1
Exhibit 10.1
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
dated as of June 4, 1999
among
STRYKER CORPORATION,
CERTAIN SUBSIDIARIES OF STRYKER CORPORATION,
as Guarantors,
CERTAIN FINANCIAL INSTITUTIONS,
as Lenders,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as a Joint Lead Arranger and Syndication Agent,
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC,
as a Joint Lead Arranger,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Global Agent, US Facility Agent and
Multicurrency Facility Agent,
and
ABN AMRO BANK N.V.,
BANK ONE, MICHIGAN
and
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents
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$1,650,000,000 SENIOR SECURED CREDIT FACILITIES
--------------------------------------------------------
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS; INTERPRETATION.......................................2
1.1. Defined Terms.............................................2
1.2. Accounting Terms.........................................44
1.3. Interpretation, etc......................................44
SECTION 2. LOANS AND LETTERS OF CREDIT......................................45
2.1. Term Loans...............................................45
2.2. Facility Loans...........................................46
2.3. Letters of Credit........................................52
2.4. Pro Rata Shares..........................................60
2.5. Use of Proceeds..........................................60
2.6. Evidence of Debt; Register; Lenders' Books and
Records; Notes.........................................61
2.7. Interest Payments........................................62
2.8. Conversion/Continuation..................................64
2.9. Default Interest.........................................64
2.10. Fees.....................................................65
2.11. Scheduled Payments/Reductions............................67
2.12. Voluntary Prepayments/Reductions.........................68
2.13. Mandatory Prepayments/Reductions.........................70
2.14. Application of Prepayments/Reductions....................72
2.15. Allocation of Certain Payments and Proceeds..............74
2.16. General Provisions Regarding Payments....................74
2.17. Ratable Sharing..........................................75
2.18. Increased Cost and Reduced Return........................76
2.19. Limitation on Types of Loans.............................77
2.21. Treatment of Affected Loans..............................78
2.22. Compensation.............................................79
2.23. Taxes....................................................79
2.24. Replacement Lender.......................................81
2.25. Funding..................................................82
2.26. Economic and Monetary Union in the European Community....82
SECTION 3. CONDITIONS PRECEDENT; RELEASE OF COLLATERAL......................85
3.1. Closing Date.............................................85
3.2. Conditions to each Credit Extension......................90
3.3. Release of Collateral. .................................91
3.4. Conditions to Effectiveness............................................92
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SECTION 4. REPRESENTATIONS AND WARRANTIES...................................93
4.1. Organization; Powers; Qualification......................93
4.2. Authorization of Credit Documents; No Conflict...........94
4.3. Governmental Consents....................................94
4.4. Binding Obligation.......................................94
4.5. Historical Financial Statements; Projections.............94
4.6. No Material Adverse Effect; No Restricted Junior
Payments..............................................95
4.7. Litigation; Adverse Proceedings..........................95
4.8. Payment of Taxes.........................................95
4.9. Title to Properties......................................96
4.10. Collateral...............................................96
4.11. Environmental Matters....................................97
4.12. No Defaults; Material Contracts..........................97
4.13. Governmental Regulation..................................98
4.14. Margin Stock.............................................98
4.15. Employee Matters.........................................98
4.16. Employee Benefit Plans...................................98
4.17. Certain Fees.............................................99
4.18. Solvency.................................................99
4.19. Related Agreements.......................................99
4.20. Year 2000 Issues.........................................99
4.21. Disclosure...............................................99
SECTION 5. AFFIRMATIVE COVENANTS...........................................100
5.1. Financial Statements and Other Reports..................100
5.2. Existence...............................................103
5.3. Payment of Taxes and Claims.............................103
5.4. Maintenance of Properties...............................103
5.5. Insurance...............................................103
5.6. Inspections; Lenders Meetings...........................104
5.7. Compliance with Laws....................................104
5.8. Environmental...........................................104
5.9. Subsidiaries............................................105
5.10. Material Real Estate Assets.............................106
5.11. Interest Rate Protection................................106
5.12. Year 2000 Issues........................................106
SECTION 6. NEGATIVE COVENANTS..............................................107
6.1. Indebtedness............................................107
6.2. Liens...................................................109
6.3. Equitable Lien; No Further Negative Pledges.............110
6.4. Restricted Payments; Restrictions on Subsidiary
Distributions........................................111
6.5. Investments.............................................111
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6.6. Financial Covenants.....................................112
6.7. Fundamental Changes; Disposition of Assets;
Acquisitions.........................................115
6.8. Disposal of Subsidiary Interests........................116
6.9. Sales and Lease-Backs...................................116
6.10. Sale or Discount of Receivables.........................117
6.11. Transactions with Shareholders and Affiliates...........117
6.12. Conduct of Business.....................................117
6.13. Amendments or Waivers of Certain Agreements.............117
6.14. Fiscal Year.............................................117
SECTION 7. GUARANTY........................................................118
7.1. Guaranty of the Obligations.............................118
7.2. Contribution by Guarantors..............................118
7.3. Payment by Guarantors...................................119
7.4. Liability of Guarantors Absolute........................119
7.5. Waivers by Guarantors...................................121
7.6. Guarantors' Rights of Subrogation, Contribution, Etc....121
7.7. Subordination of Other Obligations......................122
7.8. Continuing Guaranty.....................................122
7.9. Authority of Guarantors or Company......................122
7.10. Financial Condition of Company..........................123
7.11. Bankruptcy, Etc.........................................123
7.12. Notice of Events........................................124
7.13. Discharge of Guaranty Upon Sale of Guarantor............124
SECTION 8. EVENTS OF DEFAULT...............................................124
8.1. Events of Default.......................................124
SECTION 9. AGENTS..........................................................127
9.1. Appointment, Powers, and Immunities.....................127
9.2. Reliance by Agents......................................128
9.3. Defaults................................................128
9.4. Rights as Lender........................................129
9.5. Indemnification.........................................129
9.6. Non-Reliance on Agents and Other Lenders................129
9.7. Resignation of an Agent................................130
9.8. Collateral Documents and Guaranties.....................130
SECTION 10. MISCELLANEOUS..................................................132
10.1. Notices.................................................132
10.2. Expenses................................................132
10.3. Indemnity...............................................133
10.4. Set-Off.................................................133
10.5. Amendments and Waivers..................................133
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10.6. Successors and Assigns; Participations..................135
10.7. Independence of Covenants...............................138
10.8. Survival of Representations, Warranties and Agreements..138
10.9. No Waiver; Remedies Cumulative..........................138
10.10. Marshalling; Payments Set Aide..........................138
10.11. Severability............................................139
10.12. Obligations Several; Independent Nature of
Lenders' Rights......................................139
10.13. Headings................................................139
10.14. APPLICABLE LAW..........................................139
10.15. CONSENT TO JURISDICTION.................................139
10.16. WAIVER OF JURY TRIAL....................................140
10.17. Confidentiality.........................................140
10.18. Judgment Currency.......................................141
10.19. Usury Savings Clause....................................141
10.20. Counterparts; Effectiveness.............................141
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APPENDICES: A Term Loan Amounts
B Facility Commitments
C Notice Addresses
SCHEDULES: 3.1(c) Organizational and Capital Structure
3.1(i)(i) Closing Date Mortgaged Properties
3.1(k) Certain Manufacturing Facilities
4.1 Organization, Etc.
4.6 Certain Restricted Junior Payments
4.9 Real Estate Assets
4.12 Material Contracts
6.1 Certain Indebtedness
6.2 Certain Liens
6.5 Certain Investments
6.10 Certain Sales or Discounts of Receivables
EXHIBITS: A-1 Funding Notice
A-2 Conversion/Continuation Notice
A-3 Issuance Notice
B-1 Tranche A Term Loan Note
B-2 Tranche B Term Loan Note
B-3 Tranche C Term Loan Note
B-4 US Facility Note
B-5 US Swing Line Note
B-6 Multicurrency Facility Note
B-7 Multicurrency Swing Line Note
C Compliance Certificate
D Opinions of Counsel
E Assignment Agreement
F Certificate Re Non-bank Status
G Closing Date Certificate
H Counterpart Agreement
I Pledge and Security Agreement
J Mortgage
K Waiver and Consent Agreement
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AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of
June 4, 1999, is entered into by and among STRYKER CORPORATION, a Michigan
corporation ("Company"), CERTAIN SUBSIDIARIES OF STRYKER CORPORATION, as
Guarantors, CERTAIN FINANCIAL INSTITUTIONS, as Lenders, ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT
PARTNERS L.P. ("GSCP"), as a Joint Lead Arranger and Syndication Agent (in such
capacity, "Syndication Agent"), NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC ("NMS"),
as a Joint Lead Arranger, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
("Bank of America"), as Global Agent (together with its permitted successors in
such capacity, "Global Agent"), as US Facility Agent (together with its
permitted successors in such capacity, "US Facility Agent"), and as
Multicurrency Facility Agent (together with its permitted successors in such
capacity, "Multicurrency Facility Agent"), ABN AMRO BANK N.V. ("ABN"), BANK ONE,
MICHIGAN ("Bank One"), and THE BANK OF NOVA SCOTIA ("BNS"), as Co-Documentation
Agents (each of ABN, Bank One and BNS, in such capacity, a "Co-Documentation
Agent").
RECITALS:
WHEREAS, pursuant to the Stock and Asset Purchase Agreement, dated as
of August 13, 1998, and amended as of October 22, 1998 (as amended, the
"Acquisition Agreement"), between Pfizer, Inc. ("Seller") and Company, Seller
has sold, and Company has purchased, all of Seller's worldwide Howmedica
business (collectively referred to as the "Target") for Cash consideration of
$1,650,000,000, subject to certain working capital adjustments as described
therein (the "Acquisition Consideration");
WHEREAS, Company, Lenders (or their predecessors), Guarantors, and the
Agents have heretofore entered into that certain Credit and Guaranty Agreement,
dated as of December 4, 1998 (the "EXISTING CREDIT Agreement") pursuant to which
Lenders have made certain credit facilities available to Company to pay the
Acquisition Consideration and Transaction Costs, to repay certain Indebtedness
and for working capital and general corporate purposes;
WHEREAS, Company, the Lenders, Guarantors and Agents desire to amend
and restate the Existing Credit Agreement in its entirety in order to provide,
among other things, that (i) the Applicable Margin, Applicable US Facility
Commitment Fee Percentage and Applicable Multicurrency Facility Fee Percentage
be modified and (ii) certain mandatory prepayment provisions be modified;
WHEREAS, Company and each Guarantor agrees that its existing pledge and
grant of a security interests pursuant to the Collateral Documents will continue
as security for the payment and performance of the Obligations under this
Agreement and the other Credit Documents.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Company, the Guarantors, the
Lenders, and the Agents, agree that the Existing Credit Agreement shall be
amended and restated, without novation, as follows:
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SECTION 1. DEFINITIONS; INTERPRETATION
1.1. Defined Terms. The following terms used herein, including the
preamble, recitals, appendices, exhibits and schedules hereto, shall have the
following meanings:
"ABN" as defined in the preamble hereto.
"Acknowledgment of Pledge" as defined in the Pledge and Security
Agreement.
"Acquisition" means the transactions contemplated by the Acquisition
Agreement.
"Acquisition Agreement" as defined in the recitals hereto, as such
agreement may be amended from time to time to the extent permitted pursuant to
Section 6.13.
"Acquisition Charges" as defined in Section 6.6(c).
"Acquisition Consideration" as defined in the recitals hereto.
"Acquisition Financing Requirements" means the aggregate of all amounts
necessary (i) to pay the Acquisition Consideration, (ii) to repay certain
existing Indebtedness of Company and its Subsidiaries and Target, and (iii) to
pay Transaction Costs.
"Adverse Proceeding" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority
(including any Environmental Claims), whether pending or, to the knowledge of
Company or its Subsidiaries, threatened against or affecting Company or any of
its Subsidiaries or any property of Company or any of its Subsidiaries.
"Affected Loans" as defined in Section 2.21.
"Affected Type" as defined in Section 2.21.
"Affiliate", as applied to any Person, means any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agent" means each of Syndication Agent, Global Agent, NMS, in its
capacity as a Joint Lead Arranger, and each Co-Documentation Agent.
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"Aggregate Amounts Due" as defined in Section 2.17.
"Aggregate Payments" as defined in Section 7.2.
"Agreement" means with reference to any date or period prior to the
Amendment and Restatement Effective Date, the Existing Credit Agreement and,
with reference to any period or date after the Amendment and Restatement
Effective Date, this Amended and Restated Credit and Guaranty Agreement dated as
of June 4, 1999, as it may be amended, supplemented or otherwise modified from
time to time.
"Amendment and Restatement Effective Date" as defined in Section 3.4.
"Applicable Aggregate Available Amount" as defined in Section
2.3(d)(ii).
"Applicable Margin", "Applicable US Facility Commitment Fee Percentage"
and "Applicable Multicurrency Facility Fee Percentage" mean (i) with respect to
Multicurrency Facility Loans, Eurodollar Rate Loans, Applicable US Facility
Commitment Fee Percentage and Applicable Multicurrency Facility Fee Percentage,
(a) from the Closing Date until the Amendment and Restatement Effective Date, a
percentage, per annum, equal to (v) in the case of Multicurrency Facility Loans
2.00%, (w) in the case of US Facility and Tranche A Term Loans 2.50%, (x) in the
case of Tranche B Term Loans 3.00%, (y) in the case of Tranche C Term Loans
3.50%, and (z) in the case of the Applicable US Facility Commitment Fee
Percentage and the Applicable Multicurrency Facility Fee Percentage .500%; and
(b) thereafter, a percentage, per annum, determined by reference to the Leverage
Ratio in effect from time to time as set forth below:
--------------------------------------------------------------------------------------------------------
US Facility Applicable Applicable
and US Facility Multicurrency
Leverage Multicurrency Tranche A Tranche B Tranche C Commitment Facility Fee
Ratio Facility Loans Term Loans Term Loans Term Loans Fee Percentage Percentage
--------------------------------------------------------------------------------------------------------
>3.75:1.00 1.750% 2.250% 2.750% 3.000% 0.500% 0.500%
-
--------------------------------------------------------------------------------------------------------
<3.75:1.00 1.500% 2.000% 2.500% 2.750% 0.500% 0.500%
>3.25:1.00
-
--------------------------------------------------------------------------------------------------------
<3.25:1.00 1.375% 1.750% 2.500% 2.750% 0.375% 0.375%
>2.75:1.00
-
--------------------------------------------------------------------------------------------------------
<2.75:1.00 1.125% 1.500% 2.500% 2.750% 0.375% 0.375%
>2.25:1.00
-
--------------------------------------------------------------------------------------------------------
<2.25:1.00 0.875% 1.250% 2.500% 2.750% 0.375% 0.375%
--------------------------------------------------------------------------------------------------------
and (ii) with respect to Base Rate Loans, an amount equal to (a) the Applicable
Margin for Eurodollar Rate Loans as set forth above, minus (b) 1.00%, per annum
(or such lesser amount as may be required to reduce the Applicable Margin to
zero), provided, (1) as of the Amendment and Restatement Effective Date, the
Applicable Margin shall be determined with reference to the
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Leverage Ratio as of the last day of the Fiscal Quarter most recently ended (2)
no change in the Applicable Margin, the Applicable US Facility Commitment Fee
Percentage or the Applicable Multicurrency Facility Fee Percentage shall be
effective until three Business Days after the date on which Global Agent
receives the financial statements and a Compliance Certificate pursuant to
Section 5.1(c) calculating the Leverage Ratio, and (3) for so long (but only for
so long) as Company has not submitted to Global Agent the information described
in the foregoing clause (1) when required under Section 5.1(c), the Applicable
Margin, the Applicable US Facility Commitment Fee Percentage and the Applicable
Multicurrency Facility Fee Percentage shall be determined as if the Leverage
Ratio were in excess of 3.75:1.00. Global Agent shall give each Lender, within
one (1) Business Day of receipt of any Compliance Certificate, telefacsimile
notice, or telephonic notice (confirmed in writing), of the Applicable Margin,
Applicable US Facility Commitment Fee Percentage and the Applicable
Multicurrency Facility Fee Percentage in effect from such date.
"Applicable Maximum Available Amount" as defined in Section 2.3(d)(ii).
"Applicable Reserve Requirement" means, at any time, for any
Eurodollar Rate Loan the maximum rate at which reserves (including, without
limitation, any marginal, special, supplemental or emergency reserves) are
required to be maintained with respect thereto against "Eurocurrency
liabilities" (as such term is defined in Regulation D) under regulations issued
from time to time by the Board of Governors of the Federal Reserve System or
other applicable banking regulator. Without limiting the effect of the
foregoing, the Applicable Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks with respect to (i) any category
of liabilities which includes deposits by reference to which the applicable
Eurodollar Rate or any other interest rate of a Loan is to be determined, or
(ii) any category of extensions of credit or other assets which include
Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed subject to reserve
requirements without benefits of credit for proration, exceptions or offsets
that may be available from time to time to the applicable Lender. The rate of
interest on Eurodollar Rate Loans shall be adjusted automatically on and as of
the effective date of any change in the Applicable Reserve Requirement.
"Applied Amount" as defined in Section 2.14(b).
"Asset Sale" means a sale, lease or sub-lease (as lessor or sublessor),
transference or disposition to any Person other than Company or any of its
Wholly-Owned Subsidiaries, in one transaction or a series of transactions, of
all or any part of Company's or any of its Subsidiaries' businesses, properties
or assets whether now owned or hereafter acquired, including, without limitation
the equity Securities of any of Company's Subsidiaries, but excluding (i)
inventory sold in the ordinary course of business, (ii) disposals of obsolete,
worn out or surplus property, (iii) sales of accounts receivable and related
assets (including contract rights) to a Securitization Entity of the type
specified in the definition of "Permitted Securitization Transaction", and (iv)
sales of assets in a single transaction or a series of related transactions not
in excess of $50,000 in the aggregate.
"Assignment Agreement" means an Assignment Agreement in the form of
Exhibit E (with such amendments or modifications as may be approved by Global
Agent).
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"Authorized Officer" means, as applied to any Person, any individual
holding the position of chairman of the board (if an officer) or president or
one of its vice presidents (or the equivalent thereof), and such Person's chief
financial officer or treasurer.
"Bank of America" as defined in the preamble hereto.
"Bank One" as defined in the preamble hereto.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, for any day, a rate per annum (carried out to the
fifth decimal place) equal to the greater of (i) the Reference Rate in effect on
such day and (ii) Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. If for any reason US Facility Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including the
inability or failure of US Facility Agent to obtain quotations in accordance
with the terms hereof, the Base Rate shall be determined without regard to
clause (ii) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Base Rate
resulting due to a change in the Reference Rate or the Federal Funds Effective
Rate shall be effective on the effective day of such change in the Reference
Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loan" means a Loan for which the rate of interest is
determined by reference to the Base Rate.
"Beneficiary" means each Agent, each Issuing Bank, each Lender and
each Lender Counterparty.
"BNS" as defined in the preamble hereto.
"British Pound Sterling" or "(pound)" means the lawful currency of the
United Kingdom of Great Britain and Northern Ireland.
"Business Day" means (i) with respect to all notices, determinations,
fundings and payments in connection with US Facility Loans or not related to any
particular Facility, or with respect to all notices, determinations, fundings
and payments involving Global Agent, any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the States of New York or
California, or is a day on which banking institutions located in either such
state are authorized or required by law or other governmental action to close,
and (ii) with respect to all notices, determinations, fundings and payments in
connection with any Eurodollar Rate Loan or Multicurrency Facility Loan, any day
that is a Business Day described in clause (i) and that is also a day for
trading by and between banks in Dollars, in the case of Eurodollar Rate Loans,
or the applicable Multicurrency, in the case of
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Multicurrency Facility Loans, in the applicable interbank market, and which is a
Business Day in London, England and in Tokyo, Japan on which banks are generally
open for business.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Cash" means money, currency or a credit balance in any demand or
Deposit Account.
"Cash Equivalents" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, a rating of at least
A-1 from S&P or at least P-1 from ▇▇▇▇▇'▇; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of
the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
▇▇▇▇▇'▇; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia, so long as such commercial bank is
rated at least "B" by Fitch IBCA, and (v) foreign Investments that are of
similar type of, and that have a rating comparable to, any of the Investments
referred to in the preceding claims (i) through (iv).
"Certificate re Non-Bank Status" means a certificate in the form of
Exhibit F.
"Change of Control" means (i) a majority of the members of the Board of
Directors of Company shall not be Continuing Directors; or (ii) any Person
(other than any member of the Stryker Family Group), including a "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) which includes
such Person, shall purchase or otherwise acquire, directly or indirectly,
beneficial ownership of Securities of Company and, as a result of such purchase
or acquisition, any Person (together with its associates and Affiliates), shall
directly or indirectly beneficially own in the aggregate Securities representing
more than 35% of the combined voting power of Company's voting Securities.
"Class" means
(i) with respect to Lenders, each of the following classes of
Lenders: (a) Lenders having Tranche A Term Loan Exposure, (b) Lenders
having Tranche B Term Loan Exposure, (c) Lenders having Tranche C Term
Loan Exposure, (d) Lenders having US Facility Exposure (including US
Swing Line Lender), and (e) Lenders having Multicurrency Facility
Exposure (including Multicurrency Swing Line Lenders); and
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(ii) with respect to Loans, each of the following classes of
Loans: (a) Tranche A Term Loans, (b) Tranche B Term Loans, (c) Tranche
C Term Loans, (d) US Facility Loans (including US Swing Line Loans),
and (e) Multicurrency Facility Loans (including Multicurrency Swing
Line Loans).
"Closing Date" means the date on which the Term Loans were made, which
date was December 4, 1998.
"Closing Date Certificate" means a certificate in the form of
Exhibit G.
"Closing Date Mortgaged Property" as defined in Section 3.1(i).
"Co-Documentation Agent" as defined in the preamble hereto.
"Collateral" means, collectively, all of the real, personal and mixed
property (including capital stock) in which Liens are purported to be granted
pursuant to the Collateral Documents as security for the Obligations.
"Collateral Account" as defined in Section 2.3(d)(i).
"Collateral Documents" means the Pledge and Security Agreement, the
Mortgages, the Waiver and Consent Agreements, if any, and all other instruments,
documents and agreements delivered by any Credit Party pursuant to this
Agreement or any of the other Credit Documents in order to grant to Global
Agent, on behalf of Lenders, a Lien on any real, personal or mixed property of
that Credit Party as security for the Obligations.
"commencement of the third stage of EMU" means the date of the
commencement of the third stage of EMU (expected to be January 1, 1999) or the
date on which circumstances arise which (in the opinion of Multicurrency
Facility Agent) have substantially the same effect and result in substantially
the same consequences as commencement of the third stage of EMU as contemplated
by the Treaty on European Union.
"Company" as defined in the preamble hereto.
"Compliance Certificate" means a certificate in the form of Exhibit C.
"Conforming Leasehold Interest" means any Recorded Leasehold Interest
as to which the lessor has agreed in writing for the benefit of Global Agent
(which writing has been delivered to Global Agent), whether under the terms of
the applicable lease, under the terms of a Landlord Consent and Estoppel, or
otherwise, to the matters described in the definition of "Landlord Consent and
Estoppel," which interest, if a subleasehold or sub-subleasehold interest, is
not subject to any contrary restrictions contained in a superior lease or
sublease.
"Consolidated Adjusted EBITDA" means, for any period, an amount equal
to
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(i) the sum of the amounts for such period of (a) Consolidated
Net Income, (b) Consolidated Interest Expense, (c) provisions for taxes
based on income (which shall be deemed to include the State of Michigan
unitary tax and similar taxes substantially based on income), (d) total
depreciation expense, (e) total amortization expense, (f) the following
charges incurred between the Closing Date and December 31, 1999 to the
extent such charges reduced Consolidated Net Income during such period
and without duplication: (1) restructuring charges related to Company
and its Subsidiaries, excluding the Target, not to exceed $65,000,000,
(2) restructuring charges related to the Target not to exceed
$170,000,000, and (3) Transaction Costs not to exceed $25,000,000, and
(g) other non-cash items (including, without limitation, non-cash
charges relating to write downs of purchased Target research and
development and reductions in Consolidated Net Income from the Closing
Date through December 31, 1999 as a result of a write-up of Target
inventory) reducing Consolidated Net Income (excluding any such
non-cash item to the extent that it represents an accrual or reserve
for potential cash items in any future period or amortization of a
prepaid cash item that was paid in a prior period); minus
(ii) other non-cash items increasing Consolidated Net Income
for such period (excluding any such non-cash item to the extent it
represents the reversal of an accrual or reserve for potential cash
items in any prior period).
"Consolidated Assets" means, as at any date of determination, the total
assets of Company and its Subsidiaries on a consolidated basis in conformity
with GAAP.
"Consolidated Capital Expenditures" means, for any period, for Company
and its Subsidiaries on a consolidated basis, (i) the aggregate of all
expenditures incurred by such person during such period that, in accordance with
GAAP, are or should be included in "purchase of property and equipment",
"purchase of location contract rights" or similar items reflected in the
statement of cash flows of such Person, and (ii) to the extent not covered by
clause (i) above, the aggregate of all expenditures by such Person to acquire by
purchase or otherwise the business or fixed assets of, or stock or other
evidence of beneficial ownership of, any other Person (other than Company or any
Person that is a Wholly-Owned Subsidiary thereof prior to such acquisition);
provided, Consolidated Capital Expenditures shall not include expenditures of
(a) proceeds from Assets Sales, to the extent such expenditures are used to
acquire properties or assets used or useful in the business of Company and/or
its Subsidiaries within 12 months of receipt of such proceeds (b) expenditures
of proceeds of insurance settlements, condemnation awards and other settlements
in respect of lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made to replace or repair such
lost, destroyed, damaged or condemned assets, equipment or other property or
otherwise to acquire assets or properties useful in the business of Company and
its Subsidiaries within 12 months of receipt of such proceeds, (c) Permitted
Acquisitions and (d) Investments made pursuant to Section 6.5.
"Consolidated Cash Interest Expense" means, for any period,
Consolidated Interest Expense for such period excluding, however, any interest
expense not payable in Cash (including amortization of discount and amortization
of debt issuance costs).
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"Consolidated Excess Cash Flow" means, for any period, an amount (if
positive) equal to
(i) the amount disclosed in Company's financial statements
for such period in conformity with GAAP that may be properly
classified as net cash provided by operating activities; minus
(ii) the sum, without duplication, of (a) to the extent not
otherwise deducted in determining net cash provided by operating
activities, Consolidated Capital Expenditures, Permitted Acquisitions
and Investments permitted pursuant to Section 6.5 (net, in each case,
of any proceeds of any related financing or equity offering with
respect to such transaction), (b) voluntary and scheduled repayments of
Consolidated Total Debt (excluding repayments of Facility Loans except
to the extent the Facility Commitments are permanently reduced in
connection with such repayments), (c) Cash common dividends declared by
Company pursuant to Section 6.4(a)(i) and (d) Ireland/Puerto Rico
Consolidated Excess Cash Flow for such period; and
(iii) plus or minus, as the case may be, the amount disclosed
in Company's financial statements for such period in conformity with
GAAP that may be classified as the effect of exchange rate changes on
Cash and Cash Equivalents.
"Consolidated Fixed Charges" means, for any period, the sum (without
duplication) of the amounts for such period of (i) Consolidated Interest
Expense, (ii) Consolidated Capital Expenditures and (iii) scheduled repayments
for such period of principal on outstanding Indebtedness for such period and
scheduled reductions in commitments thereof for such period, all of the
foregoing as determined on a consolidated basis for Company and its Subsidiaries
in conformity with GAAP.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to any Permitted Securitization Transaction, letters
of credit and bankers' acceptance financing and net costs under Interest Rate
Agreements, but excluding, however, any amounts referred to in Section 2.10
payable on or before the Closing Date.
"Consolidated Net Income" means, for any period, (i) the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP, less
(ii) (a) the income (or loss) of any Person (other than a Subsidiary of Company)
in which any other Person (other than Company or any of its Subsidiaries) has a
joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Company or any of its Subsidiaries by such Person
during such period, (b) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of Company or is merged into or consolidated with
Company or any of its Subsidiaries or that Person's assets are acquired by
Company or any of its Subsidiaries, (c) the income of any Subsidiary of Company
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not
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at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (d) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan, and
(e) (to the extent not included in clauses (a) through (d) above) any net
extraordinary gains or net non-Cash extraordinary losses.
"Consolidated Net Worth" means, as at any date of determination, the
net worth of Company and its Subsidiaries on a consolidated basis exclusive of
foreign translation adjustments determined in conformity with GAAP.
"Consolidated Total Debt" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP;
including, without limitation, any outstanding Indebtedness of any
Securitization Entity.
"Continuing Directors" means individuals who at the beginning of any
period of two consecutive calendar years constituted the board of directors of
Company, together with any new directors whose election by such board of
directors or whose nomination for election was approved by a vote of at least
two-thirds of the members of such board of directors then still in office who
either were members of such board of directors at the beginning of such period
or whose election or nomination for election was previously so approved.
"Contractual Obligation" means, as applied to any Person, any provision
of any Security issued by that Person or of any material indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
"Conversion/Continuation Date" means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"Conversion/Continuation Notice" means a notice in the form of
Exhibit A-2.
"Counterpart Agreement" means a counterpart agreement in the form of
Exhibit H.
"Contributing Guarantors" as defined in Section 7.2.
"Credit Date" means the date of a Credit Extension.
"Credit Documents" means this Agreement, the Notes, if any, the
Collateral Documents, the Letters of Credit (and any other documents or
certificates executed by Company in favor of Issuing Bank relating to the
Letters of Credit), and all other documents, instruments or agreements executed
and delivered by a Credit Party for the benefit of Agents, any Issuing Bank or
any Lender in connection herewith.
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"Credit Extension" means the making of a Loan or the issuing of a
Letter of Credit.
"Credit Party" means each Person (other than any Agent, any Issuing
Bank or any Lender or any other representative thereof) from time to time party
to a Credit Document.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement, in each case for the purpose of hedging the foreign
currency risk associated with Company's operations, to which Company or any of
its Subsidiaries is a party.
"Default" means a condition or event that, after notice or lapse of
time or both, would constitute an Event of Default.
"Deficiency Advance" as defined in Section 2.4(b).
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Dollar" and the sign "$" mean the lawful money of the United States
of America.
"Dollar Equivalent" means, with respect to a specified amount of
Multicurrency, the amount of Dollars into which such amount of such
Multicurrency would be converted, based on the applicable Spot Rate of Exchange.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
the United States of America, any state thereof or the District of Columbia.
"ECU" means a basket of currencies of member states of the European
Community.
"Eligible Assignee" means, (i) with respect to any interest in any Term
Loan (a) any Lender, any Affiliate of any Lender and, with respect to any Lender
that is an investment fund that invests in commercial loans, any other
investment fund that invests in commercial loans and that is managed or advised
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor, and (b) any commercial bank, savings and loan association or
savings bank or any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses, including insurance companies, mutual funds and lease
financing companies; and (ii) with respect to any interest in the Multicurrency
Facility or (unless otherwise agreed to by Company and Global Agent) the US
Facility, in addition to the criteria set forth in the foregoing clause (i), any
such Eligible Assignee shall be a Person which has and maintains a rating of BBB
or higher from S&P and a rating of Baa2 or higher from ▇▇▇▇▇'▇ and which,
through its applicable Lending Office, is capable of lending the applicable
Multicurrency to Company without the imposition of any withholding or similar
taxes, as determined by Company; provided, no Affiliate of Company shall be an
Eligible Assignee.
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"Employee Benefit Plan" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is or was maintained or contributed to by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"EMU Legislation" means legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the euro or otherwise), being in part the
implementation of the third stage of EMU.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"Environmental Laws" means any and all foreign or domestic, federal or
state (or any subdivision of either of them), statutes, ordinances, orders,
rules, regulations, or Governmental Authorizations relating to (i) any Hazardous
Materials Activity; (ii) the generation, use, storage, transportation or
disposal of Hazardous Materials; or (iii) occupational safety and health, land
use or the protection of human health or welfare, in any manner applicable to
Company or any of its Subsidiaries or any Manufacturing Facility.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member. Any former ERISA Affiliate of Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet
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19
the minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section
412(d) of the Internal Revenue Code) or the failure to make by its due date a
required installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in Section 4041(c) of ERISA; (iv)
the withdrawal by Company, any of its Subsidiaries or any of their respective
ERISA Affiliates from any Pension Plan with two or more contributing sponsors or
the termination of any such Pension Plan resulting in liability pursuant to
Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
would constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on Company, any of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefor, or the
receipt by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could give rise to the imposition on
Company, any of its Subsidiaries or any of their respective ERISA Affiliates of
fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071
of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a
material claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
Company, any of its Subsidiaries or any of their respective ERISA Affiliates in
connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any other Employee
Benefit Plan intended to be qualified under Section 401(a) of the Internal
Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or
the failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue Code; or
(xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan;
provided, none of the foregoing events shall constitute an "ERISA Event" unless
it results in liability of Company, any of its Subsidiaries, or any of their
respective ERISA Affiliates in excess of $5,000,000.
"euro" means the single currency of Participating Member States of the
European Union.
"Eurodollar Rate" means, for any Interest Rate Determination Date with
respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum
obtained by dividing (i) (a) the rate per annum (carried out to the fifth
decimal place) equal to the rate determined by US Facility Agent to be the
offered rate which appears on the page of the Telerate Screen which displays an
average British Bankers Association Interest Settlement Rate (such page
currently being page number 3740 or 3750, as applicable) for deposits (for
delivery on the first day of such period) with a term
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equivalent to such period in Dollars, determined as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, or (b) in the
event the rate referenced in the preceding clause (a) does not appear on such
page or service or if such page or service shall cease to be available, the rate
per annum (carried out to the fifth decimal place) equal to the rate determined
by US Facility Agent to be the offered rate on such other page or other service
which displays an average British Bankers Association Interest Settlement Rate
for deposits (for delivery on the first day of such period) with a term
equivalent to such period in Dollars, determined as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, or (c) in the
event the rates referenced in the preceding clauses (a) and (b) are not
available, the rate per annum equal to the offered quotation rate (carried out
to the fifth decimal place) to first class banks in the London interbank market
by US Facility Agent for deposits (for delivery on the first day of the relevant
period) in Dollars of amounts in Same Day Funds comparable to the principal
amount of the US Facility Loan of US Facility Agent for which the Eurodollar
Rate is then being determined with maturities comparable to such period as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, by (ii) amount equal to (a) one minus (b) the Applicable
Reserve Requirement.
"Eurodollar Rate Loan" means a Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"euro unit" means the currency unit of the euro.
"Event of Default" means each of the events set forth in Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Existing Credit Agreement" as defined in the recitals hereto.
"Facility" means the US Facility or the Multicurrency Facility.
"Facility Agent" means US Facility Agent or Multicurrency Facility
Agent; provided, with respect to the Term Loans, the term "applicable Facility
Agent" shall mean US Facility Agent.
"Facility Commitment" means a US Facility Commitment or a
Multicurrency Facility Commitment.
"Facility Commitment Termination Date" means the US Facility
Commitment Termination Date or the Multicurrency Facility Commitment
Termination Date.
"Facility Lender" means a US Facility Lender or a Multicurrency
Facility Lender.
"Facility Loan" means a US Facility Loan or a Multicurrency Facility
Loan.
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"Facility Note" means a US Facility Note or a Multicurrency Facility
Note.
"Fair Share Contribution Amount" as defined in Section 7.2.
"Fair Share" as defined in Section 7.2.
"Fair Share Shortfall" as defined in Section 7.2.
"Federal Funds Effective Rate" means for any day, the rate per annum
(carried out to the fifth decimal place) 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, (i) 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 (ii) 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 charged to US Facility Agent (in its
individual capacity) on such day on such transactions as determined by US
Facility Agent.
"Financial Officer Certification" means, with respect to any financial
statement for which such certification is required, the certification of the
chief financial officer, treasurer, vice-president of finance or such other
executive officer of Company designated by the chief financial officer of
Company, that such financial statement fairly presents, in all material
respects, the financial condition of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end
adjustments, as applicable.
"Financial Plan" as defined in Section 5.1(i).
"First Priority" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien is
the only Lien to which such Collateral is subject, other than Permitted Liens.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year.
"Fixed Charge Coverage Ratio" means the ratio as of the last day of any
Fiscal Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal Quarter
Period then ended, to (ii) Consolidated Fixed Charges for such four-Fiscal
Quarter Period, in each case as set forth in the most recent Compliance
Certificate delivered by Company to Global Agent pursuant to Section 5.1(c);
provided, for purposes of determining the Fixed Charge Coverage Ratio as of any
date prior to the first anniversary of the Closing Date, Consolidated Adjusted
EBITDA and Consolidated Fixed Charges shall be measured from January 1, 1999 to
the date of such determination.
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"Fixed Rate Loan" means a Eurodollar Rate Loan or a Multicurrency
Facility Loan.
"Flood Hazard Property" means a Mortgaged Property located in an area
designated by the Federal Emergency Management Agency as having special flood or
mud slide hazards.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"French Franc" or "FFr" means the lawful currency of the Republic of
France.
"Funding Bank" means, for any Loan denominated in a Multicurrency, any
banking institution that (i) is capable of funding a Loan in the applicable
Multicurrency, (ii) is located in the jurisdiction of issuance of such
Multicurrency, and (iii) is approved by Multicurrency Facility Agent.
"Funding Notice" means a notice in the form of Exhibit A-1; provided,
for any Loan made on the Closing Date, the Funding Notice with respect thereto
shall be part of the Closing Date Certificate.
"Funding Guarantor" as defined in Section 7.2.
"GAAP" means, subject to the limitations on the application thereof set
forth in Section 1.2, generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination.
"German ▇▇▇▇" or "DM" means the lawful currency of the Federal
Republic of Germany.
"Global Agent" as defined in the preamble hereto.
"Governmental Acts" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority.
"Governmental Authority" means any federal, state, municipal, national
or other governmen tal department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign
entity or government.
"Governmental Authorization" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"GSCP" as defined in the preamble hereto.
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"Guarantor" means (i) each Domestic Subsidiary of Company (other than
any Securitization Entity) with respect to the Obligations of Company, and (ii)
Company with respect to any Obligation of any Multicurrency Swing Line
Subsidiary.
"Guaranty" means the guaranty of each Guarantor set forth in Section 7.
"Hazardous Materials" means any chemical, material or substance,
exposure to which is prohibited or regulated by any Environmental Laws.
"Hazardous Materials Activity" means any past or current activity,
event or occurrence involving any Hazardous Materials, including the use,
manufacture, possession, storage, holding, presence, existence, location,
Release, threatened Release, discharge, placement, generation, transportation,
processing, construction, treatment, abatement, removal, remediation, disposal,
disposition or handling of any Hazardous Materials, and any corrective action or
response action with respect to any of the foregoing.
"Hedge Agreement" means an Interest Rate Agreement or a Currency
Agreement entered into in the ordinary course of Company's or any of its
Subsidiaries' businesses or as otherwise required hereunder.
"Highest Lawful Rate" means the maximum lawful interest rate, if any,
that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to any Lender which are presently in effect
or, to the extent allowed by law, under such applicable laws which may hereafter
be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"Historical Financial Statements" means as of the Closing Date, (i) the
audited financial statements of Company and its Subsidiaries, for the
immediately preceding three Fiscal Years, consisting of balance sheets and the
related consolidated statements of income, stockholders' equity and cash flows
for such Fiscal Years, (ii) the unaudited financial statements of Company and
its Subsidiaries as at the most recently ended Fiscal Quarter, consisting of a
balance sheet and the related consolidated statements of income, stockholders'
equity and cash flows for the three-, six- or nine-month period, as applicable,
ending on such date, (iii) the audited financial statements of the Target and
its Subsidiaries, for the immediately preceding three Fiscal Years, consisting
of balance sheets and the related consolidated statements of income,
stockholders' equity and cash flows for such Fiscal Years, and (iv) the
unaudited financial statements of Target and its Subsidiaries as at the most
recently ended Fiscal Quarter, consisting of a balance sheet and the related
consolidated statements of income and stockholders' equity for the three-, six-
or nine-month period, as applicable, ending on such date, and, in the case of
clauses (i) and (ii), together with a Financial Officer Certification.
