Exhibit 10.1
As Amended and Restated
as of February 28, 2005
================================================================================
CREDIT AGREEMENT
Dated as of May 27, 2004
among
UGS CORP.
THE OVERSEAS BORROWERS PARTY HERETO
as Borrowers,
UGS HOLDINGS, INC.,
JPMORGAN CHASE BANK, N.A.
as Administrative Agent, Swing Line Lender and L/C Issuer,
THE OTHER LENDERS PARTY HERETO,
CITICORP NORTH AMERICA, INC.
as Syndication Agent
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC. and
▇▇▇▇▇ FARGO FOOTHILL, LLC
as Co-Documentation Agents
================================================================================
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and
CITIGROUP GLOBAL MARKETS INC.
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms....................................................... 8
Section 1.02 Other Interpretive Provisions....................................... 52
Section 1.03 Accounting Terms.................................................... 52
Section 1.04 Rounding............................................................ 53
Section 1.05 References to Agreements, Laws, etc................................. 53
Section 1.06 Times of Day........................................................ 53
Section 1.07 Timing of Payment of Performance.................................... 54
Section 1.08 Currency Equivalents Generally...................................... 54
Section 1.09 Change of Currency.................................................. 54
ARTICLE 2
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01 The Loans........................................................... 54
Section 2.02 Borrowings, Conversions and Continuations of Loans.................. 55
Section 2.03 Letters of Credit................................................... 57
Section 2.04 Swing Line Loans.................................................... 66
Section 2.04A Overdraft Loan Facility............................................. 68
Section 2.05 Prepayments......................................................... 72
Section 2.06 Termination or Reduction of Commitments............................. 75
Section 2.07 Repayment of Loans.................................................. 76
Section 2.08 Interest............................................................ 77
Section 2.09 Fees................................................................ 78
Section 2.10 Computation of Interest and Fees.................................... 79
Section 2.11 Evidence of Indebtedness............................................ 79
Section 2.12 Payments Generally.................................................. 80
Section 2.13 Sharing of Payments................................................. 82
Section 2.14 Designation of Overseas Borrower; Termination of
Designations....................................................... 83
Section 2.15 Incremental Credit Extensions....................................... 83
Section 2.16 Overseas Borrower Costs............................................. 85
Section 2.17 Currency Equivalents................................................ 86
ARTICLE 3
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
Section 3.01 Taxes............................................................... 87
Section 3.02 Illegality.......................................................... 89
Section 3.03 Inability to Determine Rates........................................ 89
Section 3.04 Increased Cost and Reduced Return; Capital Adequacy;
Reserves on Eurodollar Rate Loans.................................. 90
Section 3.05 Funding Losses...................................................... 91
Section 3.06 Matters Applicable to All Requests for Compensation................. 92
Section 3.07 Replacement of Lenders under Certain Circumstances.................. 93
Section 3.08 Survival............................................................ 94
ARTICLE 4
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01 Conditions of Initial Credit Extension.............................. 94
Section 4.02 Conditions to All Credit Extensions................................. 98
Section 4.03 First Credit Extension to an Overseas Borrower...................... 98
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01 Existence, Qualification and Power; Compliance with Laws............ 99
Section 5.02 Authorization; No Contravention..................................... 99
Section 5.03 Governmental Authorization; Other Consents.......................... 99
Section 5.04 Binding Effect...................................................... 100
Section 5.05 Financial Statements; No Material Adverse Effect.................... 100
Section 5.06 Litigation.......................................................... 101
Section 5.07 No Default.......................................................... 101
Section 5.08 Ownership of Property; Liens........................................ 101
Section 5.09 Environmental Compliance............................................ 102
Section 5.10 Taxes............................................................... 103
Section 5.11 ERISA Compliance.................................................... 103
Section 5.12 Subsidiaries; Equity Interests...................................... 103
Section 5.13 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act............................................... 104
Section 5.14 Disclosure.......................................................... 104
Section 5.15 Intellectual Property; Licenses, Etc................................ 104
Section 5.16 Solvency............................................................ 105
Section 5.17 Perfection, Etc..................................................... 105
Section 5.18 Representations and Warranties of Overseas Borrowers................ 105
Section 5.19 Subordination of Senior Subordinated Notes.......................... 105
Section 5.20 Labor Matters....................................................... 105
ARTICLE 6
AFFIRMATIVE COVENANTS
Section 6.01 Financial Statements................................................ 106
Section 6.02 Certificates; Other Information..................................... 107
Section 6.03 Notices............................................................. 109
Section 6.04 Payment of Obligations.............................................. 109
Section 6.05 Preservation of Existence, Etc...................................... 109
Section 6.06 Maintenance of Properties........................................... 110
Section 6.07 Maintenance of Insurance............................................ 110
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Section 6.08 Compliance with Laws................................................ 110
Section 6.09 Books and Records................................................... 110
Section 6.10 Inspection Rights................................................... 110
Section 6.11 Use of Proceeds..................................................... 110
Section 6.12 Covenant to Guarantee Obligations and Give Security................. 111
Section 6.13 Compliance with Environmental Laws.................................. 115
Section 6.14 Further Assurances and Post-Closing Conditions...................... 115
Section 6.15 Interest Rate Hedging............................................... 117
Section 6.16 Ownership of Overseas Borrowers..................................... 117
Section 6.17 Designation of Subsidiaries......................................... 117
ARTICLE 7
NEGATIVE COVENANTS
Section 7.01 Liens............................................................... 118
Section 7.02 Investments......................................................... 121
Section 7.03 Indebtedness........................................................ 124
Section 7.04 Fundamental Changes................................................. 128
Section 7.05 Dispositions........................................................ 129
Section 7.06 Restricted Payments................................................. 130
Section 7.07 Change in Nature of Business........................................ 133
Section 7.08 Transactions with Affiliates........................................ 133
Section 7.09 Burdensome Agreements............................................... 134
Section 7.10 Use of Proceeds..................................................... 134
Section 7.11 Financial Covenants................................................. 134
Section 7.12 Amendments of Organization Documents................................ 135
Section 7.13 Accounting Changes.................................................. 135
Section 7.14 Prepayments, Etc of Indebtedness.................................... 135
Section 7.15 Amendment of Transaction Documents.................................. 136
Section 7.16 Equity Interests of the Company and Restricted Subsidiaries......... 136
Section 7.17 Holding Company..................................................... 136
Section 7.18 Designated Senior Debt.............................................. 136
Section 7.19 Capital Expenditures................................................ 136
ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES
Section 8.01 Events of Default................................................... 137
Section 8.02 Remedies Upon Event of Default...................................... 139
Section 8.03 Exclusion of Immaterial Subsidiaries................................ 140
Section 8.04 Application of Funds................................................ 140
ARTICLE 9
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01 Appointment and Authorization of Agents............................. 141
Section 9.02 Delegation of Duties................................................ 143
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Section 9.03 Liability of Agents................................................. 143
Section 9.04 Reliance by Agents.................................................. 143
Section 9.05 Notice of Default................................................... 144
Section 9.06 Credit Decision; Disclosure of Information by Agents................ 144
Section 9.07 Indemnification of Agents........................................... 145
Section 9.08 Agents in their Individual Capacities............................... 145
Section 9.09 Successor Agents.................................................... 145
Section 9.10 Administrative Agent May File Proofs of Claim....................... 146
Section 9.11 Collateral and Guaranty Matters..................................... 147
Section 9.12 Other Agents; Arrangers and Managers................................ 148
Section 9.13 Appointment of Supplemental Administrative Agents................... 148
ARTICLE 10
MISCELLANEOUS
Section 10.01 Amendments, Etc..................................................... 149
Section 10.02 Notices and Other Communications; Facsimile Copies.................. 152
Section 10.03 No Waiver; Cumulative Remedies...................................... 153
Section 10.04 Attorney Costs, Expenses and Taxes.................................. 153
Section 10.05 Indemnification by the Company...................................... 154
Section 10.06 Payments Set Aside.................................................. 155
Section 10.07 Successors and Assigns.............................................. 155
Section 10.08 Confidentiality..................................................... 159
Section 10.09 Setoff.............................................................. 160
Section 10.10 Interest Rate Limitation............................................ 160
Section 10.11 Counterparts........................................................ 161
Section 10.12 Integration......................................................... 161
Section 10.13 Survival of Representations and Warranties.......................... 161
Section 10.14 Severability........................................................ 161
Section 10.15 Tax Forms........................................................... 161
Section 10.16 Governing Law....................................................... 163
Section 10.17 Waiver of Right to Trial by Jury.................................... 164
Section 10.18 Binding Effect...................................................... 164
Section 10.19 Judgment Currency................................................... 164
Section 10.20 Lender Action....................................................... 165
Section 10.21 USA PATRIOT Act..................................................... 165
Section 10.22 Agent for Service of Process........................................ 165
Section 10.23 Existing Credit Agreement; Effectiveness of Second Amendment and
Restatement....................................................... 165
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SCHEDULES
I Guarantors
1.01C Unrestricted Subsidiaries
1.01D Mandatory Cost Formulae
2.01 Commitments
2.14(a) Approved Foreign Countries
5.08(b) Owned Real Property
5.09 Environmental Matters
5.10 Taxes
5.11 ERISA Compliance
5.12 Subsidiaries and Other Equity Investments
6.12(f) Foreign Subsidiaries to be Liquidated
7.01(b) Existing Liens
7.02(f) Existing Investments
7.03(b) Existing Indebtedness
7.05(m) Dispositions
7.08 Transactions with Affiliates
7.09 Existing Restrictions
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C-1 Term Note
C-2 Revolving Credit Note
D Compliance Certificate
E Assignment and Assumption
F-1 Holdings Guaranty
F-2 Subsidiary Guaranty
F-3 Company Guaranty
G Security Agreement
H Mortgage
I Opinion Matters -- Counsel to each additional Overseas Borrower
J Election to Participate
K Election to Terminate
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("AGREEMENT") is entered into as of May 27, 2004,
among UGS CORP., a Delaware corporation (to be merged with and into UGS PLM
Solutions (as defined herein), the "COMPANY"), the Overseas Borrowers from time
to time party hereto, UGS HOLDINGS, INC., a Delaware corporation ("HOLDINGS"),
each lender from time to time party hereto (collectively, the "LENDERS" and
individually, a "LENDER"), CITICORP NORTH AMERICA, INC., as Syndication Agent,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC. and ▇▇▇▇▇ FARGO FOOTHILL, LLC, as
Co-Documentation Agents, and JPMORGAN CHASE BANK, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer.
PRELIMINARY STATEMENTS
Pursuant to the Purchase Agreement (as this and other capitalized terms
used in these Preliminary Statements are defined in Section 1.01 below), Parent
has purchased from the Seller all of the shares of Common Stock of UGS PLM
Solutions owned by the Seller.
Pursuant to the Credit Agreement, dated as of May 27, 2004, among the
Company, Holdings, the Lenders party thereto, and the Agents party thereto (the
"ORIGINAL CREDIT AGREEMENT") (a) on the Closing Date, simultaneously with the
consummation of the Acquisition, the Term Lenders made Term Loans to the Company
in an aggregate Dollar Amount of $500,000,000 and the Revolving Credit Lenders
made Revolving Credit Loans to the Company in an aggregate Dollar Amount of up
to $30,000,000 to pay, among other things, a portion of the cash consideration
for the Acquisition and to pay fees and expenses incurred in connection with the
Transaction and (b) the Revolving Credit Lenders agreed to lend, from time to
time, to the Borrowers and the L/C Issuer agreed to issue, from time to time,
Letters of Credit for the account of the Company and its Subsidiaries under
$125,000,000 multi-currency revolving credit facilities.
The Original Credit Agreement was amended and restated pursuant to the
Amendment and Restatement Agreement dated as of August 13, 2004 (the "FIRST
AMENDMENT AND RESTATEMENT AGREEMENT"; the Original Credit Agreement as so
amended and restated, the "EXISTING CREDIT AGREEMENT").
The Company has requested that the Existing Credit Agreement be amended to
(i) increase the amount of the Term Facility to $725,000,000, the increased
amount of which will be used to pay, among other things, the cash consideration
for the Tecnomatix Acquisition and to pay fees and expenses incurred in
connection with the Tecnomatix Transaction, and for working capital and general
corporate purposes, and (ii) provide for certain other amendments to the
Existing Credit Agreement.
The Company, Holdings, the Overseas Borrowers, the Required Restatement
Lenders (as defined therein), Citicorp North America, Inc., as syndication
agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as documentation agent, and JPMorgan
Chase Bank, N.A., as administrative agent, have entered into the Second
Amendment and Restatement Agreement dated as of February 28, 2005 (the "SECOND
AMENDMENT AND RESTATEMENT AGREEMENT").
Subject to the satisfaction of the conditions set forth in the Second
Amendment and Restatement Agreement, the Existing Credit Agreement shall be
amended and restated as provided herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"ACQUISITION" means (i) the acquisition by the Company from the Seller of
all of the shares of Common Stock of UGS PLM Solutions owned by Seller pursuant
to, and in accordance with, the Purchase Agreement and (ii) the following
related actions that shall each occur on or before the Closing Date:
(a) the purchase of 100% of the shares of Unigraphics Solutions Canada
Ltd. by UGS Acquisition (Canada) Limited and the subsequent amalgamation of
Unigraphics Solutions Canada Ltd. and UGS Acquisition (Canada) Limited, to
continue as Unigraphics Solutions Canada Ltd.;
(b) the purchase of 100% of the shares of Unigraphics Solutions GmbH by
UGS (Germany) GmbH;
(c) the purchase of 100% of the shares of Unigraphics Solutions S.r.l. by
UGS (Italy) S.r.l.; and
(d) the purchase of 100% of the shares of UGS (Japan) K.K. by UGS Holdings
(Japan) K.K. and the subscription by UGS PLM Solutions for newly issued shares
of UGS Japanese Holdings, Inc.;
(e) the repayment of the Foreign Temporary Acquisition Notes; and
(f) the merger of UGS Corp. with and into UGS PLM Solutions, with the
latter surviving, but changing its name to "UGS Corp" as of the effective time
of the merger.
"ACT" has the meaning set forth in Section 10.21.
"ADDITIONAL LENDER" has the meaning set forth in Section 2.15(a).
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"ADMINISTRATIVE AGENT FEE LETTER" means the letter agreement, dated March
12, 2004, between Parent and the Administrative Agent.
8
"ADMINISTRATIVE AGENT'S OFFICE" means, with respect to any currency, the
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 10.02 with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from time to time
notify the Company and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any 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. "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.
"AGENT-RELATED PERSONS" means the Administrative Agent, the Syndication
Agent, the Co-Documentation Agents and the Supplemental Administrative Agents
(if any), together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"AGENTS" means, collectively, the Administrative Agent, the Syndication
Agent, the Co-Documentation Agents and the Supplemental Administrative Agents
(if any).
"AGGREGATE COMMITMENTS" means the Commitments of all the Lenders.
"AGGREGATE CREDIT EXPOSURES" means, at any time, the sum of (i) the unused
portion of each Revolving Credit Commitment then in effect, (ii) the unused
portion of each Term Commitment then in effect and (iii) the Total Outstandings
at such time.
"AGREEMENT" means this Credit Agreement.
"ALTERNATIVE CURRENCY" means Sterling, Yen or Euros and also, with respect
to Letters of Credit, each additional currency requested and available from the
L/C Issuer or an Affiliate of the L/C Issuer as provided in Section 2.03(a).
"ALTERNATIVE CURRENCY LOAN" means a Loan that is a Eurodollar Rate Loan
and that is made in an Alternative Currency pursuant to the applicable Borrowing
Request.
"ALTERNATIVE CURRENCY SUBLIMIT" means $75,000,000.
"APPLICABLE RATE" means a percentage per annum equal to:
(a) with respect to Term Loans, (i) until the Administrative Agent
receives the Compliance Certificate pursuant to Section 6.02(b) for the
fiscal year ended December 31, 2004, (A) for Eurodollar Rate Loans, 2.00%
and (B) for Base Rate Loans, 1.00% and (ii) thereafter, the following
percentages per annum, based upon the Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Administrative Agent
pursuant to Section 6.02(b):
9
Eurodollar
Pricing Level Leverage Ratio Rate Base Rate
------------- -------------------------- ----------- ---------
1 < 4.0:1 1.75% 0.75%
2 > or = 4.0:1 but < or = 5.25:1 2.00% 1.00%
3 > 5.25:1 2.25% 1.25%
(b) with respect to the Revolving Credit Loans, unused Revolving
Credit Commitments and Letter of Credit fees, the following percentages
per annum, based upon the Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b):
Applicable Rate
---------------------------------------------------------------------------------------------------
Eurodollar
Rate and
Letter of Commitment Fee
Pricing Level Leverage Ratio Credit Fees Base Rate Rate
------------- ------------------------- ------------ --------- --------------
1 < 2.50:1 1.50% 0.50% 0.375%
2 > or = 2.50:1 but < 3.00:1 1.75% 0.75% 0.375%
3 > or = 3.00:1 but < 3.50:1 2.25% 1.25% 0.50%
4 > or = 3.50:1 but < 4.25:1 2.50% 1.50% 0.50%
5 > or = 4.25:1 2.50% 1.50% 0.50%
Any increase or decrease in the Applicable Rate resulting from a change in the
Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section
6.02(b); provided that at the option of the Administrative Agent or the Required
Lenders, Pricing Level 3, in the case of the Term Facility, and Pricing ▇▇▇▇▇ ▇,
in the case of the Revolving Credit Facility, the Letter of Credit Facility and
the Swingline Facility, shall apply (x) as of the first Business Day after the
date on which a Compliance Certificate was required to have been delivered but
was not delivered, and shall continue to so apply to and including the date on
which such Compliance Certificate is so delivered (and thereafter the Pricing
Level otherwise determined in accordance with this definition shall apply) and
(y) as of the first Business Day after an Event of Default under Section 8.01(a)
shall have occurred and be continuing, and shall continue to so apply to but
excluding the date on which such Event of Default is cured or waived (and
thereafter the Pricing Level otherwise determined in accordance with this
definition shall apply).
"APPLICABLE TIME" means, with respect to any Borrowings and payments in
any Alternative Currency (or another foreign currency permitted by Section
2.03(a)), the local time in the place of settlement for such Alternative
Currency (or such other foreign currency) as may be reasonably determined by the
Administrative Agent or the L/C Issuer, as the case may be, to be necessary for
timely settlement on the relevant date in accordance with normal banking
procedures in the place of payment.
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"APPROPRIATE LENDER" means, at any time, (a) with respect to Loans of any
Class, the Lenders of such Class, (b) with respect to the Letter of Credit
Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued
pursuant to Section 2.03(a), the Multicurrency Revolving Credit Lenders, (c)
with respect to the Swing Line Facility, (i) the Swing Line Lender and (ii) if
any Swing Line Loans are outstanding pursuant to Section 2.04(a), the
Multicurrency Revolving Credit Lenders and (d) with respect to the Overdraft
Loan Facility, (i) the Overdraft Loan Facility Lender and (ii) if any Overdraft
Facility Loans are outstanding, the Multicurrency Revolving Credit Lenders.
"APPROVED BANK" has the meaning specified in clause (c) of the definition
of "Cash Equivalents".
"APPROVED FUND" means any Fund that is administered, advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers, advises or manages a Lender.
"ARRANGERS" means ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Citigroup Global Markets
Inc., each in its capacity as a Joint Lead Arranger and Joint Bookrunner under
this Agreement.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of Exhibit E.
"ATTORNEY COSTS" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external legal counsel.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, in respect of any
Capitalized Lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated balance
sheets of the Company and its Subsidiaries as of each of December 31, 2003 and
December 31, 2002, and the related audited consolidated statements of income and
cash flows for the Company and its Subsidiaries for the fiscal years ended
December 31, 2003 and December 31, 2002, respectively.
"AUTO-RENEWAL LETTER OF CREDIT" has the meaning specified in Section
2.03(b)(iii).
"BASE RATE" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by JPMorgan Chase
Bank as its "prime rate." The "prime rate" is a rate set by JPMorgan Chase Bank
based upon various factors including JPMorgan Chase Bank costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by JPMorgan Chase Bank
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"BASE RATE LOAN" means a Loan that bears interest based on the Base Rate.
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"BORROWER PARTIES" means the collective reference to the Company and its
Restricted Subsidiaries, and "Borrower Party" means any one of them.
"BORROWERS" means the Company and the Overseas Borrowers and, from and
after the Overdraft Participation Date, the Restricted Subsidiaries which are
borrowers under the Overdraft Loan Facility.
"BORROWING" means a Revolving Credit Borrowing, a Swing Line Borrowing or
a Term Borrowing, as the context may require.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office with respect to
Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a
Eurodollar Rate Loan denominated in Dollars, any fundings, disbursements,
settlements and payments in Dollars in respect of any such Eurodollar Rate
Loan, or any other dealings in Dollars to be carried out pursuant to this
Agreement in respect of any such Eurodollar Rate Loan, means any such day
on which dealings in deposits in Dollars are conducted by and between
banks in the London interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a
Eurodollar Rate Loan denominated in Euro, any fundings, disbursements,
settlements and payments in Euro in respect of any such Eurodollar Rate
Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurodollar Rate Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to a
Eurodollar Rate Loan denominated in a currency other than Dollars or Euro,
means any such day on which dealings in deposits in the relevant currency
are conducted by and between banks in the London or other applicable
offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements
and payments in a currency other than Dollars or Euro in respect of a
Eurodollar Rate Loan denominated in a currency other than Dollars or Euro,
or any other dealings in any currency other than Dollars or Euro to be
carried out pursuant to this Agreement in respect of any such Eurodollar
Rate Loan (other than any interest rate settings), means any such day on
which banks are open for foreign exchange business in the principal
financial center of the country of such currency.
"CAPITAL EXPENDITURES" means, as of any date for the applicable period
then ended, all capital expenditures and capitalized software development costs
of the Borrower Parties on a consolidated basis for such period, as determined
in accordance with GAAP; provided that Capital Expenditures shall not include
any such expenditures which constitute (a) a Permitted Acquisition, (b) capital
expenditures relating to the construction or acquisition of any property which
has been transferred to a Person that is not a Borrower Party pursuant to a
sale-leaseback transaction permitted under Section 7.05(f), (c) to the extent
permitted by this Agreement, a
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reinvestment of the Net Cash Proceeds of any Disposition in accordance with
Section 2.05(b)(ii), Casualty Event or Equity Issuance by any Consolidated
Party, (d) expenditures of proceeds of insurance settlements, condemnation
awards and other settlements in respect of lost, destroyed, damaged or condemned
assets, equipment or other property to the extent such expenditures are made to
replace or repair such lost, destroyed, damaged or condemned assets, equipment
or other property or otherwise to acquire, maintain, develop, construct,
improve, upgrade or repair assets or properties useful in the business of the
Company and the Restricted Subsidiaries within 12 months of receipt of such
proceeds, (e) interest capitalized during such period, (f) expenditures that are
accounted for as capital expenditures of such person and that actually are paid
for by a third party (excluding Holdings, the Company or any Restricted
Subsidiary thereof) and for which neither Holdings, the Company nor any
Restricted Subsidiary thereof has provided or is required to provide or incur,
directly or indirectly, any consideration or obligation to such third party or
any other person (whether before, during or after such period), (g) the book
value of any asset owned by such person prior to or during such period to the
extent that such book value is included as a capital expenditure during such
period as a result of such person reusing or beginning to reuse such asset
during such period without a corresponding expenditure actually having been made
in such period; provided that (i) any expenditure necessary in order to permit
such asset to be reused shall be included as a Capital Expenditure during the
period that such expenditure actually is made and (ii) such book value shall
have been included in Capital Expenditures when such asset was originally
acquired, (h) the purchase price of equipment that is purchased during such
period to the extent the consideration therefor consists of any combination of
(i) used or surplus equipment traded in at the time of such purchase and (ii)
the proceeds of a concurrent sale of used or surplus equipment, in each case, in
the ordinary course of business, or (i) the purchase price of equipment that is
purchased substantially contemporaneously with the trade-in of existing
equipment to the extent that the gross amount of such purchase price is reduced
by the credit granted by the seller of such equipment for the equipment being
traded in at such time.
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CASH COLLATERAL" has the meaning specified in Section 2.03(g).
"CASH COLLATERAL ACCOUNT" means a blocked account at JPMorgan Chase Bank
(or another commercial bank selected in compliance with Section 9.09) in the
name of the Administrative Agent and under the sole dominion and control of the
Administrative Agent, and otherwise established in a manner satisfactory to the
Administrative Agent.
"CASH COLLATERALIZE" has the meaning specified in Section 2.03(g).
"CASH EQUIVALENTS" means any of the following types of Investments, to the
extent owned by the Company or any of its Restricted Subsidiaries free and clear
of all Liens:
(a) Dollars, Euros or, in the case of any Foreign Subsidiary, such
local currencies held by it from time to time in the ordinary course of
business;
13
(b) readily marketable obligations issued or directly and fully
guaranteed or insured by the government or any agency or instrumentality
of (i) the United States or (ii) any member nation of the European Union,
having maturities of not more than 12 months from the date of acquisition
thereof; provided that the full faith and credit of the United States or a
member nation of the European Union is pledged in support thereof;
(c) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) (A) is a Lender or
(B) is organized under the laws of the United States, any state thereof or
the District of Columbia or is the principal banking subsidiary of a bank
holding company organized under the laws of the United States, any state
thereof or the District of Columbia, and is a member of the Federal
Reserve System, and (ii) has combined capital and surplus of at least
$500,000,000 (any such bank being an "APPROVED BANK"), in each case with
maturities of not more than 12 months from the date of acquisition
thereof;
(d) commercial paper and variable or fixed rate notes issued by an
Approved Bank (or by the parent company thereof) or any variable or fixed
rate note issued by, or guaranteed by, a corporation rated A 1 (or the
equivalent thereof) or better by S&P or P 1 (or the equivalent thereof) or
better by ▇▇▇▇▇'▇, in each case with maturities of not more than 12 months
from the date of acquisition thereof;
(e) repurchase agreements entered into by any Person with a bank or
trust company (including any of the Lenders) or recognized securities
dealer, in each case, having capital and surplus in excess of $500,000,000
for direct obligations issued by or fully guaranteed or insured by the
government or any agency or instrumentality of (i) the United States or
(ii) any member nation of the European Union, in which such Person shall
have a perfected first priority security interest (subject to no other
Liens) and having, on the date of purchase thereof, a fair market value of
at least 100% of the amount of the repurchase obligations;
(f) instruments equivalent to those referred to in clauses (a)
through (e) above denominated in Euros or any other foreign currency
comparable in credit quality and tenor to those referred to above and
customarily used by corporations for cash management purposes in any
jurisdiction outside the United States to the extent reasonably required
in connection with any business conducted by any Restricted Subsidiary
organized in such jurisdiction; and
(g) Investments, classified in accordance with GAAP as Current
Assets of the Company or any of its Restricted Subsidiaries, in money
market investment programs which are registered under the Investment
Company Act of 1940 or which are administered by financial institutions
having capital of at least $500,000,000, and, in either case, the
portfolios of which are limited such that substantially all of such
investments are of the character, quality and maturity described in
clauses (a), (b), (c), (d), (e) and (f) of this definition.
"CASH MANAGEMENT OBLIGATIONS" means obligations owed by Holdings, the
Company or any of its Restricted Subsidiaries to any Lender or any Affiliate of
a Lender in respect of any
14
overdraft and related liabilities arising from treasury, depository and cash
management services or any automated clearing house transfers of funds,
including, without limitation, all obligations owed by Holdings, the Company or
any of its Restricted Subsidiaries under an Overdraft Loan Facility.
"CASUALTY EVENT" means any event that gives rise to the receipt by
Holdings, the Company or any of its Restricted Subsidiaries of any insurance
proceeds or condemnation awards in respect of any equipment, fixed assets or
real property (including any improvements thereon) to replace or repair such
equipment, fixed assets or real property.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as subsequently amended.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and
Liability Information System maintained by the U.S. Environmental Protection
Agency.
"CHANGE OF CONTROL" means the earliest to occur of (a) the Permitted
Holders ceasing to have the power, directly or indirectly, to vote or direct the
voting of securities having a majority of the ordinary voting power for the
event shall not be deemed a Change of Control if,
(i) any time prior to the consummation of a Qualifying IPO, and for
any reason whatever, (A) the Permitted Holders otherwise have the right,
directly or indirectly, to designate (and do so designate) a majority of
the board of directors of Holdings or (B) the Permitted Holders own,
directly or indirectly, of record and beneficially an amount of common
stock of Holdings equal to an amount more than fifty percent (50%) of the
amount of common stock of Holdings owned, directly or indirectly, by the
Permitted Holders of record and beneficially as of the Closing Date and
such ownership by the Permitted Holders represents the largest single
block of voting securities of Holdings held by any Person or related group
for purposes of Section 13(d) of the Securities and Exchange Act of 1934,
as amended, or
(ii) at any time after the consummation of a Qualifying IPO, and for
any reason whatsoever, (A) no "person" or "group" (as such terms are used
in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended, but excluding any employee benefit plan of such person and its
subsidiaries, and any person or entity acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan), excluding the
Permitted Holders, shall become the "beneficial owner" (as defined in
Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of more
than the greater of (x) thirty-five percent (35%) of the shares
outstanding of Holdings and (y) the percentage of the then outstanding
voting stock of Holdings owned, directly or indirectly, beneficially by
the Permitted Holders, and (B) during any period of twelve (12)
consecutive months, the board of directors of Holdings shall consist of a
majority of the Continuing Directors; or
(b) any "Change of Control" (or any comparable term) in any document
pertaining to any Junior Financing with an aggregate outstanding principal
amount in excess of the Threshold Amount; or
15
(c) at any time prior to a Qualifying IPO of the Company, the Company
ceasing to be a directly wholly owned Subsidiary of Holdings.
"CLASS" (a) when used with respect to Lenders, refers to whether such
Lenders are Dollar Revolving Credit Lenders, Multicurrency Revolving Credit
Lenders or Term Lenders, (b) when used with respect to Commitments, refers to
whether such Commitments are Dollar Revolving Credit Commitments, Multicurrency
Revolving Credit Commitments or Term Commitments and (c) when used with respect
to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising
such Borrowing, are Dollar Revolving Credit Loans, Multicurrency Revolving
Credit Loans or Term Loans.
"CLOSING DATE" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01.
"CODE" means the U.S. Internal Revenue Code of 1986 and rules and
regulations related thereto, as amended from time to time.
"CO-DOCUMENTATION AGENT" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and
▇▇▇▇▇ Fargo Foothill, LLC, as Co-Documentation Agents under this Agreement.
"COLLATERAL" means all of the "Collateral" referred to in the Collateral
Documents and all of the other property and assets that are or are required
under the terms hereof or of the Collateral Documents to be subject to Liens in
favor of the Administrative Agent for the benefit of the Secured Parties.
"COLLATERAL DOCUMENTS" means, collectively, the Security Agreement, the
Intellectual Property Security Agreement, the Mortgages, each of the mortgages,
collateral assignments, Security Agreement Supplements, security agreements,
pledge agreements or other similar agreements delivered to the Administrative
Agent and the Lenders pursuant to Section 6.12, and each of the other
agreements, instruments or documents that creates or purports to create a Lien
in favor of the Administrative Agent for the benefit of the Secured Parties.
"COMMITMENT" means a Term Commitment or a Revolving Credit Commitment, as
the context may require.
"COMMITTED LOAN NOTICE" means a notice of (a) a Term Borrowing, (b) a
Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the
other, or (d) a continuation of Eurodollar Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
"COMMON STOCK" means the 1,000 shares of common stock of UGS PLM
Solutions, par value $0.01, which 1,000 shares constitute all of the issued and
outstanding capital stock of UGS PLM Solutions.
"COMPANY" has the meaning specified in the introductory paragraph to this
Agreement and includes the surviving company of the merger between UGS Corp. and
UGS PLM Solutions to be consummated on the Closing Date.
16
"COMPANY GUARANTY" means the Company Guaranty made by the Company in favor
of the Administrative Agent on behalf of the Lenders, substantially in the form
of Exhibit F-3.
"COMPENSATION PERIOD" has the meaning specified in Section 2.12(c)(ii).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
Exhibit D.
"CONSOLIDATED CASH TAXES" means, as of any date for the applicable period
ending on such date with respect to the Borrower Parties on a consolidated
basis, the aggregate of all income, franchise and similar taxes, as determined
in accordance with GAAP, to the extent the same are payable in cash with respect
to such period.
"CONSOLIDATED EBITDA" means, as of any date for the applicable period
ending on such date with respect to any Person and its Subsidiaries on a
consolidated basis, the sum of (a) Consolidated Net Income, plus (b) an amount
which, in the determination of Consolidated Net Income for such period, has been
deducted for, without duplication,
(i) total interest expense,
(ii) income, franchise and similar taxes and any tax distributions
permitted to be made pursuant to Section 7.06(h)(i) and (iii),
(iii) depreciation and amortization expense,
(iv) letter of credit fees,
(v) non-cash expenses resulting from any employee benefit or
management compensation plan or the grant of stock and stock options to
employees of Holdings, the Company or any of their respective Subsidiaries
pursuant to a written plan or agreement or the treatment of such options
under variable plan accounting,
(vi) all extraordinary charges,
(vii) non-cash amortization of financing costs of such Person and
its Subsidiaries,
(viii) cash expenses incurred in connection with the Transaction or
the Tecnomatix Transaction or, to the extent permitted hereunder, any
Investment permitted under Section 7.02, Equity Issuance or Debt Issuance
(in each case, whether or not consummated), or early extinguishment of
Indebtedness.
(ix) any losses (or minus any gains) realized upon the disposition
of property or assets outside of the ordinary course of business,
(x) to the extent actually reimbursed, expenses incurred to the
extent covered by indemnification provisions in any agreement in
connection with a Permitted Acquisition,
17
(xi) to the extent covered by insurance under which the insurer has
been promptly notified and has not denied or contested coverage, expenses
with respect to liability or casualty events or business interruption,
(xii) management fees permitted under Section 7.08(d),
(xiii) any non-cash purchase accounting adjustment and any step-ups
with respect to re-valuing assets and liabilities in connection with the
Transaction or the Tecnomatix Transaction or any Investment permitted
under Section 7.02,
(xiv) non-cash losses from Joint Ventures and non-cash minority
interest reductions,
(xv) fees and expenses in connection with exchanges or refinancings
permitted by Section 7.14,
(xvi) (A) non-cash, non-recurring charges with respect to employee
severance and (B) other non-cash, non-recurring charges so long as such
charges described in this clause (B) do not result in a cash charge in a
future period,
(xvii) [Reserved.],
(xviii) [Reserved.],
(xix) other expenses or charges of such Person and its Subsidiaries
reducing Consolidated Net Income which do not represent a cash item in
such period or any future period,
(xx) with respect to any Event of Default under any covenant set
forth in Section 7.11, the Net Cash Proceeds of any Permitted Equity
Issuance to the Equity Investors solely to the extent that such Net Cash
Proceeds (A) are actually received by the Company (including through
capital contribution of such Net Cash Proceeds by Holdings, Midco or
Parent to the Company) no later than ten (10) days after the delivery of
Notice of Intent to Cure, (B) are Not Otherwise Applied (provided, that
clause (b) of the definition of "Not Otherwise Applied" is not applicable
to this clause (b)(xx)) and (C) do not exceed the aggregate amount
necessary to cure such Event of Default under Section 7.11 for any
applicable period; provided that in each period of four fiscal quarters,
there shall be at least two (2) fiscal quarters in which no such cure is
made; provided further that if Consolidated EBITDA is increased as
contemplated by the provisions of this clause (xx), then no Restricted
Payments may be made pursuant to Section 7.06(c) and (i) until such time
as (x) the Required Lenders shall approve the making of such Restricted
Payments or (y) the Company is in compliance with all of the covenants set
forth in Section 7.11 for two consecutive quarters without the benefit of
increases to Consolidated EBITDA pursuant to the provisions of this clause
(xx), it being understood that this clause (xx) may not be relied on for
purposes of calculating any financial ratios other than as applicable to
Section 7.11,
18
(xxi) severance, relocation and facilities consolidation costs and
costs associated with the opening and permanent closing of facilities,
(xxii) other non-recurring charges in an aggregate amount not to
exceed $10,000,000 in any period of four consecutive fiscal quarters,
(xxiii) without duplication, pension curtailment expenses,
transaction costs and executive contract expenses incurred by Affiliates
of Holdings (other than Holdings and its Subsidiaries) on behalf of
Holdings or any of its Subsidiaries and reflected in the combined
financial statements of Holdings and its Subsidiaries as capital
contributions; minus
(c) an amount which, in the determination of Consolidated Net Income, has
been included for
(i) (x) non-cash income during such period (other than with respect
to the reversal of any accrual of, or reserve for, anticipated cash
charges or asset valuation adjustments made in any prior period) and (y)
all extraordinary gains, and
(ii) any gains realized upon the disposition of property outside of
the ordinary course of business, plus/minus
(d) unrealized losses/gains in respect of Swap Contracts, all as
determined in accordance with GAAP;
provided that, notwithstanding any other provision to the contrary contained in
this Agreement, for purposes of any calculation made under the financial
covenants set forth in Section 7.11 (including for purposes of the definition of
"Pro Forma Basis", but excluding for purposes of the definition of "Applicable
Rate"), to the extent the receipt of any Net Cash Proceeds of any Permitted
Equity Issuance are an effective addition to Consolidated EBITDA as contemplated
by, and in accordance with, the provisions of clause (b)(xx) above and, as a
result thereof, any Event of Default of the covenants set forth in Section 7.11
shall have been cured for any applicable period, such cure shall be deemed to be
effective as of the last day of such applicable period and such addition to
Consolidated EBITDA shall apply to any period of four consecutive fiscal
quarters which includes the fiscal quarter in respect of which such addition was
made.
