65,000,000 Swiss Francs TWO YEAR CREDIT AGREEMENT Dated as of February 24, 2010 Among DENTSPLY INTERNATIONAL INC. as Borrower and THE INITIAL LENDERS NAMED HEREIN as Initial Lenders and PNC BANK, NATIONAL ASSOCIATION as Agent
65,000,000
Swiss Francs
TWO
YEAR CREDIT AGREEMENT
Dated as
of February 24, 2010
Among
DENTSPLY
INTERNATIONAL INC.
as
Borrower
and
THE
INITIAL LENDERS NAMED HEREIN
as
Initial Lenders
and
PNC
BANK, NATIONAL ASSOCIATION
as Agent
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Page
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ARTICLE
I
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DEFINITIONS
AND ACCOUNTING TERMS
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SECTION
1.01 Certain Defined Terms
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1
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SECTION
1.02 Computation of Time Periods
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9
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SECTION
1.03 Accounting Terms
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9
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ARTICLE
II
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AMOUNTS
AND TERMS OF THE TERM LOANS
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SECTION
2.01 The Term Loans
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9
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SECTION
2.02 Procedures for Term Loans
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10
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SECTION
2.03 [Intentionally Left Blank]
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10
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SECTION
2.04 [Intentionally Left Blank]
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10
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SECTION
2.05 [Intentionally Left Blank]
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10
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SECTION
2.06 Repayment
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11
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SECTION
2.07 Interest on Term Loans
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11
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SECTION
2.08 Interest Rate Determination
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11
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SECTION
2.09 [Intentionally Left Blank]
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12
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SECTION
2.10 Prepayments of Term Loans
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12
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SECTION
2.11 Increased Costs
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12
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SECTION
2.12 Illegality
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13
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SECTION
2.13 Payments and Computations
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13
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SECTION
2.14 Taxes
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14
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SECTION
2.15 Sharing of Payments, Etc
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16
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SECTION
2.16 Evidence of Debt
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16
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SECTION
2.17 Use of Proceeds
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17
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ARTICLE
III
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CONDITIONS
TO EFFECTIVENESS AND LENDING
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SECTION
3.01 Conditions Precedent to Effectiveness of Section
2.01
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17
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ARTICLE
IV
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REPRESENTATIONS
AND WARRANTIES
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SECTION
4.01 Representations and Warranties of the
Company
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19
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ARTICLE
V
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COVENANTS
OF THE COMPANY
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SECTION
5.01 Affirmative Covenants
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20
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SECTION
5.02 Negative Covenants
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23
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SECTION
5.03 Financial Covenants
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25
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i
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ARTICLE
VI
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EVENTS
OF DEFAULT
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SECTION
6.01 Events of Default
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25
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ARTICLE
VII
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[INTENTIONALLY
LEFT BLANK]
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ARTICLE
VIII
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THE
AGENT
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SECTION
8.01 Authorization and Action
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27
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SECTION
8.02 Agent’s Reliance, Etc
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27
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SECTION
8.03 PNC and Affiliates
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28
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SECTION
8.04 Lender Credit Decision
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28
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SECTION
8.05 Indemnification
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28
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SECTION
8.06 Successor Agent
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29
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ARTICLE
IX
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MISCELLANEOUS
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SECTION
9.01 Amendments, Etc
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29
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SECTION
9.02 Notices
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30
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SECTION
9.03 No Waiver; Remedies
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30
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SECTION
9.04 Costs and Expenses
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30
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SECTION
9.05 Right of Set-off
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32
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SECTION
9.06 Binding Effect
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32
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SECTION
9.07 Assignments and Participations
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33
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SECTION
9.08 Confidentiality
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35
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SECTION
9.09 [Intentionally Left Blank]
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35
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SECTION
9.10 Governing Law
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35
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SECTION
9.11 Execution in Counterparts
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35
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SECTION
9.12 Judgment
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35
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SECTION
9.13 Jurisdiction, Etc
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36
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SECTION
9.14 Substitution of Currency
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36
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SECTION
9.15 [Intentionally Left Blank]
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37
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SECTION
9.16 Patriot Act Notice
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37
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SECTION
9.17 Waiver of Jury Trial
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37
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ii
Schedules
Schedule
I - List of Lending Offices
Schedule
5.02(a) - Existing Liens
Schedule
5.02(d) - Existing Debt
Exhibits
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Exhibit
A
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-
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Form
of Note
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Exhibit
B
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-
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Form
of Notice of Borrowing
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Exhibit
C
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-
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Form
of Assignment and Acceptance
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Exhibit
D
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-
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Form
of Opinion of Counsel for the
Company
|
iii
TWO YEAR
CREDIT AGREEMENT
Dated as
of February 24, 2010
DENTSPLY
INTERNATIONAL INC., a Delaware corporation (the “Company”), the banks,
financial institutions and other institutional lenders (the “Initial Lenders”) and
PNC BANK, NATIONAL ASSOCIATION (“PNC”), as agent (the
“Agent”) for
the Lenders (as hereinafter defined), agree as follows:
ARTICLE
I
DEFINITIONS AND ACCOUNTING
TERMS
SECTION 1.01 Certain Defined
Terms. As used
in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
“Affiliate” means, as
to any Person, any other Person that, directly or indirectly, controls, is
controlled by or is under common control with such Person or is a director or
officer of such Person. For purposes of this definition, the term
“control” (including the terms “controlling”, “controlled by” and “under common
control with”) of a Person means the possession, direct or indirect, of the
power to vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by contract or otherwise.
“Agent’s Account”
means such account of the Agent as is designated in writing from time to time by
the Agent to the Company and the Lenders for such purpose.
“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender
and an Eligible Assignee, and accepted by the Agent, in substantially the form
of Exhibit C hereto.
“Bankruptcy Law” means
any proceeding of the type referred to in Section 6.01(e) or Title 11, U.S.
Code, or any similar foreign, federal or state law for the relief of
debtors.
“Base Rate” means for
any day, a fluctuating per annum rate of interest equal to the highest of (a)
the Prime Rate in effect on such day, (b) the Federal Funds Open Rate in effect
on such day plus ½ of 1% and (c) the Daily LIBOR Rate in effect on such day plus
one hundred basis points (1.00%). If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Open Rate for any reason, including
the inability or failure of the Agent to obtain sufficient quotations in
accordance with the definition of such term, the Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in
the Base Rate due to a change in the Prime Rate, the Federal Funds Open Rate or
the Daily LIBOR Rate shall be effective on the effective date of such change in
the Prime Rate, the Federal Funds Open Rate or the Daily LIBOR
Rate, respectively.
“Business Day” means a
day of the year on which banks are not required or authorized by law to close in
Philadelphia, Pennsylvania and on which dealings are carried on in the London
interbank market and banks are open for business in London and in
Switzerland.
“Company Information”
has the meaning specified in Section 9.08.
“Consolidated” refers
to the consolidation of accounts in accordance with GAAP.
“Daily LIBOR Rate”
means, for any day, the rate per annum determined by the Agent by dividing (the
resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1%)
(a) the Published Rate by (b) a number equal to 1.00 minus the Eurocurrency Rate
Reserve Percentage. The Published Rate shall be adjusted as of each
Business Day based on changes in the Published Rate or the Eurocurrency Rate
Reserve Percentage without notice to the Company, and shall be applicable from
the effective date of any such change.
“Debt” of any Person
means, without duplication, (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or services (other than trade payables not overdue by
more than 60 days incurred in the ordinary course of such Person’s business),
(c) all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all obligations of such
Person as lessee under leases that have been or should be, in accordance with
GAAP, recorded as capital leases, (f) all obligations, contingent or
otherwise, of such Person in respect of acceptances, letters of credit or
similar extensions of credit, (g) all obligations of such Person in respect
of Hedge Agreements, (h) all Debt of others referred to in clauses (a)
through (g) above or clause (i) below and other payment obligations
(collectively, “Guaranteed Debt”)
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement
(1) to pay or purchase such Guaranteed Debt or to advance or supply funds
for the payment or purchase of such Guaranteed Debt, (2) to purchase, sell
or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Guaranteed Debt or to assure the holder of such Guaranteed Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of whether
such property is received or such services are rendered) or (4) otherwise
to assure a creditor against loss, and (i) all Debt referred to in
clauses (a) through (h) above (including Guaranteed Debt) secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Debt.
“Debt for Borrowed
Money” of any Person means all items that, in accordance with GAAP, would
be classified as indebtedness on a Consolidated balance sheet of such Person,
provided that
Debt for Borrowed Money of the Company and its Subsidiaries shall not include
Debt incurred in connection with the Consignment Agreements relating to the
consignment of precious metals between the Company and certain
counterparties.
2
“Default” means any
Event of Default or any event that would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
“Dollars” and the
“$” sign each
means lawful currency of the United States of America.
“EBITDA” means, for
any period, net income (or net loss) plus the sum of
(a) interest expense, (b) income tax expense, (c) depreciation
expense and (d) amortization expense, in each case determined in accordance
with GAAP for such period.
“Effective Date” has
the meaning specified in Section 3.01.
“Eligible Assignee”
means (i) a Lender; (ii) an Affiliate of a Lender; and (iii) any
other Person approved by the Agent and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance with
Section 9.07, the Company, such approval not to be unreasonably withheld or
delayed; provided, however, that neither
the Company nor an Affiliate of the Company shall qualify as an Eligible
Assignee.
“Environmental Action”
means any action, suit, demand, demand letter, claim, notice of non-compliance
or violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or other actions
or damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
“Environmental Law”
means any federal, state, local or foreign statute, law, ordinance, rule,
regulation, code, order, judgment, decree or judicial or agency interpretation,
policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
“Environmental Permit”
means any permit, approval, identification number, license or other
authorization required under any Environmental Law.