"Indebtedness", as applied to any Person, means, without duplication,
(i) all indebtedness for borrowed money; (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP; (iii) notes payable and drafts
accepted representing extensions of credit whether or not representing
obligations for borrowed
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money; (iv) any obligation owed for all or any part of the deferred purchase
price of property or services (excluding any such obligations incurred under
ERISA), which purchase price is (a) due more than six months from the date of
incurrence of the obligation in respect thereof or (b) evidenced by a note or
similar written instrument; (v) all indebtedness secured by any Lien on any
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person; (vi) the face amount of any letter of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings; (vii) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the obligation of another; (viii) any obligation of such
Person the primary purpose or intent of which is to provide assurance to an
obligee that the obligation of the obligor thereof will be paid or discharged,
or any agreement relating thereto will be complied with, or the holders thereof
will be protected (in whole or in part) against loss in respect thereof; (ix)
any liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (b) to maintain the solvency
or any balance sheet item, level of income or financial condition of another if,
in the case of any agreement described under subclauses (a) or (b) of this
clause (ix), the primary purpose or intent thereof is as described in clause
(viii) above; and (x) Obligations under Hedge Agreements; provided, in no event
shall Obligations under Hedge Agreements be deemed "Indebtedness" for any
purpose of the definitions of the Leverage Ratio, Fixed Charge Coverage Ratio or
any other purpose under Section 6.6. For purposes of calculating the amount of
Indebtedness of a Securitization Entity outstanding as of any date, the face or
notional amount of any interest in receivables that is outstanding as of such
date shall be deemed to be Indebtedness but any such interests held by
Affiliates of such Securitization Entity shall be excluded for purposes of such
calculation.
"Indemnified Liabilities" means, collectively, any and all liabilities,
obligations, losses, damages (including natural resource damages), penalties,
actions, judgments, suits, claims (including Environmental Claims), costs
(including the costs of any investigation, study, sampling, testing, abatement,
cleanup, removal, remediation or other response action necessary to remove,
remediate, clean up or ▇▇▇▇▇ any Hazardous Materials Activity), expenses and
disbursements of any kind or nature whatsoever (including the reasonable fees
and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations
(including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Credit Documents or the transactions contemplated hereby or thereby
(including Lenders' agreement to make Credit Extensions or the use or intended
use of the proceeds thereof or the use or intended use of any thereof, or any
enforcement of any of the Credit Documents (including any sale of, collection
from, or other realization upon any of the Collateral or
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the enforcement of the Guaranty)); (ii) the statements contained in the
commitment letter delivered by any Lender to Company with respect thereto; or
(iii) any Environmental Claim or any Hazardous Materials Activity relating to or
arising from, directly or indirectly, any past or present activity, operation,
land ownership, or practice of Company or any of its Subsidiaries.
"Indemnitee" as defined in Section 10.3.
"Initial Base Rate Margin" means the higher of (i) 0.0%, and (ii) a
margin equal to the Eurodollar Rate for a one month Interest Period as of the
Closing Date plus the Applicable Margin for Eurodollar Rate Loans less the Base
Rate (carried out to the fifth decimal place).
"Installment" as defined in Section 2.11(a).
"Installment Date" as defined in Section 2.11(a).
"Intellectual Property" means "Intellectual Property" as such term is
defined in the Pledge and Security Agreement.
"Intellectual Property Collateral" means as all of the Intellectual
Property subject to the Lien of the Pledge and Security Agreement.
"Interest Payment Date" means with respect to (i) any Base Rate Loan or
any Swing Line Loan for which an Interest Period is not in effect, each March
15, June 15, September 15 and December 15 of each year, commencing on the first
such date to occur after the Closing Date; and (ii) any Eurodollar Rate Loan or
any Multicurrency Facility Loan for which an Interest Period is in effect, the
last day of each Interest Period applicable to such Loan; provided, in the case
of each Interest Period of longer than three months "Interest Payment Date"
shall also include each date that is three months, or an integral multiple
thereof, after the commencement of such Interest Period.
"Interest Period" means, in connection with a Fixed Rate Loan, an
interest period of one-, two-, three- or six-months, as selected by Company in
the applicable Notice, or of 9- or 12-months, if agreed to by all applicable
Lenders, (i) initially, commencing on the Credit Date or Conversion/Continuation
Date thereof, as the case may be; and (ii) thereafter, commencing on the day on
which the immediately preceding Interest Period expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day unless no
further Business Day occurs in such month, in which case such Interest Period
shall expire on the immediately preceding Business Day; (b) any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clauses (c) through (f) of this
definition, end on the last Business Day of a calendar month; (c) no Interest
Period with respect to any portion of any Class of Term Loans shall extend
beyond such Class's Term Loan Maturity Date; (d) no Interest Period with respect
to any portion of any Facility Loans shall extend beyond the applicable Facility
Commitment Termination Date; (e) no Interest Period with respect to any portion
of the Multicurrency Facility Loans shall extend beyond a date on which
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Company is required to make a scheduled reduction of Multicurrency Facility
Commitments unless the aggregate principal amount of Multicurrency Facility
Loans with Interest Periods expiring on or before such date of reduction equals
or exceeds the amount required to be paid with respect to the Multicurrency
Facility Commitments on such date; and (f) no Interest Period with respect to
any portion of a Class of Term Loans shall extend beyond a date on which Company
is required to make a scheduled payment of principal of such Class of Term
Loans, unless the sum of (1) the aggregate principal amount of such Class of
Term Loans that are Base Rate Loans, plus (2) the aggregate principal amount of
such Class of Term Loans that are Eurodollar Rate Loans with Interest Periods
expiring on or before such date equals or exceeds the principal amount required
to be paid on such Class of Term Loans on such date.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement, in each case for the purpose of hedging interest rate
risks associated with Company's operations to which Company or any of its
Subsidiaries is a party.
"Interest Rate Determination Date" means, with respect to any Interest
Period, the date that is two Business Days prior to the first day of such
Interest Period; provided, with respect to any Multicurrency Facility Loan
denominated in British Pounds Sterling, the term "Interest Rate Determination
Date" means the first day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any of the Securities of any other Person (other than a
Wholly-Owned Subsidiary); (ii) any direct or indirect redemption, retirement,
purchase or other acquisition for value, by any Subsidiary of Company from any
Person (other than Company or any Wholly-Owned Subsidiary), of any equity
Securities of such Subsidiary; (iii) any direct or indirect loan, advance (other
than advances to employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business) or
capital contribution by Company or any of its Subsidiaries to any other Person
(other than Company or any Wholly-Owned Subsidiary), including all indebtedness
and accounts receivable from that other Person that are not current assets or
did not arise from sales to that other Person in the ordinary course of
business; and (iv) Hedge Agreements. The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto, without
any adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment.
"Investment Property Collateral" means "Investment Property" as such
term is defined in the Pledge and Security Agreement.
"Ireland/Puerto Rico Consolidated Excess Cash Flow" means, for any
period, an amount (if positive) equal to the Consolidated Excess Cash Flow
(determined in accordance with the definition of "Consolidated Excess Cash
Flow") attributable to and from Company's and/or its Subsidiaries'
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operations in Ireland and Puerto Rico, which operations are restricted from
paying or otherwise distributing cash outside of Ireland or Puerto Rico, as the
case may be, pursuant to law or regulation, or on account of an agreement
between Company and/or its Subsidiaries and the applicable Irish or Puerto Rican
Governmental Authority, as the case may be, which agreement has been entered
into in exchange for the grant of certain benefits to Company and/or such
Subsidiaries by such Governmental Authority.
"Issuance Notice" means a notice in the form of Exhibit A-3.
"Issuing Bank" means US Issuing Bank or a Multicurrency Issuing Bank.
"Italian Lira" or "Lira" means the lawful currency of the Government
of Italy.
"Japanese Yen" or "(Y)" means the lawful currency of the Government
of Japan.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided, in
no event shall any corporate Subsidiary of any Person be considered to be a
Joint Venture to which such Person is a party.
"Judgment Currency" as defined in Section 10.18.
"Landlord Consent and Estoppel" means, with respect to any Leasehold
Property, a letter, certificate or other instrument in writing from the lessor
under the related lease, satisfactory in form and substance to Global Agent,
pursuant to which such lessor agrees, for the benefit of Global Agent, (i) that
without any further consent of such lessor or any further action on the part of
the Credit Party holding such Leasehold Property, such Leasehold Property may be
encumbered pursuant to a Mortgage and may be assigned to the purchaser at a
foreclosure sale or in a transfer in lieu of such a sale (and to a subsequent
third party assignee if Global Agent, any Lender, or an Affiliate of either so
acquires such Leasehold Property), (ii) that such lessor shall not terminate
such lease as a result of a default by such Credit Party thereunder without
first giving Global Agent notice of such default and at least thirty (30) days
(or, if such default cannot reasonably be cured by Global Agent within such
period, such longer period as may reasonably be required) to cure such default,
(iii) to the matters contained in a Waiver and Consent Agreement, and (iv) to
such other matters relating to such Leasehold Property as Global Agent may
reasonably request.
"Leasehold Property" means any leasehold interest of any Credit Party
as lessee under any lease of real property, other than any such leasehold
interest designated from time to time by Global Agent in its sole discretion as
not being required to be included in the Collateral.
"Lender" means each financial institution listed on the signature pages
hereto as a Lender, together with each such institution's successors and
permitted assigns; provided, the term "Lenders" shall also include each Swing
Line Lender and each Issuing Bank unless the context otherwise requires.
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"Lender Counterparty" means each Lender or any Affiliate thereof
counterparty to a Hedge Agreement.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender (or of an Affiliate of such Lender) designated for such
Type of such Loan as such Lender may from time to time specify to the applicable
Facility Agent and Company by written notice in accordance with the terms hereof
as the office by which its Loans of such Type are to be made and maintained.
"Letter of Credit" means a US Letter of Credit or a Multicurrency
Letter of Credit.
"Leverage Ratio" means the ratio of (i) Consolidated Total Debt as of
the last day of any Fiscal Quarter to (ii) Consolidated Adjusted EBITDA for the
four-Fiscal Quarter period then ended, in each case as set forth in the most
recent Compliance Certificate delivered by Company to Global Agent pursuant to
Section 5.1(c).
"LIBOR" means, for any Interest Rate Determination Date with respect to
an Interest Period for a Multicurrency Facility Loan:
(i) the rate per annum (carried out to the fifth decimal
place) equal to the rate determined by Multicurrency Facility Agent to
be the offered rate which appears on the page of the Telerate Screen
which displays an average British Bankers Association Interest
Settlement Rate (such page currently being page number 3740 or 3750,
depending on the applicable Multicurrency) for deposits (for delivery
on the first day of such period) with a term equivalent to such period
in the applicable Multicurrency, determined as of approxi mately 11:00
a.m. (London, England time) on such Interest Rate Determination Date,
or
(ii) in the event the rate referenced in the preceding clause
(i) does not appear on such page or service or if such page or service
shall cease to be available, the rate per annum (carried to the fifth
decimal place) equal to the rate determined by Multicurrency Facility
Agent to be the offered rate on such other page or other service which
displays an average British Bankers Association Interest Settlement
Rate for deposits (for delivery on the first day of such period) with a
term equivalent to such period in such Multicurrency, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or
(iii) in the event the rates referenced in the preceding
clauses (i) and (ii) are not available, the rate per annum equal to the
offered quotation rate (carried out to the fifth decimal place) to
first class banks in the London interbank market by Multicurrency
Facility Agent for deposits (for delivery on the first day of the
relevant period) in such Multicurrency of amounts in Same Day Funds
comparable to the principal amount of the Multicurrency Facility Loan
of Multicurrency Facility Agent for which LIBOR is then being
determined with maturities comparable to such period as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date.
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"Lien" means any lien, mortgage, pledge, assignment, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"Loan" means a Tranche A Term Loan, a Tranche B Term Loan, a Tranche C
Term Loan, a Facility Loan or a Swing Line Loan.
"Manufacturing Facilities" means (i) any of the current Target
manufacturing facilities located in Rutherford, New Jersey; Limerick, Ireland;
Geneva, Switzerland; Herouville, France; and, Stetten, ▇▇▇▇ and Freiberg,
Germany, (ii) any of the current Company or Subsidiary manufacturing facilities
located in Kalamazoo, Michigan; Allendale, New Jersey; Lebanon, New Hampshire;
Hopkinton, Massachusetts; Santa Clara, California; ▇▇▇▇▇▇, Puerto Rico; Selzach,
Switzerland; and Cestas, France; and (iii) any other real property (including
all buildings, fixtures or other improvements located thereon) owned, leased,
operated or used, in each case for manufacturing by Company's or any of its
Subsidiaries', including Target and its Subsidiaries, or any of their respective
predecessors or Affiliates.
"Margin Stock" as defined in Regulation U of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Material Adverse Effect" means a material adverse effect upon (i) the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Company and its Subsidiaries, including Target and its
Subsidiaries, on a combined basis and after giving effect to the Acquisition,
(ii) the ability of any of the Credit Parties to perform their obligations and
pay all amounts due hereunder or (iii) the ability of any Agent or any Lender to
enforce any of their rights or to collect any of the Obligations then due and
payable.
"Material Contract" means any contract or other arrangement to which
Company or any of its Subsidiaries is a party (other than the Credit Documents)
for which breach, nonperformance, cancellation or failure to renew could
reasonably be expected to have a Material Adverse Effect.
"Material Real Estate Asset" means a Real Estate Asset having a fair
market value in excess of $5,000,000; provided, notwithstanding anything herein
or in any other Credit Document to the contrary, any Leasehold Property acquired
in substitution of Company's current Leasehold Property in Puerto Rico shall
constitute a Material Real Estate Asset for all purposes hereof.
"Moody's" means ▇▇▇▇▇'▇ Investor Services, Inc.
"Mortgage" means a Mortgage in the form of Exhibit J, as it may be
amended, supplemented or otherwise modified from time to time.
"Multicurrency" means any of (i) Dollars, (ii) British Pounds Sterling,
(iii) French Francs, (iv) German Marks, (v) Italian Lira, (vi) Swiss Francs,
(vii) Euros, (viii) ECUs, (ix) Japanese Yen, and
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(x) any other currency that is (a) freely available in the international bank
market, (b) freely transferable and freely convertible into Dollars, (c) readily
utilized for the settlement of private international debt transactions, and (d)
is agreed in writing to be added to the definition of "Multicurrency" by each
Multicurrency Lender and the applicable Multicurrency Swing Line Lender.
"Multicurrency Equivalent" means, with respect to a specified amount of
Dollars, the amount of Multicurrency into which such amount of Dollars would be
converted, based on the applicable Spot Rate of Exchange.
"Multicurrency Facility" means the facility described in Sections
2.2(c) and 2.2(d) providing for Loans to Company by Multicurrency Facility
Lenders in the aggregate principal amount of such Lenders' Multicurrency
Facility Commitments.
"Multicurrency Facility Agent" as defined in the preamble hereto.
"Multicurrency Facility Alternative Rate" means such rate of interest
per annum determined by Multicurrency Facility Agent and Company as an
alternative basis (i) for determining the rates of interest from time to time
applicable to Loans under the Multicurrency Facility and/or (ii) upon which
Loans may be maintained under the Multicurrency Facility, in each case pursuant
to Section 2.21, which rate of interest shall be determined within thirty (30)
days of notification to Company in accordance with the provisions of Section
2.21. If no such alternative basis is agreed upon by Multicurrency Facility
Agent and Company, each Multicurrency Facility Lender shall certify a reasonable
alternative basis for maintaining Loans under the Multicurrency Facility that
reflects such Multicurrency Facility Lender's cost of funds (a "substitute
basis"), which substitute basis may include (without limitation) alternative
Interest Periods, alternative currencies or alternative rates of interest.
"Multicurrency Facility Alternative Rate Loan" means a Loan for which
the rate of interest is determined by reference to the Multicurrency Facility
Alternative Rate, solely for purposes of Section 2.21.
"Multicurrency Facility Commitment" means the commitment of a Lender to
make or otherwise fund any Credit Extension (other than any Term Loan, US
Facility Loan or US Letter of Credit). The amount of each Lender's Multicurrency
Facility Commitment, if any, as of the Amendment and Restatement Effective Date
is set forth on Appendix B and shall be subject to any adjustment or reduction
pursuant to the terms and conditions hereof.
"Multicurrency Facility Commitment Period" means the period from the
Closing Date to but excluding the Multicurrency Facility Commitment Termination
Date.
"Multicurrency Facility Commitment Termination Date" means the earliest
to occur of (i) December 31, 1998 if the Term Loans are not made on or before
that date; (ii) the sixth anniversary of the Closing Date, (iii) the date the
Multicurrency Facility Commitments are permanently reduced
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to zero pursuant to Section 2.11(b), 2.12(b) or 2.13, and (iv) the date of the
termination of the Multicurrency Facility Commitments pursuant to Section 8.1.
"Multicurrency Facility Exposure" means, with respect to any Lender
as of any date of determination:
(i) prior to the termination of the Multicurrency Facility
Commitments, such Lender's Multicurrency Facility Commitment; and
(ii) after the termination of the Multicurrency Facility
Commitments, the sum of (a) the Dollar Equivalent of the aggregate
outstanding principal amount of the Multicurrency Facility Loans of
such Lender, (b) in the case of a Multicurrency Issuing Bank, the
Dollar Equivalent of the aggregate Multicurrency Letter of Credit Usage
in respect of all Multicurrency Letters of Credit issued thereby (net
of the Dollar Equivalent of any participations therein by any other
Lenders or any unreimbursed drawing thereunder), (c) the Dollar
Equivalent of the aggregate amount of all participations purchased by
such Lender in any outstanding Multicurrency Letters of Credit or any
unreimbursed drawing under any Multicurrency Letter of Credit, (d) in
the case of Multicurrency Swing Line Lender, the Dollar Equivalent of
the aggregate outstanding principal amount of all Multicurrency Swing
Line Loans (net of any participation therein purchased by any other
Lenders), and (e) the Dollar Equivalent of the aggregate amount of all
participations purchased by such Lender in any outstanding
Multicurrency Swing Line Loans.
"Multicurrency Facility Lender" means a Lender having Multicurrency
Facility Exposure.
"Multicurrency Facility Loan" means a loan made by a Lender to Company
pursuant to Section 2.2(c); provided, such term shall include a Multicurrency
Swing Line Loan, unless the context otherwise requires.
"Multicurrency Facility Mandatory Cost" means a rate per annum
determined by Multicurrency Reference Bank and notified thereby to Multicurrency
Facility Agent calculated in accordance with the following formula:
MFMC = BY + S(Y-Z) + (F x 0.01) / 100 - (B+S)
where on the day of application of the formula:
"MFMC" means Multicurrency Facility Mandatory Cost, per
annum;
"B" means the percentage of Multicurrency Reference Bank's
Eligible Liabilities (in excess of any stated minimum) by
reference to which the Bank of England and/or the
Financial Services Authority requires Multicurrency
Reference Bank to hold on a non-interest bearing deposit
account in accordance with its Cash ratio requirements;
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"Y" means the percentage rate per annum at which
sterling deposits are offered by Multicurrency
Reference Bank to leading banks in the London
interbank market at or about 11:00 a.m. (London,
England time) on that day for the relevant period;
"F" means the rate of charge payable by Multicurrency
Reference Bank to the Financial Services Authority
under paragraph 2.02 or 2.03 (as appropriate) of the
Fees Regulations (but where for this purpose the
figure at paragraph 2.02b or 2.03b shall be deemed to
be zero) and expressed in British Pounds Sterling per
(pound)1,000,000 of the Fee Base of Multicurrency
Reference Bank;
"S" means the percentage of Multicurrency Reference
Bank's Eligible Liabilities which the Bank of England
(or other relevant United Kingdom governmental
authority or agency) requires Multicurrency Reference
Bank to place as a Special Deposit; and
"Z" means the interest rate per annum payable by the
Bank of England to Multicurrency Reference Bank on
Special Deposits.
(i) For the purposes of this definition (a) "Eligible
Liabilities" and "Special Deposits" shall have the meanings given to
them at the time of application of the above formula under or pursuant
to the Bank of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or by the Bank of England (as
appropriate); (b) "Fee Base" has the meaning given to it in the Fees
Regulations; and (c) "Fees Regulations" means (1) prior to March 31,
1999 the Banking Supervision (Fees) Regulations 1998; and (2) on or
after March 31, 1999, any regulations governing the payment of fees for
banking supervision.
(ii) In the application of the above formula, B, Y, S, and Z
are included in the formula as figures and not as percentages, e.g. if
B = 0.5% and Y = 15%, BY is calculated as 0.5 x 15 and not as 0.5% x
15%. A negative result obtained from subtracting Z from Y is to be
treated as zero.
(iii) The above formula is applied on the first day of each
relevant period comprised in the relevant Interest Period.
(iv) Each rate calculated in accordance with the above formula
is, if necessary, rounded upward to four decimal places.
(v) Multicurrency Facility Agent may, from time to time, after
consultation with Company and Lenders, determine and notify to Company
and Lenders any amendments or variations which are required to be made
to the formula set out above in order to comply with any requirements
from time to time imposed by any applicable regulatory authority in
relation to Multicurrency Facility Loans denominated in British Pounds
Sterling (including, without limitation, any requirements relating to
British Pounds Sterling primary liquidity) and any such
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determination shall, in the absence of manifest error, be
conclusive and binding on Company, Lenders, Agents and Issuing Bank.
"Multicurrency Facility Note" means a promissory note in the form of
Exhibit B-6, as it may be amended, supplemented or otherwise modified from time
to time.
"Multicurrency Issuing Bank" means each of Bank of America and each
other Multicurrency Facility Lender, or any Affiliate thereof, which has been
designated as a Multicurrency Issuing Bank by Company and which is reasonably
acceptable to Global Agent, together with its permitted successors and assigns
in such capacity.
"Multicurrency Letter of Credit" means a standby letter of credit
issued or to be issued by a Multicurrency Issuing Bank.
"Multicurrency Letter of Credit Sublimit" means the lesser of (i)
$15,000,000 (to be divided amongst all Multicurrency Issuing Banks in a manner
to be agreed upon in writing between Multicurrency Issuing Banks and Company),
and (ii) the aggregate unused amount of the Multicurrency Facility Commitments
then in effect.
"Multicurrency Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the Dollar Equivalent of the maximum aggregate
amount which is, or at any time thereafter may become, available for drawing
under all Multicurrency Letters of Credit then outstanding, plus (ii) the Dollar
Equivalent of the aggregate amount of all drawings under Multicurrency Letters
of Credit honored by the applicable Multicurrency Issuing Bank and not
theretofore reimbursed by or on behalf of Company.
"Multicurrency Offered Rate" means, for any day, the rate of interest,
plus a margin, if any, offered, in writing by the applicable Multicurrency Swing
Line Lender and accepted by Company.
"Multicurrency Offered Rate Loan" means a Loan bearing interest at the
Multicurrency Offered Rate.
"Multicurrency Overnight Rate" means, for any day, the rate of interest
per annum at which overnight deposits in a Multicurrency, in an amount
approximately equal to the amount with respect to which such date is being
determined, would be offered for such day by Multicurrency Facility Agent to
major banks in the London or other applicable offshore interbank market. The
Multicurrency Overnight Rate for any day which is not a Business Day shall be
the Multicurrency Overnight Rate for the preceding Business Day.
"Multicurrency Qualifying Lender" as defined in Section 2.23(h).
"Multicurrency Rate" means, for any Interest Rate Determination Date
with respect to an Interest Period for a Multicurrency Facility Loan, the
following applicable rate, in each case for a term comparable to such Interest
Period:
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(i) for any Multicurrency Facility Loan denominated in British
Pounds Sterling, the rate per annum equal to the sum of (a) LIBOR plus
(b) Multicurrency Facility Mandatory Cost; and
(ii) for any Multicurrency Facility Loan denominated in any
other Multicurrency, the rate per annum equal to LIBOR.
"Multicurrency Reference Bank" means Multicurrency Facility Agent,
together with its permitted successors and assigns, in its individual capacity.
"Multicurrency Reimbursement Date" as defined in Section 2.3(b)(iii).
"Multicurrency Swing Line Lender" means each of Bank of America and
each other Multicurrency Facility Lender which has been designated by Company to
act as a Multicurrency Swingline Lender and which is reasonably acceptable to
Global Agent, together with its permitted successors and assigns in such
capacity.
"Multicurrency Swing Line Loan" means a loan made by a Multicurrency
Swing Line Lender to Company pursuant to Section 2.2(d).
"Multicurrency Swing Line Note" means a promissory note in the form of
Exhibit B-7, as it may be amended, supplemented or otherwise modified from time
to time.
"Multicurrency Swing Line Sublimit" means the lesser of (i) $50,000,000
(to be divided amongst all Multicurrency Swing Line Lenders in a manner to be
agreed upon in writing between Multicurrency Swing Line Lenders and Company),
and (ii) the aggregate unused amount of Multicurrency Facility Commitments then
in effect.
"Multicurrency Swing Line Subsidiary" means any Wholly-Owned Subsidiary
of Company that has been designated by Company to borrow Multicurrency Swing
Line Loans and with respect to which (i) Company has acknowledged in writing to
Global Agent its Guaranty of all Obligations of such Multicurrency Swing Line
Subsidiary hereunder, and (ii) to which the applicable Multicurrency Swing Line
Lender has agreed to make Multicurrency Swing Line Loans.
"Multiemployer Plan" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means the National Association of Insurance Commissioners.
"Narrative Report" means, with respect to the financial statements for
which such narrative report is required, a narrative report describing the
operations of Company and its Subsidiaries in a form acceptable to Global Agent
for the applicable Fiscal Quarter or Fiscal Year and for the period from the
beginning of the then current Fiscal Year to the end of such period to which
such financial statements relate; provided, at any time Company is a reporting
company for purposes of the
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Exchange Act, the term "Narrative Report" shall mean the report filed by Company
with the Securities and Exchange Commission for the financial statement to which
such report relates.
"National Currency Unit" means the unit of currency (other than a euro
unit) of a Participating Member State.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale, an
amount equal to the difference of (i) Cash payments (including any Cash received
by way of deferred payment pursuant to, or by monetization of, a note receivable
or otherwise, but only as and when so received) received from such Asset Sale,
minus (ii) any bona fide direct costs incurred in connection with such Asset
Sale, including (a) income or gains taxes reasonably estimated to be actually
payable as a result of any gain recognized in connection with such Asset Sale
and (b) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale.
"Net Insurance/Condemnation Proceeds" means the difference of (i) any
Cash payments or proceeds received by Company or any of its Subsidiaries (a)
under any casualty insurance policy in respect of a covered loss thereunder or
(b) as a result of the taking of any assets of Company or any of its
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation
or otherwise, or pursuant to a sale of any such assets to a purchaser with such
power under threat of such a taking, minus, in each case, (ii) (a) any actual
and reasonable documented costs incurred by Company or any of its Subsidiaries
in connection with the adjustment or settlement of any claims of Company or such
Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in
connection with any sale of such assets as referred to in clause (i)(b) of this
definition, including income or gains taxes reasonably estimated to be actually
payable as a result of any gain recognized in connection therewith.
"NMS" as defined in the preamble hereto.
"Non-Rated Facility Lender" as defined in Section 10.6(i).
"Non-Recourse Debt" means Indebtedness (i) as to which neither Company
nor any of its Subsidiaries (a) provides credit support of any kind (including
any undertaking, agreement or instrument that would constitute Indebtedness),
(b) is directly or indirectly liable (as a guarantor or otherwise), or (c)
constitutes the lender; (ii) no default with respect to which (including any
rights that the holders thereof may have to take enforcement action against a
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of Company or any of its Subsidiaries to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity; and (iii) as to which the lenders thereof
have been notified in writing that they will not have any recourse to the stock
or assets of Company or any of its Subsidiaries.
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"Note" means a Tranche A Term Loan Note, a Tranche B Term Loan Note, a
Tranche C Term Loan Note, a Facility Note or a Swing Line Note.
"Notice" means a Funding Notice, an Issuance Notice or a Conversion/
Continuation Notice.
"Obligations" means, with respect to any Credit Party, obligations of
such Credit Party, whether now existing or hereafter made, incurred or created,
whether absolute or contingent, liquidated or unliquidated, whether due or not
due, and however arising under or in connection herewith and any other Credit
Document (including, without limitation, the Existing Credit Agreement) and any
Hedge Agreement with a Lender Counterparty, including those arising under
successive borrowing transactions hereunder which shall either continue the
Obligations of such Credit Party from time to time or renew them after they have
been satisfied and including interest which, but for the filing of a petition in
bankruptcy with respect to such Credit Party, would have accrued on any
Obligation, whether or not a claim is allowed against such Credit Party for such
interest in the related bankruptcy proceeding, but excluding inchoate
indemnification obligations.
"Obligee Guarantor" as defined in Section 7.7.
"Organizational Documents" means (i) with respect to any corporation,
its certificate or articles of incorporation, as amended, and its by-laws, as
amended, (ii) with respect to any limited partnership, its certificate of
limited partnership, as amended, and its partnership agreement, as amended,
(iii) with respect to any general partnership, its partnership agreement, as
amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event
any term or condition of this Agreement or any other Credit Document requires
any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such "Organizational Document" shall
only be to a document of a type customarily certified by such governmental
official.
"Original Currency" as defined in Section 10.18.
"Other Taxes" means any stamp, court or documentary taxes or any other
excise or property taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Agreement or any other
Credit Document.
"Participating Member State" means each country so described in any
EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"Permitted Acquisition" means any acquisition, whether by purchase,
merger or otherwise, of all or substantially all of the assets of, all of the
equity Securities of, or a business line or a division
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of, any Person; provided, (i) immediately prior to, and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing or
would result therefrom, (ii) all transactions in connection therewith shall be
consummated in accordance with all applicable laws and in conformity with all
applicable Governmental Authorizations, (iii) all of the equity Securities
(except for any such Securities in the nature of directors qualifying shares
required pursuant to applicable law) acquired or otherwise issued by such Person
or any newly formed Subsidiary of Company in connection with such acquisition
shall be owned 100% by Company or a Subsidiary thereof, and Company shall have
taken, or caused to be taken, as of the date such Person becomes a Subsidiary of
Company, each of the actions set forth in Sections 5.9, as applicable, (iv)
Company shall be in compliance with, immediately before and after giving pro
forma effect to such acquisition, each of Sections 6.6(a), 6.6(b) and 6.6(c) (as
determined in accordance with Section 6.6(e)), (v) Company shall have delivered
to Global Agent a certificate in the form of a Compliance Certificate evidencing
such compliance with such Sections, together with all relevant financial
information for such acquired assets, and (vi) any Person or assets or division
as acquired in accordance herewith shall be predominantly in the medical device
or medical product manufacturing, distribution, and/or sales business or such
other lines of business in which Company and/or its Subsidiaries are engaged as
of the Closing Date.
"Permitted Liens" means each of the Liens permitted pursuant to
Section 6.2.
"Permitted Securitization Transaction" means any transaction or series
of transactions pursuant to which Company or any of its Subsidiaries may sell,
convey or otherwise transfer to a Securitization Entity (in the case of a
transfer by Company or any of its Subsidiaries) or any other Person (in case of
a transfer by a Securitization Entity), or may grant a security interest in, any
accounts receivable (whether now existing or arising or acquired in the future)
of Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and contract rights and all guarantees or other obligations in respect
to such accounts receivable, proceeds of such accounts receivable and other
assets (including contract rights) which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable, all of the
foregoing for the purpose of providing working capital financing on terms that
are more favorable to Company and its Subsidiaries than would otherwise be
available at that time; provided, (i)Company and/or its Subsidiaries enters into
such transaction or series of transactions with a Lender or an Affiliate
thereof, (ii) the obligations owed to third parties with respect to such
transaction shall not exceed $200,000,000 at any one time, and (iii) the
proceeds thereof shall be applied in accordance with Section 2.13(e).
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
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"Phase I Report" means, with respect to any Manufacturing Facility, a
Phase I environmental assessment for such Manufacturing Facility by one or more
environmental consulting firms reasonably satisfactory to Global Agent that (i)
conforms to the ASTM Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process, E 1527 or such other standards
reasonably satisfactory to Global Agent, and (ii) if reasonably deemed necessary
by Global Agent, includes an assessment of asbestos-containing materials at such
Manufacturing Facilities.
"Plan of Correction" as defined in Section 4.20.
"Pledge and Security Agreement" means the Pledge and Security Agreement
in the form of Exhibit I, as it may be amended, supplemented or otherwise
modified from time to time.
"Post Closing Adjustment" means the "Working Capital Adjustment," as
such term is defined in the Acquisition Agreement, together with any other
payments contemplated thereby.
"Principal Office" means, for each of Global Agent, US Facility Agent,
Multicurrency Facility Agent, each Swing Line Lender and each Issuing Bank, such
Person's "Principal Office" as set forth on Appendix C, or such other office as
such Person may from time to time designate in writing to Company, Global Agent,
and with respect to Global Agent and each Facility Agent, to each applicable
Lender.
"Projections" as defined in Section 4.5.
"Pro Rata Share" means
(i) with respect to all payments, computations and other
matters relating to the Tranche A Term Loan of any Lender, the
percentage obtained by dividing (a) the Tranche A Term Loan Exposure of
that Lender by (b) the aggregate Tranche A Term Loan Exposure of all
Lenders;
(ii) with respect to all payments, computations and other
matters relating to the Tranche B Term Loan of any Lender, the
percentage obtained by dividing (a) the Tranche B Term Loan Exposure of
such Lender by (b) the aggregate Tranche B Term Loan Exposure of all
Lenders;
(iii) with respect to all payments, computations and other
matters relating to the Tranche C Term Loan of any Lender, the
percentage obtained by dividing (a) the Tranche C Term Loan Exposure of
such Lender by (b) the aggregate Tranche C Term Loan Exposure of all
Lenders;
(iv) with respect to all payments, computations and other
matters relating to the US Facility Commitment or US Facility Loans of
any Lender, any US Letters of Credit issued or participations therein
purchased by any Lender, or any participations in any US
Swing Line Loans purchased by any Lender, the percentage obtained by
dividing (a) the US Facility
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Exposure of that Lender by (b) the aggregate US Facility Exposure
of all Lenders; and
(v) with respect to all payments, computations and other
matters relating to the Multicurrency Facility Commitment or
Multicurrency Facility Loans of any Lender, any Multicurrency Letters
of Credit issued or participations therein purchased by any Lender, or
any participations in any Multicurrency Swing Line Loans purchased by
any Lender, the percentage obtained by dividing (a) the Multicurrency
Facility Exposure of that Lender by (b) the aggregate Multicurrency
Facility Exposure of all Lenders.
For all other purposes with respect to each Lender, "Pro Rata Share" means the
percentage obtained by dividing (I) the sum of the Tranche A Term Loan Exposure
of that Lender, the Tranche B Term Loan Exposure of that Lender, the Tranche C
Term Loan Exposure of that Lender, the US Facility Exposure of that Lender and
the Multicurrency Facility Exposure of that Lender, by (II) the sum of the
aggregate Tranche A Term Loan Exposure of all Lenders, the aggregate Tranche B
Term Loan Exposure of all Lenders, the aggregate Tranche C Term Loan Exposure of
all Lenders, the aggregate US Facility Exposure of all Lenders, and the
aggregate Multicurrency Facility Exposure of all Lenders.
"Purchase Money Note" means a promissory note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from Company or
any Subsidiary of Company in connection with a Permitted Securitization
Transaction, which note shall be repaid from Cash available to the
Securitization Entity, other than (i) amounts required to be established as
reserves pursuant to agreements, (ii) amounts paid to investors in respect of
interest, principal and other amounts owing to such investors and (iii) amounts
paid in connection with the purchase of newly generated receivables.
"Real Estate Asset" means, at any time of determination, any interest
then owned by any Credit Party in any real property.
"Record Document" means, with respect to any Leasehold Property, (i)
the lease evidencing such Leasehold Property or a memorandum thereof, executed
and acknowledged by the owner of the affected real property, as lessor, or (ii)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to Global Agent.
"Recorded Leasehold Interest" means a Leasehold Property with respect
to which a Record Document has been recorded in all places necessary or
desirable, in Global Agent's reasonable judgment, to give constructive notice of
such Leasehold Property to third-party purchasers and encumbrancers of the
affected real property.
"Reduced Leverage/Improved Ratings Status" means, at any date of
determination, (i) the Leverage Ratio is less than or equal to 2.75:1.00 (after
giving effect on a pro forma basis to any transaction or event giving rise to a
determination of the existence of the Reduced
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Leverage/Improved Ratings Status), or (ii) ▇▇▇▇▇'▇ has assigned to Company's
long term Indebtedness for borrowed money a rating of at least Baa3, and S&P has
assigned to Company's long term Indebtedness for borrowed money a rating of at
least BBB-.
"Reduction" as defined in Section 2.11(b).
"Reduction Date" as defined in Section 2.11(b).
"Reference Rate" means the rate of interest in effect for such day as
publicly announced from time to time by Bank of America in San Francisco,
California, as its "reference rate." The "reference 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 announced rate. Any change in the reference 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.
"Register" as defined in Section 2.6(b).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Date" means a US Reimbursement Date or a Multicurrency
Reimbursement Date.
"Related Agreements" means, collectively, the Acquisition Agreement
and the Transition Agreements.
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Material).
"Requisite Class Lenders" means, at any time of determination:
(i) for the Class of Lenders having Tranche A Term Loan
Exposure, Lenders having or holding at least 51% of the sum of the
aggregate Tranche A Term Loan Exposure of all Lenders;
(ii) for the Class of Lenders having Tranche B Term Loan
Exposure, Lenders having or holding at least 51% of the sum of the
aggregate Tranche B Term Loan Exposure of all Lenders;
(iii) for the Class of Lenders having Tranche C Term Loan
Exposure, Lenders having or holding at least 51% of the sum of the
aggregate Tranche C Term Loan Exposure
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of all Lenders;
(iv) for the Class of Lenders having US Facility Exposure,
Lenders having or holding at least 51% of the sum of the aggregate US
Facility Exposure of all Lenders; and
(v) for the Class of Lenders having Multicurrency Facility
Exposure, Lenders having or holding at least 51% of the sum of the
aggregate Multicurrency Facility Exposure of all Lenders.
"Requisite Lenders" means Lenders having or holding at least 51% of the
sum of (i) the aggregate Tranche A Term Loan Exposure of all Lenders, (ii) the
aggregate Tranche B Term Loan Exposure of all Lenders, (iii) the aggregate
Tranche C Term Loan Exposure of all Lenders, (iv) the aggregate US Facility
Exposure of all Lenders, and (v) the aggregate Multicurrency Facility Exposure
of all Lenders.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter outstanding, except a dividend payable solely in
shares of that class of stock to the holders of that class, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock of Company now or
hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Company now or hereafter outstanding, and (iv)
any payment or prepayment of principal of, premium, if any, or interest on, or
redemption, purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any Subordinated
Indebtedness.
"Restricted Lender" as defined in Section 2.24.
"Same Day Funds" means (i) with respect to disbursements and payments
in Dollars, immediately available funds, and (ii) with respect to disbursements
and payments in a Multicurrency, same day or other funds as may be determined by
Multicurrency Facility Agent to be customary in the place of disbursement or
payment for the settlement of international banking transactions in such
Multicurrency.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw
Hill Corporation.
"Secured Obligations" as defined in the applicable Collateral Document
in respect of any Collateral.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities" or any certificates of interest, shares or participations
in temporary or interim certificates for the
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purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor statute.