"CONSOLIDATED FUNDED INDEBTEDNESS" means, with respect to any Person and
its Subsidiaries on a consolidated basis, without duplication,
(a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments,
(c) all obligations of such Person under conditional sale or other
title retention agreements relating to property purchased by such Person
(other than customary reservations or retentions of title under agreements
with suppliers entered into in the ordinary course of business),
19
(d) all obligations of such Person issued or assumed as the deferred
purchase price of property or services purchased by such Person (other
than accrued expenses and trade debt incurred in the ordinary course of
business) which would appear as liabilities on a balance sheet of such
Person in accordance with GAAP and to the extent constituting contingent
obligations (and, in any case, excluding any post-closing adjustment of
purchase price under Sections 2.3, 2.4 and 2.5 of the Purchase Agreement),
(e) all Consolidated Funded Indebtedness of others secured by (or
for which the holder of such Consolidated Funded Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, property owned or acquired
by such Person, whether or not the obligations secured thereby have been
assumed,
(f) all Guarantees of such Person with respect to Consolidated
Funded Indebtedness of another Person,
(g) the implied principal component of all obligations of such
Person under Capitalized Leases,
(h) all drafts drawn (to the extent unreimbursed) under standby
letters of credit issued or bankers' acceptances facilities created for
the account of such Person,
(i) unless the holder thereof is a Loan Party or, if the issuer
thereof is a Subsidiary of Holdings which is not a Loan Party, any other
Subsidiary of Holdings, all Disqualified Equity Interests issued by such
Person, and
(j) the Consolidated Funded Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner or
a joint venturer to the extent such Consolidated Funded Indebtedness is
recourse to such Person.
Notwithstanding any other provision of this Agreement to the contrary, (i) the
term "Consolidated Funded Indebtedness" shall not be deemed to include (w) any
obligation evidenced by the Japan Tax Note or any of the Foreign Temporary
Acquisition Notes, (x) any earn-out obligation until such obligation becomes a
liability on the balance sheet of the applicable Person in accordance with GAAP,
(y) any deferred compensation arrangements or (z) any non compete or consulting
obligations incurred in connection with Permitted Acquisitions and (ii) the
amount of Consolidated Funded Indebtedness for which recourse is limited either
to a specified amount or to an identified asset of such Person shall be deemed
to be equal to such specified amount or the fair market value of such identified
asset, as the case may be.
"CONSOLIDATED INTEREST CHARGES" means, as of any date for the applicable
period ending on such date with respect to any Person and its Subsidiaries on a
consolidated basis, the amount by which (x) interest expense (including the
amortization of debt discount and premium, the interest component under
Capitalized Leases, but excluding, to the extent included in interest expense,
(i) fees and expenses associated with the consummation of the Transaction and
the Tecnomatix Transaction, (ii) annual agency fees paid to the Administrative
Agent, (iii) costs associated with obtaining Swap Contracts, (iv) fees and
expenses associated with any Investment
20
permitted under Section 7.02, Equity Issuance or Debt Issuance (whether or not
consummated) and (v) pay-in-kind interest expense or other noncash interest
expense (including as a result of the effects of purchase accounting) and
amortization of debt discount), exceeds (y) interest income, in each case as
determined in accordance with GAAP, to the extent the same are payable (or
receivable) in cash with respect to such period.
"CONSOLIDATED NET INCOME" means, as of any date for the applicable period
ending on such date with respect to any Person and its Subsidiaries on a
consolidated basis, net income (excluding, without duplication, (i)
extraordinary items and (ii) any amounts attributable to Investments in any
Joint Venture to the extent that either (x) such amounts have not been
distributed in cash to such Person and its Subsidiaries during the applicable
period or (y) such amounts were not earned by such Joint Venture during the
applicable period), as determined in accordance with GAAP; provided that
Consolidated Net Income for any such period shall not include (A) the cumulative
effect of a change in accounting principles during such period, (B) any net
after-tax income or loss attributable to the early extinguishment of
indebtedness, (C) any non-cash charges resulting from ▇▇▇▇-to-market accounting
relating to warrants or resulting from the application of the Statement of
Financial Accounting Standard No. 52 - Foreign Currency Translation relating to
Indebtedness denominated in foreign currencies and (D) any non-cash impairment
charges resulting from the application of Statement of Financial Accounting
Standards No. 142 - Goodwill and Other Intangibles and No. 144 - Accounting for
the Impairment or Disposal of Long-Lived Assets and the amortization of
intangibles including arising pursuant to Statement of Financial Accounting
Standards No. 141 - Business Combinations.
"CONSOLIDATED PARTIES" means the collective reference to Holdings, the
Company and its Restricted Subsidiaries, and "CONSOLIDATED PARTY" means any one
of them.
"CONSOLIDATED SCHEDULED FUNDED DEBT PAYMENTS" means, as of any date for
the applicable period ending on such date with respect to the Borrower Parties
on a consolidated basis, the sum of all scheduled payments of principal on
Consolidated Funded Indebtedness made during such period (including the implied
principal component of payments made on Capitalized Leases during such period)
as determined in accordance with GAAP.
"CONTINUING DIRECTORS" shall mean the directors of Holdings on the Closing
Date, as elected or appointed after giving effect to the Acquisition and the
other transactions contemplated hereby, and each other director, if, in each
case, such other directors' nomination for election to the board of directors of
Holdings (or the Company after a Qualifying IPO of the Company) is recommended
by a majority of the then Continuing Directors or such other director receives
the vote of the Permitted Holders in his or her election by the stockholders of
Holdings (or the Company after a Qualifying IPO of the Company).
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" has the meaning specified in the definition of "Affiliate."
21
"CREDIT EXTENSION" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"CURRENT ASSETS" means, with respect to any Person, all assets of such
Person that, in accordance with GAAP, would be classified as current assets on
the balance sheet of a company conducting a business the same as or similar to
that of such Person, after deducting appropriate and adequate reserves therefrom
in each case in which a reserve is proper in accordance with GAAP.
"DEBT ISSUANCE" means the issuance by any Person and its Subsidiaries of
any Indebtedness for borrowed money.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally (including, in the case of Loan Parties incorporated or
organized in England or Wales, administration, administrative receivership,
voluntary arrangement and schemes of arrangement).
"DEFAULT" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"DEFAULT RATE" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2.0% per
annum; provided that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate and any Mandatory Cost) otherwise applicable to such Loan plus 2.0% per
annum, in each case, to the fullest extent permitted by applicable Laws.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Term Loans, Revolving Credit Loans, participations in L/C
Obligations, participations in Swing Line Loans or participations in Overdraft
Facility Loans required to be funded by it hereunder within one (1) Business Day
of the date required to be funded by it hereunder, unless the subject of a good
faith dispute, (b) has otherwise failed to pay over to the Administrative Agent
or any other Lender any other amount required to be paid by it hereunder within
one (1) Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction and any sale of
Equity Interests) of any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith; provided that
"Disposition" and "Dispose" shall not be deemed to include any issuance by
Holdings of any of its Equity Interests to another Person.
"DISQUALIFIED EQUITY INTERESTS" means any Equity Interest which, by its
terms (or by the terms of any security or other Equity Interests into which it
is convertible or for which it is exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily
22
redeemable (other than solely for Qualified Equity Interests), pursuant to a
sinking fund obligation or otherwise, (b) is redeemable at the option of the
holder thereof (other than solely for Qualified Equity Interests), in whole or
in part, (c) provides for the scheduled payments of dividends in cash, or (d) is
or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case,
prior to the date that is ninety-one (91) days after the Maturity Date
(determined in accordance with clause (b)(i) of the definition thereof) of the
Term Loans.
"DOLLAR" and "$" mean lawful money of the United States.
"DOLLAR AMOUNT" means, at any time:
(a) with respect to any Loan denominated in Dollars (including, with
respect to any Swing Line Loan, any funded participation therein), the
principal amount thereof then outstanding (or in which such participation
is held);
(b) with respect to any Alternative Currency Loan, the principal
amount thereof then outstanding in the relevant Alternative Currency,
converted to Dollars in accordance with Section 2.17(a); and
(c) with respect to any L/C Obligation (or any risk participation
therein), (A) if denominated in Dollars, the amount thereof and (B) if
denominated in an Alternative Currency or other currency, the amount
thereof converted to Dollars in accordance with Section 2.17(b).
"DOLLAR REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Dollar Revolving Credit Loans of the same Type and, in the case of
Eurodollar Rate Loans, having the same Interest Period made by each of the
Dollar Revolving Credit Lenders pursuant to Section 2.01(b).
"DOLLAR REVOLVING CREDIT COMMITMENT" means, as to each Dollar Revolving
Credit Lender, its obligation to make Dollar Revolving Credit Loans to the
Borrowers in Dollars pursuant to Section 2.01(b), in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth, and
opposite such Lender's name on Schedule 2.01 under the caption "Dollar Revolving
Credit Commitment" or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement. The aggregate Dollar
Revolving Credit Commitments of all Dollar Revolving Credit Lenders shall be
$25,000,000 on the Closing Date, as such amount may be adjusted from time to
time in accordance with the terms of this Agreement.
"DOLLAR REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Dollar Revolving Credit Lenders' Dollar Revolving Credit
Commitments at such time.
"DOLLAR REVOLVING CREDIT LENDER" means, at any time, any Lender that has a
Dollar Revolving Credit Commitment at such time.
"DOLLAR REVOLVING CREDIT LOAN" has the meaning specified in Section
2.01(b).
23
"DOMESTIC SUBSIDIARY" means any Subsidiary that is organized under the
laws of the United States, any state thereof or the District of Columbia and any
other Subsidiary that is not a "controlled foreign corporation" under Section
957 of the Code.
"ELECTION TO PARTICIPATE" means an Election to Participate substantially
in the form of Exhibit J. hereto.
"ELECTION TO TERMINATE" means an Election to Terminate substantially in
the form of Exhibit K hereto.
"ELIGIBLE ASSIGNEE" means any Assignee permitted by and consented to in
accordance with Section 10.07(b).
"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 any and all Federal, state, local, and foreign
statutes, Laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution, the protection of the environment, natural
resources, or, to the extent relating to exposure to Hazardous Materials, human
health or to the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste
or public systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company, any other Loan Party or any of their
respective Subsidiaries 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.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"EQUITY CONTRIBUTIONS" means, collectively, (a) the contribution by the
Equity Investors of an aggregate amount of cash not less than $1,000,000,000 to
Parent, (b) the use of such proceeds for the payment of fees and expenses as set
forth in clause (f) of the definition of "Transaction" and (c) the further
contribution to the Company of any portion of such cash contribution proceeds
not applied to consummate the Acquisition.
"EQUITY INTERESTS" means, with respect to any Person, all of the shares,
interests, rights, participations or other equivalents (however designated) of
capital stock of (or other ownership
24
or profit interests or units in) such Person and all of the warrants, options or
other rights for the purchase, acquisition or exchange from such Person of any
of the foregoing (including through convertible securities).
"EQUITY INVESTORS" means the Sponsors and the Management Shareholders.
"EQUITY ISSUANCE" means any issuance for cash by any Person and its
Subsidiaries to any other Person of (a) its Equity Interests, (b) any of its
Equity Interests pursuant to the exercise of options or warrants, (c) any of its
Equity Interests pursuant to the conversion of any debt securities to equity or
(d) any options or warrants relating to its Equity Interests. A Disposition
shall not be deemed to be an Equity Issuance.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that is under common control with any Loan Party within the
meaning of Section 414 of the Code or Section 4001 of ERISA.
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party
or any ERISA Affiliate.
"EURO" and "EUR" means the lawful currency of the Participating Member
States introduced in accordance with EMU Legislation.
"EURODOLLAR RATE" means, for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Dow ▇▇▇▇▇ Market screen (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for deposits
in Dollars or the relevant Alternative Currency (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the
25
rate determined by the Administrative Agent to be the offered rate on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars or the
relevant Alternative Currency (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent
as the rate of interest at which deposits in Dollars or the relevant
Alternative Currency for delivery on the first day of such Interest Period
in Same Day Funds in the approximate amount of the Eurodollar Rate Loan
being made, continued or converted by JPMorgan Chase Bank and with a term
equivalent to such Interest Period would be offered by JPMorgan Chase
Bank's London Branch to major banks in the London interbank eurodollar
market at their request at approximately 4:00 p.m. (London time) two (2)
Business Days prior to the first day of such Interest Period.
"EURODOLLAR RATE LOAN" means a Loan, whether denominated in Dollars or in
an Alternative Currency, that bears interest at a rate based on the Eurodollar
Rate.
"EVENT OF DEFAULT" has the meaning specified in Section 8.01.
"EXCESS CASH FLOW" means, with respect to any fiscal year period of the
Borrower Parties on a consolidated basis, an amount equal to (a) Consolidated
EBITDA minus (b) without duplication,
(i) Capital Expenditures permitted to be made under Section 7.19 to
the extent not financed with the proceeds of long-term Indebtedness other
than the Obligations,
(ii) total interest expense paid in cash,
(iii) Consolidated Cash Taxes, including cash payments for Federal,
state and other income tax liabilities incurred prior to the Closing Date,
(iv) Consolidated Scheduled Funded Debt Payments with respect to
Indebtedness permitted under Section 7.03,
(v) Restricted Payments made by the Borrower Parties to the extent
that such Restricted Payments are permitted to be made under Sections
7.06(g) and (h)(i), (h)(ii), (h)(iii), (h)(iv) and (h)(vi),
(vi) voluntary prepayments of any Indebtedness (other than voluntary
prepayments of Loans pursuant to Section 2.05(a)) and mandatory
prepayments pursuant to the terms of the Japan Tax Note; provided that (1)
such prepayments are otherwise permitted hereunder and (2) if such
Indebtedness consists of a revolving line of credit, the commitments under
such line of credit are permanently reduced by the amount of such
prepayment,
26
(vii) letter of credit fees,
(viii) proceeds received by the Borrower Parties from insurance
claims with respect to casualty events, business interruption or product
recalls which reimburse prior business expenses,
(ix) all extraordinary cash charges,
(x) cash payments made in satisfaction of non-current liabilities,
(xi) cash expenses incurred in connection with the Transaction or
the Tecnomatix Transaction or, to the extent permitted hereunder, any
Investment permitted under Section 7.02, Equity Issuance or Debt Issuance
(whether or not consummated) or early extinguishment of Indebtedness,
(xii) fees and expenses in connection with exchanges or refinancings
permitted by Section 7.14,
(xiii) cash indemnity payments received pursuant to indemnification
provisions in any agreement in connection with the Acquisition, any
Permitted Acquisition or any other Investment permitted hereunder (or in
any similar agreement related to any other Acquisition consummated prior
to the Closing Date) and including advances evidenced by the Japan Tax
Note,
(xiv) non-recurring cash charges to the extent included in
determining Consolidated EBITDA,
(xv) [Reserved.],
(xvi) expenses incurred in connection with deferred compensation
arrangements in connection with the Transaction and the Tecnomatix
Transaction,
(xvii) management fees permitted to be made under Section 7.08(d),
(xviii) cash from operations used to consummate a Permitted
Acquisition and Investments under Section 7.02(n) or (r),
(xix) to the extent added to Consolidated Net Income in determining
Consolidated EBITDA, losses from discontinued operations for such period,
(xx) to the extent added to Consolidated Net Income in determining
Consolidated EBITDA, Net Cash Proceeds of Permitted Equity Issuances,
(xxi) cash expenditures made in respect of Swap Contracts during
such fiscal year to the extent not reflected in the computation of
Consolidated EBITDA or Consolidated Interest Charges, and
27
(xxii) to the extent not deducted in the computation of Net Proceeds
in respect of any asset disposition or condemnation giving rise thereto,
the amount of any mandatory prepayment of Indebtedness (other than
Indebtedness hereunder or under any other Loan Document), together with
any interest, premium or penalties required to be paid (and actually paid)
in connection therewith;
(c) minus increases or plus decreases in Working Capital.
"EXISTING CREDIT AGREEMENT" shall have the meaning assigned to such term
in the recitals to this Agreement.
"EXISTING TERM COMMITMENT" means, as to each Existing Term Lender, its
obligation to make a Term Loan to the Company pursuant to Section 2 of the First
Amendment and Restatement Agreement in an aggregate Dollar Amount not to exceed
the amount set forth opposite such Lender's name on Schedule 1 to the First
Amendment and Restatement Agreement under the caption "Replacement Term
Commitment" or in the Assignment and Assumption pursuant to which such Lender
became a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with this Agreement. The initial aggregate amount of the
Existing Term Commitments was $500,000,000.
"EXISTING TERM LENDER" means any Lender that has an Existing Term Loan
immediately prior to the Second Restatement Effective Date.
"EXISTING TERM LOANS" has the meaning set forth in Section 2.01.
"FACILITY" means the Term Loans, the Dollar Revolving Credit Facility, the
Multicurrency Revolving Credit Facility, the Swing Line Sublimit, the Letter of
Credit Sublimit or the Overdraft Loan Facility, as the context may require.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to JPMorgan Chase Bank
on such day on such transactions as determined by the Administrative Agent.
"FIRST AMENDMENT AND RESTATEMENT AGREEMENT" shall have the meaning
assigned to such term in the recitals to this Agreement.
"FONDE DE POUVOIR" has the meaning specified in Section 9.01(d).
"FOREIGN TEMPORARY ACQUISITION NOTES" means the temporary promissory notes
issued in consideration of the acquisitions referred to in clauses (a), (b), (c)
and (d) of the definition of "Acquisition", which shall each be repaid in full
as of the Closing Date.
28
"FOREIGN LENDER" has the meaning specified in Section 10.15(a)(i).
"FOREIGN SUBSIDIARY" means any direct or indirect Restricted Subsidiary of
the Company which is not a Domestic Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"FUND" means any Person (other than a natural person) that is engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.
"FUNDED DEBT" of any Person means Indebtedness of such Person that by its
terms matures more than one (1) year after the date of its creation or matures
within one (1) year from any date of determination but is renewable or
extendible, at the option of such Person, to a date more than one (1) year after
such date or arises under a revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period of more than one (1) year
after such date but excluding Indebtedness under the Japan Tax Note.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"GRANTING LENDER" has the meaning specified in Section 10.07(h).
"GUARANTEE" means, as to any Person, without duplication, (a) any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such
29
Person (or any right, contingent or otherwise, of any holder of such
Indebtedness to obtain any such Lien); provided that the term "Guarantee" shall
not include endorsements for collection or deposit, in either case in the
ordinary course of business, or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any acquisition
or disposition of assets permitted under this Agreement (other than such
obligations with respect to Indebtedness). The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"GUARANTORS" means, collectively, Holdings, the Company in its capacity as
a guarantor under the Company Guaranty and the Restricted Subsidiaries of the
Company listed on Schedule I and each other Restricted Subsidiary of the Company
that shall be required to execute and deliver a guaranty or guaranty supplement
pursuant to Section 6.12.
"GUARANTY" means, collectively, the Holdings Guaranty, the Company
Guaranty and the Subsidiary Guaranty.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or 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.
"HEDGE BANK" means any Person that is a Lender or an Affiliate of a
Lender, in its capacity as a party to a Secured Hedge Agreement.
"HOLDINGS" has the meaning specified in the introductory paragraph to this
Agreement.
"HOLDINGS CONSOLIDATED LEVERAGE RATIO" means, with respect to the
Consolidated Parties on a consolidated basis, as of the last day of any period,
the ratio of (a) Consolidated Funded Indebtedness (net of cash and Cash
Equivalents on hand in an aggregate amount not to exceed $75,000,000) of the
Consolidated Parties on the last day of such period to (b) Consolidated EBITDA
of the Consolidated Parties for such period.
"HOLDINGS GUARANTY" means the Holdings Guaranty made by Holdings in favor
of the Administrative Agent on behalf of the Lenders, substantially in the form
of Exhibit F-1.
"HONOR DATE" has the meaning specified in Section 2.03(c)(i).
"ICC" has the meaning specified in Section 2.03(h).
"INCREMENTAL AMENDMENT" has the meaning set forth in Section 2.15(a).
"INCREMENTAL FACILITY CLOSING DATE" has the meaning set forth in Section
2.15(a).
"INCREMENTAL TERM LOANS" has the meaning set forth in Section 2.15(a).
30
"INDEBTEDNESS" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) the maximum amount (after giving effect to any prior drawings or
reductions which may have been reimbursed) of all letters of credit
(including standby and commercial), bankers' acceptances, bank guaranties,
surety bonds, performance bonds and similar instruments issued or created
by or for the account of such Person;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than (i) trade accounts payable in
the ordinary course of business and (ii) any earn-out obligation until
such obligation becomes a liability on the balance sheet of such Person in
accordance with GAAP);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements and mortgage, industrial revenue bond, industrial development
bond and similar financings), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness;
(g) all obligations of such Person in respect of Disqualified Equity
Interests; and
(h) all Guarantees of such Person in respect of any of the
foregoing. For all purposes hereof, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company)
in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of
any net obligation under any Swap Contract on any date shall be deemed to
be the Swap Termination Value thereof as of such date. The amount of
Indebtedness of any Person for purposes of clause (e) shall be deemed to
be equal to the lesser of (i) the aggregate unpaid amount of such
Indebtedness and (ii) the fair market value of the property encumbered
thereby as determined by such Person in good faith.
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section 10.05.
"INDEMNITEES" has the meaning set forth in Section 10.05.
"INFORMATION" has the meaning specified in Section 10.08.
31
"INITIAL LENDERS" means, at any date, collectively, JPMorgan Chase Bank,
Citicorp North America, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., each in
its capacity as, and so long as it is, a "Lender" hereunder.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" means, collectively, the
Copyright Security Agreement, the Trademark Security Agreement and the Patent
Security Agreement, substantially in the forms attached to the Security
Agreement together with each other intellectual property security agreement
executed and delivered pursuant to Section 6.12 or the Security Agreement.
"INTEREST COVERAGE RATIO" means, with respect to the Borrower Parties on a
consolidated basis, as of the end of any fiscal quarter of the Company for the
four (4) fiscal quarter period ending on such date, the ratio of (a)
Consolidated EBITDA of the Borrower Parties to (b) Consolidated Interest Charges
of the Borrower Parties payable in cash; provided that for the purpose of
calculating the Interest Coverage Ratio on any day prior to the expiration of
four full fiscal quarters since the Closing Date, Consolidated Interest Charges
shall be determined for the period commencing on the Closing Date and ending on
the last day of the most recently ended fiscal quarter, annualized on a simple
arithmetic basis.
"INTEREST PAYMENT DATE" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date of the Facility under which such Loan was made; provided that if
any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Maturity Date of the Facility under which
such Loan was made.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, or to the extent available to each Lender of such
Eurodollar Rate Loan, nine or twelve months thereafter, as selected by the
relevant Borrower in its Committed Loan Notice; provided that:
(a) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date of the
Facility under which such Loan was made.
"INVESTMENT" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of Equity Interests or
32
debt or other securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person
and any arrangement pursuant to which the investor incurs debt of the type
referred to in clause (h) of the definition of "Indebtedness" set forth in this
Section 1.01 in respect of such Person or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of all or substantially all of
the property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person. For purposes of
covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value
of such Investment.
"IP COLLATERAL" means all "Intellectual Property Collateral" referred to
in the Collateral Documents and all of the other IP Rights that are or are
required by the terms hereof or of the Collateral Documents to be subject to
Liens in favor of the Administrative Agent for the benefit of the Secured
Parties.
"IP RIGHTS" has the meaning set forth in Section 5.15.
"IRS" means the United States Internal Revenue Service.
"JAPAN TAX NOTE" means the promissory note(s) of UGS PLM Solutions K.K.
issued to the Seller pursuant to Section 8.2(1)(i) of the Purchase Agreement.
"JOINT VENTURE" means (a) any Person which would constitute an "equity
method investee" of the Company or any of its Subsidiaries, (b) any other Person
designated by the Company in writing to the Administrative Agent (which
designation shall be irrevocable) as a "Joint Venture" for purposes of this
Credit Agreement and at least 50% but less than 100% of whose Equity Interests
are directly owned by the Company or any of its Subsidiaries, and (c) any Person
in whom the Company or any of its Subsidiaries beneficially owns any Equity
Interest that is not a Subsidiary.
"JPMORGAN CHASE BANK" means JPMorgan Chase Bank, N.A. (formerly JPMorgan
Chase Bank) and its successors.
"JUNIOR FINANCING" has the meaning specified in Section 7.14.
"JUNIOR FINANCING DOCUMENTATION" means any documentation governing any
other Junior Financing.
"LAWS" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
33
"L/C ADVANCE" means, with respect to each Revolving Credit Lender, such
Lender's funding of its participation in any L/C Borrowing in accordance with
its Pro Rata Share.
"L/C BORROWING" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Credit Borrowing.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C ISSUER" means JPMorgan Chase Bank, N.A. or Citicorp North America,
Inc. in its capacity as issuer of Letters of Credit hereunder, or any successor
issuer of Letters of Credit hereunder.
"L/C OBLIGATIONS" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"LENDER" has the meaning specified in the introductory paragraph to this
Agreement and, as the context requires, includes the L/C Issuer, the Overdraft
Loan Facility Lender and the Swing Line Lender, and their respective successors
and assigns as permitted hereunder, each of which is referred to herein as a
"Lender," together with, in each case, any affiliate of any such financial
institution through which such financial institution elects, by notice to the
Administrative Agent and the Company, to make any Loans available to any
Overseas Borrower; provided that, for all purposes of voting or consenting with
respect to (a) any amendment, supplementation or modification of any Loan
Document, (b) any waiver of any requirements of any Loan Document or any Default
or Event of Default and its consequences, or (c) any other matter as to which a
Lender may vote or consent pursuant to Section 10.01 of this Agreement, the
financial institution making such election shall be deemed the "Lender" rather
than such affiliate, which shall not be entitled to vote or consent (it being
agreed that failure of any such affiliate to fund an obligation under this
Agreement shall not relieve its affiliated financial institution from funding).
"LENDING OFFICE" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Company and
the Administrative Agent.
"LETTER OF CREDIT" means any letter of credit issued hereunder. A Letter
of Credit may be a commercial letter of credit or a standby letter of credit.
"LETTER OF CREDIT APPLICATION" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is five (5) Business
Days prior to the scheduled Maturity Date then in effect for the Revolving
Credit Facility (or, if such day is not a Business Day, the next preceding
Business Day).
34
"LETTER OF CREDIT SUBLIMIT" means an amount equal to $25,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Multicurrency
Revolving Credit Facility.
"LEVERAGE RATIO" means, with respect to the Borrower Parties on a
consolidated basis, as of the last day of any period of four consecutive fiscal
quarters, the ratio of (a) Consolidated Funded Indebtedness (net of cash and
Cash Equivalents of the Borrower Parties in an aggregate amount not to exceed
$75,000,000) of the Borrower Parties on the last day of such period to (b)
Consolidated EBITDA of the Borrower Parties for such period.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real
property, and any Capitalized Lease having substantially the same economic
effect as any of the foregoing).
"LOAN" means an extension of credit by a Lender to a Borrower under
Article 2 in the form of a Term Loan, a Revolving Credit Loan, a Swing Line
Loan, an Overdraft Facility Loan or a Base Rate Loan pursuant to Section
2.04A(h).
"LOAN DOCUMENTS" means, collectively, (i) this Agreement, (ii) the First
Amendment and Restatement Agreement, (iii) the Second Amendment and Restatement
Agreement, (iv) the Notes, (v) the Guaranty, (vi) the Collateral Documents,
(vii) the Administrative Agent Fee Letter, (viii) each Letter of Credit
Application and (ix) each agreement evidencing or creating an Overdraft Loan
Facility.
"LOAN PARTIES" means, collectively, each Borrower and each Guarantor.
"MAJORITY MULTICURRENCY REVOLVING CREDIT LENDERS" means Multicurrency
Revolving Credit Lenders holding at least a majority of the aggregate amount of
the Multicurrency Revolving Credit Commitments at such time, or if the
Multicurrency Revolving Credit Commitments have been terminated, the
Multicurrency Revolving Credit Lenders holding at least a majority of the
aggregate Outstanding Amount of Multicurrency Revolving Credit Loans.
"MANAGEMENT SHAREHOLDERS" means the members of management of the Company
or its Subsidiaries who are investors in Parent or Midco.
"MANDATORY COST" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01D.
"MASTER AGREEMENT" has the meaning specified in the definition of "Swap
Contract."
"MATERIAL ADVERSE CHANGE" means any change, effect, development,
circumstance or condition that, in the aggregate, is materially adverse to the
assets, liabilities, condition (financial or otherwise), results of operations
or business of UGS PLM Solutions and its Subsidiaries, taken as a whole, or on
the ability of UGS PLM Solutions or the Seller and its Subsidiaries to
consummate the Transactions; provided, however, that none of the following shall
be deemed in themselves, either alone or in combination, to constitute a
"Material Adverse Change": (i) any
35
immaterial failure by UGS PLM Solutions and/or any of its Subsidiaries to meet
internal projections or forecasts or published revenue or earnings predictions
for any period ending (or for which revenues or earnings are released) on or
after March 12, 2004; or (ii) any adverse change, effect, development,
circumstance, condition, event, occurrence or state of facts attributable to,
resulting from, or relating to (A) the announcement or pendency of the
transactions contemplated by the Purchase Agreement, (B) conditions affecting
the industry in which UGS PLM Solutions and its Subsidiaries participate, the
United States economy as a whole, the capital markets in general, or the markets
in which UGS PLM Solutions and its Subsidiaries operate that do not
disproportionately affect UGS PLM Solutions and its Subsidiaries (other than as
a result of the outbreak or escalation of hostilities involving the United
States, the declaration by the United States of a national emergency or war, or
the occurrence of any other calamity or crisis, including an act of terrorism),
(C) compliance with the terms of, or the taking of any action required by the
Purchase Agreement, (D) any change in accounting requirements or principles or
any change in applicable laws, rules or regulations or the interpretation
thereof, or (E) actions required to be taken under applicable laws, rules,
regulations, contracts or agreements; provided that as used in the Second
Amendment and Restatement Agreement "Material Adverse Change" means since
January 3, 2005 any event, change, circumstance or state of facts which
individually or in the aggregate, when taken together with all other events,
changes, circumstances or states of facts occurring or existing at or about the
same time, (A) has a material adverse effect on the business, assets,
properties, operations, condition (financial or otherwise) or results of
operations of Tecnomatix and its subsidiaries, taken as a whole, (B) materially
adversely affects the ability of Tecnomatix to perform its obligations under the
Tecnomatix Purchase Agreement or (C) prevents or materially delays the ability
of Tecnomatix to consummate the Tecnomatix Acquisition and the other
transactions contemplated by the Tecnomatix Purchase Agreement (a "Material
Adverse Change"); provided, however, that the term "Material Adverse Change"
shall exclude events, changes, circumstances and states of facts that result or
arise from or relate to: (i) the industry in which Tecnomatix operates or the
economy in any of the countries in which Tecnomatix operates, but only to the
extent that such events, changes, circumstances or states of facts do not have a
materially disproportionate effect on Tecnomatix relative to other similarly
situated companies, (ii) an outbreak or escalation of war, armed hostilities,
acts of terrorism or political instability, or any governmental or other
response to any of the foregoing; provided, however, that such situations do not
directly adversely affect Tecnomatix's operations in a materially
disproportionate manner relative to other similarly situated companies, (iii)
the announcement of the transactions contemplated by the Techomatix Acquisition
Agreement (including the identity of the Company as buyer), including any
potential or actual disruption of customer demand or purchase orders, or
relationships with employees, customers, business partners, suppliers and other
constituencies caused by such announcement, and the effects thereof, (iv) any
change in applicable accounting requirements or principles, or applicable laws,
rules or regulations; or (v) compliance with the terms of, or the taking of any
action required by, the Tecnomatix Purchase Agreement prior to the Effective
Time (as defined in the Tecnomatix Purchase Agreement); and provided, further,
that any change in Tecnomatix's stock price or trading volume, shall not, in and
of itself, be deemed to constitute a Material Adverse Change.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the
business, operations, assets, liabilities (actual or contingent) or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a whole,
(b) a material adverse effect on the ability of the
36
Borrowers or the Loan Parties (taken as a whole) to perform their respective
obligations under any Loan Document to which any Borrower or any of the Loan
Parties is a party or (c) a material adverse effect on the rights and remedies
of the Lenders under any Loan Document.
"MATURITY DATE" means (a) with respect to the Dollar Revolving Credit
Facility, the earlier of (i) May 27, 2010 and (ii) the date of termination in
whole of the Dollar Revolving Credit Commitments pursuant to Section 2.06(a) or
8.02, (b) with respect to the Multicurrency Revolving Credit Facility, the
earlier of (i) May 27, 2010 and (ii) the date of termination in whole of the
Multicurrency Revolving Credit Commitments, the Letter of Credit Commitments,
and the Swing Line Commitments pursuant to Section 2.06(a) or 8.02, and (c) with
respect to the Term Loans, the earliest of (i) ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) the date of
termination in whole of the Term Commitments pursuant to Section 2.06(a) or 8.02
and (iii) the date that payment of the Term Loans is accelerated pursuant to
Section 8.02.
"MAXIMUM RATE" has the meaning specified in Section 10.10.
"MIDCO" means UGS Capital Corp. II, a Delaware corporation.
"MINORITY LENDERS" has the meaning specified in Section 10.01.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"MORTGAGE" means, collectively, the deeds of trust, trust deeds, hypothecs
and mortgages made by the Loan Parties in favor or for the benefit of the
Administrative Agent on behalf of the Lenders substantially in the form of
Exhibit H (with such changes as may be customary to account for local law
matters), and any other mortgages executed and delivered pursuant to Section
6.12.
"MORTGAGE POLICIES" has the meaning specified in Section 6.14(b)(B).
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"MULTICURRENCY REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Multicurrency Revolving Credit Loans of the same Type and, in the
case of Eurodollar Rate Loans, having the same Interest Period made by each of
the Multicurrency Revolving Credit Lenders pursuant to Section 2.01(b).
"MULTICURRENCY REVOLVING CREDIT COMMITMENT" means, as to each
Multicurrency Revolving Credit Lender, its obligation to (a) make Multicurrency
Revolving Credit Loans to the Borrowers in Dollars or Alternative Currencies
pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations, (c)
purchase participations in Swing Line Loans and (d) purchase participations in
Overdraft Facility Loans, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth, opposite such Lender's name on
Schedule 2.01 under the caption "Multicurrency Revolving Credit Commitment" or
in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such
37
amount may be adjusted from time to time in accordance with this Agreement. The
aggregate Multicurrency Revolving Credit Commitments of all Multicurrency
Revolving Credit Lenders shall be $100,000,000 on the Closing Date, as such
amount may be adjusted from time to time in accordance with the terms of this
Agreement.
"MULTICURRENCY REVOLVING CREDIT FACILITY" means, at any time, the
aggregate amount of the Multicurrency Revolving Credit Lenders' Multicurrency
Revolving Credit Commitments at such time.
"MULTICURRENCY REVOLVING CREDIT LENDER" means, at any time, any Lender
that has a Multicurrency Revolving Credit Commitment at such time.
"MULTICURRENCY REVOLVING CREDIT LOAN" has the meaning specified in Section
2.01(b).
"NET CASH PROCEEDS" means:
(a) with respect to the Disposition of any asset by Holdings or any
of its Subsidiaries or any Casualty Event, the excess, if any, of (i) the
sum of cash and Cash Equivalents received in connection with such
Disposition or Casualty Event (including any cash or Cash Equivalents
received by way of deferred payment pursuant to, or by monetization of, a
note receivable or otherwise, but only as and when so received and, with
respect to any Casualty Event, any insurance proceeds or condemnation
awards in respect of such Casualty Event actually received by or paid to
or for the account of Holdings or any of its Subsidiaries) over (ii) the
sum of (A) the principal amount, premium or penalty, if any, interest and
other amounts on any Indebtedness that is secured by the asset subject to
such Disposition or Casualty Event and that is required to be repaid (and
is timely repaid) in connection with such Disposition or Casualty Event
(other than Indebtedness under the Loan Documents), (B) the out-of-pocket
expenses (including, without limitation, attorneys' fees, investment
banking fees, survey costs, title insurance premiums, and related search
and recording charges, transfer taxes, deed or mortgage recording taxes,
other customary expenses and brokerage, consultant and other customary
fees) actually incurred by Holdings or such Subsidiary in connection with
such Disposition or Casualty Event, (C) taxes paid or reasonably estimated
to be actually payable in connection therewith, and (D) any reserve for
adjustment in respect of (x) the sale price of such asset or assets
established in accordance with GAAP and (y) any liabilities associated
with such asset or assets and retained by the Company or any of its
Subsidiaries after such sale or other disposition thereof, including,
without limitation, pension and other post-employment benefit liabilities
and liabilities related to environmental matters or against any
indemnification obligations associated with such transaction and it being
understood that "Net Cash Proceeds" shall include, without limitation, any
cash or Cash Equivalents (i) received upon the Disposition of any non-cash
consideration received by the Company or any of its Subsidiaries in any
such Disposition and (ii) upon the reversal (without the satisfaction of
any applicable liabilities in cash in a corresponding amount) of any
reserve described in clause (D) of the preceding sentence or, if such
liabilities have not been satisfied in cash and such reserve not reversed
within three hundred and sixty-five (365) days after such Disposition or
Casualty Event, the amount of such reserve; provided that (x) no net cash
proceeds
38
calculated in accordance with the foregoing realized in a single
transaction or series of related transactions shall constitute Net Cash
Proceeds unless such net cash proceeds shall exceed $2,000,000 and (y) no
such net cash proceeds shall constitute Net Cash Proceeds under this
clause (a) in any fiscal year until the aggregate amount of all such net
cash proceeds in such fiscal year shall exceed $5,000,000 (and thereafter
only net cash proceeds in excess of such amount shall constitute Net Cash
Proceeds under this clause (a)); provided, further, that if the Leverage
Ratio would not have exceeded 3.75 to 1.00 (calculated on the assumption
that any SolidEdge Excess Proceeds are not applied to repay Indebtedness),
immediately after giving effect to any sale or other transfer relating to
SolidEdge or any Investment received by the Company or its Restricted
Subsidiaries in exchange for the contribution, sale or other transfer of
SolidEdge in a transaction permitted by the applicable provisions of this
Agreement, then the SolidEdge Excess Proceeds shall not constitute Net
Cash Proceeds.