“Equivalent” means, at
any time, as determined by the Agent (which determination shall be conclusive
absent manifest error), with respect to an amount of any currency (the “Reference Currency”)
which is to be computed as an equivalent amount of another currency (the “Equivalent
Currency”), the amount of such Equivalent Currency converted from such
Reference Currency using the average spot rate quoted to the Agent (based on the
market rates then prevailing and available to the Agent) or the commercial
market rate of exchange, as determined by the Agent, for the sale of such
Equivalent Currency for such Reference Currency at a time determined by the
Agent on the second Business Day immediately preceding the event for which such
calculation is made.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and the regulations promulgated and rulings issued thereunder.
3
“ERISA Affiliate”
means any Person that for purposes of Title IV of ERISA is a member of the
Company’s controlled group, or under common control with the Company, within the
meaning of Section 414 of the Internal Revenue Code.
“ERISA Event” means
(a) (i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii) the
requirements of subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with respect to a contributing sponsor,
as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of the Company or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by the Company or any
ERISA Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under Section 302(f)
of ERISA shall have been met with respect to any Plan; (g) the Adjusted
Funding Target Attainment Percentage (as defined in Section 206(g)(9) of ERISA)
of any Plan is, or is deemed to be, less than 80%; or (h) the institution
by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that constitutes grounds for the termination of, or
the appointment of a trustee to administer, a Plan.
“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time
to time.
“Eurocurrency Rate”
means for any Interest Period, an interest rate per annum equal to the rate
obtained by dividing (a) the rate per annum (rounded upwards to the nearest
whole multiple of 1/100 of 1% per annum determined by the Agent in accordance
with its usual procedures (which determination shall be conclusive absent
manifest error) to be the average of the London interbank offered rate of
interest per annum for deposits in Swiss Francs which appears on the relevant
Bloomberg page that displays such rates (or, if no such quotation is available
on such Bloomberg page, the rate which is quoted by another source for the
London interbank offered rates of interest for deposits in Swiss Francs selected
by the Agent), at approximately 11:00 a.m., London time, two (2) Business Days
prior to the first day of such Interest Period for delivery on the first day of
such Interest Period for a period, and in an amount, comparable to such Interest
Period and the principal amount of the Term Loans outstanding by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such
Interest Period.
“Eurocurrency Rate Reserve
Percentage” for any Interest Period, means the reserve percentage
applicable two Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
advances in Swiss Francs is determined) having a term equal to such Interest
Period.
4
“Events of Default”
has the meaning specified in Section 6.01.
“Federal Funds Open
Rate” means, for any day, the rate per annum (based on a year of 360 days
and actual days elapsed) which is the daily federal funds open rate as quoted by
ICAP North America, Inc. (or any successor) as set forth on the Bloomberg
Screen BTMM for that day opposite the caption “OPEN” (or on such other
substitute Bloomberg Screen that displays such rate), or as set forth on such
other recognized electronic source used for the purpose of displaying such rate
as selected by the Agent (an “Alternate Source”)
(or if such rate for such day does not appear on the Bloomberg Screen BTMM (or
any substitute screen) or on any Alternate Source, or if there shall at any
time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute
screen) or any Alternate Source, a comparable replacement rate determined by the
Agent at such time (which determination shall be conclusive absent manifest
error); provided however, that if such day is not a Business Day, the Federal
Funds Open Rate for such day shall be the “open” rate on the immediately
preceding Business Day. The rate of interest charged shall be adjusted as
of each Business Day based on changes in the Federal Funds Open Rate without
notice to the Company.
“GAAP” has the meaning
specified in Section 1.03.
“Hazardous Materials”
means (a) petroleum and petroleum products, byproducts or breakdown products,
radioactive materials, asbestos-containing materials, polychlorinated biphenyls
and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant
under any Environmental Law.
“Hedge Agreements”
means interest rate swap, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or option contracts
and other similar agreements.
“Interest Period”
means initially the period commencing on the Term Loan Funding Date and ending
three months after such date and, thereafter, each subsequent period commencing
on the last day of the immediately preceding Interest Period and ending three
months after such date. Accordingly, the duration of each such Interest
Period shall be three months; provided, however,
that:
(a) no
Interest Period may end after the Term Loan Maturity Date;
(b) whenever
the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day; and
5
(c) whenever
the first day of any Interest Period occurs on a day of an initial calendar
month for which there is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month.
(d) at
all times, all of the Term Loans shall have the same Interest
Period.
(e) notwithstanding
the foregoing, as provided in Section 2.08(c) hereof, upon the occurrence and
during the continuance of an Event of Default, unless the Agent otherwise agrees
in its sole discretion, the Interest Period for the Term Loans shall be one (1)
month.
“Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued
thereunder.
“Lenders” means each
Initial Lender and each Person that shall become a party hereto pursuant to
Section 9.07.
“Lending Office”
means, with respect to any Lender, the office of such Lender specified as its
“Lending Office” opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify in writing to the Company
and the Agent.
“Lien” means any lien,
security interest or other charge or encumbrance of any kind, or any other type
of preferential arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
“Material Adverse
Change” means any material adverse change in the business, financial
condition or operations of the Company or the Company and its Subsidiaries taken
as a whole.
“Material Adverse
Effect” means a material adverse effect on (a) the business,
financial condition or operations of the Company or the Company and its
Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or
any Lender under this Agreement or any Note or (c) the ability of the
Company to perform its obligations under this Agreement or any
Note.
“Moody’s” means
▇▇▇▇▇’▇ Investors Service, Inc.
“Multiemployer Plan”
means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to
which the Company or any ERISA Affiliate is making or accruing an obligation to
make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
“Multiple Employer
Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect of
which the Company or any ERISA Affiliate could have liability under
Section 4063, 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
6
“Note” means a
promissory note of the Company payable to the order of any Lender, delivered
pursuant to a request made under Section 2.16 in substantially the form of
Exhibit A hereto, evidencing the aggregate indebtedness of the Company to
such Lender resulting from the Term Loans made by or owed to such
Lender.
“Notice of Borrowing”
has the meaning specified in Section 2.02(a).
“OFAC” means the U.S.
Department of the Treasury’s Office of Foreign Assets Control.
“Patriot Act” means
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law
October 26, 2001.
“Payment Office” means
such office of PNC as shall be from time to time selected by the Agent and
notified by the Agent to the Company and the Lenders.
“PBGC” means the
Pension Benefit Guaranty Corporation (or any successor).
“Permitted Liens”
means such of the following as to which no enforcement, collection, execution,
levy or foreclosure proceeding shall have been
commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other
similar Liens arising in the ordinary course of business securing obligations
that are not overdue for a period of more than 30 days; (c) pledges or
deposits to secure obligations under workers’ compensation laws or similar
legislation or to secure public or statutory obligations; and
(d) easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property for its
present purposes.
“Person” means an
individual, partnership, corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture, limited liability
company or other entity, or a government or any political subdivision or agency
thereof.
“Plan” means a Single
Employer Plan or a Multiple Employer Plan.
“Prime Rate” means the
rate publicly announced by PNC from time to time as its prime rate. The
Prime Rate is determined from time to time by PNC as a means of pricing some
loans to its borrowers. The Prime Rate is not tied to any external rate of
interest or index, and does not necessarily reflect the lowest rate of interest
actually charged by PNC to any particular class or category of
customers.
“Published Rate” means
the rate of interest published each Business Day in The Wall Street Journal
“Money Rates” listing under the caption “London Interbank Offered Rates” for a
one-month period (or, if no such rate is published therein for any reason, then
the Published Rate shall be the eurodollar rate for a one-month period as
published in another publication determined by the Agent).
7
“Ratable Share” means,
as to any Lender, (a) until the funding of the Term Loans, the percentage which
such Lender’s Term Loan Commitment constitutes of the aggregate Term Loan
Commitments of all of the Lenders and (b) thereafter, the percentage which the
principal amount of such Lender’s Term Loan constitutes of the aggregate
principal amount of the Term Loans of all of the Lenders then
outstanding.
“Register” has the
meaning specified in Section 9.07(d).
“Required Lenders”
means at any time Lenders owed at least a majority of the then aggregate unpaid
principal amount of the Term Loans then owing to the Lenders; provided that, at any time
that there are only two Lenders party hereto, Required Lenders shall mean both
such Lenders.
“Single Employer Plan”
means a single employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of the Company or any ERISA Affiliate
and no Person other than the Company and the ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any ERISA Affiliate could have
liability under Section 4062 or 4069 of ERISA in the event such plan has
been or were to be terminated.
“Solvent” and “Solvency” mean, with
respect to any Person on a particular date, that on such date (a) the fair
value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
“Subsidiary” of any
Person means any corporation, partnership, joint venture, limited liability
company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person’s other Subsidiaries.
“Swiss Francs” means
the lawful currency of the Swiss Federation.
8
“Term Loan” shall have
the meaning assigned to such term in Section 2.01 hereof.
“Term Loan Commitment”
shall mean, with respect to any Lender, the commitment of such Lender to make a
Term Loan on the date hereof pursuant to Section 2.01 in an amount not to exceed
the amount set forth opposite such Lender’s name on Schedule I
hereto. The aggregate amount of the Term Loan Commitments on the Effective
Date is 65,000,000 Swiss Francs.
“Term Loan Funding
Date” means the date that is three (3) Business Days after the Effective
Date.
“Term Loan Maturity
Date” means March 1, 2012, which date is two years from the Term Loan
Funding Date.
“Voting Stock” means
capital stock issued by a corporation, or equivalent interests in any other
Person, the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by
the happening of such a contingency.
SECTION
1.02 Computation of Time
Periods.
In this Agreement in the computation of periods of time from a specified date to
a later specified date, the word “from” means “from and including”
and the words “to” and “until” each mean “to but excluding”.
SECTION
1.03 Accounting
Terms.
All accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred to in
Section 4.01(e) (“GAAP”).