"Securitization Entity" means a Wholly-Owned Subsidiary (or another
Person in which Company or any Subsidiary of Company makes an Investment and to
which Company or any Subsidiary of Company transfers accounts receivable and
related assets) that engages in no activities other than in connection with the
financing of accounts receivable and that is designated by the Board of
Directors of Company (as provided below) as a Securitization Entity, (i) no
portion of the Indebtedness (contingent or otherwise) of which (a) is guaranteed
by Company or any Subsidiary of Company other than pursuant to Standard
Securitization Undertakings, (b) is recourse to or obligates Company or any
Subsidiary of Company in any way other than pursuant to Standard Securitization
Undertakings or (c) subjects any property or asset of Company or any Subsidiary
of Company, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization
Undertakings, (ii) with which neither Company nor any Subsidiary of Company has
any material contract, agreement, arrangement or understanding other than on
terms no less favorable to Company or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of Company, other than
fees payable in the ordinary course of business in connection with servicing
receivables of such entity, and (iii) to which neither Company nor any
Subsidiary of Company has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain levels of operating
results. Any such designation by the Board of Directors of Company shall be
evidenced to Global Agent by filing with the Global Agent a certified copy of
the resolution of the Board of Directors of Company giving effect to such
designation and a certificate of an Authorized Officer of Company certifying
that such designation complied with the foregoing conditions. Notwithstanding
anything in this Agreement or any other Credit Document to the contrary, no
Securitization Entity shall be deemed or otherwise required to be a Guarantor
hereunder.
"Selected Currency" as defined in Section 2.26(g).
"Seller" as defined in the recitals hereto.
"Solvent" means, with respect to any Person, that as of the date of
determination both (i) (a) the then fair saleable value of the property of such
Person is (1) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (2) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that,
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in light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"Spot Rate of Exchange" means (i) in determining the Multicurrency
Equivalent of a specified amount of Dollars as of any date, the spot exchange
rate determined by Global Agent in accordance with its usual procedures for the
purchase thereby of such Multicurrency with Dollars at approximately 11:00 a.m.
(New York City time) on the Business Day that is three (3) Business Days prior
to such settlement date; and (ii) in determining the Dollar Equivalent of a
specified amount of any Multicurrency as of any date, the spot rate of exchange
determined by Global Agent in accordance with its usual procedures for the
purchase thereby of US Dollars with such Multicurrency at approximately 11:00
a.m. (New York City time) on the Business Day that is two (2) Business Days
prior to such date.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by Company or any Subsidiary
of Company that are reasonably customary in accounts receivable securitization
transactions.
"Stryker Family Group" means the descendants of L. ▇▇▇ ▇▇▇▇▇▇▇ and
members of such descendants' families and trusts for the benefit of such
Persons.
"Subject Transaction" as defined in Section 6.6(e).
"Subordinated Indebtedness" means any Indebtedness of Company
subordinated in right of payment to the Obligations.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided, in determining the percentage of ownership interests of any
Person controlled by another Person, no ownership interest in the nature of a
"qualifying share" of the former Person shall be deemed to be outstanding.
"Substitute Base Rate Loans" as defined in Section 2.21(a).
"Supplemental Collateral Agent" as defined in Section 9.8(c).
"Swing Line Lender" means US Swing Line Lender or a Multicurrency
Swing Line Lender.
"Swing Line Loan" means a US Swing Line Loan or a Multicurrency Swing
Line Loan.
"Swing Line Note" means a US Swing Line Note or a Multicurrency Swing
Line Note.
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"Swing Line Sublimit" means the Multicurrency Swing Line Sublimit or
the US Swing Line Sublimit.
"Swiss Franc" or "SWFr" means the lawful currency of the Government
of Switzerland.
"Syndication Agent" as defined in the preamble hereto.
"Systems" means hardware, firmware or software systems associated with
information processing and delivery, operations or services (e.g., security and
alarms, elevators, communications, and HVAC) operated by, provided to or
otherwise reasonably necessary to the business or operations of Company and its
Subsidiaries.
"Target" as defined in the recitals hereto.
"TARGET Business Day" means any day when the TARGET clearing system for
transactions in the euro and the National Currency Unit of Participating Member
States is scheduled to be open for business.
"Taxes" means any and all taxes, levies, assessments, imposts, duties,
deductions, fees, withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of each Lender, each Issuing Bank and
each Agent, respectively, taxes imposed on or measured by its net income (or
taxes imposed in lieu of taxes on net income) by the jurisdiction (or any
political subdivision thereof) under the laws of which such Lender, such Issuing
Bank or such Agent, as the case may be, is organized or maintains a lending
office.
"Term Loan" means a Tranche A Term Loan, a Tranche B Term Loan or a
Tranche C Term Loan.
"Term Loan Maturity Date" means the Tranche A Term Loan Maturity Date,
the Tranche B Term Loan Maturity Date or the Tranche C Term Loan Maturity Date.
"Total Utilization of US Facility Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
US Facility Loans (other than US Facility Loans made for the purpose of
reimbursing US Issuing Bank for any amount drawn under any US Letter of Credit
but not yet so applied), (ii) the aggregate principal amount of all outstanding
US Swing Line Loans, and (iii) the US Letter of Credit Usage.
"Total Utilization of Multicurrency Facility Commitments" means, as at
any date of determination, without duplication, the sum of (i) the Dollar
Equivalent of the aggregate principal amount of all outstanding Multicurrency
Facility Loans, (other than Multicurrency Facility Loans made for the purpose of
reimbursing any Multicurrency Issuing Bank for any amount drawn under any
Multicurrency Letter of Credit but not yet so applied), (ii) the Dollar
Equivalent of the aggregate
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principal amount of all outstanding Multicurrency Swing Line Loans, and (iii)
the Multicurrency Letter of Credit Usage.
"Tranche A Term Loan" means a Tranche A Term Loan made by a Lender to
Company pursuant to Section 2.1.
"Tranche A Term Loan Amount" means the amount of the Tranche A Term
Loan made by a Lender to Company. The amount of each Lender's Tranche A Term
Loan Amount, if any, as of the Amendment and Restatement Effective Date is set
forth on Appendix A.
"Tranche A Term Loan Exposure" means, with respect to any Lender, as of
any date of determination, the outstanding principal amount of the Tranche A
Term Loans of such Lender; provided, at any time prior to the making of the
Tranche A Term Loans, the Tranche A Term Loan Exposure of any Lender shall be
equal to such Lender's Tranche A Term Loan Amount.
"Tranche A Term Loan Maturity Date" means the earlier of (i) the sixth
anniversary of the Closing Date, and (ii) the date that all Tranche A Term Loans
shall become due and payable in full hereunder, whether by acceleration or
otherwise.
"Tranche A Term Loan Note" means a promissory note in the form of
Exhibit B-1, as it may be amended, supplemented or otherwise modified from time
to time.
"Tranche B Term Loan " means a Tranche B Term Loan made by a Lender to
Company pursuant to Section 2.1.
"Tranche B Term Loan Amount" means the amount of the Tranche B Term
Loan made by a Lender to Company. The amount of each Lender's Tranche B Term
Loan Amount, if any, as of the Amendment and Restatement Effective Date is set
forth on Appendix A.
"Tranche B Term Loan Exposure" means, with respect to any Lender, as of
any date of determination, the outstanding principal amount of the Tranche B
Term Loans of such Lender; provided, at any time prior to the making of the
Tranche B Term Loans, the Tranche B Term Loan Exposure of any Lender shall be
equal to such Lender's Tranche B Term Loan Amount.
"Tranche B Term Loan Maturity Date" means the earlier of (i) the
seventh anniversary of the Closing Date, and (ii) the date that all Tranche B
Term Loans shall become due and payable in full hereunder, whether by
acceleration or otherwise.
"Tranche B Term Loan Note" means a promissory note in the form of
Exhibit B-2, as it may be amended, supplemented or otherwise modified from time
to time.
"Tranche C Term Loan " means a Tranche C Term Loan made by a Lender to
Company pursuant to Section 2.1.
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"Tranche C Term Loan Amount" means the amount of the Tranche C Term
Loan made by a Lender to Company. The amount of each Lender's Tranche C Term
Loan Amount, if any, as of the Amendment and Restatement Effective Date is set
forth on Appendix A.
"Tranche C Term Loan Maturity Date" means the earlier of (i) the eighth
anniversary of the Closing Date, and (ii) the date that all Tranche C Term Loans
shall become due and payable in full hereunder, whether by acceleration or
otherwise.
"Tranche C Term Loan Exposure" means, with respect to any Lender, as of
any date of determination, the outstanding principal amount of the Tranche C
Term Loans of such Lender; provided, at any time prior to the making of the
Tranche C Term Loans, the Tranche C Term Loan Exposure of any Lender shall be
equal to such Lender's Tranche C Term Loan Amount.
"Tranche C Term Loan Note" means a promissory note in the form of
Exhibit B-3, as it may be amended, supplemented or otherwise modified from time
to time.
"Transaction Costs" means the fees, costs and expenses payable by
Company in connection with the transactions contemplated by the Credit Documents
and the Related Agreements.
"Transition Agreements" means, collectively, (i) that certain
Transitional Services Agreement dated as of the Closing Date, by and between
Seller and Company, and (ii) that certain Transitional Intellectual Property
License Agreement, dated as of the Closing Date, by and between Seller and
Company, as each such agreement may be amended, supplemented or otherwise
modified from time to time to the extent pursuant to Section 6.13.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which was
signed at Maastricht on February 1, 1992 and came into force on November 1,
1993), as amended from time to time.
"Type of Loan" means (i) with respect to either Term Loans or US
Facility Loans, a Base Rate Loan or a Eurodollar Rate Loan, and (ii) with
respect to US Swing Line Loans, a Base Rate Loan or a US Offered Rate Loan, and
(iii) with respect to Multicurrency Facility Loans, a Multicurrency Rate Loan or
a Multicurrency Offered Rate Loan; provided, with respect to the definition of
Lending Office contained in this agreement, "Type of Loan" shall also be a
reference to (a) with respect to the US Facility, Loans denominated in Dollars,
and (b) with respect to the Multicurrency Facility, Loans denominated in a
Multicurrency.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"Unadjusted Eurodollar Rate Component" means that component of the
interest costs to Company in respect of a Eurodollar Rate Loan that is based
upon the rate obtained pursuant to clause (i) of the definition of Eurodollar
Rate.
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"Unit" means (i) with respect to Dollars, $1.00, (ii) with respect to
British Pounds Sterling, (pound)1.00, (iii) with respect to French Francs,
FFr5.00, (iv) with respect to German Marks, DM1.00, (v) with respect to Italian
▇▇▇▇, ▇▇▇▇▇▇▇▇, (vi) with respect to Swiss Fancs, SWFr1.00, (vii) with respect
to Japanese Yen, (Y)100.00, and (viii) with respect to any other Multicurrency,
an amount of such currency the Dollar Equivalent of which is $1.00.
"US Facility" means the facility described in Section 2.2(a), 2.2(b)
providing for Loans to Company by US Facility Lenders in the aggregate principal
amount of such Lenders' US Facility Commitments.
"US Facility Agent" as defined in the preamble hereto.
"US Facility Commitment" means the commitment of a Lender to make or
otherwise fund any Credit Extension (other than any Term Loan, Multicurrency
Facility Loan or Multicurrency Letter of Credit). The amount of each Lender's US
Facility Commitment, if any, as of the Amendment and Restatement Effective Date
is set forth on Appendix B and shall be subject to any adjustment or reduction
pursuant to the terms and conditions hereof.
"US Facility Commitment Period" means the period from and including the
Closing Date to but excluding the US Facility Commitment Termination Date.
"US Facility Commitment Termination Date" means the earliest to occur
of (i) December 31, 1998 if the Term Loans are not made on or before that date;
(ii) the sixth anniversary of the Closing Date, (iii) the date the US Facility
Commitments are permanently reduced to zero pursuant to Section 2.12(b) or 2.13,
and (iv) the date of the termination of the US Facility Commitments pursuant to
Section 8.1.
"US Facility Exposure" means, with respect to any Lender as of any
date of determination:
(i) prior to the termination of the US Facility Commitments,
such Lender's US Facility Commitment; and
(ii) after the termination of the US Facility Commitments, the
sum of (a) the aggregate outstanding principal amount of the US
Facility Loans of such Lender, (b) in the case of US Issuing Bank, the
aggregate US Letter of Credit Usage in respect of all US Letters of
Credit (net of any participations purchased by Lenders therein or any
unreimbursed drawing thereunder), (c) the aggregate amount of all
participations purchased by such Lender in any outstanding US Letters
of Credit or any unreimbursed drawing under any US Letter of Credit,
(d) in the case of US Swing Line Lender, the aggregate outstanding
principal amount of all US Swing Line Loans (net of any participation
therein purchased by other Lenders), and (e) the aggregate amount of
all participations purchased by such Lender in any outstanding US
Swing Line Loans.
"US Facility Lender" means a Lender having US Facility Exposure.
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"US Facility Loan" means a loan made by a Lender to Company pursuant to
Section 2.2(a); provided, such term shall also include a US Swing Line Loan
unless the context otherwise requires.
"US Facility Note" means a promissory note in the form of Exhibit B-4,
as it may be amended, supplemented or otherwise modified from time to time.
"US Issuing Bank" means Bank of America as US Issuing Bank hereunder,
together with its permitted successors and assigns in such capacity.
"US Letter of Credit" means either a commercial letter of credit or a
standby letter of credit issued or to be issued by US Issuing Bank.
"US Letter of Credit Sublimit" means the lesser of (i) $15,000,000 and
(ii) the aggregate unused amount of the US Facility Commitments then in effect.
"US Letter of Credit Usage" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is, or at any time thereafter may
become, available for drawing under all US Letters of Credit then outstanding,
plus (ii) the aggregate amount of all drawings under US Letters of Credit
honored by US Issuing Bank and not theretofore reimbursed by or on behalf of
Company.
"US Offered Rate" means, for any day, the rate of interest, plus a
margin, if any, offered in writing by US Swing Line Lender and accepted by
Company.
"US Offered Rate Loan" means a Loan bearing interest at the US Offered
Rate.
"US Reimbursement Date" as defined in Section 2.3(a)(iii).
"US Swing Line Lender" means Bank of America, in its capacity as US
Swing Line Lender hereunder, together with its permitted successors and assigns
in such capacity.
"US Swing Line Loan" means a loan made by US Swing Line Lender to
Company pursuant to Section 2.2(b).
"US Swing Line Note" means a promissory note in the form of Exhibit
B-5, as it may be amended, supplemented or otherwise modified from time to time.
"US Swing Line Sublimit" means the lesser of (i) $25,000,000, and (ii)
the aggregate unused amount of US Facility Commitments then in effect.
"Waiver and Consent Agreement" means a Waiver and Consent Agreement in
the form of Exhibit K, as it may be amended, supplemented or otherwise modified
from time to time.
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"Wholly-Owned Subsidiary" means a Subsidiary of Company, at least 99%
of the capital stock of which (other than directors' qualifying shares) is owned
by Company or another Wholly-Owned Subsidiary.
"Wholly-Owned Domestic Subsidiary" means a Domestic Subsidiary of
Company that is a Wholly-Owned Subsidiary.
"Wholly-Owned Foreign Subsidiary" means a Foreign Subsidiary of
Company that is a Wholly-Owned Subsidiary.
"Year 2000 Issues" means limitations in the capacity or readiness to
handle date information for the Year 1999 or years beginning January 1, 2000 of
any of the Systems.
1.2. Accounting Terms. Except as otherwise expressly provided herein,
all accounting terms not otherwise defined herein shall have the meanings
assigned to them in conformity with GAAP. Financial statements and other
information required to be delivered by Company to Lenders pursuant to Section
5.1(a) and 5.1(b) shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in Section 5.1(d), if applicable). Subject to the
foregoing, calculations in connection with the definitions, covenants and other
provisions hereof shall utilize accounting principles and policies in conformity
with those used to prepare the Historical Financial Statements of Company and
its Subsidiaries; provided, Company shall record the cost of producing
instruments and other equipment loaned to customers of Company or any of its
Subsidiaries as Consolidated Capital Expenditures.
1.3. Interpretation, etc. (a) The headings, subheadings and table of
contents used herein or in any other Credit Document are solely for convenience
of reference and shall not constitute a part of any such document or affect the
meaning, construction or effect of any provision thereof.
(b) Except as otherwise expressly provided, references herein to
articles, sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules are references to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules in or to this Agreement.
(c) All definitions set forth herein or in any other Credit Document
shall apply to the singular as well as the plural form of such defined term, and
all references to the masculine gender shall include reference to the feminine
or neuter gender, and vice versa, as the context may require.
(d) When used herein or in any other Credit Document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the whole
of the applicable document and not to any particular article, section,
subsection, paragraph or clause thereof.
(e) References to "including" means including without limiting the
generality of any description preceding such term.
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(f) Any reference to an officer of Company or any other Person by
reference to the title of such officer shall be deemed to refer to each other
officer of such Person, however titled, exercising the same or substantially
similar functions.
(g) All references to any agreement or document as amended, modified or
supplemented, or words of similar effect, shall mean such document or agreement,
as the case may be, as amended, modified or supplemented from time to time only
as and to the extent permitted therein and in the Credit Documents.
SECTION 2. LOANS AND LETTERS OF CREDIT
2.1. Term Loans. (a) Subject to the terms and conditions hereof, on or
before December 31, 1998:
(i) each Lender holding a Tranche A Term Loan Amount agrees
to make a Tranche A Term Loan to Company in an amount equal to such
Lender's Tranche A Term Loan Amount;
(ii) each Lender holding a Tranche B Term Loan Amount agrees
to make a Tranche B Term Loan to Company in an amount equal to such
Lender's Tranche B Term Loan Amount; and
(iii) each Lender holding a Tranche C Term Loan Amount agrees
to make a Tranche C Term Loan to Company in an amount equal to such
Lender's Tranche C Term Loan Amount.
Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid
may not be reborrowed. Subject to Sections 2.12(a) and 2.13, all amounts owed
hereunder with respect to the Tranche A Term Loans, Tranche B Term Loans and
Tranche C Term Loans shall be paid in full no later than the Tranche A Term Loan
Maturity Date, Tranche B Term Loan Maturity Date and Tranche C Term Loan
Maturity Date, as applicable. Company acknowledges and agrees that Tranche A
Term Loans, Tranche B Term Loans and Tranche C Term Loans were made on December
4, 1998 as contemplated by this Section 2.1.
(b) Company shall deliver to US Facility Agent the fully executed and
delivered Closing Date Certificate (which shall be deemed to be a Funding Notice
with respect to the Term Loans for all purposes hereof). Promptly upon receipt
by US Facility Agent of such Certificate, US Facility Agent shall notify each
Lender of the proposed borrowing.
(c) Each Lender shall make its Tranche A Term Amount, Tranche B Term
Loan Amount and Tranche C Term Loan Amount, as the case may be, available to US
Facility Agent at US Facility Agent's Principal Office not later than 12:00 noon
(New York City time) on the Closing Date, by wire transfer of Same Day Funds in
Dollars to US Facility Agent's Principal Office. Except as provided
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herein, upon satisfaction or waiver of the conditions precedent specified
herein, US Facility Agent shall make the proceeds of such Term Loans available
to Company on the Closing Date by causing an amount of Same Day Funds in Dollars
equal to the proceeds of all such Loans received by US Facility Agent from
Lenders to be credited to the account of Company at such Principal Office.
2.2. Facility Loans.
(a) US Facility Loans.
(i) During the US Facility Commitment Period, subject to the
terms and conditions hereof, each Lender holding a US Facility
Commitment agrees to make US Facility Loans to Company in the aggregate
amount up to but not exceeding such Lender's US Facility Commitment;
provided, after giving effect to the making of any US Facility Loan, in
no event shall the Total Utilization of US Facility Commitments exceed
the US Facility Commitments then in effect. Amounts borrowed pursuant
to this Section 2.2(a) may be repaid and reborrowed during the US
Facility Commitment Period. Each Lender's US Facility Commitment shall
expire on the US Facility Commitment Termination Date and all US
Facility Loans and all other amounts owed hereunder with respect to the
US Facility Loans and the US Facility Commitments shall be paid in full
no later than such date.
(ii) Except pursuant to Section 2.3(a)(iii), US Facility Loans
that are Base Rate Loans shall be made in an aggregate minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess of that
amount, and US Facility Loans that are Eurodollar Rate Loans shall be
in an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount.
(iii) Whenever Company desires that Lenders make US Facility
Loans, Company shall deliver to US Facility Agent a fully executed and
delivered Funding Notice no later than 11:00 a.m. (New York City time)
(1) at least three Business Days in advance of the proposed Credit Date
in the case of a Eurodollar Rate Loan; and (2) at least one Business
Day in advance of the proposed Credit Date in the case of a Base Rate
Loan. Except as otherwise provided herein, a Funding Notice for a US
Facility Loan that is a Eurodollar Rate Loan shall be irrevocable on
and after the related Interest Rate Determination Date, and Company
shall be bound to make a borrowing in accordance therewith.
(iv) Notice of receipt of each Funding Notice in respect of US
Facility Loans, together with the amount of each US Facility Lender's
Pro Rata Share thereof, together with the applicable interest rate,
shall be provided by US Facility Agent to each US Facility Lender by
telefacsimile with reasonable promptness, but (provided US Facility
Agent shall have received such notice by 11:00 a.m. (New York City
time), not later than 2:00 p.m. (New York City time) on the same day
as US Facility Agent's receipt of such Notice from Company.
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(v) Each US Facility Lender shall, pursuant to the terms and
subject to the conditions of this Agreement, not later than 12:00 noon
(New York City time) on the applicable Credit Date, make its Pro Rata
Share of the US Facility Loan to be made on such day available to
Company by depositing or transferring the proceeds thereof in Dollars
and in Same Day Funds to US Facility Agent at its Principal Office. The
amount so received by US Facility Agent shall, subject to the terms of
this Agreement, be made available to Company by deposit of the proceeds
to an account thereof maintained at such Principal Office or as
otherwise directed by Company in the applicable Funding Notice.
(b) US Swing Line Loans.
(i) During the US Facility Commitment Period, subject to the
terms and conditions hereof, US Swing Line Lender hereby agrees to make
US Swing Line Loans to Company in the aggregate amount up to but not
exceeding the US Swing Line Sublimit; provided, after giving effect to
the making of any US Swing Line Loans, in no event shall the Total
Utilization of US Facility Commitments exceed the US Facility
Commitments then in effect. Amounts borrowed pursuant to this Section
2.2(b) may be repaid and reborrowed during the US Facility Commitment
Period. US Swing Line Lender's Facility Commitment shall expire on the
US Facility Commitment Termination Date and all US Swing Line Loans and
all other amounts owed hereunder with respect thereto and the US
Facility Commitments shall be paid in full no later than such date.
(ii) US Swing Line Loans shall be made in an aggregate minimum
amount of $500,000 and integral multiples of $100,000 in excess of that
amount, or in such other amounts as may be agreed to by Company and US
Swing Line Lender.
(iii) Whenever Company desires that US Swing Line Lender make
a US Swing Line Loan, Company shall deliver to US Swing Line Lender a
Funding Notice no later than 12:00 noon (New York City time) (or at
such other time as may be agreed to by Company and US Swing Line
Lender) on the proposed Credit Date and US Swing Line Lender shall make
the amount of its US Swing Line Loan available to Company not later
than 2:00 p.m.(New York City time) (or at such other time as may be
agreed to by Company and US Swing Line Lender) on the applicable Credit
Date by deposit of the proceeds to an account thereof maintained at
such Principal Office or as otherwise directed by Company in the
applicable Funding Notice.
(iv) US Swing Line Lender may, by delivery to US Facility
Agent of a written notice no later than 11:00 a.m. (New York City time)
on a Business Day, require each Lender holding a US Facility Commitment
to irrevocably purchase, and each such Lender shall be deemed to have
irrevocably purchased, a participation in such outstanding US Swing
Line Loans in an amount equal to its Pro Rata Share of the unpaid
amount of such US Swing Line Loans, together with accrued interest
thereon. Promptly after receipt by US Facility Agent of such written
notice, US Facility Agent shall notify each US Facility Lender
thereof, and within one Business Day, each applicable Lender shall
deliver to US Facility Agent an amount
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equal to its respective participation in Same Day Funds at US Facility
Agent's Principal Office. US Facility Agent shall promptly make the
proceeds of such participations available to US Swing Line Lender by
causing an amount of Same Day Funds in Dollars equal to such proceeds
to be credited to the account of US Swing Line Lender at such
Principal Office. In order to evidence further any such participation
(and without prejudice to the effectiveness of the applicable
participation provisions set forth in this Section 2.2(b)(iv)), each
applicable Lender agrees to enter into a separate participation
agreement at the request of US Swing Line Lender in form and substance
reasonably satisfactory to each such party. In the event any
applicable Lender fails to make available to US Swing Line Lender the
amount of such Lender's participation as provided herein, US Swing
Line Lender shall be entitled to recover such amount on demand from
such Lender together with interest thereon at the rate customarily
used by US Swing Line Lender for the correction of errors among banks
for three Business Days and thereafter at the Base Rate. In the event
US Swing Line Lender receives a payment of any amount in which the
other applicable Lenders have purchased participations as provided
herein, US Swing Line Lender shall promptly distribute to each such
other Lender its Pro Rata Share of such payment. A certificate of US
Swing Line Lender submitted to any Lender with respect to amounts
owing hereunder shall be conclusive in the absence of manifest error.
(c) Multicurrency Facility Loans.
(i) On the Closing Date and/or any date prior to the fifth
Business Day after the Closing Date, subject to the terms and
conditions hereof, each Lender holding a Multicurrency Facility
Commitment agrees to make Multicurrency Facility Loans to Company
denominated in Yen, ECUs or Dollars, as requested by Company in the
applicable Notice; provided, after giving effect to the making of any
Multicurrency Facility Loans in no event shall the Total Utilization of
Multicurrency Facility Commitments exceed the Multicurrency Facility
Commitments then in effect. Amounts borrowed pursuant to this Section
2.2(c)(i) may be repaid but not reborrowed. Each Lender's Multicurrency
Facility Commitment shall expire on the Multicurrency Facility
Commitment Termination Date and all Multicurrency Facility Loans and
all other amounts owed hereunder with respect thereto and the
Multicurrency Facility Commitments shall be paid in full no later than
such date.
(ii) Company shall deliver to Multicurrency Facility Agent the
fully executed and delivered Closing Date Certificate (which shall be
deemed to be a Funding Notice with respect to the Multicurrency
Facility Loans made pursuant to Section 2.2(c)(i) for all purposes
hereof). Promptly upon receipt by Multicurrency Facility Agent of such
Certificate, Multicurrency Facility Agent shall notify each Lender of
the proposed borrowing.
(iii) In the case of Multicurrency Facility Loans, each
Multicurrency Facility Lender shall, pursuant to the terms and subject
to the conditions of this Agreement, not later than 12:00 noon (New
York City time) on the Closing Credit Date (or the applicable day
thereafter pursuant to Section 2.2(c)(i)), make its Pro Rata Share of
such Multicurrency Facility Loan on such day available to Company by
depositing or transferring the proceeds
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thereof in the applicable Multicurrency and in Same Day Funds to the
account of Multicurrency Facility Agent at the applicable Funding
Bank. The amount so received by such Funding Bank shall, subject to
the terms of this Agreement and upon instruction from Multicurrency
Facility Agent thereto on the same day but no later than 2:00 p.m.
(New York City time), be made available to Company by deposit thereof
to an account of Company, or as otherwise as directed by Company in
the applicable Funding Notice.
(d) Multicurrency Swing Line Loans.
(i) During the Multicurrency Facility Commitment Period,
subject to the terms and conditions hereof, each Multicurrency Swing
Line Lender hereby agrees to make Multicurrency Swing Line Loans to
Company and/or each Multicurrency Swing Line Subsidiary as may be
designated by Company in the aggregate amount for all Multicurrency
Swing Line Lenders up to but not exceeding the Multicurrency Swing Line
Sublimit; provided, after giving effect to the making of any
Multicurrency Swing Line Loans, in no event shall the Total Utilization
of Multicurrency Facility Commitments exceed the Multicurrency Facility
Commitments then in effect. Amounts borrowed pursuant to this Section
2.2(d) may be repaid and reborrowed during the Multicurrency Facility
Commitment Period. Each Multicurrency Swing Line Lender's Multicurrency
Facility Commitment shall expire on the Multicurrency Facility
Commitment Termination Date and all Multicurrency Swing Line Loans and
all other amounts owed hereunder with respect thereto and the
Multicurrency Facility Commitments shall be paid in full no later than
such date.
(ii) Multicurrency Swing Line Loans shall be made in an
aggregate minimum amount of 500,000 Units of the applicable
Multicurrency and integral multiples of 100,000 Units of such
Multicurrency in excess of that amount, or in such other amounts as may
be agreed to by Company and/or the applicable Multicurrency Swing Line
Subsidiary and the applicable Multicurrency Swing Line Lender.
(iii) Whenever Company or Multicurrency Swing Line Subsidiary
desires that a Multicurrency Swing Line Lender make a Multicurrency
Swing Line Loan, Company shall deliver to such Multicurrency Swing Line
Lender and to Multicurrency Facility Agent a Funding Notice no later
than 12:00 noon (London, England time) (or at such other time as agreed
to by Company and/or the applicable Multicurrency Swing Line Subsidiary
and the applicable Multicurrency Swing Line Lender) at each of the
applicable Multicurrency Swing Line Lender's and Multicurrency Facility
Agent's Principal Offices or at such other office as may be agreed to
by Company and/or the applicable Multicurrency Swing Line Subsidiary
and the applicable Multicurrency Swing Line Lender on the proposed
Credit Date.
(iv) Each Multicurrency Swing Line Lender shall make the
amount of its Multicurrency Swing Line Loan available to Company and/or
the applicable Multicurrency Swing Line Subsidiary not later than 2:00
p.m. (London, England time) (or at such other time as agreed to by
Company and/or the applicable Multicurrency Swing Line Subsidiary and
the applicable Multicurrency Swing Line Lender) at such Swing Line
Lender's Principal Office
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or at such other office as may be agreed to by Company and/or the
applicable Multicurrency Swing Line Subsidiary and the applicable
Multicurrency Swing Line Lender on the applicable Credit Date by wire
transfer of Same Day Funds in the applicable Multicurrency or as
otherwise directed by Company or such Multicurrency Swing Line
Subsidiary in the applicable Funding Notice.
(v) Each Multicurrency Swing Line Lender may, by delivery to
Multicurrency Facility Agent of a written notice no later than 11:00
a.m. (New York City time) on a Business Day, require each Lender
holding a Multicurrency Facility Commitment to irrevocably purchase,
and each such Lender shall be deemed to have irrevocably purchased, a
participation in such outstanding Multicurrency Swing Line Loans in an
amount equal to its Pro Rata Share of the unpaid amount of such
Multicurrency Swing Line Loans (based on the aggregate Dollar
Equivalent thereof as determined pursuant to this Section 2.2(c)(v)),
together with accrued interest thereon. Each such notice shall state
the aggregate amount of Multicurrency Swing Line Loans outstanding as
of the date of such notice and an itemization of the amount of each
Multicurrency in which such Multicurrency Swing Line Loans are
denominated, together with the Dollar Equivalent thereof. Promptly
after receipt by Multicurrency Facility Agent of such notice,
Multicurrency Facility Agent shall notify each Multicurrency Facility
Lender thereof, and within five (5) Business Days, each Multicurrency
Facility Lender shall deliver to Multicurrency Facility Agent an amount
equal to its respective participation in Same Day Funds in the
applicable Multicurrency at Multicurrency Facility Agent's Principal
Office; provided, if Multicurrency Facility Agent shall have received,
on or prior to the fourth day after the date of receipt of the written
notice of Multicurrency Swing Line Lender referred to herein, a notice
from any Multicurrency Lender that such Multicurrency Lender intends to
fund, at its election as determined in its discretion, its
participation in such Multicurrency Swing Line Loans in Dollars, then
Multicurrency Facility Agent shall promptly notify each other
Multicurrency Lender of such election and all Multicurrency Facility
Lenders shall fund their respective participations in Dollars; provided
further, in such event from and after such date the applicable
Multicurrency Swing Line Loans to which such participations relate
shall automatically be converted (at the Spot Rate of Exchange for the
Dollar Equivalent of the applicable Multicurrency determined as of the
date of such conversion) to, and thereafter for all purposes hereof be
treated as, Multicurrency Swing Line Loans denominated in Dollars. Upon
receipt thereof, Multicurrency Facility Agent shall promptly make the
proceeds of such participations available to the applicable
Multicurrency Swing Line Lender by causing an amount of Same Day Funds
in the applicable Multicurrency equal to such proceeds to be credited
to the account of Multicurrency Swing Line Lender at its Principal
Office or at such other office as such Multicurrency Swing Line Lender
shall designate to Multicurrency Facility Agent. In order to evidence
further any such participation (and without prejudice to the
effectiveness of the applicable participation provisions set forth in
this Section 2.2(d)(v)), each applicable Lender agrees to enter into a
separate participation agreement at the request of such Multicurrency
Swing Line Lender in form and substance reasonably satisfactory to
each such party. In the event any applicable Lender fails to make
available to the applicable Multicurrency Swing Line Lender the amount
of such Lender's participation as provided herein, such Multicurrency
Swing Line Lender shall
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be entitled to recover such amount on demand from such Lender together
with interest thereon at the rate customarily used by Multicurrency
Swing Line Lender for the correction of errors among banks for three
Business Days and thereafter at the rate applicable to Multicurrency
Loans pursuant to Section 2.9. In the event the applicable
Multicurrency Swing Line Lender receives a payment of any amount in
which the other applicable Lenders have purchased participations as
provided herein, such Multicurrency Swing Line Lender shall promptly
distribute to each such other Lender its Pro Rata Share of such
payment. A certificate of the applicable Multicurrency Swing Line
Lender submitted to any Lender with respect to amounts owing hereunder
shall be conclusive in the absence of manifest error.
(e) Swing Line Loans - Generally. Anything contained herein to the
contrary notwithstanding, each applicable Facility Lender's obligation to
purchase a participation in any Swing Line Loan shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against any Swing Line Lender, any Credit Party or any other Person for any
reason whatsoever; (ii) the occurrence or continuation of an Event of Default or
a Default; (iii) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any of its
Subsidiaries; (iv) any breach hereof or any other Credit Document by any party
thereto; or (v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing. In no event shall the participation of
any Lender in any Swing Line Loan purchased pursuant to Section 2.2(b)(iv) or
2.2(d)(v) be construed as a loan or other extension of credit by such Lender to
Company, any other Lender or any Agent, or shall this Agreement be construed to
require any Lender to fund or pay any amount in respect of any such
participation in any Loan except as set forth herein.
2.3. Letters of Credit.
(a) US Letters of Credit.
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(i) During the US Facility Commitment Period, subject to the
terms and conditions hereof, US Issuing Bank agrees to issue US Letters
of Credit in Dollars for the account of Company in the aggregate amount
up to but not exceeding the US Letter of Credit Sublimit; provided,
Company shall not request that US Issuing Bank issue, and US Issuing
Bank shall not issue: (1) any US Letter of Credit if, after giving
effect to such issuance, the Total Utilization of US Facility
Commitments would exceed the US Facility Commitments then in effect;
(2) any US Letter of Credit if, after giving effect to such issuance,
the US Letter of Credit Usage would exceed the US Letter of Credit
Sublimit then in effect; or (3) any standby letter of credit having an
expiration date later than the earlier of (I) the US Facility
Commitment Termination Date and (II) the date which is one year from
the date of issuance of such standby letter of credit. Subject to the
foregoing, US Issuing Bank may agree that a standby letter of credit
will automatically be extended for one or more successive periods not
to exceed one year each unless US Issuing Bank elects not to extend
for any such additional period; provided, US Issuing Bank shall not
extend any such letter of credit if it has received written notice
that an Event of Default has occurred and is continuing at the time US
Issuing Bank must elect to allow such extension.
(ii) Whenever Company desires the issuance of a US Letter of
Credit, it shall deliver to Global Agent an Issuance Notice no later
than 12:00 noon (New York City time) at least three Business Days or
such shorter period as may be agreed to by US Issuing Bank in any
particular instance, in advance of the proposed date of issuance. Upon
satisfaction or waiver of the conditions set forth in Section 3.2, US
Issuing Bank shall issue the requested US Letter of Credit in
accordance with US Issuing Bank's standard operating procedures. Upon
the issuance of any US Letter of Credit, US Issuing Bank shall promptly
notify US Facility Agent of such issuance and US Facility Agent shall
in turn deliver written notice thereof to each US Facility Lender,
which notice shall be accompanied by a copy of such Letter of Credit
and the amount of such Lender's respective participation in such Letter
of Credit pursuant to Section 2.3(a)(iv). Within fifteen (15) days
after the end of each month ending after the Closing Date, so long as
any US Letter of Credit shall have been outstanding during such month,
US Issuing Bank shall deliver to Global Agent, and Global Agent shall
in turn deliver to each applicable Lender a report setting forth for
such month the daily aggregate amount available to be drawn under the
US Letters of Credit that were outstanding during such month.
(iii) In the event US Issuing Bank has determined to honor a
drawing under a US Letter of Credit, it shall immediately notify
Company and Global Agent, and Company shall reimburse US Issuing Bank
on or before the Business Day immediately following the date on which
such drawing is honored (the "US Reimbursement Date") in an amount in
Dollars and in Same Day Funds equal to the amount of such honored
drawing. Anything contained herein to the contrary notwithstanding, (1)
unless Company shall have notified Global Agent and US Issuing Bank
prior to 11:00 a.m. (New York City time) on the date such drawing is
honored that Company intends to reimburse US Issuing Bank for the
amount of such honored drawing with funds other than the proceeds of US
Facility Loans, Company shall be deemed to have given a timely Funding
Notice to Global Agent requesting the applicable Lenders to make US
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Facility Loans that are Base Rate Loans on the US Reimbursement Date in
an amount in Dollars equal to the amount of such honored drawing, and
(2) subject to satisfaction or waiver of the conditions specified in
Section 3.2, such Lenders shall on the US Reimbursement Date make US
Facility Loans that are Base Rate Loans in the amount of such honored
drawing, the proceeds of which shall be applied directly by Global
Agent to reimburse US Issuing Bank for the amount of such honored
drawing; and provided further, if for any reason proceeds of US
Facility Loans are not received by US Issuing Bank on the US
Reimbursement Date in an amount equal to the amount of such honored
drawing, Company shall reimburse US Issuing Bank, on demand, in an
amount in Same Day Funds equal to the excess of the amount of such
honored drawing over the aggregate amount of such US Facility Loans,
if any, which are so received. Nothing in this Section 2.3(a)(iii)
shall be deemed to relieve any applicable Lender from its obligation
to make US Facility Loans on the terms and conditions set forth
herein, and Company shall retain any and all rights it may have
against any such Lender resulting from the failure of such Lender to
make such US Facility Loan under this Section 2.3(a)(iii).
(iv) Immediately upon the issuance of each US Letter of
Credit, each Lender holding a US Facility Commitment shall be deemed to
have irrevocably purchased, and hereby agrees to irrevocably purchase,
from US Issuing Bank a participation in such US Letter of Credit and
any drawings honored thereunder in an amount equal to such Lender's Pro
Rata Share of the maximum amount which is or at any time may become
available to be drawn thereunder. In the event that Company shall fail
for any reason to reimburse US Issuing Bank as provided in Section
2.3(a)(iii), US Issuing Bank shall promptly notify each applicable US
Facility Lender of the unreimbursed amount of such honored drawing and
of such Lender's respective participation therein. Each applicable
Lender shall make available to US Issuing Bank an amount equal to its
respective participation in Dollars and in Same Day Funds at US Issuing
Bank's Principal Office not later than 12:00 noon (New York City time)
on the first Business Day after the date notified by US Issuing Bank.
In the event that any applicable Lender fails to make available to US
Issuing Bank on such Business Day the amount of such Lender's
participation in such US Letter of Credit as provided in this Section
2.3(a)(iv), US Issuing Bank shall be entitled to recover such amount on
demand from such Lender together with interest thereon at the rate
customarily used by US Issuing Bank for the correction of errors among
banks for three Business Days and thereafter at the Base Rate. Nothing
in this Section 2.3(a)(iv) shall be deemed to prejudice the right of
any applicable Lender to recover from US Issuing Bank any amounts made
available by such Lender to US Issuing Bank pursuant to this Section in
the event that it is determined by the final judgment of a court of
competent jurisdiction that the payment with respect to a US Letter of
Credit in respect of which payment was made by such Lender constituted
gross negligence or willful misconduct on the part of US Issuing Bank.
