Exhibit 99.1
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U.S. $550,000,000
AMENDED AND RESTATED
SENIOR SECURED CREDIT AGREEMENT
Dated as of August 23, 2002
among
▇▇▇▇▇ BROS. CORPORATION,
as U.S. Borrower,
GREIF SPAIN HOLDINGS, S.L. sociedad unipersonal,
GREIF BROS. CANADA INC.,
VAN LEER (UK) LTD.,
KONINKLIJKE EMBALLAGE INDUSTRIE VAN LEER B.V.
(dba ROYAL PACKAGING INDUSTRIES VAN LEER B.V.), AND
VAN LEER AUSTRALIA PTY. LTD.,
as Foreign Borrowers,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Sole Book Runner and a Joint Arranger
DEUTSCHE BANK SECURITIES INC.
as a Joint Arranger,
DEUTSCHE BANK TRUST COMPANY AMERICAS
KEYBANK NATIONAL ASSOCIATION
as Co-Syndication Agents
SUN TRUST BANK
as Documentation Agent
CITICORP NORTH AMERICA, INC.
as Administrative Agent,
and
THE OTHER FINANCIAL INSTITUTIONS
PARTY HERETO FROM TIME TO TIME
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TABLE OF CONTENTS
(continued)
Page
Article I DEFINITIONS, ETC. ................................................... 2
1.1. Certain Defined Terms .................................................... 2
1.2. Other Interpretive Provisions ............................................ 41
1.3. Accounting Principles .................................................... 42
1.4. Currency Equivalents Generally ........................................... 42
Article II THE CREDITS ......................................................... 43
2.1. Amounts and Terms of Commitments and Loans ............................... 43
2.2. Evidence of Debt; Notes .................................................. 44
2.3. Procedure for Borrowings ................................................. 44
2.4. Conversion and Continuation Elections for Borrowings ..................... 45
2.5. Utilization of Commitments in Offshore Currencies; Special
Provisions for Offshore Currency Revolving Loans ......................... 47
2.6. Bankers' Acceptances ..................................................... 50
2.7. Refundings/Participations for Qualified Offshore Loans ................... 54
(c) Obligations Unconditional ....................................... 55
2.8. Reduction or Termination of Commitments. ................................. 55
2.9. Prepayments and Mandatory Commitment Reductions. ......................... 56
2.10. Currency Exchange Fluctuations ........................................... 59
2.11. Repayment ................................................................ 59
2.12. Interest ................................................................. 61
2.13. Fees ..................................................................... 62
2.14. Computation of Fees, Interest and Dollar Equivalent Amount ............... 63
2.15. Payments by Each Applicable Borrower ..................................... 63
2.16. Payments by the Lenders to the Administrative Agent ...................... 64
2.17. Adjustments .............................................................. 64
2.18. Swing Line ............................................................... 65
2.19. Swing Line Borrowing Procedures .......................................... 66
2.20. Refunding of Swing Line Loans ............................................ 67
2.21. Participations in Swing Line Loans ....................................... 68
2.22. Swing Line Participation Obligations Unconditional ....................... 68
2.23. Conditions to Swing Line Loans ........................................... 68
2.24. Substitution of Lenders in Certain Circumstances ......................... 68
Article III THE LETTERS OF CREDIT ............................................... 72
3.1. The Letter of Credit Subfacility ......................................... 72
3.2. Issuance, Amendment and Renewal of Letters of Credit ..................... 74
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TABLE OF CONTENTS
(continued)
Page
3.3. Risk Participations, Drawings and Reimbursements ......................... 77
3.4. Repayment of Participations .............................................. 78
3.5. Role of each L/C Lender .................................................. 78
3.6. Obligations Absolute ..................................................... 79
3.7. Cash Collateral Pledge ................................................... 79
3.8. Letter of Credit Fees .................................................... 80
3.9. Uniform Customs and Practice ............................................. 80
3.10. Letters of Credit for the Account of Subsidiaries ........................ 80
Article IV NET PAYMENTS, YIELD PROTECTION AND ILLEGALITY ....................... 81
4.1. Net Payments ............................................................. 81
4.2. Illegality ............................................................... 83
4.3. Increased Costs and Reduction of Return .................................. 83
4.4. Funding Losses ........................................................... 84
4.5. Inability To Determine Rates ............................................. 85
4.6. Reserves on Eurocurrency Rate Loans ...................................... 85
4.7. Certificates of Lenders .................................................. 85
4.8. Substitution of Lenders .................................................. 86
4.9. Right of Lenders To Fund Through Branches and Affiliates ................. 86
Article V CONDITIONS PRECEDENT ................................................ 87
5.1. Conditions to Initial Credit Extension ................................... 87
5.2. Conditions to All Credit Extensions ...................................... 91
5.3. Conditions to Initial Credit Extension to Greif Australia ................ 92
Article VI REPRESENTATIONS AND WARRANTIES ...................................... 93
6.1. Corporate Status ......................................................... 93
6.2. Authority ................................................................ 93
6.3. No Conflicts; Consents. .................................................. 94
6.4. Binding Effect ........................................................... 94
6.5. Litigation ............................................................... 94
6.6. No Default; Material Contractual Obligations ............................. 94
6.7. ERISA .................................................................... 95
6.8. Use of Proceeds; Margin Regulations ...................................... 95
6.9. Financial Condition; Financial Statements; Solvency; etc. ................ 95
6.10. Subsidiaries; Properties ................................................. 96
6.11. Taxes .................................................................... 96
6.12. Environmental Matters .................................................... 97
ii
TABLE OF CONTENTS
(continued)
Page
6.13. Regulated Entities ........................................................ 98
6.14. Employee and Labor Matters ................................................ 99
6.15. Intellectual Property ..................................................... 99
6.16. Existing Indebtedness ..................................................... 99
6.17. True and Complete Disclosure .............................................. 99
6.18. Security Interests; Certain Matters Relating to Collateral ................ 100
6.19. Representations and Warranties in Credit Documents and Transaction
Documents ................................................................. 100
6.20. Senior Subordinated Debt Documents ........................................ 100
6.21. Broker's Fees ............................................................. 100
Article VII AFFIRMATIVE COVENANTS ................................................. 101
7.1. Financial Statements, etc. ................................................ 101
7.2. Certificates; Other Information ........................................... 102
7.3. Notices ................................................................... 102
7.4. Preservation of Corporate Existence, etc. ................................. 103
7.5. Maintenance of Property; Insurance ....................................... 104
7.6. Payment of Obligations .................................................... 104
7.7. Taxes ..................................................................... 104
7.8. Compliance with Environmental Laws ........................................ 105
7.9. Compliance with ERISA ..................................................... 105
7.10. Inspection of Property and Books and Records .............................. 105
7.11. End of Fiscal Years; Fiscal Quarters ...................................... 105
7.12. Use of Proceeds ........................................................... 106
7.13. Further Assurances; New Subsidiaries ...................................... 106
7.14. Pledge of Additional Collateral ........................................... 107
7.15. Security Interests ........................................................ 107
7.16. Currency and Commodity Hedging Transactions ............................... 107
7.17. Pledge of Foreign Stock and Guarantees by Foreign Subsidiaries ............ 108
7.18. Register .................................................................. 108
7.19. Maintenance of Credit Rating .............................................. 109
7.20. Limitations on Activities of U.S. Holdco and Foreign Holdco ............... 109
7.21. Certain Collateral Limitations ............................................ 109
7.22. Post Closing Matters. ..................................................... 110
Article VIII NEGATIVE COVENANTS .................................................... 110
8.1. Limitation on Liens; No Further Negative Pledge ........................... 110
iii
TABLE OF CONTENTS
(continued)
Page
8.2. Consolidations, Mergers and Disposition of Assets ......................... 113
8.3. Operating Leases .......................................................... 115
8.4. Loans and Investments ..................................................... 115
8.5. Limitation on Indebtedness ................................................ 117
8.6. Transactions with Affiliates .............................................. 119
8.7. Use of Proceeds ........................................................... 119
8.8. Contingent Obligations .................................................... 119
8.9. Restrictions on Subsidiaries .............................................. 120
8.10. Fixed Charge Coverage Ratio; Interest Coverage Ratio ...................... 121
8.11. Minimum Net Worth ......................................................... 121
8.12. Total Leverage Ratio ...................................................... 121
8.13. Restricted Payments ....................................................... 121
8.14. ERISA ..................................................................... 122
8.15. Change in Business ........................................................ 122
8.16. Accounting Changes ........................................................ 122
8.17. Amendments to Transaction Documents ....................................... 122
8.18. Capital Expenditures ...................................................... 122
8.19. Sale and Lease-Backs ...................................................... 123
8.20. Sale or Discount of Receivables ........................................... 123
8.21. Creation of Subsidiaries .................................................. 123
8.22. Limitation on Other Restrictions on Amendment of Documents ................ 123
8.23. Limitation on Payments or Prepayments of Indebtedness or Modification of
Debt Documents ............................................................ 123
8.24. Consolidated Returns ...................................................... 124
Article IX EVENTS OF DEFAULT ..................................................... 124
9.1. Event of Default .......................................................... 124
9.2. Remedies .................................................................. 127
9.3. Rights Not Exclusive ...................................................... 127
9.4. No Waiver; Remedies ....................................................... 127
9.6. Order of Payment following an Event of Default. ........................... 128
Article X THE AGENTS ............................................................ 129
10.1. Appointment and Authorization ............................................. 129
10.2. Delegation of Duties ...................................................... 131
10.3. Exculpatory Provisions .................................................... 131
10.4. Reliance by Agents ........................................................ 131
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TABLE OF CONTENTS
(continued)
Page
10.5. Notice of Default .......................................... 131
10.6. Credit Decision ............................................ 132
10.7. Indemnification ............................................ 132
10.8. Agents in Individual Capacity .............................. 133
10.9. Successor Agents ........................................... 133
10.10. Concerning the Collateral and the Security Documents;
Collateral Matters Relating to Related Obligations ......... 133
10.11. Failure To Act ............................................. 134
10.12. Special Provisions in relation to Dutch Collateral ......... 134
Article XI MISCELLANEOUS .......................................... 136
11.1. Amendments and Waivers ..................................... 136
11.2. Notices .................................................... 140
11.3. No Waiver; Cumulative Remedies ............................. 140
11.4. Expenses; Indemnity; etc. .................................. 141
11.5. [Intentionally Omitted] .................................... 143
11.6. Payments Set Aside ......................................... 143
11.7. Successors and Assigns ..................................... 143
11.8. Assignments and Participations, etc ........................ 143
11.9. Confidentiality ............................................ 145
11.10. Set-off .................................................... 146
11.11. Notification of Addresses, Lending Offices, etc. ........... 146
11.12. Counterparts ............................................... 146
11.13. Severability; Modification To Conform to Law ............... 146
11.14. No Third Parties Benefited ................................. 147
11.15. Governing Law; Submission to Jurisdiction; Venue ........... 147
11.16. WAIVER OF JURY TRIAL ....................................... 148
11.17. Judgment ................................................... 148
11.18. Survival ................................................... 148
11.19. Documents Evidence the Same Indebtedness ................... 148
11.20. Releases ................................................... 148
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TABLE OF CONTENTS
(continued)
Page
ANNEXES
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Annex A Agent's Payment Offices for Offshore Currency Revolving Loans
SCHEDULES
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Schedule 1.1 (a)(i) Mortgaged Property at the Effective Date; Mortgaged
Property (Leased) After the Effective Date
Schedule 1.1(b) Existing Letters of Credit
Schedule 1.1(c) Foreign Holdco Intercompany Notes
Schedule 1.1(d) Pledged Securities
Schedule 1.1(e) Refinanced Indebtedness
Schedule 1.1(f) Timber Assets
Schedule 1.1(g) Senior Subordinated Debt Documents
Schedule 1.1(h) Mandatory Costs
Schedule 1.1(i) Timber Lands
Schedule 2.1 Commitments
Schedule 2.18 Swing Line Commitments
Schedule 5.2(a)(ix) Local Counsel Delivering Opinions at the Effective Date
Schedule 6.10 Subsidiaries and Minority Interests
Schedule 6.12 Environmental Matters
Schedule 8.1(a) Certain Existing Liens as of the Effective Date
Schedule 8.2(a)(xii) Certain Scheduled Asset Sales
Schedule 8.4(m) Existing Investments and Investments To Be Made Under
Binding Agreements
Schedule 8.6 Affiliate Transactions
Schedule 8.8 Contingent Obligations
Schedule 8.19 Sale and Lease-Backs
Schedule 11.2 Addresses for Notices
Schedule 11.20 Liens to be Released
vi
EXHIBITS
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Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Amended and Restated Domestic Subsidiary
Guarantee and Security Agreement
Exhibit E Form of Amended and Restated U.S. Borrower Guarantee
and Security Agreement
Exhibit G Form of Assignment and Acceptance
Exhibit H-1 Form of Term Note
Exhibit H-2 Form of Revolving Note
Exhibit H-3 Form of Swing Line Note
Exhibit I-1 Form of Mortgage
Exhibit I-2 Form of Mortgage Modification
Exhibit J Form of Interest Rate Certificate
Exhibit K Form of Non-Bank Certificate
Exhibit L Form of Perfection Certificate
Exhibit M Form of Soterra Guarantee Amendment
Exhibit N Form of Foreign Guarantee
vii
AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
This AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT is
entered into as of August 23, 2002, among ▇▇▇▇▇ BROS. CORPORATION, a Delaware
corporation (together with its successors, "U.S. Borrower"); GREIF SPAIN
HOLDINGS, S.L., sociedad unipersonal, private limited liability company
(sociedad limitada), under the laws of Spain ("Foreign Holdco"); GREIF BROS.
CANADA INC., a corporation continued and existing under the laws of Canada
("Greif Canada"), VAN LEER (UK) LTD., a company organized under the laws of
England and Wales ("Greif UK"); KONINKLIJKE EMBALLAGE INDUSTRIE VAN LEER B.V.
dba ROYAL PACKAGING INDUSTRIES VAN LEER B.V., a private limited liability
company (besloten vennootschap) organized under the laws of The Netherlands with
statutory seat in Amstelveen, The Netherlands ("RPIVL"); and VAN LEER AUSTRALIA
PTY LIMITED (ACN ▇▇▇ ▇▇▇ ▇▇▇), a corporation organized under the laws of the
Australian Capital Territory ("Greif Australia", and together with Foreign
Holdco, Greif Canada, Greif UK and RPIVL, collectively, the "Foreign Borrowers"
and each a "Foreign Borrower"); the several financial institutions listed on the
signature pages hereto as "Lenders" or from time to time made party to this
Agreement pursuant to Section 11.8 (collectively, the "Lenders"; individually,
each a "Lender"); ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC. ("SSB"), as Joint Lead Arranger, and
as sole Book-Runner, CITICORP NORTH AMERICA, INC. ("CNAI"), as Administrative
Agent (together with its successors in such capacity, the "Administrative
Agent"); DEUTSCHE BANK TRUST COMPANY AMERICAS and KEYBANK NATIONAL ASSOCIATION,
as Co-Syndication Agents (together with its respective successors in such
capacity, each a "Syndication Agent"), SUN TRUST BANK, as Documentation Agent
(together with its successors in such capacity, the "Documentation Agent"), and
DEUTSCHE BANK SECURITIES INC. as a Joint Lead Arranger (together with SSB and
their respective successors in such capacity, the "Joint Lead Arrangers").
WITNESSETH:
WHEREAS, the U.S. Borrower, Foreign Holdco and the lenders party
thereto are parties to a Senior Secured Credit Agreement dated as of March 2,
2001 (as amended, the "Existing Credit Agreement") among the U.S. Borrower,
Foreign Holdco, the lenders party thereto and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("Merrill"), as sole Lead Arranger,
sole Book-Runner and as Administrative Agent, Keybank National Association, as
Syndication Agent, ABN Amro Bank, N.V., as Co-Documentation Agent, National City
Bank, as Co-Documentation Agent, and The Bank of Nova Scotia ("BNS"), as Paying
Agent;
WHEREAS, (a) the U.S. Borrower, Foreign Holdco, Merrill and the
lenders party to the Existing Credit Agreement (the "Current Lenders") have
concurrently herewith entered into the Master Assignment and Acceptance dated as
of the date hereof (the "Master Assignment Agreement") pursuant to which,
effective as of the Effective Date, the Current Lenders have assigned all their
right, title and interest in, to and under the Existing Credit Agreement and
such other documents and delegated all their respective obligations thereunder
to CNAI and CNAI has accepted such assignment and assumed such obligations and
(b) Merrill, BNS, the Administrative Agent, and the Borrowers, have concurrently
herewith entered into the Assignment and Release Agreement dated the date hereof
(the "Assignment and Release Agreement") pursuant to which, effective as of the
Effective Date, Merrill has resigned as Administrative Agent and Lead Arranger
(as each such term is defined in the Existing Credit Agreement) and BNS has
resigned as Paying Agent (as defined in the Existing Credit Agreement) and each
of Merrill and BNS has assigned all its respective right, title and interest in,
to and under the Existing Credit Agreement and the "Credit Documents" (as
defined in the Existing Credit Agreement) and delegated all its obligations
thereunder with respect thereto to the Administrative Agent and the
Administrative Agent has accepted such assignment and delegation;
WHEREAS, the Borrowers, the Lenders and the Administrative Agent
have agreed to amend and restate the Existing Credit Agreement to provide for
certain amendments on the terms set forth in this Agreement, which Agreement
shall become effective upon satisfaction of certain conditions precedent set
forth herein;
WHEREAS, it is the intent of the parties hereto that this
Agreement not constitute a novation or waiver of the obligation and liabilities
existing under the Existing Credit Agreement, including any obligation or action
required to be performed prior to the Effective Date, or evidence payment of all
or any of such obligations and liabilities, but that this Agreement amend and
restate in its entirety the Existing Credit Agreement, and that from and after
the Effective Date the Existing Credit Agreement be of no further force or
effect except as to evidence the incurrence of the obligations of the Borrowers
thereunder and the representations and warranties made thereunder;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS, ETC.
1.1. Certain Defined Terms. The following terms have the
following meanings:
ABR Loan means a Loan in U.S. Dollars that bears interest based
on the Alternate Base Rate.
Acceptance means Bankers' Acceptances and BA Equivalent Loans.
Acceptance Fee means the fee payable at the time of the
acceptance of Bankers' Acceptances established by multiplying the face amount of
such Bankers' Acceptances by the Applicable Margin and by multiplying the
product so obtained by a fraction having a numerator equal to the number of days
in the term of such Bankers' Acceptances and a denominator of 365 or 366, as the
case may be.
Account means any right of payment from or on behalf of any
obligor, whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the U.S. Borrower or any
of its Subsidiaries of goods or services, and monies due thereunder, security or
ownership interests in the goods and services financed thereby, records relating
thereto, and the right to payment of any interest of finance charges and other
obligations with respect thereto, proceeds from claims on insurance policies
related thereto, any other proceeds related thereto, and other related rights.
Acquisition means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition of in excess of 50% of the
capital stock, partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger
or consolidation or any other combination with another Person.
Adjusted Working Capital means the remainder of: (a) (i) the
consolidated current assets of the Companies, less (ii) the amount of Cash and
Cash Equivalents included in such consolidated current assets; less (b) (i)
consolidated Current Liabilities of the Companies, less (ii) the amount of
short-term Indebtedness (including Revolving Loans, Swing Line Loans and BA Rate
Loans and current maturities of long-term Indebtedness) of the Companies
included in such consolidated Current Liabilities.
2
Administrative Agent has the meaning specified in the preamble to
this Agreement; provided, however that (a) in respect of the provisions of
Article II (The Credits), Article (III) (The Letters of Credit), Article X (The
Agents) and Article XI (Miscellaneous) (other than Section 11.1(Amendments,
Waivers, Etc.), "Administrative Agent" shall mean Citibank N.A., Hong Kong so
far as such provisions relate to any Loan or Letter of Credit made or issued in
Australian Dollars and (b) in respect of Section 10.1 (Appointment and
Authorization) and other provisions herein or in any Loan Document that relate
to the Collateral, "Administrative Agent" shall mean Citicorp North America Inc.
and/or any Affiliate thereof approved by Citicorp North America Inc.
Affected Lender -- see Section 4.8.
Affiliate means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other Person,
including through the ownership of voting securities or membership interests or
by contract. For purposes of Section 8.6, Affiliate shall also mean any
Beneficial Owner of shares representing 10% or more of the voting power with
respect to the outstanding voting Equity Interests (on a fully diluted basis and
after giving effect to or any warrants, rights or options to acquire such Equity
Interests whether or not currently exercisable) and any Person who would be
Affiliate of any such Beneficial Owner pursuant to the first sentence hereof.
Affiliate Transaction -- see Section 8.6.
Agent's Payment Office means (i) in respect of payments by the
Borrowers in U.S. Dollars, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such
other address as the Administrative Agent may from time to time specify in
accordance with Section 11.2 and (ii) in the case of payments by the Borrowers
in any Offshore Currency, as set forth in Annex A or such other address as the
Administrative Agent may from time to time specify in accordance with Section
11.2.
Agents means the Arrangers, the Administrative Agent, the
Syndication Agents and the Documentation Agent; and Agent means any of them.
Aggregate Available Revolving Credit means at any time (without
duplication), the Dollar Equivalent of the sum of the aggregate Revolving
Commitments of all Lenders less the Swing Line Reserve, if any, less the
Aggregate Outstanding Revolving Credit.
Aggregate Foreign Borrower Credit means at any time (without
duplication), the Dollar Equivalent of the sum of (a) the aggregate principal
amount of all Revolving Loans outstanding made to any Foreign Borrower, (b) the
Effective Amount of all outstanding L/C Obligations in respect of Letters of
Credit issued for the account of any Foreign Borrower, (c) the aggregate
principal amount of all Swing Line Loans outstanding made to any Foreign
Borrower and (d) the face amount of Bankers' Acceptances and the principal
amount of BA Equivalent Loans outstanding at such time.
Aggregate Offshore Currency Outstanding means at any time
(without duplication), the Dollar Equivalent of the sum of (a) the aggregate
principal amount of all Offshore Currency Revolving Loans outstanding at such
time, (b) the Effective Amount of all outstanding L/C Obligations that are at
such time denominated in an Offshore Currency, (c) the aggregate principal
amount of all Swing Line Loans denominated in an Offshore Currency outstanding
at such time and (d) the face amount of Bankers' Acceptances and the principal
amount of BA Equivalent Loans outstanding at such time.
3
Aggregate Outstanding Revolving Credit means at any time (without
duplication), the Dollar Equivalent of the sum of (a) the aggregate principal
amount of all Revolving Loans outstanding at such time, (b) the Effective Amount
of all outstanding L/C Obligations at such time, (c) the Swing Line Outstanding
at such time and (d) the face amount of Bankers' Acceptances and the principal
amount of BA Equivalent Loans outstanding at such time.
Agreed Alternative Currency -- see subsection 2.5(f).
Agreement means this Amended and Restated Senior Secured Credit
Agreement.
Agreement Currency -- see Section 11.17.
Alternate Base Rate means, for any period, a fluctuating interest
rate per annum as shall be in effect from time to time, which rate per annum
shall be equal at all times to the highest of the following:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 0.25% or, if there is no
nearest 0.25% to the next higher 0.25% of (i) 0.5% per annum, (ii) the rate per
annum obtained by dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for three-month certificates
of deposit of major United States money market banks, such three-week moving
average being determined weekly on each Monday (or, if any such day is not a
Business Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve Bank of
New York or, if such publication shall be suspended or terminated, on the basis
of quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by Citibank, by
(B) a percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Federal Reserve Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for Citibank in respect of
liabilities consisting of or including (among other liabilities) three-month
U.S. dollar nonpersonal time deposits in the United States and (iii) the average
during such three-week period of the maximum annual assessment rates estimated
by Citibank for determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. Dollar deposits in the United States; and
(c) 0.5% per annum plus the U.S. Federal Funds Rate;
Amortization Payments means, as to any Term Loan Facility, the
scheduled repayments of the Term Loans of such Term Loan Facility as set forth
in subsections 2.11(a), and Amortization Payment means any such scheduled
repayment.
Applicable Borrower means, with respect to any Term Loan, U.S.
Borrower, and, with respect to any other Loan, U.S. Borrower or any Foreign
Borrower, as applicable, that is the Borrower to whom such Loan was, or is to
be, made.
Applicable Commitment Fee Percentage means (i) on and after the
Effective Date and prior to the Trigger Date, 0.500%, and (ii) thereafter, the
percentage per annum set forth in the grid below opposite the Total Leverage
Ratio at the end of the most recent Fiscal Quarter:
4
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Applicable
Total Leverage Ratio Commitment Fee Percentage
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Greater than or equal to 3.5 to 1 0.50%
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Less than 3.5 to 1 and equal to or greater than 3.0 to 1 0.50%
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Less than 3.0 to 1 and equal to or greater than 2.5 to 1 0.4375%
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Less than 2.5 to 1 and equal to or greater than 2.0 to 1 0.375%
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Less than 2.0 to 1 0.25%
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Any change in the Total Leverage Ratio shall result in the adjustment of the
Applicable Commitment Fee Percentage as of the date of receipt by the
Administrative Agent of the Interest Rate Certificate most recently delivered
pursuant to subsection 7.2(b) to the level applicable to such new Total Leverage
Ratio (and if not delivered when due, the Total Leverage Ratio shall be presumed
to be greater than 3.5 to 1.0 until delivered).
Applicable Currency means, as to any particular payment or Loan,
U.S. Dollars or the Offshore Currency in which such payment or Loan is
denominated or is payable.
Applicable Margin means as follows:
(a) with respect to Term Loans maintained as (i) ABR Loans, a
rate equal to 1.25% per annum, and (ii) Eurocurrency Rate Loans, a rate equal to
2.25% per annum; and
(b) with respect to Revolving Loans and Swing Line Loans (i)
during the period commencing on the Effective Date and ending 1 Business Day
after the receipt by the Administrative Agent of the Financial Statements
required to be delivered pursuant to Section 7.1(a) or (b), as applicable, for
the first Fiscal Quarter ending after the Effective Date, with respect to the
Revolving Loans maintained as ABR Loans, or made in Canadian Dollars or
Australian Dollars at the Overnight Rate or Swing Line Loans made in US Dollars,
Canadian Dollars or Australian Dollars, a rate equal to 1.25% per annum and with
respect to the Revolving Loans maintained as Eurocurrency Rate Loans, BA Rate
Loans or Swing Line Loans denominated in Euros or GBP, a rate equal to 2.25% per
annum and (ii) thereafter, as of any date of determination, a per annum rate
equal to the rate set forth below opposite the applicable type of Loan and the
then applicable Total Leverage Ratio (determined on the last day of the most
recent Fiscal Quarter for which Financial Statements have been delivered
pursuant to Section 7.1(a) or (b)) set forth below:
---------------------------------------------------------------------------------------------------
Total Leverage Ratio ABR Loans / Revolving Loans Eurocurrency Rate Loans /
At the Overnight Rate in C$ BA Rate Loans / Revolving
or $A / Swing Line Loans in Loans At the Overnight
US$, C$ OR A$ Rate in Euros or GBP / Swing
Line Loans in Euros or GBP
---------------------------------------------------------------------------------------------------
Greater than or equal to 3.5 to 1 1.50% 2.50%
---------------------------------------------------------------------------------------------------
Less than 3.5 to 1 and equal to or 1.25% 2.25%
greater than 3.0 to
---------------------------------------------------------------------------------------------------
5
-------------------------------------------------------------------------------------------------
Total Leverage Ratio ABR Loans / Revolving Loans Eurocurrency Rate Loans /
At the Overnight Rate in C$ BA Rate Loans / Revolving
or $A / Swing Line Loans in Loans At the Overnight
US$, C$ OR A$ Rate in Euros or GBP / Swing
Line Loans in Euros or GBP
-------------------------------------------------------------------------------------------------
Less than 3.0 to 1 and equal to or 1.00% 2.00%
greater than 2.5 to 1
------------------------------------------------------------------------------------------------
Less than 2.5 to 1 and equal to or 0.75% 1.75%
greater than 2.0 to 1
------------------------------------------------------------------------------------------------
Less than 2.0 to 1 0.50% 1.50%
------------------------------------------------------------------------------------------------
Changes in the Applicable Margin resulting from a change in the Total Leverage
Ratio on the last day of any subsequent Fiscal Quarter shall become effective as
to all Loans 1 Business Day after delivery by the Borrower to the Administrative
Agent of new Financial Statements pursuant to Section 7.1(a) or (b), as
applicable. Notwithstanding anything to the contrary set forth in this Agreement
(including the then effective Leverage Ratio), if the U.S. Borrower shall fail
to deliver such Financial Statements within any of the time periods specified in
Section 7.1(a) or (b), the Applicable Margin from and including the 46/th/ day
after the end of such Fiscal Quarter or the 91st day after the end of such
Fiscal Year, as the case may be, to but not including the date the U.S. Borrower
delivers to the Administrative Agent such Financial Statements shall equal the
highest possible Applicable Margin provided for by this definition.
Approved Fund means, as to any Lender, any entity described in
the last sentence of "Eligible Assignee."
Arrangers means a collective reference to the Joint Lead
Arrangers.
Asset Sale means with respect to any Person, any sale, issuance,
conveyance, transfer, lease or other disposition (including by sale-leaseback,
merger, consolidation or otherwise) of all or any portion of its business,
assets, rights, revenues or property in one or a series of related transactions,
other than sales of inventory and Timber in the ordinary course of business.
Assignee -- see subsection 11.8(a).
Assignment and Acceptance -- see subsection 11.8(b).
Assignment and Release Agreement -- see the second recital of
this Agreement.
Associate has the meaning given in section 128F(9) of the
Australian Tax Act.
Attorney Costs means and includes all reasonable fees,
disbursements and other charges of any law firm or other external counsel.
Australian ▇▇▇▇ Rate means, for any period, a fluctuating rate
per annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the following:
(a) the bid rate (expressed as a percentage yield per annum to
maturity being the arithmetic average, rounded up to the nearest four decimal
places) published at or about 10:10 a.m. (Local Time) on the first Business Day
of such period on the Screen under the heading "BBSY" for Bills having a tenor
approximating as closely as possible that period;
6
(b) if the rate described under clause (a) above is not
published at the relevant time or the Administrative Agent cannot otherwise
determine the rate set forth under clause (a) above, the rate (expressed as a
percentage yield per annum to maturity) reasonably determined by Citibank
Australia to be the average of the buying rates quoted to Citibank Australia by
three Reference Banks at or about such time on the date of determination for
Bills with a tenor approximating as closely as possible that period; or
(c) if the Australian Agent is unable to determine a rate under
clause (b) above, the rate (expressed as a percentage yield to maturity) offered
or intended to be offered by Citibank Australia, at or about 10:10 a.m. (Local
Time) on the first Business Day of such period, for the purchase of Bills
(accepted by a Reference Bank) with a tenor most closely approximating that
period.
Australian Dollar and the symbol A$ each mean the lawful money of
the Commonwealth of Australia.
Australian Dollar Loans means each Revolving Loan made hereunder
that is denominated in Australian Dollars; Australian Dollar Loans shall be
Special Currency Loans.
Australian Debenture means a debenture (i) having a principal
amount the Dollar Equivalent of which is $1.00 on the date issued and (ii)
issued for a subscription price of 100% of its principal amount under this
Agreement.
Australian Lender means each Lender identified on Schedule 2.1 on
the date hereof as a "Australian Lender" and any other Lender that agrees, with
the approval of the Administrative Agent and the U.S. Borrower, which approval
shall not be unreasonably withheld, to act as an Australian Lender, and which
can make Loans to Greif Australia, the interest payments with respect to which
can be made free of withholding taxes.
Australian Register means the register of the Revolving Lenders
to be established and maintained under this Agreement.
Australian Registrar means the person appointed under Section
2.25 of this Agreement.
Australian Tax Act means the Income Tax Assessment ▇▇▇ ▇▇▇▇
(Cwlth) and the Income Tax Assessment ▇▇▇ ▇▇▇▇ (Cwlth), as relevant.
Available Offshore Currency Credit means the lesser of (a) the
positive difference (if any) between the Offshore Currency Sublimit and the
Aggregate Offshore Currency Outstanding and (b) the Aggregate Available
Revolving Credit.
Available Swing Line Credit means, as of any time of
determination, the aggregate Dollar Equivalent Amount of the Swing Line
Commitment of all Swing Line Lenders minus the Swing Line Outstanding and with
respect to any currency the aggregate Swing Line Commitments for such currency
less the aggregate Swing Line Outstanding in such currency.
BA Equivalent Loan has the meaning specified in Section 2.6(c).
BA Interest Period means, relative to any Bankers' Acceptance or
BA Equivalent Loan, the period beginning on (and including) the date on which
such Bankers' Acceptance is accepted or continued or such BA Equivalent Loan is
made or continued to (but excluding) the date which is 30, 60 or 90 days
thereafter, as selected by Greif Canada.
7
BA Rate means the rate per annum determined as being the
arithmetic average (rounded upwards, if necessary, to the nearest .01%) of the
rates quoted for bankers' acceptances having a term equivalent to the relevant
Banker's Acceptance presented by Greif Canada as appear on the Reuters Screen
CDOR (Certificate of Deposit Offered Rate) page, as determined as at 10:00 a.m.
(Toronto time) on the relevant Business Day (for non-Business Days, and if no
CDOR rate is available for a given Business Day, the CDOR rate for the
immediately previous Business Day for which a CDOR rate is available shall be
used).
BA Rate Loan means any Bankers' Acceptance or BA Equivalent Loan
bearing interest at the BA Rate. BA Rate Loans shall be Special Currency Loans.
Balance Sheet -- see Section 6.9.
Bankers' Acceptance means a non-interest bearing ▇▇▇▇ of exchange
in a form reasonably satisfactory to the Administrative Agent, denominated in
Canadian Dollars, drawn and endorsed by Greif Canada and presented to each
Canadian Lender for acceptance pursuant to this Agreement and includes a
depository ▇▇▇▇ under the Depository Bills and Notes Act (Canada) and a ▇▇▇▇ of
exchange under the Bills of Exchange Act (Canada).
Bankers' Acceptance Obligations means the Dollar Equivalent of
the aggregate face or principal amount of all BA Equivalent Loans, unmatured
Bankers' Acceptances and all other obligations owing in respect of Bankers'
Acceptances.
Beneficial Owner shall have the meaning assigned thereto in Rule
13d-3 of the SEC under the Exchange Act as in effect on the date hereof.
Benefited Lender -- see Section 2.17.
▇▇▇▇ means a "▇▇▇▇ of exchange" (other than a check (cheque))
under and as defined in the Australian Bills of Exchange Act 1909 (Cwlth). Each
reference herein to "drawing", "accepting", "indorsing", or any other dealing
with, a "▇▇▇▇" shall have the meaning ascribed thereto by such Bills of Exchange
Act.
BNS -- see the second recital of this Agreement.
Borrowers -- means U.S. Borrower and each of the Foreign
Borrowers.
Borrowing means a borrowing hereunder consisting of Loans of the
same Facility and Type and in the same Applicable Currency made to a Borrower on
the same day by one or more Lenders under Article II and other than in the case
of ABR Loans, BA Rate Loans or Swing Line Loans, having the same Interest
Period.
Borrowing Date means any day on which a Borrowing occurs under
Section 2.3 or 2.19.
Business Day means any day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required
by law to close and (i) with respect to disbursements and payments in U.S.
Dollars relating to Eurocurrency Rate Loans, a day on which dealings are carried
on in the applicable offshore U.S. Dollar interbank market, and (ii) with
respect to disbursements and payments in and calculations pertaining to any
Offshore Currency, a day on which commercial banks are open for foreign exchange
business in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and each other applicable
jurisdiction, and on which dealings in the relevant Offshore Currency are
8
carried on in the applicable offshore foreign exchange interbank market in which
disbursement of or payment in such Offshore Currency will be made or received
hereunder.
Canadian Dollar and the symbol C$ each mean the lawful money of
Canada.
Canadian Dollar Loans means each Revolving Loan made hereunder
that is denominated in Canadian Dollars and each BA Rate Loan; Revolving Loans
denominated in Canadian Dollars shall be Special Currency Loans.
Canadian Lender means each Lender identified on Schedule 2.1 on
the date hereof as a Lender to Greif Canada and any other Lender that agrees,
with the approval of the Administrative Agent and the U.S. Borrower, which
approval shall not be unreasonably withheld, to act as a Canadian Lender, and
which is a bank or other financial institution that is a resident of Canada for
the purposes of Part XIII of the Income Tax Act (Canada) in respect of any
amounts paid or credited under this Agreement.
Canadian Revolving Credit Outstandings means, at any time
(without duplication), the Dollar Equivalent of (a) the aggregate outstanding
principal amount of all Revolving Loans made to Grief Canada, (b) the Effective
Amount of all outstanding L/C Obligations in respect of Letters of Credit issued
for the account of Grief Canada, (c) the aggregate outstanding principal amount
of all Swing Line Loans made to Grief Canada and (d) the face amount of
outstanding Bankers' Acceptances and the outstanding principal amount of BA
Equivalent Loans.
Capital Adequacy Regulation means, in respect of any Lender, any
guideline, request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, whether or not having the force
of law, in each case, regarding capital adequacy of such Lender or of any
corporation controlling such Lender which is generally applicable to banks or
corporations controlling banks in any applicable jurisdiction (and not
applicable to such Lender or the corporation controlling such Lender solely due
to the financial or regulatory condition of such Lender or such corporation).
Capital Expenditures means all expenditures which, in accordance
with GAAP, would be required to be capitalized and shown on the consolidated
balance sheet of U.S. Borrower, but excluding (i) expenditures made in
connection with the replacement, substitution or restoration of assets to the
extent financed (x) from insurance proceeds (or other similar recoveries) paid
on account of the loss of or damage to the assets being replaced or restored or
(y) with awards of compensation arising from the taking by eminent domain,
expropriation or condemnation of the assets being replaced, and (ii)
acquisitions of Timber Assets made in accordance with subsection 8.2(a)(x).
Capital Lease, as applied to any Person, shall mean any lease of
any property (whether real, personal or mixed) by that Person as lessee which,
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 a deposit
account.
Cash Collateralize means to pledge and deposit with or deliver to
the Administrative Agent, for the benefit of the Administrative Agent and each
other Creditor, Cash pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and each L/C Lender (which documents
are hereby consented to by the Lenders). Derivatives of such term shall have
corresponding meanings. The U.S. Borrower hereby grants to the Administrative
Agent, for the benefit of the Administrative Agent, and each holder of an
Obligation, a security interest in all such Cash. Cash Collateral shall be
maintained in L/C sub-accounts of the Collateral Account established in
accordance with the provisions of Section 9.2 of the U.S. Borrower Guarantee and
Security Agreement. The
9
Collateral Account shall be the property of U.S. Borrower and shall be pledged
to the Administrative Agent pursuant to the U.S. Borrower Guarantee and Security
Agreement; the investment of all such cash collateral shall be directed by U.S.
Borrower (but only in Cash Equivalents), and all income thereon shall be the
property of U.S. Borrower (subject to the reasonable fees of the Administrative
Agent relating to the administration of such account) and shall also be pledged
to the Administrative Agent under the U.S. Borrower Guarantee and Security
Agreement.
Cash Equivalents means (i) any security, maturing not more than
one year after the date of acquisition, issued by the United States of America
or an instrumentality or agency thereof and guaranteed full as to principal,
premium, if any, and interest by the United States of America; (ii) any
certificate of deposit, time deposit or bankers' acceptance (or, with respect to
non-U.S. banking institutions, similar instruments), maturing not more than one
year after the day of acquisition, issued by any commercial banking institution
that is a member of the U.S. Federal Reserve System or a commercial banking
institution organized and located in a country recognized by the United States
of America, in each case, having combined capital and surplus and undivided
profits of not less than U.S. $500 million (or the foreign currency equivalent
thereof), whose short-term debt has a rating, at the time as of which any
investment therein is made, of "P-l" (or higher) according to ▇▇▇▇▇'▇ or "A-1"
(or higher) according to S&P; (iii) commercial paper maturing not more than one
year after the date of acquisition issued by a corporation (other than an
Affiliate or Subsidiary of any Borrower) with a rating, at the time as of which
any investment therein is made, of "P-l" (or higher) according to ▇▇▇▇▇'▇ or
"A-1" (or higher) according to S&P; (iv) any money market deposit accounts
issued or offered by a commercial banking institution that is a member of the
U.S. Federal Reserve System or a commercial institution organized and located in
a country recognized by the United States of America, in each case, having
combined capital and surplus in excess of U.S. $500 million (or the foreign
currency equivalent thereof); and (v) other short-term investments utilized by
Foreign Subsidiaries in accordance with normal investment practices for cash
management not exceeding a Dollar Equivalent amount of U.S. $10.0 million in
aggregate principal amount outstanding at any time.
CERCLA -- see subsection 6.12(a)(iii).
Change in Law means the introduction of any Requirement of Law,
or any change in any Requirement of Law or in the interpretation or
administration of any Requirement of Law.
Change of Control means the occurrence at any time of any of the
following events:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) (other than the Permitted Investors) is or
becomes (as a result of the acquisition or issuance of securities, by merger or
otherwise) the Beneficial Owner, directly or indirectly, of more than 35% of the
voting power with respect to the election of directors of all then outstanding
voting Equity Interests of U.S. Borrower (other than as a result of a public
primary registered equity offering by U.S. Borrower of new shares issued by U.S.
Borrower in such offering), whether as a result of the issuance of securities of
the U.S. Borrower, any merger, consolidation, liquidation or dissolution of the
U.S. Borrower, any direct or indirect transfer of securities by the Permitted
Investors or otherwise (for purposes of this clause (a), the Permitted Investors
will be deemed to beneficially own any voting Equity Interests of a specified
corporation held by a parent corporation so long as the Permitted Investors
beneficially own, directly or indirectly, in the aggregate a majority of the
total voting power of the voting Equity Interests of such parent corporation);
(b) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors of the U.S.
Borrower (together with any new directors whose election or appointment by such
Board or whose nomination for election by the stockholders of the
10
U.S. Borrower was approved by a vote of not less than a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the U.S. Borrower then in office; or
(c) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially all the assets of
the U.S. Borrower and its Subsidiaries (other than Soterra LLC), considered as a
whole (other than a disposition of such assets as an entirety or virtually as an
entirety to a wholly owned Subsidiary or one or more Permitted Investor or a
Person of which one or more of the Permitted Investors own more than 50% of the
voting power) shall have occurred, or the U.S. Borrower merges, consolidates or
amalgamates with or into any other Person (other than one or more Permitted
Investors, provided the U.S. Borrower is the surviving entity) or any other
Person (other than one or more Permitted Investors or a Person of which one or
more of the Permitted Investors own more than 50% of the voting power, provided
the U.S. Borrower is the surviving entity) merges, consolidates or amalgamates
with or into the U.S. Borrower, in any such event pursuant to a transaction in
which the outstanding voting Equity Interests of the U.S. Borrower is
reclassified into or exchanged for cash, securities or other Property, other
than any such transaction where:
(i) the outstanding voting Equity Interests of the U.S.
Borrower is reclassified into or exchanged for other voting Equity
Interests of the U.S. Borrower or for voting Equity Interests of the
surviving corporation, and
(ii) the holders of the voting Equity Interests of the U.S.
Borrower immediately prior to such transaction own, directly or
indirectly, not less than a majority of the voting Equity Interests of
the U.S. Borrower or the surviving corporation immediately after such
transaction and in substantially the same proportion as before the
transaction.
Citibank Australia means Citibank, N.A. (Sydney Branch).
Citibank Canada means Citibank N.A. (Canadian Branch).
Code means the United States Internal Revenue Code of 1986, as
amended.
Collateral means all of the U.S. Borrower Security Agreement
Collateral, Domestic Security Agreement Collateral, the Foreign Pledge Agreement
Collateral, the Mortgaged Property, all other property and assets pledged as
collateral under any Security Document. Collateral shall in no event include (i)
Timber Assets, (ii) any other assets or properties of Soterra LLC, (iii) any
Equity Interest in Soterra LLC and (iv) any assets or properties or Equity
Interest in CorrChoice, until such time, if any, that CorrChoice becomes a
Wholly-Owned Subsidiary of the U.S. Borrower and as provided in Section 7.13.
Collateral Account shall have the meaning assigned to such term
in the U.S. Borrower Guarantee and Security Agreement.
Commitment, as to each Lender, means its Term Commitment,
Revolving Commitment, Qualified Offshore Commitment or Swing Line Commitment.
Commitment Fee -- see subsection 2.13(b).
Company means U.S. Borrower or any of its Subsidiaries, and
Companies means U.S. Borrower and all of its Subsidiaries collectively.
11
Compliance Certificate means a certificate substantially in the
form of Exhibit C and delivered by the Borrowers pursuant to subsection 7.2(a).
Computation Amount -- see subsection 3.8(a).
Computation Date means any date on which the Administrative Agent
determines the Dollar Equivalent amount of any Offshore Currency Revolving Loans
pursuant to subsection 2.5(a).
Consolidated Net Income means, for any period, the consolidated
net income of the Companies for such period; provided, however, that there shall
be excluded therefrom (i) the income of any Person which is not a Subsidiary
(but any dividends or other distributions received in cash by any Company from
such Person shall be included in Consolidated Net Income), (ii) unrealized gains
or losses in respect of Swap Contracts, and (iii) unrealized foreign currency
transaction gains or losses in respect of Indebtedness of any Person denominated
in a currency other than the functional currency of such Person and permitted by
Section 8.5.
Consolidated Net Worth means at the date of determination
thereof, the sum of all items which in conformity with GAAP would be classified
as stockholders' equity on a consolidated balance sheet of U.S. Borrower at such
date.
Contingent Obligation means, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness, Lease, dividend, letter of
credit or other obligation (the "primary obligations") of another Person (the
"primary obligor"), including any obligation of such Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security
therefor, (ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase, sell or lease (as lessor or lessee) property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation, (iv) otherwise to assure or hold harmless the holder of
any such primary obligation against loss in respect thereof and (v) to purchase
any materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (b) with respect to any Swap Contract. The amount of
any Contingent Obligation shall be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or if indeterminable, the maximum reasonably
anticipated liability by the applicable Person in respect thereof.
Contractual Obligation means, as to any Person, any term,
covenant, provision or condition of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by which it
or any of its property or assets are bound.
Conversion/Continuation Date means any Business Day on which any
Borrower (i) converts Loans of a Facility from one Type to the other Type or
(ii) continues as Loans of the same Type, but with a new Interest Period, Loans
of a Facility having Interest Periods expiring on such date.
12
CorrChoice means CorrChoice, Inc., an Ohio corporation
established pursuant to the Joint Venture Agreement between U.S. Borrower, RDJ
Holdings, Inc. and a minority shareholder of a subsidiary of Ohio Packaging
Corporation, on November 1, 1998.
Covered Taxes means any and all Taxes other than, in the case of
each Lender or Agent, Taxes of any jurisdiction (or any political subdivision
thereof) that are imposed on or measured by such Lenders or such Agent's net
income or net profits (including any franchise Taxes imposed thereon) and that
arise by reason of a former, present or future connection between such Lender or
Agent and such jurisdiction (including, without limitation, a connection arising
from such Lender or Agent being or having been a citizen or resident of such
jurisdiction, or having been organized or engaged in a trade or business in such
jurisdiction, or having or having had a permanent establishment or fixed place
of business in such jurisdiction, but excluding a connection arising solely from
such Lender or Agent having executed, delivered or performed its obligations or
having received a payment under this Agreement). For the avoidance of doubt,
Covered Taxes shall include any deductions or withholdings by a Borrower on
account of any Taxes from payments made under this Agreement or any other Credit
Document.
Credit Documents means this Agreement, each Note, the Fee Letter,
the L/C-Related Documents, each Security Document, the Soterra Guarantee and all
other documents delivered to any Creditor in connection herewith.
Credit Extension means and includes (a) the making of any Loan
hereunder and (b) the Issuance of any Letter of Credit hereunder.
Credit Facilities means the Revolving Facility and the Term Loan
Facilities.
Creditor means (i) each Agent, (ii) each L/C Lender, (iii) each
Lender, (iv) each party to a Swap Contract if at the date of entering into such
Swap Contract such Person was a Lender or an Affiliate of a Lender and (v) each
other holder of an Obligation.
Currency Threshold means in the case of each Applicable Currency
listed below, the amounts indicated below, and for any other Applicable
Currency, the amount agreed to by the U.S. Borrower and the Administrative
Agent.
----------------------------------------------------------------------------------------
Currency Currency Threshold
----------------------------------------------------------------------------------------
Euro Euro5,000,000 and integral multiplies of Euro1,000,000 excess thereof
----------------------------------------------------------------------------------------
GBP GBP5,000,000 and integral multiplies of GBP1,000,000 excess thereof
----------------------------------------------------------------------------------------
A$ A$10,000,000 and integral multiplies of A$2,000,000 excess thereof
----------------------------------------------------------------------------------------
C$ C$10,000,000 and integral multiplies of C$2,000,000 excess thereof
----------------------------------------------------------------------------------------
Current Lenders -- see the second recital of this Agreement.
Current Liabilities means, at any time, all amounts which, in
accordance with GAAP, would be included as current liabilities on a consolidated
balance sheet of the Companies at such time, excluding current maturities of
Indebtedness.
Destruction means any and all damage to, or loss or destruction
of, all or any portion of any real or personal property of any Company.
13
Discount Rate means with respect to each Bankers' Acceptance
issued pursuant to this Agreement with the same maturity date, the rate
determined by Citibank Canada as being the discount rate, calculated on the
basis of a year of 365 or 366 days, as the case may be, of Citibank Canada
established in accordance with its normal practices at or about 10:00 a.m.
(Local Time) on the date of issue of such Bankers' Acceptances, for bankers'
acceptances having a comparable face value and an identical maturity date to the
face value and maturity date of such Bankers' Acceptance.
Discounted Proceeds means in respect of any Bankers' Acceptance
to be accepted and purchased by a Canadian Lender hereunder on any day, an
amount (rounded to the nearest whole Canadian cent, and with one-half of one
cent being rounded up) calculated on such day by multiplying (i) the face amount
of such Bankers' Acceptance by (ii) the price, where the price is determined by
dividing one by the sum of one plus the product of (A) the Discount Rate
(expressed as a decimal) and (B) a fraction, the numerator of which is the
number of days in the term of such Bankers' Acceptance and the denominator of
which is 365 or 366, as the case may be, with such product being rounded up or
down to the fifth decimal place and .000005 being rounded up.
Disqualified Stock means any Equity Interest of the U.S. Borrower
or any of its Subsidiaries that by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable, in either case at
the option of the holder thereof) or otherwise:
(a) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise,
(b) is or may become redeemable or repurchaseable at the option
of the holder thereof, in whole or in part, or
(c) is convertible or exchangeable at the option of the holder
thereof for Indebtedness or Disqualified Stock,
on or prior to, in the case of clause (a), (b) or (c), the first anniversary of
the date of Term Loan Maturity.
Documentation Agent - see the preamble to this Agreement.
Dollar Equivalent of any amount means, at the time of
determination thereof, (a) if such amount is expressed in U.S. Dollars, such
amount, (b) if such amount is expressed in any other currency, the equivalent of
such amount in Dollars as determined by the Administrative Agent using the
applicable Spot Rate.
Dollar Loan has the meaning specified in Section 2.1(a).
Domestic Guarantee and Security Agreement means the Amended and
Restated Domestic Guarantee and Security Agreement substantially in the form of
Exhibit D entered into and delivered by each Domestic Guarantor.
Domestic Guarantor means (i) each Domestic Subsidiary party to a
Domestic Guarantee and Security Agreement and Soterra LLC and (ii) each other
Domestic Subsidiary that shall after the Effective Date execute and deliver a
joinder agreement substantially in the form of Exhibit 3 to the Domestic
Guarantee and Security Agreement pursuant to subsections 7.13(a) and (b).
Domestic Loan Parties means U.S. Borrower and the Domestic
Guarantors.
14
Domestic Obligations means all Obligations of any Domestic Loan
Party to any Creditor other than Obligations in respect of such Domestic Loan
Party's guarantee of the Obligations of a Foreign Borrower.
Domestic Security Agreement Collateral means all "Pledged
Collateral" as defined in the Domestic Guarantee and Security Agreement,
excluding for all purposes the Equity Interests in CorrChoice and Soterra, LLC
and all property and assets of CorrChoice and Soterra, LLC.
Domestic Security Documents means each of the U.S. Borrower
Guarantee and Security Agreement, the Domestic Guarantee and Security Agreement,
the Mortgages, the Mortgage Modifications and any other documents utilized to
pledge to the secured parties contemplated thereby any other property as
collateral to secure the obligations of the Domestic Loan Parties party thereto.
Domestic Subsidiary means a Subsidiary that is incorporated under
the laws of any State of the United States or the District of Columbia.
Downgrade Date -- see subsection 7.21(a).
EBITDA means, for any period, the sum of:
(a) Consolidated Net Income of U.S. Borrower for such period
excluding, to the extent reflected in determining such Consolidated
Net Income, (i) extraordinary gains and losses for such period, (ii)
any gain or loss associated with the sale or write-down of assets not
in the ordinary course of business, (iii) any deferred financing costs
for such period written off, or premiums paid, in connection with the
early extinguishment of Indebtedness hereunder, (iv) any other
non-cash or non-recurring items of income or expense (other than any
non-cash item of expense requiring an accrual or reserve for future
cash expense) and (v) any amount of gains from the sale of Timber
Lands in excess of U.S. $40,000,000 for any such period, plus
(b) to the extent deducted in determining Consolidated Net
Income for such period, Interest Expense, income tax, deferred tax
expense and capital tax expense, depreciation, depletion and
amortization expense for such period, minus
(c) any credit for income tax and interest income.
EBITDA for any period shall be calculated on a pro forma basis in accordance
with Regulation S-X under the Securities Act to give pro forma effect to any
material acquisition or disposition as if it had occurred at the beginning of
such period.
Effective Amount means with respect to any outstanding L/C
Obligations on any date, the aggregate Dollar Equivalent amount of such L/C
Obligations on such date after giving effect to any Issuances of Letters of
Credit occurring on such date and any other changes in the aggregate Dollar
Equivalent amount of the L/C Obligations as of such date, including as a result
of any reimbursement of outstanding unpaid drawings under any Letter of Credit
or any reduction in the maximum amount available for drawing under any Letter of
Credit taking effect on such date
Effective Date -- see Section 5.l.
Eligible Assignee means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least U.S. $100.0 million; (ii) a commercial bank organized
under the laws of any other country that is a member of the Organization
15
for Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having a combined capital and surplus in a
Dollar Equivalent amount of at least U.S. $100.0 million; provided, however,
that such bank is acting through a branch or agency located in the country in
which it is organized or another country which is also a member of the OECD;
(iii) an insurance company, mutual fund or other financial institution organized
under the laws of the United States, any state thereof, any other country that
is a member of the OECD or a political subdivision of any such country with
assets, or assets under management, in a Dollar Equivalent amount of at least
U.S. $100.0 million; (iv) any Affiliate of a Lender; (v) any other entity (other
than a natural person) that is an "accredited investor" (as defined in
Regulation D under the United States Securities Act of 1933, as amended) that
extends credit or buys loans as one of its businesses or investing activities
including, but not limited to, insurance companies, mutual funds and investment
funds; and (vi) any other entity consented to by the Administrative Agent, the
Syndication Agent and U.S. Borrower; provided, however, that no Person shall be
an Eligible Assignee in respect of any Revolving Commitment unless, at the time
of the proposed assignment to such Person, such Person is able to make Revolving
Loans in U.S. Dollars and each Standard Currency; provided, however, that no
Person shall be an Eligible Assignee in respect of any Qualified Offshore
Commitment with respect to any Borrower and currency unless, at the time of the
proposed assignment to such Person, such Person is a Qualified Offshore Lender
with respect to such Borrower and such currency. With respect to any Lender that
is a fund or commingled investment vehicle that invests in loans, any other fund
or commingled investment vehicle that invests in loans and is managed or advised
by the same investment advisor of such Lender or by an Affiliate of such
investment advisor shall be treated as a single Eligible Assignee.