(b) with respect to the issuance of any Equity Interest by Holdings
or any of its Subsidiaries, the excess of (i) the sum of the cash and Cash
Equivalents received in connection with such issuance over (ii) all taxes
and fees (including investment banking fees, underwriting discounts,
commissions, costs and other out-of-pocket expenses and other customary
expenses) incurred by Holdings or such Subsidiary in connection with such
issuance; and
(c) with respect to the incurrence or issuance of any Indebtedness
by Holdings or any of its Subsidiaries, the excess, if any, of (i) the sum
of the cash received in connection with such sale over (ii) the investment
banking fees, underwriting discounts, commissions, costs and other
out-of-pocket expenses and other customary expenses, incurred by Holdings
or such Subsidiary in connection with such incurrence or issuance.
"NON-CONSENTING LENDER" has the meaning specified in Section 3.07(d).
"NONRENEWAL NOTICE DATE" has the meaning specified in Section
2.03(b)(iii).
"NOTE" means a Term Note or a Revolving Credit Note, as the context may
require.
"NOTICE OF INTENT TO CURE" has the meaning specified in Section 6.02(b).
"NOT OTHERWISE APPLIED" means, with reference to any amount of Net Cash
Proceeds of any transaction or event or of Excess Cash Flow, that such amount
(a) was not required to be applied to prepay the Loans pursuant to Section
2.05(b), (b) was not previously included in a calculation of "Consolidated
EBITDA" pursuant to clause (b)(xx) of the definition thereof and (c) was not
previously applied in determining the permissibility of a transaction under the
Loan Documents where such permissibility was (or may have been) contingent on
receipt of such amount. The Company shall promptly notify the Administrative
Agent of any application of such amount as contemplated by (c) above.
"NPL" means the National Priorities List under CERCLA.
"OBLIGATIONS" means all (x) advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party and its Subsidiaries
arising under any Loan Document or otherwise
39
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 the commencement by or against any Loan Party or Subsidiary of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed claims
in such proceeding, (y) obligations of any Loan Party and its Subsidiaries
arising under any Secured Hedge Agreement and (z) Cash Management Obligations.
Without limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents (and of their Subsidiaries to the extent they
have obligations under the Loan Documents) include (a) the obligation (including
guarantee obligations) to pay principal, interest, Letter of Credit commissions,
reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities
and other amounts payable by any Loan Party or its Subsidiaries under any Loan
Document and (b) the obligation of any Loan Party or any of its Subsidiaries to
reimburse any amount in respect of any of the foregoing that any Lender, in its
sole discretion, may elect to pay or advance on behalf of such Loan Party or
such Subsidiary.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"ORIGINAL CREDIT AGREEMENT" shall have the meaning assigned to such term
in the recitals to this Agreement
"OTHER TAXES" has the meaning specified in Section 3.01(b).
"OUTSTANDING AMOUNT" means (a) with respect to the Term Loans, Revolving
Credit Loans, Swing Line Loans and Overdraft Facility Loans on any date, the
Dollar Amount thereof after giving effect to any borrowings and prepayments or
repayments of Term Loans, Revolving Credit Loans (including any refinancing of
outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as
a Revolving Credit Borrowing), Swing Line Loans and Overdraft Facility Loans, as
the case may be, occurring on such date; and (b) with respect to any L/C
Obligations on any date, the Dollar Amount thereof on such date after giving
effect to any L/C Credit Extension occurring on such date and any other changes
thereto as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit (including any
refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit
Extensions as a Revolving Credit Borrowing) or any reductions in the maximum
amount available for drawing under Letters of Credit taking effect on such date.
"OVERDRAFT FACILITY LOANS" has the meaning specified in Section 2.04A(a).
40
"OVERDRAFT LOAN FACILITY" means the overdraft loan facility or facilities
from time to time in effect between a Lender and its affiliates, on the one
hand, and the Company and its Restricted Subsidiaries, on the other, which
facility or facilities provides for short term borrowings in Dollars and local
currencies pursuant to documentation and/or arrangements acceptable to such
Lender. A credit facility shall be an Overdraft Loan Facility for purposes of
the Loan Documents only if the Administrative Agent has agreed in writing with
the Company and the Overdraft Loan Facility Lender that such credit facility is
an Overdraft Loan Facility. An Overdraft Loan Facility is part of, and not in
addition to, the Revolving Credit Facility.
"OVERDRAFT LOAN FACILITY AVAILABLE AMOUNT" means the maximum stated
principal amount of credit available from time to time under an Overdraft Loan
Facility (whether or not the Company and its Restricted Subsidiaries are then
entitled to borrow thereunder). The initial Overdraft Loan Facility Available
Amount is $30,000,000, and the Overdraft Loan Facility Available Amount will not
be greater than $30,000,000 without the consent of the Administrative Agent and
the Overdraft Loan Facility Lender.
"OVERDRAFT LOAN FACILITY LENDER" means the Lender and its affiliates from
time to time providing an Overdraft Loan Facility. The initial Overdraft Loan
Facility Lender is Citicorp North America, Inc. and its affiliates.
"OVERDRAFT PARTICIPATION DATE" means the date, if any, on which the
Revolving Credit Lenders are required to purchase participations in the
Overdraft Facility Loans pursuant to Section 2.04A(c)(ii).
"OVERNIGHT RATE" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate, and (b) with respect to any
amount denominated in an Alternative Currency, the rate of interest per annum at
which overnight deposits in the applicable Alternative Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of JPMorgan
Chase Bank in the applicable offshore interbank market for such currency to
major banks in such interbank market.
"OVERSEAS BORROWERS" means any Qualified Foreign Subsidiary as to which an
Election to Participate shall have been delivered to the Administrative Agent in
accordance with Section 2.14; provided that the status of any of the foregoing
as an Overseas Borrower shall terminate if and when an Election to Terminate is
delivered to the Administrative Agent in accordance with Section 2.14.
"PARENT" means UGS Capital Corp. (f/k/a BSW Holdings, Inc.), a Delaware
corporation, and the ultimate parent of Holdings.
"PARTICIPANT" has the meaning specified in Section 10.07(e).
"PARTICIPATING MEMBER STATE" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
41
"PENSION PLAN" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or
any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five (5) plan years.
"PERMITTED ACQUISITION" has the meaning specified in Section 7.02(i).
"PERMITTED ENCUMBRANCES" has the meaning specified in the Mortgages.
"PERMITTED EQUITY ISSUANCE" means any sale or issuance of any Qualified
Equity Interests of Holdings (and, after a Qualifying IPO, of the Company) to
the extent permitted hereunder.
"PERMITTED HOLDCO DEBT" has the meaning specified in Section 7.03(c)(iii).
"PERMITTED HOLDERS" means the Equity Investors other than (a) any
portfolio company of the Sponsors and (b) Management Shareholders to the extent
that such Management Shareholders in the aggregate own beneficially or of record
more than five percent (5%) of the outstanding voting stock of Holdings.
"PERMITTED REFINANCING" means, with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any Indebtedness
of such Person; provided that (a) the principal amount (or accreted value, if
applicable) thereof does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so modified, refinanced, refunded, renewed or
extended except by an amount equal to unpaid accrued interest and premium
thereon plus other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such modification, refinancing, refunding, renewal
or extension and by an amount equal to any existing commitments unutilized
thereunder or as otherwise permitted pursuant to Section 7.03, (b) such
modification, refinancing, refunding, renewal or extension has a final maturity
date equal to or later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or
extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed
or extended is subordinated in right of payment to the Obligations, such
modification, refinancing, refunding, renewal or extension is subordinated in
right of payment to the Obligations on terms at least as favorable to the
Lenders as those contained in the documentation governing the Indebtedness being
modified, refinanced, refunded, renewed or extended, (d) the terms and
conditions (including, if applicable, as to collateral) of any such modified,
refinanced, refunded, renewed or extended Indebtedness are not materially less
favorable to the Loan Parties or the Lenders than the terms and conditions of
the Indebtedness being modified, refinanced, refunded, renewed or extended, (e)
such modification, refinancing, refunding, renewal or extension is incurred by
the Person who is the obligor on the Indebtedness being modified, refinanced,
refunded, renewed or extended, and (f) at the time thereof, no Event of Default
shall have occurred and be continuing.
42
"PERMITTED SUBORDINATED INDEBTEDNESS" means any unsecured Indebtedness of
the Company that (a) is expressly subordinated to the prior payment in full in
cash of the Obligations on terms and conditions no less favorable to the Lenders
than the terms and conditions set forth in the Senior Subordinated Notes
Indenture, (b) will not mature prior to the date that is ninety-one (91) days
after the Maturity Date of the Term Loans, (c) has no scheduled amortization or
payments of principal prior to the Maturity Date of the Term Loans, and (d) has
covenant, default and remedy provisions no more restrictive, or mandatory
prepayment, repurchase or redemption provisions no more onerous or expansive in
scope, taken as a whole, than those set forth in the Senior Subordinated Notes
Indenture.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by any Loan Party or, with respect to any
such plan that is subject to Section 412 of the Code or Title IV of ERISA, any
ERISA Affiliate.
"PLEDGED DEBT" has the meaning specified in the Security Agreement.
"PLEDGED EQUITY" has the meaning specified in the Security Agreement.
"PRO FORMA BALANCE SHEET" has the meaning set forth in Section
5.05(a)(ii).
"PRO FORMA BALANCE SHEET (TECNOMATIX)" has the meaning set forth in
Section 5.05(a)(iii).
"PRO FORMA BASIS", "PRO FORMA COMPLIANCE" and "PRO FORMA EFFECT" means,
with respect to compliance with any test or covenant hereunder, that all
Specified Transactions and the following transactions in connection therewith
shall be deemed to have occurred as of the first day of the applicable period of
measurement in such test or covenant: (a) income statement items (whether
positive or negative) attributable to the property or Person subject to such
Specified Transaction, (i) in the case of a Disposition of all or substantially
all Equity Interests in any Subsidiary of the Company or any division, product
line, or facility used for operations of the Company or any of its Subsidiaries,
shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment
described in the definition of "Specified Transaction", shall be included, (b)
any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by
the Company or any of its Restricted Subsidiaries in connection therewith and if
such Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination; provided that the
foregoing pro forma adjustments may be applied to any such test or covenant
solely to the extent that such adjustments are consistent with the definition of
Consolidated EBITDA and give effect to events (including operating expense
reductions) that are (x) directly attributable to such transaction, (y) expected
to have a continuing impact on the Company and its Restricted Subsidiaries and
(z) factually supportable.
"PRO RATA SHARE" means, with respect to each Lender at any time a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of
43
the Commitments of such Lender under the applicable Facility or Facilities at
such time and the denominator of which is the amount of the Aggregate
Commitments under the applicable Facility or Facilities at such time; provided
that if such Commitments have been terminated, then the Pro Rata Share of each
Lender shall be determined based on the Pro Rata Share of such Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof.
"PROJECTIONS" shall have the meaning set forth in Section 6.01(c).
"PURCHASE AGREEMENT" means the Stock Purchase Agreement dated as of March
12, 2004 by and among the Parent, Seller and UGS PLM Solutions, as amended by
Side Letter Agreement Number 1 to UGS PLM Stock Purchase Agreement dated April
8, 2004, by and among the Parent, the Seller and UGS PLM Solutions, Side Letter
Agreement Number 2 to UGS PLM Stock Purchase Agreement dated April 26, 2004, by
and among the Parent, the Seller and UGS PLM Solutions and that certain Side
Letter Agreement dated May 27, 2004, by and among the Parent, the Seller and UGS
PLM Solutions, and as further modified from time to time in accordance with
Section 7.15.
"QUALIFIED EQUITY INTERESTS" means any Equity Interests that are not
Disqualified Equity Interests.
"QUALIFIED FOREIGN SUBSIDIARY" means any Restricted Subsidiary of the
Company that satisfies the following criteria: (a) the principal place of
business and jurisdiction of organization or incorporation of such Subsidiary is
located outside the United States, and (b) such Subsidiary is a wholly owned
Subsidiary of the Company at the time.
"QUALIFYING IPO" means the issuance by the Parent, Midco, Holdings or the
Company of its common Equity Interests in an underwritten primary public
offering (other than a public offering pursuant to a registration statement on
Form S-8) pursuant to an effective registration statement filed with the SEC in
accordance with the Securities Act (whether alone or in connection with a
secondary public offering).
"REGISTER" has the meaning set forth in Section 10.07(d).
"REFINANCED TERM LOANS" has the meaning set forth in Section 10.01.
"REPLACEMENT TERM COMMITMENT" means, as to each Replacement Term Lender,
its obligation to make Replacement Term Loans to the Company under the Second
Amendment and Restatement Agreement, or to convert its Existing Term Loan into a
Replacement Term Loan thereunder, on the Second Restatement Effective Date or
Second Replacement Term Loan Borrowing Date, as applicable, or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement. The initial aggregate amount of the Replacement Term Commitments
is $725,000,000.
"REPLACEMENT TERM LENDER" means any Lender that has a Replacement Term
Commitment or a Replacement Term Loan.
44
"REPLACEMENT TERM LOANS" has the meaning set forth in Section 10.01, and
includes the Replacement Term Loans made by the Lenders to the Company or
converted from Existing Term Loans on the Restatement Effective Date or Second
Replacement Term Loan Borrowing Date, as applicable, pursuant to the Second
Amendment and Restatement Agreement.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the thirty (30) day notice period has been
waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a Borrowing,
conversion or continuation of Term Loans or Revolving Credit Loans, a Committed
Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.
"REQUIRED LENDERS" means, as of any date of determination, Lenders having
more than 50% of the sum of the (a) Total Outstandings (with the aggregate
Dollar Amount of each Lender's risk participation and funded participation in
L/C Obligations, Swing Line Loans and Overdraft Facility Loans being deemed
"held" by such Lender for purposes of this definition), (b) aggregate unused
Term Commitments and (c) aggregate unused Revolving Credit Commitments; provided
that the unused Term Commitment, unused Revolving Credit Commitment of, and the
portion of the Total Outstandings held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Lenders.
"RESPONSIBLE OFFICER" means the chief executive officer, president, vice
president, chief financial officer, treasurer or assistant treasurer or other
similar officer of a Loan Party and, as to any document delivered on the Closing
Date, any vice president, secretary or assistant secretary. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interest of
Holdings, the Company or any Restricted 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, defeasance,
acquisition, cancellation or termination of any such Equity Interest, or on
account of any return of capital to Holdings or the Company's stockholders,
partners or members (or the equivalent Persons thereof).
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other than an
Unrestricted Subsidiary.
"REVOLVING COMMITMENT INCREASE" has the meaning set forth in Section
2.15(a).
"REVOLVING COMMITMENT INCREASE LENDER" has the meaning set forth in
Section 2.15(a).
45
"REVOLVING CREDIT BORROWING" means a Dollar Revolving Credit Borrowing or
a Multicurrency Revolving Credit Borrowing.
"REVOLVING CREDIT COMMITMENT" means, as to each Revolving Credit Lender,
its Dollar Revolving Credit Commitment and its Multicurrency Revolving Credit
Commitment.
"REVOLVING CREDIT FACILITIES" means the collective reference to the Dollar
Revolving Credit Facility and the Multicurrency Revolving Credit Facility.
"REVOLVING CREDIT LENDERS" means the collective reference to the Dollar
Revolving Credit Lenders and the Multicurrency Revolving Credit Lenders.
"REVOLVING CREDIT LOANS" means the collective reference to the Dollar
Revolving Credit Loans and the Multicurrency Revolving Credit Loans.
"REVOLVING CREDIT NOTE" means a promissory note of a Borrower payable to
any Revolving Credit Lender or its registered assigns, in substantially the form
of Exhibit C-2 hereto, evidencing the aggregate indebtedness of such Borrower to
such Revolving Credit Lender resulting from the Revolving Credit Loans made by
such Revolving Credit Lender.
"ROLLOVER AMOUNT" has the meaning set forth in Section 7.19(b).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
"SAME DAY FUNDS" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent or the L/C Issuer, as the case may be, to
be customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SECOND AMENDMENT AND RESTATEMENT AGREEMENT" shall have the meaning
assigned to such term in the recitals to this Agreement.
"SECOND RESTATEMENT EFFECTIVE DATE" means the date on which the conditions
precedent set forth in Section 4(a) of the Second Amendment and Restatement
Agreement shall have been satisfied, which date is February 28, 2005.
"SECURED HEDGE AGREEMENT" means any Swap Contract required or permitted
under Article 6 or 7 that is entered into by and between any Loan Party or any
Restricted Subsidiary and any Hedge Bank.
"SECURED OBLIGATIONS" has the meaning specified in the Security Agreement.
46
"SECURED PARTIES" means, collectively, the Administrative Agent, the
Lenders, the Hedge Banks, the Overdraft Loan Facility Lender, the Supplemental
Administrative Agent and each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 9.01(c).
"SECURITY AGREEMENT" means, collectively, the Security Agreement executed
by the Loan Parties, substantially in the form of Exhibit G, together with each
other security agreement supplement executed and delivered pursuant to Section
6.12.
"SECURITY AGREEMENT SUPPLEMENT" has the meaning specified in the Security
Agreement.
"SELLER" means Electronic Data Systems Corporation, a Delaware
corporation.
"SENIOR SUBORDINATED NOTES" means the $550,000,000 aggregate principal
amount of the Company's senior subordinated notes due 2014 issued in a public
offering or in a Rule 144A or other private placement pursuant to the Senior
Subordinated Notes Indenture.
"SENIOR SUBORDINATED NOTES DOCUMENTS" means the Senior Subordinated Notes,
the Senior Subordinated Notes Indenture, and all other documents executed and
delivered with respect to the Senior Subordinated Notes or the Senior
Subordinated Note Indenture.
"SENIOR SUBORDINATED NOTES INDENTURE" means the Indenture for the Senior
Subordinated Notes, dated as of May 27, 2004.
"SOLIDEDGE" means the business of the Company and the Restricted
Subsidiaries constituting the "SolidEdge" division or line of business,
substantially as currently conducted and including any corporation, partnership
or limited liability company to which such business may be contributed.
"SOLIDEDGE EXCESS PROCEEDS" means the aggregate cash proceeds, in respect
of a Disposition relating to SolidEdge or a Disposition relating to any
Investment received by the Company or its Restricted Subsidiaries in exchange
for the sale, contribution or other transfer of SolidEdge in a transaction
permitted by the applicable provisions of this Agreement in excess of the sum of
(x) $70.0 million plus (y) all legal, accounting and investment banking fees
(including, without limitation, any fees, commissions or other payments to the
Sponsors) and brokerage and sales commissions, taxes, paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), repayments of Indebtedness that
are secured by the property that is the subject of such Disposition and any
deduction of appropriate amounts to be provided by the Company as a reserve in
accordance with GAAP against any liabilities associated with the asset disposed
of in such transaction and retained by the Company after such sale or other
disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such
Person is greater than
47
the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"SPC" has the meaning specified in Section 10.07(h).
"SPECIFIED TRANSACTION" means, with respect to any period, any, Investment
or incurrence of Indebtedness that by the terms of this Agreement requires "Pro
Form Compliance" with a test or covenant hereunder or requires such test or
covenant to be calculated on a "Pro Forma Basis."
"SPONSORS" means, collectively, ▇▇▇▇ Capital Integral Investors, LLC (and
its members), ▇▇▇▇ Capital VII Coinvestment Fund, L.P., BCIP TCV, LLC, Silver
Lake Partners, L.P., Silver Lake Investors, L.P., Silver Lake Technology
Investors, L.L.C., Integral Capital Partners VI, L.P., Warburg Pincus Private
Equity VIII, L.P. and Warburg Pincus International Partners, L.P., and their
Affiliates, but not including, however, any portfolio companies of any of the
foregoing.
"SPONSOR MANAGEMENT AGREEMENT" means the Management Agreement between
certain of the management companies associated with the Sponsors, the Company,
Midco, Holdings and the Parent.
"SPONSOR TERMINATION FEES" means the one-time payment under the Sponsor
Management Agreement of a termination fee to one or more of the Sponsors and
their Affiliates in the event of either a Change in Control or the completion of
a Qualifying IPO.
"SPOT RATE" means, for any Alternative Currency (or other foreign
currency) on any day, the average of the Administrative Agent's spot buying and
selling rates for the exchange of such Alternative Currency (or other foreign
currency) and Dollars as of approximately 11:00 a.m. (London, England time) two
(2) Business Days prior to such day.
"STERLING" and "L" means the lawful currency of the United Kingdom.
"SUBSIDIARY" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
Holdings.
48
"SUBSIDIARY GUARANTOR" means, collectively, the Subsidiaries of the
Company that are Guarantors.
"SUBSIDIARY GUARANTY" means, collectively, the Subsidiary Guaranty made by
the Subsidiary Guarantors in favor of the Administrative Agent on behalf of the
Lenders, substantially in the form of Exhibit F-2, together with each other
guaranty and guaranty supplement delivered pursuant to Section 6.12.
"SUPER-MAJORITY LENDERS" has the meaning specified in Section 10.01.
"SUPPLEMENTAL ADMINISTRATIVE AGENT" has the meaning specified in Section
9.13 and "Supplemental Administrative Agents" shall have the corresponding
meaning.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "MASTER AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"SWING LINE BORROWING" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"SWING LINE FACILITY" means the revolving credit facility made available
by the Swing Line Lender pursuant to Section 2.04.
"SWING LINE LENDER" means JPMorgan Chase Bank in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"SWING LINE LOAN" has the meaning specified in Section 2.04(a).
49
"SWING LINE LOAN NOTICE" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B.
"SWING LINE SUBLIMIT" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Revolving Credit Commitments. The Swing Line Sublimit is
part of, and not in addition to, the Multicurrency Revolving Credit Commitments.
"SYNDICATION AGENT" means Citicorp North America, Inc., as Syndication
Agent under the Loan Documents.
"SYNDICATION DATE" means the earlier of (i) June 30, 2004 and (ii) the
date of completion of the primary syndication of the Facilities, as specified by
the Arrangers in a written notice to the Company.
"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" has the meaning specified in Section 3.01(a).
"TECNOMATIX ACQUISITION" has the meaning specified in Section 7.02(r).
"TECNOMATIX PURCHASE AGREEMENT" has the meaning specified in Section
7.02(r).
"TECNOMATIX TRANSACTION" means, collectively, (a) the Tecnomatix
Acquisition, (b) the funding of the Term Loans pursuant to the Second Amendment
and Restatement Agreement, (c) the consummation of any other transaction in
connection with the foregoing, and (d) the payment of the fees and expenses
incurred in connection with any of the foregoing.
"TERM BORROWING" means a borrowing consisting of simultaneous Term Loans
of the same Type and, in the case of Eurodollar Rate Loans, having the same
Interest Period made by the Term Lenders pursuant to Section 2.01 or pursuant to
the Second Amendment and Restatement Agreement.
"TERM COMMITMENT" means, as to each Term Lender, (i) prior to the Second
Restatement Effective Date, its Existing Term Commitment and (ii) on or after
the Second Restatement Effective Date, its Replacement Term Commitment.
"TERM FACILITY" means the Facility consisting of the Term Loans.
"TERM LENDER" means, at any time, any Lender that has a Term Commitment or
a Term Loan at such time.
"TERM LOAN" means (i) prior to the Second Restatement Effective Date, the
Existing Term Loans and (ii) on or after the Second Restatement Effective Date,
the Replacement Term Loans.
50
"TERM NOTE" means a promissory note of the Company payable to any Term
Lender or its registered assigns, in substantially the form of Exhibit C-1
hereto, evidencing the aggregate indebtedness of the Company to such Term Lender
resulting from the Term Loans made by such Term Lender.
"THRESHOLD AMOUNT" means $20,000,000.
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"TRANSACTION" means, collectively, (a) the Equity Contributions, (b) the
Acquisition, (c) the issuance of the Senior Subordinated Notes, (d) the funding
of the Term Loans and up to $30,000,000 of Revolving Credit Loans on the Closing
Date, (e) the consummation of any other transactions in connection with the
foregoing, and (f) the payment of the fees and expenses incurred in connection
with any of the foregoing.
"TRANSACTION DOCUMENTS" means the Purchase Agreement and the Transition
Services Agreements (as defined in the Purchase Agreement) and all other
material documents, instruments and certificates contemplated by the Purchase
Agreement.
"TYPE" means, with respect to a Loan denominated in Dollars, its character
as a Base Rate Loan or a Eurodollar Rate Loan.
"UK LOAN PARTY" means any Loan Party incorporated or organized in England
or Wales.
"UGS PLM SOLUTIONS" means UGS PLM Solutions Inc., a Delaware corporation.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as the same
may from time to time be in effect in the State of New York or the Uniform
Commercial Code (or similar code or statute) of another jurisdiction, to the
extent it may be required to apply to any item or items of Collateral.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning set forth in Section 2.03(c)(i).
"UNRESTRICTED SUBSIDIARY" means (i) each Subsidiary of the Company listed
on Schedule 1.01C and (ii) any Subsidiary of the Company designated by the board
of directors of Holdings as an Unrestricted Subsidiary pursuant to Section 6.17
subsequent to the date hereof.
"U.S. LENDER" has the meaning set forth in Section 10.15(b).
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date
51
and the making of such payment; by (ii) the then outstanding principal amount of
such Indebtedness.
"WHOLLY OWNED" means, with respect to a Subsidiary of a Person, a
Subsidiary of such Person all of the outstanding Equity Interests of which
(other than (x) director's qualifying shares and (y) shares issued to foreign
nationals to the extent required by applicable law) are owned by such Person
and/or by one or more wholly owned Subsidiaries of such Person.
"WORKING CAPITAL" means an amount determined for the Consolidated Parties
equal to the sum of all current assets (other than cash and Cash Equivalents and
current deferred tax assets) less the sum of all current liabilities (other than
the current portion of long-term Indebtedness and current deferred tax
liabilities), as set forth on the consolidated balance sheet of the Consolidated
Parties.
"YEN" and "Y" means the lawful currency of Japan.
Section 1.02 Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and words
of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form.
(c) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
Section 1.03 Accounting Terms. (a) All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP, as in effect from time to time, applied
52
in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP or a change in the practice by the
Company with respect to Statement of Financial Accounting Standard No. 86,
"Accounting for the Costs of Computer Software to be Sold, Leased or Otherwise
Marketed" would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Company or the Required Lenders shall
so request, the Administrative Agent and the Company shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP or such change in the Company's practice
(subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein or in accordance with the
practice by the Company prior to such change and (ii) the Company shall provide
to the Administrative Agent and the Lenders a written reconciliation in form and
substance reasonably satisfactory to the Administrative Agent, between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP or such change in the Company's practice.
(c) Notwithstanding anything to the contrary herein, for purposes of
determining compliance with any test or covenant contained in this Agreement
with respect to any period during which any Specified Transaction occurs, the
Leverage Ratio, the Holdings Consolidated Leverage Ratio and Interest Coverage
Ratio shall be calculated with respect to such period and such Specified
Transaction on a Pro Forma Basis.
Section 1.04 Rounding. Any financial ratios required to be maintained by
the Company pursuant to this Agreement (or required to be satisfied in order for
a specific action to be permitted under this Agreement) shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
Section 1.05 References to Agreements, Laws, etc.. Unless otherwise
expressly provided herein, (a) references to Organization Documents, agreements
(including the Loan Documents) and other contractual instruments shall be deemed
to include all subsequent amendments, restatements, extensions, supplements and
other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are permitted by
any Loan Document; (b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law, (c) references herein to real and personal property shall
be deemed to include immovable and movable property, respectively, within the
meaning of the Civil Code of Quebec, (d) references to perfect or to perfection
shall, in connection with any security or opinion relating to the Province of
Quebec, be deemed to mean to set up or render opposable against third parties
within the meaning of the Civil Code of Quebec, and (e) references to hypothec
shall have the meaning ascribed to such term in the Civil Code of Quebec.
Section 1.06 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
53
Section 1.07 Timing of Payment of Performance. When the payment of any
obligation or the performance of any covenant, duty or obligation is stated to
be due or performance required on a day which is not a Business Day, the date of
such payment (other than as described in the definition of Interest Period) or
performance shall extend to the immediately succeeding Business Day.
Section 1.08 Currency Equivalents Generally. Any amount specified in this
Agreement (other than in Articles 2, 9 and 10) or any of the other Loan
Documents to be in Dollars shall also include the equivalent of such amount in
any currency other than Dollars, such equivalent amount to be determined at the
rate of exchange quoted by JPMorgan Chase Bank in New York, New York at the
close of business on the Business Day immediately preceding any date of
determination thereof, to prime banks in New York, New York for the spot
purchase in the New York foreign exchange market of such amount in Dollars with
such other currency; provided that the determination of any Dollar Amount shall
be made in accordance with Section 2.17.
Section 1.09 Change of Currency. (a) Each obligation of the Borrowers 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 after
consultation with the Company 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 after consultation with the Company to be appropriate to reflect a
change in currency of any other country and any relevant market conventions or
practices relating to such change in currency.
ARTICLE 2
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01 The Loans The Term Borrowings. Subject to the terms and
conditions set forth herein, the Term Lenders made term loans in Dollars to the
Company in the aggregate principal amount of $500,000,000 (the "EXISTING TERM
LOANS"). Subject to the terms and conditions set forth herein and in the Second
Amendment and Restatement Agreement, each Replacement Term Lender made (or will
make) Replacement Term Loans to the Borrower or converted Existing Term Loans
into Replacement Term Loans in a principal amount equal to its
54
Replacement Term Commitment. Amounts borrowed under this Section 2.01(a) and
repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein. Replacement Term Loans are
Term Loans for all purposes of this Agreement and the other Loan Documents.
(b) The Revolving Credit Borrowings. Subject to the terms and conditions
set forth herein (i) each Dollar Revolving Credit Lender severally agrees to
make loans to any Borrower denominated in Dollars as elected by such Borrower
pursuant to Section 2.02 (each such loan, a "DOLLAR REVOLVING CREDIT LOAN") from
time to time, on any Business Day until the Maturity Date, in an aggregate
Dollar Amount not to exceed at any time outstanding the amount of such Lender's
Dollar Revolving Credit Commitment and (ii) each Multicurrency Revolving Credit
Lender severally agrees to make loans to any Borrower denominated in Dollars or,
with respect to loans made after the Closing Date, in an Alternative Currency as
elected by such Borrower pursuant to Section 2.02 (each such loan, a
"MULTICURRENCY REVOLVING CREDIT LOAN") from time to time, on any Business Day
until the Maturity Date, in an aggregate Dollar Amount not to exceed at any time
outstanding the amount of such Lender's Multicurrency Revolving Credit
Commitment; provided that after giving effect to any Revolving Credit Borrowing,
(i) with respect to the Dollar Revolving Credit Facility, the aggregate
Outstanding Amount of the Dollar Revolving Credit Loans of any Lender shall not
exceed such Lender's Dollar Revolving Credit Commitment, (ii) with respect to
the Multicurrency Revolving Credit Facility, the aggregate Outstanding Amount of
the Multicurrency Revolving Credit Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's
Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not
exceed the excess of such Lender's Multicurrency Revolving Credit Commitment
over such Lender's Pro Rata Share of the Overdraft Loan Facility Available
Amount then in effect, (iii) the aggregate Dollar Amount of Revolving Credit
Loans which are Alternative Currency Loans and L/C Obligations denominated in an
Alternative Currency shall not exceed the Alternative Currency Sublimit and (iv)
the aggregate Dollar Amount of Revolving Credit Loans made on the Closing Date
shall not exceed $30,000,000. Within the limits of each Lender's Revolving
Credit Commitment, and subject to the other terms and conditions hereof, the
Borrowers may borrow under this Section 2.01(b), prepay under Section 2.05, and
reborrow under this Section 2.01(b). Revolving Credit Loans denominated in
Dollars may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.
Section 2.02 Borrowings, Conversions and Continuations of Loans. (a) Each
Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans
or Revolving Credit Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the relevant Borrower's irrevocable
notice to the Administrative Agent, which may be given by telephone. Each such
notice must be received by the Administrative Agent not later than 12:30 p.m.
(New York, New York time or London, England time in the case of any Borrowing
denominated in an Alternative Currency) (i) three (3) Business Days prior to the
requested date of any Borrowing of, continuation of Eurodollar Rate Loans or any
conversion of Base Rate Loans to Eurodollar Rate Loans, and (ii) one (1)
Business Day before the requested date of any Borrowing of Base Rate Loans. Each
telephonic notice by the relevant Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of such Borrower. Each Borrowing of, conversion to or continuation of
55
Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $1,000,000 in excess thereof (or comparable amounts determined by
the Administrative Agent in the case of Alternative Currency Loans). Except as
provided in Section 2.03(c), 2.04(c) and 2.04A(c), each Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether the relevant Borrower
is requesting a Term Borrowing, a Dollar Revolving Credit Borrowing, a
Multicurrency Revolving Credit Borrowing, a conversion of Term Loans, Dollar
Revolving Credit Loans, or Multicurrency Revolving Credit Loans from one Type to
the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date
of the Borrowing, conversion or continuation, as the case may be (which shall be
a Business Day), (iii) the principal amount of Loans to be borrowed, converted
or continued, (iv) the currency in which the Loans to be borrowed are to be
denominated, (v) the Type of Loans to be borrowed or to which existing Term
Loans, Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans are
to be converted, and (vi) if applicable, the duration of the Interest Period
with respect thereto; provided that prior to the Syndication Date, the Borrowers
may only select 1-month Interest Periods. If with respect to Loans denominated
in Dollars the relevant Borrower fails to specify a Type of Loan in a Committed
Loan Notice or fails to give a timely notice requesting a conversion or
continuation, then the applicable Term Loans or Revolving Credit Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the relevant
Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
Rate Loans in any such Committed Loan Notice, but fails to specify an Interest
Period (or fails to give a timely notice requesting a continuation of Eurodollar
Rate Loans denominated in an Alternative Currency), it will be deemed to have
specified an Interest Period of one (1) month. If no currency is specified, the
requested Borrowing shall be in Dollars.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Class of Loans, and if no timely notice of a conversion or
continuation is provided by the relevant Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans or continuation described in Section 2.02(a). In the case of each
Borrowing, each Appropriate Lender shall make the amount of its Loan available
to the Administrative Agent in Same Day Funds at the Administrative Agent's
Office for the applicable currency not later than 1:00 p.m., in the case of any
Loan denominated in Dollars, and not later than the Applicable Time specified by
the Administrative Agent in the case of any Loan in an Alternative Currency, in
each case on the Business Day specified in the applicable Committed Loan Notice.
Upon satisfaction of the applicable conditions set forth in Section 4.02 (and,
if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the relevant
Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of such Borrower on the books of JPMorgan Chase Bank with
the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by such Borrower; provided that if, on the date the
Committed Loan Notice with respect to such Borrowing is given by the relevant
Borrower, there are Swing Line Loans or L/C Borrowings outstanding, then the
proceeds of such Borrowing shall be applied, first, to the payment in full of
56
any such L/C Borrowings, second, to the payment in full of any such Swing Line
Loans, and third, to the relevant Borrower as provided above.
(b) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan unless the Company pays the amount due, if any, under
Section 3.05 in connection therewith. During the existence of an Event of
Default, the Administrative Agent or the Required Lenders may require that no
Loans denominated in Dollars may be converted to or continued as Eurodollar Rate
Loans.
(c) The Administrative Agent shall promptly notify the relevant Borrower
and the Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. The
determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans
are outstanding, the Administrative Agent shall notify the relevant Borrower and
the Lenders of any change in JPMorgan Chase Bank prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(d) After giving effect to all Term Borrowings, all Revolving Credit
Borrowings, all conversions of Term Loans or Revolving Credit Loans from one
Type to the other, and all continuations of Term Loans or Revolving Credit Loans
as the same Type, there shall not be more than twenty (20) Interest Periods in
effect.
(e) The failure of any Lender to make the Loan to be made by it as part of
any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on the date of any Borrowing.
Section 2.03 Letters of Credit. (a) The Letter of Credit Commitment. (i)
Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the other Multicurrency Revolving Credit
Lenders set forth in this Section 2.03, (1) from time to time on any Business
Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit denominated in Dollars or in an
Alternative Currency (or any additional currency requested and available from
the L/C Issuer or an Affiliate of the L/C Issuer) for the account of the Company
(or any Subsidiary of the Company so long as the Company is a joint and several
co-applicant, and references to "the Company" in this Section 2.03 shall be
deemed to include reference to such Subsidiary) and to amend or renew Letters of
Credit previously issued by it, in accordance with Section 2.03(b), and (2) to
honor drafts under the Letters of Credit; and (B) the Multicurrency Revolving
Credit Lenders severally agree to participate in Letters of Credit issued
pursuant to this Section 2.03; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of Credit,
and no Lender shall be obligated to participate in any Letter of Credit if as of
the date of such L/C Credit Extension, (x) the aggregate Outstanding Amount of
the Multicurrency Revolving Credit Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's
Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed
the excess of such Lender's Multicurrency Revolving Credit Commitment over such
Lender's Pro Rata Share of the
57
Overdraft Loan Facility Available Amount then in effect, (y) the Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit Sublimit or (z)
the aggregate Outstanding Amount of Multicurrency Revolving Credit Loans which
are Alternative Currency Loans and L/C Obligations denominated in Alternative
Currencies would exceed the Alternative Currency Sublimit. Within the foregoing
limits, and subject to the terms and conditions hereof, the Company's ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Company
may, during the foregoing period, obtain Letters of Credit to replace Letters of
Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the L/C Issuer from issuing such Letter of Credit,
or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from,
the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and
which, in each case, the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of
such requested Letter of Credit would occur more than twelve
months after the date of issuance or last renewal, unless the
Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date, unless
all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate
any Laws or one or more policies of the L/C Issuer;
(E) such Letter of Credit is in an initial amount less
than $100,000, in the case of a commercial Letter of Credit,
or $100,000, in the case of a standby Letter of Credit; or
(F) the L/C Issuer does not, as of the issuance date of
such requested Letter of Credit, issue Letters of Credit in
the requested currency.
(iii) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.