In the event US Issuing Bank shall have been reimbursed by other
applicable US Facility Lenders pursuant to this Section 2.3(a)(iv) for
all or any portion of any drawing honored by US Issuing Bank under a US
Letter of Credit, US Issuing Bank shall distribute to US Facility
Agent, and US Facility Agent shall in turn distribute to each
applicable US Facility Lender which has paid all amounts payable by it
under this Section 2.3(a)(iv) with respect to such honored drawing such
Lender's Pro Rata Share of all payments
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subsequently received by US Issuing Bank from Company in reimbursement
of such honored drawing when such payments are received. Any such
distribution shall be made to an applicable Lender at its Lending
Office or at such other address as such Lender may request.
(b) Multicurrency Letters of Credit.
(i) During the Multicurrency Facility Commitment Period,
subject to the terms and conditions hereof, each Multicurrency Issuing
Bank agrees to issue Multicurrency Letters of Credit in a
Multicurrency for the account of Company in the Dollar Equivalent of
an aggregate amount for all Multicurrency Letters of Credit issued by
all Multicurrency Issuing Banks up to but not exceeding the
Multicurrency Letter of Credit Sublimit; provided, Company shall not
request that any Multicurrency Issuing Bank issue, and no
Multicurrency Issuing Bank shall issue: (1) any Multicurrency Letter
of Credit if, after giving effect to such issuance, the Total
Utilization of Multicurrency Facility Commitments would exceed the
Multicurrency Facility Commitments then in effect; (2) any
Multicurrency Letter of Credit if, after giving effect to such
issuance, the Multicurrency Letter of Credit Usage would exceed the
Multicurrency Letter of Credit Sublimit then in effect; or (3) any
standby letter of credit having an expiration date later than the
earlier of (I) the Multicurrency Facility Commitment Termination Date
and (II) the date which is one year from the date of issuance of such
standby letter of credit. Subject to the foregoing, a Multicurrency
Issuing Bank may agree that a standby letter of credit will
automatically be extended for one or more successive periods not to
exceed one year each unless such Multicurrency Issuing Bank elects not
to extend for any such additional period; provided, no Multicurrency
Issuing Bank shall extend any such letter of credit if it has
knowledge that an Event of Default has occurred and is continuing at
the time such Multicurrency Issuing Bank must elect to allow such
extension.
(ii) Whenever Company desires the issuance of a Multicurrency
Letter of Credit, it shall deliver to the applicable Multicurrency
Issuing Bank and to Global Agent an Issuance Notice no later than 12:00
noon (London, England time) at least four Business Days or such shorter
period as may be agreed to by such Multicurrency Issuing Bank in any
particular instance, in advance of the proposed date of issuance. Upon
satisfaction or waiver of the conditions set forth in Section 3.2, the
applicable Multicurrency Issuing Bank shall issue the requested
Multicurrency Letter of Credit in accordance with such Multicurrency
Issuing Bank's standard operating procedures. Upon the issuance of any
Multicurrency Letter of Credit, the applicable Multicurrency Issuing
Bank shall notify Global Agent and Global Agent shall promptly notify
each Multicurrency Facility Lender of such issuance, which notice shall
be accompanied by a copy of such Letter of Credit and the amount of
such Lender's respective participation in such Letter of Credit
pursuant to Section 2.3(b)(iv). Within fifteen (15) days after the end
of each month ending after the Closing Date, so long as any
Multicurrency Letter of Credit shall have been outstanding during such
month, each Multicurrency Issuing Bank shall deliver to Global Agent
and Global Agent shall deliver to each applicable Lender a report
setting forth for such month the daily aggregate amount available to be
drawn under the Multicurrency Letters of Credit that were outstanding
during such month.
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(iii) In the event any Multicurrency Issuing Bank has
determined to honor a drawing under a Multicurrency Letter of Credit,
it shall immediately notify Company, Multicurrency Facility Agent and
Global Agent, and Company shall reimburse the applicable Multicurrency
Issuing Bank on or before the Business Day immediately following the
date on which such drawing is honored (the "Multicurrency
Reimbursement Date") in an amount in the applicable Multicurrency and
in Same Day Funds equal to the amount of such honored drawing.
Anything contained herein to the contrary notwithstanding, (1) unless
Company shall have notified Global Agent, Multicurrency Facility Agent
and Multicurrency Issuing Bank prior to 11:00 a.m. (London, England
City time) on the date such drawing is honored that Company intends to
reimburse the applicable Multicurrency Issuing Bank for the amount of
such honored drawing with funds other than the proceeds of
Multicurrency Facility Loans, Company shall be deemed to have given a
timely Funding Notice to Global Agent requesting the applicable
Lenders to make Multicurrency Facility Loans at the Multicurrency Rate
on the Multicurrency Reimbursement Date in an amount in Dollars equal
to the amount of such honored drawing, and (2) subject to satisfaction
or waiver of the conditions specified in Section 3.2, such Lenders
shall on the Multicurrency Reimbursement Date make Multicurrency
Facility Loans at the Multicurrency Rate in the amount of such honored
drawing, the proceeds of which shall be applied directly by Global
Agent to reimburse Multicurrency Issuing Bank for the amount of such
honored drawing; and provided further, if for any reason proceeds of
Multicurrency Facility Loans are not received by Multicurrency Issuing
Bank on the Multicurrency Reimbursement Date in an amount equal to the
amount of such honored drawing, Company shall reimburse Multicurrency
Issuing Bank, on demand, in an amount in Same Day Funds equal to the
excess of the amount of such honored drawing over the aggregate amount
of such Multicurrency Facility Loans, if any, which are so received.
Nothing in this Section 2.3(b)(iii) shall be deemed to relieve any
applicable Lender from its obligation to make Multicurrency Facility
Loans on the terms and conditions set forth herein, and Company shall
retain any and all rights it may have against any such Lender
resulting from the failure of such Lender to make such Multicurrency
Facility Loan under this Section 2.3(b)(iii).
(iv) Immediately upon the issuance of each Multicurrency
Letter of Credit, each Lender holding a Multicurrency Facility
Commitment shall be deemed to have irrevocably purchased, and hereby
agrees to irrevocably purchase, from the applicable Multicurrency
Issuing Bank a participation in such Multicurrency Letter of Credit and
any drawings honored thereunder in an amount equal to such Lender's Pro
Rata Share of the maximum amount which is or at any time may become
available to be drawn thereunder. In the event that Company shall fail
for any reason to reimburse a Multicurrency Issuing Bank as provided in
Section 2.3(b)(iii), such Multicurrency Issuing Bank shall notify
Multicurrency Facility Agent and Multicurrency Facility Agent shall
promptly notify each applicable Lender of the unreimbursed amount of
such honored drawing and of such Lender's respective participation
therein. Each such notice shall state the aggregate amount of
Multicurrency Letters of Credit outstanding as of the date of such
notice and an itemization of the amount of each Multicurrency in which
such Multicurrency Letter of Credit are denominated, together with
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the Dollar Equivalent thereof. Promptly after receipt by Multicurrency
Facility Agent of such notice, Multicurrency Facility Agent shall
notify each Multicurrency Facility Lender thereof, and within five (5)
Business Days, each Multicurrency Facility Lender shall deliver to
Multicurrency Facility Agent an amount equal to its respective
participation in Same Day Funds in the applicable Multicurrency at
Multicurrency Facility Agent's Principal Office; provided, if
Multicurrency Facility Agent shall have received, on or prior to the
fourth day after the date of receipt of the written notice of
Multicurrency Issuing Bank referred to herein, a notice from any
Multicurrency Lender that such Multicurrency Lender intends to fund,
at its election as determined in its discretion, its participation in
such Multicurrency Letters of Credit in Dollars, then Multicurrency
Facility Agent shall promptly notify each other Multicurrency Lender
of such election and all Multicurrency Facility Lenders shall fund
their respective participations in Dollars; provided further, in such
event from and after such date the applicable Multicurrency Letters of
Credit to which such participations relate shall automatically be
converted (at the Spot Rate of Exchange for the Dollar Equivalent of
the applicable Multicurrency determined as of the date of such
conversion) to, and thereafter for all purposes hereof be treated as,
Multicurrency Letters of Credit the reimbursement obligations of
Company with respect to which are denominated in Dollars. Upon receipt
of any such amount, Multicurrency Facility Agent shall make available
to the applicable Multicurrency Issuing Bank an amount equal to the
aggregate amount of all participations purchased at Multicurrency
Issuing Bank's Principal Office or such other office specified by the
applicable Multicurrency Issuing Bank not later than 12:00 noon
(London, England time) on the first Business Day after the date
notified by Multicurrency Facility Agent. In the event that any
applicable Lender fails to make available to the applicable
Multicurrency Issuing Bank on such Business Day the amount of such
Lender's participation in such Multicurrency Letter of Credit as
provided in this Section 2.3(b)(iv), such Multicurrency Issuing Bank
shall be entitled to recover such amount on demand from such Lender
together with interest thereon at the rate customarily used by
Multicurrency Issuing Bank for the correction of errors among banks
for three Business Days and thereafter at the rate applicable to
Multicurrency Loans pursuant to Section 2.9. Nothing in this Section
2.3(b)(iv) shall be deemed to prejudice the right of any applicable
Lender to recover from a Multicurrency Issuing Bank any amounts made
available by such Lender to such Multicurrency Issuing Bank pursuant
to this Section in the event that it is determined by the final
judgment of a court of competent jurisdiction that the payment with
respect to a Multicurrency Letter of Credit in respect of which
payment was made by such Lender constituted gross negligence or
willful misconduct on the part of such Multicurrency Issuing Bank. In
the event the applicable Multicurrency Issuing Bank shall have been
reimbursed by other applicable Lenders pursuant to this Section
2.3(b)(iv) for all or any portion of any drawing honored by such
Multicurrency Issuing Bank under a Multicurrency Letter of Credit,
such Multicurrency Issuing Bank shall distribute to Multicurrency
Facility Agent, and Multicurrency Facility Agent shall in turn
distribute to each applicable Lender which has paid all amounts
payable by it under this Section 2.3(b)(iv) with respect to such
honored drawing such Lender's Pro Rata Share of all payments
subsequently received by such Multicurrency Issuing Bank from Company
in reimbursement of such honored drawing when such payments are
received. Any such
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distribution shall be made to an applicable Lender at its Lending
Office or at such other address as such Lender may request.
(c) Letters of Credit - Generally.
(i) In determining whether to honor any drawing under any
Letter of Credit by the beneficiary thereof, the applicable Issuing
Bank shall be responsible only to examine the documents delivered under
such Letter of Credit with reasonable care so as to ascertain whether
they appear on their face to be in accordance with the terms and
conditions of such Letter of Credit. As between Company and any
Issuing Bank, Company assumes all risks of the acts and omissions of,
or misuse of the Letters of Credit issued by such Issuing Bank by, the
respective beneficiaries of such Letters of Credit. In furtherance and
not in limitation of the foregoing, no Issuing Bank shall be
responsible for: (1) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any such Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (2) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such 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; (3)
failure of the beneficiary of any such Letter of Credit to comply
fully with any conditions required in order to draw upon such Letter
of Credit; (4) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (5) errors in
interpretation of technical terms; (6) any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof;
(7) the misapplication by the beneficiary of any such Letter of Credit
of the proceeds of any drawing under such Letter of Credit; or (8) any
consequences arising from causes beyond the control of such Issuing
Bank, including any Governmental Acts, and none of the above shall
affect or impair, or prevent the vesting of, any Issuing Bank's rights
or powers hereunder. Without limiting the foregoing and in furtherance
thereof, any action taken or omitted by any Issuing Bank under or in
connection with the Letters of Credit issued thereby or any documents
and certificates delivered thereunder, if taken or omitted in good
faith, shall not put such Issuing Bank under any resulting liability
to Company. Notwithstanding anything to the contrary contained in this
Section 2.3(c)(i), Company shall retain any and all rights it may have
against any Issuing Bank for any liability arising solely out of the
gross negligence or willful misconduct of such Issuing Bank, as
determined by a final judgment of a court of competent jurisdiction.
(ii) The obligation of Company to reimburse any Issuing Bank
for drawings honored under the Letters of Credit issued thereby and to
repay any Facility Loans made by Lenders pursuant to Section
2.3(a)(iii) or 2.3(b)(iii) and the obligations of Lenders under Section
2.3(a)(iv) or 2.3(b)(iv) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms hereof under all
circumstances including any of the following circumstances: (1) any
lack of validity or enforceability of any Letter of Credit; (2) the
existence of any claim, set-off, defense or other right which Company
or any Lender may have
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at any time against a beneficiary or any transferee of any Letter of
Credit (or any Persons for whom any such transferee may be acting),
any Issuing Bank, any Lender or any other Person or, in the case of a
Lender, against Company, whether in connection herewith, the
transactions contemplated herein or any unrelated transaction
(including any underlying transaction between Company or one of its
Subsidiaries and the beneficiary for which any Letter of Credit was
procured); (3) any draft or other document presented under any 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; (4) payment by an Issuing Bank under any Letter of Credit
issued thereby against presentation of a draft or other document
which does not substantially comply with the terms of such Letter of
Credit; (5) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or
any of its Subsidiaries; (6) any breach hereof or any other Credit
Document by any party thereto; (7) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing; or (8) the
fact that an Event of Default or a Default shall have occurred and be
continuing; provided, in each case, that payment by any Issuing Bank
under any Letter of Credit issued thereby shall not have constituted
gross negligence or willful misconduct of such Issuing Bank under the
circumstances in question (as determined by a final judgment of a court
of competent jurisdiction).
(iii) In addition to amounts payable as provided herein,
Company hereby agrees to protect, indemnify, pay and save harmless each
Issuing Bank from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of
internal counsel) which such Issuing Bank may incur or be subject to as
a consequence, direct or indirect, of (1) the issuance of any Letter of
Credit by such Issuing Bank, other than as a result of (A) the gross
negligence or willful misconduct of such Issuing Bank as determined by
a final judgment of a court of competent jurisdiction, or (B) the
wrongful dishonor by such Issuing Bank of a proper demand for payment
made under any Letter of Credit issued thereby, or (2) the failure of
such Issuing Bank to honor a drawing under any such Letter of Credit as
a result of any Governmental Act.
(d) Collateral Account.
(i) Global Agent is hereby authorized to establish and
maintain at its Principal Office, as a blocked account in the name of
Global Agent and under the sole dominion and control thereof, a
restricted deposit account designated as "Stryker Corporation
Collateral Account" (the "Collateral Account"). All amounts at any time
held in the Collateral Account shall be beneficially owned by Company
but shall be held in the name of Global Agent hereunder, for the
benefit of Lenders, as collateral security for the Obligations upon the
terms and conditions set forth herein. Company shall have no right to
withdraw, transfer or, except as expressly set forth herein, otherwise
receive any funds deposited into the Collateral Account. Anything
contained herein to the contrary notwithstanding, the Collateral
Account shall be subject to such applicable laws, and such applicable
regulations of the Board of Governors of the Federal Reserve System and
of any other appropriate banking or
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governmental authority, as may now or hereafter be in effect. All
deposits of funds in the Collateral Account shall be made by wire
transfer (or, if applicable, by intra-bank transfer from another
account of Company) of immediately available funds, in each case
addressed to Global Agent. Company shall, promptly after initiating a
transfer of funds to the Collateral Account, give notice to Global
Agent by telefacsimile of the date, amount and method of delivery of
such deposit. Any Cash held in the Collateral Account shall bear
interest at the standard rate paid by Bank of America to its customers
for deposits of like amounts and terms. Subject to Global Agent's
rights hereunder, any interest earned on deposits of Cash in the
Collateral Account shall be deposited directly in, and held in the
Collateral Account.
(ii) Upon the occurrence of an Event of Default, Company shall
pay to Global Agent an amount (the "Applicable Aggregate Available
Amount") equal to the maximum amount that may at any time be drawn
under all Letters of Credit (in the case of Multicurrency Letters of
Credit, an amount equal to the Dollar Equivalent thereof) then
outstanding by delivering funds in such an amount for deposit in the
Collateral Account. If for any reason the aggregate amount delivered by
Company for deposit in the Collateral Account as aforesaid is less than
the Applicable Aggregate Available Amount, the aggregate amount so
delivered by Company shall be apportioned among all outstanding Letters
of Credit for purposes hereof in accordance with the ratio of the
maximum amount available for drawing under each such Letter of Credit
(as to such Letter of Credit, the "Applicable Maximum Available
Amount") to the Applicable Aggregate Available Amount. Upon any drawing
under any outstanding Letter of Credit in respect of which Company has
deposited in the Collateral Account any amounts described above, Global
Agent shall apply such amounts to reimburse the applicable Issuing Bank
for the amount of such drawing. In the event of cancellation or
expiration of any Letter of Credit in respect of which Company has
deposited in the Collateral Account any amounts described above, or in
the event of any reduction in the Applicable Maximum Available Amount
under such Letter of Credit, Global Agent shall apply the amount then
on deposit in the Collateral Account in respect of such Letter of
Credit (less, in the case of such a reduction, the Applicable Maximum
Available Amount under such Letter of Credit immediately after such
reduction) first, to the payment of any amounts payable to Global Agent
pursuant to Section 10.2, second, to the extent of any excess, to the
Cash collateralization pursuant to the terms of this Agreement of any
outstanding Letters of Credit in respect of which Company has failed to
pay all or a portion of the amounts described above (such Cash
collateralization to be apportioned among all such Letters of Credit in
the manner described above), third, to the extent of any further
excess, to the payment of any other outstanding Obligations in such
order as Global Agent shall elect, and fourth, to the extent of any
further excess, to the payment to whomsoever shall be lawfully entitled
to receive such funds.
2.4. Pro Rata Shares. (a) All Loans shall be made, and all
participations purchased pursuant to Section 2 shall be purchased, as the case
may be, by Lenders simultaneously and proportionately to their respective Pro
Rata Shares, it being understood that no Lender shall be responsible for any
default by any other Lender in such other Lender's obligation to make a Loan
requested hereunder or purchase a participation required hereby nor shall the
Facility Commitment of any Lender be
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increased or decreased as a result of a default by any other Lender in such
other Lender's obligation to make a Loan requested hereunder or purchase a
participation required hereby.
(b) Without limiting the generality of the foregoing, in the event any
Facility Lender shall fail to advance funds to Company as herein provided, the
applicable Facility Agent may in its discretion, but shall not be obligated to,
make a Facility Loan under the applicable Facility Note in its favor as a
Facility Lender of all or any portion of such amount or amounts (each, a
"Deficiency Advance") and shall thereafter be entitled to payments of principal
of and interest on such Deficiency Advance in the same manner and at the same
interest rate or rates to which such other applicable Facility Lender would have
been entitled had it made such advance under its Facility Note; provided, upon
payment to the applicable Facility Agent from such other Facility Lender of the
entire outstanding amount of each such Deficiency Advance, together with accrued
and unpaid interest thereon, from the most recent date or dates interest was
paid to such Facility Agent by Company on each applicable Facility Loan
comprising the Deficiency Advance, (i) with respect to US Facility Loans, at the
interest rate per annum for overnight borrowing by US Facility Agent from the
Federal Reserve Bank, and (ii) with respect to Multicurrency Facility Loans, at
the interest rate per annum equal to the Multicurrency Overnight Rate, such
payment shall be credited against the applicable Facility Note of the applicable
Facility Agent in full payment of such Deficiency Advance and Company shall be
deemed to have borrowed the amount of such Deficiency Advance from such other
Facility Lender as of the most recent date or dates, as the case may be, upon
which any payments of interest were made by Company thereon.
2.5. Use of Proceeds. The proceeds of the Term Loans and any Facility
Loans made on the Closing Date shall be applied by Company on the Closing Date
to fund a portion of the Acquisition Financing Requirements. The proceeds of the
other Facility Loans, Swing Line Loans and Letters of Credit shall be applied by
Company for working capital and general corporate purposes of Company and its
Subsidiaries, including Permitted Acquisitions. No portion of the proceeds of
any Credit Extension shall be used by Company or any of its Subsidiaries in any
manner that might cause such Credit Extension or the application of such
proceeds to violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation thereof or to
violate the Exchange Act, in each case as in effect on the date or dates of such
Credit Extension and such use of proceeds.
2.6. Evidence of Debt; Register; Lenders' Books and Records; Notes. (a)
Each Lender shall maintain on its internal records an account or accounts
evidencing the Indebtedness of Company to such Lender, including the amounts of
the Loans made by it and each repayment and prepayment in respect thereof. Any
such recordation shall be conclusive and binding on Company, absent manifest
error; provided, failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Facility Commitments or Company's
Obligations in respect of any applicable Loans; and provided further, in the
event of any inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern.
(b) With respect to the Facilities, the applicable Facility Agent shall
maintain, at its Principal Office, a register for the recordation of the names
and addresses of the applicable Lenders
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and the Facility Commitments and Loans of each such Lender from time to time,
and with respect to the Term Loans US Facility Agent shall maintain, at its
Principal Office, a register for the recordation of the names and addresses of
the applicable Lenders and Loans of each such Lender from time to time (each, a
"Register"). Each Register shall be available for inspection by Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice. The applicable Facility Agent shall record in the applicable Register
the applicable Facility Commitments and Loans, and each repayment or prepayment
in respect of the principal amount thereof, and any such recordation shall be
conclusive and binding on Company and each Lender, absent manifest error;
provided, failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Facility Commitment or Company's
Obligations in respect of any Loan. Company hereby designates Bank of America to
serve as Company's agent solely for purposes of maintaining each Register as
provided in this Section 2.6(b), and Company hereby agrees that, to the extent
Bank of America serves in such capacity, Bank of America and its officers,
directors, employees, Agents and affiliates shall constitute "Indemnitees".
(c) In addition to, and without limitation of, the other provisions of
this Section 2.6, from time to time, but in any event no less than once per each
calendar month during which any Multicurrency Facility Commitment is
outstanding, Multicurrency Facility Agent shall record in the applicable
Register the principal amount outstanding of each Multicurrency Facility Loan in
the applicable Multicurrency as well as the Dollar Equivalent thereof, based on
the Spot Rate of Exchange.
(d) If so requested by any Lender by written notice to Company (with a
copy to the applicable Facility Agent), Company shall execute and deliver to
such Lender (and/or, if applicable and if so specified in such notice, to any
Person who is an assignee of such Lender pursuant to Section 10.6) promptly
after Company's receipt of such notice, a Note or Notes to evidence such
Lender's Tranche A Term Loan, Tranche B Term Loan, Tranche C Term Loan, Facility
Loan or Swing Line Loan, as the case may be.
2.7. Interest Payments. (a) Except as otherwise set forth herein, each
Loan shall bear interest on the unpaid principal amount thereof from the date
made through maturity (whether by acceleration or otherwise) as follows:
(i) in the case of Term Loans and US Facility Loans (other
than US Swing Line Loans): (1) if a Base Rate Loan, at the sum of the
Base Rate plus the Applicable Margin; and (2) if a Eurodollar Rate
Loan, at the sum of the Eurodollar Rate plus the Applicable Margin;
(ii) in the case of US Swing Line Loans, (1) at the sum of the
Base Rate plus the Applicable Margin or (2) at the US Offered Rate;
(iii) in the case of Multicurrency Facility Loans (other than
Multicurrency Swing Line Loans) at the sum of the Multicurrency Rate
plus the Applicable Margin; and
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(iv) in the case of Multicurrency Swing Line Loans, the
Multicurrency Offered Rate.
Notwithstanding the foregoing, on the Closing Date, and for up to five Business
Days from the Closing Date, Company may borrow all Loans at the Base Rate plus
the Initial Base Rate Margin; provided, any portion of any Loan bearing interest
at the Base Rate plus the Initial Base Rate Margin that has not been repaid or
converted on or before the fifth Business Day after the Closing Date to a Loan
bearing interest at the rates specified above shall be deemed to be a Loan
bearing interest from the Closing Date at the Base Rate plus the Applicable
Margin.
(b) The basis for determining (i) the rate of interest with respect to
any Loan (except US Swing Line Loans and Multicurrency Facility Loans), and (ii)
the Interest Period with respect to any Eurodollar Rate Loan or any
Multicurrency Facility Loan, shall be selected by Company and notified to the
applicable Facility Agent and applicable Lenders pursuant to the applicable
Funding Notice or Conversion/Continuation Notice; provided, no Fixed Rate Loan
with an Interest Period in excess of one month shall be available until the
earlier of (1) the date that is ninety (90) days after the Closing Date, and (2)
the date that Syndication Agent notifies Company and Global Agent that the
primary syndication of the Loans and Commitments has been completed, as
determined by Syndication Agent. If on any day a Loan is outstanding with
respect to which notice has not been delivered to Global Agent in accordance
with the terms hereof specifying the applicable basis for determining the rate
of interest, then for that day (A) if such a Loan was a Eurodollar Rate Loan,
such Loan shall become a Base Rate Loan, and (B) if such Loan was a
Multicurrency Facility Loan, such Loan shall become a Multicurrency Facility
Loan with an Interest Period of one month.
(c) Notwithstanding anything contained herein to the contrary, in
connection with Eurodollar Rate Loans, there shall be no more than twenty (20)
Interest Periods outstanding at any time and, in connection with Multicurrency
Facility Loans, there shall be no more than ten (10) Interest Periods
outstanding at any time. In the event Company fails to specify an Interest
Period for any Fixed Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, Company shall be deemed to have selected an
Interest Period of one month.
(d) Interest payable hereunder shall be computed (i) in the case of
Base Rate Loans and Multicurrency Facility Loans denominated in British Pounds
Sterling, on the basis of a 365-day or 366-day year, as the case may be, and
(ii) in the case of Fixed Rate Loans denominated in any other Multicurrency, on
the basis of a 360-day year, in each case for the actual number of days elapsed
in the period during which it accrues. In computing interest on any Loan, the
date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate
Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on
the same day on which it is made, one day's interest shall be paid on that Loan.
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(e) Except as otherwise set forth herein, interest on each Loan shall
be payable in arrears on and to (i) each Interest Payment Date applicable to
that Loan; (ii) any prepayment of that Loan, whether voluntary or mandatory, to
the extent accrued on the amount being prepaid; and (iii) at maturity, including
final maturity.
(f) Company agrees to pay to each Issuing Bank, with respect to
drawings honored under any Letter of Credit issued thereby, interest on the
amount paid by such Issuing Bank in respect of each such honored drawing from
the date such drawing is honored to but excluding the date such amount is
reimbursed by or on behalf of Company at a rate equal to (i) in the case of US
Letters of Credit, for the period from the date such drawing is honored to but
excluding the applicable Reimbursement Date, the rate of interest otherwise
payable hereunder with respect to US Facility Loans that are Base Rate Loans,
and thereafter, a rate which is 2% per annum in excess of such rate; (ii) in the
case of Multicurrency Letters of Credit, for the period from the date such
drawing is honored to but excluding the applicable Reimbursement Date, the rate
of interest otherwise payable hereunder with respect to Multicurrency Swing Line
Loans if made by such Multicurrency Issuing Bank in the applicable
Multicurrency, and thereafter, a rate which is 2% per annum in excess of such
rate.
(g) Interest payable pursuant to Section 2.7(f) shall be computed on
the basis of a 360-day year for the actual number of days elapsed in the period
during which it accrues, and shall be payable on demand or, if no demand is
made, on the date on which the related drawing under a Letter of Credit is
reimbursed in full. Promptly upon receipt by an Issuing Bank of any payment of
interest pursuant hereto, (i) such Issuing Bank shall distribute to each
applicable Lender, out of the interest received by such Issuing Bank in respect
of the period from the date such drawing is honored to but excluding the date on
which such Issuing Bank is reimbursed for the amount of such drawing (including
any such reimbursement out of the proceeds of any Facility Loans), the amount
that such Lender would have been entitled to receive in respect of the letter of
credit fee that would have been payable in respect of such Letter of Credit for
such period if no drawing had been honored under such Letter of Credit, and (ii)
in the event such Issuing Bank shall have been reimbursed by Lenders for all or
any portion of such honored drawing, such Issuing Bank shall distribute to each
applicable Lender which has paid all amounts payable by it under Section 2.3(b)
with respect to such honored drawing such Lender's Pro Rata Share of any
interest received by such Issuing Bank in respect of that portion of such
honored drawing so reimbursed by such Lenders for the period from the date on
which Issuing Bank was so reimbursed by Lenders to but excluding the date on
which such portion of such honored drawing is reimbursed by Company. Any such
distribution shall be made to a Lender at its Lending Office or at such other
address as such Lender may request.
2.8. Conversion/Continuation. (a) Provided no Default or Event of
Default shall have occurred and then be continuing, Company shall have the
option:
(i) to convert at any time all or any part of any US Facility
Loan (except US Swing Line Loans) from one Type of US Facility Loan to
another Type of US Facility Loan; provided, a Eurodollar Rate Loan may
only be converted into a Base Rate Loan on the expiration of the
Interest Period applicable to such Eurodollar Rate Loan;
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(ii) upon the expiration of any Interest Period applicable to
any Eurodollar Rate Loan, to continue all or any portion of such Loans
as Eurodollar Rate Loans; and
(iii) upon the expiration of any Interest Period applicable to
any Multicurrency Facility Loans, to continue all or any portion of
such Loans as Multicurrency Facility Loans in the applicable
Multicurrency.
(b) Company shall deliver a Conversion/Continuation Notice to Global
Agent on or before 11:00 a.m. (New York City time) at least three Business Days
in advance of the proposed conversion date in the case of a conversion or a
continuation of any Loan, other than a Base Rate Loan (in which case such
Conversion/Continuation Notice shall be delivered on or before 11:00 a.m. (New
York City time) on the day of the proposed conversion). Except as otherwise
provided herein, a Conversion/Continuation Notice for conversion to, or
continuation of, any Eurodollar Rate Loans or continuation of any Multicurrency
Facility Loans (or, in any case, telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to effect a conversion or continuation in accordance
therewith.
2.9. Default Interest. Upon the occurrence and during the
continuation of an Event of Default, the principal amount of all Loans and, to
the extent permitted by applicable law, any interest payments on the Loans or
any fees or other amounts owed hereunder not paid when due, in each case whether
at stated maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand
at a rate that is 2% per annum in excess of the interest rate otherwise payable
hereunder with respect to the applicable Loans (or, in the case of any such fees
and other amounts, at a rate which is 2% per annum in excess of the interest
rate otherwise payable hereunder for Base Rate Loans); provided, in the case of
Fixed Rate Loans, upon the expiration of the Interest Period in effect at the
time any such increase in interest rate is effective, (i) Fixed Rate Loans that
are Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall
thereafter bear interest payable upon demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans, and
(ii) Fixed Rate Loans that are Multicurrency Facility Loans shall thereupon bear
interest payable upon demand at a rate which is 2% per annum in excess of the
interest rate otherwise payable hereunder for Multicurrency Facility Loans,
determined based on successive Interest Periods of one month each. Payment or
acceptance of the increased rates of interest provided for in this Section 2.9
is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of any Agent or any Lender.
2.10. Fees. (a) Company agrees to pay to US Facility Agent, for
distribution to each Lender having US Facility Exposure in proportion to such
Lender's Pro Rata Share, commitment fees equal to the product of (i) the
difference of (1) the US Facility Commitments, and (2) the sum of (A) the
aggregate principal amount of outstanding of US Facility Loans (not including US
Swing Line Loans), and (B) the aggregate face amount of all US Letters of Credit
then issued and unreimbursed, times (ii) the Applicable US Facility Commitment
Fee Percentage. All such commitment fees shall be calculated on the basis of a
360-day year and the actual number of days elapsed, and shall be
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payable quarterly in arrears on March 15, June 15, September 15 and December 15
of each year, commencing on the first such date to occur after the Closing Date,
and on the US Facility Commitment Termination Date. Promptly upon receipt by US
Facility Agent of any amount described in this Section 2.10(a), US Facility
Agent shall distribute to each Lender its Pro Rata Share of such amount.
(b) Company agrees to pay to Multicurrency Facility Agent, for
distribution to each Lender having Multicurrency Facility Exposure in proportion
to such Lender's Pro Rata Share, facility fees equal to the product of (i) the
aggregate amount of Multicurrency Facility Commitments, times (ii) the
Applicable Multicurrency Facility Fee Percentage. All such facility fees shall
be calculated on the basis of a 360-day year and the actual number of days
elapsed, and shall be payable quarterly in arrears on March 15, June 15,
September 15 and December 15 of each year, commencing on the first such date to
occur after the Closing Date, and on the Multicurrency Facility Commitment
Termination Date. Promptly upon receipt by Multicurrency Facility Agent of any
amount described in this Section 2.10(b), Multicurrency Facility Agent shall
distribute to each Lender its Pro Rata Share of such amount.
(c) Company agrees to pay the following fees with respect to US Letters
of Credit:
(i) a fronting fee, payable directly to US Issuing Bank for
its own account, equal to 0.250%, per annum, of the aggregate daily
amount available to be drawn under all outstanding US Letters of
Credit, and
(ii) a letter of credit fee, payable to US Facility Agent for
distribution to each Lender having US Facility Exposure in proportion
to such Lender's Pro Rata Share, equal to the product of (1) the
Applicable Margin for US Facility Loans that are Eurodollar Rate Loans,
times (2) the daily amount available to be drawn under all such Letters
of Credit.
All such fees shall be calculated on the basis of a 360-day year and the actual
number of days elapsed, and shall be payable quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, commencing on the first such
date to occur after the Closing Date, and on the US Facility Commitment
Termination Date. Promptly upon receipt by US Facility Agent of any amount
described in clause (ii) above, US Facility Agent shall distribute to each
Lender its Pro Rata Share of such amount.
(d) Company agrees to pay the following fees with respect to
Multicurrency Letters of Credit:
(i) a fronting fee, payable directly to each
Multicurrency Issuing Bank for its own account, equal to 0.250%, per
annum, of the Dollar Equivalent of the aggregate daily amount available
to be drawn under all outstanding Multicurrency Letters of Credit
issued thereby, and
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(ii) a letter of credit fee, payable to Global Agent for
distribution to each Lender having Multicurrency Facility Exposure in
proportion to such Lender's Pro Rata Share, equal to the product of
(1) the Applicable Margin for Multicurrency Facility Loans (other than
Multicurrency Swing Line Loans), times (2) the Dollar Equivalent of
the daily amount available to be drawn under all such Letters of
Credit.
All such fees shall be calculated on the basis of a 360-day year and the actual
number of days elapsed, and shall be payable quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, commencing on the first such
date to occur after the Closing Date, and on the Multicurrency Facility
Commitment Termination Date. Promptly upon receipt by Multicurrency Facility
Agent of any amount described in clause (ii) above, Multicurrency Facility Agent
shall distribute to each Lender its Pro Rata Share of such amount.
(e) Without duplication of any of the fees set forth in Sections
2.10(c) and 2.10(d), Company agrees to pay documentary and processing charges
payable directly to each Issuing Bank for its own account in accordance with
such Issuing Bank's standard schedule for such charges in effect at the time of
such issuance, amendment, transfer or payment, as the case may be. For purposes
of calculating any fees payable under this Section, the daily amount available
to be drawn under any Letter of Credit shall be determined as of the close of
business on any date of determination.
(f) Company agrees to pay to Agents, for their respective accounts, the
fees set forth in the separate letter agreement among Company and Agents at the
times and in the amounts set forth therein.
2.11. Scheduled Payments/Reductions. (a) The Term Loans shall be
payable as to principal in the aggregate annual amounts set forth below in
consecutive quarterly installments (each, an "Installment") on the last day of
each Fiscal Quarter (each, an "Installment Date") occurring in each of the
Fiscal Years set forth below, commencing March 31, 1999, with 25% of each annual
amount being paid on each Installment Date:
Tranche A Tranche B Tranche C
Fiscal Term Loan Term Loan Term Loan
Year Installments Installments Installments
1999 --- $2,900,000 $2,850,000
2000 $ 57,500,000 $2,900,000 $2,850,000
2001 $ 86,250,000 $2,900,000 $2,850,000
2002 $115,000,000 $2,900,000 $2,850,000
2003 $143,750,000 $2,900,000 $2,850,000
2004 $172,500,000 $2,900,000 $2,850,000
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Tranche A Tranche B Tranche C
Fiscal Term Loan Term Loan Term Loan
Year Installments Installments Installments
2005 --- $272,600,000 $ 2,850,000
2006 --- --- $265,050,000
Notwithstanding the foregoing, (i) such Installments shall be reduced in
connection with any voluntary or mandatory prepayments of the Tranche A Term
Loans, the Tranche B Term Loans or the Tranche C Term Loans, as the case may be,
in accordance with Sections 2.12(a) or 2.13; and (ii) the Tranche A Term Loans,
the Tranche B Term Loans and the Tranche C Term Loans, together with all other
amounts owed hereunder with respect thereto, shall be paid in full no later than
the Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date or
the Tranche C Term Loan Maturity Date, respectively, and the final Installment
payable by Company on each such date shall be in an amount sufficient to repay
all amounts owing by Company hereunder with respect to the Tranche A Term Loans,
the Tranche B Term Loans or the Tranche C Term Loans, as applicable.
(b) The Multicurrency Facility Commitments shall be permanently reduced
in the aggregate annual amounts set forth below in consecutive quarterly
installments (each, a "Reduction") on the last day of each Fiscal Quarter (each,
a "Reduction Date") occurring in each of the Fiscal Years set forth below,
commencing March 31, 2000, with 25% of each annual amount being reduced on each
Installment Date:
Multicurrency Facility
Fiscal Commitments Reductions
Year
2000 $25,000,000
2001 $37,500,000
2002 $50,000,000
2003 $62,500,000
2004 $75,000,000
Notwithstanding the foregoing, such Reductions shall be reduced in connection
with any voluntary or mandatory reductions of the Multicurrency Facility
Commitments in accordance with Sections 2.12(b) or 2.13.
2.12. Voluntary Prepayments/Reductions.
(a) Prepayments. (i) Any time and from time to time:
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(1) with respect to Term Loans, Company may prepay
any such Loans on any Business Day in whole or in part, in an
aggregate minimum amount of $10,000,000 and integral multiples
of $1,000,000 in excess of that amount;
(2) with respect to US Facility Loans, Company may
prepay any such Loans on any Business Day in whole or in part
in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount;
(3) with respect to US Swing Line Loans, Company may
prepay any such Loans on any Business Day in whole or in part
in an aggregate minimum amount of $500,000, and in integral
multiples of $100,000 in excess of that amount;
(4) with respect to Multicurrency Facility Loans,
Company may prepay any such Loans on any Business Day in whole
or in part in an aggregate minimum amount of 5,000,000 Units
of the applicable Multicurrency and in integral multiples of
1,000,000 Units of such Multicurrency in excess of that
amount; and
(5) with respect to Multicurrency Swing Line Loans,
Company may prepay any such Loans on any Business Day in whole
or in part in an aggregate minimum amount of 5,000,000 Units
of the applicable Multicurrency and in integral multiples of
100,000 Units of such Multicurrency in excess of that amount.
(ii) All such prepayments shall be made:
(1) upon not less than one Business Day's prior
written or telephonic notice, in the case of Base Rate Loans;
(2) upon not less than three Business Days' prior
written or telephonic notice, in the case of Eurodollar Rate
Loans;
(3) upon written or telephonic notice on the date of
prepayment, in the case of US Swing Line Loans;
(4) upon not less than three Business Days' prior
written or telephonic notice in the case of Multicurrency
Facility Loans (other than Multicurrency Swing Line Loans);
and
(5) upon written or telephonic notice on the date of
prepayment in the case of Multicurrency Swing Line Loans;
in each case given to the applicable Facility Agent and the
applicable Swing Line Lender by 12:00 noon (New York City
time, London, England time or Tokyo, Japan time, as
applicable) on the date required and, if given by telephone,
promptly confirmed in writing to the applicable Facility Agent
(and such Facility Agent will
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promptly transmit such telephonic or original notice for
Term Loans or Facility Loans, as the case may be, by
telefacsimile or telephone to each Lender). Upon the giving
of any such notice, the principal amount of the Loans
specified in such notice shall become due and payable on the
prepayment date specified therein.
(b) Reductions.