ARTICLE
II
AMOUNTS AND TERMS OF THE
TERM LOANS
SECTION
2.01 The
Term Loans.
Each Lender severally agrees, on the terms and conditions hereinafter set forth,
to make a term loan ( each, a “Term Loan”) to the
Company on the Term Loan Funding Date in Swiss Francs in an amount equal to such
Lender’s Ratable Share of the aggregate Term Loans requested by the Company, but
not to exceed such Lender’s Term Loan Commitment. The Company may only
request the making of Term Loans on the Effective Date, such Term Loans to be
funded on the Term Loan Funding Date. The Term Loans shall be in
increments of 5,000,000 Swiss Francs. No portion of the Term Loans which
are repaid may be reborrowed.
9
SECTION
2.02 Procedures for Term
Loans.
(a) The borrowing of the Term Loans shall be made on notice, given
not later than 10:00 A.M. Philadelphia, Pennsylvania time on the Effective
Date by the Company to the Agent, which shall give to each Lender prompt notice
thereof by telecopier. The notice of borrowing (the “Notice of Borrowing”)
shall be by telephone, confirmed immediately in writing, or telecopier in
substantially the form of Exhibit B hereto, specifying therein the
requested (i) date of such borrowing, which shall be the Term Loan Funding
Date and (ii) the aggregate amount of such borrowing. Each Lender
shall, before 1:00 P.M. (Philadelphia, Pennsylvania time) on the Term Loan
Funding Date, make available for the account of its Lending Office to the Agent
at the Agent’s Account, in same day funds, such Lender’s ratable portion of such
borrowing. After the Agent’s receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Agent will make
such funds available to the Company at the Agent’s address referred to in
Section 9.02.
(b) [Intentionally
Left Blank]
(c) The
Notice of Borrowing shall be irrevocable and binding on the Company. The
Company shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the Term Loan
Funding Date the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Term Loans to be made by such
Lender when the Term Loans, as a result of such failure, are not made on the
Term Loan Funding Date.
(d) Unless
the Agent shall have received notice from a Lender prior to the Term Loan
Funding Date that such Lender will not make available to the Agent such Lender’s
ratable portion of the Term Loans, the Agent may assume that such Lender has
made such portion available to the Agent on the Term Loan Funding Date in
accordance with subsection (a) of this Section 2.02, and the Agent
may, in reliance upon such assumption, make available to the Company on such
date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
the Company severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Company until the date such amount is
repaid to the Agent, at (i) in the case of the Company, the interest rate
applicable at the time to the Term Loans (ii) in the case of such Lender,
the cost of funds incurred by the Agent in respect of such amount. If such
Lender shall repay to the Agent such corresponding amount, such amount so repaid
shall constitute such Lender’s Term Loans for purposes of this
Agreement.
(e) The
failure of any Lender to make the Term Loans to be made by it on the Term Loan
Funding Date shall not relieve any other Lender of its obligation, if any,
hereunder to make its Term Loans on the Term Loan Funding Date, but no Lender
shall be responsible for the failure of any other Lender to make the Term Loans
to be made by such other Lender on the Term Loan Funding Date.
SECTION
2.03 [Intentionally Left Blank]
SECTION
2.04 [Intentionally Left Blank]
SECTION
2.05 [Intentionally Left Blank]
10
SECTION
2.06 Repayment.
The Company shall repay to the Agent for the ratable account of the Lenders on
the Term Loan Maturity Date the aggregate principal amount of the Term Loans
then outstanding and all accrued and unpaid interest thereon.
SECTION
2.07 Interest on Term
Loans.
(a) Scheduled
Interest. The Company shall pay interest on the unpaid principal
amount of the Term Loans owing to each Lender from the date of the making of the
Term Loans until such principal amount shall be paid in full, at a rate per
annum equal at all times during each Interest Period to the sum of (x) the
Eurocurrency Rate for such Interest Period plus (y) one and
one-half percent (1.5%), payable in arrears on the last day of such Interest
Period and on the date the Term Loans are paid in full.
(b) Default
Interest. Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a), the Agent may, and upon the request
of the Required Lenders shall, require the Company to pay interest (“Default Interest”) on
(i) the unpaid principal amount of the Term Loans payable to each Lender,
payable in arrears on the dates referred to in clause (a) above, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on the Term Loans payable to each Lender pursuant to clause (a)
above and (ii) to the fullest extent permitted by law, the amount of any
interest or other amount payable hereunder that is not paid when due, from the
date such amount shall be due until such amount shall be paid in full, payable
in arrears on the date such amount shall be paid in full and on demand, at a
rate per annum equal at all times to the Base Rate plus 3.5% per annum; provided, however, that
following acceleration of the Term Loans pursuant to Section 6.01, Default
Interest shall accrue and be payable hereunder whether or not previously
required by the Agent.
SECTION
2.08 Interest Rate
Determination.
(a) [Intentionally Left Blank]
(b) If
the Lenders owed at least 51% of the aggregate principal amount of the Term
Loans notify the Agent that (i) they are unable to obtain matching deposits
in the London inter-bank market at or about 11:00 A.M. (London time) on the
second Business Day before the making of the Term Loans in sufficient amounts to
fund their respective Term Loan or (ii) the Eurocurrency Rate for any
Interest Period will not adequately reflect the cost to such Lenders of making,
funding or maintaining their respective Term Loans for such Interest Period, the
Agent shall forthwith so notify the Company and the Lenders, whereupon the
Company will, on the last day of the then existing Interest Period therefor
prepay the Term Loans.
(c) Without
limiting the Agent and the Lender’s rights and remedies hereunder, upon the
occurrence and during the continuation of an Event of Default, unless the Agent
otherwise agrees in its sole discretion, the Interest Period for the Term Loans
shall be one (1) month.
(d) [Intentionally
Left Blank]
(e) [Intentionally
Left Blank]
(f)
If the Agent determines that reasonable means do not exist for
ascertaining the Eurocurrency Rate,
11
(i) the
Agent shall forthwith notify the Company and the Lenders that the Eurocurrency
Rate cannot be determined, and
(ii) the
Company shall, on the last day of the then existing Interest Period for the Term
Loans, prepay, without penalty, the Term Loans in full with accrued interest;
provided that if such payment is not made on the last day of an Interest Period,
such payment shall be subject to Section 9.04(c).
SECTION
2.09 [Intentionally Left Blank]
SECTION
2.10 Prepayments of Term
Loans.
The Company may, upon notice at least two Business Days’ prior to the date of
such prepayment to the Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Company shall, prepay
the outstanding principal amount of the Term Loans in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x)
each partial prepayment of Term Loans shall be in an aggregate principal amount
of not less than 5,000,000 Swiss Francs or a whole multiple thereof and
(y) the Company shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(c). Each notice of prepayment shall
be irrevocable.
SECTION
2.11 Increased
Costs.
(a) If, due to either (i) the introduction of or any change in
or in the interpretation of any law or regulation or (ii) the compliance
with any guideline or request from any central bank or other governmental
authority including, without limitation, any agency of the European Union or
similar monetary or multinational authority (whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining the Term Loans (excluding for purposes of this
Section 2.11 any such increased costs resulting from (i) Taxes or Other Taxes
(as to which Section 2.14 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Lending Office or any political subdivision thereof), then
the Company shall from time to time, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased cost;
provided, however, that before
making any such demand, each Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Lending Office if the making of such designation would avoid the need
for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to the amount of such increased cost, submitted
to the Company and the Agent by such Lender, shall be conclusive and binding for
all purposes, absent manifest error.
(b) If
any Lender determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of the Term Loans, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Company shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender’s Term Loans. A certificate as to such amounts submitted to the
Company and the Agent by such Lender shall be conclusive and binding for all
purposes, absent manifest error.
12
SECTION
2.12 Illegality.
Notwithstanding any other provision of this Agreement, if any Lender shall
notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for any Lender or
its Lending Office to perform its obligations hereunder to make or maintain the
Term Loans, the Company shall prepay, without penalty (other than, if not paid
on the last day of the Interest Period therefor, as provided in Section
9.04(c)), the Term Loans in full with accrued interest on the last day of the
Interest Period then in effect or within such earlier period as
required by law.
SECTION
2.13 Payments and
Computations.
(a) The Company shall make each payment hereunder with respect to
principal of, interest on, and other amounts relating to, the Term Loans,
irrespective of any right of counterclaim or set-off, not later than
11:00 A.M. Philadelphia, Pennsylvania time (at the Payment Office) on the
day when due in Swiss Francs to the Agent, by deposit of such funds to the
Agent’s Account in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest, fees or commissions ratably (other than amounts payable pursuant to
Sections 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their
respective Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The
Company hereby authorizes each Lender, if and to the extent payment owed to such
Lender is not made when due hereunder or under the Note held by such Lender, to
charge from time to time against any or all of the Company’s accounts with such
Lender any amount so due.
(c) All
computations of interest shall be made by the Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest is
payable. Each determination by the Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever
any payment hereunder or under the Notes shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest; provided, however, that, if
such extension would cause payment of interest on or principal of the Term Loans
to be made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
13
(e) Unless
the Agent shall have received notice from the Company prior to the date on which
any payment is due to the Lenders hereunder that the Company will not make such
payment in full, the Agent may assume that the Company has made such payment in
full to the Agent on such date and the Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent the Company
shall not have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Agent, at the cost of funds incurred by the Agent in respect of such
amount.
