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EXHIBIT 10.1
[JPMORGAN LOGO]
CREDIT AGREEMENT
dated as of
September 22, 2006
among
OAKLEY, INC.
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Joint Bookrunners and Joint Lead Arrangers
BANK OF AMERICA, N.A.,
as Syndication Agent
UNION BANK OF CALIFORNIA, N.A.,
as Documentation Agent
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. Defined Terms................................................. 1
Section 1.02. Classification of Loans and Borrowings........................ 21
Section 1.03. Terms Generally............................................... 21
Section 1.04. Accounting Terms; GAAP........................................ 22
Section 1.05. Exchange Rates; Currency Equivalents.......................... 22
Section 1.06. Additional Alternative Currencies............................. 22
Section 1.07. Change of Currency............................................ 23
ARTICLE 2
THE CREDITS
Section 2.01. Commitments................................................... 24
Section 2.02. Loans and Borrowings.......................................... 25
Section 2.03. Requests for Borrowings....................................... 26
Section 2.04. Swingline Loans............................................... 27
Section 2.05. Letters of Credit............................................. 28
Section 2.06. Funding of Borrowings......................................... 33
Section 2.07. Interest Elections............................................ 34
Section 2.08. Termination and Reduction of Commitments...................... 36
Section 2.09. Repayment of Loans; Evidence of Debt.......................... 36
Section 2.10. Prepayment of Loans........................................... 37
Section 2.11. Fees.......................................................... 39
Section 2.12. Interest...................................................... 40
Section 2.13. Alternate Rate of Interest.................................... 41
Section 2.14. Increased Costs............................................... 42
Section 2.15. Break Funding Payments........................................ 43
Section 2.16. Taxes......................................................... 44
Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs... 46
Section 2.18. Mitigation Obligations; Replacement of Lenders................ 48
Section 2.19. Additional Borrowing Subsidiaries............................. 49
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Powers.......................................... 49
Section 3.02. Authorization; Enforceability................................. 49
Section 3.03. Governmental Approvals; No Conflicts.......................... 49
Section 3.04. Financial Condition; No Material Adverse Change............... 50
Section 3.05. Properties.................................................... 50
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Section 3.06. Litigation and Environmental Matters......................... 50
Section 3.07. Compliance with Laws and Agreements.......................... 51
Section 3.08. Investment Company Status.................................... 51
Section 3.09. Taxes........................................................ 51
Section 3.10. ERISA........................................................ 51
Section 3.11. Disclosure................................................... 52
Section 3.12. Subsidiaries................................................. 52
Section 3.13. Labor Matters................................................ 52
ARTICLE 4
CONDITIONS
Section 4.01. Effective Date............................................... 52
Section 4.02. Each Credit Event............................................ 54
Section 4.03. Each Borrowing Subsidiary Credit Event....................... 54
ARTICLE 5
AFFIRMATIVE COVENANTS
Section 5.01. Financial Statements; Ratings Change and Other Information... 55
Section 5.02. Notices of Material Events................................... 58
Section 5.03. Existence; Conduct of Business............................... 59
Section 5.04. Payment of Obligations....................................... 59
Section 5.05. Maintenance of Properties; Insurance......................... 59
Section 5.06. Books and Records; Inspection Rights......................... 59
Section 5.07. Compliance with Laws......................................... 59
Section 5.08. Use of Proceeds and Letters of Credit........................ 60
Section 5.09. Guarantor Subsidiaries....................................... 60
Section 5.10. Subsidiary Guaranty Coverage Percentages..................... 60
ARTICLE 6
NEGATIVE COVENANTS
Section 6.01. Indebtedness................................................. 61
Section 6.02. Liens........................................................ 62
Section 6.03. Fundamental Changes; Asset Sales and Acquisitions............ 63
Section 6.04. Investments, Loans, Advances, Guaranties and Acquisitions.... 64
Section 6.05. Swap Agreements.............................................. 65
Section 6.06. Restricted Payments.......................................... 65
Section 6.07. Restrictive Agreements....................................... 66
Section 6.08. Sales and Leasebacks......................................... 66
Section 6.09. Sale or Discount of Receivables.............................. 67
Section 6.10. Transactions with Principal Shareholder and Affiliates....... 67
Section 6.11. Conduct of Business.......................................... 67
Section 6.12. Fiscal Year.................................................. 68
Section 6.13. Financial Covenants.......................................... 68
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ARTICLE 7
EVENTS OF DEFAULT
ARTICLE 8
THE ADMINISTRATIVE AGENT
ARTICLE 9
COMPANY GUARANTY
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices...................................................... 75
Section 10.02. Waivers; Amendments.......................................... 76
Section 10.03. Expenses; Indemnity; Damage Waiver........................... 77
Section 10.04. Successors and Assigns....................................... 79
Section 10.05. Survival..................................................... 82
Section 10.06. Counterparts; Integration; Effectiveness..................... 83
Section 10.07. Severability................................................. 83
Section 10.08. Right of Setoff.............................................. 83
Section 10.09. Governing Law; Jurisdiction; Consent to Service of Process... 84
Section 10.10. Waiver of Jury Trial......................................... 84
Section 10.11. Headings..................................................... 85
Section 10.12. Confidentiality.............................................. 85
Section 10.13. Interest Rate Limitation..................................... 86
Section 10.14. USA PATRIOT Act.............................................. 86
Section 10.15. Judgment Currency............................................ 87
SCHEDULES:
Schedule 1.01(a) - Existing Letters of Credit
Schedule 1.01(b) - Mandatory Cost
Schedule 2.01(a) - Global Commitments
Schedule 2.01(b) - Canadian Commitments
Schedule 2.17 - Payments on Loans
Schedule 3.06 - Disclosed Matters
Schedule 3.12 - Existing Subsidiaries
Schedule 6.01 - Existing Indebtedness
Schedule 6.02 - Existing Liens
Schedule 6.04 - Existing Investments
Schedule 6.07 - Existing Restrictions
Schedule 6.10 - Transactions with Affiliates
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EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Domestic Subsidiary Guaranty
Exhibit C -- Form of Borrowing Subsidiary Agreement
Exhibit D -- Form of Borrowing Subsidiary Termination
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CREDIT AGREEMENT dated as of September 22, 2006, among OAKLEY, INC., the
BORROWING SUBSIDIARIES party hereto, the LENDERS party hereto, and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders under the Loan Documents.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"ALTERNATIVE CURRENCY" means each of Euro, Sterling, Yen, Australian
Dollars and each other currency (other than U.S. Dollars or Canadian Dollars)
that is approved in accordance with Section 1.06.
"ALTERNATIVE CURRENCY SUBLIMIT" means an amount equal to the lesser of the
aggregate Global Commitments and $26,500,000. The Alternative Currency Sublimit
is part of, and not in addition to, the Global Commitments.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the percentage
of the total Global Commitments represented by such Lender's Global Commitment.
If the Global Commitments have terminated or expired, the Applicable Percentages
shall be determined based upon the Global Commitments most recently in effect,
giving effect to any assignments.
"APPLICABLE RATE" means, for any day, with respect to any Eurocurrency
Loan or CDOR Loan, or with respect to the commitment fees payable hereunder, as
the case may be, the applicable rate per annum set forth below under the caption
"EUROCURRENCY AND CDOR SPREAD" or "COMMITMENT FEE RATE", as the case may be,
based upon the Leverage Ratio as of the most recent determination date; provided
that:
(i) at any time when an Event of Default has occurred and is
continuing, the Applicable Rates will be those set forth in Category 4;
and
(ii) at the option of the Administrative Agent (or at the request of
the Required Lenders), if the Company fails to deliver financial
statements to the Administrative Agent as and when required by Section
5.01(a) or 5.01(b) (or any financial statements delivered by the Company
are subsequently determined to have breached the requirements of Section
5.01(a) or 5.01(b)), the Applicable Rates will be those set forth in
Category 4 during the period from the expiration of the time specified for
such delivery (or the time of delivery of such defective financial
statements) until such financial statements (or restated financial
statements which do not violate the requirements of Section 5.01(a) or
5.01(b)) are so delivered.
EUROCURRENCY AND
CDOR
LEVERAGE RATIO SPREAD COMMITMENT FEE RATE
----------------------------------- --------------------- -------------------
Category 1 0.55% 0.11%
Less than 1:1
Category 2
Greater than or equal to 1:1, 0.65% 0.125%
but less than 1.5:1
Category 3
Greater than or equal to 1.5:1, 0.875% 0.15%
but less than 2:1
Category 4 1.125% 0.20%
Greater than or equal to 2:1
For purposes of this definition, (x) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company based on the
Company's consolidated financial statements delivered pursuant to Section
5.01(a) or 5.01(b) and (y) each change in an Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period from and
including the day when the Administrative Agent receives the financial
statements indicating such change to but excluding the effective date of the
next such change.
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"APPROVED FUND" has the meaning assigned to such term in Section 10.04.
"ASSET PERCENTAGE" means, at any date of determination, the ratio,
expressed as a percentage, of (a) without duplication, the sum of (x) the total
assets of the Borrowers (on a stand-alone non-consolidated basis) on such date,
and (y) subject to the last sentence of Section 5.10, the consolidated total
assets of the Guarantor Subsidiaries and their respective consolidated
subsidiaries on such date, to (b) the consolidated total assets of the Company
and its consolidated Subsidiaries on such date, all determined on a basis agreed
upon by the Company and the Administrative Agent.
"ASSET SALE" means the sale or other disposition (whether voluntary or
involuntary) by the Company or any of its Subsidiaries to any Person other than
the Company or any of its wholly-owned Subsidiaries of any assets (whether
tangible or intangible, including Equity Interests in Subsidiaries) of the
Company or any of its Subsidiaries outside the ordinary course of business;
provided that cash distributions by the Company in respect of its outstanding
capital stock shall not be deemed "ASSET SALES" for the purposes of this
Agreement.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"AUSTRALIAN DOLLAR" means the lawful currency of the Commonwealth of
Australia.
"AVAILABILITY PERIOD" means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"BARTER " means Barter Optical, Inc., a Washington corporation.
"BOARD" means the Board of Governors of the Federal Reserve System of the
United States of America.
"BORROWER" means the Company or any Borrowing Subsidiary.
"BORROWING" means (a) Loans of the same Type and in the same currency,
made, converted or continued on the same date and, in the case of Eurocurrency
Loans or CDOR Loans, as to which a single Interest Period is in effect, or (b) a
Swingline Loan.
"BORROWING REQUEST" means a request for a Borrowing in accordance with
Section 2.03.
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"BORROWING SUBSIDIARY" means, at any time, Oakley Canada and any
Subsidiary designated as a Borrowing Subsidiary by the Company pursuant to
Section 2.19 that has not ceased to be a Borrowing Subsidiary pursuant to such
Section.
"BORROWING SUBSIDIARY AGREEMENT" means a Borrowing Subsidiary Agreement
substantially in the form of Exhibit C.
"BORROWING SUBSIDIARY TERMINATION" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit D.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed; provided that, (i) when used in connection with a Eurocurrency
Loan denominated in U.S. Dollars, the term "BUSINESS DAY" shall also exclude any
day on which banks are not open for dealings in U.S. Dollar deposits in the
London interbank market, (ii) when used in connection with a Loan denominated in
Euros, the term "BUSINESS DAY" shall also exclude any day which is not a TARGET
Day, and (iii) when used in connection with a Loan denominated in any other
currency, the term "BUSINESS DAY" shall also exclude any day which is not a day
on which dealings in such currency can occur in the London interbank market and
on which banks are open for business in the principal financial center for that
currency.
"CANADIAN COMMITMENT" means, with respect to each Lender, the commitment
(if any) of such Lender to make Canadian Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Canadian Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's Canadian Commitment is set forth on Schedule 2.01(b), or
in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Canadian Commitment, as applicable. The initial aggregate amount of
the Lenders' Canadian Commitments is $3,500,000.
"CANADIAN CREDIT EXPOSURE" means, with respect to any Lender at any time,
the outstanding principal amount of such Lender's Canadian Loans at such time.
"CANADIAN DOLLAR" means the lawful currency of Canada.
"CANADIAN LOAN" means a Loan made in Canadian Dollars pursuant to Section
2.01(c).
"CANADIAN PRIME", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Canadian Prime Rate.
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"CANADIAN PRIME RATE" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the percentage rate per annum determined by JPMorgan Chase
Bank, N.A. (rounded up to two decimal places) to be the greater of (i) the rate
of interest which JPMorgan Chase Bank, N.A. establishes at the time as the
reference rate of interest for determination of interest rates it will charge
for loans in Canadian Dollars at its office in Toronto, Canada and which it
refers to as its prime rate (or its equivalent or analogous such rate) or (ii)
the sum of (A) the yearly rate of interest to which the one month CDOR Rate is
equivalent plus (B) one percent (1.0%) per annum.
"CAPITAL EXPENDITURES" means, for any period, the sum of the aggregate of
all expenditures (whether paid in cash or other consideration or accrued as a
liability and including that portion of Capital Lease Obligations which is
capitalized on the consolidated balance sheet of the Company and its
Subsidiaries) by the Company and its Subsidiaries during that period that, in
conformity with GAAP, are included (or should be included) in "additions to
property, plant or equipment" or comparable items reflected in the consolidated
statement of cash flows of the Company and its Subsidiaries.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CASH EQUIVALENTS" means, as at any date of determination,
(i) marketable securities (a) issued or directly and unconditionally
guaranteed as to interest and principal by the United States Government or (b)
issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one
year after such date;
(ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, the highest rating
obtainable from either S&P or ▇▇▇▇▇'▇;
(iii) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating of
at least A-1 from S&P or at least P-1 from ▇▇▇▇▇'▇;
(iv) certificates of deposit or bankers' acceptances maturing within one
year after such date and issued or accepted by any Lender or by any commercial
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bank organized under the laws of the United States of America or any state
thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000;
(v) shares of any money market mutual fund that (a) has at least 95% of
its assets invested continuously in the types of investments referred to in
clauses (i) and (ii) above, (b) has net assets of not less than $500,000,000,
and (c) has the highest rating obtainable from either S&P or ▇▇▇▇▇'▇; and
(vi) in the case of funds held by any Foreign Subsidiary (a) direct
obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized and is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation (or agency
thereof), (b) investments of the type and maturity described in clauses (i)
through (v) above of foreign obligors, which investments or obligors (or the
direct or indirect parents of such obligors) have ratings described in such
clauses or equivalent ratings from comparable foreign rating agencies or (c)
investments of the type and maturity described in clause (i) through (v) above
of foreign obligors (or the direct or indirect parents of such obligors) which
investments or obligors (or the direct or indirect parents of such obligors) are
not rated as provided in such clauses or in clause (b) above but which are, in
the reasonable judgment of the Company or its Subsidiaries, comparable in
investment quality to such investment and obligors (or the direct or indirect
parent of such obligors), such investments under this clause (c) not to exceed
an aggregate amount of $250,000.