Environmental Approvals means any approval, determination, order,
consent, authorization, certificate, license, permit, franchise, concession or
validation of, or exemption or other action by, or filing, recording or
registration with, or notice to, any Governmental Authority pursuant to or
required under any Environmental Law.
Environmental Claims means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability under, or
responsibility for violation of, any Environmental Law on the part of any
Company.
Environmental Laws means all applicable federal, state, local and
foreign laws, common law or regulations, treaties, orders, decrees, permits,
licenses, authorizations, judgments or injunctions issued, promulgated, approved
or entered thereunder, now or hereafter in effect in each case relating to
pollution or protection of employee health or safety or the environment
(including, without limitation, ambient and indoor air, surface water,
groundwater, soil, land surface or subsurface, and natural resources such as
wetlands, flora and fauna) including, without limitation, laws relating to (a)
emissions, discharges, releases or threatened releases of Hazardous Materials
into the environment and (b) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of Hazardous
Materials.
Environmental Lien means any Lien in favor of any Governmental
Authority arising under any Environmental Law.
Equity Interests means, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting or whether
certificated or not certificated), of capital of such Person, including, if such
Person is a partnership, partnership interests (whether general or limited) and
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
such partnership, whether outstanding on the date hereof or issued after the
Effective Date.
16
ERISA means the United States Employee Retirement Income Security
Act of 1974, as amended.
ERISA Entity means any member of an ERISA Group.
ERISA Event means (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Pension Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Pension Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived, the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any Pension Plan or
the failure to make any required contribution to a Multiemployer Plan; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Pension Plan; (d) the incurrence by any ERISA Entity of any liability under
Title IV of ERISA with respect to the termination of any Pension Plan; (e) the
receipt by any ERISA Entity from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Pension Plan or to appoint a trustee
to administer any Pension Plan, or the occurrence of any event or condition
which would reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan;
(f) the incurrence by any ERISA Entity of any liability with respect to the
withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan;
(g) the receipt by any ERISA Entity of any notice, or the receipt by any
Multiemployer Plan from any ERISA Entity of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the making of any amendment to any Pension Plan which
would reasonably be expected to result in the imposition of a lien or the
posting of a bond or other security; or (i) the occurrence of a nonexempt
prohibited transaction (within the meaning of Section 4975 of the Code or
Section 406 of ERISA which would reasonably be expected to result in liability
to a Loan Party).
ERISA Group means a Loan Party and all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with a Loan Party, are treated as a single
employer under Section 414 of the Code.
Euro and (euro) each mean lawful money of the European Union.
Eurocurrency Rate means:
(a) with respect to loans denominated in U.S. Dollars or Euros,
for any Interest Period for any Eurocurrency Rate Loan, the rate determined by
the Administrative Agent to be the offered rate for deposits in the Applicable
Currency for the applicable Interest Period appearing on the Screen as of 11:00
a.m., Local Time, on the second full Business Day next preceding the first day
of each Interest Period. In the event that such rate does not appear on the
Screen, the Eurocurrency Rate for the purposes of this definition shall be
determined by reference to such other comparable publicly available service for
displaying eurocurrency rates as may be selected by the Administrative Agent,
or, in the absence of such availability, the Eurocurrency Rate shall be the rate
of interest determined by the Administrative Agent to be the rate per annum at
which deposits in the Applicable Currency are offered by, in the case of U.S.
Dollars or Euros, the principal office of Citibank in London or, in the case of
any other Offshore Currency, the principal office of Citibank in an active
market for such Offshore Currency to major banks in the London, Hong Kong or
Tokyo (as the case may be) interbank market at such location, at 11:00 a.m.
Local Time two Business Days before the first day of such Interest Period in an
amount substantially equal to the Eurocurrency Rate Loan of Citibank for a
period equal to such Interest Period;
17
(b) with respect to Australian Dollar Loans, the Australian ▇▇▇▇
Rate;
(c) with respect to loans denominated in GBP, in the
Administrative Agent's reasonable discretion:
(i) the rate determined by the Administrative Agent to be
the offered rate for deposits in the GBP for the applicable Interest
Period appearing on the Screen as of 11:00 a.m., Local Time, on the
second full Business Day next preceding the first day of each Interest
Period. In the event that such rate does not appear on the Screen, the
Eurocurrency Rate for the purposes of this definition shall be
determined by reference to such other comparable publicly available
service for displaying eurocurrency rates as may be selected by the
Administrative Agent, or, in the absence of such availability, the
Eurocurrency Rate shall be the rate of interest determined by the
Administrative Agent to be the rate per annum at which deposits in GBP
are offered by the principal office of Citibank in London to major
banks in the London interbank market, at 11:00 a.m. Local Time two
Business Days before the first day of such Interest Period in an
amount substantially equal to the Eurocurrency Rate Loan of Citibank
for a period equal to such Interest Period; or
(ii) the rate of interest determined by the Administrative
Agent to be the average (rounded upward to the nearest whole multiple
of 1/16 of one percent per annum, if such average is not such a
multiple) of the rates per annum at which deposits in GBP are offered
by the principal office of each of three Reference Banks in London to
major banks in the London interbank market at 11:00 a.m. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to the Eurocurrency Rate Loan of each such
Reference Bank for a period equal to such Interest Period.
Eurocurrency Rate Loan means any Loan that bears interest based
on the Eurocurrency Rate.
Event of Default means any of the events or circumstances
specified in Section 9.1.
Excess Cash Flow means, for any period, the difference of:
(a) the sum, without duplication, of (i) Consolidated Net Income
for such period (calculated by (x) excluding any gains or losses on
the sale or other disposition of assets (other than sales of inventory
in the ordinary course of business), (y) adding back the non-cash
component of all extraordinary or non-recurring items of expense and
(z) deducting the non-cash component of all extraordinary or
non-recurring items of income, in each case to the extent taken into
account in the calculation of such Consolidated Net Income), plus all
depreciation and amortization of assets (including goodwill and other
intangible assets), non-cash interest expense and all other non-cash
charges of the Companies deducted in determining Consolidated Net
Income for such period, plus (iii) any net decrease in Adjusted
Working Capital (as reflected on the audited consolidated statement of
cash flows in accordance with FAS 52) during such period (exclusive of
decreases in working capital associated with asset sales), plus (iv)
all federal, state, local and foreign income or capital taxes (whether
paid or deferred) of the Companies deducted in determining
Consolidated Net Income for such period, minus
(b) the sum, without duplication, of (i) regularly scheduled
installment payments of principal of Term Loans pursuant to Section
2.11, prepayments of principal pursuant to Section 2.10 and Section
2.11(c), voluntary prepayments of the Term Loans pursuant to
subsection 2.9(g), the aggregate principal amount of permanent
principal payments with respect to any other
18
Indebtedness of the Companies, prepayments of the Revolving Loans and
BA Rate Loans to the extent of any concurrent permanent reduction in
the Revolving Commitments and the portion of any regularly scheduled
payments with respect to Capital Leases allocable to principal, in
each case made during such period (in any such case other than to the
extent any such prepayment or payment is made from the proceeds of any
capital contribution to any Company or from any proceeds from the
issuance or sale of Equity Interests of any Company, any incurrence of
Indebtedness by any Company or from the proceeds of any sale or other
disposition of assets by any Company or insurance proceeds (other than
sales of inventory in the ordinary course of business)), plus (ii)
Capital Expenditures for such period and cash paid in connection with
any Acquisition during such period (in any such case other than to the
extent made from any capital contribution to any Company or from any
proceeds from the issuance or sale of Equity Interests of any Company,
any incurrence of Indebtedness by any Company or from the proceeds of
any sale or other disposition of assets by any Company or insurance
proceeds (other than sales of inventory in the ordinary course of
business)), plus (iii) all federal, state, local and foreign income or
capital taxes paid by the Companies during such period, plus (iv)
non-cash charges added back in any previous period pursuant to item
(a)(ii) above to the extent such charge has become a cash item in the
current period, plus (v) any net increase in Adjusted Working Capital
(as reflected on the audited consolidated statement of cash flows in
accordance with FAS 52) during such period (exclusive of increases in
working capital associated with asset sales), plus (vi) any earnings
included in EBITDA for such period of a Receivables Co. to the extent
the terms of any Permitted Receivables Transaction prohibit the
distribution thereof to any Loan Party, plus (vii) Restricted Payments
pursuant to subsections 8.13(d) and (e).
Exchange Act means the United States Securities Exchange Act of
1934, as amended.
Existing Agent -- see the first recital of this Agreement.
Existing Credit Agreement -- see the first recital of this
Agreement.
Existing Letters of Credit means the Letters of Credit listed in
Schedule 1.1(b).
Existing Revolving Loans means the Revolving Loans (as defined in
the Existing Credit Agreement) owing to CNAI on the Effective Date.
Facility means either of the Term Facility or the Revolving
Facility and Facilities means both of the Term Facility and the Revolving
Facility.
Fee Letter -- see subsection 2.13(a).
Financial Maintenance Covenants means the covenants set forth in
Sections 8.10, 8.11, 8.12 and 8.18.
FIRREA means the United States Financial Institutions Reform,
Recovery & Enforcement Act of 1989, as amended from time to time, and any
successor statute.
Fiscal Quarter means any fiscal quarter of the U.S. Borrower.
Fiscal Year means any fiscal year of the U.S. Borrower.
19
Fixed Charge Coverage Ratio means, for any Test Date, the ratio
of: (a) EBITDA for the four Fiscal Quarters ending on such Test Date to (b)
Fixed Charges for the four Fiscal Quarters ending on such Test Date.
Fixed Charges means, for any period, the sum determined on a
consolidated basis of (a) Interest Expense for such period to the extent paid or
payable in cash during such period, plus (b) the sum of all scheduled principal
payments on any Indebtedness of the Companies (including, without duplication,
any lease payments in respect of Capital Leases of the Companies attributable to
the principal component thereof for such period, but excluding any prepayment of
a type contemplated by Section 2.9, plus (c) all cash income tax expense paid or
due and payable to any Governmental Authority by the Companies for such period
(other than taxes related to Asset Sales not in the ordinary course of business)
excluding those taxes which are being contested in accordance with the terms of
this Agreement, but only to the extent so contested, plus (d) Capital
Expenditures during such period (in any such case other than to the extent made
from any capital contribution to the U.S. Borrower by its shareholders or from
any proceeds from the issuance or sale of Equity Interests of any Company, any
incurrence of Indebtedness by any Company (other than the Loans) or from the
proceeds of any Asset Sale by any Company or insurance proceeds received by the
Companies.
Foreign Borrower Sublimit means, with respect to all Foreign
Borrowers, the Dollar Equivalent of U.S. $150,000,000, as the same may be
reduced in accordance with the terms of this Agreement.
Foreign Borrowers -- see the introduction to this Agreement.
Foreign Guarantee means the Foreign Guarantee substantially in
the form of Exhibit N attached hereto (with only such changes as are necessary
to conform to the requirements of applicable foreign law) executed and delivered
by each Foreign Guarantor in accordance with the requirements of this Agreement.
Foreign Guarantor means any Person which holds the Equity
Interests of any Foreign Borrower and that executes a Foreign Guarantee.
Foreign Holdco -- see the introduction to this Agreement.
Foreign Holdco Intercompany Notes means those promissory notes
set forth on Schedule 1.1(c) hereto, which evidence Indebtedness owing from
RPIVL and Greif France Holdings SAS to Foreign Holdco.
Foreign Loan Parties means Foreign Borrowers and the Foreign
Guarantor and Foreign Loan Party means any of them.
Foreign Plan means any employee benefit plan, program, policy,
arrangement or agreement maintained or contributed to by, or entered into with,
a Company with respect to employees employed outside the United States.
Foreign Pledge Agreement means each pledge agreement relating to
the pledge of the Equity Interest of a Person organized, or formed, as the case
may be, under the laws of a jurisdiction outside the United States of America,
executed and delivered by a Loan Party in accordance with the requirements of
this Agreement.
20
Foreign Pledge Agreement Collateral means all property and assets
pledged as collateral, or in respect of which a security interest or other Lien
is granted or attaches, under the Foreign Pledge Agreements.
Foreign Security Documents means each Foreign Pledge Agreement
and all other documents utilized to pledge to the secured parties contemplated
thereby any other property as collateral to secure the obligations of the
pledgor thereunder.
Foreign Subsidiary means a direct or indirect Subsidiary of U.S.
Borrower that is not a Domestic Subsidiary.
FRB means the Board of Governors of the U.S. Federal Reserve
System, and any Governmental Authority succeeding to any of its principal
functions.
GAAP means United States generally accepted accounting principles
set forth in the 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 agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination, subject to Section 1.3.
Governmental Authority means any nation or government, any state,
province, autonomous region, canton or other political subdivision thereof, any
central bank (or similar monetary or regulatory authority) thereof (or any
central bank or similar monetary or regulatory authority created under the
Treaty of Rome (being the treaty establishing the European Economic Community
signed in Rome, Italy on 25 March 1957, as amended) or created by any group of
nations, governments or states), the NAIC, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
Greif Australia -- see the introduction to this Agreement.
Greif Canada -- see the introduction to this Agreement.
Greif UK -- see the introduction to this Agreement.
Guarantees means the Contingent Obligations of (i) the U.S.
Borrower under the U.S. Borrower Guarantee and Security Agreement, (ii) the
Domestic Guarantors under the Domestic Guarantee and Security Agreement, and
(iii) each Foreign Guarantor under the Foreign Guarantee.
Guarantors means each of the U.S. Borrower, the Domestic
Guarantors and the Foreign Guarantors.
Hazardous Materials means any pollutant, contaminant, toxic,
hazardous or extremely hazardous substance, constituent or waste, or any other
constituent, waste, material, compound or substance including, without
limitation, petroleum (including crude oil or any fraction thereof) or any
petroleum product, subject to regulation, or which can give rise to liability,
under any Environmental Law.
Honor Date -- see subsection 3.3(b).
21
Indebtedness of any Person means, without duplication, (a) all
indebtedness for borrowed money of such Person; (b) all obligations issued,
undertaken or assumed by such Person as the deferred purchase price of property
or services; (c) all reimbursement or payment obligations of such Person with
respect to letters of credit, banker's acceptances, banker's guaranties, surety
bonds or similar agreements or instruments; (d) all obligations of such Person
evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
property, assets or businesses; (e) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property) and all obligations and indebtedness under any synthetic lease or
similar transaction; (f) all obligations of such Person with respect to Capital
Leases; (g) all indebtedness of other Persons referred to in clauses (a) through
(f) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or in
property (including accounts and general intangibles) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness; and (h) all Contingent Obligations of such Person. Indebtedness
shall not include accounts extended by suppliers in the ordinary course in
connection with the purchase of goods and services. For purposes of Section
8.12, Indebtedness will be defined as above except that all non-U.S. Dollar
borrowings, including U.S. Dollar borrowings converted to another currency via
forward exchange contracts, will be converted to U.S. Dollars at the average
exchange rate of the previous twelve months.
Indemnified Person -- see Section 11.4.
Independent Auditor -- see subsection 7.1(a).
Insolvency Proceeding means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or
by or before any other Governmental Authority relating to bankruptcy,
insolvency, suspension of payments (suspension de pagos), reorganization,
liquidation, receivership, dissolution, sequestration, conservatorship, winding
or relief of debtors (or the convening of a meeting or the passing of a
resolution for or with a view to any of the foregoing), or (b) any assignment
for the benefit of creditors, composition, marshalling of assets for creditors,
or other similar arrangement in respect of such Person's creditors generally or
any substantial portion of its creditors.
Intellectual Property -- see Section 6.15.
Intercompany Indebtedness means Indebtedness owing by any Company
to any other Company (other than Soterra LLC).
Interest Coverage Ratio means, for any Test Date, the ratio of:
(a) EBITDA for the four Fiscal Quarters ending on such Test Date to (b) Interest
Expense for the four Fiscal Quarters ending on such Test Date.
Interest Expense means, for any period, the consolidated interest
of the Companies for such period on Indebtedness (including all imputed interest
on Capital Leases, capitalized interest, fees, charges and commissions on
letters of credit and net costs under Swap Contracts, but excluding (i)
amortization of fees and expenses in connection with this Agreement and the
transactions contemplated by the foregoing, (ii) amortization in connection with
Swap Contracts, (iii) expenses relating to the sale or discount of receivables
permitted by Section 8.20, (iv) interest expense on deferred compensation or
customer deposits and (v) in the event of the consummation of a Permitted
Receivables Transaction, an amount equal to the interest (or other fees in the
nature of interest or discount accrued and
22
paid or payable in cash for such period) on such Permitted Receivables
Transaction); provided, however, that interest expense shall give effect to any
currency exchange agreements which have the effect of converting the currency in
which the related Loan is payable.
Interest Payment Date means (a) as to any ABR Loan or Loan made
or maintained at the Overnight Rate, the last Business Day of each Fiscal
Quarter, and (b) as to any Eurocurrency Rate Loan, the last day of each Interest
Period applicable to such Loan; provided, however, that if any Interest Period
for a Eurocurrency Rate Loan exceeds three months, the date that falls each
successive three months after the beginning of such Interest Period also shall
be an Interest Payment Date.
Interest Period means, as to any Eurocurrency Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which such Loan is converted into or continued
as a Eurocurrency Rate Loan, as applicable, and ending on the date one, two,
three or six months thereafter as selected by the Applicable Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation, as the case may be;
provided, however, that:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the
following Business Day unless, in the case of a Eurocurrency Rate Loan,
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the preceding Business Day;
(ii) any Interest Period for a Eurocurrency Rate Loan 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 end on the last Business Day
of the calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Revolving Loan shall extend
beyond the scheduled Termination Date and no Interest Period with
respect to any Term Loan shall extend beyond the date when principal is
due with respect to such Term Loan unless, after giving effect thereto,
the aggregate principal amount of the Term Loans having Interest
Periods that end after such date shall be equal to or less than the
aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required
to be made on such date.
Interest Rate Certificate means an officers' certificate
substantially in the form of Exhibit J, delivered pursuant to subsection 7.2(b),
demonstrating in reasonable detail the calculation of the Total Leverage Ratio
as of the last day of the subject period.
Inventory means all of the inventory of the Companies, whether
now existing or existing in the future, including, without limitation: (i) all
raw materials, work in process, parts, components, assemblies, supplies and
materials used or consumed in their business, (ii) all goods, wares and
merchandise, finished or unfinished, held for sale or lease or leased or
furnished or to be furnished under contracts of service, and (iii) all goods
returned or repossessed by any Company.
Investment -- see Section 8.4.
IRS means the United States Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal functions under the
Code.
Issuance Date -- see subsection 3.1(a).
23
Issue means, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter of
Credit; and the terms Issued, Issuing and Issuance have corresponding meanings.
Joint Lead Arranger -- see the introduction to this Agreement.
Joint Venture shall mean, with respect to any Person, any
corporation, association, partnership, limited liability company, joint venture,
business trust or other business entity of which (i) 50% or less than 50% of the
voting stock, membership interests or other Equity Interests are owned or
controlled directly or indirectly by such Person, or one or more of the
Subsidiaries of such Person, or a combination thereof, or (ii) more than 50% of
the voting stock, membership interests or other Equity Interests are owned
directly or indirectly by such Person, or one or more of the Subsidiaries of
such Person, or a combination thereof, but such entity is not controlled (by
contract or otherwise), by such Person or its Subsidiaries.
L/C Advance means each L/C Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
L/C Amendment Application means an application form for amendment
of outstanding standby or commercial documentary letters of credit as shall at
any time be in use by the applicable L/C Lender, as each L/C Lender shall
request.
L/C Application means an application form for issuances of
standby or commercial documentary letters of credit as shall at any time be in
use by the applicable L/C Lender, as each L/C Lender shall request.
L/C Borrowing means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed on the
date when made nor converted into a Borrowing of Revolving Loans under
subsection 3.3(b).
L/C Commitment means the commitment of any L/C Lender to Issue
Letters of Credit from time to time Issued or outstanding under Article III, in
an aggregate Dollar Equivalent amount not to exceed on any date an amount equal
to the lesser of U.S.$40,000,000 and the amount of the combined Commitments of
all L/C Lenders. The L/C Commitment is a part of the combined Revolving
Commitments of all L/C Lenders, rather than a separate, independent commitment
and is subject to reduction pursuant to Section 2.8.
L/C Lender means (i) other than with respect to the Existing
Letters of Credit, such Lender or Lenders selected by the Administrative Agent
and reasonably satisfactory to U.S. Borrower who agree to act in such capacity
to issue Letters of Credit and (ii) with respect solely to the Existing Letters
of Credit, Key Bank National Association.
L/C Obligations means at any time the sum of (a) the aggregate
undrawn Dollar Equivalent amount of all Letters of Credit then outstanding, plus
(b) the Dollar Equivalent amount of all outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the applicable L/C Lender's standard form
documents for letter of credit issuances.
24
Lease means any lease, sublease, franchise agreement, license
(excluding licenses of personal property), occupancy or concession agreement
including any extension or renewal thereof.
Lender -- see the introduction to this Agreement; Lender shall
include each L/C Lender and each Swing Line Lender.
Lending Office means, as to any Lender, the office or offices of
such Lender specified to the Administrative Agent and the Borrowers as its
"Lending Office" or "Domestic Lending Office" or "Offshore Lending Office," as
the case may be.
Letter of Credit means (i) other than with respect to the
Existing Letters of Credit, any letter of credit (whether a standby letter of
credit or a commercial documentary letter of credit) Issued by an L/C Lender
pursuant to Article III and (ii) the Existing Letters of Credit.
Lien means any security interest, mortgage, deed of trust, deed
to secure debt, deed of hypothec, debenture, pledge, claim, hypothecation,
assignment for security, charge or deposit arrangement, priority or preferential
arrangement in the nature of security or lien (statutory or other), or other
encumbrance of any kind in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement) the interest of a lessor under a Capital Lease, any financing lease
having substantially the same economic effect as any of the foregoing and any
Environmental Lien.
Loan means a Credit Extension by a Lender to any Borrower under
Article II or Article III, which may be a Term Loan, a Revolving Loan, a BA Rate
Loan, a Swing Line Loan or an L/C Borrowing.
Loan Parties means the Domestic Loan Parties and the Foreign Loan
Parties.
Local Time means, (a) with respect to the loans made in U.S.
Dollars, Euros or GBP, New York time, (b) with respect to Australian Dollar
Loans, Sydney, Australia time, (c) with respect to Canadian Dollar Loans,
Toronto, Canada time, and (d) with respect to loans made in any other currency,
the "Local Time" shall be as specified by the Administrative Agent.
Losses means as to any Person, the losses, liabilities, claims
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, expenses, obligations, penalties, actions,
judgments, Liens, penalties, fines, suits, costs or disbursements of any kind or
nature whatsoever (including Attorney Costs in connection with any Proceeding
commenced or threatened, whether or not such Person shall be designated a party
thereto) at any time (including following the payment of the Obligations and/or
the termination of the Commitments hereunder) incurred by, imposed on or
asserted against such Person.
Mandatory Costs means in relation to a Loan or unpaid sum the
rate per annum notified by any Lender to the Administrative Agent to be the cost
to that Lender of compliance with all reserve asset, liquidity or cash margin or
other like requirements of the Bank of England, the Financial Services Authority
or the European Central Bank and which shall be determined in accordance with
Schedule 1.1(h).
Margin Stock means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
Master Assignment Agreement - see the second recital of this
Agreement.
25
Material Adverse Change means, with respect to any Person, a
material adverse change or any condition or event that would reasonably be
expected to result in a material adverse change in the business, operations,
financial condition, liabilities (contingent or otherwise) or prospects of such
Person, together with its Subsidiaries taken as a whole.
Material Adverse Effect means, as of any date of determination,
(a) any event, circumstance, occurrence or condition which has caused (or would
reasonably be expected to cause) a material adverse effect, or any condition or
event that has resulted or could reasonably be expected to result in a material
adverse effect, on the business, operations, financial condition, liabilities
(contingent or otherwise) or prospects of the Companies taken as a whole, (b)
any event, circumstance, occurrence or condition which has caused (or would
reasonably be expected to cause) a material adverse effect on the ability of the
Loan Parties to consummate in a timely manner the Transactions or to perform any
of their material obligations under any Credit Document or (c) any event,
circumstance, occurrence or condition which has caused (or would reasonably be
expected to cause) a material adverse effect on the legality, binding effect or
enforceability of any Credit Document or any of the material rights and remedies
of any Creditor thereunder or the legality, priority or enforceability of the
Liens granted under the Security Documents on a material portion of the
Collateral or the value of the Collateral.
▇▇▇▇▇▇▇ -- see the first recital of this Agreement.
Minimum Loan means, in respect of Loans comprising part of the
same Borrowing, or to be converted or continued under Section 2.4, (a) in the
case of Dollar Loans and other ABR Loans, U.S. $5,000,000 or a higher integral
multiple of U.S. $1,000,000; (b) in the case of Term Loans that are Eurocurrency
Rate Loans, U.S. $10,000,000 or a higher integral multiple of U.S. $1,000,000;
and (c) in the case of Loans (other than Swing Loans) in an Offshore Currency,
the Currency Threshold for such Offshore Currency.
Moody's means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
Mortgage means a fee or leasehold mortgage or deed of trust,
assignment of leases and rents, security agreement and fixture filing creating
and evidencing a Lien on a Mortgaged Property, which shall be (i) substantially
in the form of Exhibit I-1, containing such schedules and including such
additional provisions and other deviations from such exhibit as shall be
necessary to conform such document to applicable local law or as shall be
required or customary under local law or shall otherwise be reasonably required
by the Administrative Agent, (ii) dated as of the date of delivery thereof and
(iii) made by the owner of the Mortgaged Property described therein for the
benefit of the Administrative Agent for the benefit of the secured parties
described therein, as mortgagee (grantee or beneficiary), assignee and secured
party, as the same may at any time be amended, modified or supplemented in
accordance with the terms thereof and hereof.
Mortgage Documents see subsection 5.1(a)(xi).
Mortgage Modifications means, with respect to each Mortgage, a
mortgage modification substantially in the form of Exhibit I-2, which
modification shall evidence the continuation of the lien granted pursuant to the
Mortgage, and which shall be (i) substantially in the form of Exhibit I-2,
containing such schedules and including such additional provisions and other
deviations from such exhibit as shall be necessary to conform such document to
applicable local law or as shall be required or customary under local law or
shall otherwise be reasonably required by the Administrative Agent and (ii)
dated as of the date of delivery thereof and (iii) made by the owner of the
Mortgaged Property described therein for the benefit of the Administrative Agent
for the benefit of the secured parties described therein,
26
as mortgagee (grantee or beneficiary), assignee and secured party, as the same
may at any time be amended, modified or supplemented in accordance with the
terms thereof and hereof.
Mortgaged Property means (i) the Real Property designated on
Schedule 1.l(a)(i) as to which the Administrative Agent shall be granted a Lien
pursuant to a Mortgage in accordance with the provisions of this Agreement and
(ii) additional Real Property as to which the Administrative Agent shall be
granted a Lien pursuant to a Mortgage delivered pursuant to Section 7.14.
Multiemployer Plan means a multiemployer plan within the meaning
of Section 400 l(a)(3) of ERISA (i) to which any ERISA Entity is then making or
accruing an obligation to make contributions, (ii) to which any ERISA Entity has
within the preceding five plan years made contributions, including any Person
which ceased to be an ERISA Entity during such five year period, or (iii) with
respect to which a Company could incur liability.
NAIC means the National Association of Insurance Commissioners.
Net Award means the proceeds of any condemnation award or
payment payable in respect of any Taking, less the amount of any expenses
incurred in litigating, arbitrating, compromising or settling any claim arising
out of such taking.
Net Cash Proceeds means
(a) with respect to any Asset Sale, the aggregate cash proceeds
(including cash proceeds received by way of deferred payment of
principal pursuant to a note, installment receivable, liquidation or
payment of any Investment permitted by subsection 8.4(d) reserve for
adjustment or otherwise, but only as and when received) received by
any Company pursuant to such Asset Sale, net of (i) the costs relating
to such Asset Sale (including sales commissions and legal, accounting
and investment banking fees), (ii) taxes, fees, impositions and
recording charges paid or payable as a result thereof (after taking
into account any tax credits or deductions taken in connection with
such Asset Sale and any tax sharing arrangements), (iii) amounts
applied to the repayment of any Indebtedness secured by a Lien on the
asset subject to such Asset Sale (other than the Obligations), (iv)
liabilities of the entity, or relating to the business or assets,
sold, transferred or otherwise disposed of which are retained by any
Company, (v) amounts required to be paid to any Person (other than any
Company) owning a beneficial interest in the assets subject to the
Asset Sale, (vi) appropriate amounts to be provided by any Company as
a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by any Company after such
Asset Sale (but upon reversal of such reserve, any amount so reserved
shall thereupon be Net Cash Proceeds), and (vii) in the case of any
Permitted Receivables Transaction, any escrowed or pledged cash
proceeds which effectively secure, or are required to be maintained as
reserves by the applicable Receivables Co. for, the obligations of any
Company under such Permitted Receivables Transaction;
(b) with respect to any issuance of equity securities or
Indebtedness, the aggregate cash proceeds (including cash proceeds
received by way of deferred payment of principal pursuant to a note,
installment receivable, reserve for adjustment or otherwise, but only
as and when received) received by U.S. Borrower or any of its
Subsidiaries pursuant to such issuance, net of the direct costs
relating to such issuance (including sales and underwriter's
commissions and legal, accounting and investment banking fees) and net
of, in the case of any Permitted Receivables Transaction, any escrowed
or pledged cash proceeds which effectively secure, or are required to
be maintained as reserves by the applicable Receivables Co. for, the
Indebtedness of any Company in respect of such Permitted Receivables
Transaction; and
27
(c) with respect to any Taking, Destruction, or loss of title to
all or a portion of any real or personal property, the Net Award, Net
Proceeds or title insurance proceeds (net of any reasonable costs
incurred to recover such title insurance proceeds), as applicable,
resulting therefrom, to be applied as Net Cash Proceeds under this
Agreement (pursuant to the provisions of the Mortgages, if
applicable); provided that such amounts have not been applied to
restore or rebuild the Mortgaged Property or acquire other real or
personal property as permitted or required by the applicable Mortgage
(if any) and this Agreement.
If any Company receives Net Cash Proceeds in a currency other
than U.S. Dollars, the Dollar Equivalent amount thereof shall be determined as
of the earlier of (i) the date on which such Net Cash Proceeds are required to
be applied to prepayments under Section 2.9 and (ii) the date on which such Net
Cash Proceeds are converted into the currency in which any such prepayment will
be required.
Net Proceeds means the proceeds of any insurance payable in
respect of any Destruction, less the amount of any expenses incurred in
litigating, arbitrating, compromising or settling any claim arising out of such
Destruction.
Non-Bank Certificate -- see subsection 4.1(e)(i).
Notes means the Revolving Notes, the Swing Line Notes and the
Term Notes, and Note means any of them.
Notice of Borrowing means a notice in substantially the form
of Exhibit A.
Notice of Conversion/Continuation means a notice substantially
in the form of Exhibit B.
Obligations means all advances, debts, liabilities, obligations,
guarantees, covenants and duties arising (i) under any Credit Document (ii)
under any Swap Contract if such Swap Contract was entered into with a Lender or
an Affiliate of a Lender, owing by any Loan Party to any Lender, any Agent or
any Indemnified Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, or now existing or
hereafter arising, (iii) in connection with any Permitted Secured Guarantee or
(iv) in respect of cash management services (including treasury, depository,
overdraft, credit or debit card, electronic funds transfer and other cash
management arrangements) provided after the date hereof (regardless of whether
these or similar services were provided prior to the date hereof by the
Administrative Agent, any Lender or any Affiliate of any of them) by the
Administrative Agent, any Lender or any Affiliate of any of them, including
obligations for the payment of fees, interest, charges, expenses, attorneys'
fees and disbursements in connection therewith.
Officers' Certificate shall mean, as applied to any Person, a
certificate executed on behalf of such Person by its Chairman of the Board (if
an officer), if any, or its President or one of its Vice Presidents and by its
Chief Financial Officer or its Treasurer or Assistant Treasurer, in the case of
Foreign Subsidiaries, officers or persons performing comparable functions. Each
Officers' Certificate with respect to the compliance with a condition precedent
or agreement hereunder shall include (i) a statement that the signers have read
such condition or agreement and any definitions or other provisions contained in
this Agreement relating thereto, (ii) a statement that, in the opinion of the
signers, they have made or have caused to be made such examination or
investigation as is reasonably necessary to enable them to express an opinion as
to whether or not such condition or agreement has been complied with, and (iii)
a statement as to whether, in the opinion of the signers, based upon such
examination or investigation, such condition or agreement has been complied
with.
28
Offshore Currency means at any time any Standard Currency, any
Special Currency, any Agreed Alternative Currency and any of them.
Offshore Currency Revolving Loan means any Revolving Loan or
any BA Rate Loan denominated in an Offshore Currency and excludes any Swing Line
Loan denominated in an Offshore Currency.
Offshore Currency Sublimit means the Dollar Equivalent of U.S.
$150,000,000, as the same may be reduced in accordance with the terms of this
Agreement.
Organization Documents means (i) for any corporation, the
certificate or articles of incorporation or association, the bylaws or code of
regulations, any certificate of designation or instrument relating to the rights
of shareholders of such corporation, any shareholder rights agreement or voting
trust agreement, and all applicable resolutions of the Board of Directors (or
any committee thereof) or shareholders of such corporation and all other
documents of a comparable nature, (ii) for any partnership, its partnership
agreement, its certificate of partnership and all other documents of the nature
previously described in clause (i) as to a corporation and (iii) for any other
entity, its organizational or governing documents and all other documents of the
nature previously described in clause (i) as to a corporation.
Original Closing Date means March 2, 2001.
Other Taxes -- see subsection 4.1(g).
Overnight Rate means with respect to any day:
(a) for Australian Dollar Loans:
(i) the Reserve Bank of Australia Official Cash Rate
(expressed as a percentage yield per annum rounded up to the nearest
two decimal places) published at or about 10:10 a.m. (Local Time) on
the Screen under the heading "RBA" or, at the discretion of the Swing
Line Lender or Offshore Currency Lender making Loans to Greif
Australia, the bank ▇▇▇▇ swap rate (expressed as a percentage yield
per annum rounded up to the nearest two decimal places) published at
or about 10:10 a.m. (Local Time); or
(ii) if the rate under clause (i) is not published at the
relevant time, the rate (expressed as a percentage yield per annum)
determined to be the average of the buying rate for Australian Dollar
overnight cash deposits quoted to the applicable Swing Line Lender
from three Reference Banks at or about that time.
(b) for Canadian Dollar Loans, the higher of:
(i) the rate determined by the Administrative Agent as the
rate displayed at or about 10:30 a.m. (Toronto time) on display page
CAPRIME of the Reuters Screen as the prime rate for Canadian Dollar
Loans by Canadian banks to borrowers in Canada; provided, however,
that, if for any reason there is no such rate displayed on the Reuters
Screen on such day or if the basis of calculation of such rate is
changed after the date hereof and in the reasonable judgment of the
Administrative Agent it ceases to reflect each Canadian Lender's cost
of funding to the same extent as the date hereof, then such rate shall
be the per annum floating rate of interest (commercially known as the
"prime rate") established from time to time by three Canadian banks
29
selected by the Administrative Agent as the prime rate they will use to
determine the rates of interest on Canadian Dollar Loans; and
(ii) the sum of (A) BA Rate for a one month period then in
effect plus (B) 0.75% per annum.
(c) for loans made in Euros or GBP the rate of interest
determined by the Administrative Agent or the applicable Swing Line Lender to be
the average (rounded upward to the nearest whole multiple of 1/16 of one percent
per annum, if such average is not such a multiple) of the rates per annum at
which deposits in Euros or GBP, as the case may be, are offered by the principal
office of each of three Reference Banks to major banks in the London interbank
market at 11:00 a.m. (London time) two Business Days before the first day of an
interest period to be agreed by the Borrower and the applicable Swing Line
Lender in an amount substantially equal to the Eurocurrency Rate Loan of each
such Reference Bank for a period equal to such agree interest period.
Participant -- see subsection 11.8(d).
PBGC means the United States Pension Benefit Guaranty
Corporation or any successor thereto.
Pension Plan means an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code or Section 302 of ERISA
and is maintained or contributed to by any ERISA Entity or with respect to which
a Company could incur liability.
Permitted Investors means (i) All Life Foundation, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ Trust, ▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Living Trust, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Charitable Lead Annuity Trust, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Living Trust, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Living
Trust, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ Living Trust, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ Living Trust, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Charitable Remainder Annuity Trust, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Living Trust; (ii) the
spouses, heirs, legatees, descendants and blood relatives to the third degree of
consanguinity of any person in clause (i); (iii) the executors and
administrators of the estate of any such person, and any court appointed
guardian of any person in clause (i) or (ii); (iv) any trust, family partnership
or similar investment entity for the benefit of any such person referred to in
the foregoing clause (i) or (ii) or any other Persons (including for charitable
purposes), so long as one or more members of the group consisting of the
Permitted Investors have the exclusive or a joint right to control the voting
and disposition of securities held by such trust, family partnership or other
investment entity; and (v) any employee or retiree benefit plan sponsored by the
U.S. Borrower.
Permitted Liens -- see Section 8.1.
Permitted Receivables Transaction means any transaction or
series of transactions that may be entered into by the U.S. Borrower or any of
its Subsidiaries in connection with a transaction or series of transactions in
which the U.S. Borrower or any of its Subsidiaries may sell, convey or otherwise
transfer to (i) a Receivables Co. or (ii) to any other Person, or may grant a
security interest in any Accounts or interests therein secured by goods and
services financed thereby (whether such Accounts are then existing or arising in
the future) of the U.S. Borrower and its Subsidiaries, and any assets relating
thereto, including, without limitation, all security or ownership interests in
good or services financed thereby, the proceeds of Accounts, and other assets
which are customarily sold or in respect of which security interest are
customarily granted in connection with securitization transactions involving
such
30
assets; provided, however, that any such transaction shall be consummated (a) on
terms reasonably acceptable to the Required Lenders, and (b) pursuant to
documentation in form and substance reasonably satisfactory to the Required
Lenders, as evidenced by their written approval thereof.
Permitted Secured Guarantee means a Contingent Obligation of
a Loan Party in respect of a line of credit or overdraft facility provided by a
Lender (or an Affiliate thereof) to a Foreign Subsidiary (provided that such
Contingent Obligation is permitted to be incurred by a Loan Party pursuant to
Section 8.8), up to an aggregate Dollar Equivalent amount of all such Contingent
Obligations of all Loan Parties not in excess of $5,000,000 at any one time
outstanding.
Person means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
Plan means an employee benefit plan (as defined in Section 3(3)
of ERISA) that is maintained or contributed to by any ERISA Entity or with
respect to which a Company could incur liability.
Pledged Securities means all the Equity Interests described in
Schedule 1.1(d), and each additional Equity Interest as to which the
Administrative Agent is granted a Lien pursuant to any Security Document.
Prior Liens means those Liens existing as of the date hereof and
set forth on Schedule 8.1(a).
Proceeding means any claim, action, judgment, suit, dispute,
hearing, governmental investigation, arbitration (to the extent binding on any
Company) or proceeding (to the extent known to any Company), including by or
before any Governmental Authority.
Pro Rata Share means, with respect to any Lender, (a) with
respect to the Revolving Facility, the percentage obtained by dividing (i) the
Revolving Commitment of such Lender by (ii) the aggregate Revolving Commitments
of all Lenders (or, at any time after the Revolving Loan Maturity Date, the
percentage obtained by dividing the Aggregate Outstanding Revolving Credit owing
to such Lender by the Aggregate Outstanding Revolving Credit owing to all
Lenders), (b) with respect to Offshore Currency Loans denominated in a
particular currency, the percentage obtained by dividing (i) the Qualified
Offshore Commitment in such currency of such Lender by (ii) the aggregate
Qualified Offshore Commitments denominated in such currency of all Qualified
Offshore Lenders (or, at any time after the Revolving Loan Maturity Date, the
percentage obtained by dividing the aggregate Qualified Offshore Loans in such
currency owing to such Lender by the aggregate Qualified Offshore Loans in such
currency owing to all Lenders) and (c) with respect to the Term Facility, the
percentage obtained by dividing (i) the Term Commitment of such Lender by (ii)
the aggregate Term Commitments of all Lenders (or, at any time after the
Effective Date, the percentage obtained by dividing the principal amount of such
Lender's Term Loans by the aggregate Term Loans of all Lenders).
Qualified Offshore Borrower means in respect of (a) any Canadian
Lender or Canadian Lender that is an L/C Lender, Greif Canada, (b) any
Australian Lender or Australian Lender that is an L/C Lender, Greif Australia,
and (c) any other Qualified Offshore Lender, a Borrower to which such Qualified
Offshore Lender can make Loans or issue Letters of Credit to such Borrower, the
interest payments with respect to which can be made free of withholding taxes.
Qualified Offshore Commitment means, with respect to each
Qualified Offshore Lender, the Commitment of such Qualified Offshore Lender to
make loans to a specified Qualified Offshore
31
Borrower. The Qualified Offshore Commitment of each Qualified Offshore Lender as
of the Effective Date is set forth on Schedule 2.1 hereto. The Qualified
Offshore Commitment is a part of the Revolving Commitments rather than a
separate independent commitment and the Qualified Offshore Commitment is subject
to reduction pursuant to Section 2.8.
Qualified Offshore Lender means in respect of (a) Greif Canada,
a Canadian Lender, (b) Greif Australia, an Australian Lender, and (c) in respect
of each other Borrower, any Lender that (i) agrees, with the approval of the
Administrative Agent and the U.S. Borrower, which approval shall not be
unreasonably withheld, to have a Qualified Offshore Commitment, as agreed to by
the Administrative Agent and the U.S. Borrower and (ii) which can make Loans to
the applicable Borrower, the interest payments with respect to which can be made
free of withholding taxes.
Qualified Offshore Loan means a Dollar Loan, a Standard Currency
Loan, or a Special Currency Loan made by a Qualified Offshore Lender to a
Qualified Offshore Borrower.
Qualified Offshore Outstandings means with respect to any
Qualified Offshore Lender and the related Qualified Offshore Borrower, the
applicable Qualified Offshore Commitments and the applicable Swing Line
Commitments of such Qualified Offshore Lender to such Qualified Offshore
Borrower, at any time (without duplication), an amount equal to the Dollar
Equivalent of the sum of (a) the aggregate principal amount of all Qualified
Offshore Loans (including the face amount of all Banker's Acceptances and the
principal amount of all BA Equivalent Loans outstanding at such time) made by
such Qualified Offshore Lender to such Qualified Offshore Borrower pursuant to
such Qualified Offshore Commitment outstanding at such time, (b) the Effective
Amount of all outstanding L/C Obligations in respect of Letters of Credit issued
to such Qualified Offshore Borrower by such Qualified Offshore Lender, and (c)
the aggregate principal amount of all Swing Line Loans made by such Qualified
Offshore Lender to such Qualified Offshore Borrower pursuant to such Swing Line
Commitment outstanding at such time.
Rating Date means the date on which the Credit Facilities
achieve a rating of not less than BBB- by S&P and not less than Baa3 by ▇▇▇▇▇'▇
for purposes of Section 7.21.
Real Property means all right, title and interest of any Company
(including, without limitation, any leasehold estate) in and to any and
all parcels of or interests in real property owned, leased or operated by any
Company together with, in each case, all buildings, structures, fixtures and
improvements located or erected thereon from time to time, easements,
hereditaments and appurtenances incident, belonging or pertaining thereto.
Real Property Disclosure Requirements means any federal, state,
local or foreign laws requiring notification of the buyer or mortgagee of real
property, or notification, registration or filing to or with any Governmental
Authority, prior to the sale or mortgage of any real property or transfer of
control of an establishment, of the actual or threatened presence or Release
into the environment, or the use, disposal or handling of Hazardous Materials
on, at, under or near the real property to be sold or mortgaged or the
establishment of which control is to be transferred.
Receivables Co. means any special purpose Wholly-Owned
Subsidiary of U.S. Borrower organized after the Effective Date (or such other
Person reasonably agreed to by the Required Lenders) that purchases Accounts
generated by any Company in connection with a Permitted Receivables Transaction.
Receivables Commitment Reduction Amount means an amount equal to
the product of (x) the amount of the Indebtedness incurred pursuant to a
Permitted Receivables Transaction which is
32
required to be applied to prepay the Revolving Loans and BA Rate Loans in
accordance with subsection 2.9(f), multiplied by, (y) 66 2/3%.
Reference Bank means any commercial bank having a combined
capital and surplus of at least U.S.$100.0 million and that is authorized to
carry out the business of banking in the jurisdiction of the currency of the
loan to be made, as reasonably selected by the Administrative Agent, or in the
case of Swing Line Loans, by the applicable Swing Line Lender.
Refinanced Indebtedness means the Indebtedness of the Loan
Parties outstanding as of the Effective Date after giving effect to the
application of the proceeds of the Senior Subordinated Notes and immediately
before giving effect to the application of the proceeds of the Facilities in
connection with the Refinancing and as set forth on Schedule 1.1(e).
Refinancing means the repayment by the Loan Parties of the
Refinanced Indebtedness from the proceeds of the U.S. Borrower's Senior
Subordinated Notes and the proceeds of certain Loans made to the U.S. Borrower.
Register -- see Section 7.18.
Reimbursement Obligations shall mean, at any time, the
obligations of a Borrower then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse amounts paid by
the applicable L/C Lender in respect of any drawings under a Letter of Credit
issued for the account of such Borrower.
Release means any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the indoor or outdoor environment.
Replacement Lender -- see Section 4.8.
Reports -- see subsection 6.12(b).
Required Lenders means (a) at any time prior to the Revolving
Loan Maturity Date, Lenders then holding more than 50% of the sum of (i) the
then aggregate Revolving Commitments of the Lenders, plus (ii) the then
aggregate unpaid Dollar Equivalent principal amount of the Term Loans, and (b)
otherwise, Lenders then holding more than 50% of the sum of (i) the then
aggregate unpaid Dollar Equivalent principal amount of the Term Loans, plus (ii)
the then Aggregate Outstanding Revolving Credit. For purposes of determining
whether the Required Lenders have approved any amendment, waiver or consent or
taken any other action hereunder, the Dollar Equivalent amount of all Offshore
Currency Revolving Loans shall be calculated on the date immediately preceding
the date such amendment, waiver or consent is to become effective or such action
is to be taken. Notwithstanding the foregoing, solely for the purposes of this
definition, each participation purchased by a Revolving Lender pursuant to
Section 2.7 or Section 2.22, shall constitute a Revolving Loan in an amount
equal to such participation and the applicable Qualified Offshore Lender's
portion of the Aggregate Outstanding Revolving Credit shall be reduced by the
amount of such participation.
Required Revolving Lenders means (a) at any time prior to the
Revolving Loan Maturity Date, Revolving Lenders then holding more than 50% of
the aggregate Revolving Commitments of all Revolving Lenders, and (b) otherwise,
Revolving Lenders then holding more than 50% of the then Aggregate Outstanding
Revolving Credit. For purposes of determining whether the Required Revolving
Lenders have approved any amendment, waiver or consent or taken any other action
hereunder, the Dollar Equivalent amount of all Offshore Currency Revolving Loans
shall be calculated on the date immediately
33
preceding the date such amendment, waiver or consent is to become effective or
such action is to be taken. Notwithstanding the foregoing, solely for the
purposes of this definition, each participation purchased by a Revolving Lender
pursuant to Section 2.7 or Section 2.22, shall constitute a Revolving Loan in an
amount equal to such participation and the applicable Qualified Offshore
Lender's portion of the Aggregate Outstanding Revolving Credit shall be reduced
by the amount of such participation.
Required Term Lenders means (i) at any time prior to the
Effective Date, Lenders holding more than 50% of the aggregate amount of the
Term Commitments, and (ii) at any time after the Effective Date, Lenders holding
more than 50% of the aggregate amount of the outstanding Term Loans.
Requirement of Law means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
Responsible Officer means the chief executive officer, the chief
financial officer, the president or any vice-president of the Applicable
Borrower, or any other officer having substantially the same authority and
responsibility; or, with respect to compliance with financial covenants, the
chief financial officer, the treasurer or controller of the Applicable Borrower,
or any other officer having substantially the same authority and responsibility.
Restoration has the meaning assigned to that term in each
Mortgage.
Restricted Payment -- see Section 8.13.
Revolving Commitment means, with respect to each Revolving
Lender, the commitment of such Revolving Lender to make Revolving Loans and
acquire interests in the Aggregate Outstanding Revolving Credit in the aggregate
principal amount outstanding not to exceed the amount set forth opposite such
Revolving Credit Lender's name on Schedule 2.1 under the caption "Revolving
Commitment," as amended to reflect each Assignment and Acceptance executed by
such Revolving Lender and as such amount may be reduced pursuant to this
Agreement.
Revolving Facility means the Revolving Commitments and the
provisions herein related to the Revolving Loans, BA Rate Loans, Swing Line
Loans and Letters of Credit in an aggregate principal amount equal to the Dollar
Equivalent of U.S. $250,000,000 on the Effective Date.
Revolving Lender means a lender having a Revolving Commitment or
holding a Revolving Loan, a BA Rate Loan, or an L/C Advance.
Revolving Loan means a Dollar Loan, a Standard Currency Loan
and/or a Special Currency Loan; provided that BA Rate Loans and Swing Line Loans
shall not be Revolving Loans.
Revolving Loan Maturity Date means the earliest to occur of (a)
February 28, 2006, (b) the date of termination of the Revolving Commitment
pursuant to Section 2.8, and (d) the date on which the Obligations become due
and payable pursuant to Section 9.2.
Revolving Note or Revolving Notes -- see subsection 2.2(d).
RPIVL - see the introduction to this Agreement.
Same Day Funds means (i) with respect to disbursements and
payments in U.S. Dollars, immediately available funds, and (ii) with respect to
disbursements and payments in an Offshore
34
Currency, same day or other funds as may be determined by the Administrative
Agent to be customary in the place of disbursement or payment for the settlement
of international banking transactions in the relevant Offshore Currency.
Screen means, (a) with respect to U.S. Dollars, Dow ▇▇▇▇▇
Markets Telerate Page 3750, (b) with respect to Euros, the Dow ▇▇▇▇▇ Markets
Telerate Page 248, (c) with respect to GBP, the Dow ▇▇▇▇▇ Markets Telerate Page
3750 and (d) with respect to any Australian Dollars, the Reuters Screen (and,
with respect to the Overnight Rate, page 27 thereof), or, in the event the
applicable rate does not appear on the Dow ▇▇▇▇▇ Market or Reuters screen, as
applicable, such other comparable publicly available service as may be selected
by the Administrative Agent.
SEC means the United States Securities and Exchange Commission,
or any Governmental Authority succeeding to any of its principal functions.
Security Documents means each of the Domestic Security
Documents, the Foreign Security Documents, all UCC or other financing statements
or instruments of perfection required by this Agreement or any other Credit
Document to be filed and any other documents utilized to pledge to the
Administrative Agent, for the benefit of the secured parties contemplated
thereby, any other property as collateral for the Obligations.
Self Owned Dutch Stock means the 296, 825 stock of RPIVL held in
its own share capital representing approximately 69% of the Equity Interests of
RPIVL.
Senior Subordinated Debt Documents means the Senior Subordinated
Note Indenture, the Senior Subordinated Notes and all agreements and instruments
executed in connection therewith at any time as set forth on Schedule 1.1(g).
Senior Subordinated Notes means (a) the Senior Subordinated
Notes issued by the U.S. Borrower in the aggregate original principal amount of
$250,000,000 due August 1, 2012 issued pursuant to the Senior Subordinated Notes
Indenture and (b) all Senior Subordinated Notes of the U.S. Borrower issued in
exchange for the Senior Subordinated Notes on terms substantially identical to
the terms of the Senior Subordinated Notes, in each such case as such aggregate
original principal amount may be reduced by any repayment or prepayment of the
principal amount thereof.
Senior Subordinated Note Indenture means the indenture dated as
of July 31, 2002, by and among ▇▇▇▇▇ Bros. Corporation, the Subsidiary
Guarantors (as defined therein), and ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association, a national banking association, as trustee.
S&P means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., and its successors.
Significant Subsidiary means, at any date of determination, (a)
any Subsidiary that, together with its Subsidiaries (i) for the most recent
Fiscal Quarter accounted for more than 5.0% of the consolidated revenues of U.S.
Borrower and its Subsidiaries or (ii) as of the end of such Fiscal Quarter,
owned more than 5.0% of the consolidated assets of U.S. Borrower and its
Subsidiaries, all as set forth on the consolidated financial statements of U.S.
Borrower for such quarter prepared in conformity with GAAP, (b) any Subsidiary
which, when aggregated with all other Subsidiaries that are not otherwise
Significant Subsidiaries and as to which any event described in clause (e), (f)
or (g) of Section 9.1 has occurred, would constitute a Significant Subsidiary
under clause (a) of this definition and (c) any Subsidiary which is a
"Significant Subsidiary" for purposes of the Senior Subordinated Notes
Indenture.
35
Solvent and Solvency means, for any Person on a particular date,
that on such date (a) the fair value and present fair saleable value of the
Property of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts and liabilities beyond such
Person's ability to pay as such debts and liabilities mature, (d) such Person is
not engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's Property would constitute an
unreasonably small capital and (e) such Person is able to pay its debts as they
become due and payable. In computing the amount of contingent or unliquidated
liabilities at any time, such liabilities shall be computed at the amount that,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
Soterra LLC means Soterra LLC, a Delaware limited liability
company and a Wholly-Owned Subsidiary of U.S. Borrower.
Soterra Disposition means the sale or other disposition of all
or substantially all of the assets and properties of Soterra LLC or the sale or
other disposition of all or substantially all of the Equity Interests (whether
by way of dividend to the shareholders of U.S. Borrower, the sale of the Equity
Interests of Soterra LLC or the sale of all or substantially all of the assets
and properties of Soterra LLC in one or more series of transactions).
Soterra Guarantee means that certain Guarantee, dated as of
March 2, 2001, by Soterra LLC in favor of the Administrative Agent (as successor
in interest to BNS) as amended by the Soterra Guarantee Amendment.
Soterra Guarantee Amendment means that certain Amendment and
Ratification, substantially in the form of Exhibit M entered into and delivered
by Soterra LLC.
Special Currency means Canadian Dollars, Australian Dollars and,
if so designated by the Administrative Agent, any Agreed Alternative Currency.