(f) To
the extent that the Agent receives funds for application to the amounts owing by
the Company under or in respect of this Agreement or any Note in currencies
other than the currency or currencies required to enable the Agent to distribute
funds to the Lenders in accordance with the terms of this Section 2.13, the
Agent shall be entitled to convert or exchange such funds into Dollars or into
Swiss Francs or from Dollars to Swiss Francs or from Swiss Francs to Dollars, as
the case may be, to the extent necessary to enable the Agent to distribute such
funds in accordance with the terms of this Section 2.13; provided that the
Company and each of the Lenders hereby agree that the Agent shall not be liable
or responsible for any loss, cost or expense suffered by the Company or such
Lender as a result of any conversion or exchange of currencies affected pursuant
to this Section 2.13(f) or as a result of the failure of the Agent to effect any
such conversion or exchange; and provided further that the Company agrees to
indemnify the Agent and each Lender, and hold the Agent and each Lender
harmless, for any and all losses, costs and expenses incurred by the Agent or
any Lender for any conversion or exchange of currencies (or the failure to
convert or exchange any currencies) in accordance with this Section
2.13(f).
SECTION
2.14 Taxes.
(a) Any and all payments by the Company to or for the account of any
Lender or the Agent hereunder or under the Notes or any other documents to be
delivered hereunder shall be made, in accordance with Section 2.13 or the
applicable provisions of such other documents, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes imposed on it in
lieu of net income taxes, by the jurisdiction of such Lender’s Lending Office or
any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as “Taxes”). If the
Company shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or any other documents to be delivered
hereunder to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.14) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Company shall make such deductions and (iii) the Company
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
14
(b) In
addition, the Company shall pay any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies that arise from
any payment made hereunder or under the Notes or any other documents to be
delivered hereunder or from the execution, delivery or registration of,
performing under, or otherwise with respect to, this Agreement or the Notes or
any other documents to be delivered hereunder (hereinafter referred to as “Other
Taxes”).
(c) The
Company shall indemnify each Lender and the Agent for and hold it harmless
against the full amount of Taxes or Other Taxes (including, without limitation,
taxes of any kind imposed or asserted by any jurisdiction on amounts payable
under this Section 2.14) imposed on or paid by such Lender or the Agent (as
the case may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be
made within 30 days from the date such Lender or the Agent (as the case may be)
makes written demand therefor.
(d) Within
30 days after the date of any payment of Taxes by or on behalf of the Company,
the Company shall furnish to the Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt evidencing such
payment to the extent such a receipt is issued therefor, or other written proof
of payment thereof that is reasonably satisfactory to the Agent. In the
case of any payment hereunder or under the Notes or any other documents to be
delivered hereunder by or on behalf of the Company through an account or branch
outside the United States or by or on behalf of the Company by a payor that is
not a United States person, if the Company determines that no Taxes are payable
in respect thereof, the Company shall furnish, or shall cause such payor to
furnish, to the Agent, at such address, an opinion of counsel acceptable to the
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms “United States” and
“United States
person” shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) Each
Lender organized under the laws of a jurisdiction outside the United States, on
or prior to the date of its execution and delivery of this Agreement in the case
of each Initial Lender and on the date of the Assignment and Acceptance pursuant
to which it becomes a Lender in the case of each other Lender, and from time to
time thereafter as reasonably requested in writing by the Company (but only so
long as such Lender remains lawfully able to do so), shall provide each of the
Agent and the Company with two original Internal Revenue Service
Forms W-8BEN or W-8ECI, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the form provided by
a Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however, that, if at
the date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date.
If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
Form W-8BEN or W-8ECI, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Company and shall not
be obligated to include in such form or document such confidential
information.
15
(f)
For any period
with respect to which a Lender has failed to provide the Company with the
appropriate form, certificate or other document described in
Section 2.14(e) (other than if such failure
is due to a change in law, or in the interpretation or application thereof,
occurring subsequent to the date on which a form, certificate or other document
originally was required to be provided, or if such form, certificate or other
document otherwise is not required under subsection (e) above), such Lender
shall not be entitled to indemnification under Section 2.14(a) or (c) with
respect to Taxes imposed by the United States by reason of such failure; provided, however, that should
a Lender become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Company shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
SECTION
2.15 Sharing of Payments,
Etc.
If any Lender shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of the Term Loans
owing to it (other than pursuant to Sections 2.11, 2.14 or 9.04(c)) in
excess of its Ratable Share of payments on account of the Term Loans obtained by
all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Term Loans owing to them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them; provided,
however, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (i) the amount of such Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Company agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 2.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the Company
in the amount of such participation.
SECTION
2.16 Evidence of
Debt.
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such Lender
resulting from the Term Loans owing to such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder in respect of the Term Loans. The Company agrees that
upon notice by any Lender to the Company (with a copy of such notice to the
Agent) to the effect that a Note is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge, enforcement or otherwise)
the Term Loans owing to such Lender, the Company shall promptly execute and
deliver to such Lender a Note in substantially the form of Exhibit A hereto,
payable to the order of such Lender in a principal amount equal to the Term
Loans of such Lender.
16
(b) The
Register maintained by the Agent pursuant to Section 9.07(d) shall include a
control account, and a subsidiary account for each Lender, in which accounts
(taken together) shall be recorded (i) the date and amount of the Term Loans
made hereunder, and the Interest Period applicable thereto which Interest Period
shall, except as otherwise specifically provided in Section 2.08(c) in the case
of an Event of Default, be three (3) months, (ii) the terms of each Assignment
and Acceptance delivered to and accepted by it, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder and (iv) the amount of any sum received by the
Agent from the Company hereunder and each Lender’s share thereof.
(c) Entries
made in good faith by the Agent in the Register pursuant to subsection (b)
above, and by each Lender in its account or accounts pursuant to subsection (a)
above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Company to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the
failure of the Agent or such Lender to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Company under this
Agreement.
SECTION
2.17 Use of
Proceeds.
The proceeds of the Term Loans shall be used by the Company solely to repay an
equal amount of loans in Swiss Francs made to the Company or a Subsidiary
thereof by PNC and certain other lenders under that certain Five Year Credit
Agreement, dated as of May 9, 2005, among the Company, the lenders party hereto
and Citibank, N.A., as agent.
ARTICLE
III
CONDITIONS TO EFFECTIVENESS
AND LENDING
SECTION
3.01 Conditions Precedent to
Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the “Effective
Date”) on which the following conditions precedent have been
satisfied:
(a) There
shall have occurred no Material Adverse Change since December 31,
2009.
(b) There
shall exist no action, suit, investigation, litigation or proceeding affecting
the Company or any of its Subsidiaries pending or threatened before any court,
governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the consummation of
the transactions contemplated hereby.
17
(c) Nothing
shall have come to the attention of the Lenders during the course of their due
diligence investigation to lead them to believe that any information provided to
the Lenders prior to such date was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the management,
records, books of account, contracts and properties of the Company and its
Subsidiaries as they shall have requested.
(d) All
governmental and third party consents and approvals necessary in connection with
the transactions contemplated hereby shall have been obtained (without the
imposition of any conditions that are not acceptable to the Lenders) and shall
remain in effect, and no law or regulation shall be applicable in the reasonable
judgment of the Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(e) The
Company shall have notified each Lender and the Agent in writing as to the
proposed Effective Date.
(f) The
Company shall have paid all accrued fees and expenses of the Agent and the
Lenders (including the accrued fees and expenses of counsel to the
Agent).
(g) On
the Effective Date, the following statements shall be true and the Agent shall
have received for the account of each Lender a certificate signed by a duly
authorized officer of the Company, dated the Effective Date, stating
that:
(i) The
representations and warranties contained in Section 4.01 are correct on and
as of the Effective Date, and
(ii) No
event has occurred and is continuing that constitutes a Default.
(h) The
Agent shall have received on or before the Effective Date the following, each
dated such day, in form and substance satisfactory to the Agent and (except for
the Notes) in sufficient copies for each Lender:
(i) The
Notes to the order of the Lenders to the extent requested by any Lender pursuant
to Section 2.16.
(ii) Certified
copies of the resolutions of the Board of Directors of the Company approving
this Agreement and the Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement and the Notes.
(iii) A
certificate of the Secretary or an Assistant Secretary of the Company certifying
the names and true signatures of the officers of the Company authorized to sign
this Agreement and the Notes and the other documents to be delivered
hereunder.
18
(iv) A
favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel for the Company,
substantially in the form of Exhibit D hereto and as to such other matters
as any Lender through the Agent may reasonably request.
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES
SECTION
4.01 Representations and
Warranties of the Company.
The Company represents and warrants as follows:
(a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
(b) The
execution, delivery and performance by the Company of this Agreement and the
Notes to be delivered by it, and the consummation of the transactions
contemplated hereby, are within the Company’s corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Company’s charter or by-laws or (ii) any law or contractual restriction
binding on or affecting the Company.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is
required for the due execution, delivery and performance by the Company of this
Agreement or the Notes to be delivered by it.
(d) This
Agreement has been, and each of the Notes to be delivered by it when delivered
hereunder will have been, duly executed and delivered by the Company. This
Agreement is, and each of the Notes when delivered hereunder will be, the legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with their respective terms, except as the enforceability thereof may
be limited by the effect of any applicable bankruptcy, insolvency or similar
laws affecting creditors’ rights generally and by general principles of
equity.
(e) The
Consolidated balance sheet of the Company and its Subsidiaries as at
December 31, 2009, and the related Consolidated statements of income and
cash flows of the Company and its Subsidiaries for the fiscal year then ended,
which include an opinion of PricewaterhouseCoopers LLC, independent public
accountants, copies of which have been furnished to each Lender, fairly present,
the Consolidated financial condition of the Company and its Subsidiaries as at
such date and the Consolidated results of the operations of the Company and its
Subsidiaries for the periods ended on such date, all in accordance with
generally accepted accounting principles consistently applied. Since
December 31, 2009, there has been no Material Adverse Change.
(f)
There is no pending or, to the knowledge of the Company, threatened
action, suit, investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting the Company or any of its
Subsidiaries before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby.
19
(g) The
Company is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve System), and no proceeds
of the Term Loans will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock.
(h) The
Company is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940,
as amended.
(i)
No other information, exhibit or report furnished by or on
behalf of the Company to the Agent or any Lender in connection with the
negotiation and syndication of this Agreement or pursuant to the terms of this
Agreement contained any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements made therein not
misleading.