(i) Company may, upon not less than three Business Days'
prior written or telephonic notice confirmed in writing to US Facility
Agent (which original written or telephonic notice US Facility Agent
will promptly transmit by telefacsimile or telephone to each
applicable Lender), at any time and from time to time terminate in
whole or permanently reduce in part, without premium or penalty, the
US Facility Commitments in an amount up to the amount by which the US
Facility Commitments exceed the Total Utilization of US Facility
Commitments at the time of such proposed termination or reduction;
provided, any such partial reduction of the US Facility Commitments
shall be in an aggregate minimum amount of $10,000,000 and integral
multiples of $1,000,000 in excess of that amount. Company's notice to
US Facility Agent shall designate the date (which shall be a Business
Day) of such termination or reduction and the amount of any partial
reduction, and such termination or reduction of the US Facility
Commitments shall be effective on the date specified in Company's
notice and shall reduce the US Facility Commitment of each Lender
proportionately to its Pro Rata Share thereof.
(ii) Company may, upon not less than three Business Days'
prior written or telephonic notice confirmed in writing to
Multicurrency Facility Agent (which original written or telephonic
notice Multicurrency Facility Agent will promptly transmit by
telefacsimile or telephone to each applicable Lender), at any time and
from time to time terminate in whole or permanently reduce in part,
without premium or penalty, the Multicurrency Facility Commitments in
an amount up to the amount by which the Multicurrency Facility
Commitments exceed the Total Utilization of Multicurrency Facility
Commitments at the time of such proposed termination or reduction;
provided, any such partial reduction of the Multicurrency Facility
Commitments shall be in an aggregate minimum amount of $10,000,000 and
integral multiples of $1,000,000 in excess of that amount. Company's
notice to Multicurrency Facility Agent shall designate the date (which
shall be a Business Day) of such termination or reduction and the
amount of any partial reduction, and such termination or reduction of
the Multicurrency Facility Commitments shall be effective on the date
specified in Company's notice and shall reduce the Multicurrency
Facility Commitment of each Lender proportionately to its Pro Rata
Share thereof.
2.13. Mandatory Prepayments/Reductions. (a) No later than the first
Business Day following the date of receipt by Company or any of its Subsidiaries
of any Net Asset Sale Proceeds, Company shall prepay the Loans and/or the
Facility Commitments shall be permanently reduced as set forth in Section
2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided,
so long as no Default or Event of Default shall have occurred and be continuing,
at any time the Reduced Leverage/Improved Ratings Status is in effect, Company
shall have the option, directly or
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through one or more of its Subsidiaries, to invest such Net Asset Sale Proceeds
(or, at any time the Reduced Leverage/Improved Ratings Status is not in effect,
up to $25,000,000 in each Fiscal Year, plus 50% of such Net Asset Sale Proceeds
in excess of $25,000,000) within two hundred seventy (270) days of receipt
thereof in productive assets of the general type used in the business of Company
and its Subsidiaries; provided further, pending any such investment all such Net
Asset Sale Proceeds shall be applied to prepay outstanding Facility Loans
(without a reduction in Facility Commitments).
(b) No later than the first Business Day following the date of receipt
by Company or any of its Subsidiaries, or Global Agent as loss payee, of any Net
Insurance/Condemnation Proceeds, Company shall prepay the Loans and/or the
Facility Commitments shall be permanently reduced as set forth in Section
2.14(b) in an aggregate amount equal to such Net Insurance/Condemnation
Proceeds; provided, (i) so long as no Default or Event of Default shall have
occurred and be continuing, and (ii) to the extent no Material Adverse Effect
shall have occurred as of the date of, and after giving effect to, the receipt
of such Net Insurance/Condemnation Proceeds, Company shall have the option,
directly or through one or more of its Subsidiaries to invest such Net Insur
ance/Condemnation Proceeds within two hundred seventy (270) days of receipt
thereof in productive assets of the general type used in the business of Company
and its Subsidiaries, which investment may include the repair, restoration or
replacement of the applicable assets of Company or its Subsidiaries; provided
further, pending any such investment all such Net Insurance/Condemnation
Proceeds, as the case may be, shall be applied to prepay outstanding Facility
Loans (without a reduction in Facility Commitments).
(c) On the date of receipt by Company or any of its Subsidiaries of any
Cash proceeds from a capital contribution to, or the issuance of any equity
Securities of, Company or any of its Subsidiaries (except (i) to Company or any
Wholly-Owned Subsidiary, (ii) with respect to any Cash proceeds that are used as
consideration for any Permitted Acquisition within one hundred twenty (120) days
of the receipt thereof and (iii) with respect to the exercise of any option
granted to employees or directors of Company pursuant to any compensation plan
of Company), Company shall prepay the Loans and/or the Facility Commitments
shall be permanently reduced as set forth in Section 2.14(b) in an aggregate
amount equal to 50% of such proceeds, net of underwriting discounts and
commissions and other reasonable costs and expenses associated therewith,
including reasonable legal fees and expenses; provided, during any period in
which the Reduced Leverage/Improved Ratings Status is in effect, Company shall
not be required to make the prepayment and/or reduction otherwise required
hereby.
(d) On the date of receipt by Company or any of its Subsidiaries of any
Cash proceeds from incurrence of any Indebtedness of Company or any of its
Subsidiaries (except to Company or any Wholly-Owned Subsidiary and except with
respect any Indebtedness permitted to be incurred pursuant to Section 6.1),
Company shall prepay the Loans and/or the Facility Commitments shall be
permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal
to 100% of such proceeds, net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith, including reasonable
legal fees and expenses.
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(e) Within thirty days of receipt by Company or any of its Subsidiaries
of any Cash proceeds from any Permitted Securitization Transaction, Company
shall prepay the Loans and/or the Facility Commitments shall be permanently
reduced as set forth in Section 2.14(b) in an aggregate amount equal to 100% of
such proceeds, net of underwriting discounts and commissions and other
reasonable costs and expenses associated therewith, including reasonable legal
fees and expenses; provided that no such prepayment or reduction of Facility
Commitments shall be required pursuant to this Section 2.13(e) so long as and to
the extent that (x) such Cash proceeds from a Permitted Securitization
Transaction are received by Company or any of its Subsidiaries prior to December
31, 1999, (y) the aggregate amount of such Cash proceeds does not exceed
$150,000,000 and (z) such Cash proceeds are applied within thirty days of
receipt thereof to the extent necessary to repay outstanding US Facility Loans
to the extent any US Facility Loans are outstanding on the date of receipt of
such Cash proceeds.
(f) In the event that there shall be Consolidated Excess Cash Flow for
any Fiscal Year (commencing with Fiscal Year 1999), Company shall, no later than
ninety (90) days after the end of such Fiscal Year, prepay the Loans and/or the
Facility Commitments shall be permanently reduced as set forth in Section
2.14(b) in an aggregate amount equal to 50% of such Consolidated Excess Cash
Flow; provided, during any period in which the Reduced Leverage/Improved Ratings
Status shall be in effect, Company shall not be required to make the prepayment
and/or reduction otherwise required hereby.
(g) Company shall from time to time prepay first, the US Swing Line
Loans, and second, the US Facility Loans to the extent necessary so that the
Total Utilization of US Facility Commitments shall not at any time exceed the US
Facility Commitments then in effect.
(h) Company shall from time to time prepay first, the Multicurrency
Swing Line Loans, and second, the Multicurrency Facility Loans to the extent
necessary so that the Total Utilization of Multicurrency Facility Commitments
shall not at any time exceed Multicurrency Facility Commitments then in effect.
Notwithstanding the foregoing, in the event that any adjustment by Multicurrency
Facility Agent of the Dollar Equivalent of the outstanding Multicurrency Loans
pursuant to Section 2.6(c) would cause the Total Utilization of Multicurrency
Facility Commitments to exceed 103% of the Multicurrency Facility Commitments
then in effect, Company shall, immediately on the effective date of such
adjustment, repay the portion of such continued Loan (applying the new Spot Rate
of Exchange) necessary to ensure that thereafter the Total Utilization of
Multicurrency Facility Commitments does not exceed the Multicurrency Facility
Commitments then in effect.
(i) Concurrently with any prepayment of the Loans and/or reduction of
the Facility Commitments pursuant to Sections 2.13(a) through 2.13(f), Company
shall deliver to Global Agent and each Facility Agent a certificate of its
Authorized Officers demonstrating the calculation of the amount of the
applicable net proceeds or Consolidated Excess Cash Flow, as the case may be,
that gave rise to such prepayment and/or reduction. In the event that Company
shall subsequently determine that the actual net proceeds amount was greater
than the amount set forth in such certificate, Company shall promptly make an
additional prepayment of the Loans and/or the
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Commitments shall be permanently reduced in an amount equal to the amount of
such excess, and Company shall concurrently therewith deliver to Global Agent
and each Facility Agent a certificate of its Authorized Officers demonstrating
the derivation of such excess.
2.14. Application of Prepayments/Reductions. (a) Any prepayment of any
Loan pursuant to Section 2.12(a) shall be applied as specified by Company in the
applicable notice of prepayment; provided, in the event Company fails to specify
the Loans to which any such prepayment shall be applied, such prepayment shall
be applied as follows:
first, to repay outstanding US Swing Line Loans and
Multicurrency Swing Line Loans on a pro rata basis, in accordance with
the respective outstanding principal amounts thereof (which, in the
case of Multicurrency Swing Line Loans shall be the Dollar Equivalent
of the aggregate amount of all such Loans based on the Spot Rate of
Exchange as of the date of such prepayment) to the full extent
thereof;
second, to repay outstanding US Facility Loans in accordance
with the respective outstanding principal amounts thereof to the full
extent thereof; and
third, to prepay the Tranche A Term Loans, the Tranche B Term
Loans, the Tranche C Term Loans and the Multicurrency Facility Loans
(other than Multicurrency Swingline Loans) on a pro rata basis (in
accordance with the respective outstanding principal amounts thereof)
and shall be further applied on a pro rata basis to each scheduled
installment of principal or scheduled reduction, as the case may be of
the Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans
and the Multicurrency Facility Loans (other than Multicurrency
Swingline Loans).
(b) Any amount required to be paid pursuant to Sections 2.13(a)
through 2.13(f) (the "Applied Amount") shall be applied as follows:
first, to prepay the Term Loans on a pro rata basis (in
accordance with the respective outstanding principal amounts thereof)
and shall be further applied on a pro rata basis to each scheduled
installment of principal thereof that is unpaid at the time of such
prepayment;
second, to the extent of any remaining portion of the Applied
Amount, to prepay outstanding Swing Line Loans on a pro rata basis, in
accordance with the respective outstanding principal amounts thereof
(which, in the case of Multicurrency Swing Line Loans shall be the
Dollar Equivalent of the aggregate amount of all such Loans based o
the Spot Rate of Exchange as of the date of such prepayment ) to the
full extent thereof and to permanently reduce the Facility Commitments
to the full extent thereof by the amount of such prepayment;
third, to the extent of any remaining portion of the Applied
Amount, to prepay outstanding Facility Loans on a pro rata basis, in
accordance with the respective outstanding principal amounts thereof
(which, in the case of Multicurrency Facility Loans shall be the
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Dollar Equivalent of the aggregate amount of all such Loans based on
the Spot Rate of Exchange as of the date of such prepayment) to the
full extent thereof and to permanently reduce the Facility Commitments
to the full extent thereof by the amount of such prepayment; and
fourth, to the extent of any remaining portion of the Applied
Amount, to further permanently reduce the Facility Commitments on a pro
rata basis, in accordance with the respective principal amounts thereof
to the full extent thereof by the amount of such prepayment;
provided, if at any time (i) ▇▇▇▇▇'▇ has assigned to Company's long term
Indebtedness for borrowed money a rating of Baa1 or higher, and (ii) S&P has
assigned to Company's long term Indebtedness for borrowed money a rating of BBB+
or higher, then Company shall not be required to apply any portion of the
Applied Amount pursuant to subparts second through fourth of this sentence.
(c) Considering each Class of Loans being prepaid separately, any
prepayment thereof shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans, in each case in a manner
which minimizes the amount of any payments required to be made by Company
pursuant to Section 2.22.
2.15. Allocation of Certain Payments and Proceeds. If an Event of
Default has occurred and not been waived, and the maturity of the Obligations
has been accelerated pursuant to Section 8.1, all payments or proceeds received
by Agents hereunder in respect of any principal of, or interest on, the
Obligations, or in respect of any other of the Obligations, shall be applied by
Agents in the following order:
first, amounts due to Agents pursuant to Section 10.2, to be applied
for the ratable benefit of Agents;
second, amounts due to Lenders, if any, pursuant to Sections 2.18, 2.22
or 2.23, to be applied for the ratable benefit of Lenders without distinction or
preference as among them;
third, amounts due to Lenders pursuant to Sections 2.10 and 10.2, to be
applied for the ratable benefit of Lenders without distinction or preference as
among them;
fourth, amounts due to Agents pursuant to Section 2.10(f), to be
applied in accordance therewith;
fifth, payments of interest on Loans, to be applied for the ratable
benefit of Lenders, without distinction or preference as among Term Loans,
Multicurrency Facility Loans and US Facility Loans;
sixth, payments of principal on Loans, and all Obligations then payable
to any Lender Counterparty pursuant to a Hedge Agreement permitted hereby, to be
applied for the ratable benefit of Lenders and such Lender Counterparties,
without distinction or preference as among Term Loans, Multicurrency Facility
Loans and US Facility Loans and such Hedge Agreements;
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seventh, amounts due to Agents or Lenders pursuant to Section 10.3,
to be applied for the ratable benefit of Agents and Lenders;
eighth, payments of all other Obligations due under any of the Credit
Documents, if any, to be applied for the ratable benefit of Lenders and Agents;
and
ninth, any surplus remaining after application as provided for herein,
to Company or as otherwise may be required by applicable law.
2.16. General Provisions Regarding Payments. (a) Except as set forth in
Section 2.16(b), all payments by Company of principal, interest, fees and other
Obligations, including Term Loans, US Facility Loans or US Letters of Credit,
shall be made in Same Day Funds in Dollars, in each case without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to US
Facility Agent not later than 12:00 noon (New York City time) on the date due at
its Principal Office for the account of Lenders; funds received by US Facility
Agent after that time on such due date shall be deemed to have been paid by
Company on the next succeeding Business Day. Upon receipt of any such payment,
US Facility Agent shall promptly pay each Lender its applicable Pro Rata Share
thereof.
(b) All payments by Company of principal, interest, fees and other
Obligations with respect to Multicurrency Facility Loans and Multicurrency
Letters of Credit shall be made in Same Day Funds in the applicable
Multicurrency, in each case without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to Multicurrency Facility Agent not
later than 1:00 p.m.(London, England time) on the date due at its Principal
Office for the account of Lenders; funds received thereafter on such due date
shall be deemed to have been paid by Company on the next succeeding Business
Day. Upon receipt of any such payment, Multicurrency Facility Agent shall
promptly pay to each Lender its applicable Pro Rata Share thereof.
(c) All payments in respect of the principal amount of any Loan shall
include payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments (and, in any event, any payments in respect of
any Loan on a date when interest is due and payable with respect to such Loan)
shall be applied to the payment of interest before application to principal.
(d) The applicable Facility Agent shall deem any payment by or on
behalf of Company hereunder that is not made both (i) in Dollars, in the case of
Term Loans and US Facility Loans, or in the applicable Multicurrency, in the
case of Multicurrency Facility Loans, and, in either case, in Same Day Funds and
(ii) prior to 12:00 noon (New York City time), in the case of Term Loans and US
Facility Loans, and prior to 1:00 p.m. (London, England time) in the case of
Multicurrency Facility Loans, to be a non-conforming payment. Any such payment
shall not be deemed to be received by the applicable Facility Agent until the
later of (x) the time such funds become available funds in the required Dollars
or the Multicurrency, as the case may be, and (y) the applicable next Business
Day. The applicable Facility Agent shall give prompt telephonic notice to
Company and each of the applicable Facility Lenders (confirmed in writing) if
any payment is non-conforming. Any
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non-conforming payment may constitute or become a Default or Event of Default in
accordance with the terms of Section 8.1(a). Interest shall continue to accrue
on any principal as to which a non-conforming payment is made until such funds
become available funds (but in no event less than the period from the date of
such payment to the next succeeding applicable Business Day) at the applicable
Default Rate or the Highest Lawful Rate, whichever is lower, from the date such
amount was due and payable until the date such amount is paid in full.
2.17. Ratable Sharing. Lenders hereby agree among themselves that if
any of them shall, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms hereof), by
realization upon security, through the exercise of any right of set-off or
banker's Lien, by counterclaim or cross action or by the enforcement of any
right under the Credit Documents or otherwise, or as adequate protection of a
deposit treated as Cash collateral under the Bankruptcy Code, receive payment or
reduction of a proportion of the aggregate amount of principal, interest,
amounts payable in respect of Letters of Credit, fees and other amounts then due
and owing to such Lender hereunder or under the other Credit Documents
(collectively, the "Aggregate Amounts Due" to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts
Due to such other Lender, then any Lender receiving such proportionately greater
payment shall (a) notify the applicable Facility Agent and each other Lender of
the receipt of such payment and (b) apply a portion of such payment to purchase
participations (which it shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of its portion of
such payment) in the Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion
to the Aggregate Amounts Due to them; provided, if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Company or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's Lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder. Notwithstanding anything in this Section 2.17 to the
contrary, any amount with respect to the Aggregate Amounts Due by or to any
Lender shall be calculated and thereafter be denominated in Dollars at the Spot
Rate of Exchange.
2.18. Increased Cost and Reduced Return. (a) If, after the date
hereof, the adoption of any applicable law, rule, or regulation, or any change
in any applicable law, rule, or regulation, or any change in the interpretation
or administration thereof by any Governmental Authority, central bank, or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its applicable Lending
Office) to any tax, duty, or other charge with respect to any Fixed
Rate Loans or any Note; or shall change the basis of taxation of any
amounts payable to such Lender (or its applicable Lending Office) under
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this Agreement or any Note in respect of any Fixed Rate Loans (other
than taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or such
applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, compulsory loan, or similar requirement
(other than the Applicable Reserve Requirement utilized in the
determination of the Eurodollar Rate or the Multicurrency Rate)
relating to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, such Lender (or
its applicable Lending Office), including the applicable Facility
Commitments of such Lender hereunder; or
(iii) shall impose on such Lender (or its applicable Lending
Office) or the London or applicable offshore interbank market any other
condition affecting this Agreement or any Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its applicable Lending Office) of making, converting into, continuing, or
maintaining or participating in any Fixed Rate Loan or to reduce any sum
received or receivable by such Lender (or its applicable Lending Office) under
this Agreement or any Note with respect to any Fixed Rate Loan, then Company
shall pay to such Lender on demand such amount or amounts as will compensate
such Lender for such increased cost or reduction. If any Lender requests
compensation by Company under this Section 2.18(a), Company may, by notice to
such Lender (with a copy to the applicable Facility Agent and Global Agent),
suspend the obligation of such Lender to make or continue Loans of the Type with
respect to which such compensation is requested, or to convert Loans of any
other Type into Loans of such Type, until the event or condition giving rise to
such request ceases to be in effect (in which case the provisions of Section
2.21 shall be applicable); provided, such suspension shall not affect the right
of such Lender to receive the compensation so requested.
(b) If any Lender shall have determined that the adoption of any
applicable law, rule, or regulation regarding capital adequacy or any change
therein or in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank, or comparable agency after the date hereof has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify Company and Agents of any event
of which it has knowledge, occurring after the date hereof, which will entitle
such Lender to compensation pursuant to this Section 2.18 and will designate a
different applicable Lending Office if such designation will
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avoid the need for, or reduce the amount of, such compensation and will not, in
the judgment of such Lender, be otherwise disadvantageous to it, as determined
in such Lender's sole discretion. Any Lender claiming compensation under this
Section 2.18 shall furnish to Company and Agents a statement setting forth the
reason and the additional amount or amounts to be paid to it hereunder which
shall be conclusive in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution methods.
2.19. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Fixed Rate Loan:
(a) the applicable Facility Agent in the Facility in which such Fixed
Rate Loan is to be made or continued or converted determines (which
determination shall be conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate or Multicurrency Rate, as the case may be, for such Interest
Period; or
(b) the Requisite Class Lenders in the Facility in which such Fixed
Rate Loan is to be made or continued or converted determine (which determination
shall be conclusive) and notify the applicable Facility Agent and Global Agent
that (i) the Eurodollar Rate will not adequately and fairly reflect the cost to
Lenders in such Facility of funding Fixed Rate Loans for such Interest Period or
(ii) that the Multicurrency Rate does not represent, in the case of
Multicurrency Facility Lenders, the effective cost to those Lenders for deposits
in the applicable Multicurrency of comparable amounts for the applicable
Interest Period;
then the applicable Facility Agent shall give Company prompt notice thereof
specifying the relevant Type of Loans and the relevant amounts or periods, and
so long as such condition remains in effect, the applicable Lenders in such
Facility or Facilities shall be under no obligation to make additional Loans of
such Type, continue Loans of such Type, or to convert Loans of any other Type
into Loans of such Type and Company shall, on the last day(s) of the then
current Interest Period(s) for the outstanding Loans of the affected Type,
either repay such Loans or convert such Loans into another Type of Loan in
accordance with the terms of this Agreement.
2.20. Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
applicable Lending Office to make, maintain, or fund any Fixed Rate Loans
hereunder, then such Lender shall promptly notify Company and such Lender's
obligation to make or continue any Fixed Rate Loans and to convert other Types
of Loans into such Fixed Rate Loans shall be suspended until such time as such
Lender may again make, maintain, and fund such Fixed Rate Loans (in which case
the provisions of Section 2.21 shall be applicable).
2.21. Treatment of Affected Loans. If the obligation of any Lender to
make a particular Type of Fixed Rate Loan or to continue, or to convert Loans of
any other Type into, Loans of a particular Type shall be suspended pursuant to
Section 2.18 or 2.20 (Loans of such Type being herein called "Affected Loans"
and such Type being herein called the "Affected Type"), such Lender's Affected
Loans shall be automatically converted into, in the case of the US Facility, a
Base Rate Loan or, in
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the case of the Multicurrency Facility, a Multicurrency Facility Alternative
Rate Loan (each referred to as a "Substitute Base Rate Loans") on the last
day(s) of the then current Interest Period(s) for Affected Loans (or, in the
case of a conversion required by Section 2.20, on such earlier date as such
Lender may specify to Company with a copy to the applicable Facility Agent and
Global Agent) and, unless and until such Lender gives notice as provided below
that the circumstances specified in Section 2.18 or 2.20 that gave rise to such
conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's Affected Loans shall be applied instead to its
Substitute Base Rate Loans; and
(b) all Loans that would otherwise be made or continued by such Lender
as Loans of the Affected Type shall be made or continued instead as Substitute
Base Rate Loans, and all Loans of such Lender that would otherwise be converted
into Loans of the Affected Type shall be converted instead into (or shall remain
as) Substitute Base Rate Loans.
If such Lender gives notice to Company (with a copy to the applicable Facility
Agent and Global Agent) that the circumstances specified in Section 2.18 or 2.20
that gave rise to the conversion of such Lender's Affected Loans pursuant to
this Section 2.21 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Loans of the Affected Type
made by other Lenders are outstanding, such Lender's Substitute Base Rate Loans
shall be automatically converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding Loans of the Affected Type, to the
extent necessary so that, after giving effect thereto, all Loans held by Lenders
holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective Pro Rata Shares applicable to the Facility in which the Affected
Loans were made.
2.22. Compensation. Upon the request of any Lender, Company shall pay
to such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a Fixed Rate Loan for any
reason (including, without limitation, any voluntary prepayment pursuant to
Section 2.12, any mandatory prepayment pursuant to Section 2.13 or the
acceleration of the Loans pursuant to Section 8.1) on a date other than the last
day of the Interest Period for such Loan; or
(b) any failure by Company (including, without limitation, the failure
of any condition precedent specified in Section 3) to borrow, convert, continue,
or prepay a Fixed Rate Loan on the date for such borrowing, conversion,
continuation, or prepayment specified in the relevant notice of borrowing,
prepayment, continuation, or conversion under this Agreement.
2.23. Taxes. (a) Any and all payments by Company to any Lender or any
Agent under this Agreement and any other Credit Document shall be made free and
clear of, and without deduction or withholding for, any Taxes. In addition,
Company shall pay all Other Taxes.
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(b) If Company shall be required by law to deduct or withhold any Taxes
or Other Taxes from or in respect of any sum payable hereunder to any Lender or
any Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section 2.23), such Lender or Agent, as the case may be, receives
and retains an amount equal to the sum it would have received and
retained had no such deductions or withholdings been made;
(ii) Company shall make such deductions and withholdings; and
(iii) Company shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law.
(c) Company agrees to indemnify and hold harmless each Lender and each
Agent for the full amount of Taxes and Other Taxes in the amount that the
respective Lender reasonably specifies as necessary to preserve the after-tax
yield Lender would have received if such Taxes or Other Taxes, as the case may
be, had not been imposed, and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes, as the case may be, were correctly or
legally asserted. Payment under this indemnification shall be made within 30
days after the date the applicable Lender or Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by Company of Taxes or
Other Taxes, Company shall furnish to each applicable Lender or the applicable
Facility Agent the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to such Lender or Agent.
(e) If Company is required to pay any amount to any Lender or Agent
pursuant to subsection (b) or (c) of this Section 2.23, then such Lender shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its applicable Lending Office so as to eliminate any
such additional payment by Company which may thereafter accrue, if such change
in the reasonable judgment of such Lender is not otherwise materially
disadvantageous to such Lender.
(f) 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 Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by Company or
the applicable Facility Agent, shall provide Company and the applicable Facility
Agent with (i) Internal Revenue Service Form 1001 or 4224, as appropriate (or if
such Lender is not a "bank" or other Person described in Section 881(c)(3) of
the Internal Revenue Code and cannot deliver either Internal Revenue Service
Form 1001 or 4224 pursuant to clause (i) above, a Certificate re Non-Bank
Status), or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is
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entitled to benefits under an income tax treaty to which the United States is a
party which establishes such Lender is not subject to withholding tax on
payments of interest or certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
and (iii) any other form or certificate required by any taxing authority
(including any certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is entitled to an exemption
from a tax on payments pursuant to this Agreement or any of the other Credit
Documents.
(g) Each Lender required to deliver any forms, certificates or other
evidence with respect to United States federal income tax withholding matters
pursuant to this Section 2.23 hereby agrees, from time to time after the initial
delivery by such Lender of such forms, certificates or other evidence, that
whenever a lapse in time or change in circumstances renders such forms,
certificates or other evidence obsolete or inaccurate in any material respect,
such Lender shall promptly deliver to the applicable Facility Agent for
transmission to Company two new original copies of Internal Revenue Service Form
1001 or 4224, as appropriate, a Certificate of Non-Bank Status, or Internal
Revenue Service Form W-8 or W-9, as appropriate, as the case may be, properly
completed and duly executed by such Lender, together with any other certificate
or statement of exemption required in order to confirm or establish that such
Lender is not subject to deduction or withholding of United States federal
income tax with respect to payments to such Lender under the Credit Documents,
or such Lender shall notify the applicable Facility Agent and Company of its
inability to deliver any such forms, certificates or other evidence.
(h) Each Multicurrency Facility Lender (other than a Lender entitled to
receive payments of interest in respect of each Multicurrency Facility Loan free
of withholding or deduction for or on account of United Kingdom income tax under
Section 349(3)(a) of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇ of the United
Kingdom (a "Multicurrency Qualifying Lender"); provided, this Section 2.23(h)
shall apply to a Multicurrency Qualifying Lender which loses such status, other
than through a change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or
application thereof after the Closing Date) shall deliver to the appropriate
Person such application forms, certificates, documents or other evidence as may
be required from time to time, properly completed and duly executed by such
Multicurrency Facility Lender, to enable Company to be able to pay interest on
the Multicurrency Facility Loans of such Multicurrency Facility Lender without
withholding or deduction for or on account of any United Kingdom income tax.
(i) For any period with respect to which a Lender has failed to provide
Company and the applicable Facility Agent with the appropriate form pursuant to
Section 2.23(f), 2.23(g) or 2.23(h), as applicable (unless such failure is due
to a change in treaty, law, or regulation occurring subsequent to the date on
which a form originally was required to be provided), such Lender shall not be
entitled to indemnification under Section 2.23(a), 2.23(b) or 2.23(c) with
respect to Taxes imposed by the United States or United Kingdom, as applicable;
provided, should a Lender, which is otherwise exempt from or subject to a
reduced rate of withholding tax, become subject to Taxes because of its failure
to deliver a form required hereunder, Company shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
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2.24. Replacement Lender. In the event any Lender seeks additional
compensation pursuant to any of Sections 2.18 through 2.23 or is restricted from
making any Fixed Rate Loan under this Agreement (a "Restricted Lender"), so long
as no Default or Event of Default shall have occurred and be continuing and
Company has obtained a commitment from another Lender or an Eligible Assignee to
become a Lender for all purposes hereunder, Company may cause such Restricted
Lender to be replaced by, and to assign all its Loans, Facility Commitments and
other Obligations owing thereto pursuant to Section 10.6, to such other Lender
or an Eligible Assignee that is reasonably acceptable to each applicable
Facility Agent, each applicable Issuing Bank and Global Agent and is not
similarly restricted and will not seek such additional compensation. Such
Restricted Lender agrees to execute and to deliver to Global Agent and to each
applicable Facility Agent an Assignment Agreement with such replacement Lender
as provided in Section 10.6 upon payment at par of all principal, interest, fees
and other amounts owing under this Agreement to such Restricted Lender, and such
Restricted Lender shall pay to the applicable Facility Agent the processing fee
required by Section 10.6(d) in connection with such assignment.
2.25. Funding. In the event Company or a Multicurrency Swing Line
Subsidiary elects to obtain any Loans as Fixed Rate Loans, or elects to continue
any Fixed Rate Loans or convert any portion of the principal amount of any
Floating Rate Loans to Fixed Rate Loans, each Lender may, if it so elects,
fulfill its obligation to make or continue any portion of the principal amount
of any Loan as, or to convert any portion of the principal amount of any Loan
into, a Fixed Rate Loan in accordance with any election made by Company or such
Multicurrency Swing Line Subsidiary, as applicable, by causing a foreign branch
or affiliate of such Lender or an international banking facility created by such
Lender to make such Fixed Rate Loan; provided, in such event such Fixed Rate
Loan shall be deemed to have been made by such Lender, and the obligation of
Company or such Multicurrency Swing Line Subsidiary, as applicable, to repay
such Fixed Rate Loan shall nevertheless be to such Lender and shall be deemed to
be held by such Lender, to the extent of such Fixed Rate Loan, for the account
of such foreign branch, affiliate or international banking facility. In
addition, each of Company and each Multicurrency Swing Line Subsidiary hereby
consents and agrees that, for purposes of any determination to be made for
purposes of this Agreement (including Sections 2.18, 2.19, 2.20 and 2.21), it
shall be conclusively assumed that each Lender elected to fund all Fixed Rate
Loans by purchasing deposits in the applicable Multicurrency in its eurocurrency
office's interbank eurocurrency market.
2.26. Economic and Monetary Union in the European Community. (a) The
provisions of this Section 2.26 relate to Multicurrency Facility Loans which
would otherwise be denominated in a National Currency Unit of a Participating
Member State and shall be effective from and after the commencement of the third
stage of EMU. If and to the extent that any such provisions relate to any
country (or the currency of such country) that is not a Participating Member
State on the commencement of the third stage of EMU, such provision shall become
effective as to such country (and the currency of such country) if and when such
country becomes a Participating Member State.
(b) Multicurrency Facility Loans and other Obligations to be
Redenominated into euro Units.
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(i) From and after the commencement of the third stage of EMU,
each obligation under this Agreement of a party hereto which has been
denominated in the National Currency Unit of a Participating Member
State shall be redenominated into the euro unit in accordance with EMU
Legislation and applicable state law, provided, if and to the extent
that any EMU Legislation provides that amounts denominated in the euro
unit or the National Currency Unit of a Participating Member State that
are payable within that country may be made in either currency by
crediting an account of the creditor, each party to this Agreement
shall be entitled to pay or repay any such amounts in either the euro
unit or such National Currency Unit.
(ii) Any Multicurrency Facility Loans denominated in a
National Currency Unit of a Participating Member State which were made
prior to the commencement of the third stage of EMU but which have
Interest Periods ending after the commencement of the third stage of
EMU shall, for purposes of this Agreement, remain denominated in such
National Currency Unit provided, such Loans may be repaid either in the
euro or in such National Currency Unit after the commencement of the
third stage of EMU; provided, further, from and after January 1, 2002
all such amounts shall be deemed to be in euro units.
(iii) Any Multicurrency Facility Loans denominated in the
National Currency Unit of a Participating Member State which are made,
continued or converted on or after the commencement of the third stage
of EMU shall instead be made, continued or converted in the euro unit;
provided, the Borrower may request that Multicurrency Facility Loans be
made, continued or converted in the National Currency Unit of such
Participating Member State with respect to Loans having Interest
Periods ending before January 1, 2002.
(iv) Subject to any EMU Legislation, references in this
Agreement to a minimum amount (or an integral multiple thereof) in a
National Currency Unit to be paid to or by a party hereto shall be
deemed to be a reference to such reasonably comparable and convenient
amount (or an integral multiple thereof) in the euro unit as Global
Agent may from time to time specify.
(c) Certain Definitions. From and after the commencement of the third
stage of EMU:
(i) Any reference to a Multicurrency Unit of a Participating
Member State in the definition of "Multicurrency" shall be deemed a
reference to the euro unit.
(ii) The definition of "LIBOR" as used in this Agreement
shall, with respect to any Multicurrency Facility Loan to be
denominated in the euro unit or a National Currency Unit of a
Participating Member State, mean the rate displayed on Telerate page
3740 or 3750 (or any replacement page thereof or other applicable
display page designated by Telerate) as appropriate for deposits in
such currency in the approximate amount of the requested borrowing,
conversion or continuation and having a comparable maturity to the
Interest Period for such borrowing, conversion or continuation at
approximately 11:00 a.m. (London time) two TARGET Business Days prior
to the requested date of such borrowing, conversion
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or continuation.
(iii) The definition of "Business Day" shall, with respect to
dates for the payment or purchase of any amount denominated in the euro
unit or the National Currency Unit of a Participating Member State, be
deemed to mean a day (other than a Saturday or a Sunday) on which (1)
banks are generally open for business in London, New York City, and in
the principal financial center in such Participating Member State, as
Global Agent shall from time to time determine for this purpose, and
(2) such clearing or settlement system as the Administrative Agent
shall from time to time nominate for this purpose in such principal
financial center is open for business for the clearing or settlement of
the euro.
(d) Payments.
(i) All payments by Company or any Lender of amounts
denominated in the euro or a National Currency Unit of a Participating
Member State, shall be made in immediately available, freely
transferable, cleared funds to the account of the applicable Agent in
the principal financial center in such Participating Member State, as
from time to time designated by such Agent for such purpose.
(ii) All amounts payable by any Agent to any party under this
Agreement in the National Currency Unit of a Participating Member State
shall instead be paid in the euro unit.
(iii) No Agent shall be liable to any party to this Agreement
in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount denominated in the euro
or a National Currency Unit of a Participating Member State.
(iv) All references herein to the London interbank or other
national market with respect to any National Currency Unit of a
Participating Member State shall be deemed a reference to the
applicable markets and locations referred to in Section 2.26(c)(iii).
(e) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the National Currency Unit of a
Participating Member State shall be inconsistent with any convention or practice
in the London interbank market or other applicable interbank market, as the case
may be, for the basis of accrual of interest or fees with respect to the euro,
such convention or practice shall replace such expressed basis, effective as of
and from the date on which such country becomes a Participating Member State;
provided, if any Multicurrency Facility Loan in the currency of such country is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Loan, at the end of the then current Interest Period.
(f) Increased Costs. Company shall, from time to time upon demand of
any Lender (with a copy to Global Agent), pay to such Lender the amount of any
cost or increased cost incurred by, or of any reduction in any amount payable to
or in the effective return on its capital to, or of interest or other return
foregone by, such Lender or any holding company of such Lender as a result of
the
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introduction of, changeover to or operation of the euro in a Participating
Member State, other than any such cost or reduction or amount foregone reflected
in any interest rate hereunder.
(g) Unavailability of euro. If Multicurrency Facility Agent at any time
determines that: (i) the euro has ceased to be utilized as the basic accounting
unit of the European Community; (ii) for reasons affecting the market in euros
generally, euros are not freely traded between banks internationally; or (iii)
it is illegal, impossible or impracticable for payments to be made hereunder in
euro, then Multicurrency Facility Agent may, in its discretion declare (such
declaration to be binding on all the parties hereto) that any payment made or to
be made thereafter which, but for this provision, would have been payable in the
euro shall be made in a component currency of the euro or dollars (as selected
by Multicurrency Facility Agent (the "Selected Currency") and the amount to be
so paid shall be calculated on the basis of the equivalent of the euro in the
Selected Currency).
(h) Additional Changes at Multicurrency Facility Agent's Discretion.
Except as expressly provided in this Section, provisions of this Agreement shall
be subject to such further reasonable changes of construction as Multicurrency
Facility Agent may from time to time in its reasonable discretion specify to be
necessary or appropriate to reflect the changeover to the euro in Participating
Member States.
SECTION 3. CONDITIONS PRECEDENT; RELEASE OF COLLATERAL
3.1. Closing Date. The obligation of any Lender to make a Credit
Extension on the Closing Date is subject to the satisfaction, or waiver in
accordance with Section 10.5, of the following conditions on or before the
Closing Date (each of which was satisfied as of the Closing Date):
(a) Credit Documents. Global Agent shall have received sufficient
copies of each Credit Document originally executed and delivered by each
applicable Credit Party, for each Lender and its counsel.
(b) Organizational Documents; Incumbency. Global Agent shall have
received sufficient copies of each Organizational Document of each Credit Party,
as applicable, and, to the extent applicable, certified as of a recent date by
the appropriate governmental official, for each Lender and its counsel, each
dated the Closing Date or a recent date prior thereto, together with signature
and incumbency certificates of the officers of such Person executing the Credit
Documents to which it is a party.
(c) Organizational and Capital Structure. The organizational structure
and the capital structure of Company and its Subsidiaries, both before and after
giving effect to the Acquisition, shall be as set forth on Schedule 3.1(c).
(d) Related Agreements and Opinions. Syndication Agent and Global Agent
shall each have received a fully executed or conformed copy of each Related
Agreement and any documents executed in connection therewith, together with
copies of each of the opinions of counsel delivered
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to the parties under the Related Agreements, accompanied by a letter from each
such counsel (to the extent not inconsistent with such counsel's established
internal policies) authorizing Lenders to rely upon such opinion to the same
extent as though it were addressed to Lenders. Each Related Agreement shall be
in full force and effect and no provision thereof shall have been modified or
waived in any respect determined by Syndication Agent or Global Agent to be
material, in each case without the consent of Syndication Agent and Global
Agent.
(e) Existing Indebtedness. Syndication Agent and Global Agent shall
have received evidence that, after giving effect to the initial borrowings
hereunder and the consummation of the Acquisition, the outstanding Indebtedness
of Credit Parties in Schedule 6.1 in the aggregate principal amount shall not
exceed $20,000,000.
(f) Application of Cash. Company shall have provided evidence
satisfactory to Syndication Agent and Global Agent that the Cash on hand of
Company and it Subsidiaries is not less than $283,000,000 and that such Cash has
been irrevocably committed, prior to the application of the proceeds of the Term
Loans and the Facility Loans to be made on the Closing Date, to the payment of
the Acquisition Financing Requirements.
(g) Governmental Authorizations and Consents. Each Credit Party shall
have obtained all Governmental Authorizations and all consents of other Persons,
in each case that are necessary or advisable in connection with the transactions
contemplated by the Credit Documents and each of the foregoing shall be in full
force and effect except as contemplated by the Acquisition Agreement (which
consents shall be obtained by the applicable Credit Party in accordance with the
terms and conditions of the Acquisition Agreement and in any event, promptly
after the Closing Date) and except those the failure to obtain or maintain
which, either individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect. No action, request for stay, petition for
review or rehearing, reconsideration, or appeal with respect to any of the
foregoing shall be pending, and the time for any applicable agency to take
action to set aside its consent on its own motion shall have expired.