"CDOR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the CDOR Rate.
"CDOR RATE" means, with respect to a CDOR Loan for the relevant Interest
Period, the Canadian deposit offered rate, which in turn means on any day the
sum of: (a) the annual rate of interest which is the rate determined as being
the arithmetic average of the quotations of all institutions listed in respect
of the relevant Interest Period for Canadian dollar denominated bankers'
acceptances displayed and identified as such on the "Reuters Screen CDOR Page"
as defined in the International Swaps and Derivatives Association, Inc.
definitions, as modified and amended from time to time, as of 10:00 a.m.
Toronto, Ontario local time on such day and, if such day is not a Business Day,
then on the immediately preceding Business Day (as adjusted by the Lender after
10:00 a.m. Toronto, Ontario local time to reflect any error in the posted rate
of interest or in the posted average annual rate of interest) plus 0.10%, plus
(b) the Applicable Rate; provided that if such rates are not available on the
Reuters Screen CDOR Page on any particular day, then the CDOR component of such
rate calculated under clause (a) above on that day shall be calculated as the
cost of funds quoted by the Administrative Agent to raise Canadian dollars for
the applicable CDOR Interest Period as of 10:00 a.m. Toronto, Ontario local time
on such day for
6
commercial loans or other extensions of credit to businesses of comparable
credit risk; or if such day is not a Business Day, then as quoted by the
Administrative Agent on the immediately preceding Business Day.
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) other than
the Principal Shareholder, of Equity Interests representing more than 25% of the
aggregate ordinary voting power represented by the issued and outstanding Equity
Interests of the Company; (b) occupation of a majority of the seats (other than
vacant seats) on the board of directors of the Company by Persons who were
neither (i) nominated by the board of directors of the Company nor (ii)
appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of the Company by any Person or group other than the Principal
Shareholder.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or Issuing Bank
(or, for purposes of Section 2.14(b), by any lending office of such Lender or by
such Lender's or Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Global Loans,
Swingline Loans or Canadian Loans.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL" means any and all "COLLATERAL", as defined in any Support
Document.
"COMMITMENTS" means, with respect to each Lender, the sum of such Lender's
Global Commitment and Canadian Commitment (if any).
"COMPANY" means Oakley, Inc., a Washington corporation.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income for
such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization for such period,
(iv) any non-cash charges for such period and (v) any extraordinary charges for
such period, and minus (b) without duplication and to the extent included in
determining such Consolidated Net Income, the sum of (i) any non-cash gains for
7
such period and (ii) any extraordinary gains for such period, all determined on
a consolidated basis in accordance with GAAP. For purposes of this definition,
Consolidated Net Income shall be determined without giving effect to changes in
accounting for foreign currency hedging activities, as other than cash flow
▇▇▇▇▇▇, as a result of the application of Financial Accounting Standards No.
133.
"CONSOLIDATED NET INCOME" means, for any period, the net income or loss of
the Company and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
income of any Person (except the Company or a Subsidiary) in which any other
Person (except the Company or another Subsidiary) owns an Equity Interest,
except to the extent that dividends or other distributions were actually paid by
such Person to the Company or any Subsidiary during such period, (b) the income
or loss of any Person accrued before (i) the date it becomes a Subsidiary, (ii)
the date it is merged into or consolidated with the Company or any Subsidiary or
(iii) the date its assets are acquired by the Company or any Subsidiary, (c) the
income of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary of such income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary, or (d) any after-tax gains or losses attributable
to Asset Sales outside the ordinary course of business.
"CONSOLIDATED RENTAL EXPENSE" means, for any period, the aggregate amount
of rent payable for such period under all leases, the obligation with respect to
which is not included under the definition of Indebtedness, of the Company and
its Subsidiaries.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CREDIT PARTIES" means the Borrowers and the Guarantor Subsidiaries.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"DOMESTIC SUBSIDIARY" means a Subsidiary organized under the laws of the
United States or any state or territory thereof or the District of Columbia.
"DOMESTIC SUBSIDIARY GUARANTY" means the Guaranty executed and delivered
by the Guarantor Subsidiaries on the Effective Date, substantially in the form
of Exhibit B.
8
"EBITDA PERCENTAGE" means, at any date of determination, the ratio,
expressed as a percentage, of (a) without duplication, the sum of (x) the
portion of Consolidated EBITDA attributable to the Borrowers (on a stand-alone,
non-consolidated basis), and (y) subject to the last sentence of Section 5.10,
the portion of Consolidated EBITDA attributable to the Guarantor Subsidiaries
and their respective consolidated subsidiaries, in each case for the 12-month
period ending on such date, to (b) Consolidated EBITDA for such 12-month period,
all determined on a basis agreed upon by the Company and the Administrative
Agent.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU LEGISLATION" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"EQUITY INTERESTS" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options
or other rights entitling the holder thereof to purchase or acquire any such
equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
9
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30 day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURO" and "EUR" mean the single currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"EUROCURRENCY", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Eurocurrency Rate.
"EUROCURRENCY RATE" means, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate per annum appearing on the relevant page of the
Reuters screen (or any successor to or substitute for such screen, providing
rate quotations comparable to those currently provided on such page of such
screen, as determined by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in the relevant
currency with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "EUROCURRENCY
RATE" with respect to such Eurocurrency Borrowing for such Interest Period shall
be the rate at which deposits in the relevant currency of $5,000,000 (or the
appropriate Other Currency Equivalent thereof) and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
10
"EVENT OF DEFAULT" has the meaning assigned to such term in Article 7.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of any Credit Party hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the applicable Credit Party is located and
(c) in the case of a Foreign Lender, any withholding tax (x) with respect to
amounts payable by any Person that is a Borrower under this Agreement at the
time such Foreign Lender first becomes a party to this Agreement, at the rate
applicable to such amounts on such date under the laws and treaties in effect at
such time, or (y) to the extent attributable to such Foreign Lender's failure to
comply with a request of the Company to provide the documentation described in
Section 2.16(e).
"EXISTING CREDIT AGREEMENT" means the Third Amended and Restated Credit
Agreement dated as of August 19, 2004 (as amended as of the date hereof) among
the Company, Bank of America, N.A., as agent, swing lender and l/c issuer, and
the other lenders party thereto.
"EXISTING LETTERS OF CREDIT" means the letters of credit listed on
Schedule 1.01(a), and includes any bankers acceptance issued pursuant to the
terms of any such letter of credit.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company.
"FOREIGN LENDER" means, with respect to any Loan, any Lender making such
Loan that is organized under the laws of a jurisdiction other than the Relevant
Jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
11
"GAAP" means generally accepted accounting principles in the United States
of America.
"GLOBAL COMMITMENT" means, with respect to each Lender, the commitment of
such Lender to make Global Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Global Credit Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.04. The initial amount of each Lender's
Global Commitment is set forth on Schedule 2.01(a), or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Global
Commitment, as applicable. The initial aggregate amount of the Lenders' Global
Commitments is $185,000,000.
"GLOBAL CREDIT EXPOSURE" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Global Loans and
its LC Exposure and Swingline Exposure at such time.
"GLOBAL LOAN" means a Loan made in U.S. Dollars or in one or more
Alternative Currencies pursuant to Section 2.01(a).
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTOR FOREIGN SUBSIDIARY" means a Foreign Subsidiary of the Company
that may execute a Subsidiary Guaranty without causing material adverse tax
consequences for the Company.
"GUARANTOR SUBSIDIARY" means each of Bazooka, Inc., Oakley Sales Corp.,
Oakley Direct, Inc., The Optical Shop of Aspen, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., Barter
Optical, Inc., Iacon, Inc. and any other Domestic Subsidiary or Guarantor
Foreign Subsidiary that executes a Subsidiary Guaranty in favor of the Lenders
in accordance with the provisions of Section 5.10; provided that the
Administrative Agent shall have received, in form and substance satisfactory to
the Administrative Agent, (A) documents of the types described in Section
4.01(b) and 4.01(c) with respect to such Guarantor Subsidiary and the Subsidiary
Guaranty executed by it (and, in the case of any Guarantor Subsidiary which is a
Guarantor Foreign Subsidiary, such other documents as the Administrative Agent
may reasonably request) and (B) financial statements described in Section
5.01(a) or 5.01(b) for the most recently ended period for which such financial
statements are required to have been delivered for the Guarantor Subsidiaries.
"GUARANTY" of or by any Person (the "GUARANTOR") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
12
effect of guaranteeing any Indebtedness of any other Person (the "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term "Guaranty" shall not include endorsements
for collection or deposit in the ordinary course of business. The term
"GUARANTEE" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guaranties by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
13
"INFORMATION MEMORANDUM" means the Confidential Information Memorandum
dated July 2006 relating to the Company and the Transactions.
"INTEREST ELECTION REQUEST" means a request by a Borrower to convert or
continue a Borrowing in accordance with Section 2.07.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan (other than
a Swingline Loan) or Canadian Prime Loan, the last day of each March, June,
September and December, (b) with respect to any Eurocurrency Loan or CDOR Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing or CDOR Borrowing
with an Interest Period of more than three months' duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months'
duration after the first day of such Interest Period, and (c) with respect to
any Swingline Loan, the day that such Loan is required to be repaid.
"INTEREST PERIOD" means, with respect to any Eurocurrency Borrowing or
CDOR Borrowing, the period commencing on the date of such Borrowing specified in
the applicable Borrowing Request or on the date specified in the applicable
Interest Election Request and ending (x) two weeks or (y) one, two, three or six
months thereafter, as the relevant Borrower may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (ii) any
Interest Period of one month or more that commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period.
"ISSUING BANK" means, individually or collectively, as the case may be,
JPMorgan Chase Bank, N.A., in its capacity as an issuer of Letters of Credit
hereunder, Bank of America, N.A., in such capacity, and any successors in such
capacity as provided in Section 2.05(i). An Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the
Issuing Bank, in which case the term "Issuing Bank" shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.
"LC DISBURSEMENT" means a payment made by an Issuing Bank pursuant to a
Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Company at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
14
"LENDERS" means the Persons listed on Schedule 2.01(a) and Schedule
2.01(b) and any other Person that shall have become a party hereto pursuant to
an Assignment and Assumption, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term "Lenders" includes the Swingline Lender.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement, and shall include any Existing Letter of Credit.
"LEVERAGE RATIO" means, on any day, the ratio of (a) the aggregate
principal amount of Indebtedness of the Company and its Subsidiaries as of such
day to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters of the Company ended on such day (or, if such day is not the last day
of a fiscal quarter of the Company, ended on the last day of the fiscal quarter
of the Company most recently ended before such day).
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"LOAN DOCUMENTS" means this Agreement, the Borrowing Subsidiary
Agreements, any promissory notes issued pursuant to Section 2.09(e) and the
Support Documents.
"LOANS" means the loans made by the Lenders to the Borrowers pursuant to
this Agreement.
"MANDATORY COST" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01(b).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, results of operations, property, financial condition or prospects of
the Company and the Subsidiaries taken as a whole, or (b) the validity or
enforceability of the Loan Documents or the rights or remedies available to the
Administrative Agent, the Issuing Banks or the Lenders thereunder.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of the Company and its Subsidiaries in an aggregate principal
amount exceeding $10,000,000. For purposes of determining Material Indebtedness,
the "PRINCIPAL AMOUNT" of the obligations of the Company or any Subsidiary in
respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Company or
15
such Subsidiary would be required to pay if such Swap Agreement were terminated
at such time.
"MATURITY DATE" means September 22, 2011.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"OAKLEY CANADA" means Oakley Canada, Inc., a Quebec corporation.
"OBLIGATIONS" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Credit Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising, and including interest and
fees that accrue after (or would accrue but for) the commencement by or against
any Credit Party or any Affiliate thereof of any proceeding under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding.
"OTHER CURRENCY EQUIVALENT" means, at any time, with respect to any amount
denominated in U.S. Dollars, the equivalent amount thereof in the applicable
Alternative Currency or Canadian Dollars, as the case may be, as determined by
the Administrative Agent at such time on the basis of the Spot Rate (determined
in respect of the most recent Revaluation Date) for the purchase of such
Alternative Currency or Canadian Dollars with U.S. Dollars.
"OTHER TAXES" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"OUTSTANDING AMOUNT" means (i) with respect to any Class of Loans on any
date, the U.S. Dollar Equivalent amount of the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of such Class of Loans occurring on such date; and (ii) with respect
to LC Exposure on any date, the aggregate outstanding amount of such LC Exposure
on such date after giving effect to any drawings or reimbursements by the
Company occurring on such date.
"PARTICIPANT" has the meaning set forth in Section 10.04.
"PARTICIPATING MEMBER STATE" means each state so described in any EMU
Legislation.