58
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit. (i) Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Company delivered to the
L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible Officer
of Company. Such Letter of Credit Application must be received by the L/C Issuer
and the Administrative Agent (A) not later than 12:30 p.m. at least two (2)
Business Days prior to the proposed issuance date or date of amendment, as the
case may be, of any Letter of Credit denominated in Dollars, and (B) not later
than 11:00 a.m. at least three (3) Business Days prior to the proposed issuance
date or date of amendment, as the case may be, of any Letter of Credit
denominated in an Alternative Currency; or, in each case, such later date and
time as the L/C Issuer may agree in a particular instance in its sole
discretion. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
reasonably satisfactory to the L/C Issuer: (a) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (b) the amount
thereof; (c) the expiry date thereof; (d) the name and address of the
beneficiary thereof; (e) the documents to be presented by such beneficiary in
case of any drawing thereunder; (f) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (g) such
other matters as the L/C Issuer may reasonably request. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to the L/C
Issuer (1) the Letter of Credit to be amended; (2) the proposed date of
amendment thereof (which shall be a Business Day); (3) the nature of the
proposed amendment; and (4) such other matters as the L/C Issuer may reasonably
request.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Company and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the
L/C Issuer of confirmation from the Administrative Agent that the
requested issuance or amendment is permitted in accordance with the terms
hereof, then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of
the Company or enter into the applicable amendment, as the case may be.
Immediately upon the issuance of each Letter of Credit, each Multicurrency
Revolving Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product
of such Lender's Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Company so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic renewal provisions
(each, an "AUTO-RENEWAL LETTER OF CREDIT"); provided that any such
Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any
such renewal at least once in each twelve month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "NONRENEWAL NOTICE
DATE") in each such twelve month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
the Company shall not be required to make a specific request to the L/C
Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has
been
59
issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the renewal of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit Expiration
Date; provided that the L/C Issuer shall not permit any such renewal if
(A) the L/C Issuer has determined that it would have no obligation at such
time to issue such Letter of Credit in its renewed form under the terms
hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise),
or (B) it has received notice (which may be by telephone or in writing) on
or before the day that is five (5) Business Days before the Nonrenewal
Notice Date (1) from the Administrative Agent that the Required Lenders
have elected not to permit such renewal or (2) from the Administrative
Agent, any Revolving Credit Lender or any Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Company and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations. (i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the Company and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in
an Alternative Currency or another foreign currency permitted by Section
2.03(a), the Company shall reimburse the L/C Issuer in such Alternative Currency
or such other foreign currency, as applicable, unless (A) the L/C Issuer (at its
option) shall have specified in such notice that it will require reimbursement
in Dollars, or (B) in the absence of any such requirement for reimbursement in
Dollars, the Company shall have notified the L/C Issuer promptly following
receipt of the notice of drawing that the Company will reimburse the L/C Issuer
in Dollars. In the case of any such reimbursement in Dollars of a drawing under
a Letter of Credit denominated in an Alternative Currency or another foreign
currency permitted by Section 2.03(a), the L/C Issuer shall notify the Company
of the Dollar Amount of the drawing promptly following the determination
thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer
under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on
the date of any payment by the L/C Issuer under a Letter of Credit to be
reimbursed in an Alternative Currency or another foreign currency permitted by
Section 2.03(a) (each such date, an "HONOR DATE"), the Company shall reimburse
the L/C Issuer through the Administrative Agent in an amount equal to the amount
of such drawing; provided that if such notice is not provided to the Company
prior to such time on the Honor Date, then the Company shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the amount of such
drawing in such currency on the next succeeding Business Day and such extension
of time shall be reflected in computing fees in respect of any such Letter of
Credit. If the Company fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Multicurrency Revolving Credit
Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in
Dollars in the Dollar Amount thereof in the case of a Letter of Credit
denominated in an Alternative Currency or another foreign currency permitted by
Section 2.03(a)) (the "UNREIMBURSED AMOUNT"), and the amount of such
Multicurrency Revolving Credit Lender's Pro Rata Share thereof. In such event,
the Company shall be deemed to have requested a Multicurrency Revolving Credit
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to
60
the minimum and multiples specified in Section 2.02 for the principal amount of
Base Rate Loans but subject to the amount of the unutilized portion of the
Multicurrency Revolving Credit Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice
given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Multicurrency Revolving Credit Lender (including the
Lender acting as L/C Issuer) shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer, in Dollars, at the Administrative Agent's
Office for Dollar-denominated payments in an amount equal to its Pro Rata
Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Multicurrency
Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Company in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer,
or if requested by the L/C Issuer, the equivalent amount thereof in an
Alternative Currency or another foreign currency permitted by Section
2.03(a) as determined by the Administrative Agent at such time on the
basis of the Spot Rate (determined as of such funding date) for the
purchase of such Alternative Currency with Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Multicurrency Revolving Credit Borrowing of Base Rate
Loans because the conditions set forth in Section 4.02 cannot be satisfied
or for any other reason, the Company shall be deemed to have incurred from
the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Multicurrency Revolving Credit Lender's payment
to the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under
this Section 2.03.
(iv) Until each Multicurrency Revolving Credit Lender funds its
Multicurrency Revolving Credit Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender's Pro Rata Share of
such amount shall be solely for the account of the L/C Issuer.
(v) Each Multicurrency Revolving Credit Lender's obligation to make
Multicurrency Revolving Credit Loans or L/C Advances to reimburse the L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the
L/C Issuer, any Borrower or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing; provided that each
61
Multicurrency Revolving Credit Lender's obligation to make Multicurrency
Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the relevant
Borrower of a Committed Loan Notice ). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Company to
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Multicurrency Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the L/C Issuer
any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the L/C Issuer
at a rate per annum equal to the applicable Overnight Rate from time to
time in effect. A certificate of the L/C Issuer submitted to any
Multicurrency Revolving Credit Lender (through the Administrative Agent)
with respect to any amounts owing under this Section 2.03(c)(vi) shall be
conclusive absent manifest error.
(d) Repayment of Participations. (i) If, at any time after the L/C Issuer
has made a payment under any Letter of Credit and has received from any
Multicurrency Revolving Credit Lender such Lender's L/C Advance in respect of
such payment in accordance with Section 2.03(c), the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Company or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender
its Pro Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's L/C Advance
was outstanding) in the same funds as those received by the Administrative
Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Multicurrency Revolving Credit Lender shall pay to
the Administrative Agent for the account of the L/C Issuer its Pro Rata
Share thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the applicable Overnight Rate from
time to time in effect.
(e) Obligations Absolute. The obligation of the Company to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto;
62
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that any Loan Party may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person for
whom any such beneficiary or any such transferee may be acting), the L/C
Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
(v) any exchange, release or nonperfection of any Collateral, or any
release or amendment or waiver of or consent to departure from the
Guaranty or any other guarantee, for all or any of the Obligations any
Loan Party in respect of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Loan Party;
provided that the foregoing shall not excuse the L/C Issuer from liability to
the Company to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are waived by the Company to the extent
permitted by applicable law) suffered by the Company that are caused by the L/C
Issuer's gross negligence or willful misconduct (as determined by the final
judgment of a court of competent jurisdiction) when determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof. The Company shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Company's instructions or other irregularity, the Company
will promptly notify the L/C Issuer. The Company shall be conclusively deemed to
have waived any such claim against the L/C Issuer and its correspondents unless
such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Company agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any
63
Agent-Related Person nor any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct (as determined
by the final judgment of a court of competent jurisdiction); or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Company hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided that this
assumption is not intended to, and shall not, preclude the Company's pursuing
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. None of the L/C Issuer, any Agent-Related
Person, nor any of the respective correspondents, participants or assignees of
the L/C Issuer, shall be liable or responsible for any of the matters described
in clauses (i) through (vi) of Section 2.03(e); provided that anything in such
clauses to the contrary notwithstanding, the Company may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Company, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Company which the Company proves were caused by the L/C
Issuer's willful misconduct or gross negligence (as determined by the final
judgment of a court of competent jurisdiction) or the L/C Issuer's willful or
grossly negligent failure (as determined by the final judgment of a court of
competent jurisdiction) to pay under any Letter of Credit after the presentation
to it by the beneficiary of a sight draft and certificate(s) strictly complying
with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. (i) If the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing and the conditions set forth in Section 4.02 to a Multicurrency
Revolving Credit Borrowing cannot then be met, or (ii) if, as of the Letter of
Credit Expiration Date, any Letter of Credit may for any reason remain
outstanding and partially or wholly undrawn, the Company shall Cash
Collateralize the then Outstanding Amount of all L/C Obligations (in an amount
equal to such Outstanding Amount determined as of the date of such L/C Borrowing
or the Letter of Credit Expiration Date, as the case may be), and shall do so
not later than 2:00 P.M., New York City time, on (x) the Business Day that the
Company receives notice thereof, if such notice is received on such day prior to
12:00 Noon, New York City time, or (y) if clause (x) above does not apply, the
Business Day immediately following the day that the Company receives such
notice. For purposes hereof, "CASH COLLATERALIZE" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances ("CASH COLLATERAL") pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Company (excluding any UK Loan Party included in the
definition of "Company" pursuant to Section 2.03(a)) hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit
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accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked accounts at JPMorgan Chase Bank and
may be invested in readily available Cash Equivalents. If at any time the
Administrative Agent determines that any funds held as Cash Collateral are
subject to any right or claim of any Person other than the Administrative Agent
or that the total amount of such funds is less than the aggregate Outstanding
Amount of all L/C Obligations, the Company will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the deposit accounts at JPMorgan Chase Bank as aforesaid,
an amount equal to the excess of (a) such aggregate Outstanding Amount over (b)
the total amount of funds, if any, then held as Cash Collateral that the
Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
as Cash Collateral, such funds shall be applied, to the extent permitted under
applicable law, to reimburse the L/C Issuer. To the extent the amount of any
Cash Collateral exceeds the then Outstanding Amount of such L/C Obligations and
so long as no Event of Default has occurred and is continuing, the excess shall
be refunded to the Company.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by
the L/C Issuer and the Company when a Letter of Credit is issued, (i) the rules
of the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce (the "ICC")
at the time of issuance shall apply to each commercial Letter of Credit.
(i) Letter of Credit Fees. The Company shall pay to the Administrative
Agent for the account of each Multicurrency Revolving Credit Lender in
accordance with its Pro Rata Share a Letter of Credit fee for each Letter of
Credit issued pursuant to this Agreement equal to the Applicable Rate times the
daily maximum amount then available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit if such maximum amount increases periodically pursuant to the terms of
such Letter of Credit). Such letter of credit fees shall be computed on a
quarterly basis in arrears. Such letter of credit fees shall be due and payable
on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the
daily maximum amount of each Letter of Credit shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Company shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit issued equal to 0.125% per
annum of the daily maximum amount then available to be drawn under such Letter
of Credit (whether or not such maximum amount is then in effect under such
Letter of Credit if such maximum amount increases periodically pursuant to the
terms of such Letter of Credit). Such fronting fees shall be computed on a
quarterly basis in arrears. Such fronting fees shall be due and payable on the
first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on
65
demand. In addition, the Company shall pay directly to the L/C Issuer for its
own account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable within five (5) Business Days of
demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. Notwithstanding anything
else to the contrary in this Agreement, in the event of any conflict between the
terms hereof and the terms of any Letter of Credit Application, the terms hereof
shall control.
Section 2.02 Swing Line Loans. (a) The Swing Line. Subject to the terms
and conditions set forth herein, the Swing Line Lender agrees to make loans
(each such loan, a "SWING LINE LOAN") to any Borrower from time to time on any
Business Day (other than the Closing Date) until the Maturity Date in an
aggregate amount not to exceed at any time outstanding the amount of the Swing
Line Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Pro Rata Share of the Outstanding Amount of Multicurrency
Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender's Multicurrency Revolving Credit
Commitment; provided that, after giving effect to any Swing Line Loan, the
aggregate Outstanding Amount of the Multicurrency Revolving Credit Loans of any
Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all
Swing Line Loans shall not exceed the excess of such Lender's Multicurrency
Revolving Credit Commitment over such Lender's Pro Rata Share of the Overdraft
Loan Facility Available Amount then in effect; provided further that, the
Borrowers shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, any Borrower may borrow under this Section
2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Multicurrency Revolving Credit Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the Swing
Line Lender a risk participation in such Swing Line Loan in an amount equal to
the product of such Lender's Pro Rata Share times the amount of such Swing Line
Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
relevant Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the relevant Borrower. Promptly
after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice,
the Swing Line Lender will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has also received such Swing Line
Loan Notice and, if not, the Swing Line Lender will notify the Administrative
Agent (by telephone or in writing) of the contents thereof. Unless the Swing
Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any
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Multicurrency Revolving Credit Lender) prior to 2:00 p.m. on the date of the
proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the relevant Borrower.
(c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time
in its sole and absolute discretion may request, on behalf of the relevant
Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Multicurrency Revolving Credit Lender make a
Base Rate Loan in an amount equal to such Lender's Pro Rata Share of the amount
of Swing Line Loans then outstanding. Such request shall be made in writing
(which written request shall be deemed to be a Committed Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Multicurrency Revolving Credit Commitments and the conditions set
forth in Section 4.02. The Swing Line Lender shall furnish the relevant Borrower
with a copy of the applicable Committed Loan Notice promptly after delivering
such notice to the Administrative Agent. Each Multicurrency Revolving Credit
Lender shall make an amount equal to its Pro Rata Share of the amount specified
in such Committed Loan Notice available to the Administrative Agent in Same Day
Funds for the account of the Swing Line Lender at the Administrative Agent's
Office for Dollar denominated payments not later than 1:00 p.m. on the day
specified in such Committed Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Multicurrency Revolving Credit Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the relevant Borrower
in such amount. The Administrative Agent shall remit the funds so received to
the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Multicurrency Revolving Credit Borrowing in accordance with Section
2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line
Lender as set forth herein shall be deemed to be a request by the Swing
Line Lender that each of the Multicurrency Revolving Credit Lenders fund
its risk participation in the relevant Swing Line Loan and each
Multicurrency Revolving Credit Lender's payment to the Administrative
Agent for the account of the Swing Line Lender pursuant to Section
2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Multicurrency Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the Swing Line
Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in
Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the Swing Line Lender at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate of
the Swing Line Lender submitted to any Lender (through the Administrative
Agent)
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with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each Multicurrency Revolving Credit Lender's obligation to make
Multicurrency Revolving Credit Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall
be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Lender,
the relevant Borrower or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided that each Multicurrency Revolving Credit Lender's obligation to
make Multicurrency Revolving Credit Loans pursuant to this Section 2.04(c)
is subject to the conditions set forth in Section 4.02. No such funding of
risk participations shall relieve or otherwise impair the obligation of
the relevant Borrower to repay Swing Line Loans, together with interest as
provided herein.
(d) Repayment of Participations. (i) At any time after any Multicurrency
Revolving Credit Lender has purchased and funded a risk participation in a Swing
Line Loan, if the Swing Line Lender receives any payment on account of such
Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro
Rata Share of such payment (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the Swing Line
Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
10.06 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Multicurrency Revolving Credit Lender
shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of
the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal to
the applicable Overnight Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrowers for interest on the Swing Line Loans.
Until each Multicurrency Revolving Credit Lender funds its Base Rate Loan or
risk participation pursuant to this Section 2.04 to refinance such Lender's Pro
Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share
shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
Section 2.04A Overdraft Loan Facility. (a) Overdraft Loan Facility.
Subject to the terms and conditions set forth herein and therein, the Overdraft
Loan Facility Lender has agreed to make loans (each such loan, an "OVERDRAFT
FACILITY LOAN") to the Company and its Restricted Subsidiaries from time to time
pursuant to the Overdraft Loan Facility in an aggregate amount not to exceed at
any time outstanding the amount of the Overdraft Loan Facility
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Available Amount, notwithstanding the fact that such Overdraft Facility Loans,
when aggregated with the Pro Rata Share of the Outstanding Amount of
Multicurrency Revolving Credit Loans and L/C Obligations of the Lender acting as
Overdraft Loan Facility Lender, may exceed the amount of such Lender's
Multicurrency Revolving Credit Commitment; provided that after giving effect to
any Overdraft Facility Loans, the aggregate Outstanding Amount of the
Multicurrency Revolving Credit Loans of any Lender plus such Lender's Pro Rata
Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro
Rata Share of the Outstanding Amount of all Swing Line Loans plus such Lender's
Pro Rata Share of the Outstanding Amount of all Overdraft Facility Loans shall
not exceed such Lender's Multicurrency Revolving Credit Commitment. Each
Overdraft Facility Loan shall bear interest as provided on the Overdraft Loan
Facility (which interest rate shall not be less than the interest rate from time
to time applicable to Base Rate Loans). Immediately upon the making of an
Overdraft Facility Loan, each Multicurrency Revolving Credit Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the Overdraft Loan Facility Lender a risk participation in such Overdraft
Facility Loan in an amount equal to the product of such Lender's Pro Rata Share
times the amount of such Overdraft Facility Loan. The Overdraft Loan Facility
Lender may terminate the Overdraft Loan Facility at any time upon thirty days'
prior written notice to the Company and the Administrative Agent.
(b) Borrowing Procedures. The Overdraft Loan Facility Lender shall make
Overdraft Facility Loans available to the Company and its Restricted
Subsidiaries from time to time in accordance with the procedures set forth in
the Overdraft Loan Facility. From time to time at the request of the
Administrative Agent, but no less frequently than monthly, the Company shall
notify the Administrative Agent of the Overdraft Loan Facility Available Amount
and of the aggregate Dollar Amount of Overdraft Facility Loans then outstanding
thereunder. The Company shall also notify the Administrative Agent of any change
in the Overdraft Loan Facility Available Amount. The Overdraft Loan Facility
Lender agrees that it shall not permit the Dollar Amount of the outstanding
Overdraft Facility Loans to exceed the Overdraft Loan Facility Available Amount
at any time. Unless the Overdraft Loan Facility Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the request
of any Multicurrency Revolving Credit Lender) (A) directing the Overdraft Loan
Facility Lender not to make additional Overdraft Facility Loans as a result of
the limitations set forth in the proviso to the first sentence of Section
2.04(A)(a), or (B) that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied, then, subject to the other terms and
conditions hereof, the Overdraft Loan Facility Lender may make the Overdraft
Facility Loans available to the Company and its Restricted Subsidiaries.
(c) Refinancing of Overdraft Loan Facility. (i) The Overdraft Loan
Facility Lender at any time in its sole and absolute discretion may request, on
behalf of the Company (which hereby irrevocably authorizes the Overdraft Loan
Facility Lender to so request on its behalf), that each Multicurrency Revolving
Credit Lender make a Base Rate Loan in an amount equal to such Lender's Pro Rata
Share of the Dollar Amount of Overdraft Facility Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject to
the unutilized portion of the Aggregate Multicurrency Revolving Credit
Commitments and the conditions set forth in Section 4.02. The Overdraft Loan
Facility
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Lender shall furnish the Company with a copy of the applicable Committed Loan
Notice promptly after delivering such notice to the Administrative Agent. Each
Multicurrency Revolving Credit Lender shall make an amount equal to its Pro Rata
Share of the amount specified in such Committed Loan Notice available to the
Administrative Agent in Same Day Funds for the account of the Overdraft Loan
Facility Lender at the Administrative Agent's Office for Dollar denominated
payments not later than 1:00 p.m. on the day specified in such Committed Loan
Notice, whereupon, subject to Section 2.04A(c)(ii), each Multicurrency Revolving
Credit Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Company in such amount. The Administrative Agent shall remit
the funds so received to the Overdraft Loan Facility Lender.
(ii) If for any reason any Overdraft Facility Loan cannot be
refinanced by such a Multicurrency Revolving Credit Borrowing in
accordance with Section 2.04(A)(c)(i), the request for Base Rate Loans
submitted by the Overdraft Loan Facility Lender as set forth herein shall
be deemed to be a request by the Overdraft Loan Facility Lender that each
of the Multicurrency Revolving Credit Lenders fund its risk participation
in the relevant Overdraft Facility Loan and each Multicurrency Revolving
Credit Lender's payment to the Administrative Agent for the account of the
Overdraft Loan Facility Lender pursuant to Section 2.04(A)(c)(i) shall be
deemed payment in respect of such participation.
(iii) If any Multicurrency Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the Overdraft
Loan Facility Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04A(c) by the time
specified in Section 2.04A(c)(i), the Overdraft Loan Facility Lender shall
be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the Overdraft Loan Facility Lender at a rate per
annum equal to the applicable Overnight Rate from time to time in effect.
A certificate of the Overdraft Loan Facility Lender submitted to any
Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Multicurrency Revolving Credit Lender's obligation to make
Multicurrency Revolving Credit Loans or to purchase and fund risk
participations in Overdraft Facility Loans pursuant to this Section
2.04A(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Overdraft
Loan Facility Lender, the Company and its Subsidiaries or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided that each Multicurrency Revolving Credit
Lender's obligation to make Multicurrency Revolving Credit Loans pursuant
to this Section 2.04(A)(c) is subject to the conditions set forth in
Section 4.02. No such funding of risk participations shall relieve or
otherwise impair the obligation of the Company and its Subsidiaries to
repay Overdraft Facility Loans, together with interest as provided herein.
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(d) Repayment of Participations. (i) At any time after any Multicurrency
Revolving Credit Lender has purchased and funded a risk participation in an
Overdraft Facility Loan, if the Overdraft Loan Facility Lender receives any
payment on account of such Overdraft Facility Loan, the Overdraft Loan Facility
Lender will distribute to the Administrative Agent, for the account of such
Lender, such Lender's Pro Rata Share of such payment (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Lender's risk participation was funded) in the same funds as those received by
the Overdraft Loan Facility Lender.
(ii) If any payment received by the Overdraft Loan Facility Lender
in respect of principal or interest on any Overdraft Facility Loan is
required to be returned by the Overdraft Loan Facility Lender under any of
the circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the Overdraft Loan Facility Lender in its
discretion), each Multicurrency Revolving Credit Lender shall pay to the
Overdraft Loan Facility Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned, at a rate per annum equal to the
applicable Overnight Rate. The Administrative Agent will make such demand
upon the request of the Overdraft Loan Facility Lender.
(e) Interest for Account of Overdraft Loan Facility Lender. The Overdraft
Loan Facility Lender shall be responsible for invoicing the Company and its
Restricted Subsidiaries for interest on the Overdraft Loan Facility. Until each
Multicurrency Revolving Credit Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.04A to refinance such Lender's Pro Rata
Share of any Overdraft Facility Loan, interest in respect of such Pro Rata Share
shall be solely for the account of the Overdraft Loan Facility Lender.
(f) Payments Directly to Overdraft Loan Facility Lender. The Company and
its Restricted Subsidiaries shall make all payments of principal and interest in
respect of the Overdraft Facility Loans directly to the Overdraft Loan Facility
Lender.
(g) Satisfaction of Conditions; Acknowledgement. The Company agrees, for
itself and its Restricted Subsidiaries, that it and its Restricted Subsidiaries
will not borrow Overdraft Facility Loans unless the conditions set forth in
Section 4.02(a) and (b) are satisfied, and the Company represents and warrants
that on the date of each such borrowing such conditions will be satisfied (in
each case as if such borrowing was a Credit Extension referred to in Section
4.02(a) and (b)) and each such borrowing shall be deemed to be such a
representation and warranty on and as of such date. Promptly following a request
by the Administrative Agent, the Company shall cause each of its Restricted
Subsidiaries which borrows under the Overdraft Loan Facility to acknowledge in
writing to the Administrative Agent that it agrees to this Section 2.04A and the
other provisions of this Agreement.
(h) Conversion to Base Rate Loan. The Company and the Guarantors of the
Obligations under the Overdraft Loan Facility have guaranteed as primary
obligors all payment obligations of the Company and its Restricted Subsidiaries
with respect to the Overdraft Loan Facility. The Company agrees, for itself and
its Restricted Subsidiaries, that on the Overdraft Participation Date all
Overdraft Facility Loans outstanding on the Overdraft Participation Date
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shall be converted to Dollars at the Spot Rate, shall become due and payable on
such Date and shall constitute Base Rate Loans owed by the Loan Parties and by
the Restricted Subsidiaries to whom such Overdraft Facility Loans were made.
Section 2.05 Prepayments. (a) Optional. (i) Any Borrower may, upon notice
to the Administrative Agent, at any time or from time to time voluntarily prepay
Term Loans and Revolving Credit Loans in whole or in part without premium or
penalty; provided, that any optional prepayment of Term Loans (funded or
converted on the Second Restatement Effective Date) effected during the period
beginning on the Second Restatement Effective Date and ending on (and including)
the first anniversary of the Second Restatement Effective Date with the proceeds
of a substantially concurrent issuance or incurrence of additional term loans
under this Agreement, as amended, amended and restated, supplemented, waived or
otherwise modified from time to time (excluding a refinancing of all the
Facilities in connection with another transaction not permitted by this
Agreement (as determined prior to giving effect to any amendment or waiver of
this Agreement in connection with such transaction)), shall be accompanied by a
prepayment fee equal to 1.0% of the aggregate principal amount of such
prepayment if, immediately prior to such prepayment, the Applicable Rate (which,
for such purposes only, shall be deemed to include all upfront or similar fees
or original issue discount payable to all Lenders providing the Term Loans)
relating to the Term Loans exceeds the Applicable Rate (which, for such purposes
only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing additional term loans) relating to
such additional term loans; provided, further that (1) such notice must be
received by the Administrative Agent not later than 12:30 p.m. (New York, New
York time or London, England time in the case of Loans denominated in an
Alternative Currency) (A) three (3) Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base
Rate Loans; (2) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $2,000,000 or a whole multiple of $500,000 in excess thereof (or
comparable amounts determined by the Administrative Agent in the case of
Alternative Currency Loans); and (3) any prepayment of Base Rate Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such
prepayment and the Class(es) and Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Appropriate Lender of its receipt
of each such notice, and of the amount of such Lender's Pro Rata Share of such
prepayment. If such notice is given by a Borrower, such Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each prepayment of
principal of, and interest on, Alternative Currency Loans shall be made in the
relevant Alternative Currency. Each prepayment of the Loans pursuant to this
Section 2.05(a) shall be paid to the Appropriate Lenders in accordance with
their respective Pro Rata Shares.
(ii) Any Borrower may, upon notice to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without premium or
penalty; provided that (1) such notice must be received by the Swing Line
Lender and the Administrative Agent not later than 1:00 p.m. on the date
of the prepayment, and (2) any such prepayment shall be in a
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minimum principal amount of $100,000. Each such notice shall specify the
date and amount of such prepayment. If such notice is given by any
Borrower, such Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein.
(iii) Notwithstanding anything to the contrary contained in this
Agreement, the relevant Borrower may rescind any notice of prepayment
under Section 2.05(a)(i)or 2.05(a)(ii) if such prepayment would have
resulted from a refinancing of all of the Facilities, which refinancing
shall not be consummated or shall otherwise be delayed.
(iv) Each prepayment of Term Loans pursuant to this Section 2.05(a)
shall be applied in direct order of maturity to principal installments of
the Term Loans.
(v) Prepayments of Overdraft Facility Loans shall be made in
accordance with the Overdraft Loan Facility.
(b) Mandatory. (i) Within five (5) Business Days after financial
statements have been delivered pursuant to Section 6.01(a) and the related
Compliance Certificate has been delivered pursuant to Section 6.02(b), the
Company shall cause to be prepaid an aggregate Dollar Amount of Term Loans in an
amount equal to (A) 50% of Excess Cash Flow, if any, for the fiscal year covered
by such financial statements (commencing with the fiscal year ended December 31,
2005) minus (B) any voluntary prepayment of Term Loans during such fiscal year
(other than in connection with the Second Amendment and Restatement Agreement);
provided that the percentage in clause (i)(A) shall be reduced to (x) 25% if the
Leverage Ratio as of the last day of the immediately preceding fiscal year was
less than 3.75:1 and (y) 0% if the Leverage Ratio as of the last day of the
immediately preceding fiscal year was less than 3.25:1.
(ii) (A) If (x) Holdings, the Company or any of its Restricted
Subsidiaries Disposes of any property or assets (other than any
Disposition of any property or assets permitted by Section 7.05(a), (b),
(c), (d) (to the extent constituting a Disposition by any Restricted
Subsidiary that is not a Loan Party to a Loan Party), (e), (f), (g), (h),
(i) or (j)) or (y) any Casualty Event occurs, which in the aggregate
results in the realization or receipt by Holdings, the Company or such
Restricted Subsidiary of Net Cash Proceeds, the Company shall cause to be
prepaid on or prior to the date which is ten (10) Business Days after the
date of the realization or receipt of such Net Cash Proceeds an aggregate
Dollar Amount of Term Loans in an amount equal to 100% of all Net Cash
Proceeds received; provided that no such prepayment shall be required
pursuant to this Section 2.05(b)(ii)(A) if, on or prior to such date, the
Company shall have given written notice to the Administrative Agent of its
intention to reinvest all or a portion of such Net Cash Proceeds in
accordance with Section 2.05(b)(ii)(B) (which election may only be made if
no Event of Default has occurred and is then continuing);
(B) With respect to any Net Cash Proceeds realized or received
with respect to any Disposition (other than any Disposition
specifically excluded from the application of Section
2.05(b)(ii)(A)) or any Casualty Event, at the option of the Company,
and so long as no Event of Default shall have occurred and be
continuing, the Company may reinvest all or
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any portion of such Net Cash Proceeds in assets useful for its
business within (x) three hundred and sixty-five (365) days
following receipt of such Net Cash Proceeds or (y) if the Company
enters into a contract to reinvest such Net Cash Proceeds within
three hundred and sixty-five (365) days following receipt thereof,
within one hundred and eighty (180) days of the date of such
contract; provided that if any Net Cash Proceeds are no longer
intended to be so reinvested at any time after delivery of a notice
of reinvestment election, an amount equal to any such Net Cash
Proceeds shall be applied within five (5) Business Days after such
Net Cash Proceeds are no longer intended to be so reinvested to the
prepayment of the Term Loans as set forth in this Section 2.05.
(iii) [Reserved.]
(iv) If Holdings, the Company or any of its Restricted Subsidiaries incurs
or issues (A) any Indebtedness not expressly permitted to be incurred or issued
pursuant to Section 7.03 or (B) any Permitted Subordinated Indebtedness
permitted to be incurred under Section 7.03(a)(ii)(B) which such Section
requires to be used to prepay Loans, the Company shall cause to be prepaid an
aggregate Dollar Amount of Term Loans in an amount equal to 100% of all Net Cash
Proceeds received therefrom on or prior to the date which is five (5) Business
Days after the receipt of such Net Cash Proceeds; provided that such percentage
shall be reduced to 50% if the Leverage Ratio as of the last day of the prior
fiscal quarter was less than 3.5:1.
(v) If for any reason the aggregate Outstanding Amount of the Dollar
Revolving Credit Loans at any time exceeds the aggregate Dollar Revolving Credit
Commitments then in effect, the Company shall promptly prepay or cause to be
promptly prepaid Dollar Revolving Credit Loans in an aggregate amount equal to
such excess. If for any reason the aggregate Outstanding Amount of the
Multicurrency Revolving Credit Loans and the L/C Obligations at any time exceeds
the aggregate Multicurrency Revolving Credit Commitments then in effect (other
than as a result of the determination of the Dollar Amount pursuant to Section
2.17, in which case the provisions of Section 2.17(d) shall apply), the Company
shall promptly prepay or cause to be promptly prepaid the Multicurrency
Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess; provided that the Company shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section
2.05(b)(v) unless after the prepayment in full of the Multicurrency Revolving
Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the
aggregate Multicurrency Revolving Credit Commitments then in effect. If for any
reason the aggregate Outstanding Amount of the Overdraft Facility Loans at any
time exceeds the aggregate Overdraft Loan Facility Available Amount then in
effect (other than as a result of the determination of the Dollar Amount
pursuant to Section 2.17, in which case the provisions of Section 2.17(e) shall
apply), the Company shall promptly prepay or cause to be promptly prepaid the
Overdraft Facility Loans in an aggregate amount equal to such excess.
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(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b)
shall be applied in direct order of maturities; and each such prepayment
shall be paid to the Lenders in accordance with their respective Pro Rata
Shares (prior to giving effect to any rejection by any Term Lender of any
such prepayment pursuant to clause (vii) below), subject to clause (vii)
of this Section 2.05(b).
(vii) The Company shall notify the Administrative Agent in writing
of any mandatory prepayment of Term Loans required to be made pursuant to
clauses (i) through (iv) of this Section 2.05(b) at least three (3)
Business Days prior to the date of such prepayment. Each such notice shall
specify the date of such prepayment and provide a reasonably detailed
calculation of the amount of such prepayment. The Administrative Agent
will promptly notify each Appropriate Lender of the contents of the
Company's prepayment notice and of such Appropriate Lender's Pro Rata
Share of the prepayment. Any Term Lender (a "DECLINING LENDER", and any
Term Lender which is not a Declining Lender, an "ACCEPTING LENDER") may
elect, by delivering, not less than one (1) Business Day prior to the
proposed prepayment date, a written notice that any mandatory prepayment
otherwise required to be made with respect to the Term Loans held by such
Term Lender pursuant to clauses (i) through (iv) of this Section 2.05(b)
not be made, in which event the portion of such prepayment which would
otherwise have been applied to the Term Loans of the Declining Lenders
shall instead be retained by the Company.
(viii) Funding Losses, Etc. All prepayments under this Section 2.05
shall be made together with, in the case of any such prepayment of a
Eurodollar Rate Loan on a date other than the last day of an Interest
Period therefor, any amounts owing in respect of such Eurodollar Rate Loan
pursuant to Section 3.05. Notwithstanding any of the other provisions of
Section 2.05(b), so long as no Event of Default shall have occurred and be
continuing, if any prepayment of Eurodollar Rate Loans is required to be
made under this Section 2.05(b), other than on the last day of the
Interest Period therefor, the relevant Borrower may, in its sole
discretion, deposit the amount of any such prepayment otherwise required
to be made thereunder into a Cash Collateral Account until the last day of
such Interest Period, at which time the Administrative Agent shall be
authorized (without any further action by or notice to or from any
Borrower or any other Loan Party) to apply such amount to the prepayment
of such Loans in accordance with this Section 2.05(b). Upon the occurrence
and during the continuance of any Event of Default, the Administrative
Agent shall also be authorized (without any further action by or notice to
or from any Borrower or any other Loan Party) to apply such amount to the
prepayment of the outstanding Loans in accordance with this Section
2.05(b).
Section 1.06 Termination or Reduction of Commitments. (a) Optional. The
Company may, upon written notice to the Administrative Agent, terminate the
unused Commitments of any Class, or from time to time permanently reduce the
unused Commitments of any Class; provided that (i) any such notice shall be
received by the Administrative Agent three (3) Business Days prior to the date
of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $500,000 or any whole multiple of $100,000 in excess thereof
and (iii) if, after giving effect to any reduction of the Commitments, the
Alternative Currency Sublimit, the Letter of Credit Sublimit, the Swing Line
Sublimit or the Overdraft Loan Facility Available
75
Amount exceeds the amount of the Multicurrency Revolving Credit Commitments,
such sublimit or the Overdraft Loan Facility Available Amount, as the case may
be, shall be automatically reduced by the amount of such excess. The amount of
any such Commitment reduction shall not be applied to the Alternative Currency
Sublimit or the Letter of Credit Sublimit unless otherwise specified by the
Company. Notwithstanding the foregoing, the Company may rescind or postpone any
notice of termination of the Commitments if such termination would have resulted
from a refinancing of all of the Facilities, which refinancing shall not be
consummated or otherwise shall be delayed.
(b) Mandatory. The Term Commitment of each Replacement Term Lender shall
be automatically and permanently reduced to $0 on the Second Replacement Term
Loan Borrowing Date (as defined in the Second Amendment and Restatement
Agreement).
(c) Application of Commitment Reductions; Payment of Fees. The
Administrative Agent will promptly notify the Lenders of any termination or
reduction of unused portions of the Letter of Credit Sublimit, or the unused
Commitments of any Class under this Section 2.06. Upon any reduction of unused
Commitments of any Class, the Commitment of each Lender of such Class shall be
reduced by such Lender's Pro Rata Share of the amount by which such Commitments
are reduced (other than the termination of the Commitment of any Lender as
provided in Section 3.07). All commitment fees accrued until the effective date
of any termination of the Aggregate Commitments shall be paid on the effective
date of such termination.
Section 2.07 Repayment of Loans. (a) Term Loans. The Company shall repay
to the Administrative Agent for the ratable account of the Term Lenders on the
last day of each month set forth below the aggregate Dollar Amount of all Term
Loans outstanding in twenty-eight (28) consecutive quarterly installments as
follows (which installments shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.05):
AGGREGATE TERM
LOAN PRINCIPAL
DATE AMORTIZATION PAYMENT
---- --------------------
June 2005 $1,812,500
September 2005 $1,812,500
December 2005 $1,812,500
March 2006 $1,812,500
June 2006 $1,812,500
September 2006 $1,812,500
December 2006 $1,812,500
March 2007 $1,812,500
June 2007 $1,812,500
September 2007 $1,812,500
December 2007 $1,812,500
March 2008 $1,812,500
June 2008 $1,812,500
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AGGREGATE TERM
LOAN PRINCIPAL
DATE AMORTIZATION PAYMENT
---- --------------------
September 2008 $ 1,812,500
December 2008 $ 1,812,500
March 2009 $ 1,812,500
June 2009 $ 1,812,500
September 2009 $ 1,812,500
December 2009 $ 1,812,500
March 2010 $ 1,812,500
June 2010 $ 1,812,500
September 2010 $ 1,812,500
December 2010 $ 1,812,500
March 2011 $ 1,812,500
June 2011 $170,375,000
September 2011 $170,375,000
December 2011 $170,375,000
March 2012 $170,375,000
provided that the final principal repayment installment of the Term Loans shall
be repaid on the Maturity Date and in any event shall be in an amount equal to
the aggregate principal amount of all Term Loans outstanding on such date.
(b) Revolving Credit Loans. Each Borrower shall repay to the
Administrative Agent for the ratable account of the applicable Revolving Credit
Lenders on the Maturity Date for the Dollar Revolving Credit Facility the
aggregate principal amount of all of its Dollar Revolving Credit Loans
outstanding on such date. Each Borrower shall repay to the Administrative Agent
for the ratable account of the applicable Revolving Credit Lenders on the
Maturity Date for the Multicurrency Revolving Credit Facility the aggregate
principal amount of all of its Multicurrency Revolving Credit Loans outstanding
on such date.