(h) Consummation of Acquisition. With respect to the consummation of
the Acquisition, (i) all conditions to the Acquisition set forth in Article IV
of the Acquisition Agreement shall have been satisfied or the fulfillment of any
such conditions shall have been waived with the consent of Syndication Agent and
Global Agent, (ii) the Acquisition shall have become effective in accordance
with the terms of the Acquisition Agreement, (iii) the aggregate Cash
consideration paid to Seller in connection with the Acquisition shall not exceed
$1,650,000,000, subject to any Post Closing Adjustment, and (iv) the Transaction
Costs shall not have exceeded $47,000,000.
(i) Real Estate Assets. In order to create in favor of Global Agent,
for the benefit of Lenders, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in certain Real
Estate Assets, Global Agent shall have received from Company and each applicable
Guarantor:
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(i) fully executed and notarized Mortgages, in proper form for
recording in all appropriate places in all applicable jurisdictions,
encumbering each Real Estate Asset listed in Schedule 3.1(i)(i) (each,
a "Closing Date Mortgaged Property");
(ii) an opinion of counsel (which counsel shall be reasonably
satisfactory to Syndication Agent and Global Agent) in each state in
which a Closing Date Mortgaged Property is located with respect to the
enforceability of the form(s) of Mortgages to be recorded in such state
and such other matters as Syndication Agent and Global Agent may
reasonably request, in each case in form and substance reasonably
satisfactory to Syndication Agent and Global Agent;
(iii) in the case of each Leasehold Property that is a Closing
Date Mortgaged Property, (1) a Landlord Consent and Estoppel and (2)
evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) ALTA mortgagee title insurance policies or unconditional
commitments therefor issued by a title company with respect to each
Closing Date Mortgaged Property, together with a title report issued by
a title company with respect thereto, dated not more than thirty (30)
days prior to the Closing Date and copies of all recorded documents
listed as exceptions to title or otherwise referred to therein, each in
form and substance reasonably satisfactory to Syndication Agent and
Global Agent;
(v) evidence of flood insurance with respect to each Flood
Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve
System, in form and substance reasonably satisfactory to Syndication
Agent and Global Agent; and
(vi) ALTA surveys of all Closing Date Mortgaged Properties
which are not Leasehold Properties, certified to Global Agent and dated
not more than thirty (30) days prior to the Closing Date.
(j) Personal and Mixed Property Collateral. In order to create in favor
of Global Agent, for the benefit of Lenders, a valid and, subject to any filing
and/or recording referred to herein, perfected First Priority security interest
in all personal and mixed property Collateral, Global Agent shall have received:
(i) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Global Agent) representing all
capital stock pledged pursuant to the Pledge and Security Agreement,
and, if applicable, Acknowledgments of Pledge from each applicable
issuer of Securities pledged pursuant to the Pledge and Security
Agreement;
(ii) (1) the results of a recent search, by a Person
satisfactory to Syndication Agent and Global Agent, of all effective
UCC financing statements and fixture filings and all
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judgment and tax lien filings which may have been made with respect to
any personal or mixed property of any Credit Party, together with
copies of all such filings disclosed by such search, and (2) UCC
termination statements duly executed by all applicable Persons for
filing in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing statements or
fixture filings in respect of Permitted Liens);
(iii) UCC financing statements and, where appropriate, fixture
filings, duly executed by each applicable Credit Party with respect to
all personal and mixed property Collateral of such Credit Party, for
filing in the jurisdictions listed on Schedule 3.1 to the Pledge and
Security Agreement to perfect the security interests created in such
Collateral pursuant to the Collateral Documents (which jurisdictions
for Physiotherapy Associates Inc. shall be Michigan, Tennessee,
California and New Jersey only);
(iv) upon the Closing Date or promptly thereafter, all cover
sheets or other documents or instruments required to be filed with each
applicable filing office, as determined by Global Agent in order to
create or perfect Liens in respect of any Intellectual Property
Collateral;
(v) an opinion of one or more counsel (each of which shall be
reasonably satisfactory to Syndication Agent and Global Agent) with
respect to the creation and perfection of the security interests in
favor of Global Agent in such Collateral and such other matters
regarding such security interests as Syndication Agent and Global Agent
may reasonably request, in each case in form and substance reasonably
satisfactory to Syndication Agent and Global Agent; and
(vi) evidence that each Credit Party shall have taken or
caused to be taken any other action, executed and delivered or caused
to be executed and delivered any other agreement, document and
instrument, including a Waiver and Consent Agreement duly executed by
the landlord of any Leasehold Property by Company or any its
Subsidiaries, and made or caused to be made any other filing and
recording (other than as set forth herein) reasonably required by
Syndication Agent and Global Agent.
(k) Environmental Reports. Syndication Agent and Global Agent shall
have each received (i) with respect to each Manufacturing Facility listed on
Schedule 3.1(k), a Phase I Report, and (ii) with respect to each other
Manufacturing Facility, reports and other information regarding environmental
matters relating to such Manufacturing Facility, for each of clauses (i) and
(ii), in scope and substance satisfactory to Syndication Agent and Global Agent.
(l) Financial Statements; Projections. Lenders shall have received from
Company, (i) the Historical Financial Statements, (ii) a pro forma combined
balance sheet of Company and its Subsidiaries as at the Closing Date, prepared
in accordance with GAAP and reflecting the consummation of the Acquisition, the
related financings and the other transactions contemplated by
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the Credit Documents and the Related Agreements, which pro forma financial
statements shall be in form and substance satisfactory to Lenders, and (iii) the
Projections.
(m) Evidence of Insurance. Syndication Agent and Global Agent shall
have received a certificate from Company's insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant to
Section 5.5 is in full force and effect and that Global Agent on behalf of
Lenders has been named as additional insured and/or loss payee thereunder to the
extent required under Section 5.5.
(n) Opinion of Counsel to Credit Parties. Lenders and their respective
counsel shall have received originally executed copies of the favorable written
opinions of ▇▇▇▇▇▇▇ Breed ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and of such other counsel for
Credit Parties, which other counsel shall be reasonably satisfactory to
Syndication Agent and Global Agent, in the form of Exhibit D and as to such
other matters as Global Agent or Syndication Agent may reasonably request, and
otherwise in form and substance reasonably satisfactory to Global Agent and
Syndication Agent and its counsel, dated as of the Closing Date.
(o) Opinion of Counsel to Syndication Agent and Global Agent. Lenders
shall have received originally executed copies of the favorable written opinion
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to Syndication Agent and
Global Agent, dated as of the Closing Date, in form and substance reasonably
satisfactory thereto.
(p) Fees. Company shall have paid to Agents, for distribution (as
appropriate) to Agents and Lenders, the fees payable on the Closing Date
referred to in Section 2.10(f).
(q) Completion of Proceedings. All partnership, corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Global Agent, acting on behalf of Lenders, or Syndication Agent
and its counsel shall be satisfactory in form and substance to Global Agent and
Syndication Agent and such counsel, and Global Agent, Syndication Agent and such
counsel shall have received all such counterpart originals or certified copies
of such documents as Global Agent or Syndication Agent may reasonably request.
(r) Solvency Letter. On the Closing Date, Syndication Agent, Global
Agent and Lenders shall have received a letter from Valuation Research
Corporation, dated the Closing Date, and addressed to Syndication Agent, Global
Agent and Lenders, in form and substance satisfactory to Syndication Agent and
Global Agent and with appropriate attachments.
(s) Closing Date Certificate. Company shall have delivered to
Syndication Agent and Global Agent an originally executed Closing Date
Certificate, together with all attachments thereto.
(t) Closing Date. Lenders shall have made the Term Loans to Company on
or before December 31, 1998.
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3.2. Conditions to each Credit Extension. (a) The obligation of each
Lender to make any Loan, or each Issuing Bank to issue any Letter of Credit, on
any Credit Date, including the Closing Date, are subject to the following
conditions precedent; provided, each Lender agrees that the making of any Credit
Extension made thereby shall be deemed to be the acknowledgment of such Lender
that each of the conditions precedent in Section 3.1 and 3.2 have been duly
satisfied or such Lender has waived the satisfaction thereof:
(i) the applicable Facility Agent, the applicable Swing Lender
or the applicable Issuing Bank, as the case may be, shall each have
received a fully executed and delivered Funding Notice or Issuance
Notice, as the case may be;
(ii) with respect to any US Facility Loan or US Letter of
Credit, after making any such Credit Extension requested on such Credit
Date, the Total Utilization of US Facility Commitments shall not exceed
the US Facility Commitments then in effect;
(iii) with respect to any Multicurrency Facility Loan or
Multicurrency Letter of Credit, after making any such Credit Extension
requested on such Credit Date, the Total Utilization of Multicurrency
Facility Commitments shall not exceed the Multicurrency Facility
Commitments then in effect;
(iv) no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other restraining order
to be issued shall be pending or noticed with respect to any action,
suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result
of, the transactions contemplated hereby or the making any Credit
Extension;
(v) as of the Closing Date, the representations and warranties
contained herein and in the other Credit Documents shall be true,
correct and complete in all respects on and as of the Closing Date to
the same extent as though made on and as of that 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 true, correct and complete in all respects on and as of such
earlier date;
(vi) as of such Credit Date (other than the Closing Date), the
representations and warranties contained herein and in the other Credit
Documents shall be true, correct and complete in all material respects
on and as of such Credit Date to the same extent as though made on and
as of that 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 true, correct and
complete in all material respects on and as of such earlier date;
(vii) as of such Credit Date, no event shall have occurred and
be continuing or would result from the consummation of the applicable
Credit Extension that would constitute an Event of Default or a
Default; and
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(viii) on or before the date of issuance of any Letter of
Credit, the applicable Issuing Bank shall have received all other
information required by the applicable Issuance Notice, and such other
documents or information as such Issuing Bank may reasonably require in
connection with the issuance of such Letter of Credit.
(b) Any Notice shall be executed by the chief executive officer, the
chief financial officer or the treasurer of Company or by the executive officer
thereof designated by the chief executive officer, the chief financial officer
or the treasurer of Company in a writing delivered to the applicable Facility
Agent. In lieu of delivering a Notice, Company may give Global Agent, the
applicable Swing Line Lender or the applicable Issuing Bank, as the case may be,
telephonic notice by the required time of any proposed borrowing,
conversion/continuation or issuance of a Letter of Credit, as the case may be;
provided each such notice shall be promptly confirmed in writing by delivery of
the applicable Notice to Global Agent, the applicable Swing Line Lender or the
applicable Issuing Bank, as the case may be, on or before the applicable date of
borrowing, continuation/conversion or issuance. None of Global Agent, any
Issuing Bank or any Lender shall incur any liability to Company in acting upon
any telephonic notice referred to above that Global Agent, the applicable Swing
Line Lender or the applicable Issuing Bank, as the case may be, believes in good
faith to have been given by a duly authorized officer or other person authorized
on behalf of Company or for otherwise acting in good faith.
3.3. Release of Collateral. (a) If at any time (i) ▇▇▇▇▇'▇ has
assigned to Company's long term Indebtedness for borrowed money a rating of Baa3
or higher, and (ii) S&P has assigned to Company's long term Indebtedness for
borrowed money a rating of BBB- or higher, then, so long as no Default or Event
of Default shall have occurred and be continuing, Global Agent shall take or
cause to be taken any action, execute and deliver or cause to be executed and
delivered any agreement, document and instrument, and make or cause to be made
any filing and recording, in each case as requested by Company in order to
release the First Priority Lien of Global Agent in all of the Collateral except
the Investment Property Collateral.
(b) If at any time (i) ▇▇▇▇▇'▇ has assigned to Company's long term
Indebtedness for borrowed money a rating of Baa1 or higher, and (ii) S&P has
assigned to Company's long term Indebtedness for borrowed money a rating of BBB+
or higher, then, so long as no Default or Event of Default shall have occurred
and be continuing, Global Agent shall take or cause to be taken any action,
execute and deliver or cause to be executed and delivered any agreement,
document and instrument, and make or cause to be made any filing and recording,
in each case as requested by Company in order to release the First Priority Lien
of Global Agent in all of the Collateral then subject thereto.
(c) If at any time either (i) ▇▇▇▇▇'▇ has assigned to Company's long
term Indebtedness for borrowed money a rating of lower than Baa1, or (ii) S&P
has assigned to Company's long term Indebtedness for borrowed money a rating of
lower than BBB+, then, Company shall take or cause to be taken any action,
execute and deliver or cause to be executed and delivered any agreement,
document and instrument, and make or cause to be made any filing and recording,
in each case as requested by Global Agent or Requisite Lenders in order to grant
to Global Agent, for the benefit of
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Lenders, a First Priority Lien in all of the Investment Property Collateral then
or thereafter owned by Company and its Subsidiaries in accordance with, and
subject to the terms and conditions of, the Collateral Documents.
(d) If at any time either (i) ▇▇▇▇▇'▇ has assigned to Company's long
term Indebtedness for borrowed money a rating of lower than Baa3, or (ii) S&P
has assigned to Company's long term Indebtedness for borrowed money a rating of
lower than BBB-, then, Company shall take or cause to be taken any action,
execute and deliver or cause to be executed and delivered any agreement,
document and instrument, and make or cause to be made any filing and recording,
in each case as requested by Global Agent or Requisite Lenders in order to grant
to Global Agent, for the benefit of Lenders, a First Priority Lien in all of the
real, personal or mixed property of Company and its Subsidiaries defined as
"Collateral" under the Collateral Documents then or thereafter owned by Company
and its Subsidiaries in accordance with, and subject to the terms and conditions
of, the Collateral Documents.
(e) Company shall pay or otherwise reimburse Global Agent for all
reasonable costs and expenses incurred or made by or on behalf of Global Agent,
including, without limitation, all attorneys' fees and expenses, in complying
with this Section 3.3.
3.4. Conditions to Effectiveness. The provisions of this Agreement
shall become effective on the date (the "Amendment and Restatement Effective
Date") the following conditions are satisfied:
(a) Execution of Agreement. Company, Guarantors, Agents and Lenders
shall have executed this Agreement.
(b) Officer's Certification. Global Agent shall have received a
certificate, in form and substance satisfactory to Global Agent from the Chief
Financial Officer or Treasurer of Company certifying that, as of the Amendment
and Restatement Effective Date, (y) the representations and warranties contained
herein and in the other Credit Documents are true, correct and complete in all
respects on and as of such date to the same extent as though made on and as of
that date, except to the extent that such representations and warranties relate
to an earlier date, in which case such representations and warranties shall have
been true, correct and complete in all respects on and as of such earlier date
and (z) no event shall have occurred and be continuing that constitutes an Event
of Default or a Default.
(c) Opinion of Counsel to Credit Parties. Lenders shall have received
originally executed copies of a favorable written opinion of ▇▇▇▇▇▇▇ Breed
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP as to such matters as Global Agent and Syndication Agent may
reasonably request, and in form and substance reasonably satisfactory to Global
Agent, Syndication Agent and their counsel, dated as of the Amendment and
Restatement Effective Date.
(d) Certain Fees. Company shall have paid to Global Agent for
distribution to Lenders, the fees payable by Company in connection with this
Agreement as described in the Company's Lender Information Package dated May
1999.
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(e) Completion of Proceedings. All partnership, corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Global Agent and Syndication Agent, acting on behalf of Lenders,
shall be satisfactory in form and substance to Global Agent and Syndication
Agent, and Global Agent and Syndication Agent shall have received all such
counterpart originals or certified copies of such documents as Global Agent may
reasonably request.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and each Issuing Bank to enter into this
Agreement and to make each Credit Extension to be made thereby, each Credit
Party represents and warrants to each Lender and each Issuing Bank, on the
Closing Date and on each Credit Date, that the following statements are true,
correct and complete (it being understood and agreed that the representations
and warranties made on the Closing Date are deemed to be made concurrently with
the consummation of the Acquisition as contemplated hereby):
4.1. Organization; Powers; Qualification. Each of Company and each of
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization as identified in Schedule
4.1, (b) has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Credit Documents to which it is a party and to
carry out the transactions contemplated thereby, and (c) is qualified to do
business and is in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing has
not had, and could not be reasonably expected to have, a Material Adverse
Effect. Schedule 4.1 correctly sets forth the ownership interest of Company and
each of its Subsidiaries in their respective Subsidiaries.
4.2. Authorization of Credit Documents; No Conflict. The execution,
delivery and performance of the Credit Documents have been duly authorized by
all necessary action on the part of each Credit Party that is a party thereto.
The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions
contemplated by the Credit Documents do not and will not (a) violate any
provision of any law or any governmental rule or regulation applicable to
Company or any of its Subsidiaries, any of the Organizational Documents of
Company or any of its Subsidiaries, or any order, judgment or decree of any
court or other agency of government binding on Company or any of its
Subsidiaries; (b) except as otherwise set forth in the Acquisition Agreement,
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of Company or any of
its Subsidiaries; (c) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of its Subsidiaries
(other than any Liens created under any of the Credit Documents in favor of
Global Agent on behalf of Lenders); or (d) require any approval of stockholders
or any approval or consent of any Person under any Contractual Obligation of
Company or any of its Subsidiaries, except (i) for such approvals or consents
which will be obtained
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on or before the Closing Date and disclosed in writing to Lenders, or (ii) as
otherwise set forth in the Acquisition Agreement.
4.3. Governmental Consents. The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental authority
or regulatory body except as otherwise set forth in the Acquisition Agreement,
and except for filings and recordings with respect to the Collateral to be made,
or otherwise delivered to Global Agent, as of the Closing Date.
4.4. Binding Obligation. Each Credit Document has been duly executed
and delivered by each Credit Party that is a party thereto and is the legally
valid and binding obligation of such Credit Party, enforceable against such
Credit Party in accordance with its respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability.
4.5. Historical Financial Statements; Projections. The Historical
Financial Statements were prepared in conformity with GAAP and fairly present,
in all material respects, the financial position, on a consolidated basis, of
the Persons and businesses described in such financial statements as at the
respective dates thereof and the results of operations and cash flows, on a
consolidated basis, of the entities described therein for each of the periods
then ended, subject, in the case of any such unaudited financial statements, to
changes resulting from audit and normal year-end adjustments. Neither Company
nor any of its Subsidiaries has any contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that is not reflected
in the Historical Financial Statements or the notes thereto and which in any
such case is material in relation to the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company and any of
its Subsidiaries taken as a whole. On and as of the Closing Date, the
projections of Company and its Subsidiaries for the period from the Closing Date
through and including December 31, 2007 (the "Projections") are based on good
faith estimates and assumptions made by the management of Company; provided, the
Projections are not to be viewed as facts and that actual results during the
period or periods covered by the Projections may differ from such Projections
and that the differences may be material; provided further, as of the Closing
Date, management of Company believed that the Projections were reasonable and
attainable.
4.6. No Material Adverse Effect; No Restricted Junior Payments.
Notwithstanding the definition of the term "Material Adverse Effect", (a) since
December 31, 1997, solely with respect to Company and its Subsidiaries prior to
giving effect to the Acquisition, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect, (b) since the accounting period ended June 28, 1998, solely with respect
to Target and its Subsidiaries prior to giving effect to the Acquisition, no
event or change has occurred that has caused or evidences, either in any case or
in the aggregate, a Material Adverse Effect, and (c) since the Closing Date,
with respect to Company and its Subsidiaries after giving effect to the
Acquisition, no event or change has occurred that has caused or evidences,
either in any case or in the aggregate, a
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Material Adverse Effect. Neither Company nor any of its Subsidiaries has
directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so except as
permitted pursuant to Section 6.4 or as disclosed on Schedule 4.6.
4.7. Litigation; Adverse Proceedings. There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect. Neither Company nor any of its Subsidiaries (a) is in
violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
4.8. Payment of Taxes. Except in accordance with Section 5.3, all
federal and all material state and local tax returns and reports of Company and
its Subsidiaries required to be filed by any of them have been timely filed, and
all taxes shown on such tax returns to be due and payable and all assessments,
fees and other governmental charges upon Company and its Subsidiaries and upon
their respective properties, assets, income, businesses and franchises which are
due and payable have been paid when due and payable. Company knows of no
proposed tax assessment against Company or any of its Subsidiaries which is not
being actively contested by Company or such Subsidiary in good faith and by
appropriate proceedings; provided, such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have been
made or provided therefor.
4.9. Title to Properties. (a) Company and its Subsidiaries have (i)
insurable, subject to exceptions that do not materially adversely affect the use
of the applicable property, title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property), or (iii) good title to (in the case of all other
personal property) all of their respective properties and assets reflected in
the Historical Financial Statements or in the most recent financial statements
delivered pursuant to Section 5.1, in each case except for assets disposed of
since the date of such financial statements in the ordinary course of business
or as otherwise permitted under Section 6.7, and except for assets the failure
to have such title with respect to which, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Except as permitted by this Agreement, all such properties and assets are free
and clear of Liens.
(b) As of the Closing Date, Schedule 4.9 contains a true, accurate and
complete list of (i) all Real Estate Assets and (ii) all leases, subleases or
assignments of leases (together with all amendments, modifications, supplements,
renewals or extensions of any thereof) affecting each Real Estate Asset of any
Credit Party, regardless of whether such Credit Party is the landlord or tenant
(whether directly or as an assignee or successor in interest) under such lease,
sublease or assignment. Except as specified in Schedule 4.9, or as could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, each agreement listed in clause (ii) of the immediately
preceding sentence is in full force and effect and Company does not have
knowledge of any default that has occurred and is continuing thereunder, and
each such agreement constitutes the legally valid
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and binding obligation of each applicable Credit Party, enforceable against such
Credit Party in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles.
4.10. Collateral. (a) The execution and delivery of the Collateral
Documents by Credit Parties, together with the actions taken on or prior to the
Closing Date pursuant to Sections 3.1(i) and 3.1(j) are effective to create in
favor of Global Agent for the benefit of Lenders, as security for the respective
Secured Obligations (as defined in the applicable Collateral Document in respect
of any Collateral), a valid and perfected First Priority Lien on all of the
Collateral, and all filings and other actions necessary or desirable to perfect
and maintain the perfection and First Priority status of such Liens have been
duly made or taken and remain in full force and effect, other than the filing of
any UCC financing statements delivered to Global Agent for filing (but not yet
filed) and the periodic filing of UCC continuation statements in respect of UCC
financing statements filed by or on behalf of Global Agent.
(b) No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
either (i) the pledge or grant by any Credit Party of the Liens purported to be
created in favor of Global Agent pursuant to any of the Collateral Documents or
(ii) the exercise by Global Agent of any rights or remedies in respect of any
Collateral (whether specifically granted or created pursuant to any of the
Collateral Documents or created or provided for by applicable law), except for
filings or recordings contemplated by Sections 3.1(i) and 3.1(j) and except as
may be required, in connection with the disposition of any Investment Property
Collateral, by laws generally affecting the offering and sale of securities.
(c) Except with respect to any Permitted Lien, and except such as
may have been filed in favor of Global Agent as contemplated by Section 3.1(i)
or 3.1(j), no effective UCC financing statement, fixture filing or other
instrument similar in effect covering all or any part of the Collateral
is on file in any filing or recording office, including, without limitation,
with respect to the Intellectual Property Collateral.
(d) All information supplied to Global Agent by or on behalf of any
Credit Party with respect to any of the Collateral (in each case taken as a
whole with respect to any particular Collateral) is accurate and complete in all
material respects.
4.11. Environmental Matters. No Credit Party nor any of its
Subsidiaries nor any of their respective Manufacturing Facilities or operations
are subject to any outstanding written order, consent decree or settlement
agreement with any Person relating to any Environmental Law, any Environmental
Claim, or any Hazardous Materials Activity that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. No
Credit Party nor any of its Subsidiaries has received any letter or request for
information under Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss. 9604) or any comparable state law
that could reasonably be expected to have a Material Adverse Effect. There are
and, to each Credit Party's knowledge, have been no conditions, occurrences, or
Hazardous
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Materials Activities which could reasonably be expected to form the basis of an
Environmental Claim against Company or any of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither Company nor any of its Subsidiaries nor, to any
Credit Party's knowledge, any predecessor of Company or any of its Subsidiaries
has filed any notice under any Environmental Law indicating past or present
treatment of Hazardous Materials at any Manufacturing Facility, and none of
Company's or any of its Subsidiaries' operations involves the treatment, storage
or disposal of hazardous waste, requiring a "TSDF permit"under 40 C.F.R. Parts
260-270 or any state equivalent, except to the extent that such notice or
activity could not be reasonably expected to have a Material Adverse Effect.
Compliance with all current or reasonably foreseeable future requirements
pursuant to or under Environmental Laws could not be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect. No event or
condition has occurred or is occurring with respect to Company or any of its
Subsidiaries relating to violations, non-compliance with, or liability under,
any Environmental Law, any Release of Hazardous Materials, or any Hazardous
Materials Activity which individually or in the aggregate has had, or could
reasonably be expected to have, a Material Adverse Effect.
4.12. No Defaults; Material Contracts. No Credit Party is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, could
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect. Schedule 4.12 contains a true, correct and complete
list of all the Material Contracts in effect on the Closing Date, and except as
described thereon, all such Material Contracts are in full force and effect and
no defaults currently exist thereunder.
4.13. Governmental Regulation. Neither Company nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or under any other federal or state statute or
regulation which may limit its ability to incur Indebtedness or which may
otherwise render all or any portion of the Obligations unenforceable.
4.14. Margin Stock. Neither Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock. The
pledge of the Investment Property Collateral pursuant to the Pledge and Security
Agreement does not violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
4.15. Employee Matters. There is no strike or work stoppage in
existence or threatened involving Company or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
4.16. Employee Benefit Plans. Company, each of its Subsidiaries and
each of their respective ERISA Affiliates are in material compliance with all
applicable provisions and requirements of ERISA and the regulations thereunder
with respect to each Employee Benefit Plan, and have
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performed all their material obligations under each Employee Benefit Plan. Each
Employee Benefit Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code is so qualified. No ERISA Event has occurred or is
reasonably expected to occur. Except to the extent required under Section 4980B
of the Internal Revenue Code, no Employee Benefit Plan provides health or
welfare benefits (through the purchase of insurance or otherwise) for any
retired or former employee of Company, any of its Subsidiaries or any of their
respective ERISA Affiliates if the present value of the unfunded liability of
such benefits exceeds, individually or in the aggregate for all such Employee
Benefit Plans, $2,000,000. As of the most recent valuation date for any Pension
Plan, the amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), does not exceed $2,000,000. As of the
most recent valuation date for each Multiemployer Plan for which the actuarial
report is available, the potential liability of Holdings, its Subsidiaries and
their respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA, does not exceed $5,000,000.
4.17. Certain Fees. No broker's or finder's fee or commission will be
payable with respect hereto or any of the transactions contemplated hereby, and
Company hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
4.18. Solvency. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this representation and
warranty is made, will be, Solvent.
4.19. Related Agreements. Company has delivered to Syndication Agent
and Global Agent complete and correct copies of each Related Agreement and of
all exhibits and schedules thereto. Except to the extent otherwise expressly set
forth therein or in the schedules hereto, and subject to the qualifications set
forth therein, each of the representations and warranties (a) given by Seller to
Company, and (b) given by Company to Seller, in each case, in the Acquisition
Agreement is true and correct in all material respects as of the Closing Date
(or as of any earlier date to which such representation and warranty
specifically relates). Notwithstanding anything in the Acquisition Agreement to
the contrary, the representations and warranties of Company set forth in this
Section 4.19 shall, solely for purposes hereof, survive the Closing Date for the
benefit of Lenders.
4.20. Year 2000 Issues. Company and its Subsidiaries have (a) engaged
in a process of assessment of the existence of the Year 2000 Issues reasonably
appropriate to the scope and complexity of their respective Systems; (b) adopted
and are implementing a plan of correction ("Plan of Correction") which Company
reasonably believes will result in a substantial elimination of Year 2000 Issues
before any processing failure of a System or of Systems due to Year 2000 Issues
which might have a Material Adverse Effect, and, in the case of all Systems
critical to the business or operations of Company and its Subsidiaries, a
virtually complete elimination of Year 2000 Issues by
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September 30, 1999; (c) adopted and are implementing validation procedures
reasonably calculated to test on an ongoing basis the sufficiency of the Plan of
Correction, its implementation, and the correction of Year 2000 Issues in any
System; (d) adopted and are implementing policies and procedures requiring
regular reports to, and monitoring by, senior management of Company concerning
the foregoing matters; and (e) provided Global Agent true and correct copies of
the written Plan of Correction and related implementation budgets.
4.21. Disclosure. The representations or warranties of the Credit
Parties contained in any Credit Document and in any other document, certificate
or written statement furnished to Lenders by or on behalf of Company or any of
its Subsidiaries for use in connection with the transactions contemplated
hereby, when taken as a whole, do not contain any untrue statement of a material
fact or omit to state a material fact (known to Company, in the case of any
document not furnished thereby) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by Company to be reasonable at the time made, it being recognized by
Lenders that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may differ from the projected results. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to Company
(other than matters of a general economic nature) that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
and that have not been disclosed herein or in such other documents, certificates
and statements furnished to Lenders for use in connection with the transactions
contemplated hereby.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any Facility
Commitment is in effect and until payment in full of all Obligations, each
Credit Party shall perform, and shall cause each of its Subsidiaries to perform,
all covenants in this Section 5.
5.1. Financial Statements and Other Reports. Company will deliver to
Global Agent and Lenders:
(a) as soon as available and in any event within forty-five (45) days
after the end of each of the first three Fiscal Quarters of each Fiscal Year,
the consolidated balance sheet of Company and its Subsidiaries as at the end of
such Fiscal Quarter and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for such
Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year, all in reasonable detail, together with a Financial
Officer Certification and a Narrative Report with respect thereto;
(b) as soon as available and in any event within ninety (90) days
after the end of each Fiscal Year, (i) the consolidated balance sheet of Company
and its Subsidiaries as at the end of such
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Fiscal Year and the related consolidated statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such Fiscal Year in
reasonable detail, together with a Financial Officer Certification and a
Narrative Report with respect thereto; and (ii) a report thereon of Ernst &
Young LLP or other independent certified public accountants of recognized
national standing selected by Company, together with a written statement by such
independent certified public accountants stating (1) that their audit
examination has included a review of the terms of the Credit Documents, (2)
whether, in connection therewith, any condition or event that constitutes a
Default or an Event of Default has come to their attention and, if such a
condition or event has come to their attention, specifying the nature and period
of existence thereof, and (3) that nothing has come to their attention that
causes them to believe either or both that the information contained in any
Compliance Certificate is not correct or that the matters set forth in such
Compliance Certificate are not stated in accordance with the terms hereof;
(c) together with each delivery of financial statements of Company and
its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and
completed Compliance Certificate;
(d) if, as a result of any change in accounting principles and policies
from those used in the preparation of the Historical Financial Statements, the
consolidated financial statements of Company and its Subsidiaries delivered
pursuant to Section 5.1(a), 5.1(b) or 5.1(i) will differ in any material respect
from the consolidated financial statements that would have been delivered
pursuant to such subdivisions had no such change in accounting principles and
policies been made, then together with the first delivery of such financial
statements after such change a statement of reconciliation for all such prior
financial statements in form and substance satisfactory to Requisite Lenders;
(e) promptly upon their becoming available, copies of (i) all financial
statements, reports, notices and proxy statements sent or made available
generally by Company to its Security holders acting in such capacity or by any
Subsidiary of Company to its Security holders other than Company or another
Subsidiary of Company, (ii) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, and (iii) all press releases and
other statements made available generally by Company or any of its Subsidiaries
to the public concerning material developments in the business of Company or any
of its Subsidiaries;
(f) promptly upon any officer of Company obtaining knowledge (i) of any
condition or event that constitutes a Default or an Event of Default or that
notice has been given to Company by any Lender or Agent with respect thereto;
(ii) that any Person has given any notice to Company or any of its Subsidiaries
or taken any other action with respect to any event or condition set forth in
Section 8.1(b); (iii) of any condition or event of a type required to be
disclosed in a current report on Form 8-K of the Securities and Exchange
Commission (excluding Item 3 as in effect on the date hereof); or (iv) of the
occurrence of any event or change that has caused or evidences, either in any
case or in the aggregate, a Material Adverse Effect, a certificate of its
Authorized Officers specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken by
any such Person and the nature of such claimed Event of Default, Default,
default,
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event or condition, and what action Company has taken, is taking and proposes to
take with respect thereto;
(g) promptly upon any officer of Company obtaining knowledge of (i) the
institution of, or non-frivolous threat of, any Adverse Proceeding not
previously disclosed in writing by Company to Lenders, or (ii) any material
development in any Adverse Proceeding that, in the case of either (i) or (ii) if
adversely determined, could be reasonably expected to have a Material Adverse
Effect, or seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other information
as may be reasonably available to Company to enable Lenders and their counsel to
evaluate such matters;
(h) (i) promptly upon becoming aware of the occurrence of any ERISA
Event, a written notice specifying the nature thereof, what action Company, any
of its Subsidiaries or any of their respective ERISA Affiliates has taken, is
taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto; and (ii) upon request of Global Agent and with
reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to
the annual report (Form 5500 Series) filed by Company, any of its Subsidiaries
or any of their respective ERISA Affiliates with the Internal Revenue Service
with respect to each Pension Plan; (2) all notices received by Company, any of
its Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such
other documents or governmental reports or filings relating to any Employee
Benefit Plan as Global Agent shall reasonably request;
(i) at any time either (i) ▇▇▇▇▇'▇ has assigned to Company's long term
Indebtedness for borrowed money a rating of lower than Baa3, or (ii) S&P has
assigned to Company's long term Indebtedness for borrowed money a rating of
lower than BBB-, as soon as practicable and in any event no later than forty
five (45) days after the beginning of each Fiscal Year, a consolidated plan and
financial forecast for such Fiscal Year (a "Financial Plan"), including a
forecasted consolidated balance sheet and forecasted consolidated statements of
income and cash flows of Company and its Subsidiaries for such Fiscal Year,
together with pro forma Compliance Certificates for such Fiscal Year and an
explanation of the assumptions on which such forecasts are based;
(j) as soon as practicable and in any event by the last day of each
Fiscal Year, a report in form and substance satisfactory to Global Agent
outlining all material insurance coverage maintained as of the date of such
report by Company and its Subsidiaries and all material insurance coverage
planned to be maintained by Company and its Subsidiaries in the immediately
succeeding Fiscal Year;
(k) with reasonable promptness, written notice of any change in the
Board of Directors of Company;
(l) promptly, and in any event within ten (10) Business Days after any
Material Contract of Company or any of its Subsidiaries is terminated or amended
in a manner that is materially adverse
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to Company or such Subsidiary, as the case may be, or any new Material Contract
is entered into, a written statement describing such event, with copies of such
material amendments or new contracts, delivered to Global Agent (to the extent
such delivery is permitted by the terms of any such Material Contract, provided,
no such prohibition on delivery shall be effective if it were bargained for by
Company or its applicable Subsidiary with the intent of avoiding compliance with
this Section 5.1(l)), and an explanation of any actions being taken with respect
thereto;
(m) promptly, written notice of any change in either ▇▇▇▇▇'▇ or S&P's
rating for Company's long term Indebtedness; and
(n) with reasonable promptness, such other information and data with
respect to Company or any of its Subsidiaries as from time to time may be
reasonably requested by any Lender.
5.2. Existence. Except as permitted under Section 6.7, each Credit
Party will, and will cause each of its Subsidiaries to, at all times preserve
and keep in full force and effect its existence and all rights and franchises
material to its business; provided, no Credit Party nor any of its Subsidiaries
shall be required to preserve any such existence, right or franchise if such
Person's Board of Directors (or similar governing body) shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Company and its Subsidiaries, taken as a whole, and that the loss thereof is not
disadvantageous in any material respect to Company and its Subsidiaries or
Lenders.
5.3. Payment of Taxes and Claims. Each Credit Party will, and will
cause each of its Subsidiaries to, pay all taxes, assessments and other
governmental charges imposed upon it or any of its properties or assets or in
respect of any of its income, businesses or franchises before any penalty
accrues thereon, and all claims (including claims for labor, services, materials
and supplies) for sums that have become due and payable and that by law have or
may become a Lien upon any of its properties or assets, prior to the time when
any penalty or fine shall be incurred with respect thereto; provided, no such
charge or claim need be paid if it is being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted, so long as
(a) such reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor, and (b) in the case of a
charge or claim which has or may become a Lien against any of the Collateral,
such contest proceedings conclusively operate to stay the sale of any portion of
the Collateral to satisfy such charge or claim. Company will not, nor will it
permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than Company or any of its
Subsidiaries).
5.4. Maintenance of Properties. Each Credit Party will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Subsidiaries
(including all material embodiments of Intellectual Property).
5.5. Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect
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of the assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for such
Persons. Without limiting the generality of the foregoing, Company will maintain
or cause to be maintained (a) flood insurance with respect to each Flood Hazard
Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of
the Board of Governors of the Federal Reserve System, and (b) replacement value
casualty insurance on the Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles, and covering such
risks as are at all times carried or maintained under similar circumstances by
Persons of established reputation engaged in similar businesses. Each such
policy of insurance shall (i) name Global Agent for the benefit of Lenders as an
additional insured thereunder as its interests may appear and (ii) in the case
of any casualty insurance policy, contain a loss payable clause or endorsement,
satisfactory in form and substance to Global Agent, that names Global Agent for
the benefit of Lenders as the loss payee and provides for at least thirty (30)
days prior written notice to Global Agent of any modification or cancellation of
such policy; provided, Global Agent shall apply any amounts received as loss
payee pursuant to Section 2.13(b).
5.6. Inspections; Lenders Meetings. Company will, and will cause each
of its Subsidiaries to, permit any authorized representatives designated by any
Lender to visit and inspect any of the properties of Company or of any of its
Subsidiaries, to inspect its and their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants (provided, Company may, if it so chooses, be
present at or participate in any such discussion), all upon reasonable notice to
the chief financial officer, treasurer or the vice president of finance of
Company and at such reasonable times during normal business hours and as often
as may reasonably be requested; provided, Lenders shall use their reasonable
efforts to coordinate with Global Agent in order to minimize the number of such
inspections and discussions. Company will, upon the request of Global Agent or
Requisite Lenders, participate in a meeting of Global Agent and Lenders once
during each Fiscal Year to be held at Company's corporate offices (or at such
other location as may be agreed to by Company and Global Agent) at such time as
may be agreed to by Company and Global Agent.
5.7. Compliance with Laws. Each Credit Party will comply, and shall
cause each of its Subsidiaries and all other Persons, if any, on or occupying
any Manufacturing Facilities to comply, with the requirements of all applicable
laws, rules, regulations and orders of any governmental authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
5.8. Environmental. (a) Environmental Disclosure. Company will
deliver to Global Agent and Lenders:
(i) as soon as practicable following Company's or any of its
Subsidiaries' receipt thereof, copies of all environmental audits,
investigations, analyses and reports with respect
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to any material environmental matter at any Manufacturing Facility or
with respect to any Environmental Claim arising after the Closing Date
at any Manufacturing Facility which could reasonably be expected to
have a Material Adverse Effect;
(ii) promptly upon Company or any of its Subsidiaries becoming
aware of the occurrence thereof, written notice describing in
reasonable detail (1) any Release required to be reported to any
federal, state or local governmental or regulatory agency under any
applicable Environmental Laws, and (2) any remedial action taken by
Company or any other Person in response to (A) any Hazardous Materials
Activities the existence of which could be reasonably be expected to
result in one or more Environmental Claims that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect, or (B) any Environmental Claims that, individually or in the
aggregate, have a reasonable possibility of resulting in a Material
Adverse Effect;
(iii) as soon as practicable following the sending or receipt
thereof by Company or any of its Subsidiaries, a copy of any and all
material written communications with any third party with respect to
(1) any Environmental Claims that, individually or in the aggregate,
have a reasonable possibility of giving rise to a Material Adverse
Effect, (2) any material Release required to be reported to any
federal, state or local governmental or
regulatory agency, and (3) any request for material information from
any governmental agency that suggests such agency is investigating
whether Company or any of its Subsidiaries may be potentially
responsible for any Hazardous Materials Activity;
(iv) prompt written notice describing in reasonable detail (1)
any proposed acquisition of stock, assets, or property by Company or
any of its Subsidiaries that could reasonably be expected to (A) expose
Company or any of its Subsidiaries to, or result in, Environmental
Claims that could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect or (B) affect the ability of
Company or any of its Subsidiaries to maintain in full force and effect
all material Governmental Authorizations required under any
Environmental Laws for their respective operations and (2) any proposed
action to be taken by Company or any of its Subsidiaries to modify
current operations in a manner that could reasonably be expected to
subject Company or any of its Subsidiaries to any additional material
obligations or requirements under any Environmental Laws; and
(v) with reasonable promptness, such other documents and
information as from time to time may be reasonably requested by Global
Agent in relation to any matters disclosed pursuant to this Section
5.8(a).