16
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERMITTED ACQUISITION" means the acquisition of a business (whether
through the purchase of assets or of shares of capital stock) by the Company or
one of its Subsidiaries (i) which is not an acquisition of Equity Interests of a
Person through a tender offer or similar solicitation of the owners of such
Equity Interests which has not been approved (prior to such acquisition) by
resolutions of the Board of Directors of such Person or by similar action if
such Person is not a corporation, and as to which such approval has not been
withdrawn, (ii) which is in a line of business related to the lines of business
of the Company and its Subsidiaries, (iii) at a time at which no Default shall
exist or shall occur as a result of giving effect to such proposed acquisition
and (iv) after giving effect to which, on a pro forma basis agreed upon by the
Company and the Administrative Agent (which, in the case of any Person being
acquired for which satisfactory audited financial statements have been delivered
to the Lenders, shall include the assumption that such acquisition was
consummated on the first day of the relevant period), the Leverage Ratio,
determined as of the most recently ended fiscal quarter of the Company for which
financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b),
shall not exceed 2.00:1.00.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's and
other like Liens imposed by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event
of Default under clause (k) of Article 7;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances
on real property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligations and do not materially detract from
the value of the affected property or interfere with the ordinary conduct of
business of the Company or any Subsidiary;
17
(g) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of
goods; and
(h) Liens securing reimbursement obligations with respect to Letters of
Credit, which Liens encumber documents or other property to be acquired by
drawing under such Letters of Credit.
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness except as set forth in clause (h) above.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Company or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "EMPLOYER" as defined in Section 3(5) of ERISA.
"PRIME RATE" means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, N.A., as its prime rate in effect at its
office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇; each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective.
"PRINCIPAL SHAREHOLDER" means ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and any spouse or
descendant of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and any trust, partnership or corporation of
which ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, his spouse, or his descendants are the primary
beneficiaries or hold a majority of the interests therein, as the case may be.
"REGISTER" has the meaning set forth in Section 10.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"RELEVANT JURISDICTION" means (i) in the case of any Loan to the Company
or any Domestic Subsidiary which is a Borrower, the United States of America,
and (ii) in the case of any Loan to any other Borrowing Subsidiary, the
jurisdiction imposing (or having the power to impose) withholding tax on
payments by such Borrowing Subsidiary under this Agreement.
"REQUIRED LENDERS" means, at any time, Lenders having Global Credit
Exposures, Canadian Credit Exposures and unused Commitments representing
18
more than 50% of the sum of the total Global Credit Exposures, Canadian Credit
Exposures and unused Commitments at such time.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interests in the
Company or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interests in the Company or any option, warrant or other right
to acquire any such Equity Interests in the Company.
"REVALUATION DATE" means with respect to any Loan, each of the following:
(i) each date of a Borrowing of a Loan denominated in an Alternative Currency or
Canadian Dollars, (ii) each date of a continuation of a Loan denominated in an
Alternative Currency or Canadian Dollars pursuant to Section 2.07, (iii) two
Business Days prior to the last Business Day of each calendar month, and (iv)
such additional dates as the Administrative Agent shall determine or the
Required Lenders shall require.
"S&P" means Standard & Poor's.
"SPOT RATE" means, on any day, for any currency, the spot rate quoted by
JPMorgan Chase Bank, N.A., in London at approximately 11:00 a.m. for the
purchase of such currency with another currency for delivery two Business Days
later.
"STERLING" and "L" mean the lawful currency of the United Kingdom.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Company.
"SUBSIDIARY GUARANTY" or "SUBSIDIARY GUARANTIES" means the Domestic
Subsidiary Guaranty and any additional guaranty pursuant to which the Guarantor
Subsidiaries shall guarantee the Obligations, as such Subsidiary Guaranties may
hereafter be amended, supplemented or otherwise modified from time to time.
19
"SUBSIDIARY GUARANTY COVERAGE PERCENTAGE" means, as of any date of
determination in relation to any transaction or event described herein (each, an
"EVENT"), each of the Asset Percentage and the EBITDA Percentage, in each case
determined as of the most recently ended fiscal quarter of the Company for which
financial statements have been delivered pursuant to Section 5.01(a) and Section
5.01(b) and calculated on a pro forma basis agreed upon by the Company and the
Administrative Agent giving effect to the applicable Event. For purposes of
Section 5.01(c)(ii) and Section 5.10, the Subsidiary Guaranty Coverage
Percentage means each of the Asset Percentage and the EBITDA Percentage as of
the end of the fiscal quarter most recently ended.
"SUPPORT DOCUMENTS" means the Domestic Subsidiary Guaranty and each other
Subsidiary Guaranty, security agreement, instrument or document executed and
delivered pursuant to Section 5.10 to Guarantee or secure any of the
Obligations.
"SWAP AGREEMENT" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Company or the Subsidiaries shall be a Swap Agreement.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"SWINGLINE LENDER" means JPMorgan Chase Bank, N.A., in its capacity as
lender of Swingline Loans hereunder.
"SWINGLINE LOAN" means a Loan made pursuant to Section 2.04.
"TARGET DAY" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment
system ceases to be operative, such other payment system (if any) determined by
the Administrative Agent to be a suitable replacement) is open for the
settlement of payments in Euro.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TRANSACTIONS" means the execution, delivery and performance by the Credit
Parties of this Agreement, the Borrowing Subsidiary Agreements and the
20
Subsidiary Guaranties, the borrowing of Loans, the use of the proceeds thereof
and the issuance of Letters of Credit hereunder.
"TYPE", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Eurocurrency Rate, the Alternate Base Rate, the
CDOR Rate or the Canadian Prime Rate.
"U.S. DOLLAR EQUIVALENT" means, at any time, (a) with respect to any
amount denominated in U.S. Dollars, such amount, and (b) with respect to any
amount denominated in any Alternative Currency or Canadian Dollars, the
equivalent amount thereof in U.S. Dollars as determined by the Administrative
Agent at such time on the basis of the Spot Rate (determined in respect of the
most recent Revaluation Date) for the purchase of U.S. Dollars with such
Alternative Currency or Canadian Dollars.
"U.S. DOLLARS" and "$" mean the lawful currency of the United States of
America.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary that is, directly or
indirectly, wholly-owned by the Parent, it being understood that directors'
qualifying shares shall be disregarded in determining whether a Subsidiary is
wholly-owned.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02 . Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"GLOBAL LOAN") or by Type (e.g., a "EUROCURRENCY LOAN") or by Class and Type
(e.g., a "EUROCURRENCY GLOBAL LOAN"). Borrowings also may be classified and
referred to by Class (e.g., a "GLOBAL BORROWING") or by Type (e.g., a
"EUROCURRENCY BORROWING") or by Class and Type (e.g., a "EUROCURRENCY GLOBAL
BORROWING").
Section 1.03 . Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
21
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
Section 1.04 . Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
Section 1.05 . Exchange Rates; Currency Equivalents. (a) The
Administrative Agent shall determine the Spot Rates as of each Revaluation Date
to be used for calculating U.S. Dollar Equivalent amounts of Borrowings and
Outstanding Amounts denominated in Alternative Currencies or Canadian Dollars.
Such Spot Rates shall become effective as of such Revaluation Date and shall be
the Spot Rates employed in converting any amounts between the applicable
currencies until the next Revaluation Date to occur.
(b) Wherever in this Agreement in connection with a Borrowing, conversion,
continuation or prepayment of a Eurocurrency Loan, CDOR Loan or Canadian Prime
Loan an amount, such as a required minimum or multiple amount, is expressed in
U.S. Dollars, but such Borrowing or Loan is denominated in an Alternative
Currency or Canadian Dollars, such amount shall be the relevant Other Currency
Equivalent of such U.S. Dollar amount (rounded to the nearest unit of such
Alternative Currency or Canadian Dollars, with 0.5 of a unit being rounded
upward), as determined by the Administrative Agent.
Section 1.06 . Additional Alternative Currencies. (a) The Company may from
time to time request that Eurocurrency Loans be made in a currency other than
those specifically listed in the definition of "ALTERNATIVE CURRENCY"; provided
that such requested currency is a lawful currency (other than U.S. Dollars) that
is readily available and freely transferable and convertible into U.S. Dollars.
In the case of any such request with respect to the making of Eurocurrency
Loans, such request shall be subject to the approval of the Administrative Agent
and the Lenders.
22
(b) Any such request shall be made to the Administrative Agent not later
than 11:00 a.m., 15 Business Days prior to the date of the desired Borrowing (or
such other time or date as may be agreed by the Administrative Agent, in its
sole discretion). In the case of any such request, the Administrative Agent
shall promptly notify each Lender thereof. Each Lender shall notify the
Administrative Agent, not later than 11:00 a.m., ten Business Days after receipt
of such request, whether it consents, in its sole discretion, to the making of
Eurocurrency Loans in such requested currency.
(c) Any failure by a Lender to respond to such request within the time
period specified in the preceding sentence shall be deemed to be a refusal by
such Lender to permit Eurocurrency Loans to be made in such requested currency.
If the Administrative Agent and all the Lenders consent to making Eurocurrency
Loans in such requested currency, the Administrative Agent shall so notify the
Company and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this Section 1.06, the
Administrative Agent shall promptly so notify the Company.
Section 1.07 . Change of Currency. (a) Each obligation of any Borrower to
make a payment denominated in the national currency unit of any member state of
the European Union that adopts the Euro as its lawful currency after the date
hereof shall be redenominated into Euro at the time of such adoption (in
accordance with the EMU Legislation). If, in relation to the currency of any
such member state, the basis of accrual of interest expressed in this Agreement
in respect of that currency shall be inconsistent with any convention or
practice in the London interbank market for the basis of accrual of interest in
respect of the Euro, such expressed basis shall be replaced by such convention
or practice with effect from the date on which such member state adopts the Euro
as its lawful currency; provided that if any Borrowing in the currency of such
member state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Borrowing, at the end of the then
current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to the change
in currency.
23
ARTICLE 2
THE CREDITS
Section 2.01 . Commitments. Subject to the terms and conditions set forth
herein, each Lender, severally and not jointly, agrees to make Global Loans to
any Borrower in U.S. Dollars or in one or more Alternative Currencies from time
to time during the Availability Period in an aggregate principal amount that
will not result in (i) such Lender's Global Credit Exposure exceeding such
Lender's Global Commitment, (ii) the sum of the total Global Credit Exposures
exceeding the total Global Commitments, or (iii) the aggregate Outstanding
Amount of all Loans denominated in Alternative Currencies exceeding the
Alternative Currency Sublimit. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Global Loans.
(b) Subject to the terms and conditions set forth herein, each Lender with
a Canadian Commitment, severally and not jointly, agrees to make Canadian Loans
to Oakley Canada in Canadian Dollars from time to time during the Availability
Period in an aggregate principal amount that will not result in (i) such
Lender's Canadian Credit Exposure exceeding such Lender's Canadian Commitment,
or (ii) the sum of the total Canadian Credit Exposures exceeding the total
Canadian Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, Oakley Canada may borrow, prepay and reborrow
Canadian Loans.
(c) At any time during the Availability Period, if no Default shall have
occurred and be continuing at such time, the Company may, if it so elects,
increase the aggregate amount of either the Global Commitments or the Canadian
Commitments, either by designating a Person not theretofore a Lender and
acceptable to the Administrative Agent (such acceptance not to be unreasonably
withheld) to become a Lender or by agreeing with an existing Lender that such
Lender's Commitment, shall be so increased. Upon execution and delivery by the
Borrowers and such Lender or other Person of an instrument of assumption in form
and amount reasonably satisfactory to the Administrative Agent, such existing
Lender shall have a Global Commitment or Canadian Commitment as therein set
forth or such other Person shall become a Lender with a Commitment as therein
set forth and all the rights and obligations of the Lender with such a
Commitment hereunder; provided that (i) the Company shall provide prompt notice
of such increase to the Administrative Agent, which shall promptly notify the
other Lenders, (ii) the aggregate amount of each such increase which is
effective on any day shall be at least $5,000,000 and (iii) the aggregate amount
of the Commitments shall at no time exceed $250,000,000. Upon any increase in
the aggregate amount of the Commitments pursuant to this Section 2.01(c), within
five Business Days in the case of the ABR Loans (if the Global Commitments are
increased) and Canadian Prime Loans (if the Canadian Commitments are increased)
outstanding, and at the end of the then current Interest Period with respect
thereto in the case of the Loans comprising each Eurocurrency Borrowing (if the
Global Commitments are increased) and CDOR Borrowing
24
(if the Canadian Commitments are increased) then outstanding, the Borrowers
shall prepay such Loans in their entirety, and, to the extent any Borrower
elects to do so and subject to the conditions specified in Article 4, such
Borrower shall reborrow Loans from the Lenders in proportion to their respective
applicable Commitments after giving effect to such increase, until such time as
all outstanding Loans are held by the Lenders in such proportion.
Section 2.02 . Loans and Borrowings. (a) Each Loan shall be made as part
of a Borrowing consisting of Loans made by the Lenders ratably in accordance
with their respective Global Commitments or Canadian Commitments, as applicable.