Special Currency Loan has the meaning specified in Section
2.1(a); provided that BA Rate Loans shall be Special Currency Loans.
Specified Company and Specified Companies -- see subsection
9.1(e).
Spot Rate means (a) with respect to an Offshore Currency, the
equivalent of such amount in U.S. Dollars determined using the rate of exchange
quoted by Citibank in New York, New York at 11:00 a.m. (New York time) on the
date of determination to prime banks in New York for the spot purchase in the
New York foreign exchange market of such amount of U.S. Dollars with such
Offshore Currency and (b) with respect to any other currency, the equivalent of
such amount in U.S. Dollars as determined by the Administrative Agent using any
method of determination it deems reasonably appropriate.
Standard Currency means Euros, GBP and any other Applicable
Currency in which all Revolving Lenders agree to make Loans, but excluding any
Special Currencies and U.S. Dollars.
Standard Currency Loan has the meaning specified in Section
2.1(a).
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Subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture, business trust or other
business entity of which more than 50% of the voting stock, membership interests
or other Equity Interests are owned or controlled directly or indirectly by such
Person, or one or more of the Subsidiaries of such Person, or a combination
thereof. Notwithstanding the foregoing, any joint venture or other entity which
is not majority-owned by, but is controlled (by contract or otherwise) by, any
Company shall be deemed to be a Subsidiary of U.S. Borrower but any Joint
Venture shall not be deemed to be a Subsidiary of the U.S. Borrower. Unless the
context otherwise clearly requires, references herein to a "Subsidiary" refer to
a Subsidiary of U.S. Borrower. In no event shall the term "Subsidiary" include
CorrChoice or any other Person unless and until its financial results are
required to be consolidated with the U.S. Borrower's financial results under
GAAP.
Supermajority Term Lenders means (i) at any time prior to the
Effective Date, Lenders holding more than 66-2/3% of the aggregate amount of the
Term Commitments which would be adversely affected by any amendment, waiver or
consent contemplated by clause (G)(y) of the proviso to subsection 11.l(a)(v),
and (ii) at any time after the Effective Date, Lenders holding more than 66-2/3%
of the aggregate amount of the outstanding Term Loans of the Lenders of the Term
Loan Facility which would be adversely affected by any amendment, waiver or
consent contemplated by clause (G)(y) of the proviso to subsection 11.l(a)(v).
Substitute Lender -- see Section 2.24.
Survey means a survey of any Mortgaged Property (and all
improvements thereon): (i) prepared by a surveyor or engineer licensed to
perform surveys in the state, province or country where such Mortgaged Property
is located, (ii) dated (or redated) not earlier than six months prior to the
original date of delivery thereof unless there shall have occurred within the
six months prior to such date (or such earlier date as shall be reasonably
acceptable to the Administrative Agent) of delivery any material exterior
construction on the site of such Mortgaged Property, in which event such survey
shall be dated (or redated) after the completion of such construction or if such
construction shall not have been completed as of such date of delivery, not
earlier than 20 days prior to such date of delivery, (iii) certified by the
surveyor, as to any survey delivered after the Effective Date, (in a manner
reasonably acceptable to the Administrative Agent) to the Administrative Agent
and the Title Company, and (iv) in the case of each Mortgaged Property,
complying in all material respects with the minimum detail requirements of the
American Land Title Association as such requirements are in effect on the date
of preparation of such survey; provided, however, that such survey is in a form
sufficient for the Title Company to remove all standard survey exceptions from
the title insurance policy (or commitment) and issue a survey and comprehensive
endorsement with respect to such Mortgaged Property.
Swap Contract means any agreement (including any master
agreement and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward rate
agreement, commodity swap, commodity option, equity or equity index swap or
option, bond option, interest rate option, foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or any other, similar agreement (including
any option to enter into any of the foregoing).
Swing Line Commitment means the commitment of any Revolving
Lender to make Swing Line Loans hereunder in such Dollar Equivalent Amounts for
each Applicable Currency and to the specified Borrowers as set forth opposite
such Swing Line Lender's name on Schedule 2.18 as the same may be amended from
time to time; provided, however, the aggregate Dollar Equivalent principal
amount of all such Swing Line Loans at any one time outstanding shall not exceed
on any date an amount equal to $75,000,000 (notwithstanding that the aggregate
commitments of the Swing Line Lenders set forth on
37
Schedule 2.18 may exceed such amount). The Swing Line Commitment is a part of
the Revolving Commitments rather than a separate independent commitment and that
the Swing Line Commitment is subject to reduction pursuant to Section 2.8.
Swing Line Lender means any Revolving Lender that has a Swing Line
Commitment.
Swing Line Loan -- see Section 2.18.
Swing Line Note or Swing Line Notes -- see subsection 2.2(d).
Swing Line Outstanding means as of any time of determination, the
Dollar Equivalent of all Swing Line Loans outstanding at such time.
Swing Line Reserve means the Dollar Equivalent of the aggregate amount
requested by the U.S. Borrower to be the "Swing Line Reserve" on the most recent
Swing Line Reserve Notice provided to the Administrative Agent and each Swing
Line Lender by the U.S. Borrower pursuant to Section 2.19.
Swing Line Reserve Notice - see Section 2.19.
Syndication Agent -- see the introduction to this Agreement.
Taking means any taking of any real or personal property of any
Company or any portion thereof, in or by condemnation or other eminent domain
proceedings pursuant to any Requirement of Law, general or special, or by reason
of the temporary requisition of the use of the Collateral or any portion
thereof, by any Governmental Authority, civil or military.
Tax Returns means all returns, declarations, reports, estimates,
information returns, statements and forms or other documents (including any
related or supporting information) required to be filed in respect of any Taxes.
Taxes means (i) any and all present or future income, stamp,
documentary, excise, property or other taxes, levies, imposts, duties,
deductions, charges, fees or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, and all
liabilities with respect thereto (including any interest, penalties, additions
to tax and expenses), including any present or future taxes or similar levies
which arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other
Credit Document and (ii) all transferee, successor, joint and several or
contractual liability (including, without limitation, liability pursuant to
Treas. Reg. (S) 1.1502-6 (or any similar state, local or foreign provisions)) in
respect of any items described in clause (i).
Term Commitment means, with respect to any Lender, the commitment of
such Lender to make Term Loans to the U.S. Borrower in the aggregate principal
amount outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 2.1 under the caption "Term Commitment" as amended to reflect
each Assignment and Acceptance executed by such Lender and as such amount may be
reduced pursuant to this Agreement.
Term Facility means the term loan facility in an aggregate principal
amount of $300,000,000.
Term Lender means a lender having a Term Commitment or a Term Loan.
38
Term Loan -- see subsection 2.l(b).
Term Loan Maturity means the earlier to occur of (i) August 23, 2009
or (ii) the date on which the obligations become due and payable pursuant to
Section 9.2.
Term Note or Term Notes -- see subsection 2.2(d).
Termination Date means the earlier to occur of (i) the date 30
calendar days prior to the Revolving Loan Maturity Date and (ii) the date on
which the Revolving Commitments are terminated or reduced to zero pursuant to
Section 2.8 or Section 9.2.
Test Date means, for any Financial Maintenance Covenant, the last day
of each Fiscal Quarter included within any period set forth in the table for
such Financial Maintenance Covenant.
Test Period means each period of four full consecutive Fiscal Quarters
most recently ended and for which financial statements are or are required to be
available.
Timber means timber grown on Timber Lands or the sale, disposition or
granting of rights to harvest such timber.
Timber Assets means collectively, the Timber and the Timber Lands.
Timber Lands means (i) the real property on which Timber is grown and
which is described on Schedule 1.1(f), (ii) any timber lands purchased solely
using the proceeds from the sale of Timber or the disposition of other Timber
Lands or (iii) any timber lands acquired in exchange for such Timber Lands.
Timber Sale Gains means, for any period, gains properly classified as
"Gain on Timber Sales" in the audited financial statements of the Companies for
the Fiscal Year then ended or in the unaudited financial statements for the
Fiscal Quarter then ended.
Title Company means Chicago Title Insurance Company or such other
title insurance or abstract company as shall be retained by U.S. Borrower and
reasonably acceptable to the Administrative Agent.
Total Assets means at any date total assets of U.S. Borrower as shown
in the most recent audited financials of U.S. Borrower prepared in conformity
with GAAP.
Total Leverage Ratio means, as of the last day of any Fiscal Quarter,
the ratio of: (a) the sum of (i) total consolidated Indebtedness of U.S.
Borrower and the Subsidiaries less Cash and Cash Equivalents as of such day,
plus (ii) without duplication of amounts included in clause (i), an amount equal
to the aggregate cash proceeds received by any Company from an unrelated third
party (net of amounts repaid) from the financing pursuant to any Permitted
Receivables Transaction which are outstanding at such Test Date, to (b) EBITDA
for the Test Period ending on such day. Calculations under clause (i) or under
clause (ii) of this definition shall be reduced by any escrowed or pledged cash
proceeds which effectively secure the Indebtedness or the obligations of any
Company under such Permitted Receivables Transaction to the extent not already
deducted in the calculation of total consolidated Indebtedness.
39
Transaction Documents means the Senior Subordinated Debt Documents and
each other document (other than the Credit Documents) relating to the
Transactions including all appendices, annexes, schedules, attachments and
exhibits to any such document.
Transactions means the making of the Loans hereunder, the Issuance of
the Senior Subordinated Notes and the Refinancing and the other transactions
contemplated hereby.
Trigger Date means the first date after the Effective Date on which
U.S. Borrower delivers financial statements pursuant to Section 7.1.
Type of Loan means an ABR Loan, a Loan made or maintained at the
Overnight Rate or a Eurocurrency Rate Loan, as the case may be.
UCC means the Uniform Commercial Code as in effect in the applicable
jurisdiction.
U.K. Qualifying Lender means:
(a) a bank as defined in Section 840A of the UK Income and
Corporation Taxes Act 1988 (the "UK Taxes Act") for the purposes of Section 349
of the UK Taxes Act which is within the charge to United Kingdom corporation tax
in respect of payments of interest received by it under this Agreement and which
is beneficially entitled to such interest; or
(b) bank, financial institution, corporation or other person to whom
Greif UK may make payments under the Credit Documents without any deduction or
withholding for or on account of United Kingdom taxes whether by reason of an
applicable double taxation treaty between the United Kingdom and the country in
which that bank, financial institution, corporation or other person is, or is
treated as, resident or otherwise.
Unfunded Pension Liability means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA over the fair market
value of such Plan's assets (including all accrued contributions required to be
made to the Plan in respect of the applicable plan year), determined in
accordance with the actuarial assumptions used for funding such Plan pursuant to
Section 412 of the Code for the applicable plan year.
United Kingdom Pounds and the symbol GBP each mean the lawful money of
the United Kingdom.
Unmatured Event of Default means any event or circumstance which, with
the giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
U.S. Borrower-- see the introduction to this Agreement.
U.S. Borrower Guarantee and Security Agreement means the Amended and
Restated U.S. Borrower Guarantee and Security Agreement substantially in the
form of Exhibit E entered into and delivered by U.S. Borrower.
U.S. Borrower Security Agreement Collateral means all "Pledged
Collateral" as defined in the U.S. Borrower Guarantee and Security Agreement.
40
U.S. Dollar Eurocurrency Rate Loan means any Eurocurrency Rate Loan
denominated in U.S. Dollars.
U.S. Dollars and U.S. $ each mean lawful money of the United States.
U.S. Federal Funds Rate means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing reasonably selected by it.
U.S. Holdco means Greif US Holdings Inc., a Nevada corporation and a
Wholly-Owned Subsidiary of U.S. Borrower.
Wholly-Owned Subsidiary means, for any Person, any corporation in
which (other than directors' qualifying shares or other shareholdings required
by law) 100% of the Equity Interests of each class having ordinary voting power,
and 100% of the capital stock of each other class, at the time as of which any
determination is being made, are owned, beneficially and of record, by such
Person, or by one or more of the other Wholly-Owned Subsidiaries, or a
combination thereof.
Withdrawal Liability means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
1.2. Other Interpretive Provisions. (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined terms.
(a) The words "hereof," "herein," "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Article, Schedule and Exhibit references are
to this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreement, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding," and
the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Credit Document, and (ii) references to any statute or
regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
41
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Credit Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(g) This Agreement and the other Credit Documents are the result of
negotiations among and have been reviewed by counsel to the Agents, the
Borrowers and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or any Agent merely
because of a Agent's or Lender's involvement in their preparation.
(h) The words "properties" or "assets" refer to any right, title or
interest in, to or under property or assets of any kind whatsoever, whether
real, personal or mixed, and whether tangible or intangible and including any
Equity Interests of any Person.
1.3. Accounting Principles. Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied; provided, however, that if U.S.
Borrower notifies the Administrative Agent that the Borrowers wish to amend any
covenant in Article VIII to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies U.S.
Borrower that the Required Lenders wish to amend Article VIII for such purpose),
then U.S. Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner reasonably satisfactory to U.S. Borrower and the Required Lenders.
1.4. Currency Equivalents Generally. For all purposes of any Credit
Extension made pursuant to this Agreement (but not for purposes of the
preparation of any financial statements delivered pursuant hereto), the
equivalent in any Offshore Currency or other currency of an amount in U.S.
Dollars, and the equivalent in U.S. Dollars of an amount in any Offshore
Currency or other currency, shall be determined at the Spot Rate. For purposes
of determining compliance with any restriction limited to a Dollar Equivalent
amount in this Agreement (other than to the extent relating to any Credit
Extension under this Agreement), the Dollar Equivalent amount of transactions
occurring prior to the date of determination shall be calculated based on the
Spot Rate on the date of determination; provided, however, that if such Dollar
Equivalent amount shall be exceeded, such restriction shall nonetheless be
deemed not violated if such Dollar Equivalent amount of such transactions was
calculated based on the relevant currency exchange rate in effect on the date of
each such transaction.
1.5. Commitments and Outstandings of Qualified Offshore Lenders.
(a) For the purposes of calculating the Revolving Commitments of any
Lender (the "Principal Lender") in respect of which an Affiliate or branch is a
Qualified Offshore Lender, the Commitments of the Qualified Offshore Lender
shall be considered as the Commitments of the Principal Lender and shall not be
counted in duplicate.
(b) Other than with respect to the making and repayment of Qualified
Offshore Loans and the payment of fees and interest in respect thereof, without
duplication, and unless the context demands otherwise, each Qualified Offshore
Lender shall be deemed to be the same Revolving Lender as the Principal Lender
to which it is affiliated.
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ARTICLE II
THE CREDITS
2.1. Amounts and Terms of Commitments and Loans.
(a) Revolving Loans. On the terms and subject to the conditions
contained in this Agreement, each Revolving Lender severally agrees to make
loans in U.S. Dollars (each a "Dollar Loan") and in any Standard Currency (each
a "Standard Currency Loan") to the U.S. Borrower, the Foreign Holdco, RPIVL,
Greif Australia and ▇▇▇▇▇ U.K., each Canadian Lender agrees to make Canadian
Dollar Loans and Dollar Loans to Greif Canada, each Australian Lender agrees to
make Australian Dollar Loans to Greif Australia, and each other Qualified
Offshore Lender agrees to make loans in the applicable Special Currency
("Special Currency Loans") to each applicable Qualified Offshore Borrower, in
each case from time to time on any Business Day during the period from the date
hereof until the Revolving Loan Maturity Date in an aggregate Dollar Equivalent
principal amount at any time outstanding for all Revolving Loans together with
all Swing Line Loans by such Lender not to exceed such Revolving Lender's
Revolving Commitment; provided, however, that at no time shall:
(i) any Lender be obligated to make a Revolving Loan in
excess of (A) such Lender's Pro Rata Share of the Aggregate Available
Revolving Credit, or (B) such Lender's Pro Rata Share of the Available
Offshore Currency Credit, or
(ii) any Qualified Offshore Lender be obligated to make any
Loan such that after giving effect thereto, such Lender's Qualified
Offshore Outstandings with respect to such Borrower (or Borrowers, as
the case may be) exceed such Lender's Qualified Offshore Commitment
with respect to such Borrower (or Borrowers, as the case may be);
(iii) any Lender be obligated to make a Revolving Loan if
after giving effect thereto (A) the Aggregate Offshore Currency
Outstanding would exceed the Offshore Currency Sublimit in effect at
such time or (B) the Aggregate Foreign Borrower Credit would exceed the
Foreign Borrower Sublimit in effect at such time.
Within the limits set forth in this subsection 2.1(a) amounts of Revolving Loans
repaid may be reborrowed under this subsection 2.1(a).
(b) Term Loan Commitments. On the terms and subject to the
conditions contained in this Agreement, each Term Loan Lender severally agrees
to make loans (each a "Term Loan") in U.S. Dollars to the U.S. Borrower on the
Effective Date, in an amount not to exceed such Lender's Term Loan Commitment.
Amounts of Term Loans repaid may not be reborrowed.
(c)
(i) On the Effective Date, the outstanding aggregate
amount of Existing Revolving Loans and/or participations in Letters of
Credits shall be amended, combined and continued, and such amended,
combined and continued amount shall be, and shall be deemed to be, the
Revolving Loans and/or participations in Letters of Credits made by the
Revolving Lenders hereunder on the Effective Date.
(ii) Each Revolving Lender severally agrees, on the terms
and conditions set forth herein, to purchase and assume on the
Effective Date, and CNAI agrees to assign, an undivided interest in the
rights and obligations of CNAI in an amount equal to (as to each such
43
Lender) such Lender's Pro Rata Share of the aggregate principal amount
of such Existing Revolving Loans owing by the Borrowers. In furtherance
of the foregoing, on the Effective Date, each Revolving Lender shall,
in accordance with Section 2.2, make a Revolving Loan in an amount
equal to such Lender's Pro Rata Share of the sum of (a) the Existing
Revolving Loans then owing by the Borrowers and (b) the Revolving Loans
requested by the Borrowers to be made to them on the Effective Date
2.2. Evidence of Debt; Notes.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Applicable Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(b) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount and currency of each Loan made hereunder, the class and
Type thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Applicable Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from any Borrower, whether such
sum constitutes principal or interest (and the Type of Loan to which it
applies), fees, expenses and other amounts due under the Credit Documents for
the account of the Lenders and each Lender's share thereof.
(c) Subject to the provisions of Section 7.18, the entries made in the
accounts maintained pursuant to subsection 2.2(a) or subsection 2.2(b) shall be
prima facie evidence of the existence and amounts of the obligations recorded
therein; provided, however, that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Applicable Borrower to repay the Loans in
accordance with the terms of this Agreement.
(d) Each Applicable Borrower's obligation to pay the principal of, and
interest on, all the Loans made to it by each Lender shall, if requested by any
Lender, be evidenced (i) if a Term Loan, by a promissory note substantially in
the form of Exhibit H-1, with blanks appropriately completed (each, a "Term
Note" and, collectively, the "Term Notes"), (ii) if a Revolving Loan or a BA
Rate Loan, by a promissory note substantially in the form of Exhibit H-2, with
blanks appropriately completed (each, a "Revolving Note" and, collectively, the
"Revolving Notes"), and (iii) if a Swing Line Loan, by a promissory note
substantially in the form of Exhibit H-3, with blanks appropriately completed
(each, a "Swing Line Note" and, collectively, the "Swing Line Notes").
2.3. Procedure for Borrowings.
(a) Each Borrowing (other than of a Swing Line Loan) shall be made upon
the Applicable Borrower's irrevocable written notice (or telephonic notice
promptly confirmed in writing) delivered to the Administrative Agent, in the
form of a Notice of Borrowing, which notice must be received by the
Administrative Agent, as follows (but in each case, not more than five Business
Days prior to the requested Borrowing Date) (i) prior to 11:00 a.m. (Local
Time), three Business Days prior to the requested Borrowing Date, in the case of
all Loans other than ABR Loans or Loans made at the Overnight Rate; and (ii)
prior to 11:00 am. (New York City time), one Business Day prior to the requested
Borrowing Date, in the case of ABR Loans or Loans made at the Overnight Rate;
(b) Each such Notice of Borrowing shall set forth the following:
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(i) the amount of the Borrowing, which shall be in an aggregate
amount not less than the Minimum Loan;
(ii) the requested Borrowing Date, which shall be a Business Day;
(iii) the Type of Loans comprising the Borrowing;
(iv) in the case of a Borrowing of all Loans other than ABR Loans
or Loans made at the Overnight Rate, the duration of the Interest Period
therefor; and
(v) the Applicable Currency.
(c) The Dollar Equivalent amount of any Borrowing of Offshore Currency
Revolving Loans will be determined by the Administrative Agent for such
Borrowing on the Computation Date therefor in accordance with subsection 2.5(a).
Upon receipt of a Notice of Borrowing, the Administrative Agent will promptly
notify each Lender thereof and of the amount of such Lender's Pro Rata Share (if
any) of the Borrowing, and the Type. In the case of a Borrowing of Offshore
Currency Revolving Loans, such notice will provide the approximate amount of
each Lender's Pro Rata Share of the Borrowing, and the Administrative Agent
will, upon the determination of the Dollar Equivalent amount of the Borrowing as
specified in the Notice of Borrowing, promptly notify each Lender of the exact
amount of such Lender's Pro Rata Share of the Borrowing.
(d) With respect to Dollar Loans and Standard Currency Loans, each
Lender will make the amount of its Pro Rata Share of each Borrowing available to
the Administrative Agent for the account of the Applicable Borrower at the
Agent's Payment Office on the Borrowing Date requested by such Applicable
Borrower in Same Day Funds and in the requested currency by 11:00 a.m. (Local
Time). The proceeds of all such Loans will promptly, but in any event, within
one Business Day be made available to the Applicable Borrower by the
Administrative Agent at the Agent's Payment Office by crediting the account of
the Applicable Borrower where requested by the Applicable Borrower with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
(e) With respect to Qualified Offshore Loans, (a) each Qualified
Offshore Lender that has a Qualified Offshore Commitment with respect to such
Qualified Offshore Borrower will make the amount of its Pro Rata Share of such
Borrowing available to the Administrative Agent for the account of the
Applicable Borrower at the Agent's Payment Office on the Borrowing Date
requested by such Applicable Borrower in Same Day Funds and in the requested
currency by 11:00 a.m. (Local Time). The proceeds of all Qualified Offshore
Loans, as the case may be, will promptly, but in any event, within one Business
Day be made available to the Applicable Borrower by the Administrative Agent at
the Agent's Payment Office by crediting the account of the Applicable Borrower
where requested by the Applicable Borrower with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
(f) After giving effect to any Borrowing, there may not be more than
six different Interest Periods in effect for all Term Loans and eight different
Interest Periods in effect for all Revolving Loans.
2.4. Conversion and Continuation Elections for Borrowings.
(a) Any Borrower may, upon irrevocable written notice to the
Administrative Agent in accordance with subsection 2.4(b) with respect to Loans
made to it:
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(i) elect, as of any Business Day in the case of ABR Loans or
Loans made at the Overnight Rate (other than Swing Line Loans), or as
of the last day of the applicable Interest Period, in the case of U.S.
Dollar Eurocurrency Rate Loans, to convert any such Loans (or any part
thereof in an amount not less than the Minimum Loan for Dollar Loans)
into Dollar Loans of the other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue for an additional Interest Period and in the same
currency any Loans having Interest Periods expiring on such day (or any
part thereof in an amount not less than the Minimum Loan for the
Applicable Currency);
provided, however, that if at any time the aggregate amount of any Eurocurrency
Rate Loans or Offshore Currency Revolving Loan in respect of any Borrowing is
reduced, by payment, prepayment or conversion of part thereof, to be less than
the Minimum Loan for the Applicable Currency, such Loans shall automatically
convert into ABR Loans (and thus to U.S. Dollars), and on and after such date
the right of the Applicable Borrower to continue such Loans as, and convert such
Loans into, Eurocurrency Rate Loans or Offshore Currency Revolving Loan shall
terminate unless and until such Loans are increased, by additional Borrowings or
Conversions, to be at least the Minimum Loan for the Applicable Currency.
(b) The Applicable Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than (i) 11:00 a.m. (Local Time), three Business Days prior to the
Conversion/Continuation Date, if the Standard Currency Loans or Special Currency
Loans (other than Canadian Dollar Loans), as the case may be, are to be
continued as Offshore Currency Revolving Loans; (ii) 11:00 a.m. (Local Time),
three Business Days prior to the Conversion/Continuation Date, if the Dollar
Loans are to be converted into or continued as U.S. Dollar Eurocurrency Rate
Loans; and (iii) 11:00 a.m. (Local Time), one Business Day prior to the
Conversion/Continuation Date, if the Dollar Loans are to be converted into ABR
Loans, and in each case not more than five Business Days prior to the
Conversion/Continuation Date, specifying: (A) the proposed
Conversion/Continuation Date; (B) the aggregate amount of the Applicable
Currency and Type of Loans to be converted or continued; (C) the Type of Loans
resulting from the proposed conversion or continuation; and (D) other than in
the case of a conversion into ABR Loans, the duration of the requested Interest
Period.
(c) Each Notice of Conversion/Continuation shall be irrevocable, except
as otherwise provided in this Agreement.
(d) If upon the expiration of any Interest Period applicable to U.S.
Dollar Eurocurrency Rate Loans, the Applicable Borrower has failed to select
timely a new Interest Period with respect to such U.S. Dollar Eurocurrency Rate
Loans, the Applicable Borrower shall be deemed to have elected to convert such
U.S. Dollar Eurocurrency Rate Loans into ABR Loans effective as of the
expiration date of such Interest Period. If the Applicable Borrower has failed
to select a new Interest Period with respect to Offshore Currency Revolving
Loans by the applicable time on the third Business Day in advance of the
expiration date of the current Interest Period applicable thereto as provided in
subsection 2.4(b), the Applicable Borrower shall be deemed to have elected to
continue such Offshore Currency Revolving Loans on the basis of a one month
Interest Period.
(e) The Administrative Agent will promptly notify each Lender of its
receipt of a Notice of Conversion/Continuation pursuant to this Section 2.4, or,
if no timely notice is provided by the Applicable Borrower, the Administrative
Agent will promptly notify each Lender of the details of any automatic
conversion or continuation. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts of the Loans
held by each Lender with respect to which the notice was given.
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(f) Unless the Required Lenders otherwise agree or otherwise as
permitted hereby, during the existence of an Event of Default or Unmatured Event
of Default, no Applicable Borrower may elect to have a Loan converted into or
continued as a Eurocurrency Rate Loan or an Offshore Currency Revolving Loan.
(g) After giving effect to any conversion or continuation of Loans,
there may not be more than six different Interest Periods in effect for all Term
Loans and eight different Interest Periods in effect for all Revolving Loans.
(h) Canadian Dollar Loans (other than BA Rate Loans) shall only be made
and continued at the Overnight Rate and Canadian Dollar Loans shall not be
converted into Eurocurrency Rate Loans.
2.5. Utilization of Commitments in Offshore Currencies; Special
Provisions for Offshore Currency Revolving Loans.
(a) The Administrative Agent will determine the Dollar Equivalent
amount with respect to:
(i) any Borrowing comprised of Offshore Currency Revolving
Loans two Business Days prior to the requested Borrowing Date except in
the case of an Offshore Currency Revolving Loan the proceeds of which
are used to repay a Swing Line Loan in accordance with Section 2.21, in
which case such determination shall be made on the day such Loan is
made,
(ii) any Issuance of an Offshore Currency Letter of Credit
for the account of any Borrower as of the requested Issuance Date,
(iii) any drawing under a Letter of Credit Issued for the
account of any Borrower in an Offshore Currency as of the related Honor
Date,
(iv) any ABR Loan to be made in lieu of an Offshore Currency
Revolving Loan pursuant to subsection 2.5(b) as of the proposed
Borrowing Date,
(v) any outstanding Offshore Currency Revolving Loan as of
any redenomination date pursuant to this Section 2.4(a), 2.4(f) and
Section 2.5 as of such date of redenomination, and
(vi) the aggregate sum (without duplication) of the Dollar
Equivalent of the Aggregate Offshore Currency Outstanding, plus the
Effective Amount of all L/C Obligations of the Borrowers, plus all
Swing Line Loans outstanding, immediately prior to and after giving
effect to any Revolving Loan made under Section 2.18 as of the proposed
date of the making of any such Revolving Loan,
(vii) the aggregate of the Dollar Equivalent of the Aggregate
Offshore Currency Outstanding, plus the Effective Amount of all L/C
Obligations of the Borrowers immediately prior to and after giving
effect to any Revolving Loan made under Section 3.3 as of the proposed
date of the making of any such Revolving Loan,
(viii) the aggregate of the Dollar Equivalent of the Aggregate
Offshore Currency Outstanding on any date on which the Revolving
Commitments are reduced pursuant to Section 2.8. as of the date of such
reduction, and
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(ix) the aggregate Dollar Equivalent of the Offshore
Currency Revolving Loans or the Swing Line Loans, as the case may be,
for the purposes of Sections 2.7, 2.20 and 2.21 on any date on which
such loans are redenominated as provided for in such sections.
(b)
(i) In the case of a proposed Borrowing of Standard
Currency Loans (other than with respect to the refunding of Swing Line
Loan Loans which will be subject to Section 2.20), in the event that
any Revolving Lender gives notice to the Administrative Agent not later
than 11:00 a.m. (Local Time) one Business Day prior to the proposed
Borrowing Date that it is unable to fund such Standard Currency Loans
at a reasonable cost to it, such Lender shall make its Pro Rata Share
of the proposed Borrowing as an ABR Loan in the Dollar Equivalent
amount of the amount it otherwise would have made in such Offshore
Currency; provided, however, that the Revolving Lenders shall be under
no obligation to make Standard Currency Loans in the requested Standard
Currency as part of such Borrowing if the Administrative Agent has
received notice from the Required Revolving Lenders by 11:00 a.m.
(Local Time), two Business Days prior to the day of such Borrowing,
that the Required Revolving Lenders cannot provide Loans in the
requested Standard Currency, in which event the Administrative Agent
will promptly give notice to the Applicable Borrower that the Borrowing
in the requested Standard Currency is not then available, and notice
thereof also will be given promptly by the Administrative Agent to the
Revolving Lenders.
(ii) In the case of a proposed Borrowing of Special
Currency Loans (other than with respect to the refunding of Swing Line
Loan Loans which will be subject to Section 2.20), in the event that
the applicable Qualified Offshore Lender gives notice to the
Administrative Agent not later than 11:00 a.m. (Local Time) one
Business Day prior to the proposed Borrowing Date that it is unable to
fund such Special Currency Loans at a reasonable cost to it, such
Qualified Offshore Lender shall be under no obligation to make Special
Currency Loans in the requested Special Currency as part of such
Borrowing; provided, however, that in the event the Administrative
Agent has received notice from each applicable Qualified Offshore
Lenders by 11:00 a.m. (Local Time), two Business Days prior to the day
of such Borrowing, that it cannot provide Loans in the requested
Special Currency, the Administrative Agent will promptly give notice to
the Applicable Borrower that the Borrowing in the requested Special
Currency is not then available, and notice thereof also will be given
promptly by the Administrative Agent to the Revolving Lenders.
(iii) If the Administrative Agent shall have so
notified the Applicable Borrower that, pursuant to any such notice from
the Required Revolving Lenders or the Qualified Offshore Lenders, as
applicable, any such Borrowing in a requested Offshore Currency is not
then available, such Borrower may, by notice to the Administrative
Agent not later than, 11:00 a.m. (Local Time) on the Business Day prior
to the requested date of such Borrowing, withdraw the Notice of
Borrowing relating to such requested Borrowing. If the Applicable
Borrower does so withdraw such Notice of Borrowing, the Borrowing
requested therein shall not occur and the Administrative Agent will
promptly so notify each Lender.
(iv) If the Applicable Borrower does not so withdraw
such Notice of Borrowing, the Administrative Agent will promptly so
notify each Lender and such Notice of Borrowing shall be deemed to be a
Notice of Borrowing that requests a Borrowing comprised of ABR Loans in
an aggregate amount equal to the Dollar Equivalent of the amount of the
originally requested Borrowing in the Notice of Borrowing (however, not
in excess of the aggregate Revolving Commitments of all Revolving
Lenders at such time); and in such notice by the
48
Administrative Agent to each Lender the Administrative Agent will state
such aggregate amount of such Borrowing in U.S. Dollars and such Lender's
Pro Rata Share thereof.
(c) Intentionally Omitted.
(d) The Lenders shall be under no obligation to continue Standard Currency
Loans if the Administrative Agent has received notice from the Required
Revolving Lenders by 10:00 a.m. (New York time), three Business Days prior to
the day of such continuation, that such Lenders cannot continue to provide Loans
in the relevant Offshore Currency, in which event the Administrative Agent will
promptly give notice to the Applicable Borrower that the continuation of such
Standard Currency Loans in the relevant Offshore Currency is not then available,
and notice thereof also will be given promptly by the Administrative Agent to
the Lenders. No Qualified Offshore Lender shall have an obligation to continue
any Special Currency Loan if it cannot continue to provide such Loans in the
relevant Special Currency, in which case, such Qualified Offshore Lender will
promptly give notice to the Applicable Borrower and the Administrative Agent
that the continuation of such Special Currency Loans is not then available. If
the Administrative Agent, or with respect to Special Currency Loans, any
Qualified Offshore Lender, shall have so notified the Applicable Borrower that,
such continuation of Offshore Currency Revolving Loans is not then available,
any Notice of Continuation/Conversion with respect thereto shall be deemed
withdrawn and such Offshore Currency Revolving Loans shall be repaid on the last
day of the Interest Period with respect to such Offshore Currency Revolving
Loans.
(e) Notwithstanding anything herein to the contrary and in addition to the
rights of the Lenders pursuant to Section 2.12(c):
(i) during the existence of an Event of Default (other than
an Event of Default under subsection 9.1(f) or (g)):
(A) upon the request of the Required Revolving Lenders,
all or any part of any outstanding Standard Currency Loans
shall be redenominated and converted into ABR Loans with
effect from the last day of the Interest Period with respect
to such Standard Currency Loans;
(B) upon the request of any Qualified Offshore Lender
all or any part of any outstanding Special Currency Loans
made by such Qualified Offshore Lender shall be
redenominated and converted into ABR Loans with effect from
the last day of the then effective Interest Period with
respect to such Special Currency Loans; and
(ii) upon the occurrence of an Event of Default under
subsection 9.1(f) or (g) each Standard Currency Loan and each Special
Currency Loan shall automatically be redenominated and converted into ABR
Loans with effect immediately prior to the effectiveness of such
acceleration or Event of Default under subsection 9.1(f) or (g), without
notice of any kind to the Borrowers which notice is hereby expressly waived
by the Borrowers.
(f) Subject to subsection 2.1(a), the Borrowers shall be entitled, in
addition to requesting Revolving Loans in U.S. Dollars and Offshore Currencies
as permitted by subsection 2.1(a), to request that Revolving Loans hereunder
also be permitted to be made in any other lawful currency that in the opinion of
the Administrative Agent is at such time freely traded in the offshore interbank
foreign exchange markets and is freely transferable and freely convertible into
U.S. Dollars (an "Agreed Alternative Currency"). The Applicable Borrower shall
deliver to the Administrative Agent any request for designation of an Agreed
Alternative Currency not later than 11:00 a.m. (London, England time), at
49
least ten Business Days in advance of the date of any Borrowing hereunder
proposed to be made in such Agreed Alternative Currency. Upon receipt of any
such request the Administrative Agent will promptly notify the Revolving Lenders
thereof, and each Lender will use commercially reasonable efforts to respond to
such request within two Business Days of receipt thereof. If the Administrative
Agent has not received any response from a Revolving Lender by the end of the
day four Business Days prior to the date of Borrowing to be made in such Agreed
Alternative Currency, the Administrative Agent shall conclusively presume the
assent of such Lender. Each Revolving Lender may grant or accept such request in
its sole discretion. Acceptance of the request shall require the affirmative or
deemed assent of all of the Revolving Lenders. The Administrative Agent will
promptly notify the Applicable Borrower of the acceptance or rejection of any
such request. After an Agreed Alternative Currency has been designated pursuant
to this subsection 2.5(f), such Agreed Alternative Currency shall be included
within the definition of "Standard Currency" or "Special Currency", as
reasonably determined by the Administrative Agent and the provisions herein
relating to Standard Currency Loans or Special Currency Loans, as the case may
be, shall be applicable thereto.
2.6. Bankers' Acceptances.
(a) Subject to the terms and conditions hereof, and subject to
compliance with the provisions of Section 2.3, on any Business Day, ▇▇▇▇▇ Canada
may borrow loans in Canadian Dollars from the Canadian Lenders (in an aggregate
Dollar Equivalent principal amount at any time outstanding for all Canadian
Loans by such Lender not to exceed such Canadian Lender's Qualified Offshore
Commitment for Canadian Dollar Loans) by way of Acceptances, provided, however,
that:
(i) each Canadian Lender shall have received a Bankers'
Acceptance or Bankers' Acceptances in the aggregate principal amount of
such borrowing from ▇▇▇▇▇ Canada in due and proper form duly completed and
executed by ▇▇▇▇▇ Canada and presented for acceptance to such Canadian
Lender prior to 10:00 a.m. (Local Time) two Business Days prior to the date
for such borrowing, together with such other customary document or
documents as such Canadian Lender may reasonably require (including the
execution by ▇▇▇▇▇ Canada of such Canadian Lender's usual form of bankers'
acceptances) and the Acceptance Fee shall have been paid to such Canadian
Lender at or prior to such time;
(ii) each Bankers' Acceptance shall be stated to mature on a
Business Day (no later than the Revolving Loan Maturity Date) which is 30,
60, 90 or 180 days from the date of its acceptance;
(iii) each Bankers' Acceptance shall have a face amount of
C$100,000 or a whole multiple thereof and shall be in form satisfactory to
such Canadian Lender;
(iv) each Bankers' Acceptance shall be stated to mature on a
Business Day in such a way that no Canadian Lender will be required to
incur any costs for the redeployment of funds as a consequence of any
repayment required during any period for which such Bankers' Acceptance is
outstanding;
(v) no days of grace shall be permitted on any Bankers'
Acceptance;
(vi) the aggregate face amount of the Bankers' Acceptances to be
accepted by a Canadian Lender shall be determined by the Administrative
Agent by reference to the respective relevant Revolving Commitments of such
Canadian Lender, except that, if the face amount of a Bankers' Acceptance
which would otherwise be accepted by a Canadian Lender would not be
C$100,000 or a whole multiple thereof, such face amount shall be increased
or
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reduced by the Administrative Agent in its sole discretion to C$100,000 or
the nearest whole multiple of that amount, as appropriate; and
(vii) at no time shall any Canadian Lender be obligated to make a
BA Rate Loan:
(A) in excess of such Lender's Pro Rata Share of the
Aggregate Available Revolving Credit;
(B) in excess of such Lender's Pro Rata Share of the
Available Offshore Currency Credit;
(C) such that after giving effect thereto, such Lender's
Qualified Offshore Outstanding with respect to ▇▇▇▇▇ Canada would
exceed such Lender's Qualified Offshore Commitment in respect of
▇▇▇▇▇ Canada or such Lender's Swing Line Commitment in respect of
▇▇▇▇▇ Canada;
(D) such that after giving effect thereto, the Dollar
Equivalent of (1) the Aggregate Offshore Currency Outstanding
would exceed the Offshore Currency Sublimit; or (2) the Aggregate
Foreign Borrower Credit would exceed the Foreign Borrower
Sublimit in effect at such time.
(b) ▇▇▇▇▇ Canada acknowledges, agrees and confirms that each Canadian
Lender may at any time and from time to time hold, sell, rediscount or otherwise
dispose of any Banker's Acceptance accepted and purchased by it hereunder; that
the records of such Canadian Lender in respect of payment of any BA Rate Loan by
such Canadian Lender shall be binding on ▇▇▇▇▇ Canada and shall, subject to the
provisions of Section 7.18, be conclusive evidence (in the absence of manifest
error) of a BA Rate Loan to ▇▇▇▇▇ Canada and of an amount owing by Grief Canada
to such Canadian Lender.
(c) In the event a Canadian Lender is unable or, in its sole
discretion, shall have determined that by reason of circumstances arising after
the Effective Date and affecting the market for Bankers' Acceptances, that it is
unwilling, to accept Bankers' Acceptances, such Canadian Lender shall have the
right at the time of accepting drafts to require ▇▇▇▇▇ Canada to accept a Loan
denominated in Canadian Dollars that bears interest at the BA Rate plus the
Applicable Margin from such Canadian Lender in lieu of the issue and acceptance
of a Bankers' Acceptance requested by ▇▇▇▇▇ Canada (a "BA Equivalent Loan") to
be accepted so that there shall be outstanding while the Bankers' Acceptances
are outstanding BA Equivalent Loans from such Canadian Lender as contemplated
herein. The principal amount of each BA Equivalent Loan shall be that amount
which, when added to the amount of interest (calculated at the BA Rate plus the
Applicable Margin) which will accrue during the applicable BA Interest Period,
equals, at maturity, the face amount of the drafts which would have been
accepted by such Canadian Lender had it accepted Bankers' Acceptances. On the
relevant date of the borrowing ▇▇▇▇▇ Canada shall pay to the Administrative
Agent a fee equal to the Acceptance Fee which would have been payable to such
Canadian Lender if it were a Canadian Lender accepting drafts having a term to
maturity equal to the applicable BA Interest Period and an aggregate face amount
equal to the sum of the principal amount of the BA Equivalent Loan and the
interest payable thereon by ▇▇▇▇▇ Canada for the applicable BA Interest Period.
The provisions of this Agreement dealing with Bankers' Acceptances shall, where
relevant, apply, mutatis mutandis, to BA Equivalent Loans.
(d) Each Bankers' Acceptance issued pursuant to this Agreement shall
be purchased by the Canadian Lender accepting such Bankers' Acceptance for the
Discounted Proceeds thereof. Concurrent with the acceptance of each Bankers'
Acceptance, such Canadian Lender shall make available
51
to the Administrative Agent the Discounted Proceeds thereof for disbursement to
▇▇▇▇▇ Canada in accordance with the terms hereof. On any date on which both new
Bankers' Acceptances are being purchased and existing Bankers' Acceptances are
maturing, ▇▇▇▇▇ Canada hereby authorizes the applicable Canadian Lender and the
Administrative Agent to net all amounts payable on such date by such Canadian
Lender to the Administrative Agent for the account of ▇▇▇▇▇ Canada, against all
amounts payable on such date by ▇▇▇▇▇ Canada to such Canadian Lender in
accordance with the Administrative Agent's calculations. In each case, upon
receipt of such Discounted Proceeds from such Lender and upon fulfillment of the
applicable conditions set forth herein, the Administrative Agent shall make such
funds available to ▇▇▇▇▇ Canada in accordance with this Agreement. Upon each
issue of Bankers' Acceptances as a result of the conversion of outstanding loans
made at the Overnight Rate into Bankers' Acceptances, ▇▇▇▇▇ Canada shall,
concurrently with the conversion, pay in advance to the Administrative Agent on
behalf of the Canadian Lenders, the amount by which the face value of such
Bankers' Acceptances exceeds the Discounted Proceeds of such Bankers'
Acceptances, to be applied against the principal amount of the loans made at the
Overnight Rate being so converted. ▇▇▇▇▇ Canada shall at the same time pay to
the Administrative Agent the applicable Acceptance Fee.
(e) To enable the Lenders to make Canadian Revolving Credit
Outstandings in the manner specified in this ▇▇▇▇▇▇▇ ▇.▇, ▇▇▇▇▇ ▇▇▇▇▇▇ shall, in
accordance with the request of each Canadian Lender either (i) provide a power
of attorney to complete, sign, endorse and issue Bankers' Acceptances, in such
form as such Canadian Lender may require; or (ii) supply such Canadian Lender
with such number of uncompleted drafts as such Canadian Lender may reasonably
request, duly endorsed and executed on behalf of ▇▇▇▇▇ Canada. The signature of
any officer of ▇▇▇▇▇ Canada on a draft may be mechanically reproduced and
Bankers' Acceptances bearing facsimile signatures shall be binding upon ▇▇▇▇▇
Canada as if they had been manually signed. Even if the individuals whose manual
or facsimile signature appears on any Bankers' Acceptance no longer hold office
at the date of signature, at the date of its acceptance by a Canadian Lender or
at any time after such date, any Bankers' Acceptance so signed shall be valid
and binding upon ▇▇▇▇▇ Canada. Each Canadian Lender shall exercise such care in
the custody and safekeeping of such uncompleted drafts as it would exercise in
the custody and safekeeping of similar property owned by it. Each Canadian
Lender will, upon request by ▇▇▇▇▇ Canada, promptly advise ▇▇▇▇▇ Canada of the
number and designations, if any, of the uncompleted drafts then held by it.
(f) ▇▇▇▇▇ Canada agrees to pay to each Canadian Lender on the
maturity date of each Bankers' Acceptance issued by it, an amount equal to the
face amount of all Bankers' Acceptances accepted by such Canadian Lender
maturing on that day (notwithstanding that a Canadian Lender may be the holder
thereof at maturity) and all reasonable expenses paid or incurred by such
Canadian Lender, relative thereto. Unless ▇▇▇▇▇ Canada shall have made such
payment to the Canadian Lenders, on such day and upon each such maturity date of
each Bankers' Acceptance, the Administrative Agent shall be deemed to have
disbursed to ▇▇▇▇▇ Canada, and ▇▇▇▇▇ Canada shall be deemed to have elected to
satisfy its reimbursement and payment obligation by, a Borrowing from the
Canadian Lenders in Canadian Dollars bearing interest at the applicable
Overnight Rate for the account of the Canadian Lenders in an amount equal to the
face value of each such Bankers' Acceptance then maturing. Such Borrowing shall
be disbursed notwithstanding any failure to satisfy any conditions for
disbursement of any Loan set forth in Section 5.2 and, to the extent of the
Borrowing so disbursed, the reimbursement and payment obligation of ▇▇▇▇▇ Canada
under this Section 2.6(f) shall be deemed satisfied; provided, however, that
nothing in this Section 2.6 shall be deemed to constitute a waiver of any
Default or Event of Default caused by the failure to the conditions for
disbursement or otherwise.
(g) The reimbursement and other payment obligations of ▇▇▇▇▇ Canada
under this Section 2.6 shall be absolute, unconditional and irrevocable and
shall remain in full force and effect until all obligations of the Borrowers to
the Lenders hereunder shall have been satisfied, and such obligations
52
of ▇▇▇▇▇ Canada shall not be affected, modified or impaired upon the happening
of any event, including any of the following, whether or not with notice to, or
the consent of, any Borrower:
(i) Any lack of validity or enforceability of any Acceptance or
to any transaction related in any way thereto (such Acceptance and any
documents evidencing such transaction, the "BA Documents");
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the BA Documents;
(iii) The existence of any claim, setoff, defense or other right
which the U.S. Borrower or any of its Subsidiaries may have at any time
against any beneficiary or any transferee of any Acceptance (or any Persons
or entities for whom any such beneficiary, transferee or holder may be
acting), the Administrative Agent, any Canadian Lender or any other Person
or entity, whether in connection with any of the BA Documents, the
transactions contemplated herein or therein or any unrelated transactions;
(iv) Any draft or other statement or document presented under
any Acceptance proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(v) Any failure, omission, delay or lack on the part of the
Administrative Agent, any Canadian Lender or any party to any of the BA
Documents to enforce, assert or exercise any right, power or remedy
conferred upon the Administrative Agent, any Canadian Lender or any such
party under this Agreement or any of the BA Documents, or any other acts or
omissions on the part of the Administrative Agent, any Canadian Lender or
any such party;
(vi) Any defense based on the lack of presentment for payment
and any other defense to payment of any amounts due to a Canadian Lender in
respect of any Acceptance accepted by it pursuant to this Agreement which
might exist solely by reason of such Acceptance being held, at the maturity
thereof, by such Canadian Lender in its own right; and
(vii) Any other event or circumstance that would, in the absence
of this clause, result in the release or discharge by operation of law or
otherwise of any Company from the performance or observance of any
obligation, covenant or agreement contained in this Section 2.6.
(h) No setoff, counterclaim, reduction or diminution of any
obligation or any defense of any kind or nature which any Borrower has or may
have against the beneficiary or holder of any Acceptance shall be available
hereunder to any Borrower against the Administrative Agent or any Canadian
Lender.
(i) If, by reason of circumstances affecting the Canadian money
market generally, there is no market for Bankers' Acceptances (i) the right of
▇▇▇▇▇ Canada to request a BA Rate Loan shall be suspended until the
circumstances causing a suspension no longer exist, and (ii) any request for a
BA Rate Loan which is outstanding shall be deemed to be a Notice of Borrowing
requesting a Loan at the Overnight Rate in Canadian Dollars of equivalent
principal amount and with a term equal to the BA Interest Period requested by
▇▇▇▇▇ Canada.
53
2.7. Refundings/Participations for Qualified Offshore Loans.
(a) Refunding of Qualified Offshore Loans.
(i) At any time after the occurrence of, and during the continuance
of, an Event of Default (other than an Event of Default under subsection 9.1(f)
or (g)), any Qualified Offshore Lender may, at any time in its sole and absolute
discretion, on behalf of the Applicable Borrower, with respect to any Qualified
Offshore Loan made by it (and each Borrower hereby irrevocably directs any
Qualified Offshore Lender to act on its behalf), by written notice, require each
other Revolving Lender that did not fund the applicable Qualified Offshore Loans
to make a Revolving Loan as an ABR Loan to the Applicable Borrower in an amount
equal to such Revolving Lender's Pro Rata Share of the Dollar Equivalent of the
principal amount of the Qualified Offshore Loans owed to such Qualified Offshore
Lender as specified in such notice.
(ii) Unless any of the events described in subsection 9.1(f) or (g)
shall have occurred (in which event the procedures of clause (b) shall apply),
and regardless of whether the conditions precedent set forth in this Agreement
to the making of a Revolving Loan are then satisfied or the aggregate amount of
such Revolving Loans is not in the minimum or integral amount otherwise required
hereunder, each Revolving Lender shall make the proceeds of its Revolving Loan
available to the Administrative Agent for the account of such Qualified Offshore
Lender at the office in Same Day Funds and in the requested currency by 10:00
a.m. (Local Time), in each case on the Business Day next succeeding the date
such notice is given. The proceeds of such Revolving Loans shall be immediately
applied to repay the outstanding Qualified Offshore Loans of the applicable
Qualified Offshore Lender specified in the notice given pursuant to clause (i)
above.
(b) Participations in Qualified Offshore Loans.
(i) If an event described in subsection 9.1(f) or (g) occurs each
Revolving Lender that is not a Qualified Offshore Lender shall, upon notice from
the Administrative Agent, purchase from the applicable Qualified Offshore Lender
(and the Qualified Offshore Lender will sell to each such Revolving Lender) an
undivided participation interest in all outstanding Qualified Offshore Loans in
an amount equal to the Dollar Equivalent of its Pro Rata Share of the
outstanding principal amount of the Qualified Offshore Loans of such Qualified
Offshore Lender (and each Revolving Lender will immediately transfer to the
Administrative Agent, for the account of the applicable Qualified Offshore
Lender, in Same Day Funds, the amount of its participation as if it were
refunding such Qualified Offshore Loans pursuant to clause (a).
(ii) Whenever, at any time after the Qualified Offshore Lender has
received payment for any Revolving Lender's participation interest in the
Qualified Offshore Loans pursuant to clause (i) above, the Qualified Offshore
Lender receives any payment on account thereof, such Qualified Offshore Lender
will distribute to the Administrative Agent for the account of such Revolving
Lender its participation interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Revolving Lender's participation interest was outstanding and funded) in like
funds as received; provided, however, that in the event that such payment
received by the Qualified Offshore Lender is required to be returned, such
Revolving Lender will return to the Administrative Agent for the account of the
Qualified Offshore Lender any portion thereof previously distributed by the
Qualified Offshore Lender to it in like funds as such payment is required to be
returned by the Qualified Offshore Lender.
54
(c) Obligations Unconditional. Each Revolving Lender's obligation to
make Revolving Loans and/or to purchase participation interests in Qualified
Offshore Loans pursuant to this Section 2.7 shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever (other than Section
2.1(a)), including (i) any set-off, counterclaim, recoupment, defense or other
right which such Revolving Lender may have against any Qualified Offshore
Lender, any Loan Party or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of an Event of Default; (iii) any adverse change in
the condition (financial or otherwise) of any Loan Party or any other Person;
(iv) any breach of this Agreement by any Loan Party or any other Revolving
Lender; (v) any inability of any Borrower to satisfy the conditions precedent to
borrowing set forth in this Agreement on the date upon which any Qualified
Offshore Loan is to be refunded or any participation interest therein is to be
purchased; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
2.8. Reduction or Termination of Commitments. (a) The Borrowers may,
upon not less than five Business Days' prior notice to the Administrative Agent
terminate or permanently reduce:
(i) the Commitments in any Facility by an aggregate amount equal to
the Dollar Equivalent of U.S. $1,000,000 or a higher integral multiple of
U.S. $1,000,000; unless, in the case of the Revolving Facility, after
giving effect thereto and to any prepayments of the Revolving Loans and BA
Rate Loans made on the effective date of such termination or reduction, (A)
the Aggregate Outstanding Revolving Credit would exceed the aggregate
Revolving Commitments then in effect, (B) the Aggregate Offshore Currency
Outstanding would exceed the Offshore Currency Sublimit then in effect, (C)
the Aggregate Foreign Borrower Credit would exceed the Foreign Borrower
Sublimit then in effect, or (D) the then outstanding amount of all
Qualified Offshore Loans (funded pursuant to any Commitment to be reduced)
would exceed the applicable Qualified Offshore Commitment then in effect;
(ii) the Swing Line Commitment; unless, after giving effect thereto
and to any prepayment of the Swing Line Loans made on the effective date of
such termination or reduction, the then outstanding amount of all Swing
Line Loans would exceed the Available Swing Line Credit then in effect; or
(iii) the Offshore Currency Sublimit unless after giving effect
thereto and to any repayment or prepayment of the Aggregate Offshore
Currency Outstanding made on the effective date of such termination or
reduction, the Aggregate Offshore Currency Outstanding would exceed the
Offshore Currency Sublimit.
(b) Any reduction or termination of the Revolving Commitment will
also reduce each of the Swing Line Commitments, the Offshore Currency Sublimit,
and each Qualified Offshore Commitment by the same percentage that the Revolving
Commitments were reduced.
(c) The aggregate amount of the Revolving Commitments shall be
automatically and permanently terminated on the Revolving Loan Maturity Date.
(d) Once reduced in accordance with this Section, no Commitment or
Offshore Currency Sublimit may be increased or reinstated. All reductions in the
Commitments and any sublimits will reduce each Lender's Commitments in
accordance with such Lenders Pro Rata Share thereof. All accrued Commitment Fees
and accrued but unpaid interest in respect of any Facility to, but not
including, the effective date of any reduction or termination of Commitments in
such Facility shall be paid on the effective date of such reduction or
termination.