(b) Hazardous Materials Activities, Etc. Each Credit Party shall
promptly take, and shall cause each of its Subsidiaries promptly to take, any
and all actions necessary to (i) cure any violation of applicable Environmental
Laws by such Credit Party or its Subsidiaries that could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, and (ii)
make an appropriate response to any Environmental Claim against such Credit
Party or any of its Subsidiaries
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and discharge any obligations it may have to any Person thereunder where failure
to do so could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
5.9. Subsidiaries. In the event that any Person becomes a Domestic
Subsidiary of Company, Company shall promptly take all applicable actions and
execute and deliver all applicable documents, instruments, agreements, and
certificates similar to those described in Sections 3.1(b) and 3.1(i) with
respect to such Domestic Subsidiary, and Company shall cause such Domestic
Subsidiary to become a Guarantor hereunder and a Grantor under the Pledge and
Security Agreement by executing and delivering to Global Agent a Counterpart
Agreement, and to take all such actions and execute and deliver, or cause to be
executed and delivered, all such documents, instruments, agreements, and
certificates similar to those described in Sections 3.1(b), 3.1(i) and 3.1(j).
In the event that any Person becomes a Foreign Subsidiary of Company, and the
ownership interests of such Foreign Subsidiary are owned by Company or by any
Domestic Subsidiary thereof, Company shall, or shall cause such Domestic
Subsidiary to, deliver, all such documents, instruments, agreements, and
certificates similar to those described in Sections 3.1(b), and Company shall
take, or shall cause such Domestic Subsidiary to take, all of the actions
referred to in Section 3.1(j)(i) necessary to grant and to perfect a First
Priority Lien in favor of Global Agent, for the benefit of Lenders, under the
Pledge and Security Agreement in such ownership interests. With respect to each
such Subsidiary, Company shall promptly send to Global Agent written notice
setting forth with respect to such Person (i) the date on which such Person
became a Subsidiary of Company, and (ii) all of the data required to be set
forth in Schedule 4.1 with respect to all Subsidiaries of Company; provided,
such written notice shall be deemed to supplement Schedule 4.1 for all purposes
hereof.
5.10. Material Real Estate Assets. In the event that any Credit Party
acquires an interest in any Material Real Estate Asset and such interest has not
otherwise been made subject to the First Priority Lien of the Collateral
Documents in favor of Global Agent for the benefit of Lenders, then, unless
Requisite Lenders shall have previously waived such Credit Party's compliance
with this Section 5.10 with respect to such Material Real Estate Asset, such
Credit Party, contemporaneously with acquiring such Material Real Estate Asset,
shall take all such actions and execute and deliver, or cause to be executed and
delivered, all such documents, instruments, agreements, opinions, reports, and
certificates similar to those described in Sections 3.1(i), 3.1(j) and 3.1(k)
with respect to each such Material Real Estate Asset. In addition to the
foregoing, Company shall, at the request of Requisite Lenders, deliver, from
time to time, to Global Agent appraisals as are required by law or regulation of
Real Estate Assets on which Requisite Lenders have a Lien.
5.11. Interest Rate Protection. At all times after the date which is
ninety (90) days after the Closing Date, Company shall maintain, or caused to be
maintained, in effect one or more Interest Rate Agreements for a notional amount
equal to at least 50% of the outstanding aggregate principal amount of the Term
Loans and the Multicurrency Facility Loans and for a term of not less than three
years from the Closing Date and otherwise in form and substance reasonably
satisfactory to Global Agent.
5.12. Year 2000 Issues. Company shall periodically report to Global
Agent, and Global Agent shall promptly deliver each such report to each Lender,
in such form as Global Agent may
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reasonably request, on the progress of Company and its Subsidiaries in
implementing the Plan of Correction; the budget for, and actual costs with
respect to, implementation of the Plan of Correction and the assessment of
Company, any senior manager of Company or any Subsidiary, of the adequacy of the
Plan of Correction or the related implementation budget.
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment
is in effect and until payment in full of all Obligations, such Credit Party
shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.
6.1. Indebtedness. No Credit Party shall, nor shall it permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty,
or otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(a) the Obligations;
(b) Indebtedness of any of Company's Wholly-Owned Subsidiaries to
Company or to any of Company's other Wholly-Owned Subsidiaries, or of Company to
any Wholly-Owned Subsidiary; provided, (i) with respect to any such Indebtedness
other than Indebtedness of a Wholly-Owned Foreign Subsidiary, all such inter
company Indebtedness shall be evidenced by promissory notes and all such notes
shall be subject to the perfected First Priority Lien of the Pledge and Security
Agreement, (ii) all such inter company Indebtedness owed by Company to any such
Subsidiary shall be subordinated in right of payment to the payment in full of
the Obligations pursuant to the terms of the applicable promissory notes or an
inter company subordination agreement, and (iii) with respect to any such
Indebtedness other than Indebtedness of a Wholly-Owned Foreign Subsidiary, any
payment by any Subsidiary of Company under any guaranty of the Obligations shall
result in a pro tanto reduction of the amount of any inter company Indebtedness
owed by such Subsidiary to Company or to any of its Subsidiaries for whose
benefit such payment is made; provided, the foregoing clauses (i), (ii) and
(iii) shall not apply to any Purchase Money Note;
(c) Indebtedness incurred by Company or any of its Subsidiaries arising
from agreements providing for indemnification, adjustment of purchase price or
similar obligations, or from guaranties or letters of credit, surety bonds or
performance bonds securing the performance of Company or any such Subsidiary
pursuant to such agreements, in connection with acquisitions or dispositions of
any business, assets or Subsidiary of Company or any of its Subsidiaries;
(d) Indebtedness owed to any Person (including obligations in respect
of Letters of Credit for the benefit of such Person) providing worker's
compensation, health, disability or other employee benefits or property,
casualty or liability insurance to Company or any Subsidiary thereof, or which
may be deemed to exist pursuant to reimbursement or indemnification obligations
to such Person;
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(e) Indebtedness which may be deemed to exist pursuant to any
guaranties, performance, surety, statutory, appeal or similar obligations
incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections
and otherwise in connection with Deposit Accounts;
(g) guaranties in the ordinary course of business of the obligations of
suppliers, customers, franchisees and licensees of Company and its Subsidiaries;
(h) guaranties by Company of Indebtedness of its Subsidiaries or
guaranties by a Subsidiary of Company of Indebtedness of Company or another
Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be
incurred pursuant to this Section 6.1;
(i) Indebtedness of a Securitization Entity in a Permitted
Securitization Transaction that is Non-Recourse Debt (except for Standard
Securitization Undertakings) with respect to Company and its Subsidiaries;
(j) Indebtedness described in Schedule 6.1, but not any extensions,
renewals or replacements of such Indebtedness except (i) renewals and extensions
expressly provided for in the agreements evidencing any such Indebtedness as the
same are in effect on the date of this Agreement and (ii) refinancings and
extensions of any such Indebtedness if the terms thereof are no less favorable
to the obligor thereon or to the Lenders than the Indebtedness being refinanced
or extended and the average life to maturity thereof is greater than or equal to
that of the Indebtedness being refinanced or extended; provided, such
Indebtedness permitted under clause (i) or clause (ii) above shall not be (1)
Indebtedness of an obligor that was not an obligor with respect to the
Indebtedness being extended, renewed or refinanced, (2) in a principal amount
which exceeds the Indebtedness being renewed, extended or refinanced or (3)
incurred, created or assumed if any Default or Event of Default has occurred and
is continuing or would result therefrom;
(k) Indebtedness with respect to Capital Leases in an aggregate amount
not to exceed at any time $25,000,000;
(l) purchase money Indebtedness in an aggregate amount not to exceed at
any time $15,000,000 (including any Indebtedness acquired in connection with a
Permitted Acquisition or incurred in connection with the development of any Real
Estate Asset, including the construction of improvements thereon); provided, any
such Indebtedness (i) shall be recourse only to the asset acquired in connection
with the incurrence of such Indebtedness, and (ii) shall constitute not less
than 25% of the aggregate consideration paid with respect to such asset; and
(m) other Indebtedness in an aggregate amount not to exceed at any time
$50,000,000; provided, at any time the Reduced Leverage/Improved Ratings Status
is in effect, the foregoing amount of such Indebtedness shall be $100,000,000;
provided, further, if at any time the Reduced Leverage/Improved Ratings Status
ceases to be satisfied, any amount of Indebtedness then outstanding otherwise
permitted pursuant to this Section 6.1(m) in excess of $50,000,000 shall not
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be deemed to be in contravention of this Section 6.1(m), but in no event shall
Company and its Subsidiaries incur any additional Indebtedness pursuant to this
Section 6.1(m) in excess of $50,000,000 until the Reduced Leverage/Improved
Ratings Status is at such time of such incurrence satisfied.
6.2. Liens. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC of any state or under any similar recording or notice
statute, except:
(a) Liens in favor of Global Agent for the benefit of Lenders granted
pursuant to any Credit Document;
(b) Liens for taxes, assessments or governmental charges or claims with
respect to which Company or its Subsidiaries are taking each of the actions
required pursuant to Section 5.3;
(c) statutory Liens of landlords, banks (and rights of set-off), of
carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other
Liens imposed by law, in each case incurred in the ordinary course of business
(i) for amounts not yet overdue or (ii) for amounts that are overdue and that
(in the case of any such amounts overdue for a period in excess of five days)
are being contested in good faith by appropriate proceedings, so long as such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made for any such contested amounts;
(d) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts, trade
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money), so long as no
foreclosure, sale or similar proceedings have been commenced with respect to any
portion of the Collateral on account thereof;
(e) easements, rights-of-way, restrictions, encroachments,
imperfections and other minor defects or irregularities in title, which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect;
(f) any (i) interest or title of a lessor or sublessor under any lease
permitted hereunder, (ii) restriction or encumbrance that the interest or title
of such lessor or sublessor may be subject to, or (iii) subordination of the
interest of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (ii);
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(g) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company or
any of its Subsidiaries in connection with any letter of intent or purchase
agreement entered into by it;
(h) Liens incurred in connection with the purchase or shipping of goods
or assets on the related assets and proceeds thereof in favor of the seller or
shipper of such goods or assets.
(i) Liens arising from filing UCC financing statements relating solely
to leases permitted hereunder;
(j) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(k) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(l) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business of Company and its
Subsidiaries;
(m) licenses of patents, trademarks and other intellectual property
rights granted by Company or any of its Subsidiaries in the ordinary course of
business and not interfering in any material respect with the ordinary conduct
of the business of Company or such Subsidiary;
(n) judgment liens not constituting an Event of Default pursuant to
Section 8.1(h);
(o) Liens described in Schedule 6.2 or on a title report delivered
pursuant to Section 3.1(i)(iv); and
(p) Liens on assets of a Securitization Entity and Liens securing
Indebtedness permitted pursuant to Section 6.1(b), 6.1(i) and/or 6.1(l);
provided, in the case of Indebtedness permitted by Section 6.1(l), any Lien
permitted hereby shall encumber only the asset acquired with the proceeds of
such Indebtedness;
(q) other Liens securing Indebtedness in an aggregate amount not to
exceed $25,000,000 at any time outstanding; and
(r) any extension or replacement of any of the foregoing in accordance
with the terms thereof;
provided, (i) any Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA, (ii) any Lien relating to or imposed in
connection with any Environmental Claim, and (iii) any Lien expressly prohibited
by any applicable term of any Credit Document, in each case is expressly
prohibited hereunder.
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6.3. Equitable Lien; No Further Negative Pledges. If any Credit Party
or any of its Subsidiaries shall create or assume any Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than
Permitted Liens, it shall make or cause to be made effective provision whereby
the Obligations will be secured by such Lien equally and ratably with any and
all other Indebtedness secured thereby as long as any such Indebtedness shall be
so secured; provided, notwithstanding the foregoing, this covenant shall not be
construed as a consent by Requisite Lenders to the creation or assumption of any
such Lien not otherwise permitted hereby. Except with respect to (a) specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale, or (b) any
agreement prohibiting only the creation of Liens securing Subordinated
Indebtedness, no Credit Party nor any of its Subsidiaries shall enter into any
agreement prohibiting the creation or assumption of any Lien upon any of its
properties or assets, whether now owned or hereafter acquired.
6.4. Restricted Payments; Restrictions on Subsidiary Distributions. (a)
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment except (i) Company may pay a dividend on its common stock in an
aggregate amount not to exceed $0.13 per share to be paid in Fiscal Year 1999,
and for each Fiscal Year thereafter, an amount equal to $0.02 per share in
addition to the amount of such dividend per share permitted to be paid in the
immediately preceding Fiscal Year (regardless of whether actually paid);
provided, immediately prior to the declaration thereof, and after giving effect
to the payment of, any such dividend, (1) no Event of Default has occurred and
is continuing, and (2) Company is in compliance with Section 6.6, and (ii)
Company may make regularly scheduled payments of interest in respect of any
Subordinated Indebtedness in accordance with the terms of, and only to the
extent required by, and subject to the subordination provisions contained in,
the indenture or other agreement pursuant to which such Subordinated
Indebtedness was issued, as such indenture or other agreement may be amended
from time to time to the extent permitted under Section 6.13.
(b) Except as provided herein, in any Purchase Money Note, or other
Indebtedness or other contractual requirements of a Securitization Entity in
connection with a Permitted Securitization Transaction (provided, such
restrictions apply only to such Securitization Entity) Company will not, and
will not permit any of its Subsidiaries to, create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction of any
kind on the ability of any such Subsidiary to (i) pay dividends or make any
other distributions on any of such Subsidiary's capital stock owned by Company
or any other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed
by such Subsidiary to Company or any other Subsidiary of Company, (iii) make
loans or advances to Company or any other Subsidiary of Company, or (iv)
transfer any of its property or assets to Company or any other Subsidiary of
Company.
6.5. Investments. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(a) Cash Equivalents;
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(b) Investments acquired or made in any transaction contemplated by the
Acquisition Agreement or Investments owned as of the Closing Date in any
Subsidiary of Company;
(c) Investments (i) in accounts receivable arising and trade credit
granted in the ordinary course of business and in any Securities received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors and (ii) prepayments and other credits to suppliers made in the ordinary
course of business consistent with the past practices of Company and its
Subsidiaries;
(d) inter company loans to the extent permitted under Section 6.1(b) or
6.1(c);
(e) Consolidated Capital Expenditures permitted by Section 6.6(d);
(f) Hedge Agreements with any Lender Counterparty;
(g) loans to employees of Company and its Subsidiaries in an aggregate
principal amount not to exceed $5,000,000 in the aggregate;
(h) any Investment by Company or a Subsidiary of Company in a
Securitization Entity or any Investment by a Securitization Entity in any other
Person in connection with a Permitted Securitization Transaction; provided, any
Investment in a Securitization Entity is in the form of a Purchase Money Note or
equity Securities;
(i) Investments made in connection with Permitted Acquisitions
permitted pursuant to Section 6.7(h);
(j) Investments made to acquire equity interests in any less than
Wholly-Owned Subsidiaries of Company from third parties which equity interests
are purchased solely in shares of Company's common stock;
(k) Investments described in Schedule 6.5; and
(l) other Investments in an aggregate amount not to exceed at any time
$50,000,000.
6.6. Financial Covenants.
(a) Fixed Charge Coverage Ratio. Company shall not permit the Fixed
Charge Coverage Ratio as of the last day of any Fiscal Quarter (which last day
occurs in any Fiscal Year set forth below), beginning with the Fiscal Quarter
ending March 31, 1999, to be less than the correlative ratio indicated:
Fixed Charge
Fiscal Year Coverage Ratio
1999 1.30:1.00
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Fixed Charge
Fiscal Year Coverage Ratio
2000 1.35:1.00
2001 1.40:1.00
2002 1.45:1.00
2003 1.50:1.00
2004 1.50:1.00
2005 1.50:1.00
2006 1.50:1.00
(b) Leverage Ratio. Company shall not permit the Leverage Ratio as of
the last day of any Fiscal Quarter (which last day occurs in any Fiscal Year set
forth below), beginning with the Fiscal Quarter ending March 31, 1999, to exceed
the correlative ratio indicated:
Fiscal Year Leverage Ratio
1999 4.25:1.00
2000 3.75:1.00
2001 3.25:1.00
2002 3.00:1.00
2003 3.00:1.00
2004 3.00:1.00
2005 3.00:1.00
2006 3.00:1.00
(c) Consolidated Net Worth. Company shall not permit Consolidated Net
Worth as of the last day of any Fiscal Quarter, beginning with the Fiscal
Quarter ending March 31, 1999, to be less than an amount equal to the sum of the
following:
(i) the greater of (1) 85% of combined Consolidated Net Worth
of Company and its Subsidiaries and Target and its Subsidiaries
determined on a pro forma basis as of the Closing Date and after giving
effect to the Acquisition and charges incurred as of the Closing Date
related to the Acquisition as described in clauses (i)(f) and (i)(g) of
the definition of Consolidated Adjusted EBITDA (the "Acquisition
Charges"), minus 85% of Acquisition
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Charges actually incurred between the Closing Date and December 31,
1999, and (2) $425,000,000;
(ii) 50% of cumulative Consolidated Net Income after payment
of dividends pursuant to Section 6.4(i) from January 1, 1999 to and
including the date of determination; provided, if any amount as
calculated for purposes of this clause (ii) shall be less than zero,
the applicable amount for this clause (ii) shall be zero; and
(iii) 50% of the cumulative net proceeds of all equity
Securities issued by Company and its Subsidiaries (other than to
Company or any Wholly-Owned Subsidiary) from the Closing Date to and
including the date of determination.
(d) Maximum Consolidated Capital Expenditures. Company shall not, and
shall not permit its Subsidiaries to, make or incur Consolidated Capital
Expenditures, in any Fiscal Year indicated below, in an aggregate amount in
excess of the corresponding amount set forth below opposite such Fiscal Year;
provided, such amount for any Fiscal Year shall be increased by an amount equal
to the excess, if any, (but in no event more than $50,000,000) of such amount
for the previous Fiscal Year (as adjusted in accordance with this proviso) over
the actual amount of Consolidated Capital Expenditures for such previous Fiscal
Year:
Consolidated
Fiscal Year Capital Expenditures
1999 $200,000,000
2000 $210,000,000
2001 $220,000,000
2002 $235,000,000
2003 $250,000,000
2004 $270,000,000
2005 $290,000,000
2006 $310,000,000
(e) Certain Calculations. With respect to any period during which the
Acquisition, a Permitted Acquisition or Asset Sale has occurred (each, a
"Subject Transaction"), for purposes of determining compliance with the
financial covenants set forth in this Section 6.6, Consolidated Adjusted EBITDA
and the components of Consolidated Fixed Charges shall be calculated with
respect to such period on a pro forma basis (without giving effect to
adjustments to increase Consolidated Adjusted EBITDA to account for expected
improvements in the operations of the Permitted Acquisition unless otherwise as
set forth herein or as approved in writing by the Requisite Lenders and which
pro forma adjustments shall be certified by the principal financial officer or
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principal accounting officer of Company) using the historical financial
statements of any business so acquired or to be acquired or sold or to be sold
and the consolidated financial statements of Company and its Subsidiaries which
shall be reformulated as if such Subject Transaction, and any Indebtedness
incurred or repaid in connection therewith had been consummated or incurred or
repaid at the beginning of such period (and assuming that such Indebtedness
bears interest during any portion of the applicable measurement period prior to
the relevant acquisition at the weighted average of the interest rates
applicable to outstanding Loans incurred during such period); provided, expenses
reported as corporate and division overhead costs in the combined financial
statements of the Target shall be excluded from Consolidated Adjusted EBITDA.
6.7. Fundamental Changes; Disposition of Assets; Acquisitions. Company
shall not, and shall not permit any of its Subsidiaries to, alter the corporate,
capital or legal structure of Company or any of its Subsidiaries if any such
alteration could reasonably be expected to have a Material Adverse Effect, or
enter into any transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its business,
property or assets, whether now owned or hereafter acquired, or acquire by
purchase or otherwise all or substantially all the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of, any Person or
any division or line of business of any Person, except:
(a) any Domestic Subsidiary of Company may be merged with or into
Company or any Wholly-Owned Domestic Subsidiary, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to Company or any Wholly-Owned Domestic Subsidiary;
provided, in the case of such a merger, Company or such Wholly-Owned Domestic
Subsidiary shall be the continuing or surviving Person;
(b) any Foreign Subsidiary of Company may be merged with or into
Company or any Wholly-Owned Foreign Subsidiary, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to Company or any Wholly-Owned Foreign Subsidiary;
provided, in the case of such a merger, Company or such Wholly-Owned Foreign
Subsidiary shall be the continuing or surviving corporation;
(c) liquidation of Cash Equivalents in the ordinary course of
business;
(d) sales of assets which do not constitute Asset Sales;
(e) leases or subleases to other Persons of assets by Company or any
Subsidiary thereof in the ordinary course of business as conducted thereby on
the Closing Date;
(f) licenses to other Persons of Intellectual Property by Company or
any Subsidiary thereof in the ordinary course of business as conducted thereby
on the Closing Date;
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(g) Asset Sales constituting (i) in any Fiscal Year, 10% or less of
the gross book value, as determined in accordance with GAAP, of the Consolidated
Assets determined as of the Fiscal Quarter immediately preceding the Fiscal
Quarter in which such Asset Sale occurs, and (ii) from the Closing Date to the
date of determination, less than $500,000,000 in the aggregate;
(h) Permitted Acquisitions; provided, at any time the Reduced
Leverage/Improved Ratings Status is not in effect, Permitted Acquisitions shall
be permitted only if (i) the aggregate cash consideration (including the
incurrence or assumption of any Indebtedness in connection therewith) with
respect thereto does not exceed $50,000,000 in any Fiscal Year and $100,000,000
during the term of this Agreement, and (ii) the aggregate consideration with
respect thereto in the form of equity Securities of Company does not exceed
$250,000,000 in any Fiscal Year; provided further, (1) unused amounts in (i) and
(ii) above may be carried over to succeeding years, (2) with respect to all
Permitted Acquisitions by or of a Foreign Subsidiary, the consideration referred
to in each of clauses (i) and (ii) shall not exceed 50% of the amount stated
therein, and (3) for the purposes of this Section 6.7(h), Fiscal 1999 shall be
measured from the Closing Date through December 31, 1999;
(i) transactions described in the Acquisition Agreement; and
(j) transactions permitted under Section 6.5.
6.8. Disposal of Subsidiary Interests. Except as permitted under the
Collateral Documents and except for any sale of 100% of the equity Securities of
any of its Subsidiaries in compliance with the provisions of Section 6.7(a),
6.7(b) or 6.7(g), Company shall not (a) directly or indirectly sell, assign,
pledge or otherwise encumber or dispose of any equity Securities of any of its
Subsidiaries, except to qualify directors if required by applicable law; or (b)
permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or
otherwise encumber or dispose of any equity Securities of any of its
Subsidiaries (including such Subsidiary), except to Company, a Wholly-Owned
Subsidiary of Company (subject to the restrictions on such disposition otherwise
imposed herein under), or to qualify directors if required by applicable law.
6.9. Sales and Lease-Backs. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, directly or indirectly, become or remain
liable as lessee or as a guarantor or other surety with respect to any lease of
any property (whether real, personal or mixed), whether now owned or hereafter
acquired, which Company or any of its Subsidiaries (a) has sold or transferred
or is to sell or to transfer to any other Person (other than Company or any of
its Subsidiaries), or (b) intends to use for substantially the same purpose as
any other property which has been or is to be sold or transferred by Company or
any of its Subsidiaries to any Person (other than Company or any of its
Subsidiaries) in connection with such lease.
6.10. Sale or Discount of Receivables. No Credit Party shall, nor shall
it permit any of its Subsidiaries to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face value thereof,
any of its notes or accounts receivable, other than in connection with a
Permitted Securitization Transaction and as described on Schedule 6.10.
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6.11. Transactions with Shareholders and Affiliates. No Credit Party
shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of 5% or more of any class of equity Securities of Company or with any
Affiliate of Company or of any such holder, on terms that are less favorable to
Company or that Subsidiary, as the case may be, than those that might be
obtained at the time from Persons who are not such a holder or Affiliate;
provided, the foregoing restriction shall not apply to (a) any transaction
between Company and any of its Wholly-Owned Subsidiaries or between any of its
Wholly-Owned Subsidiaries, (b) reasonable and customary fees paid to members of
the Boards of Directors of Company and its Subsidiaries, (c) transactions
effected as part of a Permitted Securitization Transaction, or (d) officer and
other employee of Company and its Subsidiaries compensation arrangements entered
into in the ordinary course of business.
6.12. Conduct of Business. From and after the Closing Date, no Credit
Party shall, nor shall it permit any of its Subsidiaries to, engage in any
business other than the medical device or medical product manufacturing,
distribution, and/or sales business or such other lines of business in which
Company and/or its Subsidiaries are engaged as of the Closing Date or as
otherwise referred to in clause (vi) of the definition of Permitted
Acquisitions.
6.13. Amendments or Waivers of Certain Agreements. (a) Neither Company
nor any of its Subsidiaries will agree to any material amendment to, or waive
any of its material rights under, any Related Agreement after the Closing Date.
(b) Company shall not, and shall not permit any of its Subsidiaries
to, amend or otherwise change the terms of any Subordinated Indebtedness, or
make any payment consistent with an amendment thereof or change thereto, if the
effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions of such Subordinated Indebtedness (or of any
guaranty thereof), or change any collateral therefor (other than to release such
collateral), or if the effect of such amendment or change, together with all
other amendments or changes made, is to increase materially the obligations of
the obligor thereunder or to confer any additional rights on the holders of such
Subordinated Indebtedness (or a trustee or other representative on their behalf)
which would be adverse to Company or Lenders.
6.14. Fiscal Year. Company shall not change its Fiscal Year-end
from December 31.
SECTION 7. GUARANTY
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7.1. Guaranty of the Obligations. Subject to the provisions of Section
7.2, Guarantors jointly and severally hereby irrevocably and unconditionally
guaranty the due and punctual payment in full of all Obligations when the same
shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. ss. 362(a)).
7.2. Contribution by Guarantors. Guarantors desire to allocate among
themselves (collectively, the "Contributing Guarantors"), in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly, in
the event any payment or distribution is made on any date by a Guarantor under
this Guaranty (a "Funding Guarantor") that exceeds its Fair Share as of such
date, that Funding Guarantor shall be entitled to a contribution from each of
the other Contributing Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "Fair Share" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a)
the ratio of (i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations guarantied. "Fair
Share Shortfall" means, with respect to a Contributing Guarantor as of any date
of determination, the excess, if any, of the Fair Share of such Contributing
Guarantor over the Aggregate Payments of such Contributing Guarantor. "Fair
Share Contribution Amount" means, with respect to a Contributing Guarantor as of
any date of determination, the maximum aggregate amount of the Obligations of
such Contributing Guarantor under this Guaranty that would not render its
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law; provided, solely for purposes of
calculating the "Fair Share Contribution Amount" with respect to any
Contributing Guarantor for purposes of this Section 7.2, any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Contributing Guarantor. "Aggregate Payments" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (1)
the aggregate amount of all payments and distributions made on or before such
date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this Section 7.2), minus (2) the aggregate
amount of all payments received on or before such date by such Contributing
Guarantor from the other Contributing Guarantors as contributions under this
Section 7.2. The amounts payable as contributions hereunder shall be determined
as of the date on which the related payment or distribution is made by the
applicable Funding Guarantor. The allocation among Contributing Guarantors of
their obligations as set forth in this Section 7.2 shall not be construed in any
way to limit the liability of any Contributing Guarantor hereunder. Each
Guarantor is a third party beneficiary to the contribution agreement set forth
in this Section 7.2.
7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby
jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Beneficiary
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may have at law or in equity against any Guarantor by virtue hereof, that upon
the failure of Company to pay any of the Obligations when and as the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. ss. 362(a)), Guarantors will upon demand pay, or cause to be
paid, in Cash, to Global Agent for the ratable benefit of Beneficiaries, an
amount equal to the sum of the unpaid principal amount of all Obligations then
due as aforesaid, accrued and unpaid interest on such Obligations (including
interest which, but for the filing of a petition in bankruptcy with respect to
Company, would have accrued on such Obligations, whether or not a claim is
allowed against Company for such interest in the related bankruptcy proceeding)
and all other Obligations then owed to Beneficiaries as aforesaid.
7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Obligations. In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of
collectibility;
(b) Global Agent may enforce this Guaranty upon the occurrence of an
Event of Default notwithstanding the existence of any dispute between Company
and any Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the
obligations of Company and the obligations of any other guarantor (including any
other Guarantor) of the obligations of Company, and a separate action or actions
may be brought and prosecuted against such Guarantor whether or not any action
is brought against Company or any of such other guarantors and whether or not
Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the
Obligations shall in no way limit, affect, modify or abridge any Guarantor's
liability for any portion of the Obligations which has not been paid. Without
limiting the generality of the foregoing, if Global Agent is awarded a judgment
in any suit brought to enforce any Guarantor's covenant to pay a portion of the
Obligations, such judgment shall not be deemed to release such Guarantor from
its covenant to pay the portion of the Obligations that is not the subject of
such suit, and such judgment shall not, except to the extent satisfied by such
Guarantor, limit, affect, modify or abridge any other Guarantor's liability
hereunder in respect of the Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability hereof or
giving rise to any reduction, limitation, impairment, discharge or termination
of any Guarantor's liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Obligations; (ii) settle, compromise,
release or discharge, or
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accept or refuse any offer of performance with respect to, or substitutions for,
the Obligations or any agreement relating thereto and/or subordinate the payment
of the same to the payment of any other obligations; (iii) request and accept
other guaranties of the Obligations and take and hold security for the payment
hereof or the Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or
without consideration, any security for payment of the Obligations, any other
guaranties of the Obligations, or any other obligation of any Person (including
any other Guarantor) with respect to the Obligations; (v) enforce and apply any
security now or hereafter held by or for the benefit of such Beneficiary in
respect hereof or the Obligations and direct the order or manner of sale
thereof, or exercise any other right or remedy that such Beneficiary may have
against any such security, in each case as such Beneficiary in its discretion
may determine consistent herewith or the applicable Hedge Agreement and any
applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of any Guarantor against Company or any security for the
Obligations; and (vi) exercise any other rights available to it under the Credit
Documents or the Hedge Agreements; and
(f) this Guaranty and the obligations of Guarantors hereunder shall
be valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full
of the Obligations), including the occurrence of any of the following, whether
or not any Guarantor shall have had notice or knowledge of any of them: (i) any
failure or omission to assert or enforce or agreement or election not to assert
or enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Credit Documents or the Hedge
Agreements, at law, in equity or otherwise) with respect to the Obligations or
any agreement relating thereto, or with respect to any other guaranty of or
security for the payment of the Obligations; (ii) any rescission, waiver,
amendment or modification of, or any consent to departure from, any of the terms
or provisions (including provisions relating to events of default) hereof, any
of the other Credit Documents, any of the Hedge Agreements or any agreement or
instrument executed pursuant thereto, or of any other guaranty or security for
the Obligations, in each case whether or not in accordance with the terms hereof
or such Credit Document, such Hedge Agreement or any agreement relating to such
other guaranty or security; (iii) the Obligations, or any agreement relating
thereto, at any time being found to be illegal, invalid or unenforceable in any
respect; (iv) the application of payments received from any source (other than
payments received pursuant to the other Credit Documents or any of the Hedge
Agreements or from the proceeds of any security for the Obligations, except to
the extent such security also serves as collateral for indebtedness other than
the Obligations) to the payment of indebtedness other than the Obligations, even
though any Beneficiary might have elected to apply such payment to any part or
all of the Obligations; (v) any Beneficiary's consent to the change,
reorganization or termination of the corporate structure or existence of Company
or any of its Subsidiaries and to any corresponding restructuring of the
Obligations; (vi) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Obligations; (vii) any
defenses, set-offs or counterclaims which Company may allege or assert against
any Beneficiary in respect of the Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of
limitations, accord
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and satisfaction and usury; and (viii) any other act or thing or omission, or
delay to do any other act or thing, which may or might in any manner or to any
extent vary the risk of any Guarantor as an obligor in respect of the
Obligations.
7.5. Waivers by Guarantors. Each Guarantor hereby waives, to the extent
permitted by applicable law, for the benefit of Beneficiaries: (a) any right to
require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against Company, any other guarantor (including any
other Guarantor) of the Obligations or any other Person, (ii) proceed against or
exhaust any security held from Company, any such other guarantor or any other
Person, (iii) proceed against or have resort to any balance of any deposit
account or credit on the books of any Beneficiary in favor of Company or any
other Person, or (iv) pursue any other remedy in the power of any Beneficiary
whatsoever; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Company including any defense
based on or arising out of the lack of validity or the unenforceability of the
Obligations or any agreement or instrument relating thereto or by reason of the
cessation of the liability of Company from any cause other than payment in full
of the Obligations; (c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal; (d) any defense based
upon any Beneficiary's errors or omissions in the administration of the
Obligations, except behavior which amounts to bad faith, gross negligence or
willful misconduct; (e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof and any legal
or equitable discharge of such Guarantor's obligations hereunder, (ii) the
benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments
and counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any security interest or lien or
any property subject thereto; (f) notices, demands, presentments, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance hereof, notices of default hereunder, the Hedge Agreements
or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the Obligations or any agreement related thereto,
notices of any extension of credit to Company and notices of any of the matters
referred to in Section 7.4 and any right to consent to any thereof; and (g) any
defenses or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the
terms hereof.
7.6. Guarantors' Rights of Subrogation, Contribution, Etc. Each
Guarantor hereby waives any claim, right or remedy, direct or indirect, that
such Guarantor now has or may hereafter have against Company or any of its
assets in connection with this Guaranty or the performance by such Guarantor of
its obligations hereunder, in each case whether such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise and
including without limitation (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against
Company with respect to the guarantied Obligations, (b) any right to enforce, or
to participate in, any claim, right or remedy that any Beneficiary now has or
may hereafter have against Company, and (c) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the guarantied Obligations shall have been
indefeasibly paid in full and the Commitments shall have terminated and all
Letters of Credit shall
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have expired or been cancelled, each Guarantor shall withhold exercise of any
right of contribution such Guarantor may have against any other guarantor
(including any other Guarantor) of the guarantied Obligations, including,
without limitation, any such right of contribution under Section 7.2. Each
Guarantor further agrees that, to the extent the waiver or agreement to withhold
the exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement
or indemnification such Guarantor may have against Company or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against Company, to all right, title and interest any
Beneficiary may have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor. If any amount shall be paid
to any Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all guarantied
Obligations shall not have been paid in full, such amount shall be held in trust
for Global Agent on behalf of Beneficiaries and shall forthwith be paid over to
Global Agent for the benefit of Beneficiaries to be credited and applied against
the guarantied Obligations, whether matured or unmatured, in accordance with the
terms hereof.
7.7. Subordination of Other Obligations. Any Indebtedness of Company
or any Guarantor now or hereafter held by any Guarantor (the "Obligee
Guarantor") is hereby subordinated in right of payment to the Obligations, and
any such Indebtedness collected or received by the Obligee Guarantor after an
Event of Default has occurred and is continuing shall be held in trust for
Global Agent on behalf of Beneficiaries and shall forthwith be paid over to
Global Agent for the benefit of Beneficiaries to be credited and applied against
the Obligations but without affecting, impairing or limiting in any manner the
liability of the Obligee Guarantor under any other provision hereof.
7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and
shall remain in effect until all of the Obligations shall have been paid in full
and the Commitments shall have terminated and all Letters of Credit shall have
expired or been cancelled. Each Guarantor hereby irrevocably waives any right to
revoke this Guaranty as to future transactions giving rise to any Obligations.
7.9. Authority of Guarantors or Company. It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Guarantor or Company
or the officers, directors or any Agents acting or purporting to act on behalf
of any of them.
7.10. Financial Condition of Company. Any Credit Extension may be
granted to Company or continued from time to time, and any Hedge Agreements may
be entered into from time to time, in each case without notice to or
authorization from any Guarantor regardless of the financial or other condition
of Company at the time of any such grant or continuation or at the time such
Hedge Agreement is entered into, as the case may be. No Beneficiary shall have
any obligation to disclose or discuss with any Guarantor its assessment, or any
Guarantor's assessment, of the financial condition of Company. Each Guarantor
has adequate means to obtain information from Company on a continuing basis
concerning the financial condition of Company and its ability to perform its
obligations under the Credit Documents and the Hedge Agreements, and each
Guarantor assumes the responsibility for being and keeping informed of the
financial condition of Company and of all
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circumstances bearing upon the risk of nonpayment of the Obligations. Each
Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary
to disclose any matter, fact or thing relating to the business, operations or
conditions of Company now known or hereafter known by any Beneficiary.
7.11. Bankruptcy, Etc. (a) So long as any Obligations remain
outstanding, no Guarantor shall, without the prior written consent of Global
Agent acting pursuant to the instructions of Requisite Lenders, commence or join
with any other Person in commencing any bankruptcy, reorganization or insolvency
proceedings of or against Company. The obligations of Guarantors hereunder shall
not be reduced, limited, impaired, discharged, deferred, suspended or terminated
by any proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of Company
or by any defense which Company may have by reason of the order, decree or
decision of any court or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any
portion of the Obligations which accrues after the commencement of any
proceeding referred to in clause (a) above (or, if interest on any portion of
the Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Obligations if said proceedings had not been commenced) shall be
included in the Obligations because it is the intention of Guarantors and
Beneficiaries that the Obligations which are guarantied by Guarantors pursuant
hereto should be determined without regard to any rule of law or order which may
relieve Company of any portion of such Obligations. Guarantors will permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit
of creditors or similar person to pay Global Agent, or allow the claim of Global
Agent in respect of, any such interest accruing after the date on which such
proceeding is commenced.
(c) In the event that all or any portion of the Obligations are paid
by Company, the obligations of Guarantors hereunder shall continue and remain in
full force and effect or be reinstated, as the case may be, in the event that
all or any part of such payment(s) are rescinded or recovered directly or
indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall
constitute Obligations for all purposes hereunder.
7.12. Notice of Events. As soon as any Guarantor obtains knowledge
thereof, such Guarantor shall give Global Agent written notice of any condition
or event which has resulted in (i) a material adverse change in the financial
condition of any Guarantor or Company or (ii) a breach of or noncompliance with
any term, condition or covenant contained herein, any other Credit Document, any
Hedge Agreement or any other document delivered pursuant hereto or thereto.
7.13. Discharge of Guaranty Upon Sale of Guarantor. If all of the
equity Securities of any Guarantor or any of its successors in interest
hereunder shall be sold or otherwise disposed of (including by merger or
consolidation) in accordance with terms and conditions hereof, the Guaranty of
such Guarantor or such successor in interest, as the case may be, hereunder
shall automatically be
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discharged and released without any further action by any Beneficiary or any
other Person effective as of the time of such Asset Sale; provided, as a
condition precedent to such discharge and release, Global Agent shall have
received evidence satisfactory to it that arrangements satisfactory to it have
been made for delivery to Global Agent of the applicable Net Asset Sale Proceeds
of such disposition pursuant to Section 2.13(a).