The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Global Borrowing shall be comprised
entirely of ABR Loans or Eurocurrency Loans, and each Canadian Borrowing shall
be comprised entirely of Canadian Prime Loans or CDOR Loans, as the applicable
Borrower may request in accordance herewith. All ABR Loans shall be denominated
in U.S. Dollars. Eurocurrency Loans may be denominated in U.S. Dollars or an
Alternative Currency. Canadian Prime Loans and CDOR Loans shall be denominated
in Canadian Dollars, and may be borrowed only by Oakley Canada. Each Swingline
Loan shall be an ABR Loan. Each Lender at its option may make any Eurocurrency
Loan or Loan denominated in Canadian Dollars by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of any Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency
Borrowing or CDOR Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of $500,000 and not less than $1,000,000. At the time
that each ABR Borrowing or Canadian Prime Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $500,000 and not
less than $1,000,000; provided that an ABR Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments or
that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount that
is an integral multiple of $100,000 and not less than $100,000. Borrowings of
more than one Type and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of ten Eurocurrency Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request, or to elect to convert or continue, any
25
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
Section 2.03 . Requests for Borrowings. To request a Borrowing, a Borrower
shall notify the Administrative Agent of such request (which may be by
telephone) not later than 1:00 p.m., New York City time, (a) in the case of a
Eurocurrency Borrowing denominated in U.S. Dollars, three Business Days before
the date of the proposed Borrowing, (b) in the case of a Eurocurrency Borrowing
denominated in an Alternative Currency, four Business Days before the date of
the proposed Borrowing, (c) in the case of an ABR Borrowing, on the date of the
proposed Borrowing, (d) in the case of a CDOR Borrowing, two Business Days
before the date of the proposed Borrowing, or (e) in the case of a Canadian
Prime Borrowing, on the date of the proposed Borrowing. Each such Borrowing
Request shall be irrevocable and if made by telephone or (pursuant to Section
10.01(b)) electronic communications shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the applicable Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing, a
Eurocurrency Borrowing, a CDOR Borrowing or a Canadian Prime Borrowing;
(iv) in the case of a Eurocurrency Borrowing or a CDOR Borrowing,
the initial Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "INTEREST PERIOD";
(v) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.07; and
(vi) in the case of a Eurocurrency Borrowing, the currency of such
Borrowing.
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing if denominated in U.S. Dollars, a
Canadian Prime Borrowing if denominated in Canadian Dollars or a Eurocurrency
Borrowing if denominated in an Alternative Currency. If no Interest Period is
specified with respect to any requested Eurocurrency Borrowing or CDOR
Borrowing, then the relevant Borrower shall be deemed to have selected an
Interest Period of one month's duration. If no election as to the currency of a
Borrowing is specified, then the requested Borrowing shall be denominated in
U.S. Dollars. Promptly following receipt of a Borrowing Request in accordance
26
with this Section, the Administrative Agent shall advise each Lender of the
details thereof and of the amount of such Lender's Loan to be made as part of
the requested Borrowing.
Section 2.04 . Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Company from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $15,000,000
or (ii) the sum of the total Global Credit Exposures exceeding the total Global
Commitments; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Company may
borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Company shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Company. The Swingline Lender shall make each Swingline
Loan available to the Company by means of a credit to the general deposit
account of the Company with the Swingline Lender (or, in the case of a Swingline
Loan made to finance the reimbursement of an LC Disbursement as provided in
Section 2.05(e), by remittance to the applicable Issuing Bank) by 3:00 p.m., New
York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative
Agent not later than 10:00 a.m., New York City time, on any Business Day require
the Lenders to acquire participations on such Business Day in all or a portion
of the Swingline Loans outstanding. Such notice shall specify the aggregate
amount of Swingline Loans in which Lenders will participate. Promptly upon
receipt of such notice, the Administrative Agent will give notice thereof to
each Lender, specifying in such notice such Lender's Applicable Percentage of
such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Applicable
Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section
27
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
promptly notify the Company of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Company (or other party on
behalf of the Company) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Company for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Company of any default in the payment thereof.
Section 2.05 . Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Company may request the issuance of Letters of
Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Availability Period. All Letters of Credit shall be
denominated in U.S. Dollars (other than the Existing Letters of Credit, which
may be denominated in U.S. Dollars or Euros). In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Company to, or entered into by the Company with, an Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall control. All
Existing Letters of Credit shall be deemed to have been issued pursuant hereto
and created hereunder, and from and after the Effective Date shall be subject to
and governed by the terms and conditions hereof.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
(i) To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Company shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the applicable Issuing Bank) to the applicable Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare,
28
amend, renew or extend such Letter of Credit. If requested by the applicable
Issuing Bank, the Company also shall submit a letter of credit application on
such Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the
Company shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (x) the LC Exposure shall not
exceed $25,000,000 and (y) the sum of the total Global Credit Exposures shall
not exceed the total Global Commitments.
(ii) Promptly after receipt of a notice requesting the issuance,
amendment, renewal or extension of a Letter of Credit, the applicable
Issuing Bank will confirm with the Administrative Agent (by telephone or
in writing) that the Administrative Agent has received a copy of such
notice from the Company and, if not, such Issuing Bank will provide the
Administrative Agent with a copy thereof. Upon receipt by such Issuing
Bank of confirmation from the Administrative Agent that the requested
issuance, amendment, renewal or extension is permitted in accordance with
the terms hereof, then, subject to the terms and conditions hereof, such
Issuing Bank shall, on the requested date, issue a Letter of Credit for
the account of the Company or enter into the applicable amendment, renewal
or extension, as the case may be, in each case in accordance with such
Issuing Bank's usual and customary business practices.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension); provided that any Letter of
Credit with a one-year tenor may provide for the renewal thereof for additional
one-year periods (which shall in no event extend beyond the date referred to in
clause (ii) below) and (ii) the date that is five Business Days prior to the
Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the applicable Issuing
Bank hereby grants to each Lender, and each Lender hereby acquires from such
Issuing Bank, a participation in such Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the applicable Issuing Bank, such Lender's Applicable
Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed
by the Company on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Company for any
reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters
29
of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Company shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement
not later than 12:00 noon, New York City time, on the date that such LC
Disbursement is made, if the Company shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Company prior to such time on such date,
then not later than 12:00 noon, New York City time, on (i) the Business Day that
the Company receives such notice, if such notice is received prior to 10:00
a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Company receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if such LC Disbursement is not less than $100,000, the Company may, subject to
the conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Borrowing or Swingline
Loan in an equivalent amount and, to the extent so financed, the Company's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Borrowing or Swingline Loan. If the Company fails to make such
payment when due, the Administrative Agent shall notify each Lender and the
applicable Issuing Bank of the applicable LC Disbursement, the payment then due
from the Company in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the
Company, in the same manner as provided in Section 2.06 with respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the applicable Issuing Bank the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any payment
from the Company pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the applicable Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to reimburse such Issuing
Bank, then to such Lenders and the Issuing Bank as their interests may appear.
Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing
Bank for any LC Disbursement (other than the funding of ABR Loans or a Swingline
Loan as contemplated above) shall not constitute a Loan and shall not relieve
the Company of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Company's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
30
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the applicable Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Company's obligations
hereunder. Neither the Administrative Agent, the Lenders nor the Issuing Banks,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the applicable Issuing Bank; provided that the foregoing shall
not be construed to excuse the applicable Issuing Bank from liability to the
Company to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Company to the
extent permitted by applicable law) suffered by the Company that are caused by
such Issuing Bank's failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the applicable Issuing Bank (as
finally determined by a court of competent jurisdiction), such Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
applicable Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Such Issuing Bank shall promptly
notify the Administrative Agent and the Company by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Company of its obligation to
reimburse such Issuing Bank and the Lenders with respect to any such LC
Disbursement.
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(h) Interim Interest. If an Issuing Bank shall make any LC Disbursement,
then, unless the Company shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Company reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Loans; provided that, if the Company
fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section, then Section 2.12(g) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the applicable Issuing Bank, except
that interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse such Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Designation and Replacement of an Issuing Bank. The Company hereby
designates each of JPMorgan Chase Bank, N.A., and Bank of America, N.A., as an
Issuing Bank hereunder, and each of JPMorgan Chase Bank, N.A., and Bank of
America, N.A., hereby accepts such designation. From time to time, the Company
may designate additional Issuing Banks, provided that (i) other than with
respect to the initial designations of JPMorgan Chase Bank, N.A., and Bank of
America, N.A., hereunder, a written notice of such designation in form and
substance reasonably satisfactory to the Administrative Agent is delivered by
the Company to the Administrative Agent not less than three Business Days prior
to the effectiveness of such designation, which notice shall at a minimum (A)
identify the Lender to be an Issuing Bank and set forth the notice information
with respect to it, (B) identify the then-existing Issuing Bank being replaced,
and (C) contain the express consent of the identified Issuing Bank to such
designation, and its acceptance of the terms and conditions of this Agreement
with respect to Letters of Credit and the issuance of Letters of Credit by it as
an Issuing Bank, and (ii) after giving effect to such designation, there shall
not be more than two Issuing Banks. The Administrative Agent shall notify the
Lenders of any such designation or replacement of an Issuing Bank. At the time
any such replacement shall become effective, the Company shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.11(b). From and after the effective date of any such designation, (A) the
designated Issuing Bank shall have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (B) references herein to the term "ISSUING BANK" shall be deemed
to refer to such designee or to any previous Issuing Bank, or to such designee
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Company receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
32
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Company shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Company
described in clause (h) or (i) of Article 7. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Company under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Company's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Banks for LC
Disbursements for which they have not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Company for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Company under this Agreement. If the Company is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Company within three Business Days after all
Events of Default (including such Event of Default) have been cured or waived.
Section 2.06 . Funding of Borrowings. Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, in the case of
fundings to an account in New York City, or 12:00 noon, local time, in the case
of fundings to an account in another jurisdiction, in each case to the account
of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that (x) ABR Loans and Canadian Prime Loans
shall be made available by 2:00 p.m. New York City or local time, as the case
may be, and (y) Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the relevant Borrower by
promptly crediting the amounts so received, in like funds, to an account
maintained with the Administrative Agent in New York City or London or in the
financial center of the country of the currency of such Loans and designated by
such Borrower in the applicable Borrowing Request (and, if the applicable
Borrower is a Borrowing Subsidiary, the Company shall make such funds available
to such Borrowing Subsidiary); provided that (x) ABR Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e)
33
shall be remitted by the Administrative Agent to the applicable Issuing Bank and
(y) Loans to Oakley Canada will be credited to an account of Oakley Canada
maintained with the Administrative Agent in Toronto, Canada.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount in the required currency. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the relevant Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender, if such
Borrowing is denominated in U.S. Dollars, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation, and if such Borrowing is
denominated in an Alternative Currency or Canadian Dollars, a rate determined by
the Administrative Agent to represent its cost of overnight or short-term funds
in the relevant currency (which determination shall be conclusive absent
manifest error), or (ii) in the case of such Borrower, the interest rate
applicable to such Borrowing. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
Section 2.07 . Interest Elections. (a) Each Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a
Eurocurrency Borrowing or CDOR Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request. Thereafter, the relevant Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Borrowing or CDOR Borrowing, may
elect Interest Periods therefor, all as provided in this Section. A Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. Notwithstanding the
foregoing, no Borrower may (i) elect to convert the currency in which any Loans
are denominated, (ii) elect an Interest Period for Eurocurrency Loans or CDOR
Loans that does not comply with Section 2.02(d), (iii) elect to convert any ABR
Loans to Eurocurrency Loans that would result in the number of Eurocurrency
Borrowings exceeding the maximum number of Eurocurrency Borrowings permitted
under Section 2.02(c), or (iv) elect an Interest Period for Eurocurrency Loans
or CDOR Loans unless the aggregate outstanding principal amount of Eurocurrency
Loans or CDOR Loans (including any Eurocurrency Loans in the same currency, or
CDOR Loans, made on the date that such Interest Period is to
34
begin) to which such Interest Period will apply complies with the requirements
as to minimum principal amount set forth in Section 2.02(c). This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, a Borrower shall notify
the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if such Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the relevant Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing, a
CDOR Borrowing or a Canadian Prime Borrowing, Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing or a
CDOR Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "INTEREST PERIOD".
If any such Interest Election Request requests a Eurocurrency Borrowing or a
CDOR Borrowing but does not specify an Interest Period, then such Borrower shall
be deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Borrowing or a CDOR Borrowing prior to
the end of the Interest Period applicable thereto, then, unless such Borrowing
is repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing, if it is denominated in U.S. Dollars, or
a
35
Canadian Prime Borrowing, if it is denominated in Canadian Dollars, or
continued, at the end of the applicable Interest Period, as a Eurocurrency Loan
having an Interest Period of one month, if it is denominated in an Alternative
Currency. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Company, then, so long as an Event of
Default is continuing, (i) no outstanding Borrowing denominated in U.S. Dollars
may be converted to or continued as a Eurocurrency Borrowing, (ii) unless
repaid, each Eurocurrency Borrowing denominated in U.S. Dollars shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto, (iii) no outstanding Borrowing denominated in Canadian Dollars may be
converted to or continued as a CDOR Borrowing and (iv) unless repaid, each CDOR
Borrowing shall be converted to a Canadian Prime Borrowing at the end of the
Interest Period applicable thereto.
Section 2.08 . Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to time reduce,
the Global Commitments or the Canadian Commitments; provided that (i) each
reduction of the Global Commitments or the Canadian Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
and (ii) the Company shall not terminate or reduce the Commitments if, after
giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.10, the sum of the Global Credit Exposures would exceed the total
Global Commitments or the sum of the Canadian Credit Exposures would exceed the
total Canadian Commitments.
(c) The Company shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Company pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Company (by notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not satisfied.
Any termination or reduction of the Commitments shall be permanent. Each
reduction of any Class of Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
Section 2.09 . Repayment of Loans; Evidence of Debt. (a) (i) Each Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Global Loan or
Canadian Loan of such Borrower on the Maturity Date and (ii) the Company
36
hereby unconditionally promises to pay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the Maturity Date and
the first date after such Swingline Loan is made that is the 15th or last day of
a calendar month and is at least two Business Days after such Swingline Loan is
made; provided that on each date that a Global Borrowing is made, the Company
shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the currency, Class and Type
thereof and the Interest Period (if any) applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of any Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be evidenced
by a promissory note. In such event, each Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
Section 2.10 . Prepayment of Loans. (a) Each Borrower shall have the right
at any time and from time to time to prepay (without premium or penalty, but
subject to Section 2.15) any Borrowing of such Borrower in whole or in part,
subject to prior notice in accordance with paragraph (e) of this Section.
