonstrated to the Bermuda
court that the higher payment was a reasonable pre-estimate of the loss suffered, the court
will determine and award what it considers to be reasonable damages. Section 9 of The
Interest and Credit Charges (Regulations) Xxx 0000 provides that the Bermuda courts have
discretion as to the amount of interest, if any, payable on the amount of a judgment after
date of judgment. If the Court does not exercise that discretion, then interest will
accrue at the statutory rate which is currently 7% per annum. |
|
(k) |
|
We express no opinion as to the validity or binding effect of any provision of the Subject
Agreements which provides for the severance of illegal, invalid or unenforceable provisions. |
|
(l) |
|
A Bermuda court may refuse to give effect to any provisions of the Subject Agreements in
respect of costs of unsuccessful litigation brought before the Bermuda court or where that
court has itself made an order for costs. |
|
(m) |
|
Searches of the Register of Companies at the office of the Registrar of Companies and of the
Supreme Court Causes Book at the Registry of the Supreme Court are not conclusive and it
should be noted that the Register of Companies and the Supreme Court Causes Book do not
reveal: |
|
(i) |
|
details of matters which have been lodged for filing or registration which as
a matter of best practice of the Registrar of Companies or the Registry of the Supreme
Court would have or should have been disclosed on the public file, the Causes Book or
the Judgment Book, as the case may be, but for whatever reason have not actually been
filed or registered or are not disclosed or which, notwithstanding filing or
registration, at the date and time the search is concluded are for whatever reason not
disclosed or do not appear on the public file, the Causes Book or Judgment Book; |
|
|
(ii) |
|
details of matters which should have been lodged for filing or registration
at the Registrar of Companies or the Registry of the Supreme Court but have not been
lodged for filing or registration at the date the search is concluded; |
Page 10
|
(iii) |
|
whether an application to the Supreme Court for a winding-up petition or for
the appointment of a receiver or manager has been prepared but not yet been presented
or has been presented but does not appear in the Causes Book at the date and time the
search is concluded; |
|
|
(iv) |
|
whether any arbitration or administrative proceedings are pending or whether
any proceedings are threatened, or whether any arbitrator has been appointed; or |
|
|
(v) |
|
whether a receiver or manager has been appointed privately pursuant to the
provisions of a debenture or other security, unless notice of the fact has been
entered in the Register of Charges in accordance with the provisions of the Act. |
|
|
Furthermore, in the absence of a statutorily defined system for the registration of charges
created by companies incorporated outside Bermuda (“overseas companies”) over their assets
located in Bermuda, it is not possible to determine definitively from searches of the
Register of Charges maintained by the Registrar of Companies in respect of such overseas
companies what charges have been registered over any of their assets located in Bermuda or
whether any one charge has priority over any other charge over such assets. |
|
(n) |
|
In order to issue this opinion we have carried out the Company Search and have not enquired
as to whether there has been any change since the date of such search. |
|
(o) |
|
In order to issue this opinion we have carried out the Litigation Search and have not
enquired as to whether there has been any change since the date of such search. |
Disclosure
This opinion is addressed to you solely for your benefit and is neither to be transmitted to any
other person, nor relied upon by any other person or for any other purpose nor quoted or referred
to in any public document nor filed with any governmental agency or person, without our prior
written consent, except as may be required by law or regulatory authority. Further, this opinion
speaks as of its date and is strictly limited to the matters stated herein and we assume no
obligation to review or update this opinion if applicable law or the existing facts or
circumstances should change.
Page 11
This opinion is governed by and is to be construed in accordance with Bermuda law. It is given on
the basis that it will not give rise to any legal proceedings with respect thereto in any
jurisdiction other than Bermuda.