55
2.9. Prepayments and Mandatory Commitment Reductions.
(a) Taking or Destruction. Within five Business Days after the
date on which the applicable Company receives Net Cash Proceeds from any Taking
or Destruction or the applicable Company receives notice of collection by the
Administrative Agent of the applicable Net Cash Proceeds from any Taking or
Destruction delivered to it as loss payee in accordance with the provisions of
the applicable Security Document, a Dollar Equivalent amount equal to 100% of
such Net Cash Proceeds shall be applied as set forth in subsection 2.9(g);
provided, however, that:
(i) so long as no Event of Default or Unmatured Event of
Default then exists, such proceeds shall not be required to be so applied
on such date to the extent that any of the Borrowers have delivered an
Officers' Certificate to the Administrative Agent on or prior to such date
stating that such Net Cash Proceeds shall be used to replace or restore (in
accordance with the procedures of the applicable Security Document) any
properties or assets in respect of which such proceeds were paid) and in
the case of assets or properties that are not Collateral, reinvested in
assets used or useful in the business of the Companies, within 360 days
following the date of the receipt of such proceeds (which certificate shall
set forth the estimates of the proceeds to be so expended),
(ii) to the extent that the property so Taken or the
subject of Destruction constituted Collateral, (x) any and all replacement
or restored property and assets shall constitute Collateral and shall be
made subject to the Lien of the Security Documents, in accordance with the
provisions of Section 7.15, and (y) such Net Cash Proceeds shall be
deposited and maintained in the Collateral Account and applied in the
manner contemplated in the applicable Security Documents, and
(iii) if all or any portion of such Net Cash Proceeds not so
applied pursuant to clause (i) is not so used within such 360-day period,
such remaining portion shall be applied on the last day of such period (or
the next preceding Business Day if such last day is not a Business Day) as
set forth in subsection 2.9(g); the Borrowers hereby covenant and agree
that they shall not, and shall not cause or permit any Subsidiary to,
reinvest any such Net Cash Proceeds other than as stated in such Officers'
Certificate.
(b) Excess Cash Flow. Within 90 days after the end of each
Fiscal Year, a Dollar Equivalent amount equal to 50% of Excess Cash Flow for
such Fiscal Year shall be applied as set forth in subsection 2.9(g), unless the
Total Leverage Ratio as of the last day of the Fiscal Year is less than 2.00 to
1.00.
(c) Asset Sales. Within five Business Days after the receipt by
any Company of Net Cash Proceeds, if any, from any Asset Sale permitted by
subsection 8.2(a) (x), (xi), (xii), (xvi), and (xvii) or any Asset Sale not
permitted by subsection 8.2, a Dollar Equivalent amount equal to 100% of such
Net Cash Proceeds shall be applied as set forth in subsection 2.9(g); provided,
however, (except with respect to Asset Sales not permitted by subsection 8.2),
that so long as no Event of Default or Unmatured Event of Default then exists,
such proceeds shall not be required to be so applied on such date to the extent
that the Borrowers have delivered an Officers' Certificate to the Administrative
Agent on or prior to such date stating that such Net Cash Proceeds shall be
reinvested in assets or property and setting forth the estimates of the proceeds
to be so expended, which proceeds are to be reinvested as follows:
(i) If such Asset Sale is of Collateral, (A) such asset or
property acquired by such reinvestment shall be U.S. Borrower Security
Agreement Collateral, Domestic Security Agreement Collateral or Domestic
Mortgaged Property, as the case may be, and shall be made
56
subject to the Lien of the Domestic Security Documents, as the case may be,
in accordance with Section 7.15 within 360 days following the date of such
Asset Sale, and (B) any such Net Cash Proceeds shall be deposited and
maintained in the Collateral Account and applied in the manner contemplated
in the U.S. Borrower Guarantee and Security Agreement and Domestic
Guarantee and Security Agreement.
(ii) If such Asset Sale is of Timber Lands, such
reinvestment shall be limited solely to Timber Lands.
(iii) If such Assets Sale is neither of Collateral or Timber
Lands, it shall be reinvested in assets used or useful in the business of
the Companies.
In any event, if all or any portion of such Net Cash Proceeds are not used as
described in such Officers' Certificate within such 360-day period, such
remaining portion shall be applied on the last day of such period (or the next
preceding Business Day if such last day is not a Business Day) as set forth in
subsection 2.9(g); the Borrowers hereby covenant and agree that they shall not,
and shall not cause or permit any Subsidiary to, reinvest any such Net Cash
Proceeds other then as stated in such Officers' Certificate.
(d) Debt Issuance. Concurrently with the receipt of any Net Cash
Proceeds from the issuance or incurrence of any Indebtedness by any Company
pursuant to subsection 8.5 (j), a Dollar Equivalent amount equal to 100% of such
Net Cash Proceeds shall be applied as set forth in subsection 2.9(g) (it being
understood that any issuance of any Indebtedness convertible into or
exchangeable or exercisable for Equity Interests of U.S. Borrower shall be
subject to this subsection 2.9(d) and not subsection 2.9(e) below).
(e) Equity Issuance. Concurrently with the receipt of any Net
Cash Proceeds from any capital contribution to U.S. Borrower or from the
issuance or sale of any Equity Interests of U.S. Borrower or any other direct or
indirect parent of U.S. Borrower (excluding an amount not to exceed an aggregate
since the Effective Date of U.S. $30,000,000 of proceeds from any such issuance
and excluding the proceeds of issuances under stock option or similar plans to
officers, directors, management and employees), a Dollar Equivalent amount equal
to 50% of such Net Cash Proceeds shall be applied as set forth in subsection
2.9(g) (it being understood that any issuance of any Indebtedness convertible
into or exchangeable or exercisable for Equity Interests of U.S. Borrower shall
not be subject to this subsection 2.9(e) but instead shall be subject to
subsection 2.9(d) above).
(f) Permitted Receivables Transaction. Notwithstanding the
foregoing, concurrently with the receipt of Net Cash Proceeds from any Permitted
Receivables Transaction, a Dollar Equivalent amount equal to 75% of such Net
Cash Proceeds shall be applied as set forth in Section 2.9(h), provided,
however, if an Event of Default or Unmatured Event of Default is then
continuing, a Dollar Equivalent amount equal to 100% of such Net Cash Proceeds
shall be applied as set forth in Section 2.9(h). The amounts required to be
prepaid by this subsection 2.9(f) shall be applied pro rata among the Term
Loans, the Revolving Loans and the BA Rate Loans (based on the Dollar Equivalent
amount of the then outstanding Loans under each Facility) and to permanently
reduce the Revolving Commitment by an amount equal to the Receivables Commitment
Reduction Amount. As to the Term Loans, payments will be applied in the inverse
order of maturity, to the remaining Amortization Payments as set forth in
subsection 2.11. Subject to subsection 2.12(b), all prepayments of Loans shall
be made together with all amounts of accrued and unpaid interest thereon and any
amounts required by Section 4.4. All such payments shall be applied to interest
and such Section 4.4 amounts before application to principal.
57
(g) Allocation of Mandatory Prepayments. The amounts required to
be prepaid by subsections (a)-(e) of this Section 2.9 shall first be applied to
the Term Loans in the inverse order of maturity, to the remaining Amortization
Payments as set forth in subsection of Section 2.11. Subject to subsection
2.12(b), all prepayments of Term Loans shall be made together with all accrued
interest thereon and any amounts required by Section 4.4, and all such payments
shall be applied to the payment of interest and such Section 4.4 amounts before
application to principal. To the extent that the amount to be applied to the
prepayment of Term Loans exceeds the aggregate amount of Term Loans then
outstanding, the Revolving Loans and the BA Rate Loans shall be prepaid (on a
pro rata basis) by the Dollar Equivalent amount of such excess without a
concomitant reduction in the Revolving Commitment.
(h) Optional Prepayment.
(i) Subject to Section 4.4, any Applicable Borrower may,
at any time or from time to time, ratably prepay, without premium or
penalty, Loans under the Revolving Facility or under the Term Facility in
whole or in part, and if in part, in an amount equal to the applicable
Currency Threshold.
(ii) The Applicable Borrower shall deliver a notice of
prepayment in accordance with Section 11.2 to be received by the
Administrative Agent not later than (x) 11:00 a.m. (Local Time), three
Business Days in advance of the prepayment date, if the Loans to be prepaid
are Eurocurrency Rate Loans, and (y) 11:00 a.m. (Local Time), one Business
Day prior to the prepayment date, if the Loans to be prepaid are ABR Loans
or Loans made at the Overnight Rate (and in each case on not more than five
Business Days' prior notice).
(iii) Such notice of prepayment shall specify (A) the date
and amount of such prepayment, (B) whether such prepayment is of ABR Loans
or Loans made at the Overnight Rate, Eurocurrency Rate Loans, or any
combination thereof, (C) whether Revolving Loans and BA Rate Loans or Term
Loans are being prepaid and (D) the Applicable Currency. Such notice shall
not thereafter be revocable by the Applicable Borrower. The Administrative
Agent will promptly notify each Lender thereof and of such Lender's Pro
Rata Share of such prepayment. If such notice is given by any Applicable
Borrower, such Applicable Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the
date specified therein, together with accrued interest to each such date on
the amount prepaid and any amounts required pursuant to Section 4.4.
(iv) Each such prepayment (if a prepayment of Term Loans)
shall be applied in the inverse order of maturity to the remaining
Amortization Payments set forth in subsection 2.11, subject, however, to
clause (iii) of subsection 2.9(i).
(i) Allocation of Prepayments to Types of Loans.
(i) With respect to each prepayment of Loans pursuant to
this Section 2.9, the Applicable Borrower may designate the Types of Loans
which are to be repaid and the specific Borrowing(s) under the affected
Facility pursuant to which made; provided, however, that: (A) Eurocurrency
Rate Loans made pursuant to a specific Facility may be designated for
prepayment only on the last day of an Interest Period applicable thereto
unless the Applicable Borrower concurrently reimburses the Lenders in
accordance with Section 4.4 hereof or; (B) if any prepayment of
Eurocurrency Rate Loans made pursuant to a single Borrowing shall reduce
the outstanding Loans made pursuant to such Borrowing to an amount less
than the Minimum Loan, such Borrowing shall be immediately converted into
ABR Loans (and thus to U.S. Dollars); and (C) each repayment of any Loans
made pursuant to a Borrowing shall be applied
58
pro rata among such Loans, unless an Applicable Borrower shall have become
obligated to make any payment pursuant to Section 4.1, in which case such
Applicable Borrower may prepay the Loans held solely by the Lender or
Lenders to which it is obligated to make such payment.
(ii) In the absence of a designation by the Applicable
Borrower as described in the preceding clause (i), the Administrative Agent
shall, subject to the above, make such designation in its sole discretion
with a view, but no obligation, to minimize funding losses owing under
Section 4.4.
(iii) Notwithstanding the foregoing, if the amount of any
prepayment of Loans required under this Section 2.9 shall be in excess of
the amount of the ABR Loans and Loans made at the Overnight Rate at the
time outstanding, only the portion of the amount of such prepayment as is
equal to the amount of such outstanding ABR Loans and Loans made at the
Overnight Rate shall be immediately prepaid and, at the election of the
Applicable Borrower, the balance of such required prepayment shall be
either (A) deposited in the Collateral Account and applied to the
prepayment of Eurocurrency Rate Loans on the last day of the then
next-expiring Interest Period for Eurocurrency Rate Loans (with all
interest accruing thereon for the account of U.S. Borrower (subject to the
reasonable fees of the Administrative Agent relating to the administration
of such account)), or (B) prepaid immediately, together with any amounts
owing to the Lenders under Section 4.4.
(iv) Notwithstanding any such deposit in the Collateral
Account, interest shall continue to accrue on such Loans until prepayment.
2.10. Currency Exchange Fluctuations. U.S. Borrower will
implement and maintain internal controls to monitor the borrowings and
repayments of Loans by the Loan Parties and the issuance of and drawings under
Letters of Credit, with the object of preventing any request for a Credit
Extension that would result in the Aggregate Outstanding Revolving Credit being
in excess of the aggregate Revolving Commitments then in effect and promptly
(but in any event within 5 Business Days) identifying and remedying any
circumstance where, by reason of changes in exchange rates, the Aggregate
Outstanding Revolving Credit exceeds the aggregate Revolving Commitments then in
effect.
2.11. Repayment. (a) U.S. Borrower shall repay the Term Loans on
the Business Day immediately prior to the payment dates set forth below in the
percentages of the aggregate outstanding principal amount thereof on the
Effective Date set forth below:
===============================================================
Payment Date Amortization Payment
---------------------------------------------------------------
October 31, 2002 .250%
---------------------------------------------------------------
January 31, 2003 .250%
---------------------------------------------------------------
April 30, 2003 .250%
---------------------------------------------------------------
July 31, 2003 .250%
---------------------------------------------------------------
October 31, 2003 .250%
---------------------------------------------------------------
January 31, 2004 .250%
---------------------------------------------------------------
April 30, 2004 .250%
---------------------------------------------------------------
July 31, 2004 .250%
---------------------------------------------------------------
October 31, 2004 .250%
================================================================
59
================================================================
Payment Date Amortization Payment
----------------------------------------------------------------
January 31, 2005 .250%
----------------------------------------------------------------
April 30, 2005 .250%
----------------------------------------------------------------
July 31, 2005 .250%
----------------------------------------------------------------
October 31, 2005 .250%
----------------------------------------------------------------
January 31, 2006 .250%
----------------------------------------------------------------
April 30, 2006 .250%
----------------------------------------------------------------
July 31, 2006 .250%
----------------------------------------------------------------
October 31, 2006 .250%
----------------------------------------------------------------
January 31, 2007 .250%
----------------------------------------------------------------
April 30, 2007 .250%
----------------------------------------------------------------
July 31, 2007 .250%
----------------------------------------------------------------
October 31, 2007 11.875%
----------------------------------------------------------------
January 31, 2008 11.875%
----------------------------------------------------------------
April 30, 2008 11.875%
----------------------------------------------------------------
July 31, 2008 11.875%
----------------------------------------------------------------
October 31, 2008 11.875%
----------------------------------------------------------------
January 31, 2009 11.875%
----------------------------------------------------------------
April 30, 2009 11.875%
----------------------------------------------------------------
August 23, 2009 11.875%
================================================================
(b) Each Amortization Payment as set forth above in subsection
2.11(a) shall be automatically adjusted upon application of any prepayment
pursuant to Section 2.9.
(c) In the event that the Aggregate Outstanding Revolving Credit
exceeds the Revolving Commitments of all of the Revolving Lenders, the Borrowers
shall immediately prepay the Revolving Loans and BA Rate Loans (on a pro rata
basis) or L/C Borrowings (or Cash Collateralize any outstanding undrawn amounts
of Letters of Credit) such amount to be applied, first, to Revolving Loans and
BA Rate Loans outstanding (on a pro rata basis) , second, to L/C Borrowings, and
third, to Cash Collateralize any outstanding undrawn amounts of Letters of
Credit as specified in subsection 2.11(d).
(d) In the event that the Borrowers shall be required pursuant
to subsection 2.11(c) to Cash Collateralize outstanding undrawn amounts of
Letters of Credit, the Borrowers shall effect the same by paying to the
Administrative Agent immediately available funds in an amount equal to the
required amount (which amount shall be held in the Collateral Account), which
funds shall be retained by the Administrative Agent pursuant to the Collateral
Account as collateral security in the first instance for the L/C Obligations
until such time as all Letters of Credit shall have been terminated and all of
the L/C Obligations paid in full.
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(e) All outstanding Revolving Loans and BA Rate Loans
(including Swing Line Loans) shall be repaid in full on the Revolving Loan
Maturity Date and all outstanding Term Loans shall be paid on the date of Term
Loan Maturity.
2.12. Interest. (a)
(i) Each Loan (other than any Swing Line Loan and any BA
Rate Loan) shall, except as otherwise provided herein, bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at
a rate per annum equal to the applicable Eurocurrency Rate, the Alternate
Base Rate or the applicable Overnight Rate, as the case may be (and subject
to the Applicable Borrower's right to convert to the other Type of Loans
under Section 2.4), plus the Applicable Margin. Each BA Equivalent Loan
shall bear interest at a rate per annum equal to the sum of the BA Rate as
in effect from time to time plus the Applicable Margin. Notwithstanding the
foregoing, Revolving Loans made in (A) Canadian Dollars shall only bear
interest at the applicable Overnight Rate and (B) Revolving Loans made in
Euros or GBP shall only bear interest at the applicable Eurocurrency Rate,
in each case, plus the Applicable Margin.
(ii) Each Swing Line Loan shall bear interest at the rate
set forth in Section 2.18.
(iii) In addition (but without duplication of any amounts
payable pursuant to Article IV), in the case of any Loan made by a Lender
either located in the UK or acting through a lending office located in the
UK to any Borrower or any Lender that is otherwise required to comply with
the reserve asset, liquidity, cash margin or other like requirements
imposed by the Bank of England, the Financial Services Authority or the
European Central Bank, the interest rate applicable to such Loan as
determined in accordance with this Section 2.12 shall be increased by the
percentage rate per annum as represents Mandatory Costs.
(b) Interest on each Loan (other than any Swing Line Loan)
shall be paid in arrears on each Interest Payment Date. Interest shall also be
paid on the date of any prepayment of Loans pursuant to Section 2.9 for the
portion of the Loans so prepaid; provided, however, that in the event that any
Term Loans that are ABR Loans are prepaid pursuant to Section 2.11, interest
accrued on such Loans shall be payable on the next succeeding Interest Payment
Date thereafter (or at final maturity, if earlier).
(c) Notwithstanding subsections (a) and (b) of this Section
2.12, if any amount of principal of or interest on any Loan, or any other amount
payable hereunder or under any other Credit Document, is not paid in full when
due (whether at stated maturity, by acceleration, demand or otherwise), the
Applicable Borrower agrees, to the extent permitted by applicable law, to
compensate the Lenders for additional administrative and other costs they will
thereafter incur and to pay interest on such unpaid principal or other amount
from the date such amount becomes due until the date such amount is paid in
full, after as well as before any entry of judgment thereon, payable on demand,
at a rate per annum equal to (i) in the case of principal due in respect of any
Loan prior to the end of an Interest Period applicable thereto, the interest
rate otherwise applicable to such Loan, plus 2%, and (ii) in the case of any
other amount, (x) if such amount is payable in U.S. Dollars, the Alternate Base
Rate from time to time in effect, plus the Applicable Margin for ABR Loans, plus
2%, and (y) if such amount is payable in a currency other than U.S. Dollars, the
Overnight Rate from time to time in effect, plus the Applicable Margin for
Eurocurrency Rate Loans under the applicable Facility from time to time in
effect, plus 2%
(d) Anything herein to the contrary notwithstanding, the
obligations of each Applicable Borrower to any Lender hereunder shall be subject
to the limitation that payments of interest
61
shall not be required for any period for which interest is computed hereunder,
to the extent (but only to the extent) that contracting for or receiving such
payment by such Lender would be contrary to the provisions of any law applicable
to such Lender limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Lender, and in such event the
Applicable Borrower shall pay such Lender interest at the highest rate permitted
by applicable law.
(e) For the purposes of the Interest Act (Canada) and Canadian
Revolving Credit Outstandings hereunder:
(i) whenever any interest or fee under this Agreement is
calculated using a rate based on a year of 360 days or 365 days, such rate
determined pursuant to such calculation, when expressed as an annual rate,
is equivalent to (A) the applicable rate based on a year of 360 days or 365
days, as the case may be, (B) multiplied by the actual number of days in
the relevant calendar year, and (C) divided by 360 or 365 as the case may
be;
(ii) the principle of deemed reinvestment of interest does
not apply to any interest calculation under this Agreement; and
(iii) the rates of interest stipulated in this Agreement
are intended to be nominal rates and not effective rates or yields.
(f) Notwithstanding any other provisions of this Agreement, in
no event shall the aggregate "interest" (as defined in Section 347 ("Section
347") of the Criminal Code, Revised Statutes of Canada, 1985, c.C-46, as the
same shall be amended, replaced or re-enacted from time to time) payable to the
Lenders under this Agreement exceed the effective annual rate of interest on the
"credit advanced" (as defined in Section 347) hereunder lawfully permitted under
Section 347 and, if any payment, collection or demand pursuant to this Agreement
in respect of "interest" (as defined in Section 347) is determined to be
contrary to the provisions of Section 347, such payment, collection or demand
shall be deemed to have been made by mutual mistake of the Lenders and the
Borrowers and the amount of such payment or collection shall be refunded by the
Lenders to the Borrowers. For the purposes of this Agreement, the effective
annual rate of interest shall be determined in accordance with generally
accepted actuarial practices and principles over the term of the Loans on the
basis of annual compounding for the lawfully permitted rate of interest and, in
the event of dispute, a certificate of a Fellow of the Canadian Institute of
Actuaries appointed by the Administrative Agent for the account of the Borrowers
will be conclusive for the purpose of such determination in the absence of
evidence to the contrary.
2.13. Fees. In addition to certain fees described in Section 3.8:
(a) Fee Letter. U.S. Borrower shall pay fees to each of the
Agents as required by the letter agreement between each Agent and U.S. Borrower
dated July 16, 2002 (the "Fee Letter"). All fees paid under the Fee Letter shall
be paid solely in U.S. Dollars.
(b) Commitment Fees. The Borrowers shall pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee
computed at a rate per annum equal to the Applicable Commitment Fee Percentage
on the average daily amount of such Lender's unused Revolving Commitment (the
"Commitment Fee"), computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter. Such Commitment Fee shall accrue from the
Effective Date to the Revolving Loan Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each Fiscal Quarter (commencing
October 31, 2002) through the Revolving Loan Maturity Date. The Commitment Fee
shall be paid solely in U.S. Dollars.
62
(c) Qualified Offshore Lending Fees. The Borrowers shall pay to
each Qualified Offshore Lender from time to time on demand its standard or
otherwise reasonable processing fees, and other standard or otherwise reasonable
costs and charges, of such Qualified Offshore Lender relating to the making of
Qualified Offshore Loans on the terms hereunder.
(d) Additional Fees. The Borrowers have agreed to pay to the
Administrative Agent and the Arranger additional fees, the amount and dates of
payment of which are embodied in the Fee Letter.
2.14. Computation of Fees, Interest and Dollar Equivalent Amount.
(a) All computations of the Commitment Fee and other fees shall be made on the
basis of a year of 360 days and actual days elapsed. All computations of
interest shall be made on the basis of a 365 or 366-day year, as applicable and
actual days elapsed. Interest and fees shall accrue during each period during
which interest or such fees are computed from the first day thereof to the last
day thereof. If a Loan is repaid on the day on which it is made, one day's
interest shall accrue at the rate per annum applicable thereto as determined in
accordance with Section 2.12 and shall be payable in accordance with the terms
hereof.
(b) Each determination of an interest rate or a Dollar
Equivalent amount by the Administrative Agent shall be conclusive and binding on
each Applicable Borrower and the Lenders in the absence of manifest error. The
Administrative Agent will, at the request of the Applicable Borrower or any
Lender, deliver to the Borrowers or such Lender, as the case may be, a statement
showing the calculations used by the Administrative Agent in determining any
interest rate or Dollar Equivalent amount.
2.15. Payments by Each Applicable Borrower. (a) All payments to
be made by each Applicable Borrower shall be made without set-off, recoupment or
counterclaim. Except with respect payments denominated in Australian Dollars or
as otherwise expressly provided herein, all payments by each Applicable Borrower
shall be made to the Administrative Agent for the account of the Lenders at the
Agent's Payment Office. Payments denominated in Australian Dollars made by any
Applicable Borrower shall be made directly to the applicable Qualified Offshore
Lender (with written notice thereof to the Administrative Agent) at such
Lender's payment office as advised by such Lender to the Applicable Borrower.
Except as otherwise expressly provided herein, all payments by each Applicable
Borrower (i) with respect to principal of, interest on, and any other amount
relating to any Offshore Currency Revolving Loan or Swing Line Loans denominated
in an Offshore Currency, shall be made in the Offshore Currency in which such
Loan is denominated or payable, and (ii) with respect to all other amounts
payable hereunder, shall be made in U.S. Dollars. Such payments shall be made in
Same Day Funds and (x) in the case of Offshore Currency payments, no later than
such time on the dates specified herein as may be determined by the
Administrative Agent (and advised in writing to each Applicable Borrower) to be
necessary for such payment to be credited on such date in accordance with normal
banking procedures in the place of payment, and (y) in the case of any U.S.
Dollar payments, no later than 11:00 a.m. (New York City time) on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share of such payment received by it for the account of the
Lenders in like funds as received. Any payment received by the Administrative
Agent later than the time specified in clause (x) or (y) above, as applicable,
shall be deemed to have been received on the following Business Day, and any
applicable interest or fees shall continue to accrue.
(b) Whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day, and such
extension of time shall be included in the computation of interest or fees, as
the case may be.
63
(c) Unless the Administrative Agent receives notice from an
Applicable Borrower prior to the date on which any payment is due to the Lenders
that such Applicable Borrower will not make such payment in full as and when
required, the Administrative Agent may assume that such Applicable Borrower has
made such payment in full to the Administrative Agent on such date in Same Day
Funds, and the Administrative Agent may (but shall not be required to), in
reliance upon such assumption, distribute to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent an
Applicable Borrower has not made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent on demand such amount
distributed to such Lender, together with interest thereon at (i) in the case of
a payment in an Offshore Currency, the Overnight Rate, or (ii) in the case of a
payment in U.S. Dollars, the U.S. Federal Funds Rate, in each case for each day
from the date such amount is distributed to such Lender until the date repaid.
2.16. Payments by the Lenders to the Administrative Agent. (a)
Unless the Administrative Agent receives notice from a Lender on or prior to the
Effective Date or, with respect to any Borrowing after the Effective Date, at
least one Business Day prior to the date of such Borrowing, that such Lender
will not make available as and when required hereunder to the Administrative
Agent for the account of the Applicable Borrower the amount of that Lender's Pro
Rata Share of the Borrowing, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent in Same Day
Funds on the Borrowing Date, and the Administrative Agent may (but shall not be
required to), in reliance upon such assumption, make available to the Applicable
Borrower on such date a corresponding amount. If and to the extent any Lender
shall not have made its full amount available to the Administrative Agent in
Same Day Funds and the Administrative Agent in such circumstances has made
available to the Applicable Borrower such amount, such Lender shall on the
Business Day following such Borrowing Date make such amount available to the
Administrative Agent, together with interest at (i) in the case of a payment in
an Offshore Currency, the Overnight Rate, and (ii) in the case of a payment in
U.S. Dollars, at the U.S. Federal Funds Rate, in each case for each day during
such period. A notice of the Administrative Agent submitted to any Lender with
respect to amounts owing under this subsection (a) shall be conclusive, absent
manifest error. If such amount is so made available, such payment to the
Administrative Agent shall constitute such Lender's Loan on the date of
Borrowing for all purposes of this Agreement. If such amount is not made
available to the Administrative Agent on the Business Day following the
Borrowing Date, the Administrative Agent will notify the Applicable Borrower of
such failure to fund and, upon demand by the Administrative Agent, the
Applicable Borrower shall pay such amount to the Administrative Agent for the
Administrative Agent's account, together with interest thereon for each day
elapsed since the date of such Borrowing at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing
Date shall not relieve any other Lender of its obligation hereunder (if any) to
make a Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
any Borrowing Date.
2.17. Adjustments. If any Lender (a "Benefited Lender") shall at
any time receive any payment of all or part of the Obligations then due and
owing to it (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in subsection 9.1(f) or (g), or
otherwise (except pursuant to Article IV)), in a greater proportion than any
such payment received by any other Lender, if any, in respect of the Obligations
then due and owing to such other Lender, such Benefited Lender shall purchase
for cash from the other Lenders an interest (by participation or assignment
(each in accordance with Section 11.8)) in such portion of each such other
Lender's Obligations owing to it, as shall be necessary to cause such Benefited
Lender to share the excess payment ratably (based upon Dollar Equivalent
amounts) with each of the Lenders; provided, however, that if all or any portion
of such excess
64
payment is thereafter recovered from such Benefited Lender, such purchase shall
be rescinded, and the purchase price returned, to the extent of such recovery,
but without interest. Each Borrower expressly consents to the foregoing
arrangement and agrees that any holder of a participation in any such Loan or
L/C Obligation, as the case may be, so purchased and any other subsequent holder
of a participation in any Loan or L/C Obligation otherwise acquired may exercise
any and all rights of set-off (in all events subject to Section 11.10) with
respect to any and all monies owing by such Borrower to that holder as fully as
if that holder were a holder of such a Loan or L/C Obligation in the amount of
the participation held by that holder.
2.18. Swing Line.
(a) Subject to the terms and conditions of this Agreement, each
Swing Line Lender severally agrees to make loans in U.S. Dollars and the
Offshore Currencies to each of the Borrowers as set forth beside such Swing Line
Lender's name on Schedule 2.18, on a revolving basis (each such loan, a "Swing
Line Loan") from time to time on any Business Day during the period from the
Effective Date to the Revolving Loan Maturity Date in an aggregate principal
amount at any one time outstanding not to exceed such Swing Line Lender's Swing
Line Commitment with respect to such Borrower and such currency; provided,
however, that no Swing Line Lender shall make any Swing Line Loan to the extent
that, after giving effect to such Swing Line Loan:
(i) the Aggregate Outstanding Revolving Credit would
exceed the Revolving Credit Commitments in effect at such time,
(ii) the Aggregate Offshore Currency Outstanding would
exceed the Offshore Currency Sublimit in effect at such time,
(iii) the Aggregate Foreign Borrower Credit would exceed
the Foreign Borrower Sublimit in effect at such time,
(iv) the Swing Line Outstanding would exceed the lesser of
$75,000,000 and the aggregate Swing Line Commitments in effect at such
time,
(v) such Swing Line Lender's Pro Rata Share of the
Aggregate Outstanding Revolving Credit would exceed its Revolving Credit
Commitments, or
(vi) such Lender's Qualified Offshore Outstandings with
respect to such Borrower (or Borrowers, as the case may be) would exceed
such Lender's Swing Line Commitment with respect to such Borrower (or
Borrowers, as the case may be).
(b) All Swing Line Loans (i) denominated in U.S. Dollars shall
bear interest at (x) the Alternate Base Rate plus the then Applicable Margin or
(y) such lower rate as the applicable Swing Line Lender may agree and (ii)
denominated in any Offshore Currency shall bear interest at (x) the Overnight
Rate plus the then Applicable Margin or (y) such lower rate as the applicable
Swing Line Lender may agree.
(c) Swing Line Loans may be repaid at any time (upon such prior
written notice as required by the applicable Swing Lender) to the applicable
Swing Line Lender and Administrative Agent, in each case subject to the payment
by the Applicable Borrower of any amounts due and owing pursuant to Section 4.4.
All Swing Line Loans shall be due and payable on the Revolving Loan Maturity
Date unless earlier repaid or converted pursuant to the terms hereof. All Swing
Line Loans shall be due and payable in the same currency as such Swing Line Loan
was made subject to clause (e) below. Subject to
65
clause (a) of this Section 2.18, amounts of Swing Line Loans repaid may be
reborrowed under this Section. Payments made by any Applicable Borrower shall be
made directly to the applicable Swing Line Lender (with written notice thereof
to the Administrative Agent) at such Swing Line Lender's payment office as
advised by such Swing Line Lender to the Applicable Borrower.
(d) The Dollar Equivalent amount of any Swing Line Loans
denominated in an Offshore Currency will be determined by the Administrative
Agent on the date of determination in accordance with the provisions of this
Agreement for calculating the same.
(e) Notwithstanding anything herein to the contrary and in
addition to the rights of the Lenders pursuant to Section 2.12(c):
(i) during the existence of an Event of Default (other
than an Event of Default under subsection 9.1(f) or (g)), upon the written
request of any Swing Line Lender to the Administrative Agent and the
Borrowers all or any part of any outstanding Swing Line Loans made by such
Swing Line Lender and denominated in an Offshore Currency shall be
redenominated and converted into ABR Loans (and shall thereafter bear
interest at a rate equal to the Alternate Base Rate plus the Applicable
Margin) effective upon the same Business Day as the applicable Swing Line
Lender makes such request and with respect to such Swing Line Loans
specified in such notice; and
(ii) upon the occurrence of an Event of Default under
subsection 9.1(f) or (g) each Swing Line Loan denominated in an Offshore
Currency shall automatically be redenominated and converted into ABR Loans
(and shall thereafter bear interest at a rate equal to the Alternate Base
Rate plus the Applicable Margin) with effect immediately prior to the Event
of Default under subsection 9.1(f) or (g), without notice of any kind to
the Borrowers which notice is hereby expressly waived by the Borrowers.
2.19. Swing Line Borrowing Procedures.
(a) In order to request a Swing Line Loan, the Applicable
Borrower shall telecopy (or forward by electronic mail or similar means) to the
applicable Swing Line Lender and to the Administrative Agent a duly completed
request setting forth the requested amount (the Dollar Equivalent of which shall
be not less than $500,000) and date of the Swing Line Loan (a "Swing Line Loan
Request"), to be received by such Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. (Local Time other than in the case of Swing Line Loans
in Euros or GBP in respect of which notice shall be given by 1:00pm London time)
on the day of any proposed borrowing. The Administrative Agent shall promptly
confirm with the applicable Swing Line Lender the details and availability of
the requested Swing Line Loan and the Aggregate Available Revolving Credit.
Other than with respect to any borrowing that is provided for by any applicable
Swing Line Reserve then in effect, the Swing Line Lender shall not make any such
Swing Line Loan until it receives such confirmation from the Administrative
Agent. Subject to the terms of this Agreement, the Swing Line Lender may make a
Swing Line Loan available to the Applicable Borrower on the date specified in
the foregoing notice. The Swing Line Lender shall not make any Swing Line Loan
in the period commencing on the first Business Day after it receives written
notice from the Administrative Agent or any Revolving Credit Lender that one or
more of the conditions precedent contained in Article V shall not on such date
be satisfied, and ending when such conditions are satisfied. The Swing Line Loan
Lender shall not otherwise be required to determine that, or take notice
whether, the conditions precedent set forth in Article V have been satisfied in
connection with the making of any Swing Line Loan.
66
(b) Each Swing Line Lender shall notify the Administrative
Agent in writing (which writing may be a telecopy or electronic mail) weekly, by
no later than 10:00 a.m. (New York time) on the first Business Day of each week,
of the aggregate principal amount of its Swing Line Loans then outstanding.
(c) At least once during each three month period (but not more
frequently than once each month), the U.S. Borrower shall notify the
Administrative Agent and each Swing Line Lender in writing (which writing may be
a telecopy or electronic mail) (the "Swing Line Reserve Notice") of the
aggregate principal amount of the Revolving Commitments which are to be reserved
for the making of Swing Line Loans. The Swing Line Reserve Notice shall set
forth such information with respect to each Swing Line Commitment of each Swing
Line Lender. The U.S. Borrower may withdraw all or a portion of the Swing Line
Reserve Notice at any time upon 2 Business Days written notice to the
Administrative Agent and the applicable Swing Line Lender.
2.20. Refunding of Swing Line Loans.
(a) Subject to Section 2.1(a);
(i) Any Swing Line Lender may, solely in respect of Swing
Line Loans made in U.S. Dollars or a Standard Currency, at any time in its
sole and absolute discretion, on behalf of the Applicable Borrower, with
respect to any Swing Line Loan (and each Borrower hereby irrevocably
directs any Swing Line Lender to act on its behalf), by written notice,
require each Revolving Lender to make a Revolving Loan to the Applicable
Borrower in the Applicable Currency in which such Swing Line Loan was made,
in each case, in an amount equal to such Revolving Lender's Pro Rata Share
of the principal amount of the Swing Line Loans owed to such Swing Line
Lender as specified in such notice.
(ii) At any time after the occurrence of, and during the
continuance of, an Event of Default (other than an Event of Default under
subsection 9.1(f) or (g)), any Swing Line Lender may, in its sole and
absolute discretion, on behalf of the Applicable Borrower, with respect to
any Swing Line Loan (and each Borrower hereby irrevocably directs any Swing
Line Lender to act on its behalf), by written notice, require each
Revolving Lender to make an ABR Loan to the Applicable Borrower, in each
case, in an amount equal to such Revolving Lender's Pro Rata Share of the
Dollar Equivalent of the principal amount of the Swing Line Loans owed to
such Swing Line Lender as specified in such notice.
(b) Unless any of the events described in subsection 9.1(f) or
(g) shall have occurred (in which event the procedures of Section 2.21 shall
apply), and regardless of whether the conditions precedent set forth in this
Agreement to the making of a Revolving Loan are then satisfied or the aggregate
amount of such Revolving Loans is not in the minimum or integral amount
otherwise required hereunder, each Revolving Lender shall make the proceeds of
its Revolving Loan available to the Administrative Agent for the account of such
Swing Line Lender at the office in Same Day Funds and in the requested currency
by 10:00 a.m. (Local Time), in each case on the Business Day next succeeding the
date such notice is given unless, in the case of an Offshore Currency Revolving
Loan, the Revolving Lender gives notice to the Administrative Agent on the day
such notice is given that it is unable to fund Offshore Currency Revolving Loans
at a reasonable cost to it, in which case such Lender shall make its Pro Rata
Share of such Revolving Loan as an ABR Loan in the Dollar Equivalent amount of
the amount it would otherwise would have made in such Offshore Currency. The
proceeds of such Revolving Loans shall be immediately applied to repay the
outstanding Swing Line Loans of the applicable Swing Line Lender.
67
2.21. Participations in Swing Line Loans. (a) If an event
described in subsection 9.1(f) or (g) occurs (or for any reason the Revolving
Lenders may not or do not make Revolving Loans pursuant to Section 2.20), each
Revolving Lender shall, upon notice from the Administrative Agent, purchase from
the applicable Swing Line Lender (and the Swing Line Lender will sell to each
such Revolving Lender) an undivided participation interest in all outstanding
Swing Line Loans in an amount equal to its Pro Rata Share of the Dollar
Equivalent of the outstanding principal amount of the Swing Line Loans of such
Swing Line Lender (and each Revolving Lender will immediately transfer to the
Administrative Agent, for the account of the applicable Swing Line Lender, in
Same Day Funds, the amount of its participation as if it were refunding such
Swing Line Loans pursuant to Section 2.20).
(a) Whenever, at any time after the Swing Line Lender has
received payment for any Revolving Lender's participation interest in the Swing
Line Loans pursuant to clause (a) above, the Swing Line Lender receives any
payment on account thereof, such Swing Line Lender will distribute to the
Administrative Agent for the account of such Revolving Lender its participation
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Lender's
participation interest was outstanding and funded) in like funds as received;
provided, however, that in the event that such payment received by the Swing
Line Lender is required to be returned, such Revolving Lender will return to the
Administrative Agent for the account of the Swing Line Lender any portion
thereof previously distributed by the Swing Line Lender to it in like funds as
such payment is required to be returned by the Swing Line Lender.
2.22. Swing Line Participation Obligations Unconditional. (a)
Each Revolving Lender's obligation to make Revolving Loans pursuant to Section
2.20 and/or to purchase participation interests in Swing Line Loans pursuant to
Section 2.21 shall be absolute and unconditional and shall not be affected by
any circumstance whatsoever (other than Section 2.1(a)), including (i) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Lender may have against any Swing Line Lender, any Loan Party or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of an Event
of Default; (iii) any adverse change in the condition (financial or otherwise)
of any Loan Party or any other Person; (iv) any breach of this Agreement by any
Loan Party or any other Revolving Lender; (v) any inability of any Borrower to
satisfy the conditions precedent to borrowing set forth in this Agreement on the
date upon which any Swing Line Loan is to be refunded or any participation
interest therein is to be purchased; or (vi) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.
2.23. Conditions to Swing Line Loans. Notwithstanding any other
provision of this Agreement, no Swing Line Lender shall be obligated to make any
Swing Line Loan if an Event of Default or Unmatured Event of Default exists or
would result therefrom.
2.24. Substitution of Lenders in Certain Circumstances. In the
event that (x) S&P or ▇▇▇▇▇'▇ shall, after the date that any Person becomes a
Lender, downgrade the long-term certificate of deposit ratings of such Lender,
and the resulting ratings shall be below BBB- or Baa3, respectively, or the
equivalent or (y) any Revolving Lender gives notice to the Administrative Agent
that it is unable to make, convert or continue any Offshore Currency Revolving
Loan pursuant to subsection 2.5(b) or (c) or Section 2.21, then each Applicable
Borrower or the Administrative Agent shall each have the right, but not the
obligation, upon notice to such Lender and the Administrative Agent, to replace
such Lender with a financial institution (a "Substitute Lender") acceptable to
the Administrative Agent and provided no Unmatured Event of Default or Default
is then continuing, acceptable to each Applicable Borrower (such consents not to
be unreasonably withheld or delayed; provided, however, that no such consent
shall be required if the Substitute Lender is an existing Lender), and upon any
such downgrading of any Lender's long-term certificate of deposit rating or the
giving of such notice, each such Lender hereby agrees to transfer and assign (in
accordance with and subject to the restrictions contained in Section 11.8) its
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Commitments, Loans, Notes and other rights and obligations under this Agreement
and all other Credit Documents to such Substitute Lender; provided, however,
that (i) such assignment shall be without recourse, representation or warranty
(other than that such Lender owns the Commitments, Loans, and Notes being
assigned, free and clear of any Liens) and (ii) the purchase price paid by the
Substitute Lender shall be in the amount of such Lender's Loans and its Pro Rata
Share of outstanding L/C Obligations, together with all accrued and unpaid
interest and fees in respect thereof, plus all other amounts (other than the
amounts (if any) demanded and unreimbursed under Sections 4.1, 4.3 and 4.4,
which shall be paid by each Applicable Borrower) owing to such Lender hereunder.
Upon any such termination or assignment, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of any provisions of
this Agreement which by their terms survive the termination of this Agreement.
Upon the effectiveness of such assignment, the Substitute Lender shall become a
"Lender" hereunder for all purposes of this Agreement.
2.25. Special Provisions Relating to Dollar Loans and Standard
Currency Loans made to ▇▇▇▇▇ Australia.
(a) Each provision in this Section 2.25 relates only to
Revolving Loans denominated in either U.S. Dollars, a Standard Currency, or, if
so notified by the applicable Offshore Currency Lender to the Administrative
Agent, Australian Dollars and in each case, made to ▇▇▇▇▇ Australia.
(b) Each Revolving Lender, ▇▇▇▇▇ Australia and the
Administrative Agent agree that on the Business Day specified in a Notice of
Borrowing given in relation to a Borrowing of either Dollar Loans or Standard
Currency Loans by ▇▇▇▇▇ Australia:
(i) the provision by such Revolving Lender of its Pro
Rata Share of a Borrowing by ▇▇▇▇▇ Australia specified in such Notice of
Borrowing will constitute a subscription for Australian Debentures to be
issued by ▇▇▇▇▇ Australia under this Agreement; and
(ii) ▇▇▇▇▇ Australia will issue to each Revolving Lender,
Australian Debentures having an aggregate principal amount outstanding
equal to such Revolving Lender's Pro Rata Share of the Borrowing by ▇▇▇▇▇
Australia requested in such Notice of Borrowing.
(c) Each Australian Debenture is issued on the conditions set
out in this Agreement by the Administrative Agent entering the Australian
Debentures in the Australian Register.
(d) No certificates will be issued in respect of Australian
Debentures unless required by law.
(e) Each entry in the Australian Register in respect of an
Australian Debenture constitutes:
(i) an acknowledgment to the relevant Revolving Lender by
▇▇▇▇▇ Australia of the indebtedness of ▇▇▇▇▇ Australia under this
Agreement;
(ii) an undertaking by ▇▇▇▇▇ Australia to the relevant
Revolving Lender to make all payments of principal and interest in respect
of the Australian Debentures in accordance with the terms of the Australian
Debentures and this Agreement; and
(iii) an entitlement to the other benefits given to the
relevant Revolving Lender under this Agreement in respect of the Australian
Debentures.
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(f) Entries in the Australian Register in relation to an
Australian Debenture constitute conclusive evidence (subject to the provisions
of Section 7.18) that the person so entered is the absolute owner of the
Australian Debenture subject to correction for fraud or error.
(g) Upon a person acquiring title to any Australian Debenture
by virtue of becoming registered as the owner of that Australian Debenture, all
rights and entitlements arising by virtue of this Agreement in respect of that
Australian Debenture vest absolutely in the registered owner of the Australian
Debenture free of all equities. Any person who has previously been registered as
the owner of the Australian Debenture does not have, and is not entitled to
assert against ▇▇▇▇▇ Australia or the Australian Registrar or the registered
owner of the Australian Debenture for the time being and from time to time, any
rights, benefits or entitlements in respect of the Australian Debenture.
(h) Each Australian Debenture may only be transferred in whole
and in accordance with Section 11.8.
(i) An Australian Debenture is transferred when the details of
the transfer are registered in the Australian Register.
(j) The Australian Borrower appoints the Administrative Agent
as the Australian Registrar of the Australian Debentures on the terms and
conditions of this Agreement and the Administrative Agent, accepts that
appointment.
(k) The Australian Registrar agrees to establish and maintain
the Australian Register as agent of ▇▇▇▇▇ Australia in accordance with this
Agreement.
(l) The Australian Registrar must enter the following
information in the Australian Register:
(i) the number of Australian Debentures held by an
Revolving Lender; and
(ii) the issue date of each Australian Debenture; and
(iii) the name and address of each Revolving Lender who is
an initial holder of the Australian Debenture and each Revolving Lender to
whom each Australian Debenture is subsequently transferred; and
(iv) the Revolving Loan Maturity Date for each Australian
Debenture issued; and
(v) details of all transfers, assignments or
substitutions (including date, amount and parties); and
(vi) each Revolving Lender's tax file number or exemption
details (if provided); and
(vii) each date when interest is paid on each Australian
Debenture; and
(viii) any other information which ▇▇▇▇▇ Australia and the
Australian Registrar consider necessary or desirable.
(m) No notice of any trust or other interest in any Australian
Debenture will be entered in the Australian Register. ▇▇▇▇▇ Australia, the
Administrative Agent and the Australian ▇▇▇▇▇▇▇▇▇
▇▇
need not take notice of any other interest in, or claim to, an Australian
Debenture, except as ordered by a court of competent jurisdiction or required by
law.
(n) The Australian Registrar agrees to:
(i) update the Australian Register when it is notified of
any change in any of the details recorded in respect of an Revolving Lender
under this Section 2.25; and
(ii) correct the Australian Register if it becomes aware
that any details in the Australian Register are incorrect or incomplete.
(o) Each Revolving Lender and ▇▇▇▇▇ Australia may inspect the
Australian Register on prior reasonable notice to the Australian Registrar.
(p) If a Revolving Lender asks, the Australian Registrar agrees
to provide to each Revolving Lender a certified extract of the information
entered in the Register in relation to that Revolving Lender and the Australian
Debentures held by it.
(q) The Administrative Agent may not retire as Australian
Registrar, and ▇▇▇▇▇ Australia may not remove the Australian Registrar unless
the Administrative Agent has retired, or been removed, and a successor
Administrative Agent has been appointed in accordance with this Agreement. Upon
appointment of the successor Administrative Agent:
(i) the Australian Registrar is taken to have retired; and
(ii) the successor Administrative Agent is taken to have
been appointed by the Australian Borrower as the successor Australian
Registrar.
(r) ▇▇▇▇▇ Australia agrees to redeem each Australian Debenture
issued under this Agreement on the Revolving Loan Maturity Date.
(s) ▇▇▇▇▇ Australia agrees to pay interest on each Australian
Debenture issued in accordance with this Agreement.
(t) ▇▇▇▇▇ Australia agrees to make all payments under an
Australian Debenture in accordance with this Agreement.
(u) The Administrative Agent represents and warrants, severally
and not jointly, as to itself that:
(i) on behalf of ▇▇▇▇▇ Australia, it made offers or will
make offers for the subscription of each issue of Australian Debentures and
corresponding participations to at least 10 offerees, each of whom it
reasonably believed, at the time of the offer, was carrying on a business
of providing finance, or investing or dealing in securities, in the course
of operating in financial markets; and
(ii) it reasonably believed each offeree was not an
Associate of any of the other offerees, the Lenders, the Syndication Agent,
the Documentation Agent, the Administrative Agent for the Lenders or ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.
▇▇
(▇) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ represents and warrants that none of the
offerees referred to above (as disclosed to it by the Lenders) was an Associate
of ▇▇▇▇▇ Australia and agrees to:
(i) upon request, provide the Administrative Agent with
the name of each of its Associates; and
(ii) notify the Administrative Agent immediately if any
proposed transferee of Australian Debentures or Revolving Lender disclosed
to it is known or suspected by it to be an Associate of ▇▇▇▇▇ Australia.
(w) Each Revolving Lender represents and warrants that:
(i) an offer to participate in a Borrowing by ▇▇▇▇▇
Australia and to subscribe for the Australian Debentures in accordance with
this agreement was made to it by the Administrative Agent on behalf of
▇▇▇▇▇ Australia;
(ii) it was at the time of the offer, and will be at the
time of issue to it of an Australian Debenture, carrying on a business of
providing finance, or investing or dealing in securities, in the course of
operating in financial markets;
(iii) except as disclosed to ▇▇▇▇▇ Australia, it is not,
and at the time it acquired an Australian Debenture it will not be, so far
as it has actual knowledge, an Associate of any other person which was
offered an Australian Debenture, any Agent or the Australian Borrower.
(x) At the cost of ▇▇▇▇▇ Australia, each Revolving Lender and
the Administrative Agent for the Lenders will, so far as it is reasonably able
to do so and as soon as reasonably practicable provide any other information as
may reasonably be required by ▇▇▇▇▇ Australia in order to ensure that the
requirements of section 128F of the Tax Act are satisfied, provided that in no
such circumstances shall a Revolving Lender or, the Administrative Agent be
obliged to disclose any information which would be contrary to, or prohibited
by, any relevant law, regulation or directive of confidentiality binding on such
Revolving Lender or the Administrative Agent.
2.26. Special Provisions Relating to Loans made to Foreign
Holdco. The Parties agree that the draw down, repayment of funds and payment of
interest and fees made by Foreign Holdco under this Agreement shall be made by
▇▇▇▇▇ Spain Holdings, S.L., Bilbao, Sucursal en Suiza, a branch of Foreign
Holdco established in Switzerland. Should funds be drawn by Foreign Holdco
directly (and not by its Swiss branch), a financial operation number (numero de
operacion financiera) from the Bank of Spain (Banco de Espana) shall first be
obtained by Foreign Holdco prior to each draw down of funds, notwithstanding
other notices to be made by Foreign Holdco to the Bank of Spain pursuant to
Spanish law with respect to repayment of funds. The Obligations of Foreign
Holdco hereunder or under any Credit Document shall be unaffected by the
foregoing required payment process.
ARTICLE III
THE LETTERS OF CREDIT
3.1. The Letter of Credit Subfacility. (a) On the terms and
conditions set forth herein:
(i) each L/C Lender agrees, (A) from time to time on any
Business Day during the period from the Effective Date to the Termination
Date, to issue Letters of Credit
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(including irrevocable standby letters of credit) for the account of the
U.S. Borrower, RPIVL, Grief UK and Foreign Holdco (or, if a Letter of
Credit is for the account of a Subsidiary, jointly for the account of the
applicable Borrower and such Subsidiary) and to amend or renew Letters of
Credit previously issued by it, in accordance with subsections 3.2(c) and
3.2(d), and (B) to honor properly drawn drafts under the Letters of Credit,
in each case in an aggregate Dollar Equivalent principal amount for all
Letters of Credit issued by such Lender not to exceed such Lender's Letter
of Credit Commitment for such currency; and
(ii) each L/C Lender that is a Qualified Offshore Lender
agrees, (A) from time to time on any Business Day during the period from
the Effective Date to the Termination Date, to issue Letters of Credit
(including irrevocable standby letters of credit) for the account of the
applicable Qualified Offshore Borrower (or, if a Letter of Credit is for
the account of a Subsidiary, jointly for the account of the applicable
Borrower and such Subsidiary) and to amend or renew Letters of Credit
previously issued by it, in accordance with subsections 3.2(c) and 3.2(d),
and (B) to honor properly drawn drafts under the Letters of Credit, in each
case in an aggregate Dollar Equivalent principal amount for all Letters of
Credit issued by such Lender not to exceed such Lender's Letter of Credit
Commitment for such currency.
(iii) the Revolving Lenders severally agree to participate
in Letters of Credit Issued for the accounts of the Borrowers (including
any Letter of Credit issued jointly for the account of a Borrower and any
Subsidiary);
provided, however, that no L/C Lender shall be obligated to Issue, and no Lender
shall be obligated to participate in, any Letter of Credit if as of the date of
Issuance of such Letter of Credit (the "Issuance Date") with respect to any
Issuance for the account of any Borrower (or jointly for the account of a
Borrower and a Subsidiary) if after giving effect thereto:
(A) the Aggregate Outstanding Revolving Credit would
exceed the aggregate Revolving Commitments,
(B) such Revolving Lender's Pro Rata Share of the
Aggregate Outstanding Revolving Credit would exceed such
Revolving Lender's Revolving Commitments,
(C) the Dollar Equivalent of the Effective Amount of all
L/C Obligations would exceed the L/C Commitment,
(D) such Lender's Qualified Offshore Outstandings with
respect to such Borrower (or Borrowers, as the case may be)
would exceed such Lender's Qualified Offshore Commitment
with respect to such Borrower (or Borrowers, as the case may
be), or
(E) the Aggregate Offshore Currency Outstanding would
exceed the Offshore Currency Sublimit in effect at such time
or the Aggregate Foreign Borrower Credit would exceed the
Foreign Borrower Sublimit in effect at such time.
Within the foregoing limits, and subject to the other terms and conditions
hereof, the Borrowers' ability to obtain Letters of Credit shall be fully
revolving, and, accordingly, the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit which have expired or
which have been drawn upon and reimbursed. Letters of Credit may be denominated
in U.S. Dollars or Offshore Currencies.
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(b) No L/C Lender is under any obligation to Issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain
such L/C Lender from issuing such Letter of Credit, or any Requirement of
Law applicable to such L/C Lender or any request or directive (whether or
not having the force of law) from any Governmental Authority with
jurisdiction over such L/C Lender shall prohibit, or request that such L/C
Lender refrain from, the Issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon such L/C Lender with
respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such L/C Lender is not otherwise compensated
hereunder) not in effect on the Effective Date, or shall impose upon such
L/C Lender any unreimbursed loss, cost or expense which was not applicable
on the Effective Date and which such L/C Lender in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
(ii) such L/C Lender has received written notice from any
Lender, the Administrative Agent or any Borrower, on or prior to the
Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in Article
V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit is
(A) more than twelve months after the date of such Issuance for Letters of
Credit, unless the Required Revolving Lenders have approved such expiry
date in writing; provided, however, that any standby Letter of Credit may
be automatically extendible for periods of up to one year so long as no
Event of Default or Unmatured Event of Default then exists and such Letter
of Credit provides that such L/C Lender retains an option reasonably
satisfactory to such L/C Lender, to terminate such Letter of Credit prior
to each extension date, or (B) after the Termination Date, unless all of
the Revolving Lenders have approved such expiry date in writing;
(iv) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance reasonably acceptable to
such L/C Lender, or the Issuance of a Letter of Credit shall violate any
applicable policies of such L/C Lender;
(v) such Letter of Credit is denominated in a currency
other than U.S. Dollars or an Offshore Currency; or
(vi) an Event of Default or Unmatured Event of Default has
occurred and is continuing.