(c) Swing Line Loans. Each Borrower shall repay its Swing Line Loans on
the earlier to occur of (i) the date five (5) Business Days after such Loan is
made and (ii) the Maturity Date.
(d) Overdraft Facility Loans. Overdraft Facility Loans shall be payable in
accordance with the terms of the Overdraft Loan Facility but no later than the
Maturity Date.
Section 2.08 Interest. (a) Subject to the provisions of Section 2.08(b),
(i) each Eurodollar Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Rate plus (in the
case of a Eurodollar Rate Loan of any Lender which is lent from a Lending Office
in the United Kingdom or a Participating Member State) the Mandatory Cost; (ii)
each Base Rate Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate;
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(iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate for Revolving Credit Loans; and (iv) each
Overdraft Facility Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum set forth in the
Overdraft Loan Facility (which interest rate shall not be less than the rate
applicable to Base Rate Loans).
(b) Each Borrower shall pay interest on past due amounts hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws. Accrued and unpaid interest on
past due amounts (including interest on past due interest) shall be due and
payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
Section 2.09 Fees. In addition to certain fees described in Sections
2.03(i) and (j):
(a) Commitment Fee. The Company shall pay to the Administrative Agent for
the account of each (i) Dollar Revolving Credit Lender in accordance with its
Pro Rata Share, a commitment fee equal to the Applicable Rate times the actual
daily amount by which the aggregate Dollar Revolving Credit Commitment exceeds
the Outstanding Amount of Dollar Revolving Credit Loans and (ii) Multicurrency
Revolving Credit Lender in accordance with its Pro Rata Share, a commitment fee
equal to the Applicable Rate times the actual daily amount by which the
aggregate Multicurrency Revolving Credit Commitments exceed the sum of (A) the
Outstanding Amount of Multicurrency Revolving Credit Loans and (B) the
Outstanding Amount of L/C Obligations; provided that any commitment fee accrued
with respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such time
shall not be payable by the Company so long as such Lender shall be a Defaulting
Lender except to the extent that such commitment fee shall otherwise have been
due and payable by the Company prior to such time; and provided further that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender. The commitment fee shall
accrue at all times from the date hereof until the Maturity Date, including at
any time during which one or more of the conditions in Article 4 is not met, and
shall be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the Maturity Date for the applicable
Facility. The commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.
(b) Other Fees. The Company shall pay to the Agents such fees as shall
have been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.
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Section 2.10 Computation of Interest and Fees. All computations of
interest for Base Rate Loans when the Base Rate is determined by JPMorgan Chase
Bank's "prime rate" and for Alternative Currency Loans denominated in Sterling
shall be made on the basis of a year of three hundred and sixty-five (365) or
three hundred and sixty-six (366) days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis
of a three hundred and sixty (360) day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a three hundred and sixty-five (365) day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid; provided that any Loan that is repaid on the same day on which it is
made shall, subject to Section 2.12(a), bear interest for one (1) day. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.
Section 2.11 Evidence of Indebtedness. (a) The Credit Extensions made by
each Lender shall be evidenced by one or more accounts or records maintained by
such Lender and evidenced by one or more entries in the Register maintained by
the Administrative Agent, acting solely for purposes of Treasury Regulation
Section 5f.103-1(c), as agent for the Borrowers, in each case in the ordinary
course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be prima facie evidence absent manifest error of the
amount of the Credit Extensions made by the Lenders to the Borrowers and the
interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrowers
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the Borrowers shall execute and deliver to such Lender
(through the Administrative Agent) a Note payable to such Lender, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in Section
2.11(a), each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records and, in the case of the
Administrative Agent, entries in the Register, evidencing the purchases and
sales by such Lender of participations in Letters of Credit, Swing Line Loans
and Overdraft Facility Loans. In the event of any conflict between the accounts
and records maintained by the Administrative Agent and the accounts and records
of any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.
(c) Entries made in good faith by the Administrative Agent in the Register
pursuant to Section 2.11(a) and (b), and by each Lender in its account or
accounts pursuant to Section 2.11(a) and (b), shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrowers to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement and the
other Loan Documents, absent manifest error; provided that the failure of the
Administrative
79
Agent or such Lender to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Borrowers under this Agreement and the
other Loan Documents.
(d) The Overdraft Facility Loans shall be evidenced by one or more
accounts or records maintained by the Overdraft Loan Facility Lender and
evidenced by one or more entries in a register maintained by the Overdraft Loan
Facility Lender, acting solely for purposes of Treasury Regulation Section
5f.103-1(c), as agent for the Borrowers, in each case in the ordinary course of
business. The accounts or records maintained by the Overdraft Loan Facility
Lender shall be prima facie evidence absent manifest error of the amount of the
Overdraft Facility Loans and the interest and payments thereon. Any failure to
so record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Company and its Restricted Subsidiaries to pay any amount
owing with respect to the Obligations.
(e) Entries made in good faith by the Overdraft Loan Facility Lender in
its register pursuant to Section 2.11(d) shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Company and its Restricted Subsidiaries to the Overdraft Loan Facility
Lender under this Agreement and the other Loan Documents, absent manifest error;
provided that the failure of the Overdraft Loan Facility Lender to make an
entry, or any finding that an entry is incorrect, in such register shall not
limit or otherwise affect the obligations of the Company and its Restricted
Subsidiary under this Agreement and the other Loan Documents.
Section 2.12 Payments Generally. (a) All payments to be made by the
Borrowers and all payments to be made in respect of the Overdraft Loan Facility
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein and except
with respect to principal of and interest on Loans denominated in an Alternative
Currency, all payments by the Borrowers hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent's Office in Dollars and
in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except
as otherwise expressly provided herein, all payments by the Borrowers hereunder
with respect to principal and interest on Loans denominated in an Alternative
Currency shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable
Administrative Agent's Office in such Alternative Currency and in Same Day Funds
not later than the Applicable Time specified by the Administrative Agent on the
dates specified herein. If, for any reason, any Borrower is prohibited by any
Law from making any required payment hereunder in an Alternative Currency, such
Borrower shall make such payment in Dollars in the Dollar Amount of the
Alternative Currency payment amount. The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to
such Lender's Lending Office. All payments received by the Administrative Agent
(i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments in
an Alternative Currency, shall in each case be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
80
(b) If any payment to be made by any Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be; provided that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Loans to be made in the next
succeeding calendar month, such payment shall be made on the immediately
preceding Business Day.
(c) Unless any Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that such Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that
such Borrower or such Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in Same Day Funds,
then:
(i) if any Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in Same Day Funds,
together with interest thereon in respect of each day from and including
the date such amount was made available by the Administrative Agent to
such Lender to the date such amount is repaid to the Administrative Agent
in Same Day Funds at the applicable Overnight Rate from time to time in
effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
Same Day Funds, together with interest thereon for the period from the
date such amount was made available by the Administrative Agent to the
relevant Borrower to the date such amount is recovered by the
Administrative Agent (the "COMPENSATION PERIOD") at a rate per annum equal
to the applicable Overnight Rate from time to time in effect. When such
Lender makes payment to the Administrative Agent (together with all
accrued interest thereon), then such payment amount (excluding the amount
of any interest which may have accrued and been paid in respect of such
late payment) shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative Agent
may make a demand therefor upon the relevant Borrower, and the relevant
Borrower shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal to
the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the Administrative
Agent or any Borrower may have against any Lender as a result of any
default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the relevant
Borrower with respect to any amount owing under this Section 2.12(c) shall be
conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article 2, and such funds
81
are not made available to the relevant Borrower by the Administrative Agent
because the conditions to the applicable Credit Extension set forth in Article 4
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit, Swing Line Loans and Overdraft Facility
Loans are several and not joint. The failure of any Lender to make any Loan or
to fund any such participation on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
(g) Whenever any payment received by the Administrative Agent under this
Agreement or any of the other Loan Documents is insufficient to pay in full all
amounts due and payable to the Administrative Agent and the Lenders under or in
respect of this Agreement and the other Loan Documents on any date, such payment
shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the order of priority set forth in
Section 8.04. If the Administrative Agent receives funds for application to the
Obligations of the Loan Parties under or in respect of the Loan Documents under
circumstances for which the Loan Documents do not specify the manner in which
such funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each of the Lenders in
accordance with such Lender's Pro Rata Share of the sum of (a) the Outstanding
Amount of all Loans outstanding at such time and (b) the Outstanding Amount of
all L/C Obligations outstanding at such time, in repayment or prepayment of such
of the outstanding Loans or other Obligations then owing to such Lender.
Section 2.13 Sharing of Payments. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it, or
the participations in L/C Obligations, in Swing Line Loans or in Overdraft
Facility Loans held by it, any payment (whether voluntary, involuntary, through
the exercise of any right of setoff, or otherwise) in excess of its ratable
share (or other share contemplated hereunder) thereof, such Lender shall
immediately (a) notify the Administrative Agent of such fact, and (b) purchase
from the other Lenders such participations in the Loans made by them and/or such
subparticipations in the participations in L/C Obligations, Swing Line Loans or
in Overdraft Facility Loans held by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment in respect
of such Loans or such participations, as the case may be, pro rata with each of
them; provided that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by the
purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount
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paid or payable by the purchasing Lender in respect of the total amount so
recovered, without further interest thereon. Each Borrower agrees that any
Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of setoff, but subject to Section 10.09) with respect to such participation as
fully as if such Lender were the direct creditor of such Borrower in the amount
of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section 2.13 and will in each case notify the Lenders
following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section 2.13 shall from and after such purchase
have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
Section 2.14 Designation of Overseas Borrower; Termination of
Designations. (a) The Company may from time to time designate any Qualified
Foreign Subsidiary as an additional Overseas Borrower for purposes of this
Agreement by delivering to the Administrative Agent an Election to Participate
duly executed on behalf of such Subsidiary and the Company in such number of
copies as the Administrative Agent may request. The Administrative Agent shall
promptly notify the Lenders of its receipt of any such Election to Participate.
No Qualified Foreign Subsidiary shall be permitted to be an Overseas Borrower
unless (i) it is organized in a jurisdiction in which any other current Overseas
Borrower is organized, (ii) it is organized in a jurisdiction set forth in
Schedule 2.14(a) or (iii) its designation as such has been approved by the
Majority Revolving Credit Lenders.
(b) The Company may at any time terminate the status of any Subsidiary as
an Overseas Borrower for purposes of this Agreement by delivering to the
Administrative Agent an Election to Terminate duly executed on behalf of such
Subsidiary and the Company in such number of copies as the Administrative Agent
may request. The delivery of such an Election to Terminate shall not affect any
obligation of such Subsidiary theretofore incurred under this Agreement or any
other Loan Document or any rights of the Lenders and the Agents against such
Subsidiary or against the Company in its capacity as guarantor of the
obligations of such Subsidiary. The Administrative Agent shall promptly notify
the Lenders of its receipt of any such Election to Terminate.
Section 2.15 Incremental Credit Extensions. (a) The Company may at any
time or from time to time after the Closing Date, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver
a copy to each of the Lenders), request (a) one or more additional tranches of
term loans (the "INCREMENTAL TERM LOANS") or (b) one or more increases in the
amount of the Revolving Credit Commitments (each such increase, a "REVOLVING
COMMITMENT INCREASE"), provided that both at the time of any such request and
upon the effectiveness of any Incremental Amendment referred to below, no
Default or Event of Default shall exist and at the time that any such
Incremental Term Loan is made (and after giving effect thereto) no Default or
Event of Default shall exist and the Company shall be in compliance with each of
the covenants set forth in Section 7.11 determined on a Pro Forma Basis as of
the last day of the most recently ended fiscal quarter of the Company as if such
Incremental Term Loans had been outstanding on the last day of such fiscal
quarter of the Company for testing compliance therewith. Each tranche of
Incremental Term Loans and each Revolving
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Commitment Increase shall be in an aggregate principal amount that is not less
than $25,000,000 (provided that such amount may be less than $25,000,000 if such
amount represents all remaining availability under the limit set forth in the
next sentence). Notwithstanding anything to the contrary herein, the aggregate
amount of the Incremental Term Loans and the Revolving Commitment Increases
shall not exceed $100,000,000. The Incremental Term Loans (a) shall rank pari
passu in right of payment and of security with the Revolving Credit Loans and
the Term Loans, (b) shall not mature earlier than the Maturity Date with respect
to the Term Loans (but may have nominal amortization prior to such date) and (c)
except as set forth above, shall be treated substantially the same as (and in
any event no more favorably than) the Term Loans (in each case, including with
respect to mandatory and voluntary prepayments), provided that (i) the terms and
conditions applicable to Incremental Term Loans maturing after the Maturity Date
with respect to the Term Loans may provide for material additional or different
financial or other covenants or prepayment requirements applicable only during
periods after the Maturity Date with respect to the Term Loans and (ii) the
Incremental Term Loans may be priced differently than the Term Loans, provided
further that (i) if the Applicable Rate (which, for such purposes only, shall be
deemed to include all upfront or similar fees or original issue discount payable
to all Lenders providing such Incremental Term Loans) relating to any
Incremental Term Loans exceeds the Applicable Rate (which, for such purposes
only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing the Term Loans) relating to the Term
Loans immediately prior to the effectiveness of the applicable Incremental
Amendment by more than 0.25%, the Applicable Rate relating to the Term Loans
shall be adjusted to be equal to the Applicable Rate (which, for such purposes
only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing such Incremental Term Loans) relating
to such Incremental Term Loans minus 0.25%. Each notice from the Company
pursuant to this Section shall set forth the requested amount and proposed terms
of the relevant Incremental Term Loans or Revolving Commitment Increases.
Incremental Term Loans may be made, and Revolving Commitment Increases may be
provided, by any existing Lender (and each existing Term Lender will have the
right to make a portion of any Incremental Term Loan, and each existing
Revolving Credit Lender will have the right to provide a portion of any
Revolving Commitment Increase, in each case on terms permitted in this section
2.15 and otherwise on terms reasonably acceptable to the Administrative Agent)
or by any other bank or other financial institution (any such other bank or
other financial institution being called an "ADDITIONAL LENDER"), provided that
the Administrative Agent shall have consented (not to be unreasonably withheld)
to such Lender's or Additional Lender's making such Incremental Term Loans or
providing such Revolving Commitment Increases if such consent would be required
under Section 10.07(b) for an assignment of Loans or Revolving Credit
Commitments, as applicable, to such Lender or Additional Lender. Commitments in
respect of Incremental Term Loans and Revolving Commitment Increases shall
become Commitments (or in the case of a Revolving Commitment Increase to be
provided by an existing Revolving Credit Lender, an increase in such Lender's
applicable Revolving Credit Commitment) under this Agreement pursuant to an
amendment (an "INCREMENTAL AMENDMENT") to this Agreement and, as appropriate,
the other Loan Documents, executed by Holdings, the Company, each Lender
agreeing to provide such Commitment, if any, each Additional Lender, if any, and
the Administrative Agent. The Incremental Amendment may, without the consent of
any other Lenders, effect such amendments to this Agreement and the other Loan
Documents as may be necessary or appropriate, in the reasonable opinion of the
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Administrative Agent, to effect the provisions of this Section. The
effectiveness of any Incremental Amendment shall be subject to the satisfaction
on the date thereof (each, an "INCREMENTAL FACILITY CLOSING DATE") of each of
the conditions set forth in Section 4.02 (it being understood that all
references to "the date of such Credit Extension" or similar language in such
Section 4.02 shall be deemed to refer to the effective date of such Incremental
Amendment) and such other conditions as the parties thereto shall agree. No more
than four Incremental Facility Closing Dates may be selected by the Company. The
Company will use the proceeds of the Incremental Term Loans and Revolving
Commitment Increases for any purpose not prohibited by this Agreement. No Lender
shall be obligated to provide any Incremental Term Loans or Revolving Commitment
Increases, unless it so agrees. Any Revolving Commitment increase may be
allocated between the Dollar Revolving Credit Facility and the Multicurrency
Revolving Credit Facility as determined by the Company in consultation with the
Administrative Agent. Upon each increase in the Revolving Credit Commitments
pursuant to this Section, (a) if such increase is under the Multicurrency
Revolving Credit Facility, each Multicurrency Revolving Credit Lender
immediately prior to such increase will automatically and without further act be
deemed to have assigned to each Lender providing a portion of the Revolving
Commitment Increase (each a "REVOLVING COMMITMENT INCREASE LENDER") in respect
of such increase, and each such Revolving Commitment Increase Lender will
automatically and without further act be deemed to have assumed, a portion of
such Multicurrency Revolving Credit Lender's participations hereunder in
outstanding Letters of Credit and Swing Line Loans such that, after giving
effect to each such deemed assignment and assumption of participations, the
percentage of the aggregate outstanding (i) participations hereunder in Letters
of Credit and (ii) participations hereunder in Swing Line Loans and Overdraft
Facility Loans held by each Multicurrency Revolving Credit Lender (including
each such Revolving Commitment Increase Lender) will equal the percentage of the
aggregate Multicurrency Revolving Credit Commitments of all Multicurrency
Revolving Credit Lenders represented by such Multicurrency Revolving Credit
Lender's Revolving Credit Commitment and (b) if, on the date of such increase,
there are any Revolving Credit Loans outstanding under the Facility being
increased, such Revolving Credit Loans shall on or prior to the effectiveness of
such Revolving Commitment Increase be prepaid from the proceeds of additional
Revolving Credit Loans made hereunder (reflecting such increase in Revolving
Credit Commitments), which prepayment shall be accompanied by accrued interest
on the Revolving Credit Loans being prepaid and any costs incurred by any Lender
in accordance with Section 3.05. The Administrative Agent and the Lenders hereby
agree that the minimum borrowing, pro rata borrowing and pro rata payment
requirements contained elsewhere in this Agreement shall not apply to the
transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.15 shall supersede any provisions in Section 2.13 or
10.01 to the contrary.
Section 2.16 Overseas Borrower Costs. (a) If the cost to any Lender of
making or maintaining any Loan to an Overseas Borrower (or borrower of an
Overdraft Facility Loan), or issuing or maintaining any Letter of Credit for the
account of a Foreign Subsidiary is increased (or the amount of any sum received
or receivable by any Lender or its Lending Office is reduced) by an amount
deemed by such Lender to be material, by reason of the fact that such Overseas
Borrower (or borrower) or Foreign Subsidiary is incorporated in, or conducts
business in, a jurisdiction outside the United States, such Borrower (or
borrower) or Foreign Subsidiary
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shall indemnify such Lender for such increased cost or reduction within fifteen
(15) days after demand by such Lender (with a copy to the Administrative Agent).
A certificate of such Lender claiming compensation under this Section 2.16 and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error.
(b) Each Lender will promptly notify the relevant Overseas Borrower (or
borrower) or Foreign Subsidiary and the Administrative Agent of any event or
circumstance of which it has knowledge that will entitle such Lender to
compensation pursuant to this Section 2.16 and will designate a different
Lending Office, if, in the judgment of such Lender, such designation will avoid
the need for, or reduce the amount of, such compensation and will not be
otherwise disadvantageous to such Lender.
Section 2.17 Currency Equivalents. (a) The Administrative Agent shall
determine the Dollar Amount of each Alternative Currency Loan, as of the first
day of each Interest Period applicable thereto and, in the case of any such
Interest Period of more than three months, at three-month intervals after the
first day thereof, and shall promptly notify the relevant Borrower and the
Lenders of each Dollar Amount so determined by it. Each such determination shall
be based on the Spot Rate (x) on the date of the related Borrowing Request for
purposes of the initial such determination for any Alternative Currency Loan and
(y) on the fourth Business Day prior to the date as of which such Dollar Amount
is to be determined, for purposes of any subsequent determination.
(b) The Administrative Agent shall determine the L/C Obligations related
to each Letter of Credit as of the date of issuance thereof and at three-month
intervals after the date of issuance thereof. Each such determination shall be
based on the Spot Rate (i) on the date of the related notice of issuance, in the
case of the initial determination in respect of any Letter of Credit and (ii) on
the fourth Business Day prior to the date as of which such Dollar Amount is to
be determined, in the case of any subsequent determination with respect to an
outstanding Letter of Credit.
(c) The Overdraft Loan Facility Lender shall determine the Dollar Amount
of each Overdraft Facility Loan from time to time in accordance with its
customary practice. Each such determination shall be based on the Spot Rate.
(d) If after giving effect to any such determination of a Dollar Amount,
(i) the aggregate Outstanding Amount of the Multicurrency Revolving Credit Loans
and the L/C Obligations exceeds the aggregate Multicurrency Revolving Credit
Commitments or (ii) the aggregate Dollar Amount of Multicurrency Revolving
Credit Loans which are Alternative Currency Loans and L/C Obligations
denominated in an Alternative Currency exceeds 105% of the Alternative Currency
Sublimit, the Company shall, within five (5) Business Days of receipt of notice
thereof from the Administrative Agent setting forth such calculation in
reasonable detail, prepay or cause to be prepaid outstanding Multicurrency
Revolving Credit Loans (as selected by the Company and notified to the Lenders
through the Administrative Agent not less than three (3) Business Days prior to
the date of prepayment) or take other action (including, in the Company's
discretion, cash collateralization of L/C Obligations or Alternative Currency
Loans in amounts from time to time equal to such excess) to the extent necessary
to eliminate any such excess.
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(e) If after giving effect to any such determination of a Dollar Amount,
the aggregate Outstanding Amount of the Overdraft Facility Loans exceeds the
aggregate Overdraft Loan Facility Available Amount the Company shall, within
five (5) Business Days of receipt of notice thereof from the Administrative
Agent or the Overdraft Loan Facility Lender setting forth such calculation in
reasonable detail, prepay or cause to be prepaid outstanding Overdraft Facility
Loans (as selected by the Company) or take other action (including, in the
Company's discretion, cash collateralization of Overdraft Facility Loans in
amounts from time to time equal to such excess) to the extent necessary to
eliminate any such excess.
ARTICLE 3
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
Section 3.01 Taxes. (a) Except as provided in this Section 3.01, any and
all payments by any Borrower (the term Borrower under Article 3 being deemed to
include any borrower under an Overdraft Loan Facility and any Foreign Subsidiary
for whose account a Letter of Credit is issued) to or for the account of any
Agent or any Lender under any Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and all
liabilities (including additions to tax, penalties and interest) with respect
thereto, excluding, in the case of each Agent and each Lender, taxes imposed on
or measured by its net income or overall gross income (including branch
profits), and franchise (and similar) taxes imposed on it in lieu of net income
taxes, by the jurisdiction (or any political subdivision thereof) under the Laws
of which such Agent or such Lender, as the case may be, is organized or
maintains a Lending Office, and all liabilities (including additions to tax,
penalties and interest) with respect thereto (all such non-excluded taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as "TAXES"). If any
Borrower shall be required by any Laws to deduct any Taxes or Other Taxes (as
defined in Section 3.01(b)) from or in respect of any sum payable under any Loan
Document to any Agent or any Lender, (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 3.01), each of such
Agent and such Lender receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such deductions,
(iii) such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Laws, and (iv) within
thirty (30) days after the date of such payment, such Borrower shall furnish to
such Agent or Lender (as the case may be) the original or a certified copy of a
receipt evidencing payment thereof to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Administrative Agent. If such Borrower fails to pay any
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to any Agent or any Lender the required receipts or other required
documentary evidence, such Borrower shall indemnify such Agent and such Lender
for any incremental taxes, interest or penalties that may become payable by such
Agent or such Lender arising out of such failure.
(b) In addition, each Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise, property, intangible or
mortgage recording taxes or charges or similar levies which arise from any
payment made under any Loan Document or from
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the execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, any Loan Document (hereinafter referred to as "OTHER
TAXES").
(c) Each Borrower agrees to indemnify each Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section
3.01) paid by such Agent and such Lender, and (ii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority;
provided such Agent or Lender, as the case may be, provides such Borrower with a
written statement thereof setting forth in reasonable detail the basis and
calculation of such amounts. Payment under this Section 3.01(c) shall be made
within thirty (30) days after the date such Lender or such Agent makes a demand
therefor.
(d) No Borrower shall be required pursuant to this Section 3.01 to pay any
additional amount to, or to indemnify, any Lender or Agent, as the case may be,
to the extent that such Lender or such Agent becomes subject to Taxes subsequent
to the Closing Date (or, if later, the date such Lender or Agent becomes a party
to this Agreement) as a result of a change in the place of organization of such
Lender or Agent or a change in the lending office of such Lender, except to the
extent that any such change is requested or required in writing by any Borrower
(and provided that nothing in this clause (d) shall be construed as relieving
any Borrower from any obligation to make such payments or indemnification in the
event of a change in lending office or place of organization that precedes a
change in Law to the extent such Taxes result from a change in Law).
(e) Notwithstanding anything else herein to the contrary, if a Lender or
an Agent is subject to United States federal withholding tax at a rate in excess
of zero percent at the time such Lender or such Agent, as the case may be, first
becomes a party to this Agreement, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender or Agent, as the
case may be, provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such forms; provided that, if at the
date of the Assignment and Acceptance pursuant to which a Lender becomes a party
to this Agreement, the Lender assignor was entitled to payments under clause (a)
of this Section 3.01 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date.
(f) If any Lender or Agent determines, in its reasonable discretion, that
it has received a refund in respect of any Taxes or Other Taxes as to which
indemnification or additional amounts have been paid to it by any Borrower
pursuant to this Section 3.01, it shall promptly remit such refund (but only to
the extent of indemnity payments made, or additional amounts paid, by any
Borrower under this Section 3.01 with respect to the Taxes or Other Taxes giving
rise to such refund plus any interest included in such refund by the relevant
taxing authority attributable thereto) to such Borrower, net of all
out-of-pocket expenses of the Lender or Agent, as the case may be and without
interest (other than any interest paid by the relevant
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taxing authority with respect to such refund); provided that such Borrower, upon
the request of the Lender or Agent, as the case may be, agrees promptly to
return such refund to such party in the event such party is required to repay
such refund to the relevant taxing authority. Such Lender or Agent, as the case
may be, shall, at such Borrower's request, provide such Borrower with a copy of
any notice of assessment or other evidence of the requirement to repay such
refund received from the relevant taxing authority (provided that such Lender or
Agent may delete any information therein that such Lender or Agent deems
confidential). Nothing herein contained shall interfere with the right of a
Lender or Agent to arrange its tax affairs in whatever manner it thinks fit nor
oblige any Lender or Agent to claim any tax refund or to make available its tax
returns or disclose any information relating to its tax affairs or any
computations in respect thereof or require any Lender or Agent to do anything
that would prejudice its ability to benefit from any other refunds, credits,
reliefs, remissions or repayments to which it may be entitled.
(g) Each Lender agrees that, upon the occurrence of any event giving rise
to the operation of Section 3.01(a) or (c) with respect to such Lender it will,
if requested by the Company, use commercially reasonable efforts (subject to
such Lender's overall internal policies of general application and legal and
regulatory restrictions) to designate another Lending Office for any Loan or
Letter of Credit affected by such event; provided that such efforts are made on
terms that, in the sole judgment of such Lender, cause such Lender and its
Lending Office(s) to suffer no economic, legal or regulatory disadvantage, and
provided further that nothing in this Section 3.01(g) shall affect or postpone
any of the Obligations of any Borrower or the rights of such Lender pursuant to
Section 3.01(a) and (c).
Section 3.02 Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrowers through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
relevant Borrowers that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the relevant Borrowers shall upon
demand from such Lender (with a copy to the Administrative Agent), prepay or, if
applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or
promptly, if such Lender may not lawfully continue to maintain such Eurodollar
Rate Loans. Upon any such prepayment or conversion, each relevant Borrower shall
also pay accrued interest on the amount so prepaid or converted. Each Lender
agrees to designate a different Lending Office if such designation will avoid
the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
Section 3.03 Inability to Determine Rates. If the Required Lenders
determine that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan, or that the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such Loan,
or that Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the
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applicable amount and the Interest Period of such Eurodollar Rate Loan, the
Administrative Agent will promptly so notify each relevant Borrower and each
Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such
notice, each relevant Borrower may revoke any pending request for a Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or, failing that,
will be deemed to have converted such request into a request for a Borrowing of
Base Rate Loans in the amount specified therein.
Section 3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves
on Eurodollar Rate Loans. (a) If any Lender determines that as a result of the
introduction of or any change in or in the interpretation of any Law, in each
case after the date hereof, or such Lender's compliance therewith, there shall
be any increase in the cost to such Lender of agreeing to make or making,
funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this Section 3.04(a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern),
(ii) changes in the basis of taxation of overall net income or overall gross
income (including branch profits), and franchise (and similar) taxes imposed in
lieu of net income taxes, by the United States or any foreign jurisdiction or
any political subdivision of either thereof under the Laws of which such Lender
is organized or maintains a Lending Office, (iii) reserve requirements
contemplated by Section 3.04(c) and (iv) 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 the Mandatory Cost, as
calculated hereunder, does not represent the cost to such 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 of Eurodollar Rate Loans, then from time to time upon demand of such
Lender setting forth in reasonable detail such increased costs (with a copy of
such demand to the Administrative Agent given in accordance with Section 3.06),
the Company shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction or, if applicable, the portion
of such cost that is not represented by the Mandatory Cost.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, in each
case after the date hereof, or compliance by such Lender (or its Lending Office)
therewith, has the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder (taking into consideration its policies with
respect to capital adequacy and such Lender's desired return on capital), then
from time to time upon demand of such Lender setting forth in reasonable detail
the charge and the calculation of such reduced rate of return (with a copy of
such demand to the Administrative Agent given in accordance with Section 3.06),
the Company shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.
(c) 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
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interest on the unpaid principal amount of each Eurodollar Rate 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
in the absence of manifest error), 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 Commitments or the funding of the Eurodollar
Rate 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 Commitment or Loan by such Lender (as determined
by such Lender in good faith, which determination shall be conclusive absent
manifest error) 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 fifteen (15) days' prior notice (with a copy to the Administrative
Agent) of such additional interest or cost from such Lender. If a Lender fails
to give notice fifteen (15) days prior to the relevant Interest Payment Date,
such additional interest or cost shall be due and payable fifteen (15) days from
receipt of such notice.
(d) The Company shall not be required to compensate a Lender pursuant to
Section 3.04(a), (b) or (c) for any such increased cost or reduction incurred
more than one hundred and eighty (180) days prior to the date that such Lender
demands, or notifies the Company of its intention to demand, compensation
therefor; provided that, if the circumstance giving rise to such increased cost
or reduction is retroactive, then such 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(e) If any Lender requests compensation under this Section 3.04, then such
Lender will, if requested by the Company, use commercially reasonable efforts to
designate another Lending Office for any Loan or Letter of Credit affected by
such event; provided that such efforts are made on terms that, in the reasonable
judgment of such Lender, cause such Lender and its Lending Office(s) to suffer
no material economic, legal or regulatory disadvantage, and provided further
that nothing in this Section 3.04(e) shall affect or postpone any of the
Obligations of any Borrower or the rights of such Lender pursuant to Section
3.04(a), (b), (c) or (d).
Section 3.05 Funding Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Company shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by any Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
such Borrower;
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including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained.
For purposes of calculating amounts payable by the Company to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
Section 3.06 Matters Applicable to All Requests for Compensation. (a) Any
Agent or any Lender claiming compensation under this Article 3 shall deliver a
certificate to the Company setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Agent or such Lender may use any reasonable
averaging and attribution methods.
(b) With respect to any Lender's claim for compensation under Section
3.01, 3.02, 3.03 or 3.04, no Borrower shall be required to compensate such
Lender for any amount incurred more than one hundred and eighty (180) days prior
to the date that such Lender notifies the relevant Borrowers of the event that
gives rise to such claim. If any Lender requests compensation by the Company
under Section 3.04, the Company may, by notice to such Lender (with a copy to
the Administrative Agent), suspend the obligation of such Lender to make or
continue from one Interest Period to another Eurodollar Rate Loans, or to
convert Base Rate Loans into Eurodollar Rate Loans, until the event or condition
giving rise to such request ceases to be in effect (in which case the provisions
of Section 3.06(c) shall be applicable); provided that such suspension shall not
affect the right of such Lender to receive the compensation so requested.
(c) If the obligation of any Lender to make or continue from one Interest
Period to another any Eurodollar Rate Loan, or to convert Base Rate Loans into
Eurodollar Rate Loans shall be suspended pursuant to Section 3.06(b) hereof,
such Lender's Eurodollar Rate Loans shall be automatically converted into Base
Rate Loans on the last day(s) of the then current Interest Period(s) for such
Eurodollar Rate Loans (or, in the case of an immediate conversion required by
Section 3.02, on such earlier date as required by Law) and, unless and until
such Lender gives notice as provided below that the circumstances specified in
Section 3.01, 3.02, 3.03 or 3.04 hereof that gave rise to such conversion no
longer exist:
(i) to the extent that such Lender's Eurodollar Rate Loans have been
so converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Rate Loans shall be
applied instead to its Base Rate Loans; and
(ii) all Loans that would otherwise be made or continued from one
Interest Period to another by such Lender as Eurodollar Rate Loans shall
be made or continued instead as Base Rate Loans, and all Base Rate Loans
of such Lender that would otherwise be converted into Eurodollar Rate
Loans shall remain as Base Rate Loans.
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(d) If any Lender gives notice to the Company (with a copy to the Agent)
that the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04 hereof that
gave rise to the conversion of such Lender's Eurodollar Rate Loans pursuant to
this Section 3.06 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Eurodollar Rate Loans made
by other Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Rate Loans, to the extent necessary so
that, after giving effect thereto, all Loans held by the Lenders holding
Eurodollar Rate Loans and by such Lender are held pro rata (as to principal
amounts, interest rate basis, and Interest Periods) in accordance with their
respective Commitments.
Section 3.07 Replacement of Lenders under Certain Circumstances. (a) If at
any time (x) any Borrower becomes obligated to pay additional amounts or
indemnity payments described in Section 3.01 or Section 3.04 as a result of any
condition described in such Sections or any Lender ceases to make Eurodollar
Rate Loans as a result of any condition described in Section 3.02 or Section
3.04, (y) any Lender becomes a Defaulting Lender or (z) any Lender becomes a
"NON-CONSENTING LENDER" (as defined below in this Section 3.07), then the
Company may, on ten (10) Business Days' prior written notice to the
Administrative Agent and such Lender, either (i) replace such Lender by causing
such Lender to (and such Lender shall be obligated to) assign pursuant to
Section 10.07(b) (with the assignment fee to be paid by the Company in such
instance) all of its rights and obligations under this Agreement to one or more
Eligible Assignees; provided that neither the Administrative Agent nor any
Lender shall have any obligation to the Company to find a replacement Lender or
other such Person or (ii) terminate the Commitment of such Lender and repay all
obligations of the Borrowers owing to such Lender relating to the Loans and
participations held by such Lender as of such termination date.
(b) Any Lender being replaced pursuant to Section 3.07(a) above shall (i)
execute and deliver an Assignment and Assumption with respect to such Lender's
Commitment and outstanding Loans and participations in L/C Obligations and Swing
Line Loans, and (ii) deliver any Notes evidencing such Loans to the Company or
Administrative Agent. Pursuant to such Assignment and Assumption, (i) the
assignee Lender shall acquire all or a portion, as the case may be, of the
assigning Lender's Commitment and outstanding Loans and participations in L/C
Obligations and Swing Line Loans, (ii) all obligations of the Borrowers owing to
the assigning Lender relating to the Loans and participations so assigned shall
be paid in full by the assignee Lender to such assigning Lender concurrently
with such assignment and assumption and (iii) upon such payment and, if so
requested by the assignee Lender, delivery to the assignee Lender of the
appropriate Note or Notes executed by the relevant Borrowers, the assignee
Lender shall become a Lender hereunder and the assigning Lender shall cease to
constitute a Lender hereunder with respect to such assigned Loans, Commitments
and participations, except with respect to indemnification provisions under this
Agreement, which shall survive as to such assigning Lender.
(c) Notwithstanding anything to the contrary contained above, the Lender
that acts as the L/C Issuer may not be replaced hereunder at any time that it
has any Letter of Credit outstanding hereunder unless arrangements reasonably
satisfactory to such L/C Issuer (including the furnishing of a back-up standby
letter of credit in form and substance, and issued by an issuer reasonably
satisfactory to such L/C Issuer or the depositing of cash collateral into a cash
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collateral account in amounts and pursuant to arrangements reasonably
satisfactory to such L/C Issuer) have been made with respect to such outstanding
Letter of Credit and Article 1 the Lender that acts as the Administrative Agent
may not be replaced hereunder except in accordance with the terms of Section
9.09.
(d) In the event that (i) the Company or the Administrative Agent has
requested the Lenders to consent to a departure or waiver of any provisions of
the Loan Documents or to agree to any amendment thereto, (ii) the consent,
waiver or amendment in question requires the agreement of all affected Lenders
in accordance with the terms of Section 10.01 or all the Lenders with respect to
a certain class of the Loans and (iii) the Required Lenders have agreed to such
consent, waiver or amendment, then any Lender who does not agree to such
consent, waiver or amendment shall be deemed a "NON-CONSENTING LENDER."
Section 3.08 Survival. All of the Borrowers' obligations under this
Article 3 shall survive termination of the Aggregate Commitments and repayment
of all other Obligations hereunder.