(j)
The Company is, individually and together with its
Subsidiaries, Solvent.
ARTICLE
V
COVENANTS OF THE
COMPANY
SECTION
5.01 Affirmative
Covenants.
So long as any Term Loan shall remain unpaid or any Lender shall have any Term
Loan Commitment hereunder, the Company will:
(a) Compliance with Laws,
Etc. Comply, and cause each of its Subsidiaries to comply, in all
material respects, with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA, Environmental
Laws and the Patriot Act.
(b) Payment of Taxes,
Etc. Pay and discharge, and cause each of its Subsidiaries to pay
and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its
property and (ii) except to the extent such breach would not cause an Event
of Default under Section 6.01(d) hereof or have a Material Adverse Effect, all
other lawful claims; provided, however, that neither
the Company nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.
(c) Maintenance of
Insurance. Maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Company or such Subsidiary operates; provided, however, that the
Company and its Subsidiaries may self-insure to the same extent as other
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Company or such Subsidiary operates and to the
extent consistent with prudent business practice.
20
(d) Preservation of Corporate
Existence, Etc. Preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate existence, rights (charter
and statutory) and franchises; provided, however, that the
Company and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(b) and provided further that neither
the Company nor any of its Subsidiaries shall be required to maintain corporate
existence of any Subsidiary or preserve any right or franchise if the Board of
Directors of the Company or such Subsidiary shall determine that the maintenance
or preservation thereof is no longer desirable in the conduct of the business of
the Company or such Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to the Company, such Subsidiary or
the Lenders.
(e) Visitation
Rights. At any reasonable time and from time to time, permit the
Agent or any of the Lenders or any agents or representatives thereof, to examine
and make copies of and abstracts from the records and books of account of, and
visit the properties of, the Company and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Company and any of its Subsidiaries
with any of their officers or directors and with their independent certified
public accountants.
(f)
Keeping of
Books. Keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall be made of
all financial transactions and the assets and business of the Company and each
such Subsidiary in accordance with generally accepted accounting principles in
effect from time to time.
(g) Maintenance of Properties,
Etc. Maintain and preserve, and cause each of its Subsidiaries to
maintain and preserve, all of its properties that are used or useful in the
conduct of its business in good working order and condition, ordinary wear and
tear excepted.
(h) Transactions with
Affiliates. Conduct, and cause each of its Subsidiaries to conduct,
all transactions otherwise permitted under this Agreement with any of their
Affiliates on terms that are fair and reasonable and no less favorable to the
Company or such Subsidiary in any material respect than it would obtain in a
comparable arm’s-length transaction with a Person not an Affiliate.
(i) Reporting
Requirements. Furnish to the Lenders:
(i) as
soon as available and in any event within 45 days after the end of each of the
first three quarters of each fiscal year of the Company, the Consolidated
balance sheet of the Company and its Subsidiaries as of the end of such quarter
and Consolidated statements of income and cash flows of the Company and its
Subsidiaries for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer, treasurer or controller of
the Company as having been prepared in accordance with generally accepted
accounting principles and certificates of the chief financial officer, treasurer
or controller of the Company as to compliance with the terms of this Agreement
and setting forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to
GAAP;
21
(ii) as
soon as available and in any event within 90 days after the end of each fiscal
year of the Company, a copy of the annual audit report for such year for the
Company and its Subsidiaries, containing the Consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Company and its Subsidiaries for such
fiscal year, in each case accompanied by an opinion acceptable to the Required
Lenders by PricewaterhouseCoopers LLC or other independent public accountants
acceptable to the Required Lenders and certificates of the chief financial
officer, treasurer or controller of the Company as to compliance with the terms
of this Agreement and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03, provided that in the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(iii) as
soon as possible and in any event within five days after the occurrence of each
Default continuing on the date of such statement, a statement of the chief
financial officer, treasurer or controller of the Company setting forth details
of such Default and the action that the Company has taken and proposes to take
with respect thereto;
(iv) promptly
after the sending or filing thereof, copies of all reports that the Company
sends to any of its securityholders, and copies of all reports and registration
statements that the Company or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(v) promptly
after the commencement thereof, notice of all actions and proceedings before any
court, governmental agency or arbitrator affecting the Company or any of its
Subsidiaries of the type described in Section 4.01(f); and
(vi) such
other information respecting the Company or any of its Subsidiaries as any
Lender through the Agent may from time to time reasonably request.
(j) Subsequent Credit
Terms. Notify the Agent in writing prior to entering into any new
credit arrangement or any amendment or modification of any existing credit
arrangement, in each case providing debt financing of $10,000,000 (or the
Equivalent thereof if the financing is in a currency other than Dollars) or
more, pursuant to which the Company or any of its Subsidiaries agree to
affirmative or negative covenants (including without limitation financial
covenants and limitations on Debt and Liens) which in any such case are less
favorable in any material respect to the Company or any of its Subsidiaries than
those contained in this Agreement (any such less favorable provisions, the
“New
Provisions”). Effective upon the Company or any of its
Subsidiaries’ entry into any such agreement, amendment or modification, this
Agreement, at the option of the Required Lenders in their sole discretion, shall
be and shall be deemed to be immediately amended to add the New Provisions;
provided, however, that the foregoing shall not be applicable to or be deemed to
affect any provision of this Agreement if any such agreement, amendment or
modification is more favorable to the Company or any of its Subsidiaries.
The Company hereby agrees promptly to execute and deliver any and all such
amendments, documents and instruments and to take all such further actions as
the Agent may, in its sole discretion, deem necessary or appropriate to
effectuate the provisions of this Section 5.01(j).
22
SECTION
5.02 Negative
Covenants.
So long as any Term Loan shall remain unpaid or any Lender shall have any Term
Loan Commitment hereunder, the Company will not:
(a) Liens, Etc.
Create or suffer to exist, or permit any of its Subsidiaries to create or suffer
to exist, any Lien on or with respect to any of its properties, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, other than:
(i) Permitted
Liens,
(ii) purchase
money Liens upon or in any real property or equipment acquired or held by the
Company or any Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt incurred solely
for the purpose of financing the acquisition of such property or equipment, or
Liens existing on such property or equipment at the time of its acquisition
(other than any such Liens created in contemplation of such acquisition that
were not incurred to finance the acquisition of such property) or extensions,
renewals or replacements of any of the foregoing for the same or a lesser
amount, provided, however, that no such
Lien shall extend to or cover any properties of any character other than the
real property or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not theretofore subject to
the Lien being extended, renewed or replaced, provided further that the
aggregate principal amount of the indebtedness secured by the Liens referred to
in this clause (ii) shall not exceed the amount specified therefor in
Section 5.02(d)(iii) at any time outstanding,
(iii) the
Liens existing on the Effective Date and described on Schedule 5.02(a)
hereto,
(iv) Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Subsidiary of the Company or becomes a
Subsidiary of the Company; provided that such
Liens were not created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those of the Person so
merged into or consolidated with the Company or such Subsidiary or acquired by
the Company or such Subsidiary,
(v) other
Liens securing Debt in an aggregate principal amount not to exceed the amount
specified therefor in Section 5.02(d)(iv) at any time outstanding,
and
23
(vi) the
replacement, extension or renewal of any Lien permitted by clause (iii) or
(iv) above upon or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the amount or change in
any direct or contingent obligor) of the Debt secured thereby.
(b) Mergers,
Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit any of its Subsidiaries to do so,
except that any Subsidiary of the Company may merge or consolidate with or into,
or dispose of assets to, any other Subsidiary of the Company, and except that
any Subsidiary of the Company may merge into or dispose of assets to the
Company, provided, in each
case, that no Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.
(c) Accounting
Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in accounting policies or reporting practices, except
as required or permitted by generally accepted accounting
principles.
(d) Subsidiary
Debt. Permit any of its Subsidiaries to create or suffer to
exist, any Debt other than:
(i) Debt
owed to the Company or to a wholly owned Subsidiary of the Company or Debt under
this Agreement or the Notes,
(ii) Debt
existing on the Effective Date and described on Schedule 5.02(d) hereto
(the “Existing
Debt”), and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, the Existing Debt, provided that the
principal amount of such Existing Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such extension,
refunding or refinancing, and the direct and contingent obligors therefor shall
not be changed, as a result of or in connection with such extension, refunding
or refinancing,
(iii) Debt
secured by Liens permitted by Section 5.02(a)(ii) aggregating for all of
the Company’s Subsidiaries not more than $50,000,000 at any one time
outstanding,
(iv) Debt
that, in aggregate with all Debt secured by Liens permitted by Section
5.02(a)(v), does not exceed an amount equal to 15% of Consolidated net worth of
the Company and its Subsidiaries at any one time outstanding,
(v) endorsement
of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business.
(e) Change in Nature of
Business. Make, or permit any of its Subsidiaries to make, any
material change in the nature of the business as carried on by the Company and
its Subsidiaries at the date hereof.
24
SECTION
5.03 Financial
Covenants. So long as any Term Loan shall remain unpaid or any
Lender shall have any Term Loan Commitment hereunder, the Company
will:
(a) Leverage
Ratio. Maintain a ratio of Consolidated Debt for Borrowed
Money to the sum of Consolidated Debt for Borrowed Money plus Consolidated net
worth of the Company and its Subsidiaries of not greater than 0.55 to
1.00.
(b) Interest Coverage
Ratio. Maintain a ratio of Consolidated EBITDA for the period
of four fiscal quarters then ended of the Company and its Subsidiaries to the
sum of interest payable on, and amortization of debt discount in respect of, all
Debt during such period by the Company and its Subsidiaries of not less than 3.5
to 1.0.