(b) If the Administrative Agent notifies the Company at any time that the
aggregate Outstanding Amount of all Global Loans at such time exceeds an amount
equal to 105% of the Global Commitments then in effect, then, within
37
three Business Days after receipt of such notice, the Borrowers shall prepay
Global Loans or cash collateralize LC Exposure in an aggregate amount sufficient
to reduce such Outstanding Amount as of such date of payment to an amount not to
exceed 100% of the Global Commitments then in effect. The Administrative Agent
may, at any time and from time to time after the initial deposit of such cash
collateral, request that additional cash collateral be provided in order to
protect against the results of further exchange rate fluctuations.
(c) If the Administrative Agent notifies the Company at any time that the
Outstanding Amount of all Global Loans denominated in Alternative Currencies at
such time exceeds an amount equal to 105% of the Alternative Currency Sublimit
then in effect, then, within three Business Days after receipt of such notice,
the Borrowers shall prepay Global Loans in an aggregate amount sufficient to
reduce such Outstanding Amount as of such date of payment to an amount not to
exceed 100% of the Alternative Currency Sublimit then in effect.
(d) If the Administrative Agent notifies the Company at any time that the
Outstanding Amount of all Canadian Loans at such time exceeds an amount equal to
105% of the Canadian Commitments then in effect, then, within two Business Days
after receipt of such notice, the Borrowers shall prepay Canadian Loans in an
aggregate amount sufficient to reduce such Outstanding Amount as of such date of
payment to an amount not to exceed 100% of the Canadian Commitments then in
effect.
(e) The relevant Borrower shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Borrowing denominated in U.S. Dollars, not later
than 1:00 p.m., New York City time, three Business Days before the date of
prepayment, (ii) in the case of a Eurocurrency Borrowing denominated in an
Alternative Currency, not later than 11:00 a.m., New York City time, four
Business Days before the date of payment, (iii) in the case of prepayment of an
ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of
prepayment, (iv) in the case of prepayment of a Swingline Loan, not later than
12:00 noon, New York City time, on the date of prepayment, (v) in the case of a
CDOR Borrowing, not later than 10:00 a.m., New York City time, two Business Days
before the date of the prepayment, or (vi) in the case of a Canadian Prime
Borrowing, not later than 10:00 a.m., New York City time, on the date of the
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.08, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08. Promptly following
receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the applicable Lenders of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in the
case of an
38
advance of a Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.12.
Section 2.11 . Fees. (a) The Company agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee, which shall accrue at the
Applicable Rate on the daily unused amount of the Commitments of such Lender
during the period from and including the Effective Date to but excluding the
date on which such Commitments terminate. Accrued commitment fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which any Class of Commitments terminate,
commencing on the first such date to occur after the date hereof. All commitment
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(b) The Company agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate used to
determine the interest rate applicable to Eurocurrency Loans on the average
daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Global Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting fee,
which shall accrue at the rate of 0.125% per annum on the average daily amount
of the LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) of such Issuing Bank during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Global Commitments and the date on which there ceases to be any LC Exposure, as
well as each Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Global Commitments terminate and any
such fees accruing after the date on which the Global Commitments terminate
shall be payable on demand. Any other fees payable to an Issuing Bank pursuant
to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Company agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
39
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds in U.S. Dollars, to the Administrative Agent (or to
the applicable Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the
Lenders. Fees paid shall not be refundable under any circumstances.
Section 2.12 . Interest. The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest
at the Eurocurrency Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate plus (in the case of a Eurocurrency Loan of any Lender
which is lent from a lending office in the United Kingdom or a Participating
Member State) the Mandatory Cost.
(c) The Loans comprising each Canadian Prime Borrowing shall bear interest
at the Canadian Prime Rate.
(d) The Loans comprising each CDOR Borrowing shall bear interest at the
CDOR Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.
(e) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by a Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(f) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and upon termination of the relevant
Commitments; provided that (i) interest accrued pursuant to paragraph (e) of
this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan or Canadian Prime
Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Loan or CDOR Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(g) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year) and interest in
respect of Loans denominated in Alternative Currencies or Canadian Dollars as to
which market practice differs from the foregoing shall be computed in accordance
40
with such market practice, and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Eurocurrency Rate, Canadian Prime Rate or CDOR
Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
(h) For the purposes of the Interest Act (Canada), (i) whenever a rate of
interest or fee rate hereunder is calculated on the basis of a year (the "DEEMED
YEAR") that contains fewer days than the actual number of days in the calendar
year of calculation, such rate of interest or fee rate shall be expressed as a
yearly rate by multiplying such rate of interest or fee rate by the actual
number of days in the calendar year of calculation and dividing it by the number
of days in the deemed year, (ii) the principle of deemed reinvestment of
interest shall not apply to any interest calculation hereunder and (iii) the
rates of interest stipulated herein are intended to be nominal rates and not
effective rates or yields.
Section 2.13 . Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurocurrency Borrowing or CDOR Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Eurocurrency Rate or the CDOR Rate, as the
case may be, for such Interest Period;
(b) the Administrative Agent is advised by the Required Lenders that
the Eurocurrency Rate or the CDOR Rate, as the case may be, for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing
for such Interest Period; or
(c) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that deposits in the principal
amounts of the Loans comprising such Borrowing and in the currency in
which such Loans are to be denominated are not generally available in the
relevant market;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any request by a
Borrower for a Eurocurrency Borrowing of the affected currency or a CDOR
Borrowing, as the case may be, or a conversion to or continuation of a
Eurocurrency Borrowing in the affected currency or a CDOR Borrowing, as the case
may be, pursuant to Section 2.03 or 2.07, shall be deemed rescinded, (ii) if any
Borrowing Request requests a Eurocurrency Borrowing denominated in U.S. Dollars,
such Borrowing shall be made as an ABR Borrowing, and (iii) if any
41
Borrowing Request requests a CDOR Borrowing, such Borrowing shall be made as a
Canadian Prime Borrowing.
Section 2.14 . Increased Costs. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except (A) any reserve requirement
contemplated by Section 2.14(e) and (B) the requirements of the Bank of
England and the Financial Services Authority or the European Central Bank
reflected in the Mandatory Cost, other than as set forth below) or Issuing
Bank;
(ii) result in the failure of the Mandatory Cost, as calculated
hereunder, to represent the cost to any Lender of complying with the
requirements of the Bank of England and/or the Financial Services
Authority or the European Central Bank in relation to its making, funding
or maintaining Eurocurrency Loans; or
(iii) impose on any Lender or Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurocurrency Loans
or CDOR Loans made by such Lender or any Letter of Credit or participation
therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or CDOR Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Company will pay to such Lender or Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such Lender or
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or Issuing Bank's capital or on the capital of such
Lender's or Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by such Issuing Bank, to a level
below that which such Lender or Issuing Bank or such Lender's or Issuing Bank's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's or Issuing Bank's policies and the policies of such
Lender's or Issuing Bank's holding company with respect to capital adequacy),
then from time to time the Company will pay to such Lender or Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
42
Lender or Issuing Bank or such Lender's or Issuing Bank's holding company for
any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the amount or
amounts necessary to compensate such Lender or Issuing Bank or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay such Lender or Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's or Issuing Bank's right to demand such compensation; provided that the
Company shall not be required to compensate a Lender or Issuing Bank pursuant to
this Section for any increased costs or reductions incurred more than 270 days
prior to the date that such Lender or Issuing Bank, as the case may be, notifies
the Company of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) The Company shall pay to each Lender, (i) as long as such Lender shall
be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"EUROCURRENCY LIABILITIES"), additional interest on the unpaid principal amount
of each Eurocurrency Loan equal to the actual costs of such reserves allocated
to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), and (ii) as long as such Lender shall be
required to comply with any reserve ratio requirement or analogous requirement
of any other central banking or financial regulatory authority imposed in
respect of the maintenance of the Global Commitments or the funding of the
Eurocurrency Loans, such additional costs (expressed as a percentage per annum
and rounded upwards, if necessary, to the nearest five decimal places) equal to
the actual costs allocated to such Global Commitment or Loan by such Lender (as
determined by such Lender in good faith, which determination shall be
conclusive), which in each case shall be due and payable on each date on which
interest is payable on such Loan, provided the Company shall have received at
least 10 days' prior notice (with a copy to the Administrative Agent) of such
additional interest or costs from such Lender. If a Lender fails to give notice
10 days prior to the relevant Interest Payment Date, such additional interest or
costs shall be due and payable 10 days from receipt of such notice.
Section 2.15 . Break Funding Payments. In the event of (a) the payment of
any principal of any Eurocurrency Loan or CDOR Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan or CDOR Loan other than
43
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.10(e) and is revoked in accordance therewith) or (d) the
assignment of any Eurocurrency Loan or CDOR Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Company
pursuant to Section 2.18, then, in any such event, the Company shall compensate
each Lender for the loss, cost and expense attributable to such event. In the
case of a Eurocurrency Loan or CDOR Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Eurocurrency
Rate or CDOR Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits in the relevant currency of a
comparable amount and period from other banks in the relevant market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Company and shall be conclusive absent manifest error. The Company shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
Section 2.16 . Taxes. Any and all payments by or on account of any
obligation of any Credit Party under the Loan Documents shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if a Credit Party shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Credit Party shall make such deductions and (iii) such Credit Party
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Credit Parties shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Credit Party shall indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of such Credit
Party under the Loan Documents (including Indemnified Taxes or Other Taxes
44
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to such
Credit Party by a Lender or Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or Issuing Bank, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by any Credit Party to a Governmental Authority, such Credit Party shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of a Relevant Jurisdiction, or any treaty to
which such jurisdiction is a party, or under any law or treaty of any other
jurisdiction in which payments may be made by a Borrower pursuant to this
Agreement, with respect to payments under this Agreement, shall deliver to the
Company (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
(including Internal Revenue Forms ▇-▇▇▇▇, ▇-▇▇▇▇ or any successor form)
prescribed by applicable law or reasonably requested by the Company as will
permit such payments to be made without withholding or at a reduced rate. Each
Lender shall promptly (i) notify the Administrative Agent of any change in
circumstances which would modify or render invalid any such claimed exemption or
reduction, and (ii) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including those set forth in Section 2.18) to avoid any requirement
of applicable laws of any such jurisdiction that a Credit Party make any
deduction or withholding for taxes from amounts payable to such Lender.
(f) If the Administrative Agent, a Lender or an Issuing Bank determines,
in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by a Credit Party or with respect to
which a Credit Party has paid additional amounts pursuant to this Section 2.16,
it shall pay over such refund to such Credit Party (but only to the extent of
indemnity payments made, or additional amounts paid, by such Credit Party under
this Section 2.16 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that such Credit
Party, upon the request of the Administrative Agent or such Lender or Issuing
Bank, agrees to repay the amount paid over to such Credit Party (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender or Issuing Bank in the
45
event the Administrative Agent or such Lender is required to repay such refund
to such Governmental Authority. This Section shall not be construed to require
the Administrative Agent or any Lender or Issuing Bank to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to any Credit Party or any other Person.
Section 2.17 . Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Each Borrower shall make each payment required to be made by it
under the Loan Documents (whether of principal, interest, fees or reimbursement
of LC Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) before the time expressly required under the relevant Loan Document
for such payment (or, if no such time is expressly required, before 12:00 noon,
local time at the place of payment), on the date when due, in immediately
available funds, without set off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to such account of
the Administrative Agent as the Administrative Agent shall specify by notice to
the Company, and, until and unless specified pursuant to Schedule 2.17, all such
payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, as applicable, except
payments to be made directly to an Issuing Bank or the Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 10.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
Except as otherwise specified in this Agreement, all payments under each Loan
Document shall be made in U.S. Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its (i) Global Loans or participations in LC Disbursements or
46
Swingline Loans or (ii) Canadian Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Global Loans and
participations in LC Disbursements and Swingline Loans or Canadian Loans and
accrued interest thereon than the proportion received by any other applicable
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Global Loans, LC Disbursements and
Swingline Loans or the Canadian Loans of other applicable Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
applicable Lenders ratably in accordance with the aggregate amount of principal
of and accrued interest on their respective Global Loans and participations in
LC Disbursements and Swingline Loans or Canadian Loans; provided that (iii) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(iv) the provisions of this paragraph shall not be construed to apply to any
payment made by any Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
any Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). Each Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against such Borrower rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
relevant Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the applicable Lenders or an Issuing
Bank hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
applicable Lenders or Issuing Bank, as the case may be, the amount due. In such
event, if such Borrower has not in fact made such payment, then each of the
applicable Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at, if such payment is denominated in U.S.
Dollars, the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation, and, if such payment is denominated in an Alternative
Currency or Canadian Dollars, a rate determined by the Administrative Agent to
represent its cost of overnight or short-term funds in the relevant currency
(which determination shall be conclusive absent manifest error).
47
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 10.03(c), then
the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
Section 2.18 . Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.14, or if any Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.16, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.14 or 2.16, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Company hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, or if a
Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and has
been approved by the Required Lenders, then the Company may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 10.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Company shall have received the prior written
consent of the Administrative Agent (and if a Global Commitment is being
assigned, the Issuing Banks), which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.14 or payments required to be made
pursuant to Section 2.16, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and
48
delegation cease to apply. At any time prior to the effectiveness of such
assignment and delegation, the Company, in its sole discretion, may revoke the
notice requiring such assignment and delegation.
Section 2.19 . Additional Borrowing Subsidiaries. On or after the
Effective Date, the Company may designate any Subsidiary as a Borrowing
Subsidiary by delivery to the Administrative Agent of a Borrowing Subsidiary
Agreement executed by such Subsidiary and the Company, and upon such delivery
such Subsidiary shall for all purposes of this Agreement be a Borrowing
Subsidiary and a party to this Agreement until the Company shall have executed
and delivered to the Administrative Agent a Borrowing Subsidiary Termination
with respect to such Subsidiary, whereupon such Subsidiary shall cease to be a
Borrowing Subsidiary and a party to this Agreement. Notwithstanding the
preceding sentence, no Borrowing Subsidiary Termination will become effective as
to any Borrowing Subsidiary at a time when any principal of or interest on any
Loan to such Borrowing Subsidiary shall be outstanding hereunder, provided that
such Borrowing Subsidiary Termination shall be effective to terminate such
Borrowing Subsidiary's right to make further Borrowings under this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
Section 3.01 . Organization; Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
Section 3.02 . Authorization; Enforceability. The Transactions to be
entered into by each Credit Party are within its corporate powers and have been
duly authorized by all necessary corporate and, if required, stockholder action.