ARTICLE 4
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01 Conditions of Initial Credit Extension. The obligation of
each Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible
Officer of the signing Loan Party, each in form and substance reasonably
satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each Guaranty;
(ii) a Note executed by each relevant Borrower in favor of
each Lender that has requested a Note at least two Business Days in
advance of the Closing Date;
(iii) the Security Agreement, duly executed by each Loan Party
thereto, together with:
(A) certificates representing the Pledged Equity
referred to therein accompanied by undated stock powers
executed in blank and instruments evidencing the Pledged Debt
indorsed in blank,
(B) copies of all searches with respect to the
Collateral, and all proper financing statements, duly prepared
for filing under the Uniform Commercial Code in all
jurisdictions that the Administrative Agent may deem
reasonably necessary in order to perfect and protect the Liens
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created under the Security Agreement, covering the Collateral
described in the Security Agreement,
(C) evidence that all other actions, recordings and
filings of or with respect to the Security Agreement that the
Administrative Agent may deem reasonably necessary in order to
perfect and protect the Liens created thereby shall have been
taken, completed or otherwise provided for in a manner
reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly
executed by each Loan Party thereto, together with evidence that all
action that the Administrative Agent in its reasonable judgment may
deem reasonably necessary or desirable in order to perfect and
protect the Liens created under the Intellectual Property Security
Agreement has been taken;
(v) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may
reasonably require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other
Loan Documents to which such Loan Party is a party or is to be a
party;
(vi) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is
duly organized or formed, and that each of the Borrowers and the
Guarantors is validly existing, in good standing and qualified to
engage in business in each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires
such qualification, except to the extent that failure to be so
qualified could not reasonably be expected to have a Material
Adverse Effect;
(vii) opinions from Ropes & ▇▇▇▇ LLP, New York counsel to the
Loan Parties;
(viii) a certificate signed by a Responsible Officer of the
Company certifying that there has been no change, effect, event,
occurrence or state of facts since December 31, 2003, that has had
or could reasonably be expected to result in a Material Adverse
Change;
(ix) a certificate attesting to the Solvency of the Loan
Parties (taken as a whole) after giving effect to the Transaction,
from the Chief Financial Officer of the Company;
(x) a certified copy of the Sponsor Management Agreement,
including a certification by a Responsible Officer of the Company
that such agreement is in full force and effect as of the Closing
Date;
(xi) evidence that all insurance (including without limitation
title insurance) required to be maintained pursuant to the Loan
Documents has been
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obtained and is in effect and that the Administrative Agent has been
named as loss payee under each insurance policy with respect to such
insurance as to which the Administrative Agent shall have requested
to be so named;
(xii) certified copies of the Purchase Agreement, duly
executed by the parties thereto, together with all material
agreements, instruments and other documents delivered in connection
therewith as the Administrative Agent and the Initial Lenders shall
reasonably request, each including certification by a Responsible
Officer of the Company that such documents are in full force and
effect as of the Closing Date;
(xiii) a Committed Loan Notice or Letter of Credit
Application, as applicable, relating to the initial Credit
Extension; and
(xiv) final projections through the scheduled maturity of the
Facilities that in the reasonable discretion of the Administrative
Agent are not inconsistent in a material and adverse manner with the
projections provided before the date hereof.
(b) All fees and expenses required to be paid on or before the
Closing Date shall have been paid in full in cash.
(c) All material governmental, shareholder and material third party
consents and approvals necessary in connection with the Transaction shall
have been obtained on reasonably satisfactory terms and shall be in full
force and effect; all applicable waiting periods (including, without
limitation, the expiration or termination of the requisite waiting period
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976) in
connection with the Transaction shall have expired without any action
being taken, sought or threatened by any competent authority that could
restrain, prevent or otherwise impose adverse conditions on any of the
Loan Parties or the Transaction.
(d) There shall be no litigation or administrative proceedings or
other legal or regulatory developments that would be reasonably likely to
prohibit or to impose burdensome conditions on the consummation of the
Transaction or to result in a Material Adverse Change.
(e) The Purchase Agreement shall be in full force and effect.
(f) Prior to or simultaneously with the initial Credit Extension,
(x) the Equity Contributions shall have been funded in full in cash; and
(y) the Acquisition shall be consummated in accordance with the terms of
the Purchase Agreement and in compliance with applicable material Laws and
regulatory approvals, and no provision of the Purchase Agreement (or any
other documents in connection with the Acquisition) shall have been
waived, amended, supplemented or otherwise modified in a manner material
and adverse to the interests of the Lenders (unless the Arrangers shall
have consented in writing to such waiver, amendment, supplement or other
modification).
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(g) The final terms and conditions of each material aspect of the
acquisition of UGS PLM Solutions shall be (i) as described in the Purchase
Agreement as in effect on March 12, 2004, in the commitment letter dated
as of March 12, 2004 among Holdings and the Initial Lenders and in Side
Letter Agreement Number 1 to UGS PLM Stock Purchase Agreement dated April
8, 2004, by and among the Parent, the Seller and UGS PLM Solutions, Side
Letter Agreement Number 2 to UGS PLM Stock Purchase Agreement dated April
26, 2004, by and among the Parent, the Seller and UGS PLM Solutions and
the Side Letter Agreement, dated as of May 27, 2004, by and among the
Parent, the Seller and UGS PLM Solutions and (ii) to the extent not
described in the documents described in clause (i) or in other information
provided by Holdings to the Initial Lenders prior to March 12, 2004,
reasonably satisfactory to the Initial Lenders and the Arrangers. The
Initial Lenders and the Arrangers shall be reasonably satisfied with all
material agreements, instruments and documents relating to the
Transaction.
(h) Prior to or simultaneously with the initial Credit Extensions
the Company shall have received at least $550,000,000 in gross cash
proceeds from the issuance of the Senior Subordinated Notes and related
forward hedge agreements. The capital structure of each Loan Party after
the consummation of the Transactions shall be reasonably satisfactory in
all respects to the Arrangers.
(i) The Arrangers shall be reasonably satisfied that the ratio of
pro forma consolidated debt to EBITDA (for the purposes of this clause (i)
to be defined as net income, plus provisions for income taxes, plus
restructuring charges, plus depreciation and amortization, plus interest
expense, in each case as set forth on the consolidated financial
statements of UGS PLM Solutions presented in accordance with GAAP) of the
UGS PLM Solutions and its Subsidiaries for the trailing four quarters
ended immediately prior to the Closing Date for which financial statements
are available shall not exceed 5.0 to 1.0. If UGS PLM Solutions would not
otherwise meet this condition, it may obtain additional equity from
Sponsors and management in at least an amount that would allow this
condition to be met at the Closing Date. All calculations pursuant to this
clause (i) shall be reasonably satisfactory to the Administrative Agent
and the Arrangers. Such additional equity will be used to reduce the
Facilities and/or Senior Subordinated Notes on terms to be agreed upon.
(j) The Arrangers and the Lenders shall have received (i) audited
financial statements of UGS PLM Solutions for the two most recent fiscal
years and (ii) unaudited interim consolidated financial statements of UGS
PLM Solutions for each fiscal month (if available) and quarterly period
(if available) ended after the latest fiscal year referred to in clause
(i) above and such financial statements shall not reflect any Material
Adverse Change in the consolidated financial condition of UGS PLM
Solutions and its Subsidiaries from what was reflected in the financial
statements or projections previously furnished to the Arrangers or the
Lenders; provided that all annual and quarterly financial statement
information shall be prepared in accordance with GAAP.
(k) The Arrangers and the Lenders shall have received the Pro Forma
Balance Sheet. Each Borrower shall also have provided such other financial
information as the Arrangers may reasonably request in connection with the
Transactions.
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Section 4.02 Conditions to All Credit Extensions. The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of each Borrower and each
other Loan Party contained in Article 5 or any other Loan Document shall
be true and correct in all material respects on and as of the date of such
Credit Extension; provided that, to the extent that such representations
and warranties specifically refer to an earlier date, they shall be true
and correct in all material respects as of such earlier date; provided,
further that, any representation and warranty that is qualified as to
"materiality," "Material Adverse Effect" or similar language shall be true
and correct in all respects on such respective dates.
(b) No Default shall exist, or would result from such proposed
Credit Extension or from the application of the proceeds therefrom.
(c) The Administrative Agent and, if applicable, the L/C Issuer or
the Swing Line Lender shall have received a Request for Credit Extension
in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Loans to the other Type or a continuation of
Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a)
and (b) have been satisfied on and as of the date of the applicable Credit
Extension.
Section 4.03 First Credit Extension to an Overseas Borrower. The
obligation of each Lender to honor any Request for Credit Extension on the
occasion of the first Credit Extension under the Revolving Credit Facility to
each Overseas Borrower is subject to the satisfaction of the following further
conditions:
(a) receipt by the Administrative Agent of an opinion of counsel for
such Overseas Borrower reasonably acceptable to the Administrative Agent,
substantially in the form of Exhibit I hereto and covering such additional
matters relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request;
(b) receipt by the Administrative Agent of all documents which it
may reasonably request relating to the existence of such Overseas
Borrower, its corporate authority for and the validity of its Election to
Participate in, this Agreement and any other Loan Document, and any other
matters relevant thereto, all in form and substance reasonably
satisfactory to the Administrative Agent; and
(c) the requirements of Section 6.12(c) shall have been satisfied
with respect to such Overseas Borrower.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrowers represents and warrants to the Agents
and the Lenders that:
Section 5.01 Existence, Qualification and Power; Compliance with Laws.
Each Loan Party and each of its Subsidiaries (a) is a Person duly organized or
formed, validly existing and in good standing under the Laws of the jurisdiction
of its incorporation or organization, (b) has all requisite power and authority
to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a
party, (c) is duly qualified and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, (d) is in compliance with
all Laws, orders, writs, injunctions and orders and (e) has all requisite
governmental licenses, authorizations, consents and approvals to operate its
business as currently conducted; except in each case referred to in clause (c),
(d) or (e), to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.
Section 5.02 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is a
party, and the consummation of the Transaction and the Tecnomatix Transaction,
are within such Loan Party's corporate or other powers, have been duly
authorized by all necessary corporate or other organizational action, and do not
and will not (a) contravene the terms of any of such Person's Organization
Documents, (b) conflict with or result in any breach or contravention of, or the
creation of any Lien under (other than as permitted by Section 7.01), or require
any payment to be made under (i) (x) any Junior Financing Documentation or (y)
any other Contractual Obligation to which such Person is a party or affecting
such Person or the properties of such Person or any of its Subsidiaries or (ii)
any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or its property is subject; or (c) violate
any Law; except with respect to any conflict, breach or contravention or payment
(but not creation of Liens) referred to in clause (b)(i), to the extent that
such conflict, breach, contravention or payment could not reasonably be expected
to have a Material Adverse Effect.
Section 5.03 Governmental Authorization; Other Consents. No material
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with (a) the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document, or for the consummation of the Transaction or the Tecnomatix
Transaction, (b) the grant by any Loan Party of the Liens granted by it pursuant
to the Collateral Documents, (c) the perfection or maintenance of the Liens
created under the Collateral Documents (including the priority thereof) or (d)
the exercise by the Administrative Agent or any Lender of its rights under the
Loan Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for (i) filings necessary to perfect the Liens on
the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii)
the approvals, consents, exemptions, authorizations, actions, notices and
filings which have been duly obtained, taken, given or made and are in full
force and effect and (iii) those approvals,
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consents, exemptions, authorizations or other actions, notices or filings, the
failure of which to obtain or make could not reasonably be expected to have a
Material Adverse Effect.
Section 5.04 Binding Effect. This Agreement and each other Loan Document
has been duly executed and delivered by each Loan Party that is party thereto.
This Agreement and each other Loan Document constitutes, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, except as such enforceability may
be limited by bankruptcy insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights generally and by general principles of
equity.
Section 5.05 Financial Statements; No Material Adverse Effect. (a) (i) The
Audited Financial Statements fairly present in all material respects the
financial condition of the Company and its Subsidiaries as of the dates thereof
and their results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the periods covered thereby, except as
otherwise expressly noted therein. The consolidated balance sheet of the Company
and its Subsidiaries as of September 30, 2004 and their related consolidated
statements of income and cash flows for the period of nine fiscal months ended
September 2004 fairly present in all material respects the financial condition
of the Company and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein and subject to the absence of footnotes and year-end audit
adjustments. During the period from September 30, 2004 to and including the
Second Restatement Effective Date, there has been (i) no sale, transfer or other
disposition by the Company or any of its Subsidiaries of any material part of
the business or property of the Company or any of its Subsidiaries, taken as a
whole and (ii) other than the Tecnomatix Acquisition, no purchase or other
acquisition by the Company or any of its Subsidiaries of any business or
property (including any Equity Interests of any other Person) material in
relation to the consolidated financial condition of the Company and its
Subsidiaries, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto or has not otherwise been disclosed in
writing to the Lenders prior to the Second Restatement Effective Date.
(ii) The unaudited pro forma consolidated balance sheet of the
Company and its consolidated Subsidiaries as at March 31, 2004 (including
the notes thereto) (the "PRO FORMA BALANCE SHEET"), copies of which have
heretofore been furnished to each Lender, has been prepared giving effect
(as if such events had occurred on such date) to (i) the consummation of
the Acquisition, (ii) the Loans to be made and the Senior Subordinated
Notes to be issued on the Closing Date and the use of proceeds thereof and
(iii) the payment of fees and expenses in connection with the foregoing.
The Pro Forma Balance Sheet has been prepared in good faith, based on
assumptions believed by the Company to be reasonable as of the date of
delivery thereof, and presents fairly in all material respects on a pro
forma basis the estimated financial position of the Company and its
consolidated Subsidiaries as at March 31, 2004, assuming that the events
specified in the preceding sentence had actually occurred at such date.
(iii) The unaudited pro forma consolidated balance sheet of the
Company and its consolidated Subsidiaries as at December 31, 2004
(including the notes thereto) (the "PRO FORMA BALANCE SHEET
(TECNOMATIX)"), copies of which have heretofore been
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furnished to each Lender, has been prepared giving effect (as if such
events had occurred on such date) to (i) the consummation of the
Tecnomatix Acquisition, (ii) the Term Loans to be made pursuant to the
Second Amendment and Restatement Agreement and the use of proceeds thereof
and (iii) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared in good faith,
based on assumptions believed by the Company to be reasonable as of the
date of delivery thereof, and presents fairly in all material respects on
a proforma basis the estimated financial position of the Company and its
consolidated Subsidiaries as at December 31, 2004, assuming that the
events specified in the preceding sentence had actually occurred at such
date.
(b) Since September 30, 2004, there has been no event or circumstance,
either individually or in the aggregate, that has had or could reasonably be
expected to have a material adverse effect on the business, operations, assets,
liabilities (actual or contingent) or condition (financial or otherwise) of the
Company and its Subsidiaries, taken as a whole.
(c) The forecasts of consolidated balance sheets, income statements and
cash flow statements of the Company and its Subsidiaries for each fiscal year
ending after the Second Restatement Effective Date until the seventh anniversary
of the Second Restatement Effective Date, copies of which have been furnished to
the Administrative Agent and the Lenders prior to the [Second Restatement
Effective] Date in a form reasonably satisfactory to them, have been prepared in
good faith on the basis of the assumptions stated therein, which assumptions
were reasonable in light of the conditions existing at the time of delivery of
such forecasts, it being understood that actual results may vary from such
forecasts and that such variations may be material.
Section 5.06 Litigation. There are no actions, suits, proceedings, claims
or disputes pending or, to the knowledge of any Borrower, threatened in writing
or contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Company or any of its Subsidiaries or against any
of their properties or revenues that (a) purport to affect or pertain to this
Agreement, any other Loan Document or, as of the Closing Date, the consummation
of the Transaction or the Tecnomatix Transaction, or (b) either individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
Section 5.07 No Default. Neither the Company nor any Subsidiary is in
default under or with respect to, or a party to, any Contractual Obligation that
could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 5.08 Ownership of Property; Liens. (a) Each Loan Party and each of
its Subsidiaries has good record and marketable title in fee simple to, or valid
leasehold interests in, or easements or other limited property interests in, all
real property necessary in the ordinary conduct of its business, free and clear
of all Liens except for minor defects in title that do not materially interfere
with its ability to conduct its business or to utilize such assets for their
intended purposes and Liens permitted by Section 7.01 and except where the
failure to have such title could not reasonable be expected to have,
individually or in the aggregate, a Material Adverse Effect.
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(b) Set forth on Schedule 5.08(b) hereto is a complete and accurate list
of all real property owned by any Loan Party or any of its Subsidiaries, as of
the Closing Date, showing as of the date hereof the street address (to the
extent available), county or other relevant jurisdiction, state and record
owner.
Section 5.09 Environmental Compliance. (a) There are no claims, actions,
suits, or proceedings alleging potential liability or responsibility for
violation of, or otherwise relating to, any Environmental Law that could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(b) Except as specifically disclosed in Schedule 5.09 or except as could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, (i) none of the properties currently or formerly owned, leased
or operated by any Loan Party or any of its Subsidiaries is listed or proposed
for listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list or is adjacent to any such property; (ii) there are no and never have
been any underground or aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or
have been treated, stored or disposed on any property currently owned, leased or
operated by any Loan Party or any of its Subsidiaries or, to its knowledge, on
any property formerly owned or operated by any Loan Party or any of its
Subsidiaries; (iii) there is no asbestos or asbestos-containing material on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries; and (iv) Hazardous Materials have not been released, discharged or
disposed of by any Person on any property currently or formerly owned, leased or
operated by any Loan Party or any of its Subsidiaries and Hazardous Materials
have not otherwise been released, discharged or disposed of by any of the Loan
Parties and their Subsidiaries at any other location.
(c) The Properties do not contain any Hazardous Materials in amounts or
concentrations which (i) constitute, or constituted a violation of, (ii) require
remedial action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, remedial actions and liabilities,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
(d) Except as specifically disclosed in Schedule 5.09, neither any
Borrower nor any of its Subsidiaries is undertaking, and has not completed,
either individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of Hazardous Materials at
any site, location or operation, either voluntarily or pursuant to the order of
any Governmental Authority or the requirements of any Environmental Law except
for such investigation or assessment or remedial or response action that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(e) All Hazardous Materials generated, used, treated, handled or stored
at, or transported to or from, any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries have been disposed of in a
manner not reasonably expected to result, individually or in the aggregate, in a
Material Adverse Effect.
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(f) Except as would not reasonably be expected to result, individually or
in the aggregate, in a Material Adverse Effect, none of the Loan Parties and
their Subsidiaries has contractually assumed any liability or obligation under
or relating to any Environmental Law.
Section 5.10 Taxes. Except as set forth in Schedule 5.10, the Company and
its Subsidiaries have filed all material Federal and state and other tax returns
and reports required to be filed, and have paid all material Federal and state
and other taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those (a) which are not overdue by more than thirty (30) days or
(b) which are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP.
Section 5.11 ERISA Compliance. (a) Except as set forth in Schedule 5.11,
each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed with respect thereto and, to the knowledge of the
Company and Holdings, nothing has occurred which would prevent, or cause the
loss of, such qualification. Each Loan Party and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the knowledge of the Company and Holdings,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(i) no Pension Plan has an "accumulated funding deficiency" (as defined in
Section 412 of the Code), whether or not waived, and no application for a waiver
of the minimum funding standard has been filed with respect to any Pension Plan;
(ii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (iv) neither any Loan Party nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except,
with respect to each of the foregoing clauses of this Section 5.11(c), as could
not reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
Section 5.12 Subsidiaries; Equity Interests. As of the Closing Date,
neither Holdings nor any Loan Party has any Subsidiaries other than those
specifically disclosed in Schedule 5.12, and all of the outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable and all Equity Interests owned by Holdings or a Loan Party are
owned
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free and clear of all Liens except (i) those created under the Collateral
Documents and (ii) any nonconsensual Lien that is permitted under Section 7.01.
As of the Closing Date, Schedule 5.12 (a) sets forth the name and jurisdiction
of each Subsidiary, (b) sets forth the ownership interest of Holdings, the
Company and any other Subsidiary in each Subsidiary, including the percentage of
such ownership and (c) identifies each Subsidiary that is (i) an Overseas
Borrower or (ii) a Subsidiary the Equity Interests of which are required to be
pledged on the Closing Date.
Section 5.13 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act. (a) No Borrower is engaged nor will it engage, principally
or as one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock and no
proceeds of any Borrowings or drawings under any Letter of Credit will be used
to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(b) None of the Company, any Person Controlling the Company, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
Section 5.14 Disclosure. No report, financial statement, certificate or
other written information furnished by or on behalf of any Loan Party to any
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Agreement or delivered hereunder or any other Loan
Document (as modified or supplemented by other information so furnished) when
taken as a whole contains any material misstatement of 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 materially misleading; provided
that, with respect to projected financial information, the Borrowers represent
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time of preparation; it being understood that
such projections may vary from actual results and that such variances may be
material.
Section 5.15 Intellectual Property; Licenses, Etc. Each of the Loan
Parties and their Subsidiaries own, license or possess the right to use, all of
the trademarks, service marks, trade names, domain names, copyrights, patents,
patent rights, licenses, technology, software, know-how database rights, design
rights and other intellectual property rights (collectively, "IP Rights") that
are reasonably necessary for the operation of their respective businesses as
currently conducted, and, without conflict with the rights of any Person, except
to the extent such conflicts, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. No IP Rights,
advertising, product, process, method, substance, part or other material used by
any Loan Party or any Subsidiary in the operation of their respective businesses
as currently conducted infringes upon any rights held by any Person except for
such infringements, individually or in the aggregate, which could not reasonably
be expected to have a Material Adverse Effect. No claim or litigation regarding
any of the IP Rights, is pending or, to the knowledge of any Borrower,
threatened against any Loan Party or Subsidiary, which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
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Section 5.16 Solvency. On the Second Restatement Effective Date after
giving effect to the Tecnomatix Transaction, the Loan Parties, on a consolidated
basis, are Solvent.
Section 5.17 Perfection, Etc. All filings and other actions necessary or
desirable to perfect and protect the Lien in the Collateral created under the
Collateral Documents have been duly made or taken or otherwise provided for in a
manner reasonably acceptable to Administrative Agent (it being agreed that any
necessary or desirable registration or filing of a Collateral Document in the
United Kingdom will be made promptly after execution of the relevant document
and in any event within any applicable time limit) and are in full force and
effect, and the Collateral Documents create in favor of the Administrative Agent
for the benefit of the Secured Parties a valid and, together with such filings
and other actions, perfected first priority Lien in the Collateral, securing the
payment of the Secured Obligations, subject to Liens permitted by Section 7.01.
The Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the Liens created or permitted under the Loan
Documents.
Section 5.18 Representations and Warranties of Overseas Borrowers. Each
Overseas Borrower shall be deemed by the execution and delivery of its Election
to Participate to have represented and warranted as of the date thereof (and
each other date on which this representation is deemed to have been made) that
the representations and warranties set forth in Sections 5.01, 5.02, 5.03 and
5.04 are true and correct in all material respects as to such Overseas Borrower
and its Election to Participate and any Loan Document to which it is a party,
except that any representation and warranty that is qualified as to
"materiality," "Material Adverse Effect" or similar language shall be true and
correct in all respects.
Section 5.19 Subordination of Senior Subordinated Notes. The Obligations
are "Senior Debt," "Senior Indebtedness," "Guarantor Senior Debt" or "Senior
Secured Financing" (or any comparable term) under, and as defined in, the Senior
Subordinated Note Documents and any other Junior Financing Documentation.
Section 5.20 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against any of Holdings, the Company or their
respective Subsidiaries pending or, to the knowledge of Holdings or the Company,
threatened; (b) hours worked by and payment made to employees of each of
Holdings, the Company or their respective Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Laws dealing
with such matters; and (c) all payments due from any of Holdings, the Company or
their respective Subsidiaries on account of employee health and welfare
insurance have been paid or accrued as a liability on the books of the relevant
party.
ARTICLE 6
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, each of Holdings
and the Company shall, and shall
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(except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03)
cause each Restricted Subsidiary to:
Section 6.01 Financial Statements. Deliver to the Administrative Agent for
prompt further distribution to each Lender:
(a) as soon as available, but in any event within ninety (90) days
after the end of each fiscal year of the Company beginning with the 2004
fiscal year, a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and
cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail
and prepared in accordance with GAAP, audited and accompanied by a report
and opinion of KPMG LLP or any other independent certified public
accountant of nationally recognized standing, which report and opinion
shall be prepared in accordance with generally accepted auditing standards
and shall not be subject to any "going concern" or like qualification or
exception or any qualification or exception as to the scope of such audit;
(b) as soon as available, but in any event within forty-five (45)
days after the end of each of the first three (3) fiscal quarters of each
fiscal year of the Company, a consolidated balance sheet of the Company
and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders' equity and
cash flows for such fiscal quarter and for the portion of the fiscal year
then ended, setting forth in each case in comparative form the figures for
the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable
detail and certified by a Responsible Officer of the Company as fairly
presenting in all material respects the financial condition, results of
operations, shareholders' equity and cash flows of the Company and its
Subsidiaries in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes;
(c) as soon as available, and in any event no later than 45 days
after the end of each fiscal year of the Company, a detailed consolidated
budget for the following fiscal year (including a projected consolidated
balance sheet of the Company and its Subsidiaries as of the end of the
following fiscal year, the related consolidated statements of projected
cash flow, projected changes in financial position and projected income
and a description of the underlying assumptions applicable thereto), and,
as soon as available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the
"PROJECTIONS"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer stating that such Projections are
based on reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such Projections are
incorrect or misleading in any material respect; and
(d) simultaneously with the delivery of each set of consolidated
financial statements referred to in Sections 6.01(a) and 6.01(b) above,
the related consolidating
106
financial statements reflecting the adjustments necessary to eliminate the
accounts of Unrestricted Subsidiaries (if any) from such consolidated
financial statements.
Section 6.02 Certificates; Other Information. Deliver to the
Administrative Agent for prompt further distribution to each Lender:
(a) no later than five (5) days after the delivery of the financial
statements referred to in Section 6.01(a), a certificate of its
independent certified public accountants certifying such financial
statements and stating that in making the examination necessary therefor
no knowledge was obtained of any Event of Default under Section 7.11 or,
if any such Event of Default shall exist, stating the nature and status of
such event;
(b) no later than five (5) days after the delivery of the financial
statements referred to in Section 6.01(a) and (b), a duly completed
Compliance Certificate signed by a Responsible Officer of the Company and,
if such Compliance Certificate demonstrates an Event of Default of any
covenant under Section 7.11, the Equity Investors may deliver, together
with such Compliance Certificate, notice of their intent to cure (a
"NOTICE OF INTENT TO CURE") such Event of Default through capital
contributions or the purchase of Equity Interests as contemplated pursuant
to clause (b)(xx) and the final proviso of the definition of "Consolidated
EBITDA"; provided that the delivery of a Notice of Intent to Cure shall in
no way affect or alter the occurrence, existence or continuation of any
such Event of Default or the rights, benefits, powers and remedies of the
Administrative Agent and the Lenders under any Loan Document;
(c) promptly after the same are publicly available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Company, and copies of all
annual, regular, periodic and special reports and registration statements
which the Company may file or be required to file, copies of any report,
filing or communication with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, or with any Governmental Authority that
may be substituted therefor, or with any national securities exchange, and
in any case not otherwise required to be delivered to the Administrative
Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any requests or
notices received by any Loan Party (other than in the ordinary course of
business), statement or report furnished to any holder of debt securities
of any Loan Party or of any of its Subsidiaries pursuant to the terms of
any Junior Financing Documentation in a principal amount greater than the
Threshold Amount and not otherwise required to be furnished to the Lenders
pursuant to any other clause of this Section 6.02;
(e) promptly after the receipt thereof by any Loan Party or any of
its Subsidiaries, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S.
jurisdiction) concerning any material investigation or other material
inquiry by such agency regarding financial or other operational results of
any Loan Party or any of its Subsidiaries;
107
(f) together with the delivery of each Compliance Certificate
pursuant to Section 6.02(b), (i) a report supplementing Schedule 5.08(b)
hereto, including, in the case of supplements to Schedule 5.08(b), an
identification of all owned real property disposed of by any Loan Party or
any of its Restricted Subsidiaries since the delivery of the last
supplements and a list and description of all real property acquired since
the delivery of the last supplements (including the street address (if
available), county or other relevant jurisdiction, state, and in the case
of the owned real property, the record owner), (ii) a description of each
event, condition or circumstance during the last fiscal quarter covered by
such Compliance Certificate requiring a mandatory prepayment under Section
2.05(b) and (iii) a list of each Subsidiary that identifies each
Subsidiary as a Restricted or an Unrestricted Subsidiary as of the date of
delivery of such Compliance Certificate;
(g) [Reserved.];
(h) promptly after the Company has notified the Administrative Agent
of any intention by the Company to treat the Loans and/or Letters of
Credit and related transactions as being a "reportable transaction"
(within the meaning of Treasury Regulation Section 1.6011-4), a duly
completed copy of IRS Form 8886 or any successor form;
(i) promptly, such additional information regarding the business,
legal, financial or corporate affairs of any Loan Party or any Subsidiary,
or compliance with the terms of the Loan Documents, as the Administrative
Agent or any Lender through the Administrative Agent may from time to time
reasonably request; and
(j) promptly after entering into any amendment or waiver of the
Sponsor Management Agreement permitted by this Agreement, a copy of such
amendment or waiver.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) 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 listed on Schedule 10.02; or (ii)
on which such documents are posted on the Company's behalf on
IntraLinks/IntraAgency or another relevant 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: (i)
the Company shall deliver paper copies of such documents to the Administrative
Agent for further distribution to each Lender until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
Article 2 the Company shall notify (which may be by facsimile or electronic
mail) the Administrative Agent 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. Notwithstanding anything contained herein, in every
instance the Company shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Administrative Agent. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no
108
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.
Section 6.03 Notices. Promptly after obtaining knowledge thereof notify
the Administrative Agent:
(a) of the occurrence of any Default; and
(b) of any matter that has resulted or could reasonably be expected
to result in a Material Adverse Effect, including arising out of or
resulting from (i) breach or non-performance of, or any default or event
of default under, a Contractual Obligation of any Loan Party or any
Subsidiary, (ii) any dispute, litigation, investigation, proceeding or
suspension between any Loan Party or any Subsidiary and any Governmental
Authority, (iii) the commencement of, or any material development in, any
litigation or proceeding affecting any Loan Party or any Subsidiary,
including pursuant to any applicable Environmental Laws or in respect of
IP Rights or the assertion or occurrence of any noncompliance by any Loan
Party or as any of its Subsidiaries with, or liability under, any
Environmental Law or Environmental Permit, or (iv) the occurrence of any
ERISA Event.
Each notice pursuant to this Section shall be accompanied by a written
statement of a Responsible Officer of the Company (x) that such notice is being
delivered pursuant to Section 6.03(a) or (b) (as applicable) and directing that
such notice be delivered by the Administrative Agent to each Lender and (y)
setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each
notice pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
Section 6.04 Payment of Obligations. Pay, discharge or otherwise satisfy
as the same shall become due and payable, all its obligations and liabilities
except, in each case, to the extent the failure to pay or discharge the same
could not reasonably be expected to have a Material Adverse Effect.
Section 6.05 Preservation of Existence, Etc. (a) Preserve, renew and
maintain in full force and effect its legal existence under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
7.04 or 7.05 except (x) that the Company and its Restricted Subsidiaries may
consummate the Acquisition and (y) for the liquidation or dissolution of
Restricted Subsidiaries if the assets of such Restricted Subsidiaries are
acquired by a Borrower or a wholly owned Restricted Subsidiary of a Borrower in
such liquidation or dissolution, (b) take all reasonable action to maintain all
rights, privileges (including its good standing), permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect, and (c) preserve or renew all of its registered
patents, trademarks, trade names, service marks and copyrights, as required
under the Security Agreement.
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Section 6.06 Maintenance of Properties. Except if the failure to do so
could not reasonably be expected to have a Material Adverse Effect, (a)
maintain, preserve and protect all of its material properties and equipment
necessary in the operation of its business in good working order, repair and
condition, ordinary wear and tear excepted and casualty or condemnation
excepted, and (b) make all necessary renewals, replacements, modifications,
improvements, upgrades, extensions and additions thereof or thereto in
accordance with prudent industry practice.
Section 6.07 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts (after giving effect to any self-insurance reasonable and customary for
similarly situated Persons engaged in the same or similar businesses as the
Company and its Restricted Subsidiaries) as are customarily carried under
similar circumstances by such other Persons.
Section 6.08 Compliance with Laws. Comply in all material respects with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except if the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
Section 6.09 Books and Records. Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all material financial transactions and
matters involving the assets and business of the Company or such Subsidiary, as
the case may be.
Section 6.10 Inspection Rights. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at the reasonable expense of the Company and at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided that, excluding any such
visits and inspections during the continuation of an Event of Default, only the
Administrative Agent on behalf of the Lenders may exercise rights of the
Administrative Agent and the Lenders under this Section 6.10 and the
Administrative Agent shall not exercise such rights more often than two (2)
times during any calendar year absent the existence of an Event of Default and
only one (1) such time shall be at the Company's expense; provided further that
when an Event of Default exists the Administrative Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Company at any time during normal business
hours and upon reasonable advance notice. The Administrative Agent and the
Lenders shall give the Company the opportunity to participate in any discussions
with the Company's independent public accountants.
Section 6.11 Use of Proceeds. Use the proceeds of the Credit Extensions
(other than the Term Loans made on and after the Second Restatement Effective
Date) (i) to finance in part the Acquisition, (ii) to pay fees and expenses
incurred in connection with the Transaction and
110
(iii) to provide ongoing working capital and for other general corporate
purposes of the Company and its Subsidiaries (including Permitted Acquisitions).
The proceeds of the Term Loans made on and after the Second Restatement
Effective Date shall be used (a) to finance the Tecnomatix Acquisition, (b) to
pay fees and expenses in connection with the Tecnomatix Transaction, (c) to
provide ongoing working capital and for other general corporate purposes of the
Company and its Subsidiaries and (d) to refinance the Existing Term Loans.
Section 6.12 Covenant to Guarantee Obligations and Give Security. (a) Upon
(A) the formation or acquisition of any new direct or indirect wholly owned
Restricted Subsidiary by any Loan Party or the designation in accordance with
Section 6.17 of any existing direct or indirect wholly owned Subsidiary as a
Restricted Subsidiary or (B) any Restricted Subsidiary guaranteeing any
obligations of Holdings, the Company or any other Restricted Subsidiary in
respect of any Junior Financing, the Company shall, in each case at the
Company's expense:
(i) within thirty (30) days after such formation, acquisition,
designation or guarantee or such longer period as the Administrative Agent
may agree in its discretion:
(A) cause each such Restricted Subsidiary that is (x) not a
Foreign Subsidiary or (y) a Foreign Subsidiary that has guaranteed
the obligations of Holdings, the Company or a Restricted Subsidiary
in respect of any Junior Financing, to duly execute and deliver to
the Administrative Agent a guaranty or guaranty supplement, in form
and substance reasonably satisfactory to the Administrative Agent,
guaranteeing the Obligations of each Loan Party;
(B) cause each such Restricted Subsidiary that is a Foreign
Subsidiary of an Overseas Borrower to duly execute and deliver to
the Administrative Agent a guarantee or guaranty supplement, in form
and substance reasonably satisfactory to the Administrative Agent,
guaranteeing the obligations of such Overseas Borrower under the
Loan Documents and the Secured Hedge Agreements;
(C) cause each direct or indirect parent of such Restricted
Subsidiary (if it has not already done so) to duly execute and
deliver to the Administrative Agent a guaranty or guaranty
supplement, in form and substance reasonably satisfactory to the
Administrative Agent, guaranteeing the obligations of such
Restricted Subsidiary, if any, under the Loan Documents;
(D) cause each such Restricted Subsidiary to furnish to the
Administrative Agent a description of the real properties owned by
such Restricted Subsidiary in detail reasonably satisfactory to the
Administrative Agent;
(E) cause (x) each such Restricted Subsidiary that is required
to become a Guarantor pursuant to Section 6.12(a)(i)(A) or Section
6.12(a)(i)(B) to duly execute and deliver to the Administrative
Agent (as
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appropriate) Mortgages, Security Agreement Supplements, Intellectual
Property Security Agreements and other security agreements and
documents (including, with respect to Mortgages, the documents
listed in Section 6.14(b)), as specified by and in form and
substance reasonably satisfactory to the Administrative Agent
(consistent with the Mortgages, Security Agreement, Intellectual
Property Security Agreements and other security agreements in effect
on the Closing Date), granting a Lien in substantially all of the
real and personal property of such Restricted Subsidiary, in each
case securing the Obligations of such Restricted Subsidiary under
its Guaranty and (y) each direct or indirect parent of each
Restricted Subsidiary that is required to become a Guarantor
pursuant to Section 6.12(a)(i)(C) to duly execute and deliver to the
Administrative Agent such Security Agreement Supplements and other
security agreements as specified by and in form and substance
reasonably satisfactory to the Administrative Agent (consistent with
the Security Agreements in effect on the Closing Date) granting a
Lien on all of the outstanding Equity Interests issued by such
Restricted Subsidiary and held by such direct or indirect parent,
and all intercompany debt issued by such Restricted Subsidiary and
held by such direct or indirect parent, in each case securing the
Obligations of such Restricted Subsidiary under its Guaranty;
(F) (x) cause each such Restricted Subsidiary that is required
to become a Guarantor pursuant to Section 6.12(a)(i)(A) or Section
6.12(a)(i)(B) to deliver any and all certificates representing
Equity Interests owned by such Restricted Subsidiary accompanied by
undated stock powers or other appropriate instruments of transfer
executed in blank and instruments evidencing the intercompany debt
held by such Restricted Subsidiary, indorsed in blank to the
Administrative Agent and (y) cause each direct or indirect parent of
such Restricted Subsidiary that is required to provide a guaranty
pursuant to Section 6.12(a)(i)(C) to deliver any and all
certificates representing the outstanding Equity Interests of such
Restricted Subsidiary held by such direct or indirect parent,
accompanied by undated stock powers or other appropriate instruments
of transfer executed in blank and instruments evidencing the
intercompany debt issued by such Restricted Subsidiary and held by
such direct or indirect parent, indorsed in blank to the
Administrative Agent;
(G) take and cause such Restricted Subsidiary and each direct
or indirect parent of such Restricted Subsidiary to take whatever
action (including the recording of Mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices and the
endorsement of notices on title documents and delivery of stock and
membership interest certificates) may be necessary in the reasonable
opinion of the Administrative Agent to vest in the Administrative
Agent (or in any representative of the Administrative Agent
designated by it) valid and subsisting Liens on the properties
purported to be subject to the Mortgages, Security Agreement
Supplements, Intellectual Property
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Security Agreements and security agreements delivered pursuant to
this Section 6.12, enforceable against all third parties in
accordance with their terms,
(ii) within thirty (30) days after the request therefor by the
Administrative Agent, deliver to the Administrative Agent a signed copy of
an opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties reasonably acceptable to the
Administrative Agent as to such matters set forth in this Section 6.12(a)
as the Administrative Agent may reasonably request, and
(iii) as promptly as practicable after the request therefor by the
Administrative Agent, deliver to the Administrative Agent with respect to
each parcel of real property with a value in excess of $1,000,000 owned or
held by such Restricted Subsidiary that is the subject of such request,
title reports in scope, form and substance reasonably satisfactory to the
Administrative Agent and, surveys and environmental assessment reports.