3.2. Issuance, Amendment and Renewal of Letters of Credit. (a)
Each Letter of Credit (other than an Existing Letter of Credit) shall be Issued
upon the irrevocable written request of the Applicable Borrower received by such
L/C Lender (with a copy sent by the Applicable Borrower to the Administrative
Agent) at least three Business Days (or such shorter time as such L/C Lender may
agree in a particular instance in its sole discretion) prior to the proposed
date of Issuance. Each such request for Issuance of a Letter of Credit shall be
by facsimile, confirmed in an original writing, in the form of an L/C
Application, and shall specify in form and detail reasonably satisfactory to
such L/C Lender:
(i) the proposed date of Issuance of the Letter of Credit
(which shall be a Business Day);
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(ii) the face amount of the Letter of Credit (which shall
not be less than the Dollar Equivalent of $500,000 unless otherwise agreed
by such L/C Lender) and the Applicable Currency;
(iii) the expiry date of the Letter of Credit;
(iv) the name and address of the beneficiary thereof;
(v) the documents to be presented by the beneficiary of
the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by
the beneficiary in case of any drawing thereunder;
(vii) the type of Letter of Credit; and
(viii) such other matters such L/C Lender may reasonably
require.
(b) At least two Business Days prior to the Issuance of any
Letter of Credit the applicable L/C Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a
copy of the L/C Application or L/C Amendment Application from the Applicable
Borrower and, if not, such L/C Lender will provide the Administrative Agent with
a copy thereof. Unless the applicable L/C Lender has received, on or before the
Business Day immediately preceding the date such L/C Lender is to issue a
requested Letter of Credit, (A) notice from the Administrative Agent directing
such L/C Lender not to Issue such Letter of Credit because such Issuance is not
then permitted under subsection 3.1(a) as a result of the limitations set forth
in clauses (1) through (3) thereof, or (B) a notice described in subsection
3.1(b)(ii), then, subject to the terms and conditions hereof, such L/C Lender
shall, on the requested date, Issue a Letter of Credit for the account of the
Applicable Borrower (or jointly for the account of the Applicable Borrower and
the applicable Subsidiary) in accordance with such L/C Lender's usual and
customary business practices.
(c) From time to time while a Letter of Credit is outstanding
and prior to the Revolving Loan Maturity Date, each L/C Lender will, upon the
written request of the Applicable Borrower received by each L/C Lender (with a
copy sent by the Applicable Borrower to the Administrative Agent) at least three
days (or such shorter time as such L/C Lender may agree in a particular instance
in its sole discretion) prior to the proposed date of amendment, amend any
Letter of Credit Issued by it. Each such request for amendment of a Letter of
Credit shall be made by facsimile, confirmed immediately in an original writing,
made in the form of an L/C Amendment Application and shall specify in form and
detail reasonably satisfactory to such L/C Lender: (i) the Letter of Credit to
be amended; (ii) the proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (iii) the nature of the proposed amendment; and (iv)
such other matters as such L/C Lender may reasonably require. No L/C Lender
shall be under any obligation to, and shall not, amend any Letter of Credit if:
(A) such L/C Lender would have no obligation at such time to Issue such Letter
of Credit in its amended form under the terms of this Agreement; or (B) the
beneficiary of any such Letter of Credit does not accept the proposed amendment
to the Letter of Credit. The Administrative Agent will promptly notify the
Revolving Lenders of the receipt by it of any L/C Application or L/C Amendment
Application.
(d) Each L/C Lender and the Revolving Lenders agree that, while
a standby Letter of Credit is outstanding and prior to the Revolving Loan
Maturity Date, at the option of the Applicable Borrower and upon the written
request of the Applicable Borrower received by such L/C Lender (with a copy sent
by the Applicable Borrower to the Administrative Agent) at least three Business
Days (or such
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shorter time as such L/C Lender may agree in a particular instance in its sole
discretion) prior to the proposed date of notification of renewal, such L/C
Lender shall be entitled to authorize the automatic renewal of any Letter of
Credit Issued by it. Each such request for renewal of a Letter of Credit shall
be made by facsimile, confirmed in an original writing, in the form of an L/C
Amendment Application, and shall specify in form and detail reasonably
satisfactory to such L/C Lender: (i) the standby Letter of Credit to be
reviewed; (ii) the proposed date of notification of renewal of the Letter of
Credit (which shall be a Business Day not more than 60 days prior to the expiry
date of the Letter of Credit being renewed); (iii) the revised expiry date of
the Letter of Credit; and (iv) such other matters as such L/C Lender may
reasonably require. No L/C Lender shall be under any obligation so to renew any
Letter of Credit and shall not do so if: (A) such L/C Lender would have no
obligation at such time to Issue or amend such Letter of Credit in its renewed
form under the terms of this Agreement; (B) the beneficiary of any such Letter
of Credit does not accept the proposed renewal of the Letter of Credit. If any
outstanding Letter of Credit shall provide that it shall be automatically
renewed unless the beneficiary thereof receives notice from such L/C Lender that
such Letter of Credit shall not be renewed, and if at the time of renewal such
L/C Lender would be entitled to authorize the automatic renewal of such Letter
of Credit in accordance with this subsection 3.2(d) upon the request of the
Applicable Borrower but such L/C Lender shall not have received any L/C
Amendment Application from the Applicable Borrower with respect to such renewal
or other written direction by the Application Borrower with respect thereto,
such L/C Lender shall nonetheless be permitted to allow such Letter of Credit to
renew, and the Applicable Borrower and the Revolving Lenders hereby authorize
such renewal, and, accordingly, such L/C Lender shall be deemed to have received
an L/C Amendment Application from the Applicable Borrower requesting such
renewal.
(e) Each L/C Lender may, at its election (or as required by the
Administrative Agent at the direction of the Required Revolving Lenders),
deliver any notices of termination or other communications to any Letter of
Credit beneficiary or transferee, and take any other reasonable action, at any
time and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Termination Date.
(f) This Agreement shall control in the event of any
inconsistency between this Agreement and any L/C-Related Document (other than
any Letter of Credit) or if any provision of any L/C-Related Document is more
restrictive or burdensome than a comparable provision in this Agreement or to
the extent it provides for a Lien on property or assets.
(g) Each L/C Lender will also deliver to the Administrative
Agent, concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or renewal of a Letter of Credit.
(h) Each L/C Lender shall comply with the following:
(i) give the Administrative Agent written notice (or
telephonic notice confirmed promptly thereafter in writing), which writing
may be a telecopy or electronic mail, of the Issuance or renewal of a
Letter of Credit issued by it, of all drawings under a Letter of Credit
issued by it and the payment (or the failure to pay when due) by any
Borrower of any L/C Obligation when due (which notice the Administrative
Agent shall promptly transmit by telecopy, electronic mail or similar
transmission to each Lender);
(ii) upon the request of any Revolving Lender, furnish to
such Credit Lender copies of any Letter of Credit reimbursement agreement
to which such L/C Lender is a party and such other documentation as may
reasonably be requested by such Revolving Lender; and
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(iii) no later than 10 Business Days following the last day
of each calendar month, provide to the Administrative Agent (and the
Administrative Agent shall provide a copy to each Lender requesting the
same) and the U.S. Borrower separate schedules for documentary and standby
letters of credit issued by it, in form and substance reasonably
satisfactory to the Administrative Agent, setting forth the aggregate L/C
Obligations outstanding at the end of each month and any information
requested by the U.S. Borrower or the Administrative Agent relating
thereto.
3.3. Risk Participations, Drawings and Reimbursements. (a)
Immediately upon the Issuance of each Letter of Credit, each Revolving Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the applicable L/C Lender a participation in such Letter of Credit
in an amount equal to the product of (i) the Pro Rata Share of such Revolving
Lender times (ii) the maximum amount available to be drawn under such Letter of
Credit.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, each L/C Lender will promptly
notify the Applicable Borrower (but the failure to so notify any Borrower shall
not impair any rights of the Lenders or modify any obligation of the Borrowers).
The Applicable Borrower shall reimburse each L/C Lender prior to 1:00 p.m. (New
York City time), on each date that any amount is paid by such L/C Lender under
any Letter of Credit Issued for the account of such Borrower (each such date, an
"Honor Date"), if such payment by such L/C Lender is made prior to 11:00 a.m.
(New York City time) on the Honor Date or by 11:00 a.m. (New York City time) on
the next Business Day after the Honor Date if such payment is made on or after
11:00 a.m. (New York City time) on the Honor Date, in each case in an amount
equal to the amount so paid by such L/C Lender. In the event the Applicable
Borrower fails to reimburse any L/C Lender for the full amount of any drawing
under any Letter of Credit when due, such L/C Lender will promptly notify the
Administrative Agent and the Administrative Agent will promptly notify each
Revolving Lender thereof. Thereupon the Applicable Borrower shall be deemed to
have requested ABR Loans in an amount equal to the Dollar Equivalent of such
reimbursement, to be made by the Revolving Lenders and to be disbursed on the
date such reimbursement is due under such Letter of Credit, subject to the
amount of the unutilized portion of the Revolving Commitment and subject to the
conditions set forth in subsections 5.2(b) and (c). Any notice given by any L/C
Lender or the Administrative Agent pursuant to this subsection 3.3(b) may be
oral if immediately confirmed in writing (including by facsimile); provided,
however, that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(c) Each Revolving Lender shall upon any notice pursuant to
subsection 3.3(b) or 3.3(d) make available to the Administrative Agent for the
account of each applicable L/C Lender an amount in U.S. Dollars and in Same Day
Funds equal to its Pro Rata Share of the amount of the drawing, whereupon the
participating Revolving Lenders shall (subject to subsection 3.3(d)) each be
deemed to have made an ABR Loan to the Applicable Borrower in that amount with
interest at a rate per annum equal to the Alternate Base Rate, plus the
Applicable Margin for ABR Loans. If any Revolving Lender so notified fails to
make available to the Administrative Agent for the account of any L/C Lender the
amount of such Revolving Lender's Pro Rata Share of the amount of the drawing by
no later than 1:00 p.m. (New York time) on the date so requested, then interest
shall accrue on such Revolving Lender's obligation to make such payment, from
the date so requested to the date such Revolving Lender makes such payment, at a
rate per annum equal to the U.S. Federal Funds Rate in effect from time to time
during such period. The Administrative Agent will promptly give notice of the
occurrence of the Honor Date, but failure of the Administrative Agent to give
any such notice on the Honor Date or in sufficient time to enable any Revolving
Lender to effect such payment on the date reimbursement is due shall not relieve
such Revolving Lender from its obligations under this Section 3.3.
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(d) With respect to any unreimbursed drawing that is not
converted into Revolving Loans to the Applicable Borrower in whole or in part,
because of such Borrower's failure to satisfy the conditions set forth in
subsections 5.2(b) and (c) or for any other reason, such Borrower shall be
deemed to have incurred from such L/C Lender an L/C Borrowing in the amount of
such drawing, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at a rate per annum equal to (i) in the
case of a drawing in U.S. Dollars, the Alternate Base Rate, plus 2% per annum,
and (ii) in the case of a drawing in an Offshore Currency, the Overnight Rate
applicable to such Offshore Currency from time to time in effect, plus 2% per
annum, and each Revolving Lender's payment to such L/C Lender pursuant to
subsection 3.3(c) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such Revolving
Lender in satisfaction of its participation obligation under this Section 3.3.
(e) Each Revolving Lender's obligation in accordance with this
Agreement to make the Revolving Loans or L/C Advances, as contemplated by this
Section 3.3, as a result of a drawing under a Letter of Credit, shall be
absolute and unconditional and without recourse to such L/C Lender and shall not
be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may have against
such L/C Lender, the Applicable Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an Event of Default, an
Unmatured Event of Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided, however, that each Revolving Lender's obligation to
make Revolving Loans under this Section 3.3 is subject to the conditions set
forth in subsections 5.2.(b) and (c).
3.4. Repayment of Participations. (a) Upon (and only upon)
receipt by the Administrative Agent for the account of any L/C Lender of Same
Day Funds from the Applicable Borrower (i) in reimbursement of any payment made
by such L/C Lender under the Letter of Credit with respect to which any
Revolving Lender has paid the Administrative Agent for the account of such L/C
Lender for such Revolving Lender's participation in the Letter of Credit
pursuant to Section 3.3 or (ii) in payment of interest thereon, the
Administrative Agent will pay to each Revolving Lender, in the same funds as
those received by the Administrative Agent for the account of such L/C Lender,
the amount of such Revolving Lender's Pro Rata Share of such funds, and such L/C
Lender shall receive the amount of the Pro Rata Share of such funds of any
Revolving Lender that did not so pay the Administrative Agent for the account of
such L/C Lender.
(b) If the Administrative Agent or any L/C Lender is required at
any time to return to the Applicable Borrower, or to a trustee, receiver,
liquidator or custodian, or any official in any Insolvency Proceeding, any
portion of any payment made by such Borrower to the Administrative Agent for the
account of such L/C Lender pursuant to subsection 3.4(a) in reimbursement of a
payment made under any Letter of Credit or interest or fee thereon, each
Revolving Lender shall, on demand of the Administrative Agent, forthwith return
to the Administrative Agent or such L/C Lender the amount of its Pro Rata Share
of any amount so returned by the Administrative Agent or such L/C Lender, plus
interest thereon from the date such demand is made to the date such amount is
returned by such Revolving Lender to the Administrative Agent or such L/C
Lender, at a rate per annum equal to the U.S. Federal Funds Rate in effect from
time to time.
3.5. Role of each L/C Lender. (a) Each Revolving Lender and the
Borrowers agree that, in paying any drawing under a Letter of Credit, such L/C
Lender shall not have any responsibility to obtain any document (other than any
sight draft and certificates or other documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document.
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(b) None of the Agents, any of their respective Affiliates or
any of the respective correspondents, participants or assignees of any L/C
Lender shall be liable to any Revolving Lender or any Borrower for: (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Revolving Lenders (including the Required Revolving Lenders, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) Each Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit issued for its account; provided, however, that this assumption is not
intended to, and shall not, preclude a Borrower from pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the Agents, any of their respective Affiliates or
any of the respective correspondents, participants or assignees of any L/C
Lender shall be liable or responsible for any of the matters described in
clauses (i) through (iv) of Section 3.6; provided, however, that, anything in
such clauses to the contrary notwithstanding, a Borrower may have a claim
against any L/C Lender, and such L/C Lender may be liable to such Borrower, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by such Borrower which such Borrower proves were
caused directly by such L/C Lender's willful misconduct or gross negligence or
such L/C Lender's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) any L/C Lender may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) no L/C Lender shall be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.6. Obligations Absolute. The obligations of the Borrowers under
this Agreement and any L/C-Related Document to reimburse each L/C Lender for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following: (i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document; (ii) the existence of any claim, set-off,
defense or other right that a Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any Person for whom
any such beneficiary or any such transferee may be acting), any L/C Lender or
any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by the L/C-Related Documents or any unrelated
transaction; (iii) any draft, demand, certificate or other document presented
under any Letter or Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit; or (iv)
any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute
a defense available to, or a discharge of, a Borrower or a guarantor; provided,
however, that the Borrowers shall not be obligated to reimburse any L/C Lender
for any wrongful payment made by any L/C Lender as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such L/C
Lender.
3.7. Cash Collateral Pledge. If any Letter of Credit remains
outstanding and partially or wholly undrawn as of the Revolving Loan Maturity
Date, then the Borrowers shall immediately Cash Collateralize the L/C
Obligations Issued for their respective accounts in an amount equal to the
maximum amount then available to be drawn under all Letters of Credit.
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3.8. Letter of Credit Fees. (a) The Applicable Borrower shall
pay to the Administrative Agent for the pro rata account of each of the
Revolving Lenders a letter of credit fee at a rate per annum equal to the then
Applicable Margin for Eurocurrency Rate Loans which are Revolving Loans on an
amount equal to the average daily maximum amount available to be drawn of the
outstanding Letters of Credit from the date of Issuance thereof (the
"Computation Amount"), computed on a quarterly basis in arrears on the last
Business Day of each Fiscal Quarter and on the Revolving Loan Maturity Date (or
such later date on which all outstanding Letters of Credit have been terminated
or have expired) based upon Letters of Credit outstanding for the applicable
period as calculated by the Administrative Agent.
(b) The Applicable Borrower shall pay to the Administrative
Agent, solely for the account of the applicable L/C Lender, a letter of credit
fronting fee for each Letter of Credit Issued by such L/C Lender at the rate per
annum equal to 1/8% of the Computation Amount, computed on the last Business Day
of each calendar quarter and on the Revolving Loan Maturity Date (or such later
date on which all outstanding Letters of Credit have been terminated or have
expired) based upon the Letters of Credit outstanding for the applicable period
as calculated by the Administrative Agent.
(c) The letter of credit fees payable under subsection 3.8(a)
and the fronting fees payable under subsection 3.8(b) shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter during
which Letters of Credit are outstanding, commencing on the first such quarterly
date to occur after the Effective Date, through the Revolving Loan Maturity Date
(or such later date upon which all outstanding Letters of Credit Issued for the
respective account of a Borrower have been terminated or have expired), with the
final payment to be made on the Revolving Loan Maturity Date (or such later
termination or expiration date). All fees payable under this Section 3.8 shall
be calculated as of their due date based upon the Dollar Equivalent amount of
the Computation Amount as of such date based upon the Spot Rate. All such fees
shall be payable solely in U.S. Dollars.
(d) The Borrowers shall pay to each L/C Lender from time to
time on demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of such L/C Lender relating to
letters of credit as from time to time in effect.
3.9. Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber of
Commerce most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in such Letter of Credit) apply to such
Letter of Credit.
3.10. Letters of Credit for the Account of Subsidiaries. Each
Borrower and its applicable Subsidiaries shall be jointly and severally liable
for any Letter of Credit which is issued jointly for the account of that
Borrower and any of its Subsidiaries.
3.11. Existing Letters of Credit. The Existing Letters of Credit
were issued prior to the Closing Date by Key Bank National Association for the
account of the U.S. Borrower. On the Effective Date (i) such letters of credit,
to the extent outstanding, shall be automatically and without further action by
the parties thereto converted to Letters of Credit issued pursuant to this
Section 3.11 for the account of the U.S. Borrower and subject to the provisions
hereof, and for this purpose the fees specified in Section 3.8 shall be payable
(in substitution (and without duplication) for any fees set forth in the
applicable letter of credit reimbursement agreements or applications relating to
such letters of credit) as if such letters of credit had been issued on the
Effective Date, (ii) the L/C Lenders of such Letters of Credit shall be deemed
to be "L/C Lenders" hereunder solely for the purpose of maintaining such letters
of credit, (iii) the Dollar Equivalent of the face amount of such letters of
credit shall be included in the calculation of L/C Obligations and (iv) all
liabilities of the U.S. Borrower with respect to such letters of credit shall
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constitute Obligations. No letter of credit converted in accordance with this
Section 3.11 shall be amended, extended or renewed without the prior written
consent of the Administrative Agent.
ARTICLE IV
NET PAYMENTS, YIELD PROTECTION AND ILLEGALITY
4.1. Net Payments. (a) All payments by any Loan Party to any
Lender or any Agent under this Agreement and any other Credit Document shall be
made without setoff, counterclaim or other defense. Except as provided in this
Section 4.1, all such payments shall be made free and clear of, and without
deduction or withholding for, any Covered Taxes levied or imposed by any
Governmental Authority with respect to such payments.
(b) If any Loan Party shall be required by law to deduct or
withhold any Covered Taxes from or in respect of any sum payable hereunder or
under any other Credit Document to any Lender or any Agent, then except as
provided in subsection 4.1(f): (i) the sum payable shall be increased as
necessary so that after making all such required deductions and withholdings
(including deductions and withholdings applicable to additional sums payable
under this Section) such Lender or such Agent, as the case may be, receives an
amount equal to the sum it would have received had no such deductions or
withholdings been made; (ii) the Borrowers shall, and shall cause each other
Loan Party to, make such deductions and withholdings; and (iii) the Borrowers
shall, and shall cause each other Loan Party to, timely pay the full amount
deducted or withheld to the relevant taxing authority or other authority in
accordance with applicable law. If for any reason any Loan Party fails to make
any payments required under the preceding sentence, then U.S. Borrower shall
make such payments on behalf of such Loan Party. Within 30 days after the date
of any payment by a Loan Party of Covered Taxes, such Loan Party shall furnish
the Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment reasonably satisfactory
to the Administrative Agent.
(c) The Borrowers agree jointly and severally to, and shall
cause each other Loan Party jointly and severally to, indemnify and hold
harmless each Lender and each Agent for, and upon written request of such Lender
or Agent shall promptly reimburse such Lender or Agent for, (i) the full amount
of Covered Taxes and Other Taxes (including any Covered Taxes and Other Taxes
imposed by any jurisdiction on amounts payable under this Section 4.1) paid or
payable by such Lender or such Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Covered Taxes or Other Taxes were correctly or
legally asserted, and (ii) any Taxes and any Other Taxes levied or imposed by
any Governmental Authority on any additional amounts paid by any Loan Party
under this Section 4.1 that are measured by such Lender's or such Agent's net
income or net profits by the jurisdiction (or any political subdivision thereof)
under the laws of which such Lender or such Agent, as the case may be, is or was
organized or maintains (or maintained) a Lending Office.
(d) If any Loan Party is required to pay additional amounts to
any Lender or any Agent pursuant to this Section 4.1, then such Lender shall use
(at the Loan Parties' expense) reasonable efforts (consistent with internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Lending Office or take other appropriate action so as to eliminate any
obligation to make such additional payment by such Loan Party which may
thereafter accrue, if such change or other action in the sole judgment of such
Lender is not otherwise disadvantageous or burdensome to such Lender.
(e) (i) Each Lender or Agent which is not a United States person
(as such term is defined in Section 7701(a) of the Code) agrees that:
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(A) it shall, no later than the Effective Date (or, in
the case of a Lender which becomes a party hereto after the
Effective Date, the date upon which such Lender becomes a
party hereto) deliver to the Administrative Agent and to the
Borrowers through the Administrative Agent (x) two accurate
and complete signed originals of IRS Form W-8ECI (claiming
exemption from U.S. withholding tax because the income is
effectively connected with a U.S. trade or business) or any
successor thereto ("Form W-8ECI"), or two accurate and
complete signed originals of IRS Form W-8BEN (claiming a
complete exemption from U.S. withholding tax under an income
tax treaty) or any successor thereto ("Form W-8BEN"), as
appropriate, or (y) if such Lender is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Form W-8BEN or Form W-8ECI pursuant to clause
(x) above, a certificate substantially in the form of
Exhibit K (any such certificate, a "Non-Bank Certificate")
and, two accurate and complete original signed copies of IRS
Form W-8BEN (claiming exemption from U.S. withholding tax
under the portfolio interest exemption) or any successor
thereto;
(B) from time to time after the Effective Date, when a
lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any
material respect, it will deliver to the Administrative
Agent and U.S. Borrower through the Administrative Agent,
two new accurate and complete original signed copies of Form
W-8BEN, Form W-8ECI or Non-Bank Certificate, as applicable
in replacement for, or in addition to, the forms previously
delivered by it hereunder.
(ii) Each Lender or Agent that is incorporated or organized
under the laws of the United States of America or a state thereof shall
provide two properly completed and duly executed copies of IRS Form W-9, or
successor applicable form, at the times specified for delivery of forms
under paragraph (e)(i) of this subsection.
(iii) Each Form W-8BEN or Form W-8ECI delivered by a Lender
or Agent pursuant to this subsection (e) shall certify, unless unable to do
so by virtue of a Change in Law occurring after the date such Lender or
Agent becomes a party hereto, that such Lender or Agent is entitled to
receive payments under this Agreement without deduction or withholding of
U.S. federal income taxes and each Form W-9 shall certify, unless unable to
do so by virtue of a Change in Law occurring after the Effective Date, that
such Lender or Agent is entitled to an exemption from U.S. backup
withholding.
(iv) Notwithstanding the foregoing provisions of this
subsection (e) or any other provision of this Section 4.1, no Lender or
Agent shall be required to deliver any form pursuant to this Section 4.1(e)
if such Lender or Agent is not legally able to do so by virtue of a Change
in Law occurring after the Effective Date.
(v) Each Lender or Agent shall, promptly upon a Loan
Party's or the Administrative Agent's reasonable request to that effect, at
its expense, deliver to such Loan Party or the Administrative Agent (as the
case may be) such other forms or similar documentation or other information
as may reasonably be required from time to time by any applicable law,
treaty, rule or regulation of any Governmental Authority in order to
establish such Lender's or Agent's tax status for withholding purposes.
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(f) No Loan Party will be required to pay any additional amount
in respect of Taxes pursuant to this Section 4.1 to any Lender or to any Agent
with respect to any Lender if the obligation to pay such additional amount would
not have arisen but for a failure by such Lender or Agent to comply with its
obligations under subsection 4.1(e) (other than by reason of a Change in Law
occurring after the Effective Date or the date upon which such Lender became a
party hereto, if later).
(g) In addition, the Borrowers jointly and severally agree to
pay, and will cause each other Loan Party jointly and severally to agree to pay,
any present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies (including, without limitation, interest,
penalties, additions to tax and expenses) which arise from any payment made
hereunder or from the execution, delivery, filing, recordation or registration
of, or otherwise with respect to, this Agreement or any other Credit Document
(hereinafter referred to as "Other Taxes"). Within 30 days after the date of any
payment by a Loan Party of Other Taxes, such Loan Party shall furnish the
Administrative Agent the original or certified copy of the receipt evidencing
payment thereof or other evidence of payment reasonably satisfactory to the
Administrative Agent.
(h) Agreements and obligations of the Borrowers and Loan Parties
contained in this Section 4.1 shall survive the payment in full of the
Obligations and the termination of the Commitments for a period of 365 days.
4.2. Illegality. (a) If any Lender determines that any Change in
Law has made it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for such Lender or its applicable
Lending Office to make or maintain Eurocurrency Rate Loans in any Applicable
Currency, then, on notice thereof by the Lender to the Applicable Borrower
through the Administrative Agent any obligation of such Lender to make, convert
or continue Eurocurrency Rate Loans in such Applicable Currency, as the case may
be, shall be suspended until such Lender notifies the Administrative Agent and
the Applicable Borrower that the circumstances giving rise to such determination
no longer exist and until such time such Lender's commitment shall be only to
make U.S. Dollar denominated ABR Loan, when a Eurocurrency Rate Loan is
requested in such Applicable Currency.
(b) If a Lender determines that it is unlawful to maintain any
Eurocurrency Rate Loan in any Applicable Currency, (x) with respect to any such
Eurocurrency Rate Loan that is a U.S. Dollar Eurocurrency Rate Loan, such Loan
shall be automatically converted to an ABR Loan either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Rate Loan to such day, or immediately if not, and (y) with respect
to any other Eurocurrency Rate Loan, the Applicable Borrower shall, upon their
receipt of notice of such fact and demand from such Lender (with a copy to the
Administrative Agent), prepay in full such Eurocurrency Rate Loans, as
applicable, of such Lender then outstanding in such Applicable Currency,
together with interest accrued thereon and amounts required under Section 4.4,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurocurrency Rate Loan to such day, or
immediately, if not.
(c) Before giving any notice to the Administrative Agent under
this Section, the affected Lender shall designate a different Lending Office
with respect to its Eurocurrency Rate Loans or take other appropriate action if
such designation or other action will avoid the need for giving notice and will
not, in the judgment of such Lender, be illegal or otherwise disadvantageous to
such Lender.
4.3. Increased Costs and Reduction of Return. (a) If any Lender
determines that, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance by such
Lender with any guideline or request from any central bank or other Governmental
83
Authority (whether or not having the force of law), in either case after the
Effective Date, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining any Eurocurrency Rate Loan,
BA Rate Loans or participating in Letters of Credit, or, in the case of any L/C
Lender, any increase in the cost to such L/C Lender of agreeing to Issue,
Issuing or maintaining any Letter of Credit or of agreeing to make or making,
funding or maintaining any unpaid drawing under any Letter of Credit, then each
Applicable Borrower shall be liable for, and shall from time to time, within 15
Business Days of demand (which demand shall contain a reasonably detailed
calculation of any relevant costs and shall be conclusive and binding in the
absence of manifest error, and a copy thereof shall be sent to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender, additional amounts as are sufficient to compensate such Lender for such
increased costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by such Lender (or its Lending Office) or any corporation controlling
such Lender with any Capital Adequacy Regulation, in each case after the
Effective Date, affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender and (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) determines that the amount of such
capital is increased as a consequence of its Commitment, Loans, credits or
obligations under this Agreement, then, within 15 Business Days of demand of
such Lender to the Applicable Borrower through the Administrative Agent, each
Applicable Borrower shall pay to such Lender, from time to time as specified by
such Lender, additional amounts reasonably sufficient to compensate such Lender
for such increase. A statement of such Lender as to any such additional amount
or amounts (including calculations thereof in reasonable detail), in the absence
of manifest error, shall be conclusive and binding on each Applicable Borrower.
In determining such amount or amounts, such Lender may use any method of
averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable and that is not materially less favorable to each Applicable
Borrower than to any of its other similarly situated customers.
(c) Nothing in this Section 4.3 shall obligate any Loan Party to
make any payments with respect to Taxes of any sort, indemnification for which
is governed by Section 4.1.
4.4. Funding Losses. Each Applicable Borrower shall, within 15
Business Days of receipt of written notice thereof, reimburse each Lender and
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of: (a) the failure of such Applicable Borrower to
make on a timely basis any payment of principal of any Eurocurrency Rate Loan or
a BA Rate Loan; (b) the failure (including by reason of Section 4.5) of such
Applicable Borrower to borrow, continue or convert a Eurocurrency Rate Loan or
BA Rate Loan after such Applicable Borrower has given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion/Continuation (other than
any such failure arising as a result of a default by such Lender or the
Administrative Agent); (c) the failure of such Applicable Borrower to make any
prepayment of any Loan in accordance with any notice delivered under Section
2.9; (d) the prepayment by such Applicable Borrower (including pursuant to
Section 2.9 or 2.10) or other payment (including after acceleration thereof) the
principal of any Eurocurrency Rate Loan or BA Rate Loan on a day that is not the
last day of the relevant Interest Period; or (e) the conversion by such
Applicable Borrower under Section 2.4 of any Eurocurrency Rate Loan to an ABR
Loan on a day that is not the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of deposits or other funds obtained by it to make, continue or maintain the
applicable Loans or from fees payable to terminate the deposits from which such
funds were obtained. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on each Applicable Borrower. For purposes of
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calculating amounts payable by each Applicable Borrower to any Lender under this
Section and under subsection 4.3(a), each Eurocurrency Rate Loan made by a
Lender (and each related reserve, special deposit or similar requirement) shall
be conclusively deemed to have been funded at the Eurocurrency Rate used in
determining the interest rate for such Eurocurrency Rate Loan by a matching
deposit or other borrowing in the interbank eurocurrency market for a comparable
amount and for a comparable period and in the same Applicable Currency, whether
or not such Eurocurrency Rate Loan is in fact so funded.
4.5. Inability To Determine Rates. (a) If the Required Revolving
Lenders or Lenders holding more than 50% of the Loans under the Term Facility
determine that for any reason adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest Period with respect
to a proposed Eurocurrency Rate Loan under the applicable Facility, the
Administrative Agent will promptly so notify the Applicable Borrower and each
Lender under such Facility. Thereafter, the obligation of the Lenders under such
Facility to make, convert or maintain Eurocurrency Rate Loans in the Applicable
Currency shall be suspended until the Administrative Agent upon the instruction
of the Required Revolving Lenders or Lenders holding more than 50% of the Loans
under the Term Facility revoke such notice in writing. Upon receipt of such
notice, the Applicable Borrower may revoke any Notice of Borrowing or Notice of
Conversion Continuation then submitted by it. If the Applicable Borrower does
not revoke (x) any such Notice of Borrowing for Revolving Loans or BA Rate Loans
or (y) any such Notice of Conversion/Continuation with respect solely to
Offshore U.S. Dollar Loans, the Lenders shall make, convert or continue the
applicable Loans, as proposed by such Applicable Borrower in the amount
specified in the applicable notice submitted by such Applicable Borrower, but
such Loans shall be made, converted or continued as ABR Loans instead of
Eurocurrency Rate Loans, and in the case of any Offshore Currency Revolving
Loans under the Revolving Facility, the Borrowing shall be redenominated and
thereby be made in an aggregate amount equal to the Dollar Equivalent amount of
the originally requested Borrowing in the Offshore Currency. If the Applicable
Borrower does not revoke any Notice of Conversion/Continuation with respect to
any outstanding Revolving Loans that are Offshore Currency Revolving Loans which
are the subject of any such continuation, such Offshore Currency Revolving Loans
shall from the end of the current Interest Period therefor bear interest at a
rate per annum equal to the Applicable Margin for Eurocurrency Rate Loans which
are Revolving Loans, plus the Overnight Rate for the Applicable Currency as in
effect from time to time or such other rate as may be agreed to between the
Applicable Borrower and the Required Revolving Lenders, and specified to the
Administrative Agent from time to time.
4.6. Reserves on Eurocurrency Rate Loans. Each Applicable
Borrower shall pay to each Lender, as long as such Lender shall be required
under regulations of the FRB to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as "Eurocurrency liabilities") and, in respect of any Offshore Currency
Revolving Loans, under any applicable regulations of the country in which the
Offshore Currency of such Offshore Currency Revolving Loans circulates,
additional costs on the unpaid principal amount of each Eurocurrency Rate Loan
and Offshore Currency Revolving Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as calculated by such Lender in good
faith and using a method that is not materially less favorable to each
Applicable Borrower than to any of its other customers, which calculation shall
be set forth in reasonable detail and shall be conclusive), payable on each date
on which interest is payable on such Loan, provided the Applicable Borrower
shall have received at least 15 Business Days' prior written notice (with a copy
to the Administrative Agent) of the amount of such additional interest from such
Lender. If a Lender fails to give notice 15 days prior to the relevant Interest
Payment Date, such additional interest shall be payable 15 Business Days from
receipt of such notice.
4.7. Certificates of Lenders. Any Lender claiming reimbursement
or compensation under this Article IV shall deliver to each Applicable Borrower
(with a copy to the Administrative Agent) a certificate (a) setting forth in
reasonable detail the circumstances giving rise to such claim and a
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computation of the amount payable to such Lender hereunder in respect thereof
and (b) certifying that such Lender is making similar claims based on such
circumstances to similarly-situated borrowers from such Lender. Any such
certificate shall be conclusive and binding on each Applicable Borrower in the
absence of manifest error.
4.8. Substitution of Lenders. Upon (x) the receipt by any
Applicable Borrower or the Administrative Agent from any Lender (an "Affected
Lender") of a claim for compensation under Section 4.1 or 4.3 (or a Change in
Law which could reasonably be determined to allow a Lender to make such a claim)
or a notice of the type described in subsection 2.5(b), 2.5(c), 4.2(a) or
4.2(b), (y) any Lender providing notice to any Applicable Borrower that a
representation contained in a Non-Bank Certificate is no longer true and correct
or (z) the refusal of any Lender to consent to a proposed amendment, waiver or
consent with respect to the Credit Documents which has been approved by the
Required Lenders as provided in subsection 11.1(b), any Applicable Borrower may:
(i) seek a replacement bank or financial institution to acquire and assume all
or a ratable part of all of such Affected Lender's Loans, participation in L/C
Obligations and Commitments (a "Replacement Lender") and such Replacement Lender
shall become a "Lender" hereunder for all purposes of this Agreement; or (ii)
request one or more of the other Lenders to acquire and assume all or part of
such Affected Lender's Loans and Commitments. Any such designation of a
Replacement Lender under clause (i) or (ii) shall be subject to the prior
written consent of the Agents (which consent shall not be unreasonably withheld)
and the Lenders may in their sole and absolute discretion decline any request
under clause (ii).
4.9. Right of Lenders To Fund Through Branches and Affiliates.
Each Lender may, if it so elects, fulfill its commitment as to any Loan
hereunder by designating a branch or Affiliate of such Lender to make such Loan;
provided, however, that (a) such Lender shall remain solely responsible for the
performances of its obligations hereunder, (b) no such designation shall result
in any material increased costs to any Applicable Borrower and (c) such branch
or Affiliate complies with all form delivery and other requirements hereunder
(including pursuant to Section 4.1) as if it were a Lender. In addition, each
Lender designating a branch or Affiliate of such Lender to make such Loan under
this Section 4.9 shall keep a register, meeting the requirements of Treasury
Regulation Section 5f.103-1(c), of each branch and each Affiliate which has
fulfilled such Lender's commitment as to any Loan that such Lender would
otherwise be obligated to make pursuant to this Agreement, specifying such
branch's or Affiliate's, as applicable, entitlement to payments of principal and
interest with respect to such Loan.
4.10. In respect of Loans to Grief U.K. The Administrative Agent
and each Revolving Lender agrees that (i) if such Lender is not, as of the
Effective Date, a U.K. Qualifying Lender, such Lender hereby agrees to file a
United Kingdom Inland Revenue Form promptly after the Effective Date as may be
necessary in order to ensure such Lender becomes a U.K. Qualifying Lender and,
upon confirmation that such Lender's application to become a U.K. Qualifying
Lender is effective, such Lender shall so notify the U.S. Borrower and the
Administrative Agent in writing, and (ii) if such Lender ceases to be a U.K.
Qualifying Lender (including, as a result of the introduction of, change in, or
change in the interpretation, administration or application of, any law or
regulation or any practice or concession of the United Kingdom Inland Revenue
occurring after the date of this Agreement) or any transfer, sale, negotiation
or assignment is made pursuant to Section 11.8 to a non-U.K. Qualifying Lender,
then promptly after it becomes aware that it has ceased to be a U.K. Qualifying
Lender, such Lender shall notify the Administrative Agent who in turn shall
notify the U.S. Borrower as soon as reasonably practicable.
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ARTICLE V
CONDITIONS PRECEDENT
5.1. Conditions to Initial Credit Extension. The obligation of
the Lenders to make the initial Credit Extension hereunder (other than with
respect to any loans to ▇▇▇▇▇ Australia) is subject to the satisfaction or due
waiver in accordance with Section 11.1 of each of the following conditions
precedent (the date of the satisfaction (or waiver) of each condition to the
initial Credit Extension in this Section 5.1, the "Effective Date").
(a) Documentation and Evidence of Certain Matters. The
Administrative Agent shall have received the following documents each dated the
Effective Date unless otherwise indicated or agreed to by the Administrative
Agent, each duly executed and notarized where appropriate (with one conformed
copy for each Lender), each of which shall be reasonably satisfactory in form
and substance to the Administrative Agent:
(i) The Credit Agreement. This Agreement (i) executed and
delivered by a duly authorized officer of each Loan Party hereto, and (ii)
executed and delivered by a duly authorized officer of each Lender, the
Administrative Agent and each other Agent.
(ii) Senior Subordinated Debt Documents. Executed copies of the
Senior Subordinated Debt Documents and all amendments, exhibits,
appendices, annexes and schedules to any thereof, each certified by a
senior officer of U.S. Borrower as true, complete and correct copies
thereof.
(iii) Officers' Certificate. An Officers' Certificate of each
Borrower, dated the Effective Date, (A) to the effect set forth in clauses
(b) and (c) of Section 5.2, (B) to the effect that all conditions precedent
to the making of such initial Credit Extension have been satisfied or
waived and (C) stating that (I) all requisite material Governmental
Authorities and material third parties have approved or consented to the
Transactions and the other transactions contemplated hereby to the extent
required (without the imposition of any materially burdensome or materially
adverse conditions or requirements in the judgment of the Lead Arranger),
(II) all such approvals are in full force and effect and (III) there is no
Proceeding, actual or threatened, that has or would have a reasonable
likelihood of restraining, preventing or imposing materially burdensome
conditions on any of the Transactions or other transactions contemplated
hereby.
(iv) Notes. The Notes, duly completed and executed for each
Lender that has requested Notes.
(v) Master Assignment Documents. The Master Assignment
Agreement and the Assignment and Release Agreement, each duly executed by
all parties thereto, together with any other documents required in
connection therewith by the Administrative Agent.
(vi) Assignment or Termination of Existing Liens. All Liens
granted to BNS for the benefit of the Current Lenders in connection with
the Existing Credit Agreement shall have been assigned to the
Administrative Agent, for the benefit of the Creditors, or shall have been
terminated (except as set forth on Schedule 7.22) pursuant to documentation
in form and substance satisfactory to the Administrative Agent.
(vii) Organizational Documents. A copy of the articles or
certificate of incorporation (or equivalent Organizational Document) of
each Loan Party, certified as of a recent date by the
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Secretary of State of the state of organization of such Loan Party, together
with certificates of such official attesting to the good standing of each such
Loan Party, to the extent applicable to Foreign Loan Parties;
(viii) Secretary's Certificate. A certificate of the Secretary or an
Assistant Secretary (or, in the case of the Foreign Holdco, its Managing
Director) of each Loan Party certifying (A) the names and true signatures of
each officer of such Loan Party that has been authorized to execute and deliver
any Credit Document or other document required hereunder to be executed and
delivered by or on behalf of such Loan Party, (B) the by-laws (or equivalent
Organizational Document) of such Loan Party as in effect on the date of such
certification, (C) the resolutions of such Loan Party's Board of Directors (or
equivalent governing body) approving and authorizing the execution, delivery and
performance of this Agreement and the other Credit Documents to which it is a
party and (D) that there have been no changes in the certificate of
incorporation (or equivalent Organizational Document) of such Loan Party from
the certificate of incorporation (or equivalent Organizational Document)
delivered pursuant to clause (vii) above;
(ix) Opinions of Counsel. Opinions of the following counsel to the Loan
Parties addressed to the Agents and the Lenders and addressing such matters as
any Lender through the Administrative Agent may reasonably request, including,
without limitation, the enforceability of all loan documentation, compliance
with all laws and regulations (including Regulations T, U and X of the Board of
the FRS) and the perfection of all security interests purported to be granted
and, other than in the case of opinions given pursuant to subclause (B) below,
no conflicts with material Agreements.
(A) Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, Ohio and New York counsel
to the Loan Parties reasonably acceptable to the Administrative
Agent.
(B) Opinions of each foreign local counsel to the Foreign Loan
Parties listed on Schedule 5.1(a)(ix) and each domestic local
counsel to the Domestic Loan Parties listed on Schedule 5.1(a)(ix),
in each case reasonably acceptable to the Administrative Agent.
(x) Security Documents. The U.S. Borrower Guarantee and Security
Agreement duly executed and delivered by U.S. Borrower, the Domestic Guaranty
and Security Agreement duly executed by each Domestic Guarantor; the Foreign
Guarantee duly executed and delivered by the Foreign Guarantor; and each Foreign
Pledge Agreement duly executed and delivered by a Loan Party, together with:
(A) evidence satisfactory to the Administrative Agent that the
Administrative Agent (for the benefit of the Creditors) has a valid
and perfected first priority security interest in the Collateral
(subject only to Permitted Liens), including (x) such documents
duly executed by each Loan Party as the Administrative Agent may
request with respect to the perfection of its security interests in
the Collateral (including evidence reasonably satisfactory to the
Administrative Agent that financing statements under the UCC,
patent, trademark and copyright security agreements and other
applicable documents under the laws of any jurisdiction have been
appropriately filed (or will be filed contemporaneous with or
promptly after the Effective Date), with respect to the perfection
of Liens created by any Security Documents) and (y) copies of UCC
search reports as of a recent date listing all effective financing
statements that name any Loan Party as debtor, together with copies
of such financing statements, none of which shall
88
cover the Collateral except for those which shall be terminated or
assigned to the Administrative Agent on the Effective Date;
(B) share certificates representing all of certificated Pledged
Securities being pledged pursuant to any of the Security Documents
and, where applicable, stock powers for such share certificates
executed in blank;
(C) the Foreign Holdco Intercompany Notes, duly endorsed in
favor of the Administrative Agent or in blank; and
(D) a perfection certificate substantially in the form of
Exhibit L.
(xi) Mortgage Matters. On or prior to the Effective Date, each Loan
Party shall have caused to be delivered to the Administrative Agent, on behalf
of the Lenders:
(A) a Mortgage Modification with respect to all Mortgaged
Property in which the applicable Loan Party holds a fee interest
(as indicated on Schedule 1.l(a)(i)) or leasehold interest (as
indicated on Schedule 1.1(a)(i)) in favor of the Administrative
Agent, for the benefit of the secured parties described therein,
duly executed and acknowledged by the Loan Party that is the owner
of or holder of an interest in such Mortgaged Property, and
otherwise in form for recording in the recording office of each
political subdivision where each such Mortgaged Property is
situated, together with such certificates, affidavits,
questionnaires or returns as shall be required in connection with
the recording or filing thereof to, with respect to the Mortgage
Modifications, continue a lien, under applicable law, and such
UCC-l Financing Statements and other similar statements as are
contemplated by such Mortgage or Mortgage Modification
(collectively, the "Mortgage Documents"), all of which shall be in
form and substance reasonably satisfactory to the Administrative
Agent, and any other instruments necessary to continue a mortgage
lien, as applicable, under the laws of any applicable jurisdiction,
which Mortgage Documents and financing statements and other
instruments shall when recorded be effective to continue a first
priority Lien in favor of the Administrative Agent for the benefit
of the Creditors on such Mortgaged Property subordinate to no Liens
other than Permitted Liens;
(B) with respect to the Mortgaged Property that has been
previously encumbered by a Mortgage, a title insurance endorsement
to the existing Mortgagee Title Policy, in form and substance
reasonably satisfactory to the Administrative Agent and consistent
with the policies and opinions on the existing Mortgaged Property;
(C) evidence reasonably acceptable to the Administrative Agent
of payment by U.S. Borrower of all mortgage recording taxes, fees,
charges, costs and expenses required for the recording of the
Mortgage Documents referred to in subparagraph 5.1(a)(xi)(A) above;
and
(D) with respect to the Mortgaged Property described in
subparagraph 5.1(a)(xi)(A) above, U.S. Borrower and each Subsidiary
shall have made all notification, registrations and filings, to the
extent required by, and in accordance with, all state and local
Real Property Disclosure Requirements applicable to such Mortgaged
Property, including the use of forms provided by state or local
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agencies, where such forms exist, whether to U.S. Borrower or
to or with the state, local or foreign agency.
(xii) Solvency Certificate. A certificate from the chief financial
officer of U.S. Borrower in form and substance reasonably satisfactory to
the Administrative Agent with respect to the Solvency (on a consolidated
basis) of each Loan Party immediately after the consummation of the
Transactions to occur on the Effective Date and the payment of all
estimated legal, accounting or other fees related hereto and thereto.
(xiii) Insurance. Evidence of insurance complying with the
requirements of Section 7.5 and the Security Documents are in full force
and effect, together with endorsements naming the Administrative Agent, on
behalf of the Creditors, as an additional insured and/or loss payee.
(xiv) Senior Subordinated Notes Compliance. Evidence satisfactory to
the Administrative Agent, including without limitation, legal opinions of
the Borrowers' counsel, that all transactions contemplated by this
Agreement, including without limitation the making of all Loans are in
compliance with, and do not cause any breach or other default under, any
of the Senior Subordinated Debt Documents.
(b) Financial Statements. (i) Pro forma consolidated balance sheet
of U.S. Borrower and its Subsidiaries as of the Effective Date giving effect to
the Refinancing; (ii) audited financial statements of the U.S. Borrower and its
Subsidiaries on a consolidated basis, for the Fiscal Year ended October 31, 2001
by Ernst & Young LLP, which financial statements shall be unqualified; (iii)
quarterly financial statements of the U.S. Borrower and its Subsidiaries on a
consolidated basis for each of the Fiscal Quarters ended January 31, 2002 and
April 30, 2002; and (iv) a business plan, prepared by the U.S. Borrower's
management, for the Borrowers which shall include a financial forecast for the
U.S. Borrower and its Subsidiaries on a (A) quarterly basis for the first twelve
months after the Effective Date, and (B) annual basis thereafter through
scheduled Term Loan Maturity.
(c) Issuance of the Senior Subordinated Debt/Refinancing. The U.S.
Borrower shall have received gross proceeds from the issuance of the Senior
Subordinated Notes of not less than $247,000,000 and simultaneously with the
receipt of the proceeds from the issuance of the Senior Secured Notes and also
on the Effective Date, U.S. Borrower shall have effected the Refinancing on
terms and conditions and pursuant to documentation reasonably satisfactory to
the Administrative Agent. The Administrative Agent shall have received evidence
thereof reasonably satisfactory to the Administrative Agent with respect to the
Refinanced Indebtedness. After giving effect to the Transactions, U.S. Borrower
and its Subsidiaries shall have outstanding no Indebtedness other than the Loans
and the Indebtedness which shall not exceed the Dollar Equivalent amount of
U.S.$50,000,000.
(d) No Conflicting Law or Regulation. No law or regulation shall
be applicable in the judgment of the Administrative Agent that restrains,
prevents or imposes material adverse conditions upon the Transactions or the
financing thereof, including the Credit Facilities.
(e) No Material Adverse Change. There shall not have occurred or
become known (i) any Material Adverse Change of U.S. Borrower (after giving
effect to the Transactions) since October 31, 2001, (ii) any material change in
the ability of any Loan Party to perform their respective obligations under the
Credit Documents, or (iii) the ability of the Administrative Agent and the
Lenders to enforce the Credit Documents.
(f) Approvals. All requisite Governmental Authorities and third
parties shall have approved or consented to (I) the execution, delivery and
performance in all material respects of each Loan
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Party's obligations hereunder and under the Credit Documents and the Senior
Subordinated Debt Documents, to which each of them respectively is, or shall be,
a party, and (II) the consummation of the Transactions to the extent required
(without the imposition of any materially burdensome condition or qualification
in the judgment of the Administrative Agent), and all such approvals shall be in
full force and effect, all applicable waiting periods shall have expired and
there shall be no governmental or judicial action, actual or threatened, that
has or would, individually or in the aggregate, reasonably be expected to have a
reasonable likelihood of restraining, preventing or imposing materially
burdensome or materially adverse conditions on any of the Transactions. The
Administrative Agent shall have received copies (certified by U.S. Borrower as
true and correct) of any such approvals or consents so obtained.
(g) Payment of Fees and Expenses. All accrued fees and reasonable
expenses (including the reasonable fees and expenses of Weil, Gotshal & ▇▇▇▇▇▇
LLP and of all local domestic and foreign counsel) of the Lenders and the
Administrative Agent in connection with the Credit Documents shall have been
paid. U.S. Borrower hereby authorizes the Administrative Agent to deduct the
amount of all such fees and expenses from the proceeds of the Loans at the
Effective Date and make payment directly to all such counsel by wire transfer of
funds at the Effective Date as set forth in a schedule to an Officers'
Certificate delivered at the Effective Date.
(h) Environmental Review. The Lenders shall have received such
environmental reviews and reports as the Lenders may request, in form and
substance satisfactory to the Administrative Agent, as to any environmental
hazards or liabilities to which the Borrowers and its Subsidiaries may be
subject, and the Lenders shall be satisfied with the content thereof.
5.2. Conditions to All Credit Extensions. The obligation of the
Lenders to make any Credit Extension (including the initial Credit Extension)
hereunder is subject to the satisfaction of the following conditions precedent
on the relevant Borrowing Date or Issuance Date:
(a) Notice, Application. The Administrative Agent shall have received
a Notice of Borrowing from the Applicable Borrower or any L/C Lender, and
the Administrative Agent shall have received an L/C Application or L/C
Amendment Application from the Applicable Borrower as required under
Section 3.2 (in the case of any Issuance of a Letter of Credit).
(b) No Existing Default; No Legal Bar. No Event of Default or
Unmatured Event of Default shall exist or shall result from such Credit
Extension. No order, judgment or decree of any court, arbitrator or
Governmental Authority shall purport to restrain any Lender from making
any Loans to be made by it on the date of such Credit Extension; and 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
by this Agreement or the making of Credit Extensions hereunder.
(c) Continuation of Representations and Warranties. The
representations and warranties of each Borrower in Article VI and each
Loan Party in each other Credit Document to which it is a party shall be
true and correct in all material respects (except for those
representations or warranties which are already qualified as to
materiality, which shall be true and correct) on and as of the date of
such Credit Extension with the same effect as if made on and as of such
date (except to the extent such representations and warranties expressly
refer to an earlier date, in which case they shall be true and correct as
of such earlier date).
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Each Notice of Borrowing, Notice of Conversion/Continuation, L/C
Application and L/C Amendment Application request submitted by any Applicable
Borrower hereunder shall constitute a representation and warranty by each
Applicable Borrower hereunder, as of the date of such notice or request and as
of the relevant Borrowing Date, Issuance Date or date of such conversion or
continuation, as applicable, that the applicable conditions in Section 5.1 and
Section 5.2 are satisfied.
5.3. Conditions to Initial Credit Extension to ▇▇▇▇▇ Australia. The
obligation of any Lender to make the initial Credit Extension to ▇▇▇▇▇ Australia
hereunder is subject to the satisfaction or due waiver in accordance with
Section 11.1 of each of the following conditions precedent (the date of the
satisfaction (or waiver) of each condition to the initial Credit Extension in
this Section 5.3, the "Australian Effective Date")
(a) Effective Date. The Effective Date shall have occurred.
(b) Documentation and Evidence of Certain Matters. The
Administrative Agent shall have received the following documents each dated the
Australian Effective Date unless otherwise indicated or agreed to by the
Administrative Agent, each duly executed and notarized where appropriate (with
one conformed copy for each Lender), each of which shall be reasonably
satisfactory in form and substance to the Administrative Agent:
(i) Secretary's Certificate. To the extent not delivered to the
Administrative Agent pursuant to Section 5.1, a certificate of the
Secretary or an Assistant Secretary of each Loan Party certifying (A) the
names and true signatures of each officer of such Loan Party that has been
authorized to execute and deliver any Credit Document or other document
required hereunder to be executed and delivered by or on behalf of such
Loan Party, (B) the by-laws (or equivalent Organizational Document) of
such Loan Party as in effect on the date of such certification, (C) the
resolutions of such Loan Party's Board of Directors (or equivalent
governing body) approving and authorizing the execution, delivery and
performance of this Agreement and the other Credit Documents to which it
is a party and (D) that there have been no changes in the certificate of
incorporation (or equivalent Organizational Document) of such Loan Party
from the certificate of incorporation (or equivalent Organizational
Document) delivered pursuant to Section 5.1(a)(vii) above;
(ii) Opinions of Counsel. To the extent not delivered to the
Administrative Agent pursuant to Section 5.1, opinions of counsel to the
Loan Parties addressed to the Agents and the Lenders and addressing such
matters as any Lender through the Administrative Agent may reasonably
request, including, without limitation, the enforceability of all loan
documentation governed by Australian law and the perfection of all
security interests purported to be granted and no conflicts with material
Agreements, in each case reasonably acceptable the Administrative Agent.
(iii) Termination of Existing Liens. All Liens granted by ▇▇▇▇▇
Australia to BNS for the benefit of the Current Lenders under the Existing
Credit Agreement shall have been terminated pursuant to documentation in
form and substance reasonably satisfactory to the Administrative Agent.