This Agreement has been duly executed and delivered by the Company and
constitutes, and each other Loan Document to which any Credit Party is to be a
party, when executed and delivered by such Credit Party, will constitute, a
legal, valid and binding obligation of the Company or such Credit Party, as the
case may be, in each case enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
Section 3.03 . Governmental Approvals; No Conflicts. The Transactions do
not require any consent or approval of, registration or filing with, or any
49
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Company or any of its Subsidiaries or any order of any Governmental
Authority, (c) except to the extent that such violation or default could not
reasonably be expected to result in a Material Adverse Effect, will not violate
or result in a default under any indenture, agreement or other instrument
binding upon the Company or any of its Subsidiaries or its assets, or give rise
to a right thereunder to require any payment to be made by the Company or any of
its Subsidiaries, and (d) will not result in the creation or imposition of any
Lien on any asset of the Company or any of its Subsidiaries (other than any
Liens created under the Loan Documents). No exchange control law or regulation
restricts any Credit Party from complying with its obligations, as borrower or
guarantor, in respect of any Obligation under any Loan Document.
Section 3.04 . Financial Condition; No Material Adverse Change. (a) The
Company has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended December 31, 2005, reported on by Deloitte & Touche LLP,
independent registered public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended June 30, 2006, certified by its
chief financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Company and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Since December 31, 2005, there has been no material adverse change in
the business, results of operations, property, financial condition or prospects
of the Company and its Subsidiaries, taken as a whole.
Section 3.05 . Properties. (a) Each of the Company and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and, to the knowledge of the Company and its
Subsidiaries, the use thereof by the Company and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
Section 3.06 . Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
50
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, neither the Company nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
Section 3.07 . Compliance with Laws and Agreements. Each of the Company
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
(i) the necessity of such compliance is being contested in good faith by
appropriate proceedings diligently conducted or (ii) the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No Default has occurred and is continuing.
Section 3.08 . Investment Company Status. Neither the Company nor any of
its Subsidiaries is an "INVESTMENT COMPANY" as defined in, or subject to
regulation under, the Investment Company Act of 1940.
Section 3.09 . Taxes. Each of the Company and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Company or such Subsidiary, as applicable, has set
aside on its books adequate reserves in accordance with GAAP or (b) to the
extent that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect. To the knowledge of the Company, there is no pending or
proposed Tax assessment against the Company or any of its Subsidiaries that, if
made, would have a Material Adverse Effect.
Section 3.10 . ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
51
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
Section 3.11 . Disclosure. The Company has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of any Credit Party to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contains any untrue statement of a material fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Company
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
Section 3.12 . Subsidiaries. Schedule 3.12 sets forth the name of, and the
ownership interest of the Company in, each of its Subsidiaries and identifies
each Subsidiary that is a Guarantor Subsidiary, in each case as of the Effective
Date. All the Company's Subsidiaries are, and will at all times be, fully
consolidated in its consolidated financial statements.
Section 3.13 . Labor Matters. There are no strikes, lockouts or slowdowns
against the Company or any of its Subsidiaries pending or, to the knowledge of
the Company, threatened that could reasonably be expected to have a Material
Adverse Effect.
ARTICLE 4
CONDITIONS
Section 4.01 . Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed
on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
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(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the
Company, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, special Washington counsel to the Company,
and Leger ▇▇▇▇▇ ▇▇▇▇▇▇▇, L.L.P., special Quebec counsel to the Company, in
form and substance reasonably satisfactory to the Administrative Agent and
its counsel and covering such matters relating to the Credit Parties, the
Loan Documents and the Transactions as the Required Lenders shall
reasonably request. The Company hereby requests such counsel to deliver
such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Credit Party, the authorization of the Transactions and any other legal
matters relating to the Credit Parties, the Loan Documents or the
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or
a Financial Officer of the Company, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02. (e) The
Administrative Agent shall have received all fees and other amounts due
and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out of pocket expenses required
to be reimbursed or paid by the Company hereunder.
(f) The Administrative Agent shall have received from each Guarantor
Subsidiary either (i) a counterpart of the Domestic Subsidiary Guaranty
duly executed and delivered on behalf of such Guarantor Subsidiary or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page) that such
Guarantor Subsidiary has signed a counterpart of the Domestic Subsidiary
Guaranty.
(g) The Administrative Agent shall have received evidence that all
commitments under the Existing Credit Agreement have been or concurrently
with the Effective Date are being terminated, all outstanding amounts
thereunder have been or concurrently with the Effective Date paid in full
and all Liens securing obligations thereunder and Guaranties relating
thereto have been or concurrently with the Effective Date are being
released.
53
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section
10.02) at or prior to 3:00 p.m., New York City time, on September 30, 2006 (and,
in the event such conditions are not so satisfied or waived, the Commitments
shall terminate at such time).
Section 4.02 . Each Credit Event. The obligation of each Lender to make
any Loan, and of an Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of each Credit Party set
forth in the Loan Documents shall be true and correct on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be
continuing.
(c) In the case of a Borrowing to be denominated in an Alternative
Currency, there shall not have occurred any change in national or
international financial, political or economic conditions or currency
exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent and the Required Lenders would make it impracticable
for such Borrowing to be denominated in the relevant Alternative Currency.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Company and, if applicable, the relevant Borrowing Subsidiary, on the date
thereof as to the matters specified in paragraphs (a) and (b) of this Section.
Section 4.03 . Each Borrowing Subsidiary Credit Event. The obligation of
each Lender to make Loans hereunder to any Borrowing Subsidiary other than
Oakley Canada is subject to the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from
each party thereto either (i) a counterpart of such Borrowing Subsidiary's
Borrowing Subsidiary Agreement or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page thereof) that such party has signed a counterpart of such
Borrowing Subsidiary Agreement.
54
(b) The Administrative Agent shall have received a favorable written
opinion of counsel for such Borrowing Subsidiary (which counsel shall be
reasonably acceptable to the Administrative Agent), in form and substance
reasonably satisfactory to the Administrative Agent and its counsel, and
covering such matters relating to such Borrowing Subsidiary and its Borrowing
Subsidiary Agreement as the Administrative Agent shall reasonably request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of such Borrowing
Subsidiary, the authorization of the Transactions relating to such Borrowing
Subsidiary and any other legal matters relating to such Borrowing Subsidiary,
its Borrowing Subsidiary Agreement or such Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
ARTICLE 5
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Company covenants and agrees with
the Lenders that:
Section 5.01 . Financial Statements; Ratings Change and Other Information.
The Company will furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, (i) its audited consolidated
balance sheet and related statements of income, stockholders' equity and
cash flows as of the end of and for such year, setting forth in each case
in comparative form the figures for the previous fiscal year, all reported
on by independent registered public accountants of recognized national
standing (without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations of
the Company and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, and (ii) a consolidating
balance sheet as of the end of such fiscal year and the related
consolidating statement of income for such fiscal year, which financial
statements substantially represent the consolidated financial condition of
and results of operations for each of the Guarantor Subsidiaries and its
consolidated subsidiaries as of the end of and for such fiscal year, in
each case, certified as to fairness of presentation, generally accepted
accounting
55
principles and consistency (except with respect to any changes made as a
result of changes to generally accepted accounting principles) by the
chief financial officer, the treasurer or the chief accounting officer of
each of the Guarantor Subsidiaries;
(b) as soon as available and in any event within 60 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Company, (i) its consolidated balance sheet and related statements of
income, stockholders' equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end
of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial
condition and results of operations of the Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes, and (ii) a consolidating balance sheet as of the end of such
quarter and the related consolidating statement of income for the portion
of the fiscal year ended at the end of such quarter, which financial
statements substantially represent the consolidated financial condition of
and results of operations for each of the Guarantor Subsidiaries and its
consolidated subsidiaries as of the end of such fiscal quarter and for
such portion of the fiscal year, certified as to fairness of presentation,
generally accepted accounting principles and consistency (except with
respect to any changes made as a result of changes to generally accepted
accounting principles) by the chief financial officer, the treasurer or
the chief accounting officer of each of the Guarantor Subsidiaries;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer (i)
certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, setting forth reasonably detailed
calculations demonstrating compliance with Section 6.13, setting forth in
reasonable detail the calculation of the Subsidiary Guaranty Coverage
Percentages as of the last day of the period covered by such financial
statements and (iv) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) as soon as available and in any event within 90 days after the
end of each fiscal year of Oakley Canada, its audited consolidated balance
sheet and related statements of income, stockholders' equity and cash
flows as of the end of and for such year, setting forth in each case in
56
comparative form the figures for the previous fiscal year, all reported on
by independent registered public accountants of recognized national
standing (without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations of
Oakley Canada and its consolidated subsidiaries on a consolidated basis in
accordance with generally accepted accounting principles in Canada
consistently applied;
(e) as soon as practicable and in any event no later than 60 days
after the beginning of each fiscal year of the Company, a consolidated
financial plan and forecast for such fiscal year, including without
limitation (i) forecasted consolidated balance sheets, forecasted
consolidated and consolidating statements of income and forecasted
consolidated cash flows of the Company and its Subsidiaries for such
fiscal year and (ii) such other information and projections as the
Administrative Agent may reasonably request;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Company or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, as the case may
be; and
(g) with reasonable promptness following any request therefor, such
other information regarding the operations, business affairs and financial
condition of the Company or any Subsidiary, or compliance with the terms
of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.
Documents required to be delivered pursuant to Section 5.01 may be
delivered electronically and, if so delivered, shall be deemed to have been
delivered on the date (i) on which the Company posts such documents or provides
a link thereto on the Company's website on the Internet at the website address
▇▇▇.▇▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on the Company's
behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (x) the Company
shall deliver paper copies of such documents to the Administrative Agent or any
Lender that requests the Company to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent or
such Lender and (y) the Company shall notify the Administrative Agent and each
Lender (by telecopier or electronic mail) of the posting of any such documents
and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. The Administrative Agent shall have no
57
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Company with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
The Company hereby acknowledges that (a) the Administrative Agent will
make available to the Lenders and the Issuing Banks materials and/or information
provided by or on behalf of the Company hereunder (collectively, "COMPANY
MATERIALS") by posting the Company Materials on IntraLinks or another similar
electronic system (the "PLATFORM") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Company or its securities) (each, a
"PUBLIC LENDER"). The Company hereby agrees that (w) all Company Materials that
are to be made available to Public Lenders shall be clearly and conspicuously
marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall
appear prominently on the first page thereof; (x) by marking Company Materials
"PUBLIC," the Company shall be deemed to have authorized the Administrative
Agent, the Issuing Banks and the Lenders to treat such Company Materials as not
containing any material non-public information with respect to the Company or
its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Company Materials constitute
Information, they shall be treated as set forth in Section 10.12); (y) all
Company Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor;" and (z) the Administrative
Agent shall be entitled to treat any Company Materials that are not marked
"PUBLIC" as being suitable only for posting on a portion of the Platform not
designated "Public Investor." Notwithstanding the foregoing, the Company shall
be under no obligation to ▇▇▇▇ any Company Materials "PUBLIC."
Section 5.02 . Notices of Material Events. Upon becoming aware thereof,
the Company will furnish to the Administrative Agent and each Lender prompt
written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Company and its Subsidiaries in an aggregate
amount exceeding $1,000,000; and
58
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
Section 5.03 . Existence; Conduct of Business. The Company will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.
Section 5.04 . Payment of Obligations. The Company will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could reasonably be expected to result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Company or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
Section 5.05 . Maintenance of Properties; Insurance. The Company will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
Section 5.06 . Books and Records; Inspection Rights. The Company will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of financial transactions and
matters involving the assets and business of the Company and its Subsidiaries.
The Company will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times during normal business hours and as often as reasonably
requested.
Section 5.07 . Compliance with Laws. The Company will, and will cause each
of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority (including, without limitation, Environmental Laws)
59
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
Section 5.08 . Use of Proceeds and Letters of Credit. The proceeds of the
Loans will be used for general corporate purposes in the ordinary course of
business, including, without limitation, refinancing existing Indebtedness. No
part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of Regulation U or X of the Board.
Letters of Credit will be issued only to support obligations incurred in the
ordinary course of business.
Section 5.09 . Guarantor Subsidiaries. The Company shall cause each of the
Guarantor Subsidiaries to (a) preserve its separate existence as required by
Section 5.03, provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03, (b)
comply in all material respects with the requirements of its organizational
documents and other governing instruments (including bylaws), (c) not conduct
business under the name of the Company or any other Guarantor Subsidiary, (d)
maintain separate and complete books and records in accordance with generally
acceptable accounting principles and otherwise to properly reflect its business
and financial affairs, (e) maintain full and complete records of all
transactions with other Subsidiaries, and (f) maintain its own bank accounts and
not commingle any of its funds with any other Person.