(b) Upon the acquisition of (x) any personal property by any Loan Party or
(y) fee owned real property with a value in excess of $1,000,000 by any Loan
Party, and such personal property shall not already be subject to a perfected
Lien in favor of the Administrative Agent for the benefit of the Secured
Parties, the Company shall give notice thereof to the Administrative Agent and
shall, if requested by the Administrative Agent or the Required Lenders, cause
such assets to be subjected to a Lien securing such Loan Party's Obligations and
will take, or cause the relevant Loan Party to take, such actions as shall be
necessary or reasonably requested by the Administrative Agent to grant and
perfect or record such Lien, including, as applicable, the actions referred to
in Section 6.12(a)(i)(D), (E) and (G) with respect to personal property and
Section 6.14(b) with respect to real property.
(c) On or prior to the date of designation of any additional Overseas
Borrower in accordance with Section 2.14 or such later date (not more than
thirty (30) days later) as the Administrative Agent may agree in its discretion,
the Company shall, in each case at the Company's expense (A) cause each wholly
owned Restricted Subsidiary of such Overseas Borrower and each direct and
indirect parent of such Overseas Borrower to duly execute and deliver to the
Administrative Agent a guaranty or guaranty supplement in form and substance
reasonably satisfactory to the Administrative Agent, guaranteeing the
obligations of such Overseas Borrower under the Loan Documents, (B) cause such
Overseas Borrower, its wholly-owned Restricted Subsidiaries and, to the extent
that it has not already done so, each direct or indirect parent of the Overseas
Borrower, at the Company's expense, to execute, deliver, file and record any
documents, statements, assignment, instrument agreement or other paper and take
all other actions necessary in order to create a first priority perfected
security interest (to the extent possible under local law) in substantially all
of the assets (subject to exceptions and limitations consistent with those set
forth in the Collateral Documents as in effect on the Closing Date (to the
extent appropriate in the applicable jurisdiction)) of such Overseas Borrower
and each of its wholly-owned Restricted Subsidiaries and direct or indirect
parents securing their respective obligations under the Loan Documents, (C)
deliver to the Administrative Agent an opinion of counsel, addressed to the
Administrative Agent and the other Secured Parties, reasonably
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acceptable to the Administrative Agent addressing the matters set forth in
clause (B) above (if applicable) and such other matters as the Administrative
Agent may reasonably request and (D) deliver such other documents or
certificates evidencing matters referred to in Section 4.01(a)(v) and Section
4.01(a)(vi) as the Administrative Agent shall reasonably request.
(d) Notwithstanding anything to the contrary in this Agreement or any
Collateral Document, (x) the Administrative Agent shall not take a security
interest in those assets as to which the Administrative Agent shall determine,
in its reasonable discretion, that the cost of obtaining such Lien (including
any mortgage, stamp, intangibles or other tax) are excessive in relation to the
benefit to the Lenders of the security afforded thereby, (y) Liens required to
be granted pursuant to this Section 6.12 shall be subject to exceptions and
limitations consistent with those set forth in the Collateral Documents as in
effect on the Closing Date (to the extent appropriate in the applicable
jurisdiction) and (z) the Administrative Agent may grant extensions of time for
the execution of any Guaranty or the creation, pledge or perfection of security
interest with respect to particular assets (including extensions beyond any date
set forth in this Agreement or any Collateral Document) if it determines that
execution, creation, pledge or perfection cannot be accomplished without undue
effort or expense by the time or times at which it would otherwise be required
by this Agreement or the Collateral Documents.
(e) Notwithstanding anything to the contrary in this Agreement or any
Collateral Agreement, no Overseas Borrower or its direct or indirect parents
which are Foreign Subsidiaries or its Restricted Subsidiaries shall be required
to pledge its assets as collateral security for or guarantee payment of the
Obligations of such Overseas Borrower unless one of the following circumstances
has occurred:
(i) In the event that the aggregate amount of the Revolving Credit
Loans to and Unreimbursed Amounts in respect of Letters of Credit issued
for the account of Overseas Borrowers organized under the laws of a single
country or jurisdiction exceeds $12,000,000 for ten consecutive Business
Days, then each such Overseas Borrower organized under such country or
jurisdiction and its parents and Restricted Subsidiaries shall take the
actions to the extent required by this Agreement and the Collateral
Documents to pledge their respective assets as collateral security and
provide guarantees, notwithstanding that the aggregate amount of such
Loans and Unreimbursed Amounts may thereafter be less than $12,000,000.
(ii) In the event that the aggregate amount of the Revolving Credit
Loans to and Unreimbursed Amounts in respect of Letters of Credit issued
for the account of Overseas Borrowers which have not pledged their assets
as collateral security for the Obligations exceeds $25,000,000 for ten
consecutive Business Days, then each such Overseas Borrower and its
Restricted Subsidiaries and parents shall take the actions to the extent
required by this Agreement and the Collateral Documents to pledge their
assets as collateral security and provide guarantees, notwithstanding that
the aggregate amount of such Loans and Unreimbursed Amounts may thereafter
be less than $25,000,000.
(f) The Company has notified the Administrative Agent that it intends to
cause the Foreign Subsidiaries listed on Schedule 6.12(f) to be liquidated or
dissolved. Notwithstanding anything to the contrary in this Agreement or any
Collateral Documents, the Lenders agree that
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such Foreign Subsidiaries shall not be required to become guarantors or pledgors
or execute any Loan Documents pending such liquidation or dissolution and their
respective direct parents shall not be required to deliver certificates or other
instruments representing any of the Equity Interests in such Foreign Subsidiary;
provided, however, that if such dissolution or liquidation does not occur with
respect to any such Foreign Subsidiary on or prior to the date that is 120 days
after the Closing Date (as such time may be extended by the Administrative
Agent), such Foreign Subsidiary shall take any action required to be taken by it
pursuant to this Section 6.12 and otherwise by this Agreement within a
reasonable period of time after the abandonment of any such dissolution or
liquidation proceedings or by such time as the Administrative Agent shall in
good faith determine is a reasonable period of time for taking such actions.
(g) For the avoidance of doubt and notwithstanding anything to the
contrary in any Loan Document, (i) no Subsidiary that is not a Domestic
Subsidiary shall be obligated to guarantee the obligations of any Borrower other
than an Overseas Borrower (unless such Subsidiary is a guarantor of any Junior
Financing); (ii) (A) no assets of any Subsidiary that is not a Domestic
Subsidiary shall be required to be pledged to support obligations of Holdings,
the Company, or any Domestic Subsidiary of the Company (except to the extent
pledged to support obligations under any Junior Financing) and (B) no more than
65% of the stock entitled to vote (within the meaning of Section 956 of the Code
and Treasury Regulations 1.956-2(c)(2) or any successor provisions) of any
Subsidiary that is not a Domestic Subsidiary shall be required to be pledged by
Holdings, the Company or any Domestic Subsidiary of the Company to support
obligations of any Borrower (except to the extent pledged to support obligations
under any Junior Financing); and (iii) notwithstanding paragraph (a) or (c)
above, no pledge of the Equity Interests of a Foreign Subsidiary or guarantee or
grant of security interests in the assets of a Foreign Subsidiary shall be
required to the extent that such guarantee, grant or pledge could result in
materially adverse tax consequences or could otherwise violate applicable law
(as determined by the Administrative Agent acting reasonably and in good faith)
or where the Administrative Agent has determined that the costs of such
guarantee, grant or pledge is excessive in relation to the benefit to the
Lenders of the security to be afforded thereby.
(h) The Administrative Agent and the Lenders agree to enter into a
customary undertaking with the Israeli Office of the Chief Scientist if and when
the pledge of shares of Tecnomatix is foreclosed on by the Administrative Agent.
Section 6.13 Compliance with Environmental Laws. Except, in each case, to
the extent that the failure to do so could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, comply, and take
all reasonable actions to cause all lessees and other Persons operating or
occupying its properties to comply with all applicable Environmental Laws and
Environmental Permits; obtain and renew all Environmental Permits necessary for
its operations and properties; and, in each case to the extent required by
Environmental Laws, conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and
clean up all Hazardous Materials from any of its properties, in accordance with
the requirements of all Environmental Laws.
Section 6.14 Further Assurances and Post-Closing Conditions. (a) Promptly
upon reasonable request by the Administrative Agent, or any Lender through the
Administrative
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Agent, (i) correct any material defect or error that may be discovered in the
execution, acknowledgment, filing or recordation of any Loan Document or other
document or instrument relating to any Collateral, and (ii) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, certificates, assurances and other
instruments as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably require from time to time in order to carry
out more effectively the purposes of the Loan Documents.
(b) In the case of any real property referred to in Section 6.12(b),
provide the Administrative Agent with Mortgages with respect to such real
property within thirty (30) days of request by the Administrative Agent or
the Required Lenders, in each case together with:
(A) evidence that counterparts of the Mortgages have been duly
executed, acknowledged and delivered and are in form suitable for
filing or recording in all filing or recording offices that the
Administrative Agent may deem reasonably necessary or desirable in
order to create a valid and subsisting perfected Lien on the
property described therein in favor of the Administrative Agent for
the benefit of the Secured Parties and that all filing and recording
taxes and fees have been paid or otherwise provided for in a manner
reasonably satisfactory to the Administrative Agent;
(B) fully paid American Land Title Association Lender's
Extended Coverage title insurance policies or the equivalent or
other form available in each applicable jurisdiction (the "MORTGAGE
POLICIES") in form and substance, with endorsements and in amount,
reasonably acceptable to the Administrative Agent (not to exceed the
value of the real properties covered thereby), issued, coinsured and
reinsured by title insurers reasonably acceptable to the
Administrative Agent, insuring the Mortgages to be valid subsisting
Liens on the property described therein, free and clear of all
defects and encumbrances, subject to Liens permitted by Section
7.01, and providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents) and such
coinsurance and direct access reinsurance as the Administrative
Agent may deem reasonably necessary or desirable;
(C) American Land Title Association/American Congress on
Surveying and Mapping form surveys (to the extent available and
unless otherwise agreed by the Administrative Agent);
(D) opinions of local counsel for the Loan Parties in states
in which the real properties are located, with respect to the
enforceability and perfection of the Mortgages and any related
fixture filings in form and substance reasonably satisfactory to the
Administrative Agent; and
such other evidence that all other actions that the Administrative
Agent may deem necessary or desirable in order to create valid and
subsisting Liens on the property described in the Mortgages has been
taken.
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(c) Within 30 days (or such greater time as the Administrative Agent may
in its discretion approve) of the Closing Date (i) transfer or cause to have
been transferred to the Company all domain names listed on the Schedule IV to
the Security Agreement; and (ii) amend the schedules to the Security Agreement
and the Intellectual Property Security Agreements to (a) reflect the Company's
ownership of the IP Rights and (b) to allow for proper recordation with the U.S.
Patent and Trademark Office and the U.S. Copyright Office.
(d) Within 45 days after the Closing Date (or such greater time as the
Administrative Agent may in its discretion approve), provide to the
Administrative Agent a signed release and termination of (or other evidence
reasonably satisfactory to the Administrative Agent as to termination of) the
security interest of Silicon Valley Bank dated December 17, 1997 on the SHERPA
and SHERPAWORKS marks in a form reasonably acceptable to the Administrative
Agent.
(e) Within 10 Business Days after the Closing Date, (A) provide the
Administrative Agent with (i) foreign share pledge agreements concerning the
Pledged Equity of Restricted Subsidiaries incorporated or organized in the
United Kingdom, Ireland, Japan and Australia, and (ii) opinions of Irish, United
Kingdom, Australian and Japanese counsel, each addressed to each Agent and each
Lender, in the case of clauses (i) and (ii) each in form and substance
reasonably satisfactory to the Administrative Agent, and (B) deliver to the
Administrative Agent those promissory notes listed on Schedule II to the
Security Agreement that are marked as post-closing deliveries.
Section 6.15 Interest Rate Hedging. Enter into prior to ninety (90) days
following the Closing Date, and maintain at all times thereafter until the
second anniversary date of the Closing Date, protection against fluctuations in
interest rates pursuant to, as of such time, one or more interest rate Swap
Contracts with Persons (and in form and on terms) reasonably acceptable to the
Administrative Agent and providing coverage in a notional amount, together with
the amount of Funded Debt of Holdings, the Company and its Restricted
Subsidiaries on a consolidated basis that is bearing interest at a fixed rate,
at least equal to 30% of the aggregate amount of all Funded Debt of Holdings,
the Company and its Restricted Subsidiaries on a consolidated basis.
Section 6.16 Ownership of Overseas Borrowers. Each of the Overseas
Borrowers will, at all times, be a wholly owned Subsidiary of the Company.
Section 6.17 Designation of Subsidiaries. The board of directors of
Holdings may at any time designate any Restricted Subsidiary as an Unrestricted
Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided
that (i) immediately before and after such designation, no Default shall have
occurred and be continuing, (ii) immediately after giving effect to such
designation, Holdings and its Subsidiaries shall be in compliance, on a Pro
Forma Basis, with the covenants set forth in Section 7.11 (and, as a condition
precedent to the effectiveness of any such designation, the Company shall
deliver to the Administrative Agent a certificate setting forth in reasonable
detail the calculations demonstrating such compliance), (iii) no Subsidiary may
be designated as an Unrestricted Subsidiary if such Subsidiary is a Borrower and
(iv) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a
"Restricted Subsidiary" for the purpose of any Junior Financing. The designation
of any
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Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by
Holdings or the Company (as applicable) therein at the date of designation in an
amount equal to the net book value of Holdings' or the Company's (as applicable)
investment therein. The designation of any Unrestricted Subsidiary as a
Restricted Subsidiary shall constitute the incurrence at the time of designation
of any Indebtedness or Liens of such Subsidiary existing at such time.
ARTICLE 7
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, Holdings and the
Company shall not, nor shall they permit any of their Restricted Subsidiaries
to, directly or indirectly:
Section 7.01 Liens. Create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the Closing Date and listed on Schedule
7.01(b) and any modifications, replacements, renewals or extensions
thereof; provided that (i) the Lien does not extend to any additional
property other than (A) after-acquired property that is affixed or
incorporated into the property covered by such Lien or financed by
Indebtedness permitted under Section 7.03, and (B) proceeds and products
thereof, and (ii) the renewal, extension or refinancing of the obligations
secured or benefited by such Liens is permitted by Section 7.03;
(c) Liens for taxes, assessments or governmental charges which are
not overdue for a period of more than thirty (30) days or which are being
contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
(d) statutory Liens of landlords, carriers, warehousemen, mechanics,
materialmen, repairmen, construction contractors or other like Liens
arising in the ordinary course of business which secure amounts not
overdue for a period of more than thirty (30) days or if more than thirty
(30) days overdue, are unfiled and no other action has been taken to
enforce such Lien or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person;
(e) (i) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation and (ii) pledges and deposits in the ordinary
course of business securing liability for reimbursement or indemnification
obligations of (including obligations in respect of letters of credit or
bank guarantees for the benefit of) insurance carriers
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providing property, casualty or liability insurance to Holdings, the
Company or any of its Restricted Subsidiaries;
(f) deposits to secure the performance of bids, trade contracts,
governmental contracts and leases (other than Indebtedness for borrowed
money), statutory obligations, surety, stay, customs and appeal bonds,
performance bonds and other obligations of a like nature (including those
to secure health, safety and environmental obligations) incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions, encroachments,
protrusions and other similar encumbrances and minor title defects
affecting real property which, in the aggregate, do not in any case
materially interfere with the ordinary conduct of the business of the
applicable Person;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h);
(i) Liens securing Indebtedness permitted under Sections 7.03(b)(v)
and (b)(xv); provided that (i) such Liens attach concurrently with or
within two hundred and seventy (270) days after the acquisition, repair,
replacement, construction or improvement (as applicable) of the property
subject to such Liens, (ii) such Liens do not at any time encumber any
property except for accessions to such property other than the property
financed by such Indebtedness and the proceeds and the products thereof
and (iii) with respect to Capitalized Leases, such Liens do not at any
time extend to or cover any assets (except for accessions to such assets)
other than the assets subject to such Capitalized Leases; provided that
individual financings of equipment provided by one lender may be cross
collateralized to other financings of equipment provided by such lender;
(j) leases, licenses, subleases or sublicenses granted to others in
the ordinary course of business which do not (x) interfere in any material
respect with the business of the Company or any of its material Restricted
Subsidiaries or (y) secure any Indebtedness;
(k) 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 in the ordinary course of business;
(l) Liens (i) of a collection bank arising under Section 4-210 of
the Uniform Commercial Code on items in the course of collection, (ii)
attaching to commodity trading accounts or other commodities brokerage
accounts incurred in the ordinary course of business; and (iii) in favor
of a banking institution arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general
parameters customary in the banking industry;
(m) Liens (i) on cash advances in favor of the seller of any
property to be acquired in an Investment permitted pursuant to Sections
7.02(i) and (n) to be applied against the purchase price for such
Investment, and (ii) consisting of an agreement to
119
Dispose of any property in a Disposition permitted under Section 7.05, in
each case, solely to the extent such Investment or Disposition, as the
case may be, would have been permitted on the date of the creation of such
Lien;
(n) Liens on property of any Foreign Subsidiary that does not
constitute Collateral which liens secure Indebtedness of such Foreign
Subsidiary permitted under Section 7.03(b);
(o) Liens in favor of the Company or a Restricted Subsidiary of the
Company securing Indebtedness permitted under Section 7.03(b)(iv);
(p) Liens existing on property at the time of its acquisition or
existing on the property of any Person at the time such Person becomes a
Restricted Subsidiary, in each case after the date hereof (other than
Liens on the Equity Interests of any Person that becomes a Restricted
Subsidiary); provided that (i) such Lien was not created in contemplation
of such acquisition or such Person becoming a Restricted Subsidiary, (ii)
such Lien does not extend to or cover any other assets or property (other
than the proceeds or products thereof and other than after-acquired
property subjected to a Lien securing Indebtedness and other obligations
incurred prior to such time and which Indebtedness and other obligations
are permitted hereunder that require, pursuant to their terms at such
time, a pledge of after-acquired property, it being understood that such
requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition), and (iii)
the Indebtedness secured thereby is permitted under Section 7.03(b)(v),
(ix), or (xii);
(q) any interest of title of a lessor under Liens arising from
precautionary UCC financing statement filings regarding leases entered
into by the Company or any of its Restricted Subsidiaries in the ordinary
course of business;
(r) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of
business permitted by this Agreement;
(s) Liens deemed to exist in connection with Investments in
repurchase agreements under Section 7.02;
(t) Liens encumbering reasonable customary initial deposits and
margin deposits and similar Liens attaching to commodity trading accounts
or other brokerage accounts incurred in the ordinary course of business
and not for speculative purposes;
(u) Permitted Encumbrances;
(v) [Reserved.];
(w) other Liens securing Indebtedness outstanding in an aggregate
principal amount not to exceed $35,000,000;
(x) [Reserved.];
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(y) Liens that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection
with the issuance of Indebtedness, (ii) relating to pooled deposit or
sweep accounts of Holdings, the Company or any Restricted Subsidiary to
permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of Holdings, the Company and its Restricted
Subsidiaries or (iii) relating to purchase orders and other agreements
entered into with customers of Holdings, the Company or any Restricted
Subsidiary in the ordinary course of business; and
(z) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by
Holdings, the Company or any of its Restricted Subsidiaries in connection
with any letter of intent or purchase agreement permitted hereunder; and
(aa) consensual Liens in the Province of Quebec securing the payment
of rent and other amounts customarily owed to a landlord under leases for
real property in Quebec.
Notwithstanding the foregoing, no Liens on any IP Collateral shall be permitted
at any time, other than pursuant to Section 7.01(a), (b), (c), (h), (j), (m) and
(p).
Section 7.02 Investments. Make or hold any Investments, except:
(a) Investments by the Company or such Restricted Subsidiary in
assets that were Cash Equivalents when such Investment was made;
(b) loans or advances to officers, directors and employees of
Holdings, the Company and its Restricted Subsidiaries (i) in an aggregate
amount not to exceed $3,000,000 at any time outstanding, for
business-related travel, entertainment, relocation and analogous ordinary
business purposes, and (ii) in connection with such Person's purchase of
Equity Interests of Holdings in an aggregate amount not to exceed
$3,000,000;
(c) Investments (i) by Holdings, the Company or any of its
Restricted Subsidiaries in any Loan Party (including any new Restricted
Subsidiary which becomes a Loan Party but excluding any Foreign
Subsidiary), (ii) by any Restricted Subsidiary that is not a Loan Party in
any other such Restricted Subsidiary that is also not a Loan Party, (iii)
by Holdings or any other Loan Party in aggregate amount not to exceed
$75,000,000 at any time outstanding (or any further Investment of such
amount by any direct or indirect recipient of the original Investment) in
(x) any Foreign Subsidiary that is a Loan Party or (y) any Restricted
Subsidiary that is not a Loan Party, and (iv) by the Company or any
Restricted Subsidiary in any Foreign Subsidiary (A) to the extent utilized
to make a Permitted Acquisition or (B) consisting of the contribution of
Equity Interests of any other Foreign Subsidiary held directly by the
Company or such Restricted Subsidiary in exchange for Indebtedness, Equity
Interests or a combination thereof of the Foreign Subsidiary to which such
contribution is made or (C) the exchange of Equity Interests of any
Foreign Subsidiary for Indebtedness of such Foreign Subsidiary;
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(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled
account debtors and other credits to suppliers in the ordinary course of
business;
(e) Investments consisting of Liens, Indebtedness, fundamental
changes, Dispositions and Restricted Payments permitted under Sections
7.01, 7.03, 7.04, 7.05 and 7.06, respectively;
(f) Investments existing or contemplated on the Closing Date and set
forth on Schedule 7.02(f) and any modification, replacement, renewal or
extension thereof; provided that the amount of the original Investment is
not increased except by the terms of such Investment or as otherwise
permitted by this Section 7.02;
(g) Investments in Swap Contracts permitted under Section 7.03;
(h) promissory notes and other noncash consideration received in
connection with Dispositions permitted by Section 7.05;
(i) the purchase or other acquisition of property and assets or
business of any Person or of assets constituting a business unit, a line
of business or division of such Person, or Equity Interests in a Person
that, upon the consummation thereof, will be a wholly owned Subsidiary of
the Company (including, without limitation, as a result of a merger or
consolidation); provided that, with respect to each purchase or other
acquisition made pursuant to this Section 7.02(i) (each, a "PERMITTED
ACQUISITION"):
(A) each applicable Loan Party and any such newly
created or acquired Subsidiary shall, or will within the times
specified therein, have complied with the requirements of
Section 6.12;
(B) [Reserved.];
(C) (1) immediately before and immediately after giving
Pro Forma Effect to any such purchase or other acquisition, no
Default shall have occurred and be continuing and (2)
immediately after giving effect to such purchase or other
acquisition, Holdings, the Company and its Restricted
Subsidiaries shall be in Pro Forma Compliance with all of the
covenants set forth in Section 7.11, such compliance to be
determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lenders
pursuant to Section 6.01(a) or (b) as though such purchase or
other acquisition had been consummated as of the first day of
the fiscal period covered thereby and evidenced by a
certificate from the Chief Financial Officer of the Company
demonstrating such compliance calculation in reasonable
detail;
(D) the Company shall have delivered to the
Administrative Agent, on behalf of the Lenders, no later than
five (5) Business Days after the
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date on which any such purchase or other acquisition is
consummated, a certificate of a Responsible Officer, in form
and substance reasonably satisfactory to the Administrative
Agent, certifying that all of the requirements set forth in
this clause (i) have been satisfied or will be satisfied on or
prior to the consummation of such purchase or other
acquisition; and
(E) no proceeds of a Revolving Credit Borrowing may be
used to finance any such purchase or acquisition, unless after
giving effect thereto, there shall be at least $30,000,000 of
available and unused Revolving Credit Commitments remaining.
(j) the Transaction;
(k) Investments in the ordinary course of business consisting of
Article 3 endorsements for collection or deposit and Article 4 customary
trade arrangements with customers consistent with past practices;
(l) Investments (including debt obligations and Equity Interests)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business and upon the foreclosure with respect to any secured Investment
or other transfer of title with respect to any secured Investment;
(m) loans and advances to Holdings in lieu of, and not in excess of
the amount of (after giving effect to any other loans, advances or
Restricted Payments in respect thereof), Restricted Payments to the extent
permitted to be made to Holdings in accordance with Section 7.06;
(n) so long as immediately after giving effect to any such
Investment, no Default has occurred and is continuing, other Investments
that do not exceed $100,000,000 in the aggregate; provided that, such
amounts may be increased by the Net Cash Proceeds of Permitted Equity
Issuances which are Not Otherwise Applied;
(o) advances of payroll payments to employees in the ordinary course
of business;
(p) Guarantees by the Company or any Restricted Subsidiary of leases
(other than Capital Lease Obligations) or of other obligations that do not
constitute Indebtedness, in each case entered into in the ordinary course
of business;
(q) Investments consisting of the contribution of SolidEdge to a
Joint Venture or an Unrestricted Subsidiary or the designation of
SolidEdge as an Unrestricted Subsidiary in accordance with Section 6.17;
and
(r) the acquisition by the Company of all the Capital Stock of
Tecnomatix Technologies Ltd., an Israeli company, pursuant to the
Agreement of Merger, dated as of January 3, 2005, as amended ("TECNOMATIX
PURCHASE AGREEMENT"), among
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the Company, Treasure Acquisition Sub Ltd. and Tecnomatix Technologies
Ltd. (the "TECNOMATIX ACQUISITION").
Section 7.03 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) in the case of the Company:
(i) Indebtedness in respect of Swap Contracts designed to
hedge against fluctuations in interest rates, foreign exchange rates
or commodities pricing risks incurred in the ordinary course of
business and consistent with prudent business practice and not for
speculative purposes;
(ii) Permitted Subordinated Indebtedness (A) in an aggregate
amount not to exceed $50,000,000, and (B) in an aggregate amount in
excess of $50,000,000 solely to the extent that such excess amounts
are applied to prepay the Loans pursuant to Section 2.05(b)(iv),
provided that, notwithstanding the terms of this clause (ii)(B), up
to $200,000,000 of Permitted Subordinated Indebtedness in excess of
the amount set forth in clause (ii)(A) above may be utilized to
finance Permitted Acquisitions, so long as the Leverage Ratio of the
Company on a Pro Forma Basis as of the most recently ended fiscal
quarter shall be less than the lesser of (x) 5.0:1 and (y) the
applicable covenant level for such period set forth in Section
7.11(a), and (C) in connection with any Permitted Refinancing of any
of the foregoing Permitted Subordinated Indebtedness.
(b) in the case of the Company and its Restricted Subsidiaries:
(i) Indebtedness of the Company and any of its Subsidiaries
under the Loan Documents;
(ii) (A) Indebtedness outstanding on the Closing Date and
listed on Schedule 7.03(b) and any Permitted Refinancing thereof and
(B) Indebtedness of Tecnomatix and its Subsidiaries outstanding on
the Second Restatement Effective Date and listed on Schedule
7.03(b-1) and any Permitted Refinancing thereof;
(iii) Guarantees of each Borrower and its Restricted
Subsidiaries in respect of Indebtedness of such Borrower or such
Restricted Subsidiary otherwise permitted hereunder; provided that
(A) no Guarantee by any Restricted Subsidiary of any Indebtedness
constituting a Junior Financing shall be permitted unless such
Restricted Subsidiary shall have also provided a Guarantee of the
Obligations substantially on the terms set forth in the Subsidiary
Guarantee and (B) if the Indebtedness being Guaranteed is
subordinated to the Obligations, such Guarantee shall be
subordinated to the Guarantee of the Obligations on terms at least
as favorable to the Lenders as those contained in the subordination
of such Indebtedness;
(iv) Indebtedness of (A) any Loan Party (other than a Foreign
Subsidiary) owing to any other Loan Party (other than a Foreign
Subsidiary), (B)
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any Restricted Subsidiary (other than a Foreign Subsidiary) that is
not a Loan Party owing to (1) any other Restricted Subsidiary that
is not a Loan Party (other than a Foreign Subsidiary) or (2)
Holdings or a Loan Party in respect of an Investment permitted under
Section 7.02(c) or Section 7.02(n), (C) any Loan Party (other than a
Foreign Subsidiary) owing to any Restricted Subsidiary that is not a
Loan Party (other than a Foreign Subsidiary), (D) any Foreign
Subsidiary owing to any other Foreign Subsidiary and (E) any Foreign
Subsidiary or any Restricted Subsidiary that is not a Loan Party
owing to Holdings, the Company or any Restricted Subsidiary in
respect of an Investment permitted under Section 7.02(c)(iii) or
(iv); provided that, all such Indebtedness of any Loan Party owed to
any non-Loan Party as of the date of such incurrence of Indebtedness
in clause (iv)(C), (D) or (E) must be expressly subordinated to its
Obligations;
(v) (i) Attributable Indebtedness and purchase money
obligations (including obligations in respect of mortgage,
industrial revenue bond, industrial development bond, and similar
financings) to finance the purchase, repair or improvement of fixed
or capital assets within the limitations set forth in Section
7.01(i) and any Permitted Refinancing thereof; provided that the
aggregate amount of all such Indebtedness at any one time
outstanding shall not exceed $10,000,000; and (ii) Attributable
Indebtedness arising out of sale-leaseback transactions permitted by
Section 7.05(f) and any Permitted Refinancing thereof;
(vi) Indebtedness of Foreign Subsidiaries in an aggregate
principal amount at any time outstanding for all such Persons taken
together not exceeding $50,000,000;
(vii) Indebtedness in respect of Swap Contracts required by
Section 6.15, or in respect of Swap Contracts designed to hedge
against interest rates, foreign exchange rates or commodities
pricing risks incurred in the ordinary course of business and not
for speculative purposes;
(viii) Indebtedness (other than for borrowed money) subject to
Liens permitted under Section 7.01;
(ix) Indebtedness of the Company and its Restricted
Subsidiaries (A) assumed in connection with any Permitted
Acquisition; provided that such Indebtedness is not incurred in
contemplation of such Permitted Acquisition, or (B) owed to the
seller of any property acquired in a Permitted Acquisition on an
unsecured subordinated basis, which subordination shall be on terms
satisfactory to the Administrative Agent, in each case, so long as
both immediately prior and after giving effect thereto, (x) no
Default shall exist or result therefrom, and (y) Holdings, the
Company and its Restricted Subsidiaries will be in Pro Forma
Compliance with the covenants set forth in Section 7.11, after
giving effect to such Permitted Acquisition and the incurrence or
issuance of such Indebtedness and any Permitted Refinancing thereof;
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(x) Indebtedness representing deferred compensation to
employees of the Company and its Restricted Subsidiaries incurred in
the ordinary course of business;
(xi) Indebtedness consisting of promissory notes issued by any
Loan Party to current or former officers, directors and employees,
their respective estates, spouses or former spouses to finance the
purchase or redemption of Equity Interests of Holdings permitted by
Section 7.06;
(xii) Indebtedness incurred by the Company or its Restricted
Subsidiaries in a Permitted Acquisition or Disposition under
agreements providing for indemnification, the adjustment of the
purchase price or similar adjustments;
(xiii) Indebtedness consisting of obligations of the Company
or its Restricted Subsidiaries under deferred compensation or other
similar arrangements incurred by such Person in connection with the
Transaction and Permitted Acquisitions;
(xiv) Cash Management Obligations and other Indebtedness in
respect of netting services, overdraft protections and similar
arrangements in each case in connection with deposit accounts;
(xv) Indebtedness in an aggregate principal amount not to
exceed $75,000,000 at any time outstanding;
(xvi) [Reserved.];
(xvii) [Reserved.];
(xviii) Foreign Temporary Acquisition Notes;
(xix) Indebtedness consisting of (x) the financing of
insurance premiums or (y) take-or-pay obligations contained in
supply arrangements, in each case, in the ordinary course of
business;
(xx) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of
business, including without limitation letters of credit in respect
of workers compensation claims, health, disability or other employee
benefits or property, casualty or liability insurance or
self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers compensation
claims; provided that upon the drawing of such letters of credit or
the incurrence of such Indebtedness, such obligations are reimbursed
within 30 days following such drawing or incurrence;
(xxi) obligations in respect of performance and surety bonds
and performance and completion guarantees provided by the Company or
any of its \
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Restricted Subsidiaries or obligations in respect of letters of
credit related thereto, in each case in the ordinary course of
business or consistent with past practice;
(xxii) unsecured obligations described in the clause (i)(w) of
the last paragraph of the definition of "Consolidated Funded
Indebtedness;
(xxiii) all premiums (if any), interest (including
post-petition interest), fees, expenses, charges and additional or
contingent interest on obligations described in clauses (i) through
(xxii) above; and
(xxiv) post-closing adjustments of purchase price pursuant to
Sections 2.3, 2.4 and 2.5 of the Purchase Agreement.
(c) in the case of Holdings:
(i) Indebtedness under the Loan Documents;
(ii) [Reserved.];
(iii) unsecured Indebtedness of Holdings ("PERMITTED HOLDCO
DEBT") that (A) is not subject to any Guarantee by the Company or
any Restricted Subsidiary, (B) will not mature prior to the date
that is ninety-one (91) days after the Maturity Date of the Term
Loans, (C) has no scheduled amortization or payments of principal,
(D) does not permit any payments in cash of interest or other
amounts in respect of the principal thereof for at least five (5)
years from the date of the issuance or incurrence thereof, (E) has
mandatory prepayment, repurchase or redemption, covenant, default
and remedy provisions customary for senior discount notes of an
issuer that is the parent of a borrower under senior secured credit
facilities, and in any event, with respect to covenant, default and
remedy provisions, no more restrictive than those set forth in the
Description of the Senior Subordinated Notes taken as a whole (other
than provisions customary for senior discount notes of a holding
company), and (F) contains provisions with respect to paid-in-kind
interest which are reasonably satisfactory to the Administrative
Agent; provided that any such Indebtedness shall constitute
Permitted Holdco Debt only if (i) both before and after giving
effect to the issuance or incurrence thereof, no Default shall have
occurred and be continuing, (ii) after giving Pro Forma Effect to
the issuance or incurrence thereof, the Holdings Consolidated
Leverage Ratio shall be less than 5.25:1 and the Leverage Ratio
shall be less than 4.0:1, (iii) the Chief Financial Officer of
Holdings or the Company shall have delivered an officer's
certificate demonstrating Pro Forma Compliance with the covenants
set forth in Section 7.11 in form and substance reasonably
satisfactory to the Administrative Agent, it being understood that
any capitalized or paid-in-kind interest or accreted principal on
such Indebtedness shall not constitute an issuance or incurrence of
Indebtedness for purposes of this proviso;
(iv) [Reserved.];
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(v) [Reserved.];
(vi) [Reserved.];
(vii) Indebtedness owed to the seller of any property acquired
in a Permitted Acquisition on an unsecured subordinated basis, which
subordination shall be on terms reasonably satisfactory to the
Administrative Agent, so long as, if applicable, Holdings complies
with the proviso in Section 7.06(h)(v) (whether or not any
Restricted Payment is made to Holdings); and
(viii) Indebtedness of the type described in Section 7.03(b)
(xi) and (xii).
Section 7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate
with or into another Person, or Dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) any Borrower
(including a merger, the purpose of which is to reorganize such Borrower
into a new jurisdiction); provided that such Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Restricted
Subsidiaries; provided that when any Restricted Subsidiary that is a Loan
Party is merging with another Restricted Subsidiary, (A) a Loan Party
shall be the continuing or surviving Person or (B) to the extent
constituting an Investment, such Investment must be a permitted Investment
in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in
accordance with Sections 7.02(c) and 7.03(b)(iv);
(b) (i) any Subsidiary that is not a Loan Party may merge or
consolidate with or into any other Subsidiary that is not a Loan Party and
(ii) any Subsidiary (other than a Borrower) may liquidate or dissolve or
change its legal form if Holdings determines in good faith that such
action is in the best interests of Holdings and if not materially
disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially
all of its assets (upon voluntary liquidation or otherwise) to the Company
or to another Restricted Subsidiary; provided that if the transferor in
such a transaction is a Guarantor or a Borrower, then (i) the transferee
must either be a Borrower or a Guarantor or (ii) to the extent
constituting an Investment, such Investment must be a permitted Investment
in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in
accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, any
Restricted Subsidiary may merge with any other Person in order to effect
an Investment permitted pursuant to Section 7.02; provided that (i) the
continuing or surviving Person shall be a Restricted Subsidiary, which
together with each of its Restricted Subsidiaries, shall have complied
with the requirements of Section 6.12 or (ii) to the extent constituting
an Investment, such Investment must be a permitted Investment in
accordance with Section 7.02;
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(e) the Company and its Restricted Subsidiaries may consummate the
Acquisition; and
(f) so long as no Default exists or would result therefrom, a
merger, dissolution, liquidation, consolidation or Disposition, the
purpose of which is to effect a Disposition permitted pursuant to Section
7.05.