(iv) Security Documents. To the extent not delivered to the
Administrative Agent pursuant to Section 5.1, each Foreign Pledge
Agreement relating to 100% of the Equity Interests in ▇▇▇▇▇ Australia and
all promissory notes issued to ▇▇▇▇▇ Australia (collectively, the
"Australian Collateral"), duly executed and delivered by the applicable
Loan Parties, together with:
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(A) evidence satisfactory to the Administrative Agent that the
Administrative Agent (for the benefit of the Creditors) has a
valid and perfected first priority security interest in the
Australian Collateral (subject only to Permitted Liens),
including (x) such documents duly executed by each applicable
Loan Party as the Administrative Agent may request with respect
to the perfection of its security interests in the Australian
Collateral (including evidence reasonably satisfactory to the
Administrative Agent that financing statements and other
applicable documents under the laws of any applicable
jurisdiction have been appropriately filed (or will be filed
contemporaneous with or promptly after the Australian Effective
Date), with respect to the perfection of Liens on Australian
Collateral created by any Security Documents) and (y) copies of
search reports as of a recent date listing all effective
financing statements that name ▇▇▇▇▇ Australia or the holders of
the Equity Interests of ▇▇▇▇▇ Australia as debtor, together with
copies of such financing statements, none of which shall cover
the Australian Collateral except for those which shall be
terminated or assigned to the Administrative Agent on the
Australian Effective Date;
(B) share certificates representing all of certificated
Pledged Securities of ▇▇▇▇▇ Australia being pledged pursuant to
any of the Security Documents and, where applicable, stock
powers for such share certificates executed in blank; and
(C) all instruments being pledged by ▇▇▇▇▇ Australia pursuant
to any of the Security Documents, duly endorsed in favor of the
Administrative Agent or in blank.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each Borrower makes the following representations and warranties to
each Agent and each Lender, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans (with the execution and
delivery of this Agreement on the Effective Date and the making of each Credit
Extension thereafter being deemed to constitute a representation and warranty
that the matters specified in this Article VI are true and correct in all
material respects after giving effect to the Transactions and as of the date of
such Credit Extension unless such representation and warranty expressly
indicates that it is being made as of any specific date).
6.1. Corporate Status. Each Company (a) is a corporation or other
legal entity duly organized or formed, validly existing and, if applicable, in
good standing under the laws of its jurisdiction of organization; (b) has full
corporate or other organizational power and authority and possesses all material
governmental franchises, licenses, permits, authorizations and approvals
necessary to enable it to own, lease or otherwise hold its properties and assets
and to carry on its business as presently conducted; (c) is duly qualified to do
business and is in good standing (if applicable) under the laws of each
jurisdiction where such qualification is necessary; and (d) is in compliance
with all Requirements of Law, except, in each case referred to in clauses (b),
(c) and (d), to the extent that the failure to do so would not, individually or
in the aggregate, have a Material Adverse Effect.
6.2. Authority. Each Company has all requisite corporate or other
organizational power and authority to enter into each Credit Document and
Transaction Document to which it is a party and to perform its obligations
thereunder and to consummate the transactions contemplated thereby. All
corporate or other organizational acts and other proceedings required to be
taken by each Company to
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authorize the execution, delivery and performance of each Credit Document and
Transaction Document to which such entity is a party and the consummation of the
transactions contemplated thereby have been duly and properly taken.
6.3. No Conflicts; Consents. (a) The execution, delivery and
performance by each Company of each Credit Document and Transaction Document to
which such entity is a party does not and will not conflict with, or result in
any violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to loss of a material benefit under, any provision of (i) the
Organization Documents of such Company; (ii) any Contractual Obligation; or
(iii) any judgment, writ, injunction, decree, or order or award of any
arbitrator or Governmental Authority, or statute, law, ordinance, rule or
regulation applicable to such Company or its properties or assets, other than,
in the case of clauses (ii) and (iii) above, any such items that would not,
individually or in the aggregate, have a Material Adverse Effect.
(a) No consent, approval, license, permit, order or authorization
of, or registration, declaration or filing with, any Governmental Authority or
other Person is required to be obtained or made by or with respect to any
Company in connection with (i) the execution, delivery and performance of any
Credit Document or Transaction Document, (ii) the consummation of the
Transactions, (iii) the exercise by the Administrative Agent of the voting or
other rights provided for in the Credit Documents, (iv) the exercise by the
Administrative Agent of the remedies in respect of the Collateral pursuant to
and subject to the conditions set forth in the Credit Documents other than those
consents or approvals contemplated by the Credit Documents or (v) as a condition
to the legality, validity or enforceability of any Credit Document.
6.4. Binding Effect. Each Credit Document and Transaction Document
to which any Company is a party constitutes the legal, valid and binding
obligation of such Company, enforceable against such Company in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, suspension of payments (suspension de pagos) or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
6.5. Litigation. There are no Proceedings pending or, to the best
knowledge of such Borrower, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against or affecting any
Company or any of its properties which (a) would, individually or in the
aggregate, have a Material Adverse Effect; or (b) would reasonably be expected
to give rise to any legal restraint on or prohibition against or challenge the
Transactions or any of the transactions contemplated by any Credit Document or
Transaction Document. No Company is a party or subject to or in default under
any judgment, order, injunction or decree of any Governmental Authority or
arbitration tribunal applicable to it or any of its respective properties,
assets, operations or businesses, except where such events would not,
individually or in the aggregate, have a Material Adverse Effect. To the best of
such Borrower's knowledge, there is no pending investigation of any Company, nor
has there been any such investigation threatened in writing in either case by
any Governmental Authority, except where such events would not, individually or
in the aggregate, have a Material Adverse Effect.
6.6. No Default; Material Contractual Obligations. No Company is in
default in the performance, observance or fulfillment of any Contractual
Obligation of such Company which default would, individually or in the aggregate
with any other default, have a Material Adverse Effect, and no condition exists
which, with the giving of notice or the lapse of time or both, would,
individually or in the aggregate with any other condition, constitute such a
default. No event has occurred and no condition exists which, individually or in
the aggregate with any other event or condition, would constitute an Event of
Default or an Unmatured Event of Default. No Company is in violation of any term
of its Organization Documents.
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6.7. ERISA. (a) No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, would reasonably be expected to
result in a Material Adverse Effect. As of the most recent valuation date for
any Pension Plan, the amount of Unfunded Pension Liabilities individually or in
the aggregate for all Pension Plans (excluding for purposes of such computation
any Pension Plans which have a negative amount of Unfunded Pension Liabilities)
does not exceed U.S. $20,000,000. Each ERISA Entity is in compliance in all
material respects with the presently applicable provisions of ERISA and the Code
with respect to each Plan, except for noncompliance that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Using actuarial assumptions and computation methods consistent with subpart I of
subtitle E of Title IV of ERISA, the aggregate liabilities of each ERISA Entity
to all Multiemployer Plans in the event of a complete withdrawal therefrom, as
of the close of the most recent fiscal year of each such Multiemployer Plan,
would not reasonably be expected to result in a Material Adverse Effect.
(b) Each Foreign Plan has been maintained in material compliance
with its terms and with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained, where required,
in good standing with applicable regulatory authorities, except for
noncompliance that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No Loan Party has incurred any
material obligation in connection with the termination of or withdrawal from any
Foreign Plan that would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The present value of the accrued
benefit liabilities (whether or not vested) in the aggregate for all Foreign
Plans which are funded, determined as of the end of the most recently ended
fiscal year of a Loan Party on the basis of actuarial assumptions, each of which
is reasonable, did not exceed the current value of the assets of such Foreign
Plans by an amount that would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and for the Foreign Plans which are
not funded, the obligations of such Foreign Plans are properly accrued in all
material respects in accordance with local accounting policies, except where the
failure to do so would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
6.8. Use of Proceeds; Margin Regulations. The proceeds of the Loans
are to be used solely for the purposes set forth in and permitted by Section
7.12 and Section 8.7. No Company extends or maintains, in the ordinary course of
business, credit for the purpose, whether immediate, incidental or ultimate of
buying or carrying Margin Stock, and no part of the proceeds of any Loan will be
used for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying any such Margin Stock or extending or maintaining credit to others for
such purpose.
6.9. Financial Condition; Financial Statements; Solvency; etc. (a)
The audited consolidated balance sheet of U.S. Borrower dated October 31, 2001
(the "Balance Sheet"), and the audited consolidated statements of operations and
cash flows of U.S. Borrower for the Fiscal Year ended October 31, 2001, together
with the notes to such financial statements, have been prepared in conformity
with GAAP consistently applied (except in each case as described in the notes
thereto) and fairly present in all material respects the consolidated financial
condition and results of operations of U.S. Borrower as of the date thereof and
for the period indicated.
(b) Since October 31, 2001, there has not occurred an event or
condition that has had or would have, individually or in the aggregate, a
Material Adverse Effect.
(c) On and as of the Effective Date and on and as of the date of
each Credit Extension, on a pro forma basis after giving effect to the
Transactions to occur on such date (solely as to the Effective Date) and to all
Indebtedness incurred, and to be incurred, and Liens created, and to be
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created, by each Loan Party on such date, each Loan Party (on a consolidated
basis with its Subsidiaries) is and will be Solvent.
(d) Except as fully reflected in the financial statements
delivered at any time pursuant to Section 7.1 or Section 5.1(b) and except for
the Indebtedness incurred under this Agreement and the Indebtedness evidenced by
the Senior Subordinated Notes, there were as of the Effective Date and on and as
of the date of each Credit Extension (and after giving effect to any Loans made
on such date) no liabilities or obligations (excluding current obligations
incurred in the ordinary course of business) with respect to any Company of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, individually or in the aggregate, have had or would
have a Material Adverse Effect.
(e) During the period from October 31, 2001 to and including the
Effective Date, there has been no sale, transfer or other disposition by any
Company of any material part of its business or property, taken as a whole, and
no purchase or other acquisition by any of them of any business or property
(including any capital stock of any other Person) material in relation to the
consolidated financial condition of U.S. Borrower and its Subsidiaries, taken as
a whole.
6.10. Subsidiaries; Properties. As of the Effective Date, the U.S.
Borrower has no Subsidiaries other than those specifically disclosed in part (a)
of Schedule 6.10 hereto and has no equity investments in any other Person other
than those specifically disclosed in part (b) of Schedule 6.10. Schedule 6.10
(a) correctly sets forth the jurisdiction of incorporation or formation and
ownership of each Subsidiary of the U.S. Borrower, (b) correctly sets forth the
corporate name of each Subsidiary of the U.S. Borrower that is a Loan Party and
(c) in all material respects sets forth the corporate name of each Subsidiary of
the U.S. Borrower that is not a Loan Party. All outstanding Equity Interests of
each Subsidiary of the U.S. Borrower that is a Loan Party are or will be validly
issued, fully paid and non-assessable and to the knowledge of each Responsible
Officer of the U.S. Borrower, all outstanding Equity Interests of each
Subsidiary of the U.S. Borrower that is not a Loan Party are or will be validly
issued, fully paid and non-assessable. Each Company owns or leases, as
applicable, all properties and assets reflected in the most recent financial
statements delivered pursuant to Section 5.1(b) or Section 7.1, except as sold
or otherwise disposed of since the date of such financial statements in the
ordinary course of business and in accordance with this Agreement. Title to each
such property or asset is held by U.S. Borrower or a Subsidiary free and clear
of all Liens, other than Permitted Liens. The Companies hold all material
licenses, certificates of occupancy or operation and similar certificates and
clearances of municipal and other authorities necessary to own and operate their
properties in the manner and for the purposes currently operated by such parties
the absence of which would, individually or in the aggregate, have a Material
Adverse Effect. No Company has received written notice of defaults with respect
to any leases of real property under which any Company is lessor or lessee that
would, individually or in the aggregate, have a Material Adverse Effect.
6.11. Taxes. (a) Each Company has timely filed all material Tax
Returns required to be filed by it, and each such Tax Return is complete and
correct in all material respects. Each Company has timely paid all Taxes shown
as due and payable on such Tax Returns or that are otherwise due and payable
(except those Taxes that are being contested in good faith and for which
adequate reserves are being maintained in accordance with GAAP), except where
the failure to do so would not, individually or in the aggregate have a Material
Adverse Effect. Each Company has made adequate reserves as required by GAAP for
all Taxes of such Company which are not yet due and payable. The Loan Parties do
not know of any proposed or pending tax assessment, audit or deficiency against
any Company that would, individually or in the aggregate, have a Material
Adverse Effect.
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(b) (i) No extension of a statute of limitations relating to
material Taxes is in effect with respect to any Company; (ii) no Company has
ever been a member of an affiliated group of corporations within the meaning of
Section 1504 of the Code other than an affiliated group of corporations of which
U.S. Borrower was the common parent; and (iii) there are no Tax sharing
agreements or similar arrangements (including Tax indemnity arrangements) with
respect to or involving any Company other than between or among the Companies.
(c) All deficiencies or assessments which have been asserted
against any Company as a result of any federal, state, local or foreign Tax
examination for each taxable year in respect of which an examination has been
conducted have been fully paid or finally settled or are being contested in good
faith, and no issue has been raised in any such examination which, by
application of similar principles, reasonably would be expected to result in
assertion of a material deficiency for any other year not so examined which has
not been reserved for in U.S. Borrower's consolidated financial statements
heretofore delivered to the Administrative Agent to the extent, if any, required
by GAAP.
6.12. Environmental Matters. (a) Except as set forth on Schedule
6.12 and except as would not, individually or in the aggregate, after giving
effect to the insurance policy described in subsection 6.12(c) below, have a
Material Adverse Effect:
(i) Each Company has obtained all Environmental Approvals with
respect to the operation of the businesses and facilities and properties
owned, leased or operated by any of them including, without limitation,
any joint ventures.
(ii) Each Company is in compliance with all terms and conditions of
the Environmental Approvals specified in subsection (i) above, and is also
in compliance with, and has no liability under, any Environmental Laws.
(iii) No Company has received written notice that it has been
identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or any comparable foreign or state law, nor has any Company
received any written notification that any Hazardous Materials that it or
any of its predecessors in interest has used, generated, stored, treated,
handled, transported or disposed of, or arranged for disposal or treatment
of, or arranged with a transporter for transport for disposal or treatment
of, have been found at any site at which any governmental agency or
private party is conducting or plans to conduct a remedial investigation
or other action pursuant to any Environmental Law.
(iv) There have been no Releases of Hazardous Materials by any
Company or, to the knowledge of the Borrowers, their respective
predecessors in interest on, at, upon, into or from any facilities or
properties owned, leased, or operated by any of them. To the knowledge of
the Borrowers, there have been no such Releases of Hazardous Materials on,
at, under or from any property adjacent to any Mortgaged Property that,
through soil, air, surface water or groundwater migration or
contamination, would reasonably be expected to have migrated to or under
any Mortgaged Property.
(v) No properties now or formerly owned, leased or operated by any
Company are (i) listed or proposed for listing on the National Priorities
List under CERCLA or (ii) listed in the Comprehensive Environmental
Response, Compensation, Liability Information System List promulgated
pursuant to CERCLA or (iii) included on any comparable lists maintained by
any Governmental Authority.
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(vi) There are no past or present events, conditions, activities,
practices, or actions which would reasonably be expected to prevent any
Company's compliance with any Environmental Law, or which could reasonably
be expected to give rise to any liability under any Environmental Law.
(vii) No properties now or formerly owned, leased or operated by any
Company are or would reasonably be expected to be the subject of any
investigation, response or corrective action under any Environmental Law.
(viii) No Lien has been asserted or recorded, or to the knowledge of
the Borrowers threatened under any Environmental Law with respect to any
assets, facility, Inventory or property owned, leased or operated by any
Company.
(ix) No Company has assumed by contract or agreement any
liabilities or obligations arising under any Environmental Law.
(x) No Company has entered into or agreed to any currently pending
or effective judgment, decree or order by any judicial or administrative
tribunal, or is subject to any judgment, decree or order relating to
compliance with any Environmental Law or to investigation, response or
corrective action with respect to any Hazardous Material under any
Environmental Law.
(xi) No Company has received any notice of an Environmental Claim.
(xii) There are no underground storage tanks or related piping
surface impoundments, or landfills at any property owned, operated or
leased by any Company, other than those maintained in all material
respects in compliance with all Environmental Laws, the violation of which
would not have a Material Adverse Effect, and any former underground tanks
or related piping surface impoundments, or landfills on any such property
have been removed or closed in accordance with Environmental Laws.
(b) Environmental Documents. On the Effective Date, to the
knowledge of U.S. Borrower, all environmental investigations, studies, audits or
assessments in the possession or control of any Company ("Reports") concerning
any violation or potential violation of, or liability or potential liability
under, any Environmental Law relating to any current or prior business,
facilities or properties of any Company (or any of their respective predecessors
in interest) or any property, asset or facility currently or formerly (i) owned,
operated or leased or (ii) used for the storage or disposal of Hazardous
Materials, in each case by any Company (or any of their respective predecessors
in interest) have been made available to the Administrative Agent, except for
Reports concerning such violation or liability, individually or in the
aggregate, which would not have a Material Adverse Effect.
(c) Environmental Insurance. As of the Effective Date, the
Companies currently maintain in full force and effect, with Environmental
Compliance Services (or other financially sound and reputable independent
insurer reasonably satisfactory to the Administrative Agent), insurance with
respect to their properties and business against Environmental Claims
substantially in the form provided to the Administrative Agent prior to the
Effective Date.
6.13. Regulated Entities. No Company is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. No Company is subject to regulation
under the Public Utility Holding Company Act of 1935, the U.S. Federal Power
Act, the Interstate Commerce Act, any state public utilities code, or any other
U.S. Federal, foreign or state statute or regulation limiting its ability to
incur Indebtedness.
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6.14. Employee and Labor Matters. There is (i) no unfair labor
practice complaint pending against any Company or, to the knowledge of the
Borrowers, threatened against any of them, before the National Labor Relations
Board or similar foreign entity, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against any Company or, to the knowledge of the Borrowers, threatened against
any of them, and (ii) no strike, labor dispute, slowdown or stoppage pending
against any Company or, to the knowledge of the Borrowers, threatened against
any Company, except such as would not (with respect to any matter specified in
clause (i) or (ii) above, either individually or in the aggregate) have a
Material Adverse Effect.
6.15. Intellectual Property. (a) Each Company owns or possesses
adequate licenses or otherwise has the right to use, on reasonable terms, all of
the patents, patent applications, trademarks, trademark applications, service
marks, service ▇▇▇▇ applications, trade names, copyrights, trade secrets and
know-how (whether domestic or foreign) (collectively, "Intellectual Property")
that are necessary for the operation of its business as presently conducted,
except where the failure to so own or possess licenses or rights would not,
individually or in the aggregate, have a Material Adverse Effect. To the
knowledge of each Responsible Officer of such Borrower, no claim has been
asserted or is pending that any Company infringes upon the asserted rights of
any other Person under any Intellectual Property nor does any Responsible
Officer of such Borrower know of any valid basis for such claim, except for any
such claim which would not, individually or in the aggregate, have a Material
Adverse Effect. To the knowledge of each Responsible Officer of the U.S.
Borrower, no claim is pending that any such Intellectual Property owned or
licensed by any Company or which any Company otherwise has the right to use, is
invalid or unenforceable, except for any such claim which would not,
individually or in the aggregate, have a Material Adverse Effect.
(b) Except as would not, individually or in the aggregate, have a
Material Adverse Effect, a Company owns or has the right to use all Intellectual
Property described in clause (a), and the consummation of the transactions
contemplated hereby will not alter or impair any such rights. The applicable
Company's rights, title and interests in its Intellectual Property described in
clause (a), are free and clear of all Liens other than Permitted Liens.
6.16. Existing Indebtedness. The Dollar Equivalent of the principal
amount of all Indebtedness of the Companies owed to any person other than a
Company outstanding as of the Effective Date (other than the Obligations) and
that is to remain outstanding after giving effect to the Transactions occurring
on the Effective Date is less than U.S. $50,000,000.
6.17. True and Complete Disclosure. All factual information (taken
as a whole) heretofore or contemporaneously furnished by or on behalf of U.S.
Borrower and the other Companies in writing to any Lender (including, without
limitation, all information contained in the Transaction Documents) in
connection with this Agreement or any transaction contemplated herein is (or
was, on the Effective Date), and all other such factual information (taken as a
whole) furnished by or on behalf of the Companies in writing to any Lender after
the Effective Date was and will be, true and accurate in all material respects
on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information, taken as a whole, not misleading at such time in light of the
circumstances under which such information was provided. The projections and pro
forma financial information contained in or to be contained in such materials
(including the projections included in the budgets to be furnished pursuant to
Section 7.1(c)) are and will be based on good faith estimates and assumptions
believed by U.S. Borrower to be reasonable at the time made, it being recognized
by the Lenders that such projections as to future events are not to be viewed as
facts, that actual results during the period or periods covered by any such
projections may differ materially from the projected results and that U.S.
Borrower makes no representation or warranty that such projections, pro forma
results or budgets will be realized. There is no fact known any Borrower which
materially and
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adversely affects the business, operations, property, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of the Companies,
taken as a whole, which has not been disclosed herein or in such other
documents, certificates and written statements furnished to the Lenders for use
in connection with the transactions contemplated hereby.
6.18. Security Interests; Certain Matters Relating to Collateral.
The Security Documents, once executed, delivered, filed, recorded and/or
notarized, as applicable, together with all necessary filings contemplated by
the Security Documents, will create, in favor of the Administrative Agent for
its benefit and for the benefit of the Lenders, as security for the obligations
purported to be secured thereby, a valid and enforceable perfected first
priority security interest in and Lien upon all of the Collateral, superior to
and prior to the rights of all third persons and subject to no Liens except the
Permitted Liens, in all cases until the security interests created thereby are
released in accordance with this Agreement and the Security Documents. The
mortgagor under each Mortgage has good and marketable fee simple title to or,
with respect to any leasehold interests, a valid leasehold interest in the
Mortgaged Property free and clear of all Liens other than Permitted Liens
applicable to such Mortgaged Property. Each pledgor or assignor, as the case may
be, has (or on and after the time it executes the applicable Security Document,
will have) good and marketable title to all items of Collateral (other than Real
Property subject to a Mortgage) covered by such Security Document free and clear
of all Liens other than Permitted Liens. No filings or recordings are required
in order to perfect the security interests created under any Security Document
on the date such document is delivered, except for filings or recordings
required in connection with any such Security Document as set forth in such
Security Document.
6.19. Representations and Warranties in Credit Documents and
Transaction Documents. All representations and warranties set forth in the other
Credit Documents and the Transaction Documents were (with respect to
representations and warranties of parties other than the Borrowers, to the
knowledge of such Borrower) true and correct in all material respects as of the
time such representations and warranties were made and are true and correct in
all material respects as of the Effective Date as if such representations and
warranties were made on and as of such date, unless stated to relate to a
specific earlier date, in which case such representations and warranties were
true and correct in all material respects as of such earlier date.
6.20. Senior Subordinated Debt Documents. All representations and
warranties of each Borrower and any of its Subsidiaries contained in the Senior
Subordinated Debt Documents were true and correct in all material respects on
the date made. All agreements and instruments executed and delivered pursuant to
the issuance of the Senior Subordinated Notes are described in Schedule 1.1(g).
All of the Obligations to pay principal, premium, interest and, to the extent
included in Obligations hereunder, obligations under Swap Contracts, are "Senior
Debt" as defined in the Senior Subordinated Debt Documents, and other than the
Obligations, there is no other "Senior Debt" designated thereunder. The
Facilities provided in this Agreement and the other Credit Documents constitutes
the "Credit Facilities" as defined in the Senior Subordinated Debt Documents.
There is no event of default or event or condition which could become an event
of default with notice or lapse of time or both, under the Senior Subordinated
Debt Documents, and each of the Subordinated Debt Documents is in full force and
effect.
6.21. Broker's Fees. No broker's or finder's fee or commission will
be payable with respect to this Agreement or any of the Transactions
contemplated hereby, and the Borrowers hereby jointly and severally indemnify
the Agents and the Lenders against, and agree that they will jointly and
severally hold the Agents and the 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 fees, expenses
and disbursements or counsel) arising in connection with any such claim, demand
or liability.
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ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any
Loan or other Obligation (other than any contingent indemnity Obligations) shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:
7.1. Financial Statements, etc. The Borrowers shall deliver to the
Administrative Agent and each Lender, in form and detail reasonably satisfactory
to the Administrative Agent:
(a) as soon as available, but not later than 90 days after the end
of each Fiscal Year, a copy of the audited consolidated balance sheet of the
Companies as at the end of such year and the related consolidated statements of
operations, retained earnings, shareholders' equity and cash flow for such year,
setting forth in each case in comparative form the corresponding consolidated
figures for the previous Fiscal Year and comparable budgeted figures for such
Fiscal Year, and, in the case of the consolidated statements, accompanied by the
opinion of Ernst & Young LLP or another internationally recognized independent
certified public accounting firm selected by U.S. Borrower and reasonably
acceptable to the Administrative Agent (the "Independent Auditor"), which
opinion (i) shall state that such consolidated financial statements present
fairly in all material respects the consolidated financial position and results
of operations of the Companies for the periods indicated in conformity with GAAP
and (ii) shall not be qualified or limited because of a restricted or limited
examination or in any other material respect by the Independent Auditor. Such
opinion of the Independent Auditor shall be (i) delivered to the Administrative
Agent pursuant to a reliance agreement between the Agents, Lenders and such
Independent Auditor in form and substance reasonably satisfactory to the Agents,
and (ii) shall be accompanied by a certificate of such Independent Auditor (x)
stating that in the course of its regular audit of the business of the Companies
no Event of Default or Unmatured Event of Default which has occurred and is
continuing has come to their attention or, if such an Event of Default or
Unmatured Event of Default has come to their attention, a statement as to the
nature thereof and (y) setting forth a computation (which shall be in reasonable
detail) showing the calculation of each of the Financial Maintenance Covenants;
(b) as soon as available, but not later than 45 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year, a copy of the
consolidated balance sheet of the Companies as at the end of such quarter and
the related consolidated statements of operations, retained earnings and cash
flow for the period commencing on the first day and ending on the last day of
such quarter, and the period from the beginning of the respective Fiscal Year to
the end of such quarter, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding period in the previous
Fiscal Year, accompanied by a certificate of a Responsible Officer of U.S.
Borrower, which certificate shall state that said consolidated financial
statements fairly present in all material respects, in accordance with GAAP
(subject to ordinary, good faith year-end adjustments and the absence of
footnotes), the consolidated financial position and the results of operations of
the Companies;
(c) within 90 days after the commencement of each Fiscal Year,
budgets of the Companies in reasonable detail for each Fiscal Quarter of such
Fiscal Year and for each Fiscal Quarter of the immediately succeeding Fiscal
Year, in each case, as customarily prepared by management for its internal use,
setting forth, with appropriate discussion, the principal assumptions upon which
such budgets are based. Together with each delivery of statements of operations
pursuant to subsection 7.1(a) and (b), a comparison of the current year-to-date
financial results against the budgets required to be submitted pursuant to this
subsection (c) shall be presented; and
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(d) promptly upon receipt thereof, a copy of each definitive
report or "management letter" or comparable analysis submitted to any Company by
its independent accountants in connection with any annual, interim or special
audit made by them of the books of any Company.
7.2. Certificates; Other Information. The Borrowers shall deliver
to the Administrative Agent and each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and (b), (i) a Compliance Certificate executed
by a Responsible Officer of U.S. Borrower stating that (A) the Borrowers and
their Subsidiaries are in compliance with each covenant set forth under this
Article VII and Article VIII, together with calculations (in reasonable detail)
demonstrating Excess Cash Flow (in the case of delivery of financial statements
pursuant to subsection 7.1(a)) and compliance with each Financial Maintenance
Covenant, and with respect to any calculation utilizing EBITDA, a schedule
showing the pro forma effect of any Acquisition to the extent pro forma effect
is given thereto with appropriate supporting information and data and (B) no
Event of Default or Unmatured Event of Default has occurred and is continuing
and, if such an Event of Default or Unmatured Event of Default exists and is
continuing, a statement setting forth the nature and status thereof and (ii) a
summary of the outstanding balance of all loans made by any Company to another
Company and all other intercompany Indebtedness as of the last day of the fiscal
period covered by such financial statement, certified by a Responsible Officer
of U.S. Borrower;
(b) on and after the Trigger Date, concurrently with the financial
statements delivered pursuant to subsections 7.1(a) and 7.1(b), an Interest Rate
Certificate executed by a Responsible Officer of U.S. Borrower;
(c) as soon as practicable, copies of all financial statements and
regular, periodic or special reports that any Company may make to, or file with,
the SEC or similar foreign authority or securities exchange if not otherwise
delivered under Section 7.1;
(d) as soon as practicable, such additional information regarding
the business, financial or corporate affairs of any Company as the
Administrative Agent or any Lender (through the Administrative Agent) may from
time to time reasonably request;
(e) within 45 days after the end of the first three Fiscal
Quarters of each Fiscal Year and within 90 days after the end of each Fiscal
Year, a certificate of a Responsible Officer (i) certifying compliance with
Sections 5.6, 5.7, 6.5, 7.1 and 8.5 of the U.S. Borrower Guarantee and Security
Agreement and the Domestic Guarantee and Security Agreement and the provisions
of Section 7.15 and (ii)(A) certifying that no Real Property has been acquired
subsequent to the Effective Date or the date of the last certificate delivered
under this subsection 7.2(e), as appropriate, or if such Real Property has been
so acquired, certifying which Real Property has been so acquired; and (B) if
such Real Property has been so acquired, certifying that such Real Property has
been made subject to the Lien of the Security Documents in accordance with the
provisions of Section 7.15, if so required; and
(f) promptly, after the sending or filing thereof, copies of all
reports, financial statements and other documents which any Company is required
to deliver pursuant to the Senior Subordinated Debt Documents and all material
notices and other documents delivered to any Company by the indenture trustee
thereunder in connection with the Senior Subordinated Notes Indenture.
7.3. Notices. Promptly upon a Responsible Officer of any Company
learning thereof, a Borrower shall notify the Administrative Agent and each
Lender:
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(a) of the occurrence of any Event of Default or Unmatured Event
of Default;
(b) of any of the following matters that would, individually or in
the aggregate with any other such matters, reasonably be expected to have a
Material Adverse Effect: (i) any breach or non-performance of, or any default
under, a Contractual Obligation of any Company; (ii) any dispute, litigation,
investigation, proceeding or suspension by or before any Governmental Authority
affecting any Company or any of its properties; or (iii) the commencement of, or
any development in, any litigation or Proceeding affecting any Company,
including pursuant to any applicable Environmental Laws; and
(c) of the occurrence of any of the following events if such event
has resulted or could reasonably be expected to result in any Material Adverse
Effect, an Environmental Lien, or in a Lien under ERISA or the Code (but in no
event more than ten days after such event), and deliver to the Administrative
Agent and each Lender a copy of any notice with respect to such event that is
filed with a Governmental Authority and any notice delivered by a Governmental
Authority to any ERISA Entity with respect to such event, and upon the request
of the Administrative Agent or any Lender shall furnish any Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by any
ERISA Entity with the Internal Revenue Service with respect to any Pension Plan:
(i) an ERISA Event; (ii) the adoption after the Effective Date of, or the
commencement after the Effective Date of contributions to, any Plan subject to
Section 412 of the Code by any ERISA Entity; (iii) the adoption after the
Effective Date of any amendment to a Plan subject to Section 412 of the Code;
(iv) of any pending or threatened Environmental Claim against any Company or any
Real Property owned or operated by any Company that would, individually or in
the aggregate, exceeds $20,000,000, (v) of any condition or occurrence on any
Real Property owned or operated by any Company that (x) results in noncompliance
by any Company with any applicable Environmental Law or (y) would form the basis
of an Environmental Claim against any Company or any such Real Property, in each
case of clause (x) or clause (y) to the extent that any such noncompliance or
Environmental Claim would, singly or in the aggregate, have a Material Adverse
Effect; and (vi) of any condition or occurrence on any Real Property owned or
operated by any Company that could reasonably be expected to cause such Real
Property to be subject to any restrictions on the ownership, occupancy, use or
transferability by any Company, as the case may be, of its interest in such Real
Property under any Environmental Law which condition or occurrence would,
individually or in the aggregate, have a Material Adverse Effect.
Each notice under this Section 7.3 shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Borrowers or any affected
Company proposes to take with respect thereto.
7.4. Preservation of Corporate Existence, etc. Each Borrower shall,
and shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its legal
existence and, if applicable, good standing under the laws of its state or
jurisdiction of organization, except in a transaction permitted by Section 8.2;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary in the normal conduct of its business and defend all the
foregoing against all claims, actions, suits or proceedings at law or in equity
or by or before any governmental instrumentality or other agency or regulatory
authority, except in connection with transactions permitted by Section 8.2 and
except where the failure to do so would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
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(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill except where the failure to do
so would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(d) preserve or renew all of its Intellectual Property, the
non-preservation of which would individually or in the aggregate, have a
Material Adverse Effect; and
(e) comply in all respects with all Requirements of Law having
jurisdiction over it or its business if failure to comply with such requirements
would, individually or in the aggregate, have a Material Adverse Effect.
7.5. Maintenance of Property; Insurance. (a) Each Borrower shall, and
shall cause each of its Subsidiaries, (i) to maintain or cause to be maintained
in good repair, working order and condition (subject to normal wear and tear)
all properties used in its businesses and from time to time will make or cause
to be made all repairs, renewals and replacements thereof which the applicable
Company determines in good faith to be commercially reasonable so that the
business carried on in connection therewith may be properly and advantageously
conducted, and (ii) will maintain and renew as necessary all licenses, permits
and other clearances reasonably necessary to use and occupy those properties
occupied by such Company, except to the extent no longer economically desirable
in the commercially reasonable opinion of the applicable Company, and (iii)
promptly to pay all calls, installments and other payments which may be made or
become due in respect of any shares held by any Company, except in each case
where the failure to do so would reasonably be expected to have a Material
Adverse Effect.
(b) Each Borrower shall, and shall cause each of its Subsidiaries
to, maintain in full force and effect, with financially sound and reputable
independent insurers, insurance on such terms and covering such risks, including
fire and other risks insured against by extended coverage, as is usually carried
by companies engaged in similar businesses and owning similar properties
similarly situated and maintain in full force and effect public liability
insurance, insurance against claims for personal injury or death or property
damage occurring in connection with any of its activities or any properties
owned or occupied by it, in such amount as it shall reasonably deem necessary,
and maintain such other insurance as may be required by law for purposes of
assuring compliance with this Section 7.5(b) and cause all such insurance to
name the Administrative Agent on behalf of the Creditors as additional insured
or loss payee, as appropriate, and to provide that no cancellation, material
addition in amount or material change in coverage shall be effective until after
30 days' written notice thereof to the Administrative Agent.
(c) Without duplicating the requirements of subsection 7.5(b), each
Borrower shall, and shall cause each of its Subsidiaries to, maintain in full
force the insurance coverages specified in the Mortgages and the other Security
Documents so long as any Collateral is pledged thereunder pursuant to the terms
of this Agreement and the Security Documents.
7.6. Payment of Obligations. Each Borrower shall, and shall cause
each of its Subsidiaries to, pay and discharge as the same shall become due and
payable all of their obligations and liabilities, including all lawful claims
which, if unpaid, would by law become a Lien (other than a Permitted Lien) upon
their property; unless, in each case, the same are being contested in good faith
by appropriate proceedings and adequate reserves are being maintained in
accordance with GAAP by such Company with respect thereto or the failure to so
pay or discharge would not, individually or in the aggregate, have a Material
Adverse Effect.
7.7. Taxes. Each Borrower shall, and shall cause each of its
Subsidiaries to timely file all Tax Returns required by any Governmental
Authority to be filed by them (which Tax Returns shall be accurate in all
material respects) and timely pay and discharge all Taxes imposed on them or any
of
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their property or assets (except those Taxes that are being contested in good
faith, and for which adequate reserves are being maintained in accordance with
GAAP by such Company with respect thereto) which if not paid would reasonably be
expected to result in a Material Adverse Effect.
7.8. Compliance with Environmental Laws. (a) Each Borrower shall, and
shall cause each of its Subsidiaries to, comply with all Environmental Laws; (b)
each Borrower shall, and shall cause each of its Subsidiaries to, pay all costs
and expenses incurred by it in complying in all respects with all Environmental
Laws, and will keep or cause to be kept all Real Property owned, operated or
leased by any of them free and clear of any Liens imposed pursuant to such
Environmental Laws; (c) in the event of the presence of any Hazardous Material
at, on, under or upon any property owned, operated or leased by any Company
which would reasonably be expected to result in liability under or a violation
of any Environmental Law, in each case which would, individually or in the
aggregate, have a Material Adverse Effect, U.S. Borrower agrees to undertake,
and/or to cause any of its Subsidiaries, tenants or occupants to undertake, at
their sole expense, any investigation, response or other action required
pursuant to Environmental Laws to mitigate and eliminate any such adverse effect
unless the failure to comply with these requirements specified in clause (a),
(b) or (c) above would not, individually or in the aggregate, have a Material
Adverse Effect; provided, however, that no Company shall be required to comply
with any order or directive which is being contested in good faith and by proper
proceedings so long as it has maintained adequate reserves with respect to such
compliance to the extent required in accordance with GAAP; and (d) U.S. Borrower
shall as promptly as practicable notify the Administrative Agent of the
occurrence of any event specified in clause (c) of this Section 7.8 and shall
thereafter keep the Administrative Agent informed on a periodic basis of any
actions taken in response to such event and the results of such actions.
7.9. Compliance with ERISA Each Borrower shall, and shall cause each
ERISA Entity to: (a) maintain each Plan in compliance in all material respects
with the applicable provisions of ERISA, the Code and other applicable law; (b)
cause each Plan which is qualified under Section 401(a) of the Code to maintain
such qualification; and (c) make all required contributions to any Plan subject
to Section 412 of the Code, except where failure to comply with clause (a), (b)
or (c) would not, individually or in the aggregate, have a Material Adverse
Effect.
7.10. Inspection of Property and Books and Records. Each Borrower
shall, and shall cause each of its Subsidiaries to, maintain proper books of
record and account, in which full, true and correct entries in all material
respects (in order to permit the preparation of U.S. Borrower's consolidated
financial statements in conformity with GAAP) shall be made of all financial
transactions and matters involving the assets and business of the Companies and
to comply with the requirements of this Agreement. Each Borrower shall, and
shall cause each of its Subsidiaries to, permit representatives and independent
contractors of any Agent or any Lender to visit and inspect any of their
properties or assets, to examine their corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss their
affairs, finances and accounts with their directors, officers, and independent
public accountants (and by this provision hereby authorizes such Persons to
discuss such affairs, finances and accounts with any Lender or the
Administrative Agent), all at the expense of U.S. Borrower so long as such
expenses are reasonable and at such reasonable times and intervals during normal
business hours and as often as may be reasonably desired, upon not less than two
Business Days' advance notice to U.S. Borrower and to the applicable Subsidiary;
provided, however, when an Event of Default or emergency exists the
Administrative Agent or any Lender may do any of the foregoing at any time and
without advance notice in a reasonable manner.
7.11. End of Fiscal Years; Fiscal Quarters. U.S. Borrower shall, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on October 31 of each year
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and (ii) each of its, and each of its Subsidiaries', fiscal quarters to end on
January 31, April 30, July 31 and October 31 of each year.
7.12. Use of Proceeds. The U.S. Borrower shall use the proceeds of the
Term Loans and a portion of the Revolving Loans solely to (i) consummate a
portion of the Refinancing, and (ii) pay fees and expenses related to the
Issuance of the Senior Subordinated Notes, the Refinancing and the transactions
contemplated hereby, and (iii) solely with respect to the Revolving Loans,
provide working capital and for general business purposes of the Companies. Each
Foreign Borrower shall use the proceeds of the Loans made to it solely to (i)
pay fees and expenses related to the transactions contemplated hereby, and/or
(ii) provide working capital and for general business purposes of the Companies.
No Foreign Borrower shall use any portion of the Loans made to it to refinance
any Indebtedness the proceeds of which were used to finance the acquisition of
any Foreign Subsidiary.
7.13. Further Assurances; New Subsidiaries. Each Borrower shall, and
shall cause each of its Subsidiaries to, take such actions as are reasonably
necessary or as the Administrative Agent or any Lender may reasonably request
from time to time to:
(a) Ensure that (i) the Obligations of U.S. Borrower and each
Foreign Borrower are unconditionally guaranteed by each Domestic Subsidiary
(other than any Receivables Co. but including CorrChoice at such time as it
becomes a Wholly-Owned Subsidiary of the U.S. Borrower) and secured by all of
each such Domestic Subsidiary's property and assets, in each case pursuant to
the Security Documents, and (ii) the Obligations of each Foreign Borrower are
unconditionally guaranteed by each other Borrower (other than Greif Canada) and
by each Foreign Subsidiary required to provide such a guarantee under subsection
7.13(b), and secured by a pledge of the Equity Interests of each Foreign
Borrower (other than at any time prior to the 120th day after the Effective
Date, the Self-Owned Dutch Stock), in each case pursuant to a Security Document;
provided that in no event shall more than 65% of the total combined voting power
of all classes of Equity Interests of any Foreign Borrower entitled to vote
secure the Domestic Obligations of any Domestic Loan Party; and
(b) Cause (i) each Domestic Subsidiary (other than any Receivables
Co. but including CorrChoice at such time as it becomes a Wholly-Owned
Subsidiary of the U.S. Borrower) created or acquired after the Effective Date by
any Company in which the aggregate amount invested therein by any Company is in
excess of the Dollar Equivalent of U.S. $2,000,000 or any other Domestic
Subsidiary regardless of the amount invested therein if such Domestic Subsidiary
guarantees the obligations of the U.S. Borrower under the Senior Debt Documents,
to execute and deliver a joinder agreement substantially in the form of Exhibit
3 to the Domestic Guarantee and Security Agreement, and (ii) each Foreign
Subsidiary that acquires or holds any Equity Interest of any Foreign Borrower to
execute and deliver a Foreign Guarantee.
(c) Ensure that prior to the 30th day after the Effective Date (or
such later date agreed to by the Administrative Agent) each loan or advance
(other than those evidenced by the Foreign Holdco Intercompany Notes which shall
be pledged on the Effective Date) made by a Loan Party to a Company or another
Person on or prior to, and outstanding on, the Effective Date shall be
documented by a promissory note in form and substance reasonably acceptable to
the Administrative Agent and pledged to the Administrative Agent for the benefit
of the Creditors pursuant to a Security Document in form and substance
reasonably acceptable to the Administrative Agent, and each such instrument
shall be delivered to the Administrative Agent having been duly endorsed in
favor of the Administrative Agent or in blank; provided, however, that if the
Dollar Equivalent of the aggregate amount of all loans or advances made by the
Loan Parties to any Company or other Person is less than $500,000 such loans and
advances shall not required to be documented and pledged to the Administrative
Agent hereunder; provided further, however, that at no time shall the Dollar
Equivalent of the aggregate amount of all loans or advances
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made by the Loan Parties that are not documented by promissory notes and pledged
to the Administrative Agent exceed $5,000,000.
(d) Furthermore, with respect to any of the foregoing actions, the
Borrowers shall, upon request by the Administrative Agent, cause to be delivered
to the Administrative Agent such opinions of counsel and other related documents
to assure itself that this Section 7.13 has been complied with.
7.14. Pledge of Additional Collateral. In the event that (x) any
Domestic Loan Party acquires after the Effective Date an interest in any
additional Real Property with a fair market value in excess of the Dollar
Equivalent of U.S. $20,000,000, such Domestic Loan Party shall take such actions
and execute such documents as the Administrative Agent shall reasonably require
to, with respect to any such Real Property acquired by any Loan Party, grant to
the Administrative Agent a first priority perfected Lien on such Real Property
for the benefit of Creditors. All actions taken by the parties in connection
with the pledge of additional Collateral, including reasonable costs of counsel
for the Lenders, shall be for the account of the Borrowers, who shall pay all
reasonable sums due on demand.
7.15. Security Interests. (a) U.S. Borrower shall, and shall cause
each of the Loan Parties (other than any Receivables Co. and Soterra LLC but
including CorrChoice at such time as it becomes a Wholly-Owned Subsidiary of the
U.S. Borrower) to, perform any and all reasonable acts and execute any and all
documents (including, without limitation, the execution, amendment or
supplementation of any financing statement, continuation statement or other
statement) for filing in any appropriate jurisdiction under the provisions of
the UCC and applicable laws or any statute, rule or regulation of any applicable
jurisdiction, including with respect to any Domestic Loan Party, any filings in
local real estate land record offices and the United States Patent and Trademark
Office, or the United States Copyright Office which are reasonably necessary or
advisable, from time to time, in order to grant, continue or maintain in favor
of the Creditors, to which that Company is a party, a valid and perfected Lien
on the Collateral, subject to no Liens other than Permitted Liens.
(b) Each Borrower shall, and shall cause each of its Subsidiaries
to, deliver or cause to be delivered to the Administrative Agent from time to
time such other reasonable documentation, consents, authorizations, approvals
and orders in form and substance reasonably satisfactory to the Administrative
Agent as the Administrative Agent shall deem reasonably necessary or advisable
to perfect or maintain the Liens on the Collateral granted by the Security
Documents. Furthermore, with respect to any Collateral, U.S. Borrower shall
cause to be delivered to the Administrative Agent such opinions of counsel,
title insurance and other related documents as may reasonably be requested by
the Administrative Agent to assure itself that Section 7.15 has been complied
with.
(c) If the Administrative Agent or the Required Lenders reasonably
determine that they are required by law or regulation to have appraisals
prepared in respect of any Real Property constituting Collateral, U.S. Borrower
shall provide to the Administrative Agent appraisals which satisfy the
applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA
and which shall be in form and substance reasonably satisfactory to the
Administrative Agent.
7.16. Currency and Commodity Hedging Transactions. Each Company shall
only enter into, purchase or otherwise acquire swap contracts relating to
currency or commodity hedging to the extent and only to the extent that such
agreements or arrangements are entered into, purchased or otherwise acquired in
the ordinary course of business of the Companies with reputable financial
institutions or counterparties and not for purposes of speculation.
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7.17. Pledge of Foreign Stock and Guarantees by Foreign Subsidiaries.
If, following a change in the relevant sections of the Code or the regulations,
rules, rulings, notices or other official pronouncements issued or promulgated
thereunder, counsel for the Borrowers reasonably acceptable to the Agents does
not, within 30 days after a request from the Agents or the Required Lenders,
deliver an opinion (in form and substance reasonably acceptable to the Agents)
with respect to any Foreign Borrower which has not already had all of its Equity
Interests owned by any Domestic Loan Party pledged pursuant to a Security
Document, opining that (i) a pledge to secure the Domestic Obligations of any
Domestic Loan Party of 66-2/3% or more of the total combined voting power of all
classes of Equity Interests of such Foreign Borrower entitled to vote and (ii)
entering into by such Foreign Borrower of a guarantee of the Obligations of the
U.S. Borrower could reasonably be expected to cause the undistributed earnings
of such Foreign Borrower as determined for U.S. Federal income tax purposes to
be treated as a deemed dividend to such Foreign Borrower's United States parent
for U.S. Federal income tax purposes, then (x) in the case of a failure to
deliver the opinion with respect to the factors described in clause (i) above,
that portion of such Foreign Borrower's outstanding Equity Interests, in each
case not theretofore pledged pursuant to a Security Document, shall be pledged
to the Administrative Agent pursuant to a Security Document (with appropriate
modifications to conform to and subject to limitations of law) (or another
guarantee and security agreement in substantially similar form, if needed) and,
(y) in the case of a failure to deliver the opinion with respect to the factors
described in clause (ii) above, such Foreign Borrower shall execute and deliver
a Foreign Guarantee and applicable Security Documents in substantially the form
executed and delivered by each other Foreign Guarantor (with appropriate
modifications to conform and subject to limitations of law) (or another
guarantee and security agreement in substantially similar form, if needed)
guaranteeing the Obligations of U.S. Borrower and securing such guarantee, in
each case to the extent that the entering into of such agreements is permitted
by the laws of the respective foreign jurisdiction and with all documents
delivered pursuant to this Section 7.17 to be form and substance reasonably
satisfactory to the Administrative Agent.
7.18. Register. Each Borrower and each Lender hereby designates the
Administrative Agent to serve as such Borrower's and such Lender's agent, solely
for purposes of this Section 7.18, to maintain a copy of each Assignment and
Acceptance delivered to and accepted by it and a register (the "Register") on
which it will record the Commitment from time to time of each of the Lenders,
the Loans made by each of the Lenders and each repayment in respect of the
principal amount of the Loans of each Lender. Failure to make any such
recordation or any error in such recordation shall not affect any Borrower's
obligations in respect of such Loans. The entries in the Register shall be prima
facie evidence of the correctness thereof, and the Applicable Borrower, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of such a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Credit Documents, notwithstanding any notice to the contrary. With respect to
any Lender, the transfer of any Commitment of such Lender or the rights to the
principal of, and interest on, any Loan shall not be effective until such
transfer is recorded on the Register maintained by the Administrative Agent with
respect to ownership of such Commitment or Loans and prior to such recordation
all amounts owing to the transferor with respect to such Commitment or Loans
shall remain owing to the transferor. The registration of assignment or transfer
of all or part of any Commitment or Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Acceptance pursuant to this Section 7.18. Coincident with the delivery of such
an Assignment and Acceptance to the Administrative Agent for acceptance and
registration of assignment or transfer of all or part of a Loan, or as soon
thereafter as practicable, the assigning or transferor Lender shall surrender
the Note evidencing such Loan (but only if Notes were requested by and issued to
such Lender) and thereupon one or more new Notes in the same aggregate principal
amount shall be issued to the assigning or transferor Lender and/or the new
Lender. The Borrowers agree to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the Administrative
Agent in performing
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its duties under this Section 7.18, except to the extent finally determined by a
court of competent jurisdiction to have arisen solely from the gross negligence
or willful misconduct of the Administrative Agent.
7.19. Maintenance of Credit Rating. U.S. Borrower shall take all
necessary actions, including but not limited to, the provision of all
information and the payment of all fees and expenses (including the reasonable
fees and expenses of counsel), in order to maintain a credit rating on the
Credit Facilities by both S&P and ▇▇▇▇▇'▇ (or their successors or any other
rating agency reasonably acceptable to the Administrative Agent).
7.20. Limitations on Activities of U.S. Holdco and Foreign Holdco. (a)
U.S. Borrower shall at all times hold 100% of the Equity Interests of U.S.
Holdco. U.S. Holdco shall at all times directly hold 100% of the Equity
Interests of Foreign Holdco. Foreign Holdco shall at all times directly hold
100% of the Equity Interests of RPIVL (other than, solely prior to the 120th day
after the Closing Date, the Self Owned Dutch Stock). U.S. Holdco shall at all
times conduct no operations or business, incur no direct or indirect
obligations, contingent or otherwise, and hold no assets, other than in all such
cases to the extent related to or arising out of its ownership of the Equity
Interests of Foreign Holdco.
(b) Foreign Holdco shall not at any time conduct operations or
business, incur direct or indirect obligations, contingent or otherwise, and
hold no assets other than the following: (i) its Obligations under the Credit
Documents, (ii) Investments in its Subsidiaries permitted by this Agreement, and
(iii) Foreign Holdco Intercompany Notes.
7.21. Certain Collateral Limitations. (a) Notwithstanding the
foregoing, the provisions of Sections 7.13, 7.14, 7.15, 7.17 and 7.20 pertaining
to the grant of any Lien on Collateral securing the Obligations need only be
complied with after any Rating Date to the extent relating to the pledge of
Equity Interests of Subsidiaries as provided in such Sections, except that this
limitation shall not apply so long as at any time after any Rating Date the
Credit Facilities are rated BB+ or less by S&P or are rated Ba1 or less by
▇▇▇▇▇'▇ (a "Downgrade Date"), it nevertheless being expressly understood that
all provisions of such Sections dealing with Guarantees shall remain in full
force and effect on and after the Rating Date. Each Company shall, at the sole
expense of U.S. Borrower, take any action and execute all documents and
instruments necessary or desirable to reattach Liens on Collateral of at least
equal value as the Collateral released after a Rating Date, in each case as
promptly as practicable but in no event later than 90 days after such Downgrade
Date.
(b) From and after the Rating Date, the Administrative Agent shall,
at the request and sole expense of U.S. Borrower, take any action and execute
all documents and instruments to effect the release of the Lien of the Security
Documents (as well as of Swap Contracts with Lenders or their Affiliates) on all
Collateral which is not the Equity Interests of any Company pledged under any
Security Document. Such release shall no longer be permitted if any Downgrade
Date occurs, and each Company shall, at the sole expense of U.S. Borrower, take
any action and execute all documents and instruments necessary or desirable to
reattach Liens on Collateral of at least equal value as the Collateral released
after a Rating Date, in each case as promptly as practicable but in no event
later than 60 days after such Downgrade Date.
(c) Upon the Soterra Disposition, provided all conditions set forth
in subsection 8.2(a)(xvi) have been satisfied, the Lenders shall, at the sole
expense of the U.S. Borrower, release Soterra LLC from its obligations under the
Soterra Guarantee.
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7.22. Post Closing Matters. The Borrowers shall, and shall cause
each of their respective Subsidiaries to, satisfy the requirements set forth on
Schedule 7.22 on or before the date set forth opposite such requirement or such
later date as consented to by the Administrative Agent./1/
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any
Loan or other Obligation (other than any contingent indemnity Obligations) shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:
8.1. Limitation on Liens; No Further Negative Pledge. (a) U.S.
Borrower shall not, and shall not cause or permit any Subsidiary to, create,
incur, assume or suffer to exist any Lien upon or with respect to any property
or assets of any Company, whether now owned or hereafter acquired, except the
following, which are herein collectively referred to as "Permitted Liens" (each
of which shall be given independent effect):
(i) Prior Liens, covering only the property or assets set
forth in such Schedule 8.1(a) and securing Indebtedness outstanding on
such date;
(ii) any Lien created under any Credit Document and Liens
created for the benefit of the Current Lenders in connection with the
Existing Credit Agreement that have not been released and discharged;
(iii) Liens for taxes, fees, assessments or other governmental
charges which are not yet delinquent, or thereafter can be paid without
penalty or are being contested in good faith and by appropriate
proceedings promptly instituted and diligently conducted; provided,
that any reserve or other appropriate provision that shall be required
in conformity with GAAP shall have been made therefor;
(iv) Liens imposed by law which were incurred in the ordinary
course of business and have not arisen to secure Indebtedness, such as
landlords', carriers', warehousemen's, mechanics', materialmen's,
workmen's and repairmen's Liens, and other similar Liens arising in the
ordinary course of business securing payment of obligations that are
not more than 60 days past due, and (x) which do not in the aggregate
materially detract from the value of such property or assets or
materially impair the use thereof in the operation of the business of
the Companies or (y) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or asset subject to such Lien;
(v) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security or similar legislation;
(vi) Liens securing (A) the non-delinquent performance of
bids, trade contracts (other than for borrowed money), leases or
statutory obligations, (B) contingent obligations on surety or appeal
bonds, and (C) other non-delinquent obligations of a like nature, in
each case, incurred in
----------------
/1/ To include certain Spanish collateral terminations and the amendments to the
Foreign Holdco Notes to make them subject to NY law and raise them to the level
of a public document in Spain.