Section 5.10 . Subsidiary Guaranty Coverage Percentages. If, at the end of
any fiscal quarter or fiscal year, any Subsidiary Guaranty Coverage Percentage
is less than 75%, the Company shall, within 30 days after the delivery of the
certificate pursuant to Section 5.01(c)(iii) setting forth the Subsidiary
Guaranty Coverage Percentages as of the end of such fiscal quarter or year,
deliver to the Administrative Agent one or more additional Subsidiary Guaranties
from one or more additional Guarantor such that each Subsidiary Guaranty
Coverage Percentage as of the end of such quarter, on a pro forma basis taking
into account such additional Subsidiary Guaranties, is not less than 75%;
provided that if the Company is unable to comply with the foregoing requirement
through the delivery of additional Guaranties, it may instead enter into a
Support Document, on terms and conditions reasonably satisfactory to the
Administrative Agent (including, without limitation, the delivery of originally
executed copies of one or more favorable written opinions in form and substance
reasonably satisfactory to the Administrative Agent, setting forth the opinion
that, under the local laws relevant to such Foreign Subsidiary, the mortgage,
charge, pledge, lien or other security interest of, over or in the Equity
Interests in such Foreign Subsidiary as Collateral is perfected and
enforceable), pursuant to which a Lien in favor of the Administrative Agent and
the Lenders is granted in Collateral consisting of 66% of the Equity Interests
of a Foreign Subsidiary, whereupon, for purposes of calculating compliance with
the foregoing requirement, such Foreign Subsidiary shall be deemed to have
delivered a Subsidiary Guaranty. For purposes of
60
making the calculations required by clause (a) of the definitions of Asset
Percentage and EBITDA Percentage, only 66% of the consolidated total assets of,
and the portion of consolidated EBITDA attributable to, any such Foreign
Subsidiary and its consolidated subsidiaries shall be included.
ARTICLE 6
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, the Company covenants and agrees with the Lenders that:
Section 6.01 . Indebtedness. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.01, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof;
(c) Indebtedness of the Company to any Subsidiary and of any
Subsidiary to the Company or any other Subsidiary;
(d) Guaranties by the Company of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of the Company or any other Subsidiary;
(e) Indebtedness of the Company or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured
by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that (i) such
Indebtedness is incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement and (ii)
the aggregate principal amount of Indebtedness permitted by this clause
(e) shall not exceed $25,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after the
date hereof;
61
(g) Indebtedness of the Company or any Subsidiary as an account
party in respect of trade letters of credit;
(h) other unsecured Indebtedness in an aggregate principal amount
not exceeding $100,000,000 at any time outstanding; provided that the
aggregate principal amount of Indebtedness permitted by this clause (h) of
Subsidiaries which are not Guarantor Subsidiaries and Subsidiaries the
Equity Interests in which have not been pledged in accordance with Section
5.10 shall not exceed $25,000,000 at any time outstanding; and
(i) other secured Indebtedness in an aggregate principal amount not
exceeding $15,000,000 at any time outstanding.
Section 6.02 . Liens. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
provided that such Lien shall secure only those obligations which it
secures on the date hereof and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Company or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; provided that (i) such security
interests secure Indebtedness permitted by clause (e) of Section 6.01,
(ii) such security interests and the Indebtedness secured thereby are
incurred prior to or within 180 days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed the cost of acquiring, constructing or
62
improving such fixed or capital assets and (iv) such security interests
shall not apply to any other property or assets of the Company or any
Subsidiary;
(e) Liens securing Indebtedness owed to the Company or a
wholly-owned Subsidiary, provided that (x) such Lien is junior to any Lien
existing under the Support Documents and (y) the holder of such secured
Indebtedness may not transfer any such secured Indebtedness to any Person
other than the Company or a wholly-owned Subsidiary unless, upon giving
effect to such transfer, such Liens would be permitted under the other
provisions of this Section; and
(f) other Liens securing Indebtedness permitted by clauses (e) and
(i) of Section 6.01.
Section 6.03 . Fundamental Changes; Asset Sales and Acquisitions. The
Company shall not, and shall not permit any of its Subsidiaries to, alter the
corporate or legal structure of the Company or any of its Subsidiaries, or enter
into any transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, sub-lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any part of its business, property or fixed
assets, whether now owned or hereafter acquired, or acquire by purchase or
otherwise all or substantially all the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any Person or any division
or line of business of any Person, except:
(a) any Subsidiary may be merged with or into the Company or any
wholly-owned Subsidiary or Barter (provided that the Company owns at least
90% of all Equity Interests in Barter ), or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to the Company or any
wholly-owned Subsidiary or Barter (provided that the Company owns at least
90% of all Equity Interests in Barter ); provided that, in the case of
such a merger, the Company, such wholly-owned Subsidiary or Barter shall
be the continuing or surviving corporation;
(b) the Company and its Subsidiaries may make investments permitted
under Section 6.04;
(c) the Company and its wholly-owned Subsidiaries may receive
contributions of assets and property from their respective shareholders;
(d) the Company and its Subsidiaries may make Capital Expenditures;
63
(e) the Company and its Subsidiaries may sell or otherwise dispose
of assets in transactions that do not constitute Asset Sales, including,
without limitation, sales of inventory and obsolete equipment in the
ordinary course of business;
(f) the Company and its Subsidiaries may sell, transfer or otherwise
dispose of assets in Asset Sales, provided the fair market value of assets
so sold, transferred or otherwise disposed of by the Company and its
Subsidiaries in any fiscal year of the Company (exclusive of assets lost
or damaged as the result of any accidental event and any assets sold in a
sale and lease-back transaction permitted under Section 6.08), determined
without duplication, is not in excess of 5% of the consolidated assets of
the Company and its Subsidiaries as of the end of the preceding fiscal
year of the Company in any year; provided that (x) the consideration
received for such assets (excluding any lost or damaged assets) shall be
in an amount at least equal to the fair market value thereof; and (y) 75%
of the consideration received shall be cash; and
(g) the Company and its Subsidiaries may make Permitted
Acquisitions.
Section 6.04 . Investments, Loans, Advances, Guaranties and Acquisitions.
The Company will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly-owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Cash Equivalents;
(b) intercompany loans to the extent permitted under Section 6.01;
(c) investments in promissory notes received in consideration of
assets or property sold in a transaction permitted under Section 6.03;
(d) the Company and its Subsidiaries may continue to own the
investments owned by them and described in Schedule 6.04;
(e) the Company may make loans and advances to employees and the
Principal Shareholder for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course of
business and consistent with past practices;
64
(f) the Company and its Subsidiaries may make Permitted
Acquisitions;
(g) the Company and its Subsidiaries may make investments in the
Company, other wholly-owned Subsidiaries and Barter (provided that the
Company owns at least 90% of all Equity Interests in Barter );
(h) the Company and its Subsidiaries may make and own investments,
in addition to the investments described in clauses (a) through (g) and
(i) through (j) of this Section 6.04, in an amount that does not exceed a
total aggregate amount of $20,000,000 during the term of this Agreement
(after giving effect to all payments received in respect of such
investments, whether principal, interest, dividends or otherwise);
(i) the Company may make investments, in addition to investments
described in clauses (a) through (h) of this Section 6.04; provided that
(x) the only consideration given by the Company to make such investments
consists of (i) the Company's common stock and (ii) the assumption of
liabilities, and (y) the assumption of such liabilities is permitted under
Section 6.01 and does not violate Section 6.13; and
(j) the Company may make investments received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, suppliers and
customers.
Section 6.05 . Swap Agreements. The Company will not, and will not permit
any of its Subsidiaries to, enter into any Swap Agreement, except (a) Swap
Agreements entered in the ordinary course of business to hedge or mitigate risks
to which the Company or any Subsidiary is exposed in the conduct of its business
or the management of its assets (other than those in respect of Equity Interests
of the Company or any of its Subsidiaries), and (b) Swap Agreements entered into
in order to effectively cap, collar or exchange interest rates (from fixed to
floating rates, from one floating rate to another floating rate or otherwise)
with respect to any interest-bearing liability or investment of the Company or
any Subsidiary.
Section 6.06 . Restricted Payments. The Company will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (i) Company may declare
and pay dividends with respect to its Equity Interests payable solely in
additional shares of its common stock, (ii) Subsidiaries may declare and pay
dividends ratably with respect to their Equity Interests, (iii) the Company may
make Restricted Payments pursuant to and in accordance with stock option plans
or other benefit plans for management or employees of the Company and its
Subsidiaries, (iv) the Company may declare and pay cash dividends with respect
to its Equity Interests if, immediately after giving effect thereto, no Default
shall have occurred and be continuing and the aggregate of all such payments
declared
65
or made does not exceed the greater of (x) in any fiscal year of the Company,
$25,000,000, and (y) after June 30, 2006, 30% of the consolidated net income of
the Company and its consolidated Subsidiaries for the period from July 1, 2006
through the end of the then most recent fiscal quarter of the Company (treated
for this purpose as a single accounting period), and (v) the Company may make
payments on account of the purchase, redemption, retirement, acquisition or
cancellation of its common stock if, immediately after giving effect thereto, no
Default shall have occurred and be continuing and, on a pro forma basis
reasonably satisfactory to the Administrative Agent, the Leverage Ratio,
determined as of the most recently ended fiscal quarter of the Company for which
financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b),
shall not exceed 1.75:1.00.
Section 6.07 . Restrictive Agreements. The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits or imposes any
material condition upon the ability of the Company or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the
Company or any other Subsidiary or to Guarantee Indebtedness of the Company or
any other Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 6.07 (but shall apply to any extension or renewal
of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness (including, without
limitation, in respect of Capital Lease Obligations) permitted by this Agreement
if such restrictions or conditions apply only to the property or assets securing
such Indebtedness and (v) clause (a) of the foregoing shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof.
Section 6.08 . Sales and Leasebacks. The Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, become or remain
liable as lessee or as a guarantor or other surety with respect to any lease,
whether an operating lease or a capital lease, of any property (whether real,
personal or mixed), whether now owned or hereafter acquired, (i) which the
Company or any of its Subsidiaries has sold or transferred or is to sell or
transfer to any other Person (other than the Company or any of its Subsidiaries)
or (ii) which the Company or any of its Subsidiaries intends to use for
substantially the same purpose as any other property which has been or is to be
sold or transferred by the
66
Company or any of its Subsidiaries to any Person (other than the Company or any
of its Subsidiaries) in connection with such lease.
Section 6.09 . Sale or Discount of Receivables. The Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face value thereof,
any of its notes or accounts receivable, except for past due accounts sold to
collection agencies.
Section 6.10 . Transactions with Principal Shareholder and Affiliates. The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 5% or more of any class of Equity
Interests in the Company or with any Affiliate of the Company, or of any such
holder, on terms that are less favorable to the Company or that Subsidiary, as
the case may be, than those that would be obtained at the time from Persons who
are not such a holder or Affiliate; provided that the foregoing restriction
shall not apply to (i) any transaction between the Company and any of its
wholly-owned Subsidiaries or Barter (provided that the Company owns at least 90%
of all Equity Interests in Barter ) or between any of its wholly-owned
Subsidiaries and/or Barter (provided that the Company owns at least 90% of all
Equity Interests in Barter ), (ii) any transaction between the Company and any
Subsidiary, (iii) salaries, bonuses and other executive compensation to the
Company's management stockholders, (iv) any issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock ownership plans
approved by the board of directors of the Company, (v) loans or advances to
employees and the Principal Shareholder made in accordance with past practice
and permitted under Section 6.04, (vi) the payment of reasonable fees to
directors of the Company and its Subsidiaries; (vii) transactions pursuant to
employment agreements between the Company or any of its Subsidiaries and any
executive officer; (viii) any transaction listed on Schedule 6.10; or (ix) other
immaterial transactions involving payments or transfers of property or assets by
the Company or any of its Subsidiaries to any such Affiliate, provided that the
fair market value of property or assets transferred to any such Affiliate
pursuant to this clause (ix) shall not exceed $500,000 in any fiscal year of the
Company and that the aggregate fair market value of property and assets
transferred pursuant to this clause (ix) to all such Affiliates does not exceed
$1,000,000 in any fiscal year of the Company.
Section 6.11 . Conduct of Business. From and after the Effective Date, the
Company shall not, and shall not permit any of its Subsidiaries to, engage in
any business other than (i) the businesses engaged in by the Company and its
Subsidiaries on the Effective Date and similar or related businesses and (ii)
such other lines of business as may be consented to by the Required Lenders.
67
Section 6.12 . Fiscal Year. The Company shall not and shall not permit its
Subsidiaries to change their respective fiscal year-ends from December 31.
Section 6.13 . Financial Covenants.
(a) Leverage Ratio. The Company will not permit the Leverage Ratio at any
time to exceed 2.50:1.00.
(b) Interest and Rental Expense Ratio. The Company will not permit the
ratio of (i) the sum of Consolidated EBITDA and Consolidated Rental Expense to
(ii) the sum of consolidated interest expense of the Company and its
Subsidiaries and Consolidated Rental Expense, in each case for any period of
four consecutive fiscal quarters, to be less than 3.00:1.00.
ARTICLE 7
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement of such
Borrower when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in (a) of this
Article) payable by such Borrower under any Loan Document, when and as the
same shall become due and payable, and such failure shall continue
unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of any Credit Party or any Subsidiary in or in connection with any
Loan Document or any amendment or modification hereof or waiver hereunder,
or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, shall prove to have
been incorrect when made or deemed made;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to
the Company's existence), 5.08 or 5.10 or in Article 6;
(e) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice
68
thereof from the Administrative Agent to the Company (which notice will be
given at the request of any Lender);
(f) the Company or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Company or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to
the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Company or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become
due;
69
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Company or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the
Company and its Subsidiaries in an aggregate amount exceeding $2,500,000;
(m) a Change in Control shall occur;
(n) any Lien purported to be created under any Support Document
shall cease to be, or shall be asserted by any Credit Party not to be, a
valid and perfected Lien on any Collateral, with the priority required by
the applicable Support Document, except as a result of a sale or other
disposition of the applicable Collateral in a transaction permitted under
the Loan Documents or as a result of the Administrative Agent's failure to
maintain possession of any stock certificates delivered to it under a
Support Document or to make filings that do not require the signature of
the Company or a Subsidiary with the appropriate authorities necessary to
maintain the validity or perfection of such Lien; or
(o) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Article 9, or the Guaranty of the
Company hereunder or any Subsidiary Guaranty shall at any time fail to
constitute a valid and binding agreement of such Guarantor or any party
shall so assert in writing;
then, and in every such event (other than an event with respect to any Borrower
described in (h) or (i) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Borrower; and in case of any
event with respect to any Borrower described in clause (h) or (i) of this
Article, the
70
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower.