Section 7.05 Dispositions. Make any Disposition or enter into any
agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned
or hereafter acquired, in the ordinary course of business and Dispositions
of property no longer used or useful in the conduct of the business of the
Company and its Restricted Subsidiaries;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement
property or (ii) the proceeds of such Disposition are promptly applied to
the purchase price of such replacement property;
(d) Dispositions of property by any Restricted Subsidiary to the
Company or to a Restricted Subsidiary; provided that if the transferor of
such property is a Guarantor or a Borrower (i) the transferee thereof must
either be a Borrower or a Guarantor or (ii) to the extent such transaction
constitutes an Investment, such transaction is permitted under Section
7.02;
(e) Dispositions permitted by Sections 7.04 and 7.06 and Liens
permitted by Section 7.01;
(f) Dispositions by the Company and its Restricted Subsidiaries of
property (other than IP Collateral) pursuant to sale-leaseback
transactions; provided that (i) the fair market value of all property so
Disposed of shall not exceed $25,000,000 from and after the Closing Date
and (ii) the purchase price for such property shall be paid to the Company
or such Restricted Subsidiary for not less than 75% cash consideration;
(g) Dispositions of Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the
collection or compromise thereof;
(i) (A) leases, subleases, licenses or sublicenses, (B) sublicenses
of property (including the provision of Software under an open source
license), in each case in the ordinary course of business and which do not
materially interfere with the business of Holdings, the Company and its
Restricted Subsidiaries;
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(j) transfers of property subject to Casualty Events upon receipt of
the Net Cash Proceeds of such Casualty Event;
(k) Dispositions of property by the Company and its Restricted
Subsidiaries not otherwise permitted under this Section 7.05; provided
that (i) at the time of such Disposition, no Default shall exist or would
result from such Disposition, (ii) the aggregate book value of all
property Disposed of in reliance on this clause (k) shall not exceed
$50,000,000 and (iii) the purchase price for such property shall be paid
to the Company or such Restricted Subsidiary for not less than 75% cash
consideration;
(l) [Reserved.];
(m) Dispositions listed on Schedule 7.05(m);
(n) Dispositions of Investments in Joint Ventures, to the extent
required by, or made pursuant to buy/sell arrangements between, the joint
venture parties set forth in joint venture arrangements and similar
binding arrangements in effect on the Closing Date; and
(o) Dispositions of SolidEdge;
provided that any Disposition of any property pursuant to this Section 7.05
(except pursuant to Sections 7.05(d) and (e)), shall be for no less than the
fair market value of such property at the time of such Disposition. To the
extent any Collateral is Disposed of as expressly permitted by this Section 7.05
to any Person other than Holdings, the Company or any of its Restricted
Subsidiaries, such Collateral shall be sold free and clear of the Liens created
by the Loan Documents, and the Administrative Agent shall be authorized to take
any actions deemed appropriate in order to effect the foregoing.
Section 7.06 Restricted Payments. Declare or make, directly or indirectly,
any Restricted Payment, except:
(a) each Restricted Subsidiary may make Restricted Payments to the
Company and to Restricted Subsidiaries (and, in the case of a Restricted
Payment by a non-wholly owned Restricted Subsidiary, to the Company and
any Restricted Subsidiary and to each other owner of Equity Interests of
such Restricted Subsidiary based on their relative ownership interests);
(b) Holdings, the Company and each Restricted Subsidiary may declare
and make dividend payments or other distributions payable solely in the
Equity Interests (other than Disqualified Equity Interests) of such
Person;
(c) so long as no Default shall have occurred and be continuing or
would result therefrom, from and after a Qualifying IPO, (i) the Company
may make Restricted Payments to Holdings (or to its shareholders in the
case of a Qualifying IPO of the Company) in an aggregate amount not to
exceed $1,000,000 in any fiscal year of Holdings and (ii) in the case of
Restricted Payments to Holdings, Holdings may use the
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proceeds thereof to make Restricted Payments in an aggregate amount not to
exceed $1,000,000 in any fiscal year of Holdings;
(d) the Company and Holdings may make Restricted Payments made on
the Closing Date to consummate the Acquisition and the Transaction;
(e) to the extent constituting Restricted Payments, the Company and
its Restricted Subsidiaries may enter into transactions expressly
permitted by Section 7.04 or 7.08;
(f) repurchases of Equity Interests deemed to occur upon exercise of
stock options or warrants if such Equity Interests represent a portion of
the exercise price of such options or warrants;
(g) Holdings may pay (or make Restricted Payments to allow Midco or
the Parent to pay) for the repurchase, retirement or other acquisition or
retirement for value of common Equity Interests of the Parent or Midco
held by any future, present or former employee, director or consultant of
the Parent or any of its Subsidiaries pursuant to any management equity
plan or stock option plan or any other management or employee benefit plan
or agreement; provided that the aggregate amount of Restricted Payments
made under this clause (g) does not exceed in any calendar year
$10,000,000 (with unused amounts in any calendar year being permitted to
be carried over to the two (2) succeeding calendar years); and provided
further that such amount in any calendar year may be increased by an
amount not to exceed (A) the cash proceeds from the sale of Equity
Interests (other than Disqualified Equity Interests) to members of
management, directors or consultants of Parent or of its Subsidiaries that
occurs after the Closing Date plus (B) the amount of any cash bonuses
otherwise payable to members of management, directors or consultants of
the Parent or any of its Subsidiaries in connection with the Transaction
that are foregone in return for the receipt of Equity Interests of Midco
or the Parent pursuant to a deferred compensation plan of such
corporations plus (C) the cash proceeds of key man life insurance policies
received by Holdings, the Company or its Restricted Subsidiaries after the
Closing Date (provided that Holdings may elect to apply all or any portion
of the aggregate increase contemplated by clauses (A), (B) and (C) above
in any calendar year) less (D) the amount of any Restricted Payments
previously made pursuant to clauses (A), (B) and (C) of this clause (g);
(h) the Company and its Restricted Subsidiaries may make Restricted
Payments to Holdings (and Holdings may make Restricted Payments as
contemplated in subclauses (i) and (iv) below):
(i) the proceeds of which will be used by Holdings to pay (or
make Restricted Payments so that the Parent or Midco may pay) the
tax liability to each relevant jurisdiction in respect of
consolidated, combined, unitary or affiliated returns for the
relevant jurisdiction of the Parent, Midco and Holdings attributable
to Holdings, the Company or its Subsidiaries determined as if the
Company and its Subsidiaries filed separately;
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(ii) the proceeds of which shall be used by Holdings to pay
its, Parent's or Midco's operating expenses incurred in the ordinary
course of business and other corporate overhead costs and expenses
(including, without limitation, administrative, legal, accounting
and similar expenses provided by third parties), which are
reasonable and customary and incurred in the ordinary course of
business, in an aggregate amount not to exceed $3,000,000 in any
fiscal year plus any reasonable and customary indemnification claims
made by directors or officers of Parent, Midco or Holdings
attributable to the ownership or operations of the Company and its
Restricted Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay
franchise taxes and other fees, taxes and expenses required to
maintain its, the Parent's or Midco's corporate existence;
(iv) the proceeds of which will be used by Holdings to make
Restricted Payments permitted by clause (g);
(v) to finance any Investment permitted to be made pursuant to
Section 7.02; provided that (A) such Restricted Payment shall be
made substantially concurrently with the closing of such Investment
and (B) Holdings shall, immediately following the closing thereof,
cause (1) all property acquired (whether assets or Equity Interests)
to be contributed to the Company or its Restricted Subsidiaries or
(2) the merger (to the extent permitted in Section 7.04) of the
Person formed or acquired into the Company or its Restricted
Subsidiaries in order to consummate such Permitted Acquisition, in
each case, in accordance with the requirements of Section 6.12; and
(vi) the proceeds of which shall be used by Holdings to pay
fees and expenses (other than to Affiliates) related to any
unsuccessful equity or debt offering permitted by this Agreement;
(i) in addition to the foregoing Restricted Payments and so long as
no Default shall have occurred and be continuing or would result
therefrom, the Company may make additional Restricted Payments to Holdings
the proceeds of which may be utilized by Holdings to make additional
Restricted Payments, in an aggregate amount not to exceed 100% of
Cumulative Excess Cash Flow that is Not Otherwise Applied if the Leverage
Ratio as of the last day of the immediately preceding four fiscal quarters
(after giving Pro Forma Effect to such additional Restricted Payments) was
less than 3.75:1. For the purpose of this clause (i), "CUMULATIVE EXCESS
CASH FLOW" means the sum of Excess Cash Flow (but not less than zero in
any period) for the period commencing on the Closing Date and ending on
December 31, 2004 and Excess Cash Flow for each succeeding fiscal year
commencing with the fiscal year ended December 31, 2005 and ending on the
Company's most recently ended fiscal year;
(j) from and after a Qualifying IPO of the Company, the Company may
make the Restricted Payments referred to in clauses (g) and (i);
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(k) Holdings may make Restricted Payments with the proceeds of the
issuance of Permitted Holdco Debt; and
(l) so long as no Default shall have occurred and be continuing or
would result therefrom, Holdings, the Company and any Restricted
Subsidiary may make Restricted Payments with the SolidEdge Excess
Proceeds; provided, that, immediately after giving effect to such
Restricted Payments, the Leverage Ratio would not exceed 3.75 to 1.00.
Section 7.07 Change in Nature of Business. Engage in any material line of
business substantially different from those lines of business conducted by the
Company and its Restricted Subsidiaries on the Closing Date or any business
reasonably related or ancillary thereto.
Section 7.08 Transactions with Affiliates. Enter into any transaction of
any kind with any Affiliate of the Company, whether or not in the ordinary
course of business, other than (a) transactions among Loan Parties or any
Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as a
result of such transaction, (b) on fair and reasonable terms substantially as
favorable to the Company or such Restricted Subsidiary as would be obtainable by
the Company or such Restricted Subsidiary at the time in a comparable
arm's-length transaction with a Person other than an Affiliate, (c) the payment
of (A) fees and expenses related to the Transaction and (B) bonuses or the
issuance of equity to the management of the Company or any of its Subsidiaries
upon consummation of the Transaction in an aggregate amount not to exceed $4.0
million, (d) so long as no Event of Default shall have occurred and be
continuing under Section 8.01(f), the payment of management and monitoring fees
to the Sponsors pursuant to the Sponsor Management Agreement in an aggregate
amount in any fiscal year not to exceed $3,000,000 (plus any unpaid management
and monitoring fees within such amount accrued in any prior year) and Sponsor
Termination Fees not to exceed the amount set forth in Section 3 of the Sponsor
Management Agreement as in effect on the Closing Date and related indemnities
and reasonable expenses, (e) equity issuances, repurchases, retirement or other
acquisition or retirement of Equity Interests by Holdings permitted under
Section 7.06, (f) loans and other transactions by Holdings, the Company and its
Restricted Subsidiaries to the extent permitted under this Article 7, (g)
employment and severance arrangements between Holdings, the Company and its
Restricted Subsidiaries and their respective officers and employees in the
ordinary course of business, (h) payments by Holdings, the Company and its
Restricted Subsidiaries pursuant to the tax sharing agreements among the Parent,
Midco, Holdings, the Company and its Restricted Subsidiaries on customary terms
to the extent attributable to the ownership or operation of the Company and its
Restricted Subsidiaries, (i) the payment of customary fees and reasonable out of
pocket costs to, and indemnities provided on behalf of, directors, officers and
employees of Holdings, the Company, Midco, the Parent and the Restricted
Subsidiaries in the ordinary course of business to the extent attributable to
the ownership or operation of the Company and its Restricted Subsidiaries, (j)
transactions pursuant to permitted agreements in existence on the Closing Date
and set forth on Schedule 7.08 or any amendment thereto to the extent such an
amendment is not adverse to the Lenders in any material respect, (k) dividends,
redemptions and repurchases permitted under Section 7.06, and (l) payments by
the Company and any Restricted Subsidiaries to the Sponsors made for any
customary financial advisory, financing, underwriting or placement services or
in respect of other investment banking activities (including, without
limitation, in connection with
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acquisitions or divestitures), which payments are approved by the majority of
the members of the board of directors or a majority of the disinterested members
of the board of directors of the Company, in good faith.
Section 7.09 Burdensome Agreements. Enter into or permit to exist any
Contractual Obligation (other than this Agreement or any other Loan Document)
that limits the ability of (a) any Restricted Subsidiary of the Company to make
Restricted Payments to the Company or any Guarantor or to otherwise transfer
property to or invest in the Company or any Guarantor, or (b) the Company or any
Loan Party to create, incur, assume or suffer to exist Liens on property of such
Person for the benefit of the Lenders with respect to the Facilities and the
Obligations or under the Loan Documents; provided that the foregoing shall not
apply to Contractual Obligations which (i) (x) exist on the Closing Date and (to
the extent not otherwise permitted by this Section 7.09) are listed on Schedule
7.09 hereto and (y) to the extent Contractual Obligations permitted by clause
(x) are set forth in an agreement evidencing Indebtedness, are set forth in any
agreement evidencing any permitted renewal, extension or refinancing of such
Indebtedness so long as such renewal, extension or refinancing does not expand
the scope of such Contractual Obligation, (ii) are binding on a Restricted
Subsidiary at the time such Restricted Subsidiary first becomes a Restricted
Subsidiary of the Company, so long as such Contractual Obligations were not
entered into solely in contemplation of such Person becoming a Restricted
Subsidiary of the Company, (iii) represent Indebtedness of a Restricted
Subsidiary of the Company which is not a Loan Party which is permitted by
Section 7.03, (iv) arise in connection with any Disposition permitted by Section
7.05, (v) are customary provisions in joint venture agreements and other similar
agreements applicable to joint ventures permitted under Section 7.02 and
applicable solely to such joint venture entered into in the ordinary course of
business, (vi) are negative pledges and restrictions on Liens in favor of any
holder of Indebtedness permitted under Section 7.03 but solely to the extent any
negative pledge relates to the property financed by or the subject of such
Indebtedness (and excluding in any event any Indebtedness constituting any
Junior Financing), (vii) are customary restrictions on leases, subleases,
licenses or asset sale agreements otherwise permitted hereby so long as such
restrictions may relate to the assets subject thereto, (viii) comprise
restrictions imposed by any agreement relating to secured Indebtedness permitted
pursuant to Section 7.03(b)(v) to the extent that such restrictions apply only
to the property or assets securing such Indebtedness, (ix) are customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest, (x) are customary provisions restricting assignment of any
agreement entered into in the ordinary course of business, and (xi) restrictions
on cash or other deposits imposed by customers under contracts entered into in
the ordinary course of business.
Section 7.10 Use of Proceeds. Use the proceeds of any Credit Extension,
whether directly or indirectly, to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund Indebtedness
originally incurred for such purpose.
Section 7.11 Financial Covenants. (a) Leverage Ratio. Permit the Leverage
Ratio as of the end of any fiscal quarter of the Company (beginning with the
fiscal quarter ending September 30, 2004) set forth below to be greater than the
ratio set forth below opposite such period:
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Fiscal Year March 31 June 30 September 30 December 31
----------- -------- ------- ------------ -----------
2004 -- -- 6.25:1 6.25:1
2005 6.25:1 6.25:1 6.00:1 6.00:1
2006 5.75:1 5.75:1 5.50:1 5.25:1
2007 5.25:1 5.00:1 4.50:1 4.25:1
2008 4.25:1 4.00:1 3.75:1 3.50:1
2009 3.50:1 3.25:1 3.25:1 3.00:1
2010 3.00:1 2.75:1 2.75:1 2.50:1
2011 2.50:1 2.50:1 2.50:1 2.50:1
2012 2.50:1 -- -- --
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the
end of any fiscal quarter of the Company (beginning with the fiscal quarter
ending September 30, 2004) (as set forth below to be less than the ratio set
forth below opposite such fiscal quarter:
Fiscal Year March 31 June 30 September 30 December 31
----------- -------- ------- ------------ -----------
2004 -- -- 1.75:1 1.75:1
2005 1.75:1 1.75:1 1.85:1 1.85:1
2006 1.90:1 1.90:1 1.95:1 1.95:1
2007 2.10:1 2.10:1 2.35:1 2.35:1
2008 2.55:1 2.55:1 2.75:1 2.75:1
2009 2.85:1 2.85:1 2.95:1 2.95:1
2010 2.95:1 2.95:1 2.95:1 2.95:1
2011 2.95:1 2.95:1 2.95:1 2.95:1
2012 2.95:1 -- -- --
Section 7.12 Amendments of Organization Documents. Amend or waive any of
its Organization Documents in a manner materially adverse to the Administrative
Agent or the Lenders.
Section 7.13 Accounting Changes. Make any change in fiscal year.
Section 7.14 Prepayments, Etc of Indebtedness. (a) Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner (it being understood that payments of regularly scheduled interest
shall be permitted) the Senior Subordinated Notes or any Permitted Subordinated
Indebtedness (collectively, "JUNIOR FINANCING") or make any payment in violation
of any subordination terms of any Junior Financing Documentation, except (i) the
refinancing thereof with the Net Cash Proceeds of any Permitted Subordinated
Indebtedness (to the extent such Permitted Subordinated Indebtedness constitutes
a Permitted Refinancing), to the extent not required to prepay any Loans or
Facility pursuant to Section 2.05(b), or of any Permitted Holdco Debt or
Indebtedness of the Parent or Midco as long as such Indebtedness of the Parent
or Midco would constitute Permitted Holdco Debt if issued by Holdings (to the
extent such Permitted Holdco Debt or Indebtedness of the Parent or Midco
constitutes a Permitted Refinancing) or of any Permitted Equity Issuance, (ii)
the conversion of any Junior Financing to Equity Interests (other than
Disqualified Equity Interests) of Holdings or
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any of its direct or indirect parents; and (iii) the Company may prepay, redeem,
purchase, defease or otherwise satisfy the Senior Subordinated Notes as long as
(A) no Default or Event of Default exists, (B) the aggregate consideration
therefor does not exceed $50,000,000 and (C) no proceeds of a Revolving Credit
Borrowing are used to finance any such prepayment, redemption, purchase,
defeasance or satisfaction unless, after giving effect thereto, there shall be
at least $50,000,000 of available and unused Revolving Credit Commitments
remaining.
(b) amend, modify or change in any manner materially adverse to the
interests of the Administrative Agent or the Lenders any term or condition of
any Junior Financing Documentation without the consent of the Arrangers.
Section 7.15 Amendment of Transaction Documents. Amend, modify or
supplement the Transaction Documents or waive or otherwise consent to any change
or departure from any of the terms or conditions of the Transaction Documents in
any manner materially adverse to the interests of the Lenders without the
consent of the Arrangers and the Administrative Agent.
Section 7.16 Equity Interests of the Company and Restricted Subsidiaries.
(a) Permit any Domestic Subsidiary that is a Restricted Subsidiary to be a
non-wholly owned Subsidiary, except as a result of or in connection with a
dissolution, merger, consolidation or Disposition of a Restricted Subsidiary
permitted by Section 7.04, 7.05 or an Investment in any Person permitted under
Section 7.02; or
(b) Create, incur, assume or suffer to exist any Lien on any Equity
Interests of the Company (other than nonconsensual Liens arising solely by
operation of law to the extent permitted under Section 7.01).
Section 7.17 Holding Company. In the case of Holdings, (i) conduct,
transact or otherwise engage in any business or operations other than those
incidental to its ownership of the Equity Interests of the Company, the
performance of the Loan Documents, the Purchase Agreement and the other
agreements contemplated by the Purchase Agreement and any transactions that
Holdings is permitted to enter into or consummate under this Article 7 or (ii)
incur any Indebtedness other than Indebtedness permitted pursuant to Section
7.03(c).
Section 7.18 Designated Senior Debt. Designate any other Indebtedness
(other than under this Agreement and the other Loan Documents) of the Company or
its Restricted Subsidiaries as "Senior Indebtedness" or "Senior Secured
Financing" (or any comparable term) under, and as defined in, any Junior
Financing Documentation.
Section 7.19 Capital Expenditures.
(a) Make any Capital Expenditure except for Capital Expenditures not
exceeding, in the aggregate for the Company and its Restricted Subsidiaries
during each fiscal year set forth below, the amount set forth opposite such
fiscal year:
FISCAL YEAR AMOUNT
----------- ---------------
2004 $ 80,000,000.00
2005 $ 90,000,000.00
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FISCAL YEAR AMOUNT
----------- ---------------
2006 $ 90,000,000.00
2007 $ 95,000,000.00
2008 $ 95,000,000.00
2009 $100,000,000.00
2010 $100,000.000.00
2011 $105,000,000.00
(b) Notwithstanding anything to the contrary contained in clause (a)
above, to the extent that the aggregate amount of Capital Expenditures made by
the Company and the Restricted Subsidiaries in any fiscal year pursuant to
Section 7.19(a) is less than the amount set forth in such fiscal year, the
amount of such difference (the "ROLLOVER AMOUNT") may be carried forward and
used to make Capital Expenditures in the two succeeding fiscal years.
ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES
Section 8.01 Events of Default. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay
(i) when and as required to be paid herein, any amount of principal of any
Loan, or (ii) within five (5) Business Days after the same becomes due,
any interest on any Loan or any other amount payable hereunder or with
respect to any other Loan Document; or
(b) Specific Covenants. The Company fails to perform or observe any
term, covenant or agreement contained in any of Sections 6.03(a), 6.05(a)
(solely with respect to Holdings and the Company) or 6.11 or Article 7;
provided that any Event of Default under Section 7.11 is subject to cure
as contemplated by the last proviso set forth in the definition of
"Consolidated EBITDA"; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in Section 8.01(a) or (b)
above) contained in any Loan Document on its part to be performed or
observed and such failure continues for thirty (30) days after notice
thereof by the Administrative Agent to the Company; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the Company or any other Loan Party herein, in any other Loan Document, or
in any document required to be delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when
made or deemed made; or
(e) Cross-Default. Any Loan Party or any Restricted Subsidiary (A)
fails to make any payment beyond the applicable grace period with respect
thereto, if any (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness (other
than Indebtedness hereunder) having an
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aggregate principal amount of not less than the Threshold Amount, or (B)
fails to observe or perform any other agreement or condition relating to
any such Indebtedness, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior
to its stated maturity; provided that this clause (e)(B) 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, if such
sale or transfer is permitted hereunder and under the documents providing
for such Indebtedness; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Restricted Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator,
administrator, administrative receiver or similar officer for it or for
all or any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, administrator,
administrative receiver or similar officer is appointed without the
application or consent of such Person and (except in the case of a UK Loan
Party) the appointment continues undischarged or unstayed for sixty (60)
calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is
instituted without the consent of such Person and (x) except in the case
of a UK Loan Party, continues undismissed or unstayed for sixty (60)
calendar days, or an order for relief is entered in any such proceeding
and (y) in the case of a winding up petition relating to a UK Loan Party,
continues undismissed or unstayed for fourteen (14) calendar days from the
commencement or, if earlier and the UK Loan Party is not seeking the stay
or dismissal of such petition in good faith, until the day prior to any
substantive hearing; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any
Restricted Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is
not released, vacated or fully bonded within sixty (60) days after its
issue or levy; or
(h) Judgments. There is entered against any Loan Party or any
Restricted Subsidiary a final judgment or order for the payment of money
in an aggregate amount exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer has
been notified of such judgment or order and does not deny coverage) and
there is a period of sixty (60) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise,
is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan
or Multiemployer Plan which has resulted or could reasonably be expected
to result in
138
liability of any Loan Party under Title IV of ERISA in an aggregate amount
which could reasonably be expected to result in a Material Adverse Effect,
or (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under
a Multiemployer Plan in an aggregate amount which could reasonably be
expected to result in a Material Adverse Effect; or
(j) Invalidity of Loan Documents. Any material provision of any Loan
Document, at any time after its execution and delivery and for any reason
other than as expressly permitted hereunder or thereunder (including as a
result of a transaction permitted under Section 7.04 or 7.05) or
satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party contests in writing the validity or
enforceability of any provision of any Loan Document; or any Loan Party
denies in writing that it has any or further liability or obligation under
any Loan Document (other than as a result of repayment in full of the
Obligations and termination of the Aggregate Commitments), or purports in
writing to revoke or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Collateral Documents. (i) Any Collateral Document after delivery
thereof pursuant to Section 4.01 or 6.12 shall for any reason (other than
pursuant to the terms thereof including as a result of a transaction
permitted under Section 7.04 or 7.05) cease to create a valid and
perfected first priority lien (or other security purported to be created
on the applicable Collateral) on and security interest in the Collateral
covered thereby, subject to Liens permitted under Section 7.01 except to
the extent that any such loss of perfection or priority results from the
failure of the Administrative Agent to maintain possession of certificates
actually delivered to it representing securities pledged under the
Collateral Agreements or to file Uniform Commercial Code continuation
statements and except as to Collateral consisting of real property to the
extent that such losses are covered by a lender's title insurance policy
and the Administrative Agent shall be reasonably satisfied with the credit
of such insurer, or (ii) any of the Equity Interests of the Company
ceasing to be pledged pursuant to the Security Agreement free of Liens
other than Liens created by the Security Agreement; or
(m) Junior Financing Documentation. (i) Any of the Obligations of
the Loan Parties under the Loan Documents for any reason shall cease to be
"Senior Indebtedness" (or any comparable term) or "Senior Secured
Financing" (or any comparable term) under, and as defined in any Junior
Financing Documentation or (ii) the subordination provisions set forth in
any Junior Financing Documentation shall, in whole or in part, cease to be
effective or cease to be legally valid, binding and enforceable against
the holders of any Junior Financing, if applicable.
Section 8.02 Remedies Upon Event of Default. If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, take any or all of the following
actions:
139
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrowers;
(c) require that the Company Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable Law;
provided that upon the occurrence of an actual or deemed entry of an order for
relief with respect to the Company under the Bankruptcy Code of the United
States, the obligation of each Lender to make Loans and any obligation of the
L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case without further act of the
Administrative Agent or any Lender.
Section 8.03 Exclusion of Immaterial Subsidiaries. Solely for the purpose
of determining whether a Default has occurred under clause (f) or (g) of Section
8.01, any reference in any such clause to any Restricted Subsidiary or Loan
Party shall be deemed not to include any Subsidiary affected by any event or
circumstances referred to in any such clause that did not, as of the last day of
the most recent completed fiscal quarter of the Company, have assets with a
value in excess of 2% of the consolidated total assets of the Company and its
Subsidiaries or did not, as of the four quarter period ending on the last day of
such fiscal quarter, have revenues exceeding 2% of the total revenues of the
Company and its Subsidiaries (it being agreed that each Subsidiary affected by
any event or circumstance referred to in any such clause shall be considered to
be a single consolidated Subsidiary for purposes of determining whether the
condition specified above is satisfied).
Section 8.04 Application of Funds. After the exercise of remedies provided
for in Section 8.02 (or after the Loans have automatically become immediately
due and payable and the L/C Obligations have automatically been required to be
Cash Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs
payable under Section 10.04 and amounts payable under Article 3) payable
to the Administrative Agent in its capacity as such;
140
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs payable under Section
10.05 and amounts payable under Article 3), ratably among them in
proportion to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among
the Lenders in proportion to the respective amounts described in this
clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, the termination value
under Secured Hedge Obligations and, to the extent remaining unpaid after
application pursuant to clause Third above, the Cash Management
Obligations, ratably among the Lenders in proportion to the respective
amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C
Issuer, to Cash Collateralize that portion of L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit;
Sixth, to the payment of all other Obligations of the Loan Parties
that are due and payable to the Administrative Agent and the other Secured
Parties on such date, ratably based upon the respective aggregate amounts
of all such Obligations owing to the Administrative Agent and the other
Secured Parties on such date; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrowers or as otherwise required by
Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above and, if no
Obligations remain outstanding, to the Borrowers.
Notwithstanding anything to the contrary in this Agreement, amounts received
from any Foreign Subsidiary on account of the Obligations of any Foreign
Subsidiary shall be applied solely to the payment of Obligations of Foreign
Subsidiaries.
ARTICLE 9
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01 Appointment and Authorization of Agents. (a) Each Lender
hereby irrevocably appoints, designates and authorizes the Administrative Agent
to take such action on its behalf under the provisions of this Agreement and
each other Loan Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this
141
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall have no duties or responsibilities, except those expressly set forth
herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to any Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the
L/C Issuer shall have all of the benefits and immunities (i) provided to the
Agents in this Article 9 with respect to any acts taken or omissions suffered by
the L/C Issuer in connection with Letters of Credit issued by it or proposed to
be issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term "Agent" as used in
this Article 9 and in the definition of "Agent-Related Person" included the L/C
Issuer with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuer.
(c) The Administrative Agent shall also act as the "collateral agent"
under the Loan Documents, and each of the Lenders (in its capacities as a
Lender, Swing Line Lender (if applicable), L/C Issuer (if applicable) and a
potential Hedge Bank) hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of (and to hold any security interest
created by the Collateral Documents for and on behalf of or on trust for) such
Lender for purposes of acquiring, holding and enforcing any and all Liens on
Collateral granted by any of the Loan Parties to secure any of the Secured
Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as "collateral
agent" (and any co-agents, sub-agents and attorneys-in-fact appointed by the
Administrative Agent pursuant to Section 9.02 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the
Collateral Documents, or for exercising any rights and remedies thereunder at
the direction of the Administrative Agent), shall be entitled to the benefits of
all provisions of this Article 9 (including, without limitation, Section 9.07,
as though such co-agents, sub-agents and attorneys-in-fact were the "collateral
agent" under the Loan Documents) as if set forth in full herein with respect
thereto.
(d) Each Lender (acting for itself and on behalf of each of its Affiliates
which is or becomes a Secured Party from time to time) in its capacities as a
Lender, Swing Line Lender (if applicable), L/C Issuer (if applicable), Overdraft
Loan Facility Lender (if applicable) and a potential Hedge Bank, confirms the
appointment and designation of the Administrative Agent (or any successor
thereto) as the person holding the power of attorney ("FONDE DE POUVOIR") within
the meaning of Article 2692 of the Civil Code of Quebec for the purposes of the
hypothecary security under each deed of hypothec to be granted by any of the
Loan Parties under the laws of the Province of Quebec and, in such capacity, the
Administrative Agent shall hold the hypothecs granted under the laws of the
Province of Quebec as such fonde de pouvoir in the exercise of the
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rights conferred thereunder. The execution by the Administrative Agent, as such
fonde de pouvoir prior to the Closing Date of any deed creating or evidencing
any such hypothec is hereby ratified and confirmed. Notwithstanding the
provisions of Section 32 of the Act respecting the special powers of legal
persons (Quebec), the Administrative Agent may acquire and be the holder of any
of the debentures secured by any such hypothec. Each future Lender that becomes
party to this Agreement, by becoming a party to this Agreement, shall be deemed
to have ratified and confirmed (for itself and on behalf of each of its
Affiliates that is or becomes a Secured Party from time to time) the appointment
of the Administrative Agent as fonde de pouvoir.
Section 9.02 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document (including for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents or of exercising any rights and
remedies thereunder) by or through agents, employees or attorneys-in-fact
including for the purpose of any Borrowings or payments in Alternative
Currencies, such sub-agents as shall be deemed necessary by the Administrative
Agent and shall be entitled to advice of counsel and other consultants or
experts concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent or
sub-agent or attorney-in-fact that it selects in the absence of gross negligence
or willful misconduct.
Section 9.03 Liability of Agents. No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or the perfection or
priority of any Lien or security interest created or purported to be created
under the Collateral Documents, or for any failure of any Loan Party or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party or any Affiliate thereof.
Section 9.04 Reliance by Agents. (a) Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party), independent accountants and other experts selected by such
Agent. Each Agent shall be fully justified in failing or refusing to take any
action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so
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requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Each Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Required Lenders (or such greater number of Lenders as may be expressly required
hereby in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
Section 9.05 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Company referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to any Event of Default as may be directed by the
Required Lenders in accordance with Article 8; provided that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Event of Default as it shall deem
advisable or in the best interest of the Lenders.
Section 9.06 Credit Decision; Disclosure of Information by Agents. Each
Lender acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by any Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any Loan
Party or any Affiliate thereof, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender as to any matter,
including whether Agent-Related Persons have disclosed material information in
their possession. Each Lender represents to each Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties
and their respective Subsidiaries, and all applicable bank or other regulatory
Laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Company and the other
Loan Parties hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company and the other Loan Parties. Except for notices,
reports and
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other documents expressly required to be furnished to the Lenders by any Agent
herein, such Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person.
Section 9.07 Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand
each Agent-Related Person (to the extent not reimbursed by or on behalf of any
Loan Party and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such Agent-Related Person's own gross negligence or
willful misconduct; provided that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 9.07. In the case
of any investigation, litigation or proceeding giving rise to any Indemnified
Liabilities, this Section 9.07 applies whether any such investigation,
litigation or proceeding is brought by any Lender or any other Person. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Company. The undertaking in
this Section 9.07 shall survive termination of the Aggregate Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.
Section 9.08 Agents in their Individual Capacities. JPMorgan Chase Bank
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire Equity Interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with each of the Loan Parties and their respective Affiliates as though JPMorgan
Chase Bank were not the Administrative Agent or the L/C Issuer hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, JPMorgan Chase Bank or its Affiliates may receive
information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them. With respect to its Loans,
JPMorgan Chase Bank shall have the same rights and powers under this Agreement
as any other Lender and may exercise such rights and powers as though it were
not the Administrative Agent or the L/C Issuer, and the terms "Lender" and
"Lenders" include JPMorgan Chase Bank in its individual capacity. The provisions
of this Section 9.08 shall apply to the Lender acting as Overdraft Loan Facility
Lender, mutatis mutandis.
Section 9.09 Successor Agents. The Administrative Agent may resign as the
Administrative Agent upon thirty (30) days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a
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successor agent for the Lenders, which successor agent shall be consented to by
the Company at all times other than during the existence of an Event of Default
under Section 8.01(f) (which consent of the Company shall not be unreasonably
withheld or delayed). If no successor agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Lenders and the Company, a successor
agent from among the Lenders. Upon the acceptance of its appointment as
successor agent hereunder, the Person acting as such successor agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent," shall mean such successor
administrative agent and/or supplemental administrative agent, as the case may
be, and the retiring Administrative Agent's appointment, powers and duties as
the Administrative Agent shall be terminated. After the retiring Administrative
Agent's resignation hereunder as the Administrative Agent, the provisions of
this Article 9 and Sections 10.04 and 10.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement. If no successor agent has accepted appointment as the
Administrative Agent by the date which is thirty (30) days following the
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor and upon the execution and filing
or recording of such financing statements, or amendments thereto, and such
amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, the Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents. After the retiring Administrative Agent's resignation
hereunder as the Administrative Agent, the provisions of this Article 9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent.
Section 9.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial
proceeding; and
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(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the Agents
and their respective agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
Section 9.11 Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Administrative Agent:
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
(x) obligations under Secured Hedge Agreements, (y) Cash Management
Obligations not yet due and payable and (z) contingent indemnification
obligations not yet accrued and payable) and the expiration or termination
of all Letters of Credit, (ii) that is transferred or to be transferred as
part of or in connection with any transfer permitted hereunder or under
any other Loan Document to any Person other than Holdings, the Company or
any of its Domestic Subsidiaries that are Restricted Subsidiaries, (iii)
subject to Section 10.01, if approved, authorized or ratified in writing
by the Required Lenders, or (iv) owned by a Guarantor upon release of such
Guarantor from its obligations under its Guaranty pursuant to clause (c)
below;
(b) to release or subordinate any Lien on any property granted to or
held by the Administrative Agent under any Loan Document to the holder of
any Lien on such property that is permitted by Section 7.01(i); and
(c) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Restricted Subsidiary as a result of a
transaction or designation permitted hereunder; provided that no such
release shall occur if such Guarantor continues to be a guarantor in
respect of any Junior Financing.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release its
interest in particular types or items of property, or to release any Guarantor
from its obligations under the Guaranty pursuant to this Section 9.11. In each
case as specified in this Section 9.11, the Administrative Agent will, at the
Company's expense, execute and deliver to the applicable Loan Party such
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documents as such Loan Party may reasonably request to evidence the release of
such item of Collateral from the assignment and security interest granted under
the Collateral Documents, or to release such Guarantor from its obligations
under the Guaranty, in each case in accordance with the terms of the Loan
Documents and this Section 9.11.
Section 9.12 Other Agents; Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "co-documentation agent", "joint bookrunner,"
"arranger" or "joint lead arranger" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.
Section 9.13 Appointment of Supplemental Administrative Agents. (a) It is
the purpose of this Agreement and the other Loan Documents that there shall be
no violation of any Law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case the Administrative Agent
deems that by reason of any present or future Law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, the Administrative Agent is hereby authorized
to appoint an additional individual or institution selected by the
Administrative Agent in its sole discretion as a separate trustee, co-trustee,
administrative agent, collateral agent, administrative sub-agent or
administrative co-agent (any such additional individual or institution being
referred to herein individually as a "SUPPLEMENTAL ADMINISTRATIVE AGENT" and
collectively as "SUPPLEMENTAL ADMINISTRATIVE AGENTS").
(b) In the event that the Administrative Agent appoints a Supplemental
Administrative Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to the
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Administrative Agent to the extent, and only to the
extent, necessary to enable such Supplemental Administrative Agent to exercise
such rights, powers and privileges with respect to such Collateral and to
perform such duties with respect to such Collateral, and every covenant and
obligation contained in the Loan Documents and necessary to the exercise or
performance thereof by such Supplemental Administrative Agent shall run to and
be enforceable by either the Administrative Agent or such Supplemental
Administrative Agent, and (ii) the provisions of this Article 9 and of Section
9.07 (obligating the Company to pay the Administrative Agent's expenses and to
indemnify the Administrative Agent) that refer to the Administrative Agent shall
inure to the benefit of such Supplemental Administrative Agent and all
references therein to the Administrative Agent shall be deemed to be references
to the Administrative Agent and/or such Supplemental Administrative Agent, as
the context may require.
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(c) Should any instrument in writing from the Company, Holdings or any
other Loan Party be required by any Supplemental Administrative Agent so
appointed by the Administrative Agent for more fully and certainly vesting in
and confirming to him or it such rights, powers, privileges and duties, the
Company or Holdings, as applicable, shall, or shall cause such Loan Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
request by the Administrative Agent. In case any Supplemental Administrative
Agent, or a successor thereto, shall die, become incapable of acting, resign or
be removed, all the rights, powers, privileges and duties of such Supplemental
Administrative Agent, to the extent permitted by Law, shall vest in and be
exercised by the Administrative Agent until the appointment of a new
Supplemental Administrative Agent.
ARTICLE 10
MISCELLANEOUS
Section 10.01 Amendments, Etc. Except as otherwise set forth in this
Agreement, no amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Company or any other
Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Company or the applicable Loan Party, as the case may
be, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided that, no such
amendment, waiver or consent shall:
(a) extend or increase the Commitment of any Lender without the
written consent of each Lender directly affected thereby (it being
understood that a waiver of any condition precedent set forth in or the
waiver of any