110
the ordinary course of business and not in a manner inconsistent with
industry practice; provided, however, that all such Liens individually
or in the aggregate do not impair in any material respect the use of
the property of the Companies or the operation of the business of the
Companies taken as a whole;
(vii) Liens consisting of a final judgment or order or
judicial attachment liens, (including prejudgment attachment) provided
that the enforcement of such Liens is effectively stayed or payment of
which is covered in full (subject to a customary deductible) by
insurance or which do not otherwise result in an Event of Default under
subsection 9.1(i);
(viii) easements, rights-of-way, servitudes, covenants,
restrictive covenants, encumbrances, minor defects or irregularities in
title and other similar restrictions which, individually or in the
aggregate, do not materially interfere with the ordinary conduct of the
businesses of the Companies and which do not materially impair for its
intended purpose the Real Property to which they relate;
(ix) security interests (whether purchase money or otherwise)
on any real or personal property acquired, constructed or improved
after the Effective Date by any Company securing Indebtedness incurred
or assumed for the purpose of financing all or any part of the cost of
acquiring, constructing or improving such property; provided, however,
that (A) any such Lien attaches to such property concurrently with or
within 180 days after the acquisition thereof or the completion of
construction or improvement, (B) such Lien attaches solely to the
property so acquired, constructed or improved in such transaction, (C)
the principal amount of the Indebtedness secured thereby does not
exceed 100% of the fair market value of such property at the time of
incurrence of such Indebtedness, plus the cost of construction or
improvement, and (D) the principal amount of the Indebtedness secured
by any and all such security interests, plus the aggregate amount of
all Indebtedness arising under Capital Leases permitted solely by
clause (x) of this subsection 8.1(a), shall not at any time exceed the
Dollar Equivalent amount of U.S. $30,000,000;
(x) Liens securing obligations in respect of Capital Leases on
assets subject to such leases; provided, however, that (A) the
principal amount of the Indebtedness secured thereby does not exceed
100% of the fair market value of such property at the time of
incurrence of such Indebtedness, and (B) the aggregate amount of all
Indebtedness arising under Capital Leases permitted solely by this
clause (x) (other than in respect of Capital Leases for automobiles
leased in the ordinary course of business that are not required to be
capitalized under International Accounting Standards), plus the
aggregate amount of all Indebtedness secured by security interests
permitted solely by clause (ix) of this subsection 8.1(a), shall not at
any time exceed the Dollar Equivalent amount of U.S. $30,000,000;
(xi) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided, however, that (A)
such deposit account is not a dedicated cash collateral account and is
not subject to restrictions against access by any Company in excess of
those set forth by regulations promulgated by the FRB or comparable
Governmental Authority, and (B) such deposit account is not intended by
any Company to provide collateral to the depository institution;
(xii) Liens existing on any asset prior to the date of its
acquisition which (A) were not created in contemplation of or in
connection with such acquisition, and (B) do not extend to or cover any
other property or assets of any Company.
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(xiii) Liens existing on any asset of any Person at the time
such Person becomes a Subsidiary or is merged, amalgamated or
consolidated with or into a Subsidiary which (A) were not created in
contemplation of or in connection with such event and (B) do not extend
to or cover any other property or assets of any Company;
(xiv) Liens not otherwise permitted hereunder securing
Indebtedness or other obligations not at any time exceeding in the
aggregate a Dollar Equivalent amount of U.S. $20,000,000;
(xv) The interest or title of a lessor under any operating
Leases otherwise permitted by this Agreement with respect to the assets
or properties of any Company entered into in the ordinary course of
business;
(xvi) Liens evidenced by UCC financing statements (or similar
documents under a statute or statutes equivalent to the UCC) regarding
operating and equipment leases permitted by this Agreement or in
respect of consigned goods in the ordinary course of business which
reflect ownership by a third party of the Property leased to that
Person under a Lease that is not in the nature of a conditional sale or
title retention agreement;
(xvii) Any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien permitted
by any of clause (i), (ix), (xii) or (xiii) of this subsection 8.1(a);
provided, however, that such Indebtedness is not increased and is not
secured by any additional assets as to which a Lien is not otherwise
permitted hereunder;
(xviii) Liens securing Intercompany Indebtedness to the extent
such Intercompany Indebtedness is permitted by Section 8.4(c) or (r),
including Foreign Holdco Intercompany Notes; provided, such
Intercompany Indebtedness is evidenced by promissory notes in form, and
shall be pledged to the Administrative Agent pursuant to documentation,
reasonably satisfactory to the Required Lenders.
(xix) Liens securing obligations under Swap Contracts with any
Creditor to the extent such Swap Contract is permitted by the terms of
this Agreement;
(xx) Liens permitted by Article 4 of the Mortgage and the
Security Documents;
(xxi) Liens on Accounts or related assets of any Receivables
Co. created in connection with a Permitted Receivables Transaction; and
(xxii) Liens arising from the sale or disposition of property
and assets contemplated by subsections 8.2(a)(iii), 8.2(a)(v),
8.2(a)(xiii) and Section 8.20.
(b) No Company shall enter into any agreement prohibiting the
creation or assumption of any Lien upon its properties or assets, whether now
owned or hereafter acquired, except pursuant to (i) the Credit Documents, (ii)
the Senior Subordinated Debt Documents, (iii) agreements entered into in
connection with the purchase of assets which are subject to Liens for purchase
money obligations or capital leases permitted by subclauses 8.1 (ix) and (x),
(iv) license agreements under which any Company is the licensee, (v) any other
agreement that does not restrict in any manner (directly or indirectly) Liens
created pursuant to the Credit Documents and does not require the direct or
indirect granting of any Lien securing Indebtedness for the benefit of any
Person by virtue of the granting of Liens hereunder, (vi) any industrial revenue
or development bonds, acquisition agreements, agreements in connection with any
Permitted Receivables Transaction permitted hereby (in which case, any
prohibition
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or limitation shall only be effective against the property financed or acquired
thereby) and (vii) operating leases of Real Property entered into in the
ordinary course of business (in which case, any prohibition or limitation shall
only be effective against the real property so leased).
8.2. Consolidations, Mergers and Disposition of Assets. (a) The
Borrowers shall not, and shall not cause or permit any Subsidiary to, directly
or indirectly, (A) consummate any Asset Sale, (B) wind up, liquidate or dissolve
its affairs, (C) merge, amalgamate, consolidate with or into, or (D) convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of their respective properties
or assets (whether now owned or hereafter acquired) to or in favor of any
Person, except (each of which shall be given independent effect):
(i) dispositions of used, worn-out, obsolete or surplus
equipment or other property, all in the ordinary course of business;
provided, however, that the proceeds thereof are reinvested in the
business of one or more of the Companies;
(ii) the sale of equipment to the extent that such equipment
is exchanged for credit against the purchase price of similar
replacement equipment, or the proceeds of such sale are reasonably
promptly applied to the purchase price of similar replacement
equipment;
(iii) Capital Expenditures permitted by Section 8.18; Leases
not prohibited by this Agreement; the Liens permitted by Section 8.1;
the Investments permitted pursuant to Section 8.4; the Restricted
Payments permitted by Section 8.13; and sale-leaseback transactions
permitted by Section 8.19;
(iv) any Asset Sale so long as the aggregate sale proceeds
from all such Asset Sales shall not exceed the Dollar Equivalent amount
of U.S. $10,000,000 in any Fiscal Year of U.S. Borrower;
(v) the sale or discount, in each case without recourse, of
accounts receivable arising in the ordinary course of business, but
only in connection with the compromise or collection thereof or as
permitted by Section 8.20; provided, however, that any Foreign
Subsidiary may effect such sale or discount with recourse if such sale
or discount is consistent with its past practice or is consistent with
customary practice in such Subsidiary's country of business;
(vi) the licensing, in the ordinary course of business, of
patents, trademarks, copyrights and know-how to or from third Persons,
so long as any such license granted by any Company after the Effective
Date is permitted to be assigned pursuant to the applicable Security
Document and does not otherwise prohibit the granting of a Lien therein
by any Company pursuant to any Security Document;
(vii) any Subsidiary may be merged or consolidated with or
into U.S. Borrower or any Domestic Loan Party (other than Soterra LLC)
and any Subsidiary may transfer assets to U.S. Borrower or any Domestic
Loan Party (other than Soterra LLC); provided, however, that in any
merger or consolidation involving U.S. Borrower, U.S. Borrower shall be
the surviving corporation;
(viii) any Acquisition permitted by Section 8.4;
(ix) any Foreign Borrower may merge or consolidate with or
into or sell, assign or transfer its assets to any other Foreign
Borrower, and any Foreign Subsidiary (other than
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any Foreign Borrower) may merge or consolidate with or into or sell,
assign or transfers its assets to any other Foreign Subsidiary;
provided, however, (i) if such Foreign Subsidiary merges with or into a
Foreign Borrower, such Foreign Borrower shall be the surviving
corporation, and (ii) if the Foreign Subsidiary that is merged or
consolidated or that sells, assigns or transfers its assets is a
Foreign Guarantor, then the surviving entity or transferee, as the case
may be, shall have executed and delivered a Foreign Guarantee;
(x) any disposition in the ordinary course of business of
Timber Lands so long as either (A) the Net Cash Proceeds, if any,
therefrom are applied as provided in subsection 2.9(c), or (B) such
disposition is pursuant to a substantially contemporaneous exchange
for, or acquisition of, Timber Lands;
(xi) any Subsidiary (other than the Foreign Borrowers) may be
liquidated in connection with the sale of its assets as permitted by
this Agreement and the cessation of operations in connection therewith
so long as the Net Cash Proceeds therefrom are applied as provided in
subsection 2.9(c);
(xii) Asset Sales contemplated by Schedule 8.2(a)(xii) so long
as made for fair market value as reasonably determined by U.S. Borrower
and on ordinary business terms and so long as the Net Cash Proceeds
therefrom are applied as provided in subsection 2.9(c); and
(xiii) the sale, transfer or discount of Accounts pursuant to
any Permitted Receivables Transaction so long as the Net Cash Proceeds
therefrom are applied as provided in subsection 2.9(f) and such
transaction is permitted by pursuant to Section 8.5 (m).
(xiv) Asset Sales by any Company to any Domestic Loan Party
(other than Soterra LLC); Asset Sales by any Foreign Borrowers to any
other Foreign Borrower; Asset Sales from any Foreign Subsidiary (other
than any Foreign Borrower) to any other Foreign Subsidiary and to the
extent permitted by subsection 8.4(s), Asset Sales by any Domestic Loan
Party to any Foreign Loan Party.
(xv) Takings or Destructions or involuntary loss of title to
Collateral; provided, however, with respect to such involuntary loss of
title, the Lien in favor the Administrative Agent remains in place.
(xvi) the Soterra Disposition; provided, however, at the time
of the Soterra Disposition and after giving effect thereto, (i) no
Unmatured Event of Default or Event of Default shall have occurred and
be continuing; (ii) the U.S. Borrower shall be in pro forma compliance
with the Financial Performance Covenants as if the Soterra Disposition
had occurred on the first day of the most recently completed fiscal
period for measuring compliance with such Financial Performance
Covenants; (iii) the Net Cash Proceeds therefrom are as applied to
prepay the Loans in subsection 2.9(c) and (iv) the Soterra Disposition
will not result in the breach of or default under any material
Contractual Obligation of any Company, and (v) all guaranties of
Soterra LLC of any obligation of any Company owing to any other Person
shall be simultaneously released.
(xvii) Asset Sales not contemplated by subsections 8.2(a)(i)
through (xvi) so long as (i) the aggregate sale proceeds from all Asset
Sales pursuant to this subsection 8.2(xvii) do not exceed the Dollar
Equivalent amount of U.S. $10,000,000 in any Fiscal Year, and (ii) the
Net Cash Proceeds therefrom are applied as provided in subsection
2.9(c).
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(b) All Assets Sales (other than Asset Sales referenced in
subsections 8.2(a)(v), (a)(vii), (a)(ix), (a)(xv) and (a)(xvi)) shall be made
for fair market value (as determined by the U.S. Borrower in compliance with the
terms of the Subordinated Notes Indenture) and, with respect to Asset Sales
contemplated by subsections 8.2(i), 8.2(iv), 8.2(xii), and 8.2(xvii), at least
75% of the consideration paid to the applicable Company in connection with such
Asset Sale shall be in the form of Cash or Cash Equivalents. To the extent the
Required Lenders waive the provisions of this Section 8.2 with respect to the
sale or other disposition of any Collateral, or any Collateral is sold or
otherwise disposed of as permitted by this Section 8.2 (other than to a
Company), the Agents and Lenders acknowledge and agree that such Collateral in
each case shall be sold or otherwise disposed of free and clear of the Liens
created by the Security Documents and the Administrative Agent shall, at the
sole expense of U.S. Borrower, take such actions as are appropriate in
connection therewith.
8.3. Operating Leases. The Borrowers shall not permit, and shall
not cause or permit any Subsidiary to permit, the aggregate Lease payments
calculated in accordance with GAAP (including, without limitation, any property
taxes paid as additional rent or lease payments) by the Companies on a
consolidated basis under any Lease (or any extension or renewal thereof)
(excluding Capital Leases) to exceed the Dollar Equivalent amount of $40,000,000
for Leases entered into for the Fiscal Year ending in 2002, $60,000,000 for
Leases entered into for the Fiscal Year ending in 2003, and the Dollar
Equivalent amount of U.S. $70,000,000 for each Fiscal Year thereafter.
8.4. Loans and Investments. The Borrowers shall not, and shall
not cause or permit any Subsidiary to, directly or indirectly, (i) purchase or
acquire, or make any commitment to purchase or acquire, any Equity Interest, or
obligations or other securities of, or any interest in, any Person, (ii) make or
commit to make any Acquisition, (iii) make or commit to make any advance, loan,
extension of credit or capital contribution to, or guarantee of any obligation
of, or any other investment in, or (iv) incur Contingent Obligations permitted
pursuant to Section 8.8 on behalf of any Person (any of the foregoing, an
"Investment"), except for (each of which shall be given independent effect):
(a) Investments by any Company in Cash and Cash Equivalents;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) Investments (including Intercompany Indebtedness) by any
Company in or to U.S. Borrower or any Domestic Loan Party (or in any Person that
thereby becomes a Domestic Loan Party or is merged or consolidated into U.S.
Borrower or any Domestic Loan Party) (other than Soterra LLC); provided,
however, (x) upon request of the Required Lenders, any Intercompany Indebtedness
shall be evidenced by promissory notes in form, and shall be pledged to the
Administrative Agent pursuant to documentation, reasonably satisfactory to the
Required Lenders, and (y) such Subsidiary shall have entered into the
appropriate Security Documents pursuant to Section 7.13 and taken all necessary
action pursuant to Section 7.16;
(d) Investments consisting of non-cash consideration received in
the form of securities, notes or similar obligations in connection with Asset
Sales not prohibited by subsection 8.2(b); provided, however, that such non-cash
consideration is pledged pursuant to the appropriate Security Document;
(e) Investments made in order to consummate Acquisitions;
provided, however, that (i) no Event of Default or Unmatured Event of Default
exists or will result therefrom (including any such event under Section 8.15),
(ii) on a pro forma basis, after giving effect to such Acquisition(s), U.S.
Borrower would have been in compliance with Sections 8.10, 8.11 and 8.12 on the
last day of the most
115
recently completed Fiscal Quarter (assuming, for purposes of Sections 8.10 and,
if applicable, 8.12, that such Acquisition had occurred on the first day of the
Test Period ending on such last day) which compliance shall be demonstrated in
an Officers' Certificate delivered to the Administrative Agent and each Lender
and (iii) the aggregate Dollar Equivalent amount of the consideration (which for
each Acquisition shall be measured at the date of consummation thereof and which
shall include Indebtedness assumed (not to exceed 50% of the total consideration
for any Acquisition), earn-outs, working capital deficits and deferred payments)
paid for all Acquisitions consummated since the Effective Date shall not exceed
the Dollar Equivalent amount of U.S. $100,000,000 per Fiscal Year plus the net
cash received as described in subsection 8.4(u)(ii) and less any Investments
made pursuant to subsection 8.4(u);
(f) pledges or deposits required in the ordinary course of
business in connection with workmen's compensation, unemployment insurance and
other social security or similar legislation;
(g) pledges or deposits in connection with (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money), Leases or
statutory obligations, (ii) contingent obligations on surety or appeal bonds
(including those permitted by subsection 8.8(f)), and (iii) other non-delinquent
obligations of a like nature, in each case incurred in the ordinary course of
business;
(h) advances, loans or extensions of credit to suppliers in the
ordinary course of business consistent with past practice as of the Effective
Date;
(i) advances, loans or extensions of credit by any Company to
employees of any Company (other than employees of Soterra LLC or any Receivables
Co.) in the ordinary course of business and consistent with past practice as of
the Effective Date; provided, however, that the aggregate amount of all such
loans, advances and extensions of credit shall not at any time exceed in the
aggregate a Dollar Equivalent amount of U.S. $7,500,000;
(j) other Investments (excluding Investments of the types
described in subsection 8.4(i) and Investments in Soterra LLC or any Receivables
Co.) by any Company not at any time exceeding the sum of (i) in the aggregate a
Dollar Equivalent amount of U.S. $15,000,000 since the Effective Date plus (ii)
the aggregate net cash received by U.S. Borrower since the Effective Date in
connection with such Investments as interest, dividends, distributions or other
income and returns of capital;
(k) Investments received in connection with the bankruptcy or
reorganization, recapitalization or workout of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business or any foreclosure by any
Company; provided, however, that any Equity Interests, instruments evidencing
Indebtedness of such Person or other property so received is pledged pursuant to
the appropriate Security Document;
(l) Swap Contracts and other Contingent Obligations entered into
in compliance with subsection 8.8(b);
(m) Investments in existence on the Effective Date and listed in
Schedule 8.4(m), without giving effect to any additions thereto and Investments
to be made pursuant to binding agreements in existence on the Effective Date set
forth on Schedule 8.4(m) to the extent made in accordance with the terms of such
agreements as in effect on the Effective Date, and any renewal or extension of
any thereof in the ordinary course of business and on ordinary business terms in
an amount not to exceed the original amount thereof;
116
(n) any Company may hold additional Investments in any
Subsidiary to the extent that such Investments reflect an increase in the value
of such Subsidiary resulting from retained earnings of such Subsidiary;
(o) any endorsement of a check of other medium of payment for
deposit or collection, or any similar transaction in the ordinary course of
business;
(p) Investments of any Person in the amount existing at the time
such Person became a Subsidiary, to the extent such Investment was not made in
connection with, or in contemplation of, such Person becoming a Subsidiary;
(q) Soterra LLC may make Investments in any Company; any Foreign
Borrower or Foreign Subsidiary may make Investments in or to any other Foreign
Loan Party; and any Foreign Subsidiary (other than a Foreign Loan Party) may
make Investments in any Company;
(r) Subject to limitations in subsection 8.4(s), Investments by
any Company in any Wholly-Owned Subsidiary (other than Soterra LLC) to the
extent made in the ordinary course to fund or support the ordinary course
operations of such Wholly-Owned Subsidiary or if de minimis and made in
connection with the organization or formation thereof; provided, however, that
upon the request of the Required Lenders all or any part of such Intercompany
Indebtedness shall be evidenced by promissory notes in form, and shall be
pledged to the Paying Agent pursuant to documentation reasonably satisfactory to
the Required Lenders;
(s) Investments consisting of the transfer of equipment (and any
intellectual property rights necessary for the use of such assets) to Foreign
Subsidiaries in the ordinary course of business so long as, at the time of any
such transfer, the sum of the current book value of the assets transferred plus
the book values of all other assets previously transferred to Foreign
Subsidiaries pursuant to this clause (s) (measured as of the time of the
relevant transfer) since the Effective Date, does not exceed 5% of the Total
Assets of U.S. Borrower (measured at the time of such transfer);
(t) Any Investment which, in the good faith judgment of such
Company, is reasonably necessary in connection with, and pursuant to, any
Permitted Receivables Transaction; provided, however, (i) the nature and extent
of such Investment shall be disclosed to the Lenders in connection with approval
of such Permitted Receivables Transaction and (ii) such Investment shall only be
made in connection with a Permitted Receivables Transaction on terms
satisfactory to the Required Lenders;
(u) Investments in Joint Ventures by any Company not at any time
exceeding the sum of (i) in the aggregate a Dollar Equivalent amount of U.S.
$35,000,000 per Fiscal Year plus (ii) the aggregate net cash received by any
Company since the Effective Date in connection with such Investments as
interest, dividends, distributions or other income and returns of capital from
Investments; and
(v) Contingent Obligations not prohibited by Section 8.8.
8.5. Limitation on Indebtedness. The Borrowers shall not, and
shall not cause or permit any Subsidiary to, directly or indirectly, create,
incur, assume, suffer to exist, or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness, except (each of which shall
be given independent effect):
(a) the Obligations;
117
(b) Indebtedness evidenced by the Senior Subordinated Notes;
(c) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 8.8;
(d) Indebtedness existing on the Effective Date which is
Refinanced Indebtedness (which Indebtedness may not be outstanding beyond the
Effective Date);
(e) Indebtedness existing on the Effective Date which amount
shall not exceed the Dollar Equivalent amount of U.S. $50,000,000 reduced by any
Indebtedness incurred pursuant to subsection 8.5(n), and any refinancing,
renewal or extension thereof by the applicable obligor that does not shorten the
maturity or the average life to maturity thereof or increase the amount thereof
(other than by the amount of fees and expenses (including prepayment premiums)
related to such refinancing, renewal or extension);
(f) Indebtedness incurred in connection with Capital Leases to
the extent permitted by subsection 8.1(a)(x) and Indebtedness incurred in
connection with the acquisition, construction or improvement of property to the
extent permitted by subsection 8.l(a)(ix);
(g) Intercompany Indebtedness to the extent permitted pursuant to
Section 8.4;
(h) unsecured Indebtedness in an aggregate principal amount not
to exceed in the aggregate at any time outstanding the Dollar Equivalent amount
of U.S. $35,000,000;
(i) Contingent Obligations of any Company in respect of recourse
events in connection with any Permitted Receivables Transaction permitted
pursuant to Section 8.5 (m);
(j) Indebtedness subordinated on terms satisfactory to the
Required Lenders not to exceed in the aggregate at any time outstanding the
Dollar Equivalent amount of U.S. $150,000,000 so long as the Net Cash Proceeds
therefrom are used to repay the Loans in accordance with subsection 2.9(d);
(k) Indebtedness arising from honoring a check, draft or similar
instrument against insufficient funds; provided, however, that such Indebtedness
is extinguished within five Business Days of its incurrence;
(l) Indebtedness of a Person assumed in connection with an
Acquisition of such Person permitted by subsection 8.4(e); provided such
Indebtedness was not incurred in connection with, or in contemplation of, such
Acquisition;
(m) Indebtedness of any Receivables Co. incurred in connection
with a Permitted Receivables Transaction consisting of (i) Indebtedness in an
aggregate amount at any time not to exceed the Dollar Equivalent amount of U.S.
$120,000,000 and (ii) Indebtedness of any Company to any Receivables Co. in
connection with any Permitted Receivables Transaction; provided, however, that
in the case of clause (i) of this subsection, the Net Cash Proceeds therefrom
shall be applied to repay the Loans as specified in subsection 2.9(f); and
(n) unsecured Indebtedness of any Foreign Subsidiary in an
aggregate principal amount for all Foreign Subsidiaries not to exceed in the
aggregate at any time outstanding the Dollar Equivalent amount of U.S.
$25,000,000
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If such Indebtedness is incurred to refinance Indebtedness
denominated in a currency other than U.S. Dollars and such refinancing would
cause a Dollar Equivalent restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such
Dollar Equivalent restriction shall not be deemed to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced, but the ability to make
subsequent incurrences of Indebtedness subject to the applicable Dollar
Equivalent restriction shall be determined as if the relevant currency exchange
rate applied to any such previous refinancing was the rate in effect on the date
of such refinancing.
8.6. Transactions with Affiliates. The Borrowers shall not, and
shall not cause or permit any Subsidiary to, directly or indirectly, enter into
any transaction with any Affiliate of U.S. Borrower (other than one or more
Companies), (an "Affiliate Transaction") unless the terms of such transaction
(i) are set forth in writing, (ii) are upon fair and reasonable terms no less
favorable to the Borrowers or such Subsidiary than those that could be obtained
in a comparable arm's-length transaction with a Person not an Affiliate of U.S.
Borrower or such Subsidiary; (iii) if such Affiliate Transaction (or series of
related Affiliated Transactions) involves payments or value in an amount in
excess of $5,000,000 in any one year, the Board of Directors (including a
majority of the disinterested members of the Board of Directors) approves such
Affiliate Transaction and, in its good faith judgment, believes that such
Affiliate Transaction satisfies the requirement set forth in clause (ii) above
as evidenced by a Board Resolution promptly delivered to the Administrative
Agent, and (iv) if such Affiliate Transaction (or series of related Affiliated
Transactions) involves aggregate payments or value in excess of $20 million in
the aggregate, the U.S. Borrower obtains a written opinion from a nationally
recognized investment banking firm reasonably satisfactory to the Administrative
Agent, to the effect that the consideration to be paid or received in connection
with such Affiliate Transaction is fair, from a financial point of view to the
U.S. Borrower and the Loan Parties; provided, however, that the following shall
be permitted: (a) Restricted Payments permitted by Section 8.13; (b) the payment
of reasonable and customary regular fees to directors of any Company who are not
employees of any Company; (c) any transaction with an officer or member of the
board of directors of any Company who is an Affiliate of the U.S. Borrower
involving compensation or employee benefit arrangements so long as the Board of
Directors in good faith shall have approved the terms thereof and deemed the
services theretofore or thereafter to be performed for such compensation to be
fair consideration therefor and such transaction is not prohibited subsection
8.4(i), (d) transactions in connection with Permitted Receivables Transactions,
(e) written tax sharing agreements approved by the Board of Directors of the
U.S. Borrower and determined by such Board, in its good faith judgment, that
such tax sharing agreements are fair and reasonable to any Loan Party part
thereto, (f) the Soterra Disposition and (g) agreements in existence on the
Effective Date (without giving effect to any amendment thereto) and described on
Schedule 8.6 hereto.
8.7. Use of Proceeds. The Borrowers shall not and shall not cause
or permit any Subsidiary to, directly or indirectly, use any portion of the Loan
proceeds or any Letter of Credit, directly or indirectly, (i) to purchase or
carry Margin Stock, (ii) to repay or otherwise refinance Indebtedness of any
Loan Party or others incurred to purchase or carry Margin Stock or (iii) to
extend credit for the purpose of purchasing or carrying any Margin Stock.
8.8. Contingent Obligations. The Borrowers shall not, and shall
not cause or permit any Subsidiary to, directly or indirectly, create, incur,
assume or suffer to exist any Contingent Obligations, except:
(a) endorsements for collection or deposit in the ordinary
course of business;
(b) Swap Contracts entered into in the ordinary course of
business for the purpose of limiting or otherwise managing (and not for
speculative purposes) fluctuations in interest rates, currency
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exchange rates, commodity prices or similar risks; provided, however, that with
respect to any Swap Contract (i) relating to interest rate risk, the obligations
thereunder must be directly related to payment obligations of Indebtedness
permitted by Section 8.5, (ii) relating to fluctuations in commodity prices,
such Swap Contracts must be entered into for the purpose of limiting risk in
connection with commodity transactions entered into by such Company, and (iii)
relating to fluctuations in currency exchange rates, such Swap Contracts must be
directly related to the transactions entered into by such Company;
(c) customary contractual indemnification obligations entered
into in the ordinary course of business on ordinary business terms; and
(d) obligations to adjust the purchase price relating to any
disposition of assets;
(e) Contingent Obligations existing as of the Effective Date and
listed in Schedule 8.8;
(f) Contingent Obligations arising under (i) letters of credit,
banker's acceptances, banker's guaranties, surety bonds and similar agreements
or instruments issued in connection with transactions arising in the ordinary
course of business of any Company or (ii) any guaranty of the performance of
Contractual Obligations (other than obligations to pay money) of other Persons
that are not Subsidiaries so long as such guaranty arises in connection with a
project in which a Company is otherwise involved in the ordinary course of
business, not to exceed in the aggregate for all Contingent Obligations pursuant
to this subclause (f) the Dollar Equivalent amount of U.S. $20,000,000;
(g) Contingent Obligations permitted by Section 8.4 and
Contingent Obligations by U.S. Borrower with respect to any Indebtedness of any
Company incurred in accordance with Section 8.5;
(h) other Contingent Obligations not at any time exceeding in
the aggregate outstanding a Dollar Equivalent amount of U.S. $20,000,000;
(i) Contingent Obligations arising under the Credit Documents;
and
(j) Contingent Obligations arising under the Senior Subordinated
Debt Documents by each Company party to a Guarantee.
8.9. Restrictions on Subsidiaries. (a) The Borrowers shall not
cause or permit any Subsidiary to, directly or indirectly, enter into any
agreement or instrument (other than the Credit Documents or the Senior
Subordinated Debt Documents) which by its terms restricts the ability of such
Subsidiary (a) to declare or pay dividends or make similar distributions, (b) to
repay principal of, or pay any interest on, any Indebtedness owed to any
Company, (c) to make payments of royalties, licensing fees and similar amounts
to any Company or (d) to make loans or advances to, or guarantee any
Indebtedness or other obligation of, any Company, except for such encumbrances
or restrictions existing under or by reason of (i) customary provisions
restricting subletting or assignment of any Lease governing a leasehold interest
of any Company, (ii) customary provisions restricting assignment of any
agreement or license entered into by any Company in the ordinary course of
business, (iii) customary provisions restricting the transfer of assets subject
to Liens permitted under subsections 8.1(ix) or (x), (iv) applicable law
(including minimum capital requirements), (v) a Permitted Receivables
Transaction (including limitations set forth in the Organizational Documents of
a Receivables Co.) and (vi) Indebtedness contemplated by Section 8.5(l).
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(b) U.S. Borrower will not, and will not cause any Subsidiary
to, directly or indirectly take any action which would cause any Subsidiary to
cease to be a Subsidiary by virtue of the last sentence of the definition of
Subsidiary.
8.10. Fixed Charge Coverage Ratio; Interest Coverage Ratio. (a)
U.S. Borrower shall not permit, as of any Test Date (beginning with the Test
Date ending October 31, 2002), the Fixed Charge Coverage Ratio to be less than
1.20 to 1.0.
(b) U.S. Borrower shall not permit, as of any Test Date
(beginning with the Test Date ending October 31, 2002), the Interest Coverage
Ratio to be less than 3.00 to 1.00:
8.11. Minimum Net Worth. U.S. Borrower shall not permit
Consolidated Net Worth (to be calculated for the purposes of this Section 8.11
by excluding net gains (but not losses) resulting from Asset Sales (other than
sales of Timber Assets)) at the end of any Fiscal Quarter (beginning with the
Fiscal Quarter ending October 31, 2002) to be less than (i) U.S. $500,000,000
plus (ii) 50% of the sum of positive Consolidated Net Income for each Fiscal
Quarter beginning with the first Fiscal Quarter after the Original Closing Date
(without reduction for losses) plus (iii) 100% of the Net Cash Proceeds received
by U.S. Borrower after the Original Closing Date from each issuance of Equity
Interests.
8.12. Total Leverage Ratio. U.S. Borrower shall not permit, as of
any Test Date (beginning with the Test Date ending October 31, 2002), the Total
Leverage Ratio to exceed the ratio set forth opposite such Test Date in the
table below:
==============================================================================
Test Dates Total Leverage Ratio
------------------------------------------------------------------------------
October 31, 2002 4.00 to 1.00
------------------------------------------------------------------------------
January 31, 2003 4.00 to 1.00
------------------------------------------------------------------------------
April 30, 2003 3.75 to 1.00
------------------------------------------------------------------------------
July 31, 2003 3.75 to 1.00
------------------------------------------------------------------------------
October 31, 2003 and any Test Date thereafter 3.50 to 1.00
==============================================================================
8.13. Restricted Payments. The Borrowers shall not, and shall not
permit any Subsidiary to, directly or indirectly, (i) declare or make any
dividend payment or other distribution of assets, properties, Cash, rights,
obligations or securities on account of any shares of any class of the Equity
Interests of any Company (other than to U.S. Borrower or any Company (other than
Soterra LLC or any Receivables Co.)) or (ii) purchase, redeem or otherwise
acquire for value any shares of any Company's Equity Interests or any warrants,
rights or options to acquire such Equity Interests, now or hereafter outstanding
owned by any Person other than U.S. Borrower or any Domestic Loan Party (any
such prohibited transaction, a "Restricted Payment"), except that (each of which
shall be given independent effect):
(a) any Company may declare and make dividend payments or other
distributions payable solely in its Equity Interests (other than Disqualified
Stock), the U.S. Borrower can make the Soterra Disposition in the form of a
dividend payment of its Equity Interests in Soterra LLC, and any rata basis to
such Subsidiary,s shareholders generally;
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(b) any Company may purchase, redeem, defease or otherwise acquire
or retire for value shares of its Equity Interests or warrants or options to
acquire any such Equity Interests in exchange for shares of its Equity Interests
(other than Disqualified Stock);
(c) any Subsidiary may purchase, redeem, defease or otherwise
acquire or retire for value shares of its Equity Interests or warrants or
options to acquire any such Equity Interests so long as any such payments are
paid solely to a Loan Party;
(d) so long as no Unmatured Event of Default or Event of Default
then exists pursuant to subsection 9.1(a), (f) or (g), U.S. Borrower may make
Restricted Payments during any Fiscal Year in an amount not to exceed the excess
of (I) the sum of (A) U.S. $25,000,000 plus (B) the sum of 50% of Consolidated
Net Income for each Fiscal Year ending during the period beginning on March 2,
2001 and ending immediately prior to the date of such Restricted Payment and for
which financial statements complying with subsection 7.1(a) have been delivered
to the Lenders (it being understood that there shall not be any deductions for
any net loss as shown on U.S. Borrower's income statement for any Fiscal Year
prepared in accordance with GAAP) over (II) the aggregate amount of Restricted
Payments made since March 2, 2001; provided, however, that in no event shall the
aggregate amount of Restricted Payments made in any Fiscal Year exceed U.S.
$25,000,000;
(e) so long as no Unmatured Event of Default or Event of Default
then exists U.S. Borrower may repurchase shares of its common stock from time to
time during any Fiscal Year in an amount not to exceed the lesser of (I) U.S.
$25,000,000 and (II) the Dollar Equivalent amount of 25% of Excess Cash Flow for
the most recent Fiscal Year of U.S. Borrower; provided, however that in no event
shall such a repurchase be permitted if (A) the mandatory prepayment required by
subsection 2.9(b) for such Fiscal Year has not been completed in accordance with
the requirements thereof and applied as set forth in subsection 2.9(f), or (B)
at the time of the proposed repurchase the Total Leverage Ratio is greater than
2.0 to 1.0; and
(f) U.S. Borrower may pay dividends of up to the lesser of (I)
$0.01 per share of Class A Common Stock for each four consecutive Fiscal
Quarters and (II) U.S. $250,000 for each consecutive Fiscal Quarter.
8.14. ERISA. The Borrowers shall not, and shall not cause or permit
any ERISA Entities to, engage in a transaction that would be reasonably likely
subject to Section 4069 or 4212(c) of ERISA and that would, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
8.15. Change in Business. The Borrowers shall not, and shall not
cause or permit any Subsidiary to, directly or indirectly, engage in any line of
business that, taken on a consolidated basis, would be material and
substantially different from those lines of business carried on by the Companies
on the Effective Date, except that the Companies may engage in any reasonable
extension, development or expansion thereof or in any business ancillary
thereto.
8.16. Accounting Changes. The Borrowers shall not, and shall not
cause or permit any Subsidiary to, make any change in accounting principles or
reporting practices, except as required by GAAP, or change their fiscal years.
8.17. Amendments to Transaction Documents. The Borrowers shall not
and shall not cause or permit any Subsidiary to, directly or indirectly, make
any amendment, supplement or other modification of, or enter into any consent or
waiver with respect to any material obligations under any Transaction Document.
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8.18. Capital Expenditures. The Borrowers shall not permit the
aggregate amount of all Capital Expenditures made by the Companies for any
Fiscal Year to exceed U.S. $120,000,000; provided, however, that (x) if the
aggregate amount of Capital Expenditures for any Fiscal Year shall be less than
U.S. $120,000,000 (before giving effect to any carryover), then the shortfall
may be added to the amount of Capital Expenditures permitted for the immediately
succeeding (but not any other) Fiscal Year if the amount expended in such Fiscal
Year would not exceed U.S. $135,000,000 and (y) in determining whether any
amount is available for carryover, the amount expended in any Fiscal Year shall
first be deemed to be from the amount allocated to such year before any
carryover.
8.19. Sale and Lease-Backs. The Borrowers shall not, and shall not
cause or permit any Subsidiary to, directly or indirectly, become or thereafter
remain liable as lessee or as guarantor or other surety with respect to the
lessee's obligations under any Lease, whether an operating lease or a Capital
Lease, of any property (whether real or personal or mixed), whether now owned or
hereafter acquired, (i) which any Company has sold or transferred or is to sell
or transfer to any other Person (other than any Domestic Loan Party) or (ii)
which any Company intends to use for substantially the same purpose as any other
property which has been or is to be sold or transferred by any Company to any
Person in connection with such lease, if in the case of clause (i) or (ii)
above, such sale and such lease are part of the same transaction or a series of
related transactions or such sale and such lease occur within one year of each
other or are with the same other Person, except for (i) any such transactions to
the extent the aggregate Dollar Equivalent of such transactions does not exceed
$15,000,000 at any one time outstanding, (ii) any transaction described on
Schedule 8.19 or (iii) the sale of an asset and the subsequent lease of such
asset for a term of less than one year provided such transaction is not for the
purpose of financing such asset.
8.20. Sale or Discount of Receivables. The Borrowers shall not, and
shall not cause or permit any Subsidiary to, directly or indirectly, sell, with
or without recourse, or discount (other than in connection with trade discounts
or arrangements necessitated by the creditworthiness of the other party, in each
case in the ordinary course of business consistent with past practice) or
otherwise sell for less than the face value thereof, notes or accounts
receivable, except (i) to any Domestic Loan Party (other than Soterra LLC) and
(ii) by Foreign Subsidiaries in the ordinary course and is (I) consistent with
past practice as of the Effective Date or consistent with the customary
practices of the applicable country and (II) permitted by subsection 8.2(e) and
(o).
8.21. Creation of Subsidiaries. The Borrowers shall not, and shall
not cause or permit any Subsidiary to, establish, create or acquire after the
Effective Date any Subsidiary; provided, however, that the U.S. Borrower shall
be permitted to establish, create or acquire (i) direct or indirect Domestic
Subsidiaries which are Subsidiaries or any other Subsidiary in connection with
any Investment permitted by Section 8.4 so long as (x) at least 10 days' prior
written notice thereof is given to the Administrative Agent and (y) at such time
Section 7.13 is complied with in all respects, and (ii) any Receivables Co.
8.22. Limitation on Other Restrictions on Amendment of Documents.
The Borrowers shall not, and shall not cause or permit any Subsidiary to,
directly or indirectly, enter into, suffer to exist or become or remain subject
to any agreement or instrument to which any of them is a party or to which any
of them or any property of any of them (now owned or hereafter acquired) may be
subject or bound (except for the Credit Documents and the Transaction Documents)
that would expressly prohibit or restrict (including by way of any covenant,
representation or warranty or event of default), or require the consent of any
Person to any amendment to, or waiver or consent to departure from the terms of,
any Credit Document or Transaction Document (which, in the case of the
Transaction Documents, would be materially adverse to the Lenders).
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8.23. Limitation on Payments or Prepayments of Indebtedness or
Modification of Debt Documents. The Borrowers shall not, and shall not cause or
permit any Subsidiary to, directly or indirectly:
(a) make any payment or prepayment (optional or otherwise) on, or
redemption of, or any payments in redemption, defeasance or repurchase (whether
in Cash, securities or other property) of any Indebtedness (other than the
Obligations or Intercompany Loans) in excess of the Dollar Equivalent of
$10,000,000, except (i) regularly scheduled mandatory payments of interest and
regularly scheduled payments of principal on Indebtedness permitted by Section
8.5, (ii) the conversion or exchange of any Indebtedness into Equity Interests
of U.S. Borrower (other than in Disqualified Stock), (iii) refinancing of
Indebtedness permitted by subsection 8.5(d), and (iv) the Refinancing; or
(b) amend, supplement, waive or otherwise modify any of the
provisions of any agreement or instrument governing any Indebtedness of any
Company which is subject to the restriction of subsection 8.23(a):
(i) which shortens the fixed maturity, or increases the interest
rate or shortens the time of payment of interest or dividends on, or
increases the amount or shortens the time of payment of any principal, or
premium payable whether at maturity, at a date fixed for prepayment or by
acceleration or otherwise of such Indebtedness, or increases the amount
of, or accelerates the time of payment of, any fees payable in connection
therewith;
(ii) which relates to the affirmative or negative covenants, events
of default, redemption or repurchase provisions, or remedies under the
documents or instruments evidencing such Indebtedness and the effect of
which is to subject any Company to any materially more onerous or more
restrictive provisions; or
(iii) if such Indebtedness is subordinated Indebtedness, which
effects any changes to the subordination provisions (or related
definitions) therein or otherwise materially adversely affects the
interests of the Lenders as senior creditors or the interests of the
Lenders under this Agreement or any other Credit Document in any respect.
8.24. Consolidated Returns. U.S. Borrower shall not, and shall not
permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person other than the U.S. Borrower or a
Subsidiary wholly owned directly or indirectly by the U.S. Borrower.
ARTICLE IX
EVENTS OF DEFAULT
9.1. Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. Any Loan Party shall fail to pay, (i) when and as
required to be paid herein (whether at stated maturity, upon prepayment or
repayment or acceleration or otherwise), any principal of any Loan or of any L/C
Obligation or (ii) within five Business Days after the same becomes due, any
interest, fee or any other amount payable under any Credit Document.
(b) Representation or Warranty. Any representation or warranty by
any Loan Party made or deemed made in any Credit Document, or which is contained
in any certificate, document or financial or other statement by any Loan Party
or any Responsible Officer furnished at any time under
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any Credit Document, shall be incorrect in any material respect on or as of the
date made or deemed made.
(c) Specific Defaults. Any Loan Party shall fail to perform or
observe any term, covenant or agreement contained in subsection 7.3(a),
subsection 7.4(a), Section 7.20 or in Article VIII (other than Section 8.16,
Section 8.17 and Section 8.22).
(d) Other Defaults. Any Loan Party shall fail to perform or
observe any term, covenant or agreement (other than those referred to in
subsections 9.1(a), (b) or (c) above) contained in any Credit Document, and such
failure shall continue unremedied for a period of at least 30 days after the
date upon which written notice thereof is given to the Borrowers by any Agent or
any Lender.
(e) Cross-Default. (i) Any Loan Party, any Obligor under any
Intercompany Note or any Significant Subsidiary (collectively, the "Specified
Companies" and each a "Specified Company") shall fail to make any payment in
respect of any one or more issues of Indebtedness (other than the Obligations)
or Contingent Obligation having an aggregate principal of more than the Dollar
Equivalent amount of U.S. $20,000,000 beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness or
Contingent Obligation was created or by which it is governed or (ii) any
Specified Company shall fail to perform or observe any other term, condition or
covenant, or any other event shall occur or condition exist, under any agreement
or instrument relating to any Indebtedness or Contingent Obligation, if the
effect of such failure, event or condition is to cause or to permit the holder
or holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness or Contingent Obligation (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause (with or without
notice or passage of time or both), such Indebtedness declared to be due and
payable prior to its stated maturity or to require any Company to redeem or
purchase, or offer to redeem or purchase, all or any portion of such
Indebtedness, or any such Indebtedness shall be required to be prepaid (other
than by a regularly scheduled required prepayment or redemption) prior to the
stated maturity thereof or such Contingent Obligation to become payable or cash
collateral in respect thereof to be demanded; provided, however, that the
aggregate amount of all such Indebtedness or Contingent Obligations for all
Specified Companies so affected and cash collateral so required shall be in a
Dollar Equivalent amount of U.S. $20,000,000 or more.
(f) Insolvency; Voluntary Proceedings. Any Specified Company (i)
shall cease or fail to be Solvent, or generally fails to pay, or admits in
writing its inability to pay, its debts as they become due; (ii) commences or
consents to any Insolvency Proceeding with respect to itself; or (iii) takes any
action to effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding shall be commenced or filed against any Specified Company, or any
writ, judgment, warrant of attachment, execution or similar process is issued or
levied against a Company, and such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded, within 60 days after
commencement, filing or levy; (ii) any Specified Company shall admit the
material allegations of a petition against it in any Insolvency Proceeding, or
an order for relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) any Specified Company shall acquiesce in the
appointment of a receiver, receiver and manager, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar person for itself or a substantial portion of its property or business.
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or a Multiemployer Plan which has resulted or would be reasonably
likely to result in liability of any Company under Title IV of ERISA to such
Pension Plan or Multiemployer Plan or to the PBGC in an
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aggregate Dollar Equivalent amount in excess of U.S. $20,000,000; (ii) the
aggregate Dollar Equivalent amount of Unfunded Pension Liability among all
Pension Plans at any time exceeds U.S. $20,000,000 and as a result thereof a
lien shall be imposed, a security interest shall be granted or a material
liability is incurred, which lien, security interest or liability, in the
reasonable judgment of the Required Lenders, would be reasonably likely to
result in a Material Adverse Effect; or (iii) noncompliance with respect to
Foreign Plans shall occur that, in the opinion of the Required Lenders, when
taken together with all other noncompliance with respect to Foreign Plans that
have occurred, would reasonably be expected to result in liability of any
Company in an aggregate amount exceeding U.S. $20,000,000.
(i) Monetary Judgments. One or more judgments, orders, decrees or
arbitration awards shall be entered against any Company involving in the
aggregate a liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage) as to any single or
related series of transactions, incidents or conditions, of a Dollar Equivalent
amount for all Companies of U.S. $20,000,000 or more, and the same shall remain
unvacated and unstayed pending appeal for a period of 30 days after the entry
thereof.
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree shall be entered against any Company which does or would reasonably be
expected to have a Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect.
(k) Guarantees. Any Guarantee shall cease to be in full force and
effect or any of the Guarantors repudiates, or attempts to repudiate, any of its
obligations under any of the Guarantees.
(l) Security Documents. Any Security Document shall cease to be in
full force and effect, or shall cease to give the Administrative Agent the
Liens, rights, powers and privileges purported to be created thereby, in favor
of the Administrative Agent, superior to and prior to the rights of all third
Persons and subject to no Liens other than Permitted Liens and Liens expressly
permitted by the applicable Security Document, or any Company shall fail to
comply with or to perform any material obligation or agreement under any
Security Document within ten days after being requested by the Administrative
Agent or any Lender.
(m) Change of Control. Any Change of Control shall occur.
(n) Environmental Events. There shall have been asserted against
any Company, claims, whether accrued, absolute or contingent, based on or
arising from the generation, storage, transport, handling or disposal of
Hazardous Materials by any Company or any Affiliate, or any predecessor in
interest of any Company or any Affiliate, which claims would, individually or in
the aggregate, reasonably be expected to be determined adversely to any Company
and the amount of any such claim (insofar as it is payable by any Company but
after deducting any portion thereof which is reasonably expected to be paid,
discharged or forgiven by other creditworthy Persons jointly and severally
liable therefor) would, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(o) Permitted Receivables Transaction Issues. Any event or
circumstance shall occur which permits or requires the Persons purchasing, or
financing the purchase of, Accounts under a Permitted Receivables Transaction to
stop so purchasing or financing such Accounts, other than by reason of the
occurrence of the stated expiration date of such Permitted Receivables
Transaction or the voluntary termination thereof by any Company; provided that
any notices or cure periods that are conditions to the rights of such Persons to
stop purchasing, or financing the purchase of, such Accounts have been given or
have expired, as the case may be.
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(p) Dutch Self-Owned Shares (i) Any event or circumstance shall
occur which could result in a Lien (other than in favor of the Administrative
Agent for the benefit of the Creditors) upon the Self-Owned Dutch Stock, or (ii)
if on the 120th day after the Effective Date, (A) the Self-Owned Dutch Stock has
not been cancelled or (B) the Administrative Agent (for the benefit of the
Creditors) is not the sole pledgee of 100% of the issued and outstanding stock
of RPIVL pursuant to a Security Document in form and substance substantially the
same as the Security Documents governed by Dutch law delivered to the
Administrative Agent on the Effective Date.
9.2. Remedies. If any Event of Default occurs and is continuing,
the Administrative Agent shall, at the request, or may, with the consent, of the
Required Lenders:
(a) declare the commitment of each Lender to make Loans and the
obligation of each L/C Lender to Issue Letters of Credit to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare that the Borrowers shall immediately Cash
Collateralize all outstanding undrawn amounts of Letters of Credit (whether or
not any beneficiary shall have presented, or shall be entitled at such time to
present, the drafts or other documents required to draw under such Letters of
Credit). The Administrative Agent may, from time to time after funds are
deposited in any Collateral Account, apply funds then held in such Collateral
Account to the payment of any amounts, in accordance with Section 2.15), as
shall have become or shall become due and payable by the Borrowers to each L/C
Lenders or Lenders in respect of the L/C Obligations. The Administrative Agent
shall promptly give written notice of any such application; provided, however,
that the failure to give such written notice shall not invalidate any such
application.
(c) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Credit Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrowers;
(d) direct the Borrowers to pay (and the Borrowers agree that
upon receipt of such notice, or upon the occurrence of an Event of Default
specified in subsection 9.1(f) or (g) with respect to any Borrowers, such
Borrowers shall pay) to the Administrative Agent at the Agent's Payment Office
such additional amount of cash, to be held as security by the Administrative
Agent, as is equal to the aggregate undrawn face amount of all Letters of Credit
issued for the account of any Borrower and then outstanding; and
(e) exercise on behalf of the Administrative Agent and the
Lenders all rights and remedies available to the Administrative Agent and the
Lenders under the Credit Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
9.1(f) or (g), the obligation of each Lender to make Loans and any obligation of
any L/C Lender to Issue Letters of Credit shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable without further
act of the Administrative Agent, any L/C Lender or any other Lender.
9.3. Rights Not Exclusive. The rights provided for in this
Agreement and the other Credit Documents are cumulative and are not exclusive of
any other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or hereafter
arising.
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9.4. No Waiver; Remedies
No failure on the part of any Lender, L/C Lender or the
Administrative Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right.
9.5. Balancing of Accounts; Enforcement in Spain
(a) In the event of total or partial termination of the
Agreement pursuant to this Article 9 or otherwise, and for the purposes of
judicial or extra judicial enforcement pursuant to Articles 571 and 572 of the
Spanish Law 1/2000, of January 7, 2000 on the Civil Procedure Law (Ley ▇/▇▇▇▇,
▇▇ ▇ ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Civil, the "Civil Procedure Law") it is
expressly agreed that the balance of the accounts referred to in Section 2.2.(b)
calculated and certified by the Administrative Agent will be the clear, due and
demandable sum to the Borrowers. The Borrowers shall be notified of the
demandable sum arising from the aforementioned balancing of accounts in
accordance with Article 572.2 of the Civil Procedure Law.
(b) The enforcing document shall be a copy of this Agreement,
issued with the formalities established in Article 517.2 of the Civil Procedure
Law, which must be accompanied by the following documents:
(i) The certificate referred to in the first paragraph of
this subclause 9.5, which details the balance of the account or accounts
mentioned in Section 2.2.(b), arising from the balancing of accounts
performed by the Administrative Agent and prepared in accordance with
Article 572 of the Civil Procedurel Law of Spain. The Notary must place on
record that he/she is acting at the request of the Administrative Agent and
that the balancing of the Borrowers' account has been carried out in the
manner agreed by the Parties herein.
(ii) A statement detailing the debit and credit entries and
those relating to the application of interest which give rise to the
specific balance in respect of which enforcement is requested.
(iii) The document which proves that the Borrowers have been
notified of the amount due, in accordance with the terms of the first
paragraph of this Section 9.5.
9.6. Order of Payment following an Event of Default.
(a) Each Borrower hereby irrevocably waives the right to direct
the application of any and all payments in respect of the Obligations and any
proceeds of Collateral after the occurrence and during the continuance of an
Event of Default and agrees that, notwithstanding any other provision herein,
the Administrative Agent may, and, upon either (x) the written direction of the
Required Lenders or (y) the acceleration of the Obligations pursuant to Section
9.2, shall, apply all payments in respect of any Obligations and all funds on
deposit in any Collateral Account (including all proceeds arising from a Taking,
Destruction (or a like event) that are held in the Collateral Account pending
application of such proceeds as required hereunder) and all other proceeds of
Collateral in the following order:
(i) First, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Administrative
Agent;
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(ii) Second, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Lenders and the L/C
Lenders;
(iii) Third, to pay Obligations in respect of any fees then
due to the Administrative Agent, the Lenders and the L/C Lenders;
(iv) Fourth, to pay interest then due and payable in
respect of the Loans and L/C Borrowings;
(v) Fifth, to pay or prepay principal amounts on the
Loans and L/C Borrowings and to Cash Collateralize outstanding
Letters of Credit in the manner described in Section 9.2, ratably
to the aggregate principal amount of such Loans, L/C Borrowings
and L/C Obligations;
(vi) Sixth, to the ratable payment of all other
Obligations;
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any Obligation described in any clause above,
the available funds being applied with respect to any such Obligation (unless
otherwise specified in such clause) shall be allocated to the payment of such
Obligations ratably, based on the proportion of the Administrative Agent's and
each Lender's or L/C Lender's interest in the aggregate outstanding Obligations
described in such clause. The order of priority set forth in the clauses above
may at any time and from time to time be changed by the agreement of the Lenders
as required pursuant to Section 11.1 without necessity of notice to or consent
of or approval by the Borrower, any Creditor that is not a Lender or by any
other Person that is not a Lender. The order of priority set forth in clauses
first, second and third above may be changed only with the prior written consent
of the Administrative Agent in addition to that of the Lenders as required
pursuant to Section 11.1.
(b) The parties hereto acknowledge and agree that proceeds of
(i) Collateral pledged to the Administrative Agent by
Foreign Loan Parties and
(ii) Collateral consisting of the stock of a Foreign
Subsidiary (in excess of 65% of the total combined voting power
of all classes of Equity Interests of such Foreign Subsidiary
entitled to vote) pledged to the Administrative Agent by a
Domestic Loan Party shall not be applied by the Administrative
Agent pursuant to this Section 9.6 to repay Domestic Obligations
if the application of such proceeds could reasonably be expected
to cause the undistributed earnings of the applicable Foreign
Subsidiary (as determined for U.S. Federal income tax purposes)
to be treated as a deemed dividend to such Foreign Subsidiary's
United States parent for U.S. Federal income tax purposes.