ARTICLE
VI
EVENTS OF
DEFAULT
SECTION
6.01 Events of
Default. If any of the following events (“Events of
Default”) shall occur and be continuing:
(a) The
Company shall fail to pay any principal of any Term Loan when the same becomes
due and payable; or the Company shall fail to pay any interest on any Term Loan
or make any other payment of fees or other amounts payable under this Agreement
or any Note within five Business Days after the same becomes due and payable;
or
(b) Any
representation or warranty made by the Company herein or by the Company (or any
of its officers) in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c) (i) The
Company shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d), (e), (h) or (i), 5.02 or 5.03, or
(ii) the Company shall fail to perform or observe any other term, covenant
or agreement contained in this Agreement on its part to be performed or observed
if such failure shall remain unremedied for 10 days after written notice thereof
shall have been given to the Company by the Agent or any Lender; or
(d) The
Company or any of its Subsidiaries shall fail to pay any principal of or premium
or interest on any Debt that is outstanding in a principal or notional amount of
at least $25,000,000 in the aggregate (but excluding Debt outstanding hereunder)
of the Company or such Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof;
or
25
(e) The
Company or any of its Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Company or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period of 30
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Company or any of its
Subsidiaries shall take any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Judgments
or orders for the payment of money in excess of $25,000,000 in the aggregate
shall be rendered against the Company or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) (i) Any
Person or two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly,
of Voting Stock of the Company (or other securities convertible into such Voting
Stock) representing 30% or more of the combined voting power of all Voting Stock
of the Company; or (ii) during any period of up to 24 consecutive months,
commencing after the date of this Agreement, individuals who at the beginning of
such 24-month period were directors of the Company shall cease for any reason
(other than due to death or disability) to constitute a majority of the board of
directors of the Company (except to the extent that individuals who at the
beginning of such 24-month period were replaced by individuals (x) elected
by a majority of the remaining members of the board of directors of the Company
or (y) nominated for election by a majority of the remaining members of the
board of directors of the Company and thereafter elected as directors by the
shareholders of the Company); or
(h) The
Company or any of its ERISA Affiliates shall incur, or shall be reasonably
likely to incur liability in excess of $25,000,000 in the aggregate as a result
of one or more of the following: (i) the occurrence of any ERISA
Event; (ii) the partial or complete withdrawal of the Company or any of its
ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan;
26
then, and
in any such event, the Agent (i) shall at the request, or may with the consent,
of the Required Lenders, by notice to the Company, if prior to the Term Loan
Funding Date, declare the obligation of each Lender to make Term Loans to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Company, declare the Term Loans, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the Term
Loans, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Company; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Company under the Federal Bankruptcy Code, (A) if prior to the Term Loan Funding
Date, the obligation of each Lender to make Term Loans shall automatically be
terminated and (B) the Term Loans, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Company.
ARTICLE
VII
[INTENTIONALLY LEFT
BLANK]
ARTICLE
VIII
THE
AGENT
SECTION
8.01 Authorization and
Action. Each Lender hereby appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to this Agreement or applicable
law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Company pursuant to the terms of this
Agreement.
SECTION
8.02 Agent’s Reliance,
Etc. Neither the Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement, except for its or
their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agent: (i) may treat
the Lender
that made any Term Loan as the holder of the Debt resulting therefrom until the
Agent receives and accepts an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.07; (ii) may consult with legal counsel (including counsel
for the Company), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall
not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to
the performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of the Company or the existence at any
time of any Default or to inspect the property (including the books and records)
of the Company; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier
or telegram) believed by it to be genuine and signed or sent by the proper party
or parties.
27
SECTION
8.03 PNC
and Affiliates. With respect to its Term Loan Commitment, the
Term Loans made by it and the Note issued to it, PNC shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though it were not the Agent; and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated, include PNC in its individual
capacity. PNC and its Affiliates may accept deposits from, lend money
to, act as trustee under indentures of, accept investment banking engagements
from and generally engage in any kind of business with, the Company, any of its
Subsidiaries and any Person who may do business with or own securities of the
Company or any such Subsidiary, all as if PNC were not the Agent and without any
duty to account therefor to the Lenders. The Agent shall have no duty
to disclose any information obtained or received by it or any of its Affiliates
relating to the Company or any of its Subsidiaries to the extent such
information was obtained or received in any capacity other than as
Agent.
SECTION
8.04 Lender
Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the 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 decisions in taking or
not taking action under this Agreement.
SECTION
8.05 Indemnification. (a) Each
Lender severally agrees to indemnify the Agent (to the extent not reimbursed by
the Company) from and against such Lender’s Ratable Share of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent in its capacity as such,
in any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement (collectively, the “Indemnified Costs”),
provided that
no Lender shall be liable for any portion of the Indemnified Costs resulting
from the Agent’s gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
reasonable counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Company. In the case of any investigation, litigation or proceeding
giving rise to any Indemnified Costs, this Section 8.05 applies whether any
such investigation, litigation or proceeding is brought by the Agent, any Lender
or a third party.
28
(b) [Intentionally
Left Blank]
(c) The
failure of any Lender to reimburse the Agent promptly upon demand for its
ratable share of any amount required to be paid by the Lenders to the Agent as
provided herein shall not relieve any other Lender of its obligation hereunder
to reimburse the Agent for its ratable share of such amount, but no Lender shall
be responsible for the failure of any other Lender to reimburse the Agent for
such other Lender’s ratable share of such amount. Without prejudice
to the survival of any other agreement of any Lender hereunder, the agreement
and obligations of each Lender contained in this Section 8.05 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the Notes. The Agent agrees to return to the Lenders their
respective ratable shares of any amounts paid under this Section 8.05 that are
subsequently reimbursed by the Company.
SECTION
8.06 Successor
Agent. The
Agent may resign at any time by giving written notice thereof to the Lenders and
the Company and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Agent’s giving of
notice of resignation or the Required Lenders’ removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this
Agreement. After any retiring Agent’s resignation or removal
hereunder as Agent, the provisions of this Article VIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
ARTICLE
IX
MISCELLANEOUS
SECTION
9.01 Amendments,
Etc. No amendment or waiver of any provision of this Agreement
or the Notes, nor consent to any departure by the Company therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided, however, that (a) no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (i) waive any of the
conditions specified in Section 3.01, (ii) change the percentage the
aggregate unpaid principal amount of the Term Loans, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder, or (iii) amend this Section 9.01; and (b) no amendment,
waiver or consent shall, unless in writing and signed by the Required Lenders
and each Lender that is directly affected by such amendment, waiver or consent
(i) increase the Term Loans of such Lender, (ii) reduce the principal of,
or interest on, the Term Loans or any fees or other amounts payable hereunder to
such Lender or (iii) postpone any date fixed for any payment of principal
of, or interest on, the Term Loans or any fees or other amounts payable
hereunder to such Lender; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note.
29
SECTION
9.02 Notices. All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by electronic transmission, telecopy
transmission or posting on a secured web site), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or three days after being deposited in the mail, postage prepaid, or
the next Business Day if sent by reputable overnight courier, postage prepaid,
for delivery on the next Business Day, or, in the case of telecopy notice, when
received during normal business hours, or in the case of electronic
transmission, when received, and in the case of posting on a secured web site,
upon receipt of (i) notice of such posting and (ii) rights to access such web
site, addressed as follows in the case of the Company and the Agent, and as set
forth in Schedule I or in its Assignment and Acceptance in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Notes:
|
If
to the Company:
|
Dentsply
International Inc.
|
|
|
Susquehanna
Commerce Center
|
|
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
|
Attention: Secretary
with a copy to Treasurer
|
|
|
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
If
to the Agent:
|
PNC
Bank, National Association
|
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
|
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
|
SECTION
9.03 No
Waiver; Remedies. No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right hereunder or under any
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION
9.04 Costs
and Expenses. (a) The Company agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the
reasonable fees and expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and responsibilities under
this Agreement. The Company further agrees to pay on demand all costs
and expenses of the Agent and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 9.04(a).
30
(b) The
Company agrees to indemnify and hold harmless the Agent and each Lender and each
of their Affiliates and their officers, directors, employees, agents and
advisors (each, an “Indemnified Party”)
from and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this
Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Term Loans, (ii) the actual or alleged presence
of Hazardous Materials on any property of the Company or any of its Subsidiaries
or any Environmental Action relating in any way to the Company or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or
willful misconduct or (iii) any civil penalty or fine assessed by OFAC against,
and all reasonable costs and expenses (including counsel fees and disbursements)
incurred in connection with defense thereof, by the Agent or any Lender as a
result of conduct of the Company that violates a sanction enforced by
OFAC. In the case of an investigation, litigation or other proceeding
to which the indemnity in this Section 9.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by the Company, its directors, equityholders or creditors or an Indemnified
Party or any other Person, whether or not any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Company also agrees not to assert any claim for
special, indirect, consequential or punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, arising out of or
otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Term
Loans.
(c) If
any payment of principal of the Term Loans is made by the Company to or for the
account of a Lender (i) other than on the last day of the Interest Period
therefor, as a result of a payment pursuant to Section 2.08, 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or by an Eligible Assignee to a Lender other than on the last
day of the Interest Period therefor upon an assignment of rights and obligations
under this Agreement pursuant to Section 9.07 as a result of a demand by
the Company pursuant to Section 9.07(a) or (ii) as a result of a payment
pursuant to Section 2.08, 2.10 or 2.12, the Company shall, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain the Term Loans.
31
(d) Without
prejudice to the survival of any other agreement of the Company hereunder, the
agreements and obligations of the Company contained in Sections 2.11, 2.14
and 9.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under the Notes.
SECTION
9.05 Right
of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the
Agent to declare the Term Loans due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender or such Affiliate to or for the credit or the account of the
Company against any and all of the obligations of the Company now or hereafter
existing under this Agreement and the Note held by such Lender, whether or not
such Lender shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees
promptly to notify the Company after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its Affiliates may
have.
SECTION
9.06 Binding Effect. This
Agreement shall become effective (other than Section 2.01, which shall only
become effective upon satisfaction of the conditions precedent set forth in
Section 3.01) when it shall have been executed by the Company and the Agent
and when the Agent shall have been notified by each Initial Lender that such
Initial Lender has executed it and thereafter shall be binding upon and inure to
the benefit of the Company, the Agent and each Lender and their respective
successors and assigns, except that the Company shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
32
SECTION
9.07 Assignments and
Participations. (a) Each Lender may and, if
demanded by the Company (so long as no Default shall have occurred and be
continuing and following a demand by such Lender pursuant to Section 2.11
or 2.14) upon at least five Business Days’ notice to such Lender and the Agent,
will assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Term Loans and the Note or Notes held by it); provided, however, that
(i) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an assignment of all of a Lender’s
rights and obligations under this Agreement, the amount of the Term Loans of the
assigning Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than 5,000,000 Swiss Francs or an integral multiple of
1,000,000 Swiss Francs in excess thereof and unless the Company and the Agent
otherwise agree (ii) each such assignment shall be to an Eligible Assignee,
(iii) each such assignment made as a result of a demand by the Company pursuant
to this Section 9.07(a) shall be arranged by the Company after consultation
with the Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (iv) no Lender
shall be obligated to make any such assignment as a result of a demand by the
Company pursuant to this Section 9.07(a) unless and until such Lender shall
have received one or more payments from the Company or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Term Loans owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other
amounts payable to such Lender under this Agreement, and (v) the parties to
each such assignment shall execute and deliver to the Agent, for its acceptance
and recording in the Register, an Assignment and Acceptance, together with any
Note subject to such assignment and a processing and recordation fee of $3,500
payable by the parties to each such assignment, provided, however, that in the
case of each assignment made as a result of a demand by the Company, such
recordation fee shall be payable by the Company except that no such recordation
fee shall be payable in the case of an assignment made at the request of the
Company to an Eligible Assignee that is an existing Lender. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(other than its rights under Sections 2.11, 2.14 and 9.04 to the extent any
claim thereunder relates to an event arising prior to such assignment) and be
released from its obligations (other than its obligations under Section 8.05 to
the extent any claim thereunder relates to an event arising prior to such
assignment) under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By
executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the performance or
observance by the Company of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the Agent,
such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
33
(c) Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender and
an assignee representing that it is an Eligible Assignee, together with any Note
or Notes subject to such assignment, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company.
(d) The
Agent shall maintain at its address referred to in Section 9.02 a copy of
each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and principal
amount of the Term Loans owing to each Lender from time to time (the “Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Company, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the
Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each
Lender may sell participations to one or more banks or other entities (other
than the Company or any of its Affiliates) in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of the Term Loans owing to it and any Note or Notes held by it);
provided, however, that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement,
(iv) the Company, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Company therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(f) Any
Lender may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 9.07, disclose to the
assignee or participant or proposed assignee or participant, any information
relating to the Company furnished to such Lender by or on behalf of the Company;
provided that,
prior to any such disclosure, the assignee or participant or proposed assignee
or participant shall agree to preserve the confidentiality of any Company
Information relating to the Company received by it from such
Lender.
34
(g) Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
create a security interest in all or any portion of its rights under this
Agreement (including, without limitation, the Term Loans owing to it and any
Note or Notes held by it) in favor of any Federal Reserve Bank in accordance
with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION
9.08 Confidentiality. Neither
the Agent nor any Lender may disclose to any Person any confidential,
proprietary or non-public information of the Company furnished to the Agent or
the Lenders by the Company (such information being referred to collectively
herein as the “Company
Information”), except that each of the Agent and each of the Lenders may
disclose Company Information (i) to its and its affiliates’ employees,
officers, directors, agents and advisors (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of
such Company Information and instructed to keep such Company Information
confidential on substantially the same terms as provided herein), (ii) to
the extent requested by any regulatory authority, (iii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (iv) to any other party to this Agreement, (v) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder,
(vi) subject to an agreement containing provisions substantially the same
as those of this Section 9.08, to any assignee or participant or prospective
assignee or participant, (vii) to the extent such Company Information (A) is or
becomes generally available to the public on a non-confidential basis other than
as a result of a breach of this Section 9.08 by the Agent or such Lender, or (B)
is or becomes available to the Agent or such Lender on a nonconfidential basis
from a source other than the Company and (viii) with the consent of the
Company.
SECTION
9.09 [Intentionally Left Blank]
SECTION
9.10 Governing
Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the Commonwealth of
Pennsylvania.
SECTION
9.11 Execution in
Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION
9.12 Judgment. (a) If
for the purposes of obtaining judgment in any court it is necessary to convert a
sum due hereunder in Dollars into another currency, the parties hereto agree, to
the fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Agent could purchase Dollars with such other currency on the Business Day
preceding that on which final judgment is given.
35
(b) If
for the purposes of obtaining judgment in any court it is necessary to convert a
sum due hereunder in Swiss Francs into Dollars, the parties agree to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Agent could
purchase Swiss Francs with Dollars on the Business Day preceding that on which
final judgment is given.
(c) The
obligation of the Company in respect of any sum due from it in any currency (the
“Primary
Currency”) to any Lender or the Agent hereunder shall, notwithstanding
any judgment in any other currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Agent (as the case may be),
of any sum adjudged to be so due in such other currency, such Lender or the
Agent (as the case may be) may in accordance with normal banking procedures
purchase the applicable Primary Currency with such other currency; if the amount
of the applicable Primary Currency so purchased is less than such sum due to
such Lender or the Agent (as the case may be) in the applicable Primary
Currency, the Company agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the applicable Primary Currency so
purchased exceeds such sum due to any Lender or the Agent (as the case may be)
in the applicable Primary Currency, such Lender or the Agent (as the case may
be) agrees to remit to the Company such excess.
SECTION
9.13 Jurisdiction,
Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the courts of the Commonwealth of Pennsylvania, the
courts of the United States of America for the Eastern District of Pennsylvania,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such Commonwealth of Pennsylvania
court or, to the extent permitted by law, in such federal court. The
Company hereby further irrevocably consents to the service of process in any
action or proceeding in such courts by the mailing thereof by any parties hereto
by registered or certified mail, postage prepaid, to the Company at its address
specified pursuant to Section 9.02. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each
of the parties hereto irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the Notes in any Commonwealth of
Pennsylvania or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION
9.14 Substitution of
Currency. If a change in Swiss Francs occurs pursuant to any applicable
law, rule or regulation of any governmental, monetary or multi-national
authority, this Agreement (including, without limitation, the definition of
Eurocurrency Rate) will be amended to the extent determined by the Agent (acting
reasonably and in consultation with the Company) to be necessary to reflect the
change in currency and to put the Lenders and the Company in the same position,
so far as possible, that they would have been in if no change in Swiss Francs
had occurred.
36
SECTION
9.15 [Intentionally Left Blank].
SECTION
9.16 Patriot Act
Notice. Each Lender and the Agent (for itself and not on
behalf of any Lender) hereby notifies the Company that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Company, which information includes the name and
address of the Company and other information that will allow such Lender or the
Agent, as applicable, to identify the Company in accordance with the Patriot
Act. The Company shall provide such information and take such actions
as are reasonably requested by the Agent or any Lenders in order to assist the
Agent and the Lenders in maintaining compliance with the Patriot Act or any
similar “know your customer” or other similar checks under all applicable laws
and regulations.
SECTION
9.17 Waiver
of Jury Trial. Each of the Company, the Agent and the Lenders
hereby irrevocably waives all right to trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or the Notes or the actions of the Agent or any
Lender in the negotiation, administration, performance or enforcement
thereof.
37
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
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DENTSPLY
INTERNATIONAL INC.
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By
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Senior
Vice President and Chief
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Financial
Officer
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By
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Treasurer
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PNC
BANK, NATIONAL ASSOCIATION,
as
Agent
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By
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Title:
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Initial
Lenders
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PNC
BANK, NATIONAL ASSOCIATION,
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By
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Title:
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SCHEDULE
I
DENTSPLY
INTERNATIONAL INC.
TWO YEAR
CREDIT AGREEMENT
LENDING
OFFICES
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Name of Initial Lender
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Term Loan Commitment
|
Lending Office
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PNC
Bank, National Association
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65,000,000
Swiss
Francs
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
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EXHIBIT
A - FORM OF
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TERM
LOAN
|
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PROMISSORY
NOTE
|
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_______________ Swiss
Francs
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Dated: February
24, 2010
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FOR VALUE
RECEIVED, the undersigned, DENTSPLY INTERNATIONAL INC., a Delaware corporation
(the “Company”), HEREBY
PROMISES TO PAY to the order of _________________________ (the “Lender”) on the Term
Loan Maturity Date (as defined in the Credit Agreement referred to below) the
principal sum of [insert Term
Loan Commitment] Swiss Francs pursuant to the Two Year Credit Agreement
dated as of February 24, 2010 among the Company and the lenders parties thereto,
and PNC Bank, National Association, as Agent for the Lenders (as amended or
modified from time to time, the “Credit Agreement”;
the terms defined therein being used herein as therein defined).
The
Company promises to pay interest on the unpaid principal amount of the Term
Loans from the Term Loan Funding Date until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in the
Credit Agreement.
Both
principal and interest in respect of the Term Loans are payable in Swiss Francs
at the Payment Office in same day funds. Each Term Loan owing to the
Lender by the Company pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This
Promissory Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
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DENTSPLY
INTERNATIONAL INC.
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By
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||
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Title:
|
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TERM
LOANS AND PAYMENTS OF PRINCIPAL
|
Date
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Amount of
Term Loans
|
Amount of
Principal Paid
or Prepaid
|
Unpaid Principal
Balance
|
Notation
Made By
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||||
2
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EXHIBIT
B - FORM OF NOTICE OF
|
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BORROWING
|
PNC Bank
National Association, as Agent
for
the Lenders parties
to
the Credit Agreement
referred
to below
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
February
24, 2010
| Attention: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
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|
T: ▇▇▇-▇▇▇-▇▇▇▇;
F: ▇▇▇-▇▇▇-▇▇▇▇
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and
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||
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
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T: ▇▇▇-▇▇▇-▇▇▇▇;
F: ▇▇▇-▇▇▇-▇▇▇▇
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Ladies
and Gentlemen:
The
undersigned, DENTSPLY INTERNATIONAL INC., refers to the Two Year Credit
Agreement, dated as of February 24, 2010 (as amended or modified from time to
time, the “Credit
Agreement”, the terms defined therein being used herein as therein
defined), among the undersigned, certain Lenders parties thereto and PNC Bank
National Association, as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a borrowing of Term Loans under the Credit
Agreement, and in that connection sets forth below the information relating to
such borrowing (the “Proposed Borrowing”)
as required by Section 2.02(a) of the Credit Agreement:
(i)
The Business Day of the Proposed Borrowing is March 1, 2010.
(ii) The
aggregate amount of the Proposed Borrowing is 65,000,000 Swiss
Francs.
(iii) The
initial Interest Period for the Proposed Borrowing is three months.
The
undersigned hereby certifies that the following statements are true on the date
hereof, and will be true on the date of the Proposed Borrowing:
(A) the
representations and warranties contained in Section 4.01 of the Credit
Agreement are correct, before and after giving effect to the Proposed Borrowing
and to the application of the proceeds therefrom, as though made on and as of
such date; and
(B) no
event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes a
Default.
|
Very
truly yours,
|
||
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DENTSPLY
INTERNATIONAL INC.
|
||
|
By
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||
|
Title:
|
||
2
|
EXHIBIT
C - FORM OF
|
|
|
ASSIGNMENT
AND ACCEPTANCE
|
Reference
is made to the Two Year Credit Agreement dated as of February 24, 2010 (as
amended or modified from time to time, the “Credit Agreement”)
among Dentsply International Inc., a Delaware corporation (the “Company”), the
Lenders (as defined in the Credit Agreement), and PNC Bank National Association,
as agent for the Lenders (the “Agent”). Terms
defined in the Credit Agreement are used herein with the same
meaning.
The
“Assignor” and the “Assignee” referred to on Schedule I hereto agree as
follows:
1. The
Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, an interest in and to the Assignor’s
rights and obligations under the Credit Agreement as of the date hereof equal to
the percentage interest specified on Schedule 1 hereto of all outstanding rights
and obligations under the Credit Agreement on the date hereof. After
giving effect to such sale and assignment, the amount of the Term Loans owing to
the Assignee will be as set forth on Schedule 1 hereto.
2. The
Assignor (i) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest is
free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, the Credit
Agreement or any other instrument or document furnished pursuant thereto;
(iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company or the performance or
observance by the Company of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto; and
(iv) attaches the Note[, if any,] held by the Assignor [and requests that
the Agent exchange such Note for a new Note payable to the order of the Assignee
in an amount equal to the Term Loans purchased by the Assignee pursuant hereto
or new Notes payable to the order of [the Assignee in an amount equal to the
Term Loans purchased by the Assignee pursuant hereto and] the Assignor in an
amount equal to the Term Loans retained by the Assignor under the Credit
Agreement[, respectively,] as specified on Schedule 1 hereto].
3. The
Assignee (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee;
(iv) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement as
are delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and
(vi) attaches any U.S. Internal Revenue Service forms required under
Section 2.14 of the Credit Agreement.
4. Following
the execution of this Assignment and Acceptance, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date
for this Assignment and Acceptance (the “Effective Date”)
shall be the date of acceptance hereof by the Agent, unless otherwise specified
on Schedule 1 hereto.
5. Upon
such acceptance and recording by the Agent, as of the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon
such acceptance and recording by the Agent, from and after the Effective Date,
the Agent shall make all payments under the Credit Agreement and the Notes in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This
Assignment and Acceptance shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania.
8. This
Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN
WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
2
Schedule
1
to
Assignment
and Acceptance
|
Percentage
interest assigned:
|
_____%
|
|
|
Assignee’s
Term Loans Outstanding:
|
______
Swiss Francs
|
|
|
Aggregate
outstanding principal amount of Term Loans
|
||
|
assigned:
|
______
Swiss Francs
|
|
|
Principal
amount of Note payable to Assignee:
|
______
Swiss Francs
|
|
|
Principal
amount of Note payable to Assignor:
|
______
Swiss Francs
|
|
|
Effective
Date*: _______________,
201_
|
|
[NAME
OF ASSIGNOR], as Assignor
|
||
|
By
|
||
|
Title:
|
||
|
Dated: _______________,
201_
|
||
|
[NAME
OF ASSIGNEE], as Assignee
|
||
|
By
|
||
|
Title:
|
||
|
Dated: _______________,
201_
|
||
|
Lending
Office:
|
||
|
[Address]
|
||
|
*
|
This
date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the
Agent.
|
3
|
Accepted
[and Approved]**
this
|
||
|
__________
day of _______________, 201_
|
||
|
PNC
Bank, National Association., as Agent
|
||
|
By
|
||
|
Title:
|
||
|
[Approved
this __________ day
|
||
|
of
_______________, 201_
|
||
|
DENTSPLY
INTERNATIONAL INC.
|
||
|
By
|
|
**
|
|
Title:
|
||
4
|
EXHIBIT
D - FORM OF
|
|
|
OPINION
OF COUNSEL
|
|
|
FOR
THE COMPANY
|
February
24, 2010
To each
of the Lenders parties
to the
Two Year Credit Agreement dated
as of
February 24, 2010
among
Dentsply International Inc.,
said
Lenders and PNC Bank, National Association,
as Agent
for said Lenders
|
Re:
|
Two Year Credit
Agreement dated February 24, 2010 (“Credit
Agreement”)
|
Ladies
and Gentlemen:
I am
General Counsel for DENTSPLY International Inc., a Delaware corporation (the
"Borrower"), and its Subsidiaries (as that term is defined in the Credit
Agreement defined below). This opinion is furnished to you pursuant
to Section 3.01(h)(iv) of the Two Year Credit Agreement, dated as of February
24, 2010 (the “Credit Agreement”), among Dentsply International Inc., the
Lenders parties thereto and PNC Bank, National Association, as Agent for said
Lenders. All capitalized terms, unless otherwise defined herein,
shall have the respective meanings assigned to them in the Credit
Agreement. In connection with the Credit Agreement, I am of the
opinion that:
1. The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
2. The
execution, delivery and performance by the Borrower of the Credit Agreement and
the Notes, and the consummation of the transactions contemplated thereby, are
within the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Charter or the
By-laws of the Borrower or (ii) any law, rule or regulation applicable to
the Borrower (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System) or (iii) any contractual or legal
restriction contained in any document to which the Borrower is a
party. The Credit Agreement and the Notes have been duly executed and
delivered on behalf of the Borrower.
3. No
authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required
for the due execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes.
February
24, 2010
Page
2
4. The
Credit Agreement is, and after giving effect to the borrowing of the Term Loans,
the Notes will be legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective
terms.
5. To
the best of my knowledge, there are no pending or overtly threatened actions or
proceedings against the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that purport to affect the legality, validity,
binding effect or enforceability of the Credit Agreement or any of the Notes or
the consummation of the transactions contemplated thereby or that are likely to
have a materially adverse effect upon the financial condition or operations of
the Borrower and its Subsidiaries, taken as a whole.
The
opinions set forth in this letter with respect to enforceability are subject to:
(a) the effect of any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar law affecting creditors’ rights generally; and (b) the
effect of general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law). Moreover,
provisions of the Credit Agreement that permit the Lenders to take action or
make determinations, or to benefit from indemnities and similar undertakings of
the Borrower, may be subject to a requirement that such action be taken or such
determinations be made, and that any action or inaction by the Lenders that may
give rise to a request for payment under such an undertaking be taken or not
taken, on a reasonable basis and in good faith. The foregoing
opinions with respect to enforceability are further qualified by reference to
the fact that certain of the remedies and waivers set forth in the Credit
Agreement may be rendered unavailable or unenforceable under applicable
principles of law or equity but, in my opinion, such unavailability or
unenforceability should not render other remedies which are set forth in the
Credit Agreement unenforceable or otherwise inadequate for the practical
realization of the benefits intended to be provided by the Credit
Agreement.
I express
no opinion as to: (a) the effect of any law or regulation applicable
to the Borrower or the transactions contemplated by the Credit Agreement, as a
consequence of any Lender’s involvement in such transactions or because of such
Lender’s legal or regulatory status or any other facts specifically pertaining
to such Lender, or (b) as to Section 2.15 of the Credit Agreement insofar as it
provides that any Lender purchasing a participation from another Lender pursuant
thereto may exercise set-off or similar rights with respect to such
participation.
My
opinions are issued as of the date hereof and are limited to the laws now in
effect as to which my opinions relate and facts and circumstances in existence
on the date hereof, and I assume no undertaking to advise you of any changes in
the opinions expressed herein as a result of any change in any laws, facts or
circumstances which may come to my attention after the date hereof.
I am
qualified to practice law in the Commonwealth of Pennsylvania and do not purport
to be expert on, or to express any opinion herein concerning, any law other than
the laws of the Commonwealth of Pennsylvania, the Delaware General Corporation
Law and the federal laws of the United States of America.
February
24, 2010
Page
3
This
letter is furnished solely for the benefit of the Agent and the Lenders in
connection with matters relating to the Credit Agreement and may not be relied
upon by any other person or for any other purpose without my prior written
consent, other than any subsequent holder of a Note transferred in accordance
with the terms and provisions of the Credit Agreement.
Very
truly yours,
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Vice
President, Secretary and
General
Counsel