Yours faithfully
Xxxxxxx
Page 12
SCHEDULE
1. |
|
The entries and filings shown in respect of the Company on the file of the Company maintained
in the Register of Companies at the office of the Registrar of Companies in Xxxxxxxx, Bermuda,
as revealed by a search conducted on 21 May 2010 (the “Company Search”). |
|
2. |
|
The entries and filings shown in respect of the Company in the Supreme Court Causes Book
maintained at the Registry of the Supreme Court in Xxxxxxxx, Bermuda, as revealed by a search
conducted on 21 May 2010 (the “Litigation Search”). |
|
3. |
|
Certified copies of the Certificate of Incorporation, Memorandum of Association and Bye-Laws
adopted by written resolution dated 3 December 2007 for the Company (collectively referred to
as the “Constitutional Documents”). |
|
4. |
|
Certificate of the Assistant Secretary, dated 21 May 2010, issued by Xxxxxx X. Xxxxxx,
Assistant Secretary of the Company, certifying a true and correct copy of an exerpt from the
meeting of the Board of Directors of the Company on 17 May 2010 approving the “upsizing” of
the Company’s contemplated new credit facility to US$1.25 billion at closing and a Certificate
of the Assistant Secretary, dated 24 May 2010, issued by Xxxxxx X. Xxxxxx, Assistant Secretary
of the Company, certifying, inter alia¸ the resolutions of the Board of Directors of the
Company passed on 17 May 2010 (together, the “Resolutions”). |
|
5. |
|
A certified copy of the “Foreign Exchange Letter”, dated 12 September 2007, issued by the
Bermuda Monetary Authority, Xxxxxxxx Bermuda in relation to the Company. |
|
6. |
|
A certified copy of the “Tax Assurance”, dated 14 November 2007, issued by the Registrar of
Companies for the Minister of Finance in relation to the Company. |
|
7. |
|
A certified copy of the Register of Directors and Officers in respect of the Company. |
|
8. |
|
Electronic copy of the executed Agreement dated 24 May 2010. |
9. |
|
Electronic copy of the executed Parent Guaranty dated 24 May 2010. |
Page 2
EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
Statement Date: ,
|
|
|
To: |
|
Bank of America, N.A., as Administrative Agent |
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of May 24, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among INVESCO HOLDING COMPANY LIMITED, a company organized under the laws of England and Wales
(“IHCL”), IVZ, INC., a Delaware corporation (together with IHCL, the “Borrowers”
and each individually, a “Borrower”), INVESCO LTD., the Lenders from time to time party
thereto, and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
Capitalized terms used but not defined herein shall have the meanings specified therefor in the
Credit Agreement.
The undersigned hereby certifies as of the date hereof that he/she is the chief financial
officer of the Parent, and that, as such, he/she is authorized to execute and deliver this
Compliance Certificate to the Administrative Agent on the behalf of the Parent and the Borrowers,
and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. The Parent has delivered the audited financial statements required by Section
5.01(h)(ii) of the Credit Agreement for the fiscal year of the Parent ended as of the above
date, together with the report and opinion of an independent certified public accountant required
by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. The Parent has delivered the unaudited financial statements required by Section
5.01(h)(i) of the Credit Agreement for the fiscal quarter of the Parent ended as of the above
date. Such financial statements fairly present the financial condition, results of operations and
cash flows of the Parent and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has
made, or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Parent and the Borrowers during the accounting period
covered by such financial statements.
3. A review of the activities of the Parent and the Borrowers during such fiscal period has
been made under the supervision of the undersigned with a view to determining whether during such
fiscal period the Parent and the Borrowers performed and observed all its Obligations under the
Loan Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period, each of the Parent and
the Borrowers performed and observed each covenant and condition of the Loan Documents applicable
to it, and no Default has occurred and is continuing.]
—or—
[to the best knowledge of the undersigned, during such fiscal period the following covenants
or conditions have not been performed or observed and the following is a list of each such Default
and its nature and status:]
4. The financial covenant analyses and information set forth on Schedule 1 attached
hereto are true and accurate on and as of the date of this Compliance Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of
,
.
|
|
|
|
|
|
INVESCO LTD.
|
|
|
By: |
|
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|
|
Name: |
|
|
|
|
Title: |
|
|
Page 2
For the Month/Quarter/Year ended
(“Statement Date”)
SCHEDULE 1
to the Compliance Certificate
($ in 000’s)
|
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|
|
|
|
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|
|
|
|
|
|
I.
|
|
Section 5.03(a) — Debt/EBITDA Ratio. |
|
|
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|
|
|
|
|
A.
|
|
Adjusted Debt less excluded items as of
Statement Date: |
|
|
|
|
|
|
|
|
1.
|
|
Adjusted Debt:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.
|
|
Subsidiary Non-Recourse Debt:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.
|
|
Liabilities with respect to the Office
Equipment Sale and Leaseback Lease (so long as the
Parent and its Subsidiaries own 100% of the Office
Equipment Sale and Leaseback Bonds):
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.
|
|
Qualified Equity Portion of Qualified
Securities to the extent such amount is otherwise
included in Adjusted Debt:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[5.
|
|
The lesser of the aggregate outstanding
principal amount of (x) the 2012 Notes and (y) 2012
Refinancing Notes, to the extent otherwise included in
Adjusted Debt:
|
|
$ |
|
]1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[5.
|
|
The lesser of the aggregate outstanding
principal amount of (x) the 2013 Notes and (y) 2013
Refinancing Notes, to the extent otherwise included in
Adjusted Debt:
|
|
$ |
|
]2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[5][6].
|
|
Adjusted Debt less excluded items for purposes of
computing the Debt/EBITDA Ratio (Lines I.A.1 – 2 – 3
– 4 [– 5]):
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
B.
|
|
EBITDA less excluded items for four consecutive
fiscal quarters ending on above date (“Subject
Period”): |
|
|
|
|
|
|
|
|
1.
|
|
Net income of the Parent and its
Subsidiaries, on a consolidated basis, excluding
consolidated investment products, for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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2.
|
|
Interest expense for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
Included for the purpose of calculating the
Debt/EBITDA ratio for the period of four consecutive quarters ending on March
31, 2012 in the event that either the Borrower or any Guarantor has issued the
2012 Refinancing Notes in connection with a refinancing of the 2012 Notes. |
|
2 |
|
Included for the purpose of calculating the
Debt/EBITDA ratio for the period of four consecutive quarters ending on
December 31, 2012 in the event that either the Borrower or any Guarantor has
issued the 2013 Refinancing Notes in connection with a refinancing of the 2013
Notes. |
Page 3
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3.
|
|
Income tax expense for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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4.
|
|
Depreciation expense for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.
|
|
Amortization expense for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6.
|
|
Extraordinary losses for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7.
|
|
Exceptional losses for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8.
|
|
Non-cash charges exclusive of any
non-cash charge to the extent it represents a reserve
for cash expenditures in any future period for Subject
Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9.
|
|
Extraordinary gains for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.
|
|
Exceptional gains for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11.
|
|
Non-cash gains exclusive of gains for
which the Parent expects cash proceeds in a future
period for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12.
|
|
EBITDA (Lines I.B.1 + 2 + 3 + 4 + 5 + 6
+ 7 + 8 – 9 – 10 – 11):
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13.
|
|
Portion of EBITDA attributable to the
net income, expenses, losses, charges and gains of each
Special Purpose Subsidiary:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14.
|
|
EBITDA less excluded items for
purposes of computing the Financial Covenants for
Subject Period (Lines I.B.12 – 13):
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C.
|
|
Debt/EBITDA Ratio as of the Statement Date (Line I.A.6
÷ Line I.B.14):
|
|
|
|
to 1.00
|
|
|
|
|
|
|
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Maximum permitted:
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Maximum |
Four Fiscal Quarters Ending |
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Debt/EBITDA Ratio |
Effective Date through December 31, 2011 |
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3.25 to 1.00 |
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Each fiscal quarter ending thereafter |
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3.00 to 1.00 |
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II.
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Section 5.03(b) — Coverage Ratio.
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A.
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EBITDA less excluded items for purposes of
computing the Financial Covenants for Subject Period (Line
I.B.14):
|
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$ |
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B.
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Interest payable on, and amortization of debt discount
in respect of, Adjusted Debt (excluding from Adjusted Debt |
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Page 4
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for
purposes of computing this amount: (i) Subsidiary
Non-Recourse Debt and (ii) so long as the Parent and its
Subsidiaries own 100% of the Office Equipment Sale and
Leaseback Bonds, liabilities with respect to the Office
Equipment Sale and Leaseback Lease):
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$ |
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C.
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Coverage Ratio as of the Statement Date as of the
Statement Date (Line II.A ÷ Line II.B):
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to 1.00
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Minimum Required: 4.00 to 1.00
Page 5
EXHIBIT I
FORM OF U.K. TAX COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated May 24, 2010 (as may be amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among INVESCO
HOLDING COMPANY LIMITED, a company organized under the laws of England and Wales, IVZ, INC., a
Delaware corporation, INVESCO LTD., a company organized under the laws of Bermuda, the Lenders from
time to time party thereto, and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer. The undersigned hereby certifies under penalty of perjury that:
(1) The undersigned is a “bank” within the meaning of Section 879 of the Income Tax Xxx 0000
of the United Kingdom; and
(2) The undersigned is within the charge to corporation tax in the United Kingdom with respect
to payments under the Credit Agreement.
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[NAME OF LENDER]
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By: |
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Name: |
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Title: |
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Address:
[ ]
[ ]
[ ]
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Dated: , 20
I-1
Form of U.K. Tax Compliance Certificate