ARTICLE X
THE AGENTS
10.1. Appointment and Authorization. (a) Each Lender hereby
irrevocably (subject to Section 10.9) appoints, designates and authorizes each
Agent to take such action on its behalf under the provisions of this Agreement
and each other Credit Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement or any
other Credit Document, together with such powers as are reasonably incidental
thereto. The Administrative Agent is expressly authorized to (A) execute and
deliver, and approve the form and substance of, all Security Documents on the
Effective Date or any other time and (B) execute and deliver on behalf of the
Lenders and the Agents all documents necessary to release Collateral from the
Lien of the Credit Documents as and when permitted by the terms of any Credit
Document. Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Credit Document, no Agent shall have any duties
or responsibilities except those expressly set forth herein, nor shall any Agent
have or be deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Credit Document or
otherwise exist against any Agent or any of its affiliates. The provisions of
this Article X are solely for the benefit of the Agents and the Lenders, and no
Loan Party shall have any rights as a third party beneficiary of any
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of the provisions hereof. In performing its functions and duties under this
Agreement, except to the limited extent provided in Section 7.18, each Agent
shall act solely as an agent of the Lenders as provided for herein and no Agent
assumes or shall be deemed to have assumed any obligation or relationship of
agency or trust with or for any Loan Party. No Agent shall have any
responsibilities under any Credit Document, except as expressly set forth
therein.
(b) Each L/C Lender shall act on behalf of the Revolving Lenders
with respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for each L/C Lender with
respect thereto; provided, however, that each L/C Lender shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this Article
X with respect to any acts taken or omissions suffered by each L/C Lender in
connection with Letters of Credit Issued by it or proposed to be Issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent," as used in
this Article X, included each L/C Lender with respect to such acts or omissions
and (ii) as additionally provided in this Agreement with respect to each L/C
Lender.
(c) The Swing Line Lenders shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article X with
respect to any acts taken or omissions suffered by the Swing Line Lenders in
connection with Swing Line Loans made or proposed to be made by it as fully as
if the term "Administrative Agent," as used in this Article X, included each of
the Swing Line Lenders with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Swing Line Lenders.
(d) Each Lender, L/C Lender, the Syndication Agent, each
Documentation Agent, each Joint Lead Arranger and each Joint Book Manager
hereby:
(i) constitutes and appoints Citicorp North America, Inc.
(and the individuals through which it may be represented) or any other
Person appointed Administrative Agent pursuant to Section 10.9 (Successor
Agents) (and the individuals through which it may be represented), its true
and lawful attorney-in-fact to:
(A) execute, accept, register at the relevant
registries and deliver any Credit Document, including one or more
Collateral Documents, as such attorney-in-fact may deem necessary
or desirable, any amendments thereto, and all post-effective
amendments, extensions, supplements and cancellations to such
Credit Documents, in such form(s) as such attorney-in-fact may
approve, and to file the same and all other documents in related
thereto with the applicable Government Authorities or such other
Person as required by any Requirement of Law and to hold on
behalf of each present and future Creditor security granted by a
Loan Party; provided, however, that in no event shall this clause
(d) be deemed to authorize or permit Citicorp North America, Inc.
or any other Person to execute this Credit Agreement or any
amendment hereto or waiver hereof as attorney-in-fact of any
Lender or L/C Lender, and
(B) appear before a notary public for the purposes of
raising to the status of public document ("elevar a publico") any
Credit Document, as well as in order to execute the notarial
deeds ("escrituras publicas o polizas") which are necessary in
order for any Loan Party to grant any other guaranty or security
interests in order to secure their obligations under any Credit
Document.
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(ii) grants to such attorney-in-fact full power and
authority to do and perform each and every act necessary to be done to
ensure that such Collateral Documents comply with Requirements of Law.
10.2. Delegation of Duties. Each Agent may execute any of its
duties under this Agreement or any other Credit Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. No Agent shall be responsible
for the negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
10.3. Exculpatory Provisions. No Agent or any of its Affiliates
shall (i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Credit Document or under
any other document or instrument referred to or provided for herein or therein
or the transactions contemplated hereby or thereby (except for its own gross
negligence or willful misconduct), (ii) be responsible in any manner to any of
the Lenders for any recital, statement, representation or warranty made by any
Loan Party or any Subsidiary or Affiliate of any Loan Party, or any officer
thereof, contained in this Agreement or in any other Credit Document, under or
in connection with, this Agreement or any other Credit Document, or the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Credit Document or any other document referred to or
provided for herein or therein, or for any failure of any Loan Party or any
other party to any Credit Document to perform its obligations hereunder or
thereunder, (iii) except to the extent that, with respect to any Agent, it is
expressly instructed by the Lenders with respect to collateral security under
the Security Documents, be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Credit Document or (iv) with
respect to any Agent, be under any obligation to take any action hereunder or
under any other Credit Document if such Agent believes in good faith that taking
such action may conflict with any law or any provision of any Credit Document,
or may require such Agent to qualify to do business in any jurisdiction where it
is not then so qualified. No Agent or any of its Affiliates shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document, or to inspect the properties, books or
records of any Loan Party or any Subsidiary or Affiliate of any Loan Party.
10.4. Reliance by Agents. (a) Each Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation 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 to any Loan Party or any Subsidiary), independent accountants
and other experts selected by any Agent. Each Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document, unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Credit
Document, in accordance with a request or consent of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with each
document or other matter either sent by any Agent to such Lender for
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consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender.
10.5. Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Event of Default or Unmatured Event
of Default, unless such Agent shall have received written notice from a Lender
or a Borrower referring to this Agreement, describing such Event of Default or
Unmatured Event of Default and stating that such notice is a "notice of
default." If a Agent receives such a notice, such Agent will notify the Lenders
of its receipt thereof. Each Agent shall take such action with respect to such
Event of Default or Unmatured Event of Default as may be requested by the
Required Lenders in accordance with Article IX; provided, however, that, unless
and until a Agent has received any such request, such Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Event of Default or Unmatured Event of Default as it shall deem
advisable or in the best interest of the Lenders except to the extent that this
Agreement expressly requires otherwise.
10.6. Credit Decision. Each Lender acknowledges that no Agent or
any of its Affiliates has made any representation or warranty to it, and that no
act by any Agent hereafter taken, including any review of the affairs of any
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent or any Lender. No Agent shall be required to keep itself informed as to
the performance or observance by any Lender of this Agreement or any of the
other Credit Documents or any other document referred to or provided for herein
or therein or to inspect the properties or books of any Loan Party. Each Lender
represents to each Agent that it has, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit hereunder. Each Lender also
represents that it will, independently and without reliance upon any Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement or any other
Credit Document, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Loan Parties. Except for notices, reports
and other documents and information expressly herein required to be furnished to
the Lenders by any Agent, no Agent shall have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Loan Parties which may come into the possession of any
Agent or any of its Affiliates.
10.7. Indemnification. Whether or not the transactions
contemplated hereby are consummated, each Lender shall indemnify upon demand
each Agent and each of its Affiliates (to the extent not reimbursed by or on
behalf of the Loan Parties in accordance with the terms hereof and without
limiting the obligation of the Borrowers to do so), pro rata (determined on the
same basis used in determining Pro Rata Share), from and against any and all
Losses which may at any time be imposed on, incurred by or asserted against any
Agent in its capacity as such (including by any Lender) arising out of or by
reason of any investigation in any way relating to or arising out of this
Agreement or any other Credit Document, or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or the enforcement of any of the terms hereof or thereof or of any such other
documents; provided, however, that no Lender shall be liable for the payment to
any Agent or any of its Affiliates of any portion of the Losses resulting from
such Person's gross negligence, bad faith or willful misconduct. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share (determined on the same basis used in
determining Required Lenders) of any costs or out-of-pocket expenses (including
all reasonable fees, disbursements and charges
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of counsel) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Credit Document, or any document contemplated by or referred to herein
or therein, to the extent that any Agent is not reimbursed for such expenses by
or on behalf of the Loan Parties. The agreements set forth in this Section 10.7
shall survive the payment of all Loans and other obligations hereunder and the
resignation or replacement of any Agent and shall be in addition to and not in
lieu of any other indemnification agreements contained in any other Credit
Document.
10.8. Agents in Individual Capacity. Each Agent and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire Equity Interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the Loan
Parties and Affiliates of the Loan Parties as though such Agent were not a Agent
hereunder, without notice to or consent of the Lenders. The Lenders acknowledge
that, pursuant to such activities, a Agent and its Affiliates may receive
information regarding the Loan Parties or their Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Borrowers or such Affiliates) and acknowledge that no Agent or any of its
Affiliates shall be under any obligation to provide such information to them.
With respect to its Loans, a Agent (and any of its Affiliates which may become a
Lender) shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not a Agent or an L/C Lender.
The terms "Lender" and "Lenders" shall, unless the context otherwise indicates,
include a Agent in its individual capacity.
10.9. Successor Agents. Any Agent may, and at the request of the
Required Lenders shall, resign as an Agent upon 30 days' notice to the Lenders
and the Borrowers. If an Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor Agent, as applicable,
which successor agent shall, so long as no Event of Default exists, be subject
to the approval of the Borrowers (which approval shall not be unreasonably
withheld or delayed). If no successor agent is appointed prior to the effective
date of the designation of an Agent, such Agent may appoint, after consulting
with the Lenders and the Borrowers, a successor agent, from among the Lenders.
Upon the acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties of the
retiring Agent, and the term "Administrative Agent", "Syndication Agent" and
"Joint Lead Arranger" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as such Agent shall be terminated. After the
retiring Agent's resignation hereunder as such Agent, the provisions of this
Article X and Section 11.4 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was such Agent under this Agreement. If no
successor agent has accepted appointment as the applicable Agent by the date
which is 30 days following the retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective and
the Lenders shall perform all of the duties of such Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above. Each successor Agent shall comply with subsection 4.1(e).
10.10. Concerning the Collateral and the Security Documents;
Collateral Matters Relating to Related Obligations
(a) Each Lender and each L/C Lender agrees that any action
taken by the Administrative Agent or the Required Lenders (or, where required by
the express terms of this Agreement, a greater proportion of the Lenders) in
accordance with the provisions of this Agreement or of the other Credit
Documents, and the exercise by the Administrative Agent or the Required Lenders
(or, where so required, such greater proportion) of the powers set forth herein
or therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all of the Lenders, L/C Lenders
and other Creditors. Without limiting the generality of the foregoing, the
Administrative
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Agent shall have the sole and exclusive right and authority to (i) act as the
disbursing and collecting agent for the Lenders and the L/C Lenders with respect
to all payments and collections arising in connection herewith and with the
Security Documents, (ii) execute and deliver each Security Document and accept
delivery of each such agreement delivered by any Borrowers or any of their
respective Subsidiaries, (iii) act as collateral agent for the Lenders, the L/C
Lenders and the other Creditors for purposes of the perfection of all security
interests and Liens created by such agreements and all other purposes stated
therein, provided, however, that the Administrative Agent hereby appoints,
authorizes and directs each Lender and L/C Lender to act as collateral sub-agent
for the Administrative Agent, the Lenders and the L/C Lenders for purposes of
the perfection of all security interests and Liens with respect to each
Borrower's and their respective Subsidiaries' respective deposit accounts
maintained with, and cash and Cash Equivalents held by, such Lender or such L/C
Lender, (iv) manage, supervise and otherwise deal with the Collateral, (v) take
such action as is necessary or desirable to maintain the perfection and priority
of the security interests and Liens created or purported to be created by the
Security Documents and (vi) except as may be otherwise specifically restricted
by the terms hereof or of any other Credit Document, exercise all remedies given
to the Administrative Agent, the Lenders, the L/C Lenders and the other
Creditors with respect to the Collateral under the Credit Documents relating
thereto, applicable law or otherwise.
(b) The benefit of the Credit Documents and of the provisions
of this Agreement relating to the Collateral shall extend to and be available in
respect of any Obligation arising under any Swap Contract or Cash Management
Obligation or that is otherwise owed to Persons other than the Administrative
Agent, the Lenders and the L/C Lenders (collectively, "Related Obligations")
solely on the condition and understanding, as among the Administrative Agent and
all Creditors, that (a) the Related Obligations shall be entitled to the benefit
of the Credit Documents and the Collateral to the extent expressly set forth in
this Agreement and the other Credit Documents and to such extent the
Administrative Agent shall hold, and have the right and power to act with
respect to, the Guarantees and the Collateral on behalf of and as agent for the
holders of the Related Obligations, but the Administrative Agent is otherwise
acting solely as agent for the Lenders and the L/C Lenders and shall have no
fiduciary duty, duty of loyalty, duty of care, duty of disclosure or other
obligation whatsoever to any holder of Related Obligations, (b) all matters,
acts and omissions relating in any manner to the Guaranty, the Collateral, or
the omission, creation, perfection, priority, abandonment or release of any
Lien, shall be governed solely by the provisions of this Agreement and the other
Credit Documents and no separate Lien, right, power or remedy shall arise or
exist in favor of any Creditor under any separate instrument or agreement or in
respect of any Related Obligation, (c) each Creditor shall be bound by all
actions taken or omitted, in accordance with the provisions of this Agreement
and the other Credit Documents, by the Administrative Agent and the Required
Lenders, each of whom shall be entitled to act at its sole discretion and
exclusively in its own interest given its own Revolving Commitments and its own
interest in the Loans, L/C Obligations and other Obligations to it arising under
this Agreement or the other Credit Documents, without any duty or liability to
any other Creditor or as to any Related Obligation and without regard to whether
any Related Obligation remains outstanding or is deprived of the benefit of the
Collateral or becomes unsecured or is otherwise affected or put in jeopardy
thereby, (d) no holder of Related Obligations and no other Creditor (except the
Administrative Agent, the Lenders and the L/C Lenders, to the extent set forth
in this Agreement) shall have any right to be notified of, or to direct, require
or be heard with respect to, any action taken or omitted in respect of the
Collateral or under this Agreement or the Credit Documents and (e) no holder of
any Related Obligation shall exercise any right of setoff, banker's lien or
similar right except as expressly provided in Section 11.10.
10.11. Failure To Act. Except for action expressly required of a
Agent hereunder and under the other Credit Documents, each Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction from the Lenders
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of their indemnification obligations under Section 10.7 against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
10.12. Special Provisions in relation to Dutch Collateral.
(a) Foreign Holdco and each other Loan Party that is or
becomes a party to a Security Document governed by Dutch law (together with
Foreign Holdco, each, a "Dutch Law Loan Party") undertakes (such undertaking to
become effective at the time of effectiveness of the related Security Document)
to pay to the Administrative Agent as a separate and independent obligation an
amount which from time to time will be equal to the total amount owed by such
Loan Party to any Creditor (excluding any amount owed to the Administrative
Agent under this Section 10.12) under the Credit Documents (the "Parallel
Debt").
(b) For the avoidance of doubt it is confirmed that clause (a)
above means:
(i) that any separate and independent payment obligation
of a Dutch Law Loan Party under clause (a) above shall be due and
payable to the Administrative Agent under this Section 10.12 as soon
as, and to the extent that, the amount owed by such Dutch Law Loan
Party to any Creditor (excluding any amount owed to the Administrative
Agent under this Section10.12) is due and payable under the Credit
Documents,
(ii) accordingly (without prejudice to the foregoing),
that upon any Loans or other amounts (the "Accelerated Amounts") being
declared due and payable or payable on demand (as the case may be) by a
Dutch Law Loan Party pursuant to Section 9.2, a portion of the Parallel
Debt in the same amount as the Accelerated Amounts shall be due and
payable or payable on demand (as the case may be) on the same terms as
are applicable to the Accelerated Amounts; and
(iii) that the undertaking of each Dutch Law Loan Party
under this Section 10.12 shall not increase the principal, interest, or
fees owing by such Dutch Law Loan Party under the Credit Documents.
(c) Each of the parties acknowledges that the Parallel Debt
represents the Administrative Agent's own claim (vordering) to receive payment
of such Parallel Debt by each Dutch Law Loan Party and that the total amount
which may become due under the Parallel Debt pursuant to this Section 10.12
shall never exceed the total amount which become due by such Dutch Law Loan
Party to the Creditors (other than under this Section 10.12).
(d) Notwithstanding any of the other provisions of this
Section 10.12:
(i) the total amount due and payable by each Dutch Law
Loan Party as the Parallel Debt under this Section 10.12 shall be
decreased to the extent such Dutch Law Loan Party shall have paid any
amounts to any Creditor or any of them to reduce such Loan Party's
outstanding obligations to the Creditors or any Creditor otherwise
receives any amount in payment of such obligations (other than by
virtue of Section 10.12(f)); and
(ii) to the extent that any Dutch Law Loan Party shall
have paid any amounts to the Administrative Agent under the Parallel
Debt or the Administrative Agent shall have otherwise received monies
in payment of such Parallel Debt, the total amount due and payable by
such Dutch Law Loan Party to the Creditors shall de decreased by an
equivalent amount as if said
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amounts were received directly in payment of the amounts due to the
Creditors (other than amounts due under this Section 10.12).
(e) For the purpose of this Section 10.12, the Administrative
Agent acts in its own name and on behalf of itself but for the benefit of the
Creditors and any security right granted to the Administrative Agent to secure
the Parallel Debt is granted to the Administrative Agent in its capacity as sole
creditor of the Parallel Debt.
(f) All payments received by the Administrative Agent shall be
applied towards payment of the Parallel Debt, where upon the Administrative
Agent shall distribute all amounts to the Creditors in accordance with Section
2.15.
(g) To the extent that any amounts are paid to the
Administrative Agent in payment of the Parallel Debt, the Administrative Agent
shall, in accordance with the provisions of the Credit Documents, return to such
Dutch Law Loan Party such amounts, if any, received in excess of the amount due
to the Creditors.
ARTICLE XI
MISCELLANEOUS
11.1. Amendments and Waivers. (a) Other than as provided in
clause (b) below, no amendment or waiver of any provision of any Credit
Document, and no consent with respect to any other departure by any Loan Party
therefrom, shall be effective unless the same shall be in writing and signed by
the Required Lenders (or by the Administrative Agent at the written request of
the Required Lenders) and the Loan Parties and acknowledged by the
Administrative Agent, and then any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that
(i) no such waiver, amendment or consent shall, unless in
writing and signed by each of the Lenders (with Obligations directly
affected thereby in the case of the following clauses (A), (B) or (C))
(or by the Administrative Agent at the written request of such
Lenders) and the Loan Parties and acknowledged by the Administrative
Agent, do any of the following:
(A) extend the term of any of the Commitments (it being
understood that a waiver of any condition, covenant
violation, Event of Default or Unmatured Event of Default
shall not constitute a change in the term of any
Commitment of any Lender) or extend the time or waive any
requirement for the reduction or termination of any of the
Commitments (or reinstate any Commitment terminated
pursuant to Section 9.2) or change the currency in which
any Obligation is payable, except as expressly permitted
herein;
(B) extend the final scheduled maturity of any Loan or
Note, or extend the expiration date of any Letter of
Credit beyond the Revolving Loan Maturity Date or postpone
or delay any date fixed for any payment of interest, fees
or other amounts (other than any mandatory prepayment of
the Loans required by subsections 2.9(a) - (f) or any
Amortization Payment except the final Amortization Payment
of any Term Loan Facility) due to the Lenders (or any of
them) under any Credit Document;
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(C) reduce the principal of, or the rate of interest
specified herein (other than as a result of waiving the
applicability of any post-default increase in interest
rates) on, any Loan or (subject to clause (v)(5) below)
any fees or other amounts payable under any Credit
Document;
(D) reduce the percentage set forth in the definition
of the term "Required Lenders" (it being understood that
additional extensions of credit pursuant to this Agreement
consented to by the Required Lenders may be included in
the determination of any such definition without notice or
consent of any other Lender or Agent on substantially the
same basis as the Commitments (and related extensions of
credit) are included on the Effective Date) or make any
change to Clauses Third, Fourth Fifth and Sixth of Section
9.6;
(E) amend this Section 11.1, Article IV, or Section
11.4 or any provision herein or under any Credit Document
providing for consent or other action by all Lenders
(except for technical amendments with respect to
additional extensions of credit pursuant to this Agreement
which afford the protections to such additional extensions
of credit of the type provided to each Facility);
(F) release all or substantially all of the Collateral
(except as expressly permitted by the Credit Documents);
(G) release any Guarantor from its obligations under
its Guarantee or permit the Companies to allow any Foreign
Loan Party to be released from the Foreign Security
Documents to which it is a party (except upon a permitted
sale of such Subsidiary or as required by applicable law
based on an opinion of counsel delivered to the
Administrative Agent by counsel of competent standing); or
(H) consent to the assignment or transfer by any Loan
Party of its rights and obligations under any Credit
Document or the making of any assignment of Loans or other
Obligations or participation therein to any Loan Party or
any Affiliate thereof;
(ii) no such waiver, amendment or consent shall increase the
Commitments of any Lender over the amount thereof then in effect
without the consent of such Lender (it being understood that
amendments, modifications or waivers of conditions precedent,
covenants, Events of Default or Unmatured Events of Default shall not
constitute an increase of the Commitment of any Lender);
(iii) no consent of any Lender need be obtained, and the
Administrative Agent is hereby authorized, to release any Lien
securing the Obligations on property or asset which is the subject of
any disposition permitted by this Agreement and the other Credit
Documents as permitted with respect to any such disposition, including
any release contemplated by Section 11.20;
(iv) no reduction of the percentage specified in the definition
of "Required Revolving Lenders" shall be made without the consent of
each Revolving Lender (it being understood that additional extensions
of credit pursuant to this Agreement consented to by the Required
Lenders may be included in such definition without notice to or
consent of any other Lender or Agent on substantially the same terms
as the Commitments (and related extensions of credit) are included on
the Effective Date); and
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(v) no reduction of the percentage specified in the definition of
"Required Term Lenders" or "Supermajority Term Lenders" shall be made
without the consent of each Lender having a Term Loan Commitment or Term
Loan (it being understood that additional extensions of credit pursuant to
this Agreement consented to by the Required Lenders may be included in such
definition without notice to or consent of any other Lender or Agent on
substantially the same terms as the Commitments (and related extensions of
credit) all included on the Effective Date); and
(vi) no such waiver, amendment or consent to the extent that it
waives or amends any provision herein that provides for (A) Lenders' to
fund Loans or purchase participations based on such Lender's Pro Rata Share
or (B) payments to, or receipts by, Lenders in respect of the Obligations
based on such Lender's Pro Rata Share, shall be made without the consent of
(x) in the case of waivers or amendments affecting solely the Revolving
Lenders, the Required Revolving Lenders, (y) in the case of waivers or
amendments affecting solely the Term Lenders, the Required Term Lenders,
and (z) in the case of waivers or amendments affecting all Lenders, the
Required Revolving Lenders and the Required Term Lenders.
provided, further, however, that:
(A) no amendment, waiver or consent shall, unless in writing
and signed by each L/C Lender in addition to the Required
Lenders, affect the rights or duties of each L/C Lender under
this Agreement or any L/C-Related Document,
(B) no amendment, waiver or consent shall, unless in writing
signed by all of the Qualified Offshore Lenders, in addition to
the Required Lenders, affect the rights or duties of the
Qualified Offshore Lenders under any Credit Document,
(C) no amendment, waiver or consent shall, unless in writing
signed by all of the Swing Line Lenders in addition to the
Required Lenders, affect the rights or duties of the Swing Line
Lenders under any Credit Document,
(D) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the
Required Lenders or all Lenders, as the case may be, affect the
rights or duties of the Administrative Agent under any Credit
Document,
(E) no amendment, waiver or consent (including any of the
foregoing with respect to any representation, warranty,
covenant, default or other matter which is otherwise effective
for purposes of this Agreement) shall, unless in writing and
signed by the Required Revolving Lenders, be effective for
determining whether the conditions precedent to any Credit
Extension under the Revolving Facility have been satisfied,
(F) the Fee Letter may be amended, or rights or privileges
thereunder waived, solely in accordance with its terms,
(G) no amendment, waiver or consent shall, unless in writing
signed by the Required Term Lenders (with respect to subclause
(x) of this subsection 11.1(a)(v)(G)), or the Supermajority Term
Lenders (with respect to subclause (y) of this subsection
11.1(a)(v)(G)), (x) provide for the application of mandatory
prepayments required by subsections 2,9(a)-(e) first to
Revolving Loans and BA
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Rate Loans or make any change to the penultimate sentence of
subsection 2.9(f) or the last sentence of subsection 2.9(g)
(although any required prepayment under Section 2.9 may be
waived or amended, in whole or in part, by the Required Lenders
so long as the application of any such prepayment which is still
made is not altered) or (y) extend the time for any scheduled
Amortization Payments or reduce the principal amount of any
scheduled Amortization Payment, and
(H) no amendment, waiver or consent, unless in writing signed
by the Lenders holding not less than 75% of the sum of the then
aggregate unused amounts of the Commitments plus the then
aggregate unpaid Dollar Equivalent principal amount of the Loans
plus (without duplication) the then aggregate Effective Amount
of the L/C Obligations shall make any change to Section 7.21 or
the definition of "Rating Date"; provided, further, still,
however, that no amendment, waiver or consent shall, unless in
writing signed by the Required Lenders, amend, waive or consent
to the departure from any required prepayment under Section 2.9.
In the case of any waiver effected in accordance with this Section 11.1, the
Loan Parties, the Lenders and the Agents shall be restored to their former
position and rights under each Credit Document, and any Event of Default or
Unmatured Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Event of
Default or Unmatured Event of Default, or impair any right consequent thereon.
Any amendment, waiver or consent effected in accordance with this Section 11.1
shall be binding upon each holder of the Notes at the time outstanding, each
future holder of the Notes and, if signed by the Borrowers, on the Borrowers and
the other Loan Parties.
(b) Any amendment or waiver of any provision of this Agreement that
relates solely to one or more mechanical provisions set forth in Article II or
III (and/or related definitions) concerning the Revolving Facility and/or the
Swing Line Loans shall be effective provided the same shall be in writing and
signed by the Required Revolving Lenders (or by the Administrative Agent at the
written request of the Required Revolving Lenders) and the Loan Parties and
acknowledged by the Administrative Agent, and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that any amendment or waiver pursuant to
this clause b shall not be effective to the extent such amendment or waiver (i)
purports to effect any amendment or waiver in respect of which the voting
standard is specifically provided for in clause a, (ii) purports to amend or
waive any provision of Section 2.9 or (ii) which purports to make any amendment
that would affect the Term Lenders.
(c) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i), (iv) or (v), inclusive, of the first proviso to subsection 11.1(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then U.S.
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clause (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders (or,
at the option of U.S. Borrower if the respective Lender's consent is required
with respect to less than all Facilities (or related Commitments), to replace
only the respective Facilities and/or Loans of the respective non-consenting
Lender which gave rise to the need to obtain such Lender's individual consent)
with one or more Replacement Lenders pursuant to Section 4.8 so long as at the
time of such replacement, each such Replacement Lender consents to the proposed
change, waiver, discharge or termination or (B) terminate such non-consenting
Lender's Commitments (if such Lender's consent is required as a result of its
respective Commitment) and/or repay each Facility of outstanding Loans of such
Lender which gave
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rise to the need to obtain such Lender's consent and/or cash collateralize its
applicable pro rata share of the Effective Amount of L/C Obligation, in
accordance with this Agreement; provided that, unless the Commitments which are
terminated and Loans which are repaid pursuant to preceding clause B are
immediately replaced in full at such time through the addition of new Lenders or
the increase of the Commitments and/or outstanding Loans of existing Lenders
(who in each case must specifically consent thereto), then in the case of any
action pursuant to preceding clause B the Required Lenders (determined after
giving effect to the proposed action) shall specifically consent thereto;
provided, further, that U.S. Borrower shall not have the right to replace a
Lender, terminate its Commitments or repay its Loans solely as a result of the
exercise of such Lender's rights (and the withholding of any required consent by
such Lender) pursuant to this proviso.
11.2. Notices. (a) Except as otherwise expressly provided herein, all
notices, requests and other communications hereunder and under the Security
Documents (including any modifications of, or waivers, requests or consents
under, this Agreement) shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission; provided, however, that
any matter transmitted by any Loan Party (x) to any Agent, any L/C Lender or any
Swing Line Lender by facsimile shall be immediately confirmed by a telephone
call to the recipient at the number specified on Schedule 11.2 and (y) to any
Lender by facsimile shall be immediately confirmed by a telephone call to the
recipient at the number specified on Schedule 11.2 or by overnight mail to the
recipient at the address specified on Schedule 11.2) and mailed, faxed or
delivered to the applicable party at the address or facsimile number specified
for notices on Schedule 11.2 (which such facsimile notices shall be confirmed by
overnight mail); or, as directed to any Loan Party or any Agent, any L/C Lender
or the Swing Line Lenders, to such other address as shall be designated by such
party in a written notice to the other parties, and as directed to any other
party, at such other address as shall be designated by such party in a written
notice to the Loan Parties and the Agents, the L/C Lenders and the Swing Line
Lenders.
(b) All such notices, requests and communications shall be
effective, (i) if transmitted by overnight delivery or faxed, when delivered or
transmitted in legible form by overnight delivery or facsimile machine,
respectively, (ii) if mailed, upon receipt or (iii) if delivered, upon delivery;
except that notices pursuant to Article II, III or X to a Agent shall not be
effective until actually received by such Agent, and notices pursuant to Article
III to any L/C Lender shall not be effective until actually received by such L/C
Lender.
(c) Any agreement of any Agent and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Loan Parties. The Agents and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by a
Loan Party to give such notice, and neither any Agent nor any Lender shall have
any liability to any Loan Party or any other Person on account of any action
taken or not taken by a Agent or any Lender in reliance upon such telephonic or
facsimile notice. The obligation of the Borrowers to repay the Loans and L/C
Obligations shall not be affected in any way or to any extent by any failure by
any Agent or any Lender to receive written confirmation of any telephonic or
facsimile notice or the receipt by any Agent or any Lender of a confirmation
which is at variance with the terms understood by such Agent or such Lender to
be contained in the telephonic or facsimile notice.
11.3. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under any other Credit Document, and no course
of dealing between any Loan Party and any Agent or Lenders shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege hereunder or under such other Credit Document. The rights and
remedies expressly provided herein are cumulative and not exclusive of any
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rights or remedies provided by law. No notice to or demand upon any Loan Party
in any case shall entitle any Loan Party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the Agents or the Lenders to any other or further action in any circumstance
without notice or demand.
11.4. Expenses; Indemnity; etc.
(a) Each Borrower agrees: (i) to jointly and severally pay or
reimburse the Agents for all of their reasonable out-of-pocket costs and
expenses (including the reasonable fees and expenses of Weil, Gotshal & ▇▇▇▇▇▇
LLP and of all local domestic and foreign counsel) in connection with (A) the
negotiation, preparation, execution and delivery of this Agreement and the other
Credit Documents and Security Documents and the extensions of credit hereunder,
the administration of the transactions contemplated hereby (including the
monitoring of the Collateral) and the Administrative Agent's syndication efforts
(including the Agents' due diligence investigation expenses) with respect to
this Agreement, the Transactions and the extensions of credit hereunder and (B)
the negotiation or preparation of any modification, supplement or waiver of any
of the terms of this Agreement or any of the other Credit Documents (whether or
not consummated or effective) (including, without limitation, in connection with
the Borrowers' complying with Section 7.22); (i) to jointly and severally pay or
reimburse each Lender and each Agent for its proportionate share of all
out-of-pocket costs and expenses of the Lenders and each Agent (including
Attorney Costs of each Agent and the Lenders) in connection with (A) protection
of the Lenders' rights following any Event of Default and any enforcement or
collection proceedings resulting therefrom, including all manner of
participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up, dissolution or liquidation proceedings,
(y) judicial or regulatory proceedings, and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout, restructuring or
transaction contemplated thereby is consummated), and (B) the enforcement of
this Section 11.4; and (iii) to jointly and severally pay or reimburse each
Lender and each Agent for its proportionate share of all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any of the
other Credit Documents or any other document referred to herein or therein and
all costs, expenses, taxes, assessments and other charges (including title
insurance and Attorney Costs) incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Credit Document or any other document referred to therein.
(b) Each Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Arrangers, each Lender and each L/C Lender and each of
their respective Affiliates, and each of the directors, officers, employees,
agents, representative, attorneys, consultants and advisors of or to any of the
foregoing (including those retained in connection with the satisfaction or
attempted satisfaction of any condition set forth in Article V)) (each such
Person being an "Indemnified Person") from and against any and all claims,
damages, liabilities, obligations, losses, penalties, actions, judgments, suits,
costs, disbursements and expenses of any kind or nature (including fees,
disbursements and reasonable expenses of financial and legal advisors to any
such Indemnified Person) that may be imposed on, incurred by or asserted against
any such Indemnified Person in connection with or arising out of any
investigation, litigation or proceeding, whether or not any such Indemnified
Person is a party thereto, whether direct, indirect, or consequential and
whether based on any federal, state or local law or other statutory regulation,
securities or commercial law or regulation, or under common law or in equity, or
on contract, tort or otherwise, in any manner relating to or arising out of this
Agreement, any other Credit Document, any Obligation, any Letter of Credit, any
Transaction Document, or any act, event or transaction related or attendant to
any thereof, or the use or intended use of the proceeds of the Loans or Letters
of Credit or in connection with any investigation of any potential matter
covered hereby (collectively, the "Indemnified Matters"); provided, however,
that the Borrowers shall not have any obligation under this Section 11.4 to an
Indemnified Person with respect to any Indemnified Matter caused by or resulting
from
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the gross negligence or willful misconduct of that Indemnified Person, as
determined by a court of competent jurisdiction in a final non-appealable
judgment or order. Without limiting the generality of the foregoing, each
Borrower jointly and severally agrees to (x) indemnify each Agent for any
payments that any Agent is required to make under any indemnity issued to any
Lender referred to in any Security Document, and (y) indemnify each Lender and
each other Indemnified Person from, and hold each Lender and each other
Indemnified Person harmless against, any Losses described in the preceding
sentence (net of insurance proceeds actually received but excluding, as provided
in the preceding sentence, any Loss to the extent determined by a court of
competent jurisdiction to have arisen from the gross negligence, bad faith or
willful misconduct of such Indemnified Person) arising under any Environmental
Law based on or arising out of (A) the past, present or future operations of any
Company (or any predecessor in interest to any Company), (B) the past, present
or future condition of any facility or property owned, operated or leased at any
time by any Company (or any of their respective predecessors in interest), or
(C) any Release or threatened Release of any Hazardous Materials at, on, under
or from any such facility or property, including, without limitation, any such
Release or threatened Release that shall occur during any period when any Lender
or other Indemnified Person shall be in possession of any such facility or
property following the exercise by such Lender or other Indemnified Person of
any of its rights and remedies hereunder or under any of the Security Documents,
and the alleged disposal or alleged arranging for disposal or treatment or
transport for disposal or treatment of any Hazardous Materials by any Company
(or any of their respective predecessors in interest) at any third-party site.
(c) To the extent that the undertaking to indemnify and hold
harmless set forth in this Section 11.4 is unenforceable because it is violative
of any law or public policy or otherwise, each Loan Party shall contribute the
maximum portion that each of them is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all indemnified liabilities
incurred by any of the Persons indemnified hereunder.
(d) Each Borrower agrees that no Indemnitee shall have any liability
(whether in contract, tort or otherwise) to any Loan Party or any of their
respective Subsidiaries or any of their respective equity holders or creditors
for or in connection with the transactions contemplated hereby and in the other
Credit Documents and Transaction Documents, except for direct damages (as
opposed to special, indirect, consequential or punitive damages (including,
without limitation, any loss of profits, business or anticipated savings))
determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnitee's gross negligence or willful
misconduct. Each Borrower hereby waives, releases and agrees (each for itself
and on behalf of its Subsidiaries) not to ▇▇▇ upon any such claim for any
special, indirect, consequential or punitive damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
(e) In the event that any Indemnified Person is requested or
required to appear as a witness in any Proceeding brought by or on behalf of or
against any Loan Party or any Affiliate of any Loan Party in which such
Indemnified Person is not named as a defendant, each Borrower agrees to jointly
and severally reimburse each Indemnified Person for all reasonable out-of-pocket
expenses and all reasonable allocable costs of in-house legal counsel incurred
by each Indemnified Person in connection with such Indemnified Person's
appearing and preparing to appear as such a witness, including the reasonable
fees and disbursements of one common counsel for all Indemnified Persons.
(f) Each Borrower agrees that, without the prior written consent of
the Administrative Agent, and the Required Lenders, which consent shall not be
unreasonably withheld or delayed, no Loan Party will settle, compromise or
consent to the entry of any judgment in any pending or threatened Proceeding in
respect of which indemnification could be sought under the indemnification
provisions of this Section 11.4 (whether or not any Indemnified Person is an
actual or potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional written
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release reasonably satisfactory to the Administrative Agent, and the Required
Lenders of each Indemnified Person from all liability arising out of such
Proceeding and does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of any Indemnified Person and does
not involve any payment of money or other value by any Indemnified Person or any
injunctive relief or factual findings or stipulations binding on any Indemnified
Person. No Indemnified Person shall settle, compromise or consent to the entry
of any judgment in any pending or threatened Proceeding without the prior
written consent of the Borrowers, which consent shall not be unreasonably
withheld or delayed.
11.5. [Intentionally Omitted]
11.6. Payments Set Aside. To the extent that a Loan Party makes a
payment to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver, receiver manager or any other
party, in connection with any Insolvency Proceeding or otherwise, then (a) to
the extent of such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred and (b) each
Lender severally agrees to pay to such Administrative Agent upon demand its pro
rata share of any amount so recovered from or repaid by such Administrative
Agent.
11.7. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
11.8. Assignments and Participations, etc. (a) No Borrower may
assign its rights or obligations hereunder or under the Notes without the prior
written consent of all of the Lenders and the Agents.
(b) Any Lender may upon prior written consent of the
Administrative Agent and U.S. Borrower (provided that the U.S. Borrower's
consent shall not be required in connection with the primary syndication by CNAI
of the Facilities) (which consent, in each case, shall not be unreasonably
withheld or delayed), at any time assign and delegate to one or more Eligible
Assignees (each, an "Assignee") (provided that no written consent of U.S.
Borrower and the Administrative Agent shall be required in connection with any
assignment and delegation by a Lender to an Eligible Assignee that is an
Affiliate of such Lender or to another Lender or to an Approved Fund of any
Lender) (in which case, the Assignee and assignor Lenders shall give notice of
the assignment to the Administrative Agent) all or any part of the Loans, the
Commitments, the L/C Obligations and the other rights and obligations of such
Lender hereunder, which assignment, other than to a Lender or an Affiliate of a
Lender or to an Approved Fund of any Lender, shall be in a minimum (unless U.S.
Borrower and the Administrative Agent agree to a lesser amount) Dollar
Equivalent amount of U.S. $1,000,000 or, if less, the entire amount of all
Loans, the Commitments, L/C Obligations and other rights and obligations of such
Lender hereunder in any Facility; provided, however, that (i) in no event may
any such assignment be made to any Company or any of its Affiliates; (ii) the
Loan Parties and the Agents may continue to deal solely and directly with such
Lender in connection with the interest so assigned to an Assignee until (x)
written notice of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee, shall have been given to
any Loan Party and the Agents by such Lender and the Assignee, and (y) such
Lender and its Assignee shall have delivered to the Borrowers and the
Administrative Agent an Assignment and Acceptance in the form of Exhibit G
("Assignment and Acceptance") together with any Note or Notes subject to such
assignment; and (iii) no such consent of U.S. Borrower or the Administrative
Agent need be obtained if any Unmatured Event of Default or Event of Default has
occurred and is continuing. Notwithstanding any other term of this subsection
11.8(b), the agreement of
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the Swing Line Lenders to provide Swing Line Commitment shall not impair or
otherwise restrict in any manner the ability of any Swing Line Lender to make
any assignment of its Loans or Commitments in accordance with the provisions of
this Section 11.8, it being understood and agreed that any Swing Line Lender may
terminate its Swing Line Commitment in connection with the making of any
assignment, further, at any time any Swing Line Lender may assign all or a
portion of its Swing Line Commitments or its Qualified Offshore Commitments to
an Affiliate of such Lender provided such Affiliate is a Qualified Offshore
Lender with respect to the Applicable Borrower. At the time of each assignment
pursuant to this subsection 11.8(b) to a Person which is not already a Lender
hereunder within the same Facility, the Assignee shall provide to the Loan
Parties and the Agents the appropriate forms and certificates described in
subsection 4.1(e) (except to the extent expressly provided otherwise). To the
extent that an assignment of all or any portion of a Lender's Commitments and
related outstanding Obligations pursuant to this subsection 11.8(b) would, at
the time of such assignment, result in increased costs payable to such assignee
Lender under Section 4.1 or 4.4 from those being charged by the respective
assigning Lender prior to such assignment, then no Borrower shall be obligated
to pay such increased costs (although the Borrowers shall be obligated to pay
any increased costs resulting from any Change in Law after the date of the
respective assignment). Any assignment pursuant to this Section 11.8 shall not
be effective until such assignment is recorded on the Register maintained by the
Administrative Agent.
(c) From and after the date that the Administrative Agent
notifies the assignor Lender that it has received (and provided its consent and,
to the extent required, received the consent of U.S. Borrower with respect to)
an executed Assignment and Acceptance and payment of an assignment fee in the
amount of $3,500 (other than with respect of any assignment by a Lender to an
Affiliate or to an or Approved Fund thereof), (i) the Assignee thereunder shall
be a party hereto and, to the extent that rights hereunder have been assigned to
it and obligations hereunder have been assumed by it pursuant to such Assignment
and Acceptance, shall have the rights and obligations of a Lender under the
Credit Documents, and (ii) the assignor Lender shall, to the extent that rights
and obligations hereunder and under the other Credit Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(except for those surviving the payment in full of the Obligations) and be
released from its obligations under the Credit Documents, other than those
relating to events or circumstances occurring prior to such assignment
(including pursuant to Section 11.9).
(d) Any Lender may at any time (without prior written consent of
the Administrative Agent or the U.S. Borrower) sell to one or more commercial
banks or other Persons that are not Affiliates of any Borrower (a "Participant")
participating interests in all or any part of any Loan, the Commitment of such
Lender and the other interests of such Lender (the "originating Lender")
hereunder and under the other Credit Documents; provided, however, that (i) the
originating Lender's obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for the performance
of such obligations, (iii) the Loan Parties, the Swing Line Lenders, the L/C
Lenders and the Agents shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Credit Documents, and (iv) no
Lender shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Credit Document, except to the
extent such amendment, consent or waiver would (1) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Termination Date) in which such Participant is
participating, or reduce the rate or extend the time of payment of interest or
fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the Participant's participation over the amount
thereof then in effect (it being understood that a waiver of any condition,
covenant, violation, Event of Default or Unmatured Event of Default shall not
constitute a change in the terms of such participation, and that an increase in
any Revolving Commitment, Revolving Loan or BA Rate Loan shall be permitted
without the consent of any Participant if the Participant's
144
participation is not increased as a result thereof), (2) consent to the
assignment or transfer by any Loan Party of any of its rights and obligations
under this Agreement or (3) release all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such Participant is
participating. In the case of any such participation, the Participant shall be
entitled to the benefit of Sections 2.17, 4.1, 4.3, 4.4, 4.6 and 11.4 as though
it were also a Lender hereunder (provided that no Loan Party shall be obligated
to pay any amount under Section 4.1, 4.3, 4.4 or 4.6 to any Participant which is
greater than a Loan Party would have been required to pay to the originating
Lender at the time such participation was sold (although the Loan Parties shall
be obligated to pay any other increased amounts under the foregoing sections
that result from any Change in Law after the date on which the participation was
sold)), and if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, the Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement. In addition, each
originating Lender selling a participation to a Participant under this Section
11.8 (i) shall keep a register, meeting the requirements of Treasury Regulation
Section 5f.103-1(c), of each such Participant, specifying such Participant's
entitlement to payments of principal and interest with respect to such
participation, and (ii) shall collect, prior to the time such Participant
receives payments with respect to such participation, from each such Participant
the appropriate forms and certificates described in Section 4.1(e) (and updated
as required by Section 4.1(e)) as if such Participant were a Lender under
Section 4.1(e).
(e) Notwithstanding any other provision in this Agreement, any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and any Note held by
it in favor of any U.S. Federal Reserve Bank in accordance with Regulation A and
any Operating Circular issued by such U.S. Federal Reserve Bank. In addition,
any Lender that is a fund that invests in loans may at any time create a
security interest in, or pledge, all or any portion of its rights under and
interest in this Agreement and any Note held by it in favor of any trustee or
holders of obligations owed, or securities issued by, such funds as security for
such obligations or securities or to any other representative of such holders.
No such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Each Borrower shall and shall cause each of its
Subsidiaries to assist any Lender in effectuating any assignment or
participation pursuant to this subsection 11.8(f) (including during syndication)
in whatever manner such Lender reasonably deems necessary, including the
participation in meetings with prospective Assignees.
11.9. Confidentiality. (a) Each of the Lenders agrees that it
will use its reasonable efforts not to disclose without the prior consent of
U.S. Borrower (other than to its employees, auditors, counsel or other
professional advisors, to Affiliates or to another Lender if the Lender or such
Lender's holding or parent company in its sole discretion determines that any
such party should have access to such information) any information with respect
to any Company which is furnished pursuant to this Agreement or any other Credit
Document; provided, however, that any Lender may disclose any such information
(i) as has become generally available to the public, (ii) as may be required or
appropriate in any report, statement or testimony submitted to any municipal,
state, provincial or U.S. Federal or foreign regulatory body having or claiming
to have jurisdiction over such Lender or to the U.S. Federal Reserve Board or
the U.S. Federal Deposit Insurance Corporation or the NAIC or similar
organizations (whether in the United States or elsewhere) or their successors,
(iii) as may be required or appropriate in response to any summons or subpoena
or in connection with any litigation (provided, that, where practicable (unless
prohibited by law), U.S. Borrower shall be afforded prior notice thereof and a
reasonable opportunity to contest such summons or subpoena; it being understood,
however, that the Agents and Lenders shall be
145
permitted in any event to comply with such summons or subpoena), (iv) to comply
with any law, order, regulation or ruling applicable to such Lender, (v) to any
prospective transferee in connection with any contemplated transfer of any of
the Notes or any interest therein by such Lender; provided, however, that the
transferring Lender shall use reasonable efforts to cause such prospective
transferee (unless it is a Lender) to execute an agreement with such Lender
containing provisions substantially identical to those contained in this Section
11.9, and (vi) to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional advisors, provided
that such contractual counterparty or professional advisor to such contractual
counterparty agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder.
(b) Each Borrower hereby acknowledges and agrees that each
Lender may share with any of its Affiliates or investment advisor any
information related to any Company (including, without limitation, any nonpublic
customer information regarding the creditworthiness of any Loan Party and its
Subsidiaries, provided that such Persons shall be subject to the provisions of
this Section 11.9 to the same extent as such Lender).
(c) Notwithstanding anything herein to the contrary, each
Borrower hereby acknowledges and agrees that each Lender may share any
information with respect to any Company furnished pursuant to this Agreement to
any Person which shares or bears, whether directly or indirectly, such Lender's
economic benefits or burdens hereunder; provided, however, that such Person
shall be subject to the provisions of this Section 11.9 to the same extent as
such Lender.
11.10. Set-off. In addition to any right or remedy of the Lenders
now or hereafter provided by law, and not by way of limitation of any such right
or remedy, during the continuance of an Event of Default such Lender is
authorized at any time and from time to time, without prior notice to any Loan
Party, any such notice being waived by the Borrowers on their own behalf and on
behalf of their Subsidiaries to the fullest extent permitted by law, to set off
and to appropriate and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other Indebtedness at any
time owing by, such Lender (including by branches and agencies of such Lender
wherever located) to or for the credit or the account of the Applicable Borrower
against such amount, irrespective of whether or not any Agent or such Lender
shall have made demand under this Agreement or any Credit Document, including
all interests in Obligations of such Borrower purchased by such Lender pursuant
to Section 2.7 or Section 2.21 and all other claims of any nature or description
arising out of or connected with any Credit Document, irrespective of whether or
not such Lender shall have made any demand hereunder and although said
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. Each Lender agrees promptly to notify the Applicable Borrower and the
Agents after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application.
11.11. Notification of Addresses, Lending Offices, etc. Each
Lender shall notify the Agents in writing of any change in the address to which
notices to such Lender should be directed, of addresses of any Lending Office,
of payment instructions in respect of all payments to be made to it hereunder
and of such other administrative information as any Agent shall reasonably
request.
11.12. Counterparts. This Agreement may be executed in any number
of separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall be deemed to constitute but one
and the same instrument. Any of the parties hereto may execute this Agreement by
signing any such counterpart.
11.13. Severability; Modification To Conform to Law. It is the
intention of the parties that this Agreement be enforceable to the fullest
extent permissible under applicable law, but that the
146
unenforceability (or modification to conform to such law) of any provision or
provisions hereof shall not render unenforceable, or impair, the remainder
hereof. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, this Agreement shall, as
to such jurisdiction, be deemed amended to modify or delete, as necessary, the
offending provision or provisions and to alter the bounds thereof in order to
render it or them valid and enforceable to the maximum extent permitted by
applicable law, without in any manner affecting the validity or enforceability
of such provision or provisions in any other jurisdiction or the remaining
provisions hereof in any jurisdiction.
11.14. No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the Loan Parties, the
Lenders, the Agents and the Affiliates of the Agents, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any other Credit Document.
11.15. Governing Law; Submission to Jurisdiction; Venue. (a)
THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this
Agreement or any other Credit Document may be brought in the courts of the State
of New York in the County of New York (Manhattan) or of the United States for
the Southern District of New York and, by execution and delivery of this
Agreement, each of Borrower hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each of Borrower hereby further irrevocably waives any claim
that any such courts lack jurisdiction over such party, and agrees not to plead
or claim, in any legal action or proceeding with respect to this Agreement or
any other Credit Document brought in any of the aforesaid courts, that any such
court lacks jurisdiction over such party.
(c)
(i) Each Borrower irrevocably consents to the service
of process in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to such
party, at its address for notices pursuant to Section 11.2, such
service to become effective 30 days after such mailing.
(ii) Each Foreign Borrower hereby irrevocably
designates, appoints and empowers ▇▇▇▇▇ Bros. Corporation (the
"Process Agent"), in the case of any suit, action or proceeding
brought in the United States of America as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and all legal process,
summons, notices and documents that may be served in any action or
proceeding arising out of or in connection with this Agreement or any
Loan Document. Such service may be made by mailing (by registered or
certified mail, postage prepaid) or delivering a copy of such process
to such Borrower in care of the Process Agent at the Process Agent's
above address, and each of the Borrowers, hereby irrevocably
authorizes and directs the Process Agent to accept such service on its
behalf.
(iii) Each Borrower hereby irrevocably waives any
objection to such service of process and further irrevocably agrees
not to plead or claim in any action or proceeding commenced hereunder
or under any other Credit Document that service of process was in any
way invalid or ineffective. Nothing herein shall affect the right of
any Agent, any Lender or the
147
holder of any Note to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against any
Loan Party in any other jurisdiction.
(c) Each of Borrower on its own behalf and each Borrower on
behalf of each other Loan Party hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such proceeding brought in any such court has been brought in an
inconvenient forum.
11.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY
OTHER CREDIT DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO
A TRIAL BY THE COURT.
11.17. Judgment. If, for the purpose of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or any other Credit
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent could purchase the first currency with such other currency on the Business
Day preceding that on which final judgment is given. The obligation of each of
U.S. Borrower and Foreign Holdco in respect of any such sum due from it to any
Agent or Lender hereunder or under any other Credit Document shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by the applicable Agent or
Lender of any sum adjudged to be so due in the Judgment Currency, such Person
may in accordance with normal banking procedures purchase the Agreement Currency
with the Judgment Currency. If the amount of the Agreement Currency so purchased
is less than the sum originally due to the applicable Agent in the Agreement
Currency, each Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Person to whom such obligation was owing
against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the applicable Agent or Lender in such
currency, such Person agrees to return the amount of any excess to the
applicable Loan Party (or to any other Person who may be entitled thereto under
applicable law).
11.18. Survival. The obligations of the Borrowers under Article
IV and Sections 11.4, 11.15 and 11.16 shall survive the repayment of the Loans
and other Obligations and the termination of the Commitments and, in the case of
any Lender that may assign any interest in its Commitments, Loans or Letter of
Credit interest hereunder, shall survive the making of such assignment,
notwithstanding that such assigning Lender may cease to be a "Lender" hereunder.
11.19. Documents Evidence the Same Indebtedness. Upon its
effectiveness, this Agreement amends and restates in its entirety the Existing
Credit Agreement and the Notes issued under this Agreement, if any, amend and
restate the "Notes" (as defined in the Existing Credit Agreement) issued under
the Existing Credit Agreement. This Agreement and the Notes, if any, do not
constitute and shall not be construed to evidence a novation of or a payment and
readvance of the loan principal, interest and other sums, if any, heretofore
outstanding under the Existing Credit Agreement, it being the intention of the
Borrowers, and by their signature hereto, the Agents and Lenders, that this
Agreement provide for the terms and conditions of, and the Notes evidence, upon
the effectiveness of this Agreement, the same Indebtedness as was then
outstanding under the Existing Credit Agreement. Each Lender shall surrender
148
the original "Notes" (as defined in the Existing Credit Agreement) outstanding
on the Effective Date issued to it under the Existing Credit Agreement.
11.20. Releases. The Lenders hereby authorize the Administrative
Agent, and the Administrative Agent agrees to use reasonable efforts, to
release, at the sole costs and expense of the Borrowers, the Liens created
pursuant to and in connection with the Existing Credit Agreement which are set
forth on Schedule 11.20. From and after the Effective Date, no Loan Party shall
be required to comply with the provisions of any Security Document (as defined
in the Existing Credit Agreement) set forth on Schedule 11.20.
[Signature Pages Follow]
149
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWERS: ▇▇▇▇▇ BROS. CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
GREIF SPAIN HOLDINGS, S.L., sociedad unipersonal
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
GREIF BROS. CANADA INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
VAN LEER (UK) LTD.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Finance Director
KONINKLIJKE EMBALLAGE INDUSTRIE VAN LEER
BV (dba Royal Packaging Industries Van Leer NV)
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: President
VAN LEER AUSTRALIA PTY. LTD.
By: /s/ ▇. ▇. Sticovich
---------------------------------------------
Name: ▇. ▇. Sticovich
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
150
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Joint Lead Arranger and Sole BookRunner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
DEUTSCHE BANK SECURITIES INC
as Joint Lead Arranger
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ illegible signature
---------------------------------------------
Name:
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and Leader
By: /s/ illegible signature
---------------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Co-Syndication Agent and Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
KEYBANK NATIONAL ASSOCIATION,
as Co-Syndication Agent and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SUN TRUST BANK, INC.,
as Documentation Agent and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
151
THE HUNTINGTON NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
ING CAPITAL LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
▇▇ ▇▇▇▇▇▇ CHASE BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
152
L/C Lenders:
CITIBANK, N.A.,
as L/C Lender
By: /s/ illegible signature
---------------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as L/C Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Other Lenders:
CITIBANK, N.A.
By: /s/ illegible signature
---------------------------------------------
Name:
Title:
CITIBANK, N.A., CANADIAN BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
FIFTH THIRD BANK, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
FORTIS CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ Riahl
---------------------------------------------
Name: ▇▇▇▇▇▇▇ Riahl
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
153
MONY LIFE INSURANCE COMPANY OF AMERICA,
as Lender
By: MONY Capital Management, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
ERSTE BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Erste Bank New York Branch
By: /s/ ▇▇▇▇ ▇. Runnyon
---------------------------------------------
Name: ▇▇▇▇ ▇. Runnyon
Title: Managing Director
Erste Bank New York Branch
154