SECTION 8. EVENTS OF DEFAULT
8.1. Events of Default. If any one or more of the following conditions
or events shall occur:
(a) failure by Company to pay (i) when due any installment of principal
of any Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any
amount payable to any Issuing Bank in reimbursement of any drawing under a
Letter of Credit issued thereby; or (iii) any interest on any Loan or any fee or
any other amount due hereunder within five (5) days after the date due; or
(b) (i) failure of one or more Credit Parties or any of their
respective Subsidiaries to pay when due any principal of or interest on or any
other amount payable in respect of one or more items of Indebtedness (other than
Indebtedness referred to in Section 8.1(a)) in an individual principal amount of
$5,000,000 (or the Multicurrency Equivalent thereof) or more or with an
aggregate principal amount of $10,000,000 (or the Multicurrency Equivalent
thereof) or more, in each case beyond the end of any grace period provided
therefor; or (ii) breach or default by one or more Credit Parties or any of
their respective Subsidiaries with respect to any other material term of (1) one
or more items of Indebtedness in the individual or aggregate principal amounts
referred to in clause (i) above or (2) any loan agreement, mortgage, indenture
or other agreement relating to such item(s) of Indebtedness, if the effect of
such breach or default is to cause, or to permit the holder or holders of that
Indebtedness (or a trustee on behalf of such holder or holders) to cause, that
Indebtedness to become or be declared due and payable prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may be
(upon the giving or receiving of notice, lapse of time, both, or otherwise); or
(c) failure of any Credit Party to perform or comply with any term or
condition contained in Section 2.5, 5.1(f), 5.2 or Section 6 hereof; or
(d) any representation, warranty, certification or other statement made
or deemed made by any Credit Party in any Credit Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false
in any material respect on the date as of which made or deemed made; or
(e) any Credit Party shall default in the performance of or compliance
with any term contained herein or any of the other Credit Documents, other than
any such term referred to in any other subsection of this Section 8.1, and such
default shall not have been remedied or waived within
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thirty (30) days after the earlier of (i) an officer of such Credit Party
becoming aware of such default or (ii) receipt by Company of notice from Global
Agent or any Lender of such default; or
(f) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Company or any of its Subsidiaries in
an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against Company or any of its Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Company or any of its Subsidiaries, or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Company or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries, and any such event described in
this clause (ii) shall continue for sixty (60) days unless dismissed, bonded or
discharged; or
(g) (i) Company or any of its Subsidiaries shall have an order for
relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or Company or any of its Subsidiaries shall
make any assignment for the benefit of creditors; or (ii) Company or any of its
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of Company or any of its Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to herein or in Section 8.1(f); or
(h) any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of $5,000,000
(or the Multicurrency Equivalent thereof) or (ii) in the aggregate at any time
an amount in excess of $10,000,000 (or the Multicurrency Equivalent thereof), in
either case not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage, shall be entered or
filed against Company or any of its Subsidiaries or any of their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of sixty (60) days (or in any event later than five days prior to the
date of any proposed sale thereunder); or
(i) any order, judgment or decree shall be entered against any Credit
Party decreeing the dissolution or split up of Company or that Subsidiary and
such order shall remain undischarged or unstayed for a period in excess of
thirty (30) days; or
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(j) there shall occur one or more ERISA Events which individually or in
the aggregate results in or might reasonably be expected to result in liability
of Company, any of its Subsidiaries or any of their respective ERISA Affiliates
in excess of $5,000,000 during the term hereof; or there shall exist an amount
of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), which exceeds $5,000,000; or
(k) either Transition Agreement shall terminate for any reason
whatsoever (other than in accordance with the terms thereof) or Seller shall
fail to perform its obligations under either such agreement and such failure
could reasonably be expected to result in a Material Adverse Effect; or
(l) a Change of Control shall occur; or
(m) at any time after the execution and delivery thereof, (i) the
Guaranty for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force and effect (other than in accordance with its
terms) or shall be declared to be null and void or any Guarantor shall repudiate
its obligations thereunder, (ii) this Agreement or any other Collateral Document
with respect to any Collateral ceases to be in full force and effect (other than
by reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the
terms hereof or thereof) or shall be declared null and void, or Global Agent
shall not have or shall cease to have a valid and perfected Lien in any
Collateral having a fair market value in excess of $1,000,000 purported to be
covered by any Collateral Document, in each case for any reason other than the
failure of Global Agent to take any action within its control, or (iii) any
Credit Party shall contest the validity or enforceability of any Credit Document
in writing or deny in writing that it has any further liability, including with
respect to future advances by Lenders, under any Credit Document to which it is
a party; or
(n) (i) the Acquisition shall not be consummated in accordance with the
Related Agreements concurrently with the making of the initial Loans, or the
Acquisition shall be unwound, reversed or otherwise rescinded in whole or in
part for any reason, or (ii) Company shall agree to any material amendment to,
or waive any of its material rights under, or otherwise change any material
terms of, any of the Related Agreements as in effect on the Closing Date, in a
manner adverse to Company or any of its Subsidiaries or to Lenders without the
prior written consent of Global Agent and Requisite Lenders;
THEN, (1) upon the occurrence of any Event of Default described in Section
8.1(f) or 8.1(g), automatically, and (2) upon the occurrence of any other Event
of Default, at the request of (or with the consent of) Requisite Lenders, upon
notice to Company by Global Agent, (A) the Facility Commitments, if any, of each
Lender having such Commitments and the obligation of each Issuing Bank to issue
any Letter of Credit shall immediately terminate, and (B) each of the following
shall immediately become due and payable, in each case without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by each Credit Party: (I) the unpaid principal amount of and
accrued interest on the Loans, (II) an amount equal to the maximum
amount that may at any time be drawn under all Letters of Credit then
outstanding (regardless of
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whether any beneficiary under any such Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other documents or
certificates required to draw under such Letter of Credit), and (III) all other
Obligations; provided, the foregoing shall not affect in any way the obligations
of Lenders under Section 2.2(b)(iv), 2.2(d)(v), 2.3(a)(iii), 2.3(a)(iv),
2.3(b)(iii) or 2.3(b)(iv).
SECTION 9. AGENTS
9.1. Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes GSCP to act as Syndication Agent, Bank of
America to act as Global Agent, Bank of America to act as US Facility Agent,
Bank of America to act as Multicurrency Facility Agent, and each of ABN, Bank
One and BNS to each act as a Co-Documentation Agent under this Agreement and the
other Credit Documents with such powers and discretion as are specifically
delegated to Syndication Agent, Global Agent, the applicable Facility Agent and
each Co-Documentation Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Each Agent (which term as used in this Section 9 shall mean each Agent, its
Affiliates and its own and its Affiliates' officers, directors, employees):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or fiduciary
for any Lender;
(b) shall not be responsible to Lenders for any recital, statement,
representation, or warranty (whether written or oral) made in or in connection
with any Credit Document or any certificate or other document referred to or
provided for in, or received by any of them under, any Credit Document, or for
the value, validity, effectiveness, genuineness, enforceability, or sufficiency
of any Credit Document, or any other document referred to or provided for
therein or for any failure by Company or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to ascertain,
inquire into, or verify the performance or observance of any covenants or
agreements by Company or the satisfaction of any condition or to inspect the
property (including the books and records) of Company or any of its Subsidiaries
or Affiliates;
(d) except as expressly set forth herein or in any Credit Document,
shall not be required to initiate or conduct any litigation or collection
proceedings under any Credit Document; and
(e) shall not be responsible for any action taken or omitted to be
taken by it under or in connection with any Credit Document, except for its own
gross negligence or willful misconduct.
Each Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. As of the Amendment and Restatement
Effective Date, all the respective obligations of GSCP, in its capacity
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as Syndication Agent, and each of ABN, Bank One and BNS in its capacity as a
Co-Documentation Agent, shall terminate.
9.2. Reliance by Agents. Each Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for Company), independent accountants, and other experts
selected by such Agent. As to any matters not expressly provided for by this
Agreement, no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders, and such instructions shall be binding on all of the
applicable Lenders; provided, no Agent shall be required to take any action that
exposes it to personal liability or that is contrary to any Credit Document or
applicable law or unless it shall first be indemnified to its satisfaction by
the applicable Lenders against any and all liability and expense which may be
incurred by it by reason of taking any such action.
9.3. Defaults. No Agent shall be deemed to have knowledge or notice of
the occurrence of a Default or Event of Default unless it has received written
notice from another Agent or a Lender or Company specifying such Default or
Event of Default and stating that such notice is a "Notice of Default";
provided, each Lender shall use its best reasonable efforts to deliver such
notice to its applicable Facility Agent upon its knowledge of any Default or
Event of Default; provided further, that the failure to deliver such notice
shall not result in any liability to any other Lender or Agent. In the event
that any Facility Agent receives such a notice of the occurrence of a Default or
Event of Default, such Facility Agent shall give prompt notice thereof to the
applicable Lenders in its specific Facility and the other Agents, including
Global Agent. In the event that Global Agent receives such a notice of the
occurrence of a Default or Event of Default, Global Agent shall give prompt
notice thereof to all Facility Agents. Global Agent shall (subject to Section
9.2) take such action with respect to such Default or Event of Default as shall
reasonably be directed by the Requisite Lenders, provided, unless and until
Global Agent shall have received such directions, Global Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interest of Lenders.
9.4. Rights as Lender. With respect to its applicable Facility
Commitments and the Loans made by it, each Agent, acting in its individual
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as an
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include each Agent in its individual capacity. Each of Agent in its
individual capacity and its Affiliates may (without having to account therefor
to any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with Company or any of its Subsidiaries or Affiliates as if it were not
acting as an Agent, and each Agent in its individual capacity and its Affiliates
may accept fees and other consideration from Company or any of its Subsidiaries
or Affiliates for services in connection with this Agreement or otherwise
without having to account for the same to Lenders.
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9.5. Indemnification. Each Lender agrees to indemnify Agents (to the
extent not reimbursed under Section 10.3, but without limiting the obligations
of Company under such Section and solely to the extent of such Lender's Pro Rata
Share), for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including attorneys' fees), or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against any of Agents (including by any Lender) in any way
relating to or arising out of any Credit Document or the transactions
contemplated thereby or any action taken or omitted by any of Agents under any
Credit Document; provided, no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Person to be indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse Agents promptly upon demand for its Pro Rata Share of any
costs or expenses payable by Company under Section 10.3, to the extent that
Agents are not promptly reimbursed for such costs and expenses by Company.
9.6. Non-Reliance on Agents and Other Lenders. Each Lender agrees that
it has, independently and without reliance on any of Agents or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of Company and its Subsidiaries, including Target and
its Subsidiaries, and decision to enter into this Agreement and that it will,
independently and without reliance upon any of Agents or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Credit Documents. Except for notices, reports, and other
documents and information expressly required to be furnished to Lenders by
Agents hereunder, Agents shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the affairs,
financial condition, or business of Company or any of its Subsidiaries or
Affiliates that may come into the possession of any of Agents or any of its
Affiliates.
9.7. Resignation of an Agent. Any Agent may resign at any time by
giving notice thereof (a) with respect to the resignation of Global Agent, to
Lenders, Company and Facility Agents, and (b) with respect to the resignation of
any applicable Facility Agent, to applicable Lenders, Company and Global Agent.
Upon any such resignation of Global Agent, the Requisite Lenders shall have the
right to appoint a successor Global Agent, which shall be a Lender at such time
and which, so long as no Default or Event of Default exists, shall be acceptable
to Company, which acceptance shall not be unreasonably withheld or delayed. Upon
any such resignation of an applicable Facility Agent, the applicable Requisite
Class Lenders with respect to the applicable Facility shall have the right to
appoint a successor Facility Agent for such Facility, which shall be a Lender
under such Facility at such time and which, so long as no Default or Event of
Default exists, shall be acceptable to Company, which acceptance shall not be
unreasonable withheld or delayed. If no successor Global Agent or applicable
Facility Agent shall have been so appointed and shall have accepted such
appointment within thirty (30) days after the retiring Global Agent or
applicable Facility Agent's giving of notice of resignation, then the
resignation of the retiring Global Agent or applicable Facility Agent as the
case may be, shall nonetheless thereupon be effective and Facility Agents, in
the case of Global Agent's resignation, or applicable Facility Lenders, in the
case of an applicable Facility Agent's resignation, shall perform all the
obligations of the retiring Agent hereunder until such time,
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if any, as the Requisite Lenders shall appoint a successor Agent as provided for
above. Upon the acceptance of any appointment as Global Agent or applicable
Facility Agent hereunder by a successor, such successor shall thereupon succeed
to and become vested with all the rights, powers, discretion, privileges, and
duties of the retiring Global Agent or applicable Facility Agent, and the
retiring Global Agent or applicable Facility Agent shall be discharged from its
duties and obligations hereunder. After any retiring Global Agent or applicable
Facility Agent's resignation hereunder as Global Agent or applicable Facility
Agent, the provisions of this Section 9 shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Global Agent or applicable Facility Agent.
9.8. Collateral Documents and Guaranties. (a) Each Lender hereby
further authorizes Global Agent, on behalf of and for the benefit of Lenders, to
be the agent for and representative of Lenders with respect to the Guaranty and
the Collateral. Without further written consent or authorization from Lenders,
Global Agent shall execute any documents or instruments necessary to (i) release
any Lien encumbering any item of Collateral that is the subject of a sale or
other disposition of assets permitted hereby, that secures a Real Estate Asset
being developed in connection with the incurrence of any Indebtedness permitted
pursuant to Section 6.1(l), that secures any Leasehold Property that is being
terminated or otherwise abandoned, or to which Requisite Lenders (or such other
Lenders as may be required to give such consent under Section 10.5) have
otherwise consented or (ii) release any Guarantor from the Guaranty if all of
the equity Securities of such Guarantor is sold to any Person (other than an
Affiliate of Company) pursuant to Section 7.13 or to which Requisite Lenders (or
such other Lenders as may be required to give such consent under Section 10.5)
have otherwise consented.
(b) Anything contained in any of the Credit Documents to the contrary
notwithstanding, Company, Global Agent and each Lender hereby agree that (i) no
Lender shall have any right individually to realize upon any of the Collateral
or to enforce the Guaranty, it being understood and agreed that all powers,
rights and remedies hereunder may be exercised solely by Global Agent for the
benefit of Lenders in accordance with the terms hereof, and (ii) in the event of
a foreclosure by Global Agent on any of the Collateral pursuant to a public or
private sale, Global Agent or any Lender may be the purchaser of any or all of
such Collateral at any such sale and Global Agent, as agent for and
representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations as a credit on
account of the purchase price for any collateral payable by Global Agent at such
sale.
(c) It is the purpose hereof and the other Credit Documents that
there shall be no violation of any law of any jurisdiction denying or
restricting the right of banking corporations or associations to transact
business as agent or trustee in such jurisdiction. It is recognized that in case
of litigation hereunder or any of the other Credit Documents, and in particular
in case of the enforcement of any of the Credit Documents, or in case Global
Agent deems that by reason of any present or future law of any jurisdiction it
may not exercise any of the rights, powers or remedies granted herein or in any
of the other Credit Documents or take any other action which may be
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desirable or necessary in connection therewith, it may be necessary that Global
Agent appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent or collateral co- agent (a "Supplemental Collateral
Agent"). In the event that Global Agent appoints a Supplemental Collateral Agent
with respect to any Collateral, (i) each and every right, power, privilege or
duty expressed or intended hereby or any of the other Credit Documents to be
exercised by or vested in or conveyed to Global Agent with respect to such
Collateral shall be exercisable by and vest in such Supplemental Collateral
Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges
with respect to such Collateral and to perform such duties with respect to such
Collateral, and every covenant and obligation contained in the Credit Documents
and necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Agent or such
Supplemental Collateral Agent, and (ii) the provisions of this Section 9 and of
Sections 10.2 and 10.3 that refer to Global Agent shall inure to the benefit of
such Supplemental Collateral Agent and all references therein to Global Agent
shall be deemed to be references to Global Agent and/or such Supplemental
Collateral Agent, as the context may require. Should any instrument in writing
from Company or any other Credit Party be required by any Supplemental
Collateral Agent so appointed by Global Agent for more fully and certainly
vesting in and confirming to him or it such rights, powers, privileges and
duties, Company shall, or shall cause such Credit Party to, execute, acknowledge
and deliver any and all such instruments promptly upon request by Global Agent.
In case any Supplemental Collateral Agent, or a successor thereto, shall die,
become incapable of acting, resign or be removed, all the rights, powers,
privileges and duties of such Supplemental Collateral Agent, to the extent
permitted by law, shall vest in and be exercised by Global Agent until the
appointment of a new Supplemental Collateral Agent.
SECTION 10. MISCELLANEOUS
10.1. Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
sent to the address of the applicable Person as set forth on Appendix C or as
designated in writing from time to time by such Person to Global Agent, the
applicable Facility Agent and Company. Each notice hereunder shall be in writing
and may be personally served, telexed or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been given when delivered in
person or by courier service and signed for against receipt thereof, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in
the United States mail with postage prepaid and properly addressed; provided, no
notice to any Agent shall be effective until received by such Agent.
10.2. Expenses. Whether or not the transactions contemplated hereby
shall be consummated, Company agrees to pay promptly (a) all the actual and
reasonable costs and expenses of preparation of the Credit Documents and any
consents, amendments, waivers or other modifications thereto; (b) all the costs
of furnishing all opinions by counsel for Company (including any opinions
requested by Lenders as to any legal matters arising hereunder) and of Company's
and its Subsidiaries' performance of and compliance with all agreements and
conditions on its part to be performed or complied with hereunder and the other
Credit Documents including with respect to confirming compliance with
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environmental, insurance and solvency requirements; (c) the reasonable fees,
expenses and disbursements of counsel to Syndication Agent, Global Agent and NMS
(in each case including allocated costs of internal counsel) in connection with
the negotiation, preparation, execution and administration of the Credit
Documents and any consents, amendments, waivers or other modifications thereto
and any other documents or matters requested by Company; (d) all the actual
costs and reasonable expenses of creating and perfecting Liens in favor of
Global Agent on behalf of Lenders pursuant hereto, including filing and
recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums and reasonable fees, expenses and disbursements of
counsel to Syndication Agent, Global Agent and NMS and of counsel providing any
opinions that any Agent or Requisite Lenders may request in respect of the
Collateral or the Liens created pursuant hereto; (e) all the actual costs and
reasonable fees, expenses and disburse ments of any auditors, accountants,
consultants or appraisers; (f) all the actual costs and reasonable expenses
(including the reasonable fees, expenses and disbursements of any appraisers,
consultants, advisors and agents employed or retained by Global Agent and its
counsel) in connection with the custody or preservation of any of the
Collateral; (g) all other actual and reasonable costs and expenses incurred by
Syndication Agent, Global Agent and NMS in connection with the syndication of
the Loans and Commitments and the negotiation, preparation and execution of the
Credit Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; and (h) after the occurrence
of an Event of Default, all costs and expenses, including reasonable attorneys'
fees (including allocated costs of internal counsel) and costs of settlement,
incurred by any Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Credit Party hereunder or under the other
Credit Documents by reason of such Event of Default (including in connection
with the sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranty) or in connection with any
refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a "work-out" or pursuant to any insolvency or bankruptcy
proceedings.
10.3. Indemnity. In addition to the payment of expenses pursuant to
Section 10.2, whether or not the transactions contemplated hereby shall be
consummated, each Credit Party agrees to defend (subject to Indemnitees'
selection of counsel), indemnify, pay and hold harmless Agents and Lenders, and
the officers, partners, directors, trustees, employees, agents and Affiliates of
each Agent and each Lender (each, an "Indemnitee"), from and against any and all
Indemnified Liabilities; provided, no Credit Party shall have any obligation to
any Indemnitee hereunder with respect to any Indemnified Liabilities to the
extent such Indemnified Liabilities arise solely from the gross negligence or
willful misconduct of that Indemnitee as determined by a final, non-appealable
judgment of a court of competent jurisdiction. To the extent that the
undertakings to defend, indemnify, pay and hold harmless set forth in this
Section 10.3 may be unenforceable in whole or in part because they are violative
of any law or public policy, applicable Credit Party shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them.
10.4. Set-Off. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Credit Party at any time or from time to time subject to the consent of
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Global Agent (such consent not to be unreasonably withheld or delayed), without
notice to any Credit Party or to any other Person (other than Global Agent), any
such notice being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, including Indebtedness evidenced
by certificates of deposit, whether matured or unmatured, but not including
trust accounts) and any other Indebtedness at any time held or owing by such
Lender to or for the credit or the account of any Credit Party against and on
account of the obligations and liabilities of any Credit Party to such Lender
hereunder, the Letters of Credit and participations therein and the other Credit
Documents, including all claims of any nature or description arising out of or
connected herewith, the Letters of Credit and participations therein or any
other Credit Document, irrespective of whether or not (a) such Lender shall have
made any demand hereunder or (b) the principal of or the interest on the Loans
or any amounts in respect of the Letters of Credit or any other amounts due
hereunder shall have become due and payable pursuant to Section 2 and although
said obligations and liabilities, or any of them, may be contingent or
unmatured. Each Credit Party hereby further grants to Global Agent and each
Lender a security interest in all Deposits Accounts maintained with Global Agent
or such Lender as security for the Obligations.
10.5. Amendments and Waivers. (a) Subject to Section 10.5(b) and
10.5(c), no amendment, modification, termination or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall in any event be effective without the written concurrence of the Requisite
Lenders.
(b) Without the written consent of each Lender that would be
affected thereby, no amendment, modification, termination, or consent shall be
effective if the effect thereof would (i) extend the scheduled final maturity of
any Loan or Note; (ii) waive, reduce or postpone any scheduled repayment; (iii)
extend the stated expiration date of any Letter of Credit beyond the applicable
Facility Commitment Termination Date; (iv) reduce (1) the rate of interest on
any Loan (other than any waiver of any increase in the interest rate applicable
to any Loan pursuant to Section 2.9) or (2) any commitment fees or letter of
credit fees payable hereunder; (v) extend the time for payment of any such
interest or fees; (vi) reduce the principal amount of any Loan or any
reimbursement obligation in respect of any Letter of Credit; (vii) amend,
modify, terminate or waive any provision of this Section 10.5(b) or of Section
10.5(c); (viii) amend the definition of "Requisite Lenders"; provided, with the
consent of Requisite Lenders, additional extensions of credit pursuant hereto
may be included in the determination of "Requisite Lenders" on substantially the
same basis as the Term Loan Amounts, the Term Loans, the Commitments and the
Facility Loans are included on the Closing Date; (ix) release or otherwise
subordinate all or substantially all of the Collateral or all or substantially
all of the Guarantors from the Guaranty except as expressly provided in the
Credit Documents; (x) consent to the assignment or transfer by any Credit Party
of any of its rights and obligations under any Credit Document; or (xi) extend
the duration of any Interest Period.
(c) No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit
Party therefrom, shall (i) increase any Facility Commitment of any Lender over
the amount thereof then in effect without the consent of such Lender; provided,
no amendment, modification or waiver of any condition precedent, covenant,
Default or Event of Default shall constitute an increase in any Facility
Commitment of any Lender;
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(ii) amend, modify, terminate or waive any provision hereof relating to either
the Swing Line Sublimit or the Swing Line Loans without the consent of the
applicable Swing Line Lender; (iii) amend the definition of "Requisite Class
Lenders" without the consent of Requisite Class Lenders of each Class; provided,
with the consent of the applicable Requisite Class Lenders, additional
extensions of credit pursuant hereto may be included in the determination of
such "Requisite Class Lenders" on substantially the same basis as the Term Loan
Amounts, the Term Loans, the Commitments and the Facility Loans are included on
the Closing Date; (iv) alter the required application of any prepayments as
between Classes pursuant to Section 2.14 without the consent of Requisite Class
Lenders of each Class which is being allocated a lesser repayment or prepayment
as a result thereof; provided, with respect to the Tranche B Term Loans and the
Tranche C Term Loans, the Requisite Class of Tranche B Term Loan Lenders and the
Requisite Class of Tranche C Term Loan Lenders may waive, in whole or in part,
any prepayment with respect to such Term Loans so long as the application, as
between the applicable Classes, of any portion of such prepayment which is still
required to be made, is not altered; (v) amend, modify, terminate or waive any
obligation of Lenders relating to the purchase of participations in Letters of
Credit as provided in Section 2.3(a)(iv) or 2.3(b)(iv) without the written
consent of Global Agent and of the applicable Issuing Bank; or (vi) amend,
modify, terminate or waive any provision of Section 9 as the same applies to any
Agent, or any other provision hereof as the same applies to the rights or
obligations of any Agent, in each case without the consent of such Agent.
(d) Global Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on any Credit Party in any case shall entitle any Credit
Party to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender
at the time outstanding, each future Lender and, if signed by a Credit Party, on
such Credit Party.
10.6. Successors and Assigns; Participations. (a) This Agreement shall
be binding upon the parties hereto and their respective successors and assigns
and shall inure to the benefit of the parties hereto and the successors and
assigns of Lenders. No Credit Party's rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the
prior written consent of all Lenders.
(b) Company, each Agent and Lenders shall deem and treat the Persons
listed as Lenders in the applicable Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof, and
no assignment or transfer of any such Commitment or Loan shall be effective, in
each case unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by the applicable Facility Agent and
recorded in the applicable Register. Prior to such recordation, all amounts owed
with respect to the applicable Facility Commitment or Loan shall be owed to the
Lender listed in the Register as the owner thereof, and any request, authority
or consent of any Person who, at the time of making such request or giving
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such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(c) Each Lender shall have the right at any time to sell, assign or
transfer any Commitment, Loan, Letter of Credit (or participation in such Letter
of Credit) or any other Obligation: (i) upon the giving of notice to Company and
Global Agent, to any Person meeting the criteria of clause (i)(a) of the
definition of the term of "Eligible Assignee" (treating any two or more
investment funds that invest in commercial loans and that are managed or advised
by the same investment advisor or by an Affiliate of such investment advisor as
a single Eligible Assignee); or (ii) except in the case of any assignment of any
interest hereunder (except with respect to any interest in either Facility) by
or to GSCP or Bank of America, for which no consent shall be required, with the
consent of Company, Global Agent and, with respect to any assignment or transfer
of an interest in either Facility, the applicable Swing Line Lender and the
applicable Issuing Bank (no such consent to be unreasonably withheld or delayed
and none of which shall be required during the occurrence and continuance of an
Event of Default) to any Person meeting the criteria of clause (i)(b) or (ii) of
the definition of the term of "Eligible Assignee" in an aggregate amount of not
less than $5,000,000 (treating any two or more investment funds that invest in
commercial loans and that are managed or advised by the same investment advisor
or by an Affiliate of such investment advisor as a single Eligible Assignee), or
such lesser amount as shall be agreed to in writing by Company and such Lender
or as shall constitute the aggregate amount of the Commitments, Loans, Letters
of Credit and participations therein, and other Obligations of the assigning
Lender.
(d) The assigning Lender and the assignee thereof shall execute and
deliver to the applicable Facility Agent an Assignment Agreement, together with
(i) a processing and recordation fee of $3,500, (except for any assignment of
any or all interests under this Agreement not including any interest under the
Multicurrency Loan Facility, in which case such fee shall be $2,500) payable to
the applicable Facility Agent and (ii) such forms, certificates or other
evidence, if any, with respect to United States federal income tax withholding
matters as the assignee under such Assignment Agreement may be required to
deliver to the applicable Facility Agent pursuant to Section 2.23. Subject to
Section 10.6(b), upon its receipt of a duly executed and completed Assignment
Agreement, together with the processing and recordation fee referred to herein
and any forms, certificates or other evidence set forth therein, the applicable
Facility Agent shall (1) accept and consent to such Assignment Agreement by
executing a counterpart thereof as provided therein, (2) record the information
contained therein in the applicable Register, and (3) give prompt notice thereof
to Company. The applicable Facility Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it as provided in this Section
10.6(d).
(e) Each Lender, upon execution and delivery hereof or upon executing
and delivering an Assignment Agreement, as the case may be, represents and
warrants as of the Closing Date or as of the Effective Date (as defined in such
Assignment Agreement), as the case may be, that (i) it is an Eligible Assignee;
(ii) it has experience and expertise in the making of or investing in loans such
as the Loans; and (iii) it will make or invest in, as the case may be, its Loans
for its own account in the ordinary course of its business and without a view to
distribution of such Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that,
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subject to the provisions of this Section 10.6, the disposition of such Loans or
any interests therein shall at all times remain within its exclusive control).
(f) Subject to the terms and conditions of this Section 10.6, as of the
"Effective Date" specified in the applicable Assignment Agreement: (i) the
assignee thereunder shall have the rights and obligations of a "Lender"
hereunder to the extent such rights and obligations hereunder have been assigned
to it pursuant to such Assignment Agreement and shall thereafter be a party
hereto and a "Lender" for all purposes hereof; (ii) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have been
assigned thereby pursuant to such Assignment Agreement, relinquish its rights
(other than any rights which survive the termination hereof under Section 10.8)
and be released from its obligations hereunder (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations hereunder, such Lender shall cease to be a party
hereto; provided, anything contained in any of the Credit Documents to the
contrary notwithstanding, each Issuing Bank shall continue to have all rights
and obligations thereof with respect to such Letters of Credit issued thereby
until the cancellation or expiration of such Letters of Credit and the
reimbursement of any amounts drawn thereunder); (iii) the Facility Commitments
shall be modified to reflect the Facility Commitment of such assignee and any
remaining Facility Commitment of such assigning Lender; and (iv) if any such
assignment occurs after the issuance of any Note hereunder, the assigning Lender
shall, upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes to the applicable Facility Agent for
cancellation, and thereupon Company shall issue and deliver new Notes, if so
requested by the assignee and/or assigning Lender, to such assignee and/or to
such assigning Lender, with appropriate insertions, to reflect the new Facility
Commitments and/or outstanding Loans of the assignee and/or the assigning
Lender.
(g) Each Lender shall have the right at any time to sell one or more
participations to any Person in all or any part of its Commitments, Loans or
Letters of Credit or participations therein or any other interest herein or in
any other Obligation. The holder of any participation, other than an Affiliate
of Lender granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except action directly
affecting (i) the extension of the scheduled final maturity date of any Loan
allocated to such participation, (ii) an increase in the Facility Commitment of
such Lender, (iii) any waiver or extension in the payment of any fee or interest
payable to such Lender, (iv) a reduction of the principal amount of or the rate
of interest or fee payable on any Loan allocated to such participation, and (v)
the release or subordination of all or substantially all of the Guarantors from
the Guaranty of all or substantially all of the Collateral. All amounts payable
by any Credit Party hereunder, including amounts payable to such Lender pursuant
to Section 2.18, 2.22 or 2.23, shall be determined as if such Lender had not
sold such participation. Each Credit Party and each Lender hereby acknowledge
and agree that, solely for purposes of Sections 2.17 and 10.4, (1) any
participation will give rise to a direct obligation of each Credit Party to the
participant and (2) the participant shall be considered to be a "Lender".
(h) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 10.6, any Lender may assign and pledge
all or any portion of its Loans, the other Obligations owed to such Lender, and
its Notes to any Federal Reserve Bank as collateral
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security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any operating circular issued by such Federal Reserve Bank,
and with the consent of Company and Global Agent any Lender which is an
investment fund may pledge all or any portion of its Notes or Loans to its
trustee in support of its obligations to such trustee; provided, (i) no Lender
shall, as between Company and such Lender, be relieved of any of its obligations
hereunder as a result of any such assignment and/or pledge and (ii) in no event
shall such Federal Reserve Bank or trustee be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to take any action
hereunder.
(i) In the event that any Facility Lender fails to maintain a
rating of BBB or higher from S&P and a rating of Baa2 or higher from ▇▇▇▇▇'▇ (a
"Non-Rated Facility Lender"), and unless otherwise consented to by Global Agent,
each applicable Facility Agent, each applicable Swing Line Lender and each
applicable Issuing Bank (which consent may be subsequently withdrawn for any
reason or no reason by any such Person), such Facility Lender shall be replaced
as soon as practicable by, and assign all its Loans, applicable Facility
Commitments and other Obligations owing thereto pursuant to Section 10.6 to, an
Eligible Assignee selected by Company and willing to become a Facility Lender
for all purposes hereunder. Such Non-Rated Facility Lender agrees to execute and
deliver to Global Agent and to the applicable Facility Agent an Assignment
Agreement with such replacement Facility Lender upon payment at par by such
replacement Facility Lender of all principal, interest, fees and other amounts
owing under this Agreement to such Non-Rated Facility Lender. The Non-Rated
Facility Lender shall pay to the applicable Facility Agent the processing fee
required by Section 10.6(d) in connection with such assignment, and upon
satisfaction of the applicable conditions in Section 10.6, such replacement
lender shall become a Facility Lender hereunder.
10.7. Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
10.8. Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof and the making of any Credit Extension.
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18, 2.22, 2.23, 10.2,
10.3, 10.4, 10.18 and 10.19 and the agreements of Lenders set forth in Sections
2.17, 9.5 and 10.17 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination hereof.
10.9. No Waiver; Remedies Cumulative. No failure or delay on the part
of Global Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Credit Document shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other power, right or
privilege. The rights, powers and remedies given to each Agent and each Lender
hereby are cumulative and shall be in
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addition to and independent of all rights, powers and remedies existing by
virtue of any statute or rule of law or in any of the other Credit Documents.
Any forbearance or failure to exercise, and any delay in exercising, any right,
power or remedy hereunder shall not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude the further exercise of
any such right, power or remedy.
10.10. Marshalling; Payments Set Aide. Neither Global Agent nor any
Lender shall be under any obligation to marshal any assets in favor of any
Credit Party or any other Person or against or in payment of any or all of the
Obligations. To the extent that any Credit Party makes a payment or payments to
Global Agent or Lenders (or to Global Agent for the benefit of Lenders), or
Global Agent or Lenders enforce any security interests or exercise their rights
of setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, any other state or federal
law, common law or any equitable cause, then, to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied, and all
Liens, rights and remedies therefor or related thereto, shall be revived and
continued in full force and effect as if such payment or payments had not been
made or such enforcement or setoff had not occurred.
10.11. Severability. In case any provision in or obligation hereunder
or any Note shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.12. Obligations Several; Independent Nature of Lenders' Rights. The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations or Commit ments of any other Lender hereunder. Nothing
contained herein or in any other Credit Document, and no action taken by Lenders
pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out hereof and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.
10.13. Headings. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
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10.15. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b)
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (d) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (c) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (e)
AGREES SUCH LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS
OF ANY OTHER JURISDICTION.
10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES
TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT HEREOF OR ANY OF THE OTHER CREDIT DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR
THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH
WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH
PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR
ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN
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THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
10.17. Confidentiality. Each Lender shall hold all non-public
information obtained pursuant to the requirements hereof which has been
identified as confidential by Company in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with prudent lending or investing practices, it being understood and
agreed by Company that in any event a Lender may make disclosures to Affiliates
of such Lender or disclosures reasonably required by any bona fide assignee,
transferee or participant in connection with the contemplated assignment or
transfer by such Lender of any Loans or any participations `therein or by any
direct or indirect contractual counterparties (or the professional advisors
thereto) in swap agreements (provided, such swap counterparties and advisors are
advised of and agree to be bound by the provisions of this Section 10.17) or
disclosures required or requested by any governmental agency or representative
thereof or by NAIC or any applicable rating agency or pursuant to legal process;
provided, unless specifically prohibited by applicable law or court order, each
Lender shall notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information; and provided further, in no event shall any Lender be
obligated or required to return any materials furnished by Company or any of its
Subsidiaries.
10.18. Judgment Currency. Company, Agents and each Lender hereby agree
that if, in the event that a judgment is given in relation to any sum due to any
Agent or any Lender hereunder, such judgment is given in a currency (the
"Judgment Currency") other than that in which such sum was originally
denominated (the "Original Currency"), Company agrees to indemnify such Agent or
Lender, as the case may be, to the extent that the amount of the Original
Currency which could have been purchased thereby in accordance with normal
banking procedures on the Business Day following receipt of such sum is less
than the sum which could have been so purchased thereby had such purchase been
made on the day on which such judgment was given or, if such day is not a
Business Day, on the Business Day immediately preceding the giving of such
judgment, and if the amount so purchased exceeds the amount which could have
been so purchased thereby had such purchase been made on the day on which such
judgment was given or, if such day is not a Business Day, on the Business Day
immediately preceding such judgment, such Agent or Lender agrees to remit such
excess to Company. The agreements in this Section 10.18 shall survive payment of
any such judgment.
10.19. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged with respect to any of the
Obligations, including all charges or fees in connection therewith deemed in the
nature of interest under applicable law shall not exceed the Highest Lawful
Rate. If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the
outstanding amount of the Loans made hereunder shall bear interest at the
Highest Lawful Rate until the total amount of interest due hereunder equals the
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In
addition, if when the Loans
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made hereunder are repaid in full the total interest due hereunder (taking into
account the increase provided for above) is less than the total amount of
interest which would have been due hereunder if the stated rates of interest set
forth in this Agreement had at all times been in effect, then to the extent
permitted by law, Company shall pay to the applicable Facility Agent an amount
equal to the difference between the amount of interest paid and the amount of
interest which would have been paid if the Highest Lawful Rate had at all times
been in effect. Notwithstanding the foregoing, it is the intention of Lenders
and Company to conform strictly to any applicable usury laws. Accordingly, if
any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess
shall be cancelled automatically and, if previously paid, shall at such Lender's
option be applied to the outstanding amount of the Loans made hereunder or be
refunded to Company.
10.20. Counterparts; Effectiveness. This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Company and Global Agent of written or telephonic notification of such execution
and authorization of delivery thereof. On and after the Amendment and
Restatement Effective Date, (i) this Agreement shall amend and restate the
Existing Credit Agreement, (ii) all Loans outstanding under the Existing Credit
Agreement shall continue as and constitute Loans for all purposes under this
Agreement, (iii) all Letters of Credit (under and as defined in the Existing
Credit Agreement) shall continue as and constitute Letters of Credit for all
purposes under this Agreement, (iv) all other Obligations of the Company and
Guarantors under the Existing Credit Agreement that have not been paid as of the
Amendment and Restatement Effective Date shall become Obligations of such
parties under this Agreement, (v) all Exhibits and Schedules to the Existing
Credit Agreement shall be deemed to constitute Exhibits and Schedules to this
Agreement (with the understanding that any references to the Existing Credit
Agreement contained therein are deemed to refer to this Agreement), (vi) the
Liens granted pursuant to the Collateral Documents shall continue to secure the
Obligations and (vii) the other Credit Documents shall remain in full force and
effect..
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
STRYKER CORPORATION
By
-------------------------------------
Name:
Title:
STRYKER FAR EAST, INC.
By
-------------------------------------
Name:
Title:
PHYSIOTHERAPY ASSOCIATES INC.
By
-------------------------------------
Name:
Title:
HOWMEDICA OSTEONICS CORP.
By
-------------------------------------
Name:
Title:
STRYKER INTERNATIONAL INC.
By
-------------------------------------
Name:
Title:
▇-▇
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ INC.
By
-------------------------------------
Name:
Title:
STRYKER SALES CORPORATION
By
-------------------------------------
Name:
Title:
STRYKER TECHNOLOGIES CORPORATION
By
-------------------------------------
Name:
Title:
SMD CORPORATION
By
-------------------------------------
Name:
Title:
HOWMEDICA LEIBINGER INC.
By
-------------------------------------
Name:
Title:
S-2
147
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as a Joint
Lead Arranger, Syndication Agent and a Lender
By
--------------------------------------------
Authorized Signatory
S-3
148
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC, as
a Joint Lead Arranger
[NOT A SIGNATORY]
S-4
149
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Global Agent,
US Facility Agent and Multicurrency
Facility Agent
By
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Name:
Title:
S-5
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as a Lender,
US Swing Line Lender, US Issuing Bank,
a Multicurrency Swing
Line Lender and a Multicurrency
Issuing Bank
By
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Name:
Title:
S-6
151
ABN AMRO BANK N.V., as a Co-Documentation Agent
and a Lender
By
---------------------------------------------
Name:
Title:
By
---------------------------------------------
Name:
Title:
S-7
▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, as a Co-Documentation Agent
and a Lender
By
-------------------------------------------
Name:
Title:
S-8
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Co-Documentation
Agent and a Lender
By
--------------------------------------------
Name:
Title:
S-9