ARTICLE 8
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Company or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to take
any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.02), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Company or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.02) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by a
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report
71
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article 4 or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for a Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Banks and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Banks, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03
72
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as
Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or
related agreement or any document furnished hereunder or thereunder.
ARTICLE 9
COMPANY GUARANTY
In order to induce the Lenders to extend credit hereunder, the Company
hereby irrevocably and unconditionally guarantees, as a primary obligor and not
merely as a surety, the Obligations of each Borrowing Subsidiary under this
Agreement. The Company further agrees that the due and punctual payment of such
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its Guaranty
hereunder notwithstanding any such extension or renewal of any such Obligation.
The Company waives presentment to, demand of payment from and protest to
any Borrowing Subsidiary of any of such Obligations, and also waives notice of
acceptance of its obligations and notice of protest for nonpayment. The
obligations of the Company hereunder shall not be affected by (a) the failure of
any Lender or the Administrative Agent to assert any claim or demand or to
enforce any right or remedy against any Borrowing Subsidiary under the
provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Agreement, any
Borrowing Subsidiary Agreement or any other agreement; or (c) the failure of any
Lender to exercise any right or remedy against any Borrowing Subsidiary.
The Company further agrees that its agreement hereunder constitutes a
promise of payment when due (whether or not any bankruptcy or similar proceeding
shall have stayed the accrual or collection of any of the Obligations or
operated as a discharge thereof) and not merely of collection, and waives any
right to require that any resort be had by any Lender to any balance of any
deposit account or credit on the books of any Lender in favor of any Borrower or
any other person.
The obligations of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, and shall not
be
73
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of the
Obligations, any impossibility in the performance of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
the Company hereunder shall not be discharged or impaired or otherwise affected
by the failure of the Administrative Agent or any Lender to assert any claim or
demand or to enforce any remedy under this Agreement or any other agreement, by
any waiver or modification in respect of any thereof, by any default, failure or
delay, willful or otherwise, in the performance of the Obligations, or by any
other act or omission which may or might in any manner or to any extent vary the
risk of the Company or otherwise operate as a discharge of the Company or any
other Borrower as a matter of law or equity.
The Company further agrees that its obligations hereunder shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be restored
by the Administrative Agent or any Lender upon the bankruptcy or reorganization
of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other right
which the Administrative Agent or any Lender may have at law or in equity
against the Company by virtue hereof, upon the failure of any Borrowing
Subsidiary to pay any Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment or otherwise, the
Company hereby promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Obligation. The Company further agrees that if payment in respect of
any Obligation shall be due in a currency other than dollars and/or at a place
of payment other than New York and if, by reason of any Change in Law,
disruption of currency or foreign exchange markets, war or civil disturbance or
similar event, payment of such Obligation in such currency or at such place of
payment shall be impossible or, in the judgment of any applicable Lender, not
consistent with the protection of its rights or interests, then, at the election
of any applicable Lender, the Company shall make payment of such Obligation in
dollars (based upon the applicable exchange rate in effect on the date of
payment) and/or in New York, and shall indemnify such Lender against any losses
or expenses that it shall sustain as a result of such alternative payment.
Upon payment by the Company of any sums as provided above, all rights of
Company against any Borrowing Subsidiary arising as a result thereof by way of
right of subrogation or otherwise shall in all respects be subordinated and
junior in right of payment to the prior indefeasible payment in full of all the
Obligations owed by such Borrowing Subsidiary to the Lenders.
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ARTICLE 10
MISCELLANEOUS
Section 10.01 . Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to any Borrower, to it in care of the Company at One Icon,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Chief Financial Officer
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
Loan and Agency Services Group, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (312)
385-7107), with a copy to ▇.▇. ▇▇▇▇▇▇ Securities Inc., 1999 Avenue of the
▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇
▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇) and, in the case of Borrowing
Requests, Interest Election Requests and notices of prepayments relating
to Canadian Loans, with another copy to JPMorgan Chase Bank, N.A., Loan
and Agency Services Group, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
Ontario MSJ2J2, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (416)
981-2375);
(iii) if to JPMorgan Chase Bank, N.A., in its capacity as an Issuing
Bank, to it at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention of ▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(iv) if to Bank of America, N.A., in its capacity as an Issuing
Bank, to it at Trade Operations-Los Angeles, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
Floor, Mail Code: CA9-703-19-23 (for standby Letters of Credit) or
CA9-703-19-5 (for commercial Letters of Credit), ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇ (for standby Letters of Credit) or
▇▇▇▇▇▇ Bellevue (for commercial Letters of Credit);
(v) if to any other Issuing Bank, to it at its address (or telecopy
number) set forth in its notice of designation;
(vi) if to the Swingline Lender, to it at Loan and Agency Services
Group, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention of ▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇.▇.
▇▇▇▇▇▇ Securities Inc., 1999 Avenue of the ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (310)
860-7110); and
(vii) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
75
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Company may, in its discretion, agree to accept notices and other communications
to it or in its care hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
Section 10.02 . Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, an Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Banks and the Lenders under the Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Credit
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or any
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) No Loan Document or provision thereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into
by the Company and the Required Lenders or by the Company and the Administrative
Agent with the consent of the Required Lenders; provided that no such agreement
shall
(i) increase any Commitment of a Lender without the written consent
of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby,
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(iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby,
(iv) change Section 2.17(b) or (c) in a manner that would alter the
pro rata sharing of payments required thereby, without the written consent
of each Lender,
(v) change any of the provisions of this Section or the definition
of "REQUIRED LENDERS" or any other provision of any Loan Document
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender,
(vi) release the Company from its Guaranty hereunder, or any
Guarantor Subsidiary from its Subsidiary Guaranty (except as expressly
provided hereunder or in the Subsidiary Guaranty to which it is a party),
or limit its liability in respect thereof, without the written consent of
each Lender,
(vii) release all or substantially all of the Collateral from the
Liens granted under the Support Documents (if any), without the written
consent of each Lender, or
(viii) amend Section 1.06 or the definition of "ALTERNATIVE
CURRENCY" without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, the Issuing Banks or the
Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Banks or the Swingline Lender, as the case may
be.
Section 10.03 . Expenses; Indemnity; Damage Waiver. The Company shall pay
(i) all reasonable out of pocket expenses incurred by the Administrative Agent
and its Affiliates, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent, in connection with the syndication of the
credit facilities provided for herein, the preparation and administration of the
Loan Documents and any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for the
77
Administrative Agent, any Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Company shall indemnify the Administrative Agent, each Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "INDEMNITEE") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by an Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Liability related in any way to the Company
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) To the extent that the Company fails to pay any amount required to be
paid by it to the Administrative Agent, an Issuing Bank or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent, such Issuing Bank or the Swingline Lender, as the
case may be, such Lender's Applicable Percentage (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, such Issuing Bank or the Swingline
Lender in its capacity as such.
(d) To the extent permitted by applicable law, no Borrower shall assert,
and each Borrower hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
78
result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the Transactions, any Loan or Letter
of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
Section 10.04 . Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of an Issuing Bank that issues any Letter of Credit), except that (i)
no Borrower may assign or otherwise transfer any of its rights or obligations
hereunder or under any Borrowing Subsidiary Agreement without the prior written
consent of each Lender (and any attempted assignment or transfer by any Borrower
without such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance with
this Section. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
an Issuing Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld) of:
(A) the Company, provided that no consent of the Company shall
be required for an assignment to a Lender, an Affiliate of a Lender,
an Approved Fund or, if an Event of Default has occurred and is
continuing, any other assignee;
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any
Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment; and
(C) the Issuing Banks.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining
79
amount of the assigning Lender's Commitment or Loans of any Class,
the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Company and the Administrative Agent
otherwise consent, provided that no such consent of the Company
shall be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, provided that this clause shall
not be construed to prohibit the assignment of a proportionate part
of all the assigning Lender's rights and obligations in respect of
one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire in which
the assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public
information about the Company, the other Credit Parties and their
related parties or their respective securities) will be made
available and who may receive such information in accordance with
the assignee's compliance procedures and applicable laws, including
Federal and state securities laws.
For the purposes of this Section 10.04(b), the term "APPROVED FUND" has
the following meaning:
"APPROVED FUND" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
80
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.15, 2.16 and 10.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
Section 10.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrowers, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the "REGISTER").
The entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the Issuing Banks and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by
the Company, any Issuing Bank and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained
therein in the Register; provided that if either the assigning Lender or
the assignee shall have failed to make any payment required to be made by
it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or
10.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full,
together with all accrued interest thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(c)(i) Any Lender may, without the consent of any Borrower, the
Administrative Agent, the Issuing Banks or the Swingline Lender, sell
participations to one or more banks or other entities (a "PARTICIPANT") in all
or a
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portion of such Lender's rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans owing to it); provided that
(A) such Lender's obligations under this Agreement shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrowers, the Administrative Agent,
the Issuing Banks and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, each Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.14, 2.15
and 2.16 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or Section 2.16 than the applicable Lender
would have been entitled to receive with respect to the participation sold
to such Participant, unless the sale of the participation to such
Participant is made with the Company's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of Section 2.16 unless the Company is notified
of the participation sold to such Participant and such Participant agrees,
for the benefit of the Borrowers, to comply with Section 2.16(e) as though
it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 10.05 . Survival. All covenants, agreements, representations and
warranties made by the Credit Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
the Loan Documents shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding
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that the Administrative Agent, any Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under the Loan Documents is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and
10.03 and Article 8 shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
Section 10.06 . Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. The Loan Documents and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 10.07 . Severability. If any provision of any Loan Document is
invalid, illegal or unenforceable in any jurisdiction then, to the fullest
extent permitted by law, (a) such provision shall, as to such jurisdiction, be
ineffective to the extent (but only to the extent) of such invalidity,
illegality or unenforceability, (b) the other provisions of the Loan Documents
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Lenders in order to carry out the intentions
of the parties thereto as nearly as may be possible and (c) the invalidity,
illegality or unenforceability of any such provision in any jurisdiction shall
not affect the validity, legality or enforceability of such provision in any
other jurisdiction.
Section 10.08 . Right of Setoff. If an Event of Default shall have
occurred and be continuing, 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 obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of a
Borrower against any of and all the obligations of a Borrower now or hereafter
existing under this Agreement held by
83
such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
Section 10.09 . Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, 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 such
New York State or, to the extent permitted by law, in such Federal court. 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 any Loan
Document shall affect any right that the Administrative Agent, any Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
any Loan Document against any Credit Party or its properties in the courts of
any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to any Loan Document in any court referred to in
paragraph (b) of this Section. 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.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in any Loan
Document will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
Section 10.10 . Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
84
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 10.11 . Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 10.12 . Confidentiality. Each of the Administrative Agent, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (i) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (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 any Loan Document or the enforcement of any right
thereunder, (vi) subject to an agreement containing provisions substantially the
same as those of this Section, to (x) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (y) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Company or any
other Credit Party and its obligations, (vii) with the consent of the Company or
(viii) to the extent such Information (x) becomes publicly available other than
as a result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
from a source other than the Company. For the purposes of this Section,
"INFORMATION" means all information received from the Company relating to the
Borrower or its business, other than any such information that is available to
the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Company; provided that, in the case of
information received from the Company after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION
10.12(a) FURNISHED TO IT PURSUANT TO THIS
85
AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS
DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC
INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.
(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS,
FURNISHED BY THE COMPANY OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE
COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION,
WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY, THE CREDIT
PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY,
EACH LENDER REPRESENTS TO THE COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE
INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH
ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
Section 10.13 . Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "CHARGES"), shall exceed the
maximum lawful rate (the "MAXIMUM RATE") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
Section 10.14 . USA PATRIOT Act. Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "ACT") hereby notifies the Borrowers that pursuant
to the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the name
and address of the Borrowers and other information that will allow such Lender
to identify the Borrowers in accordance with the Act.
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Section 10.15 . Judgment Currency. (a) The Borrowers' obligations
hereunder and under the other Loan Documents to make payments in a specified
currency (the "OBLIGATION CURRENCY") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
currency other than the Obligation Currency, except to the extent that such
tender or recovery results in the effective receipt by the Administrative Agent
or a Lender or Issuing Bank of the full amount of the Obligation Currency
expressed to be payable to the Administrative Agent or such Lender or Issuing
Bank under this Agreement or the other Loan Documents. If, for the purpose of
obtaining or enforcing judgment against any Credit Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the "JUDGMENT CURRENCY") an amount due in the Obligation Currency, the
conversion shall be made, at the rate of exchange (as quoted by the
Administrative Agent or if the Administrative Agent does not quote a rate of
exchange on such currency, by a known dealer in such currency designated by the
Administrative Agent) determined, in each case, as of the Business Day
immediately preceding the date on which the judgment is given (such Business Day
being hereinafter referred to as the "JUDGMENT CURRENCY CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrowers covenant and agree to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining any rate of exchange or currency
equivalent for this Section, such amounts shall include any premium and costs
payable in connection with the purchase of the Obligation Currency.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
OAKLEY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
OAKLEY CANADA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
JPMORGAN CHASE BANK, N.A., as
Lender, as Issuing Bank and as
Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as Lender
and as Issuing Bank
By: /s/ Mara Vaisz
-------------------------------------
Name: Mara Vaisz
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
HSBC BANK USA, NATIONAL
ASSOCIATION,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
MIZUHO CORPORATE BANK LTD.,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Deputy General Manager
U.S. BANK , NATIONAL ASSOCIATION,
as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF THE WEST, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BAYERISCHE HYPO-UND
VEREINSBANK AG, NEW YORK BRANCH,
as Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Associate Director
THE BANK OF NOVA SCOTIA, as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
BANK HAPOALIM B.M., as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE NORTHERN TRUST COMPANY,
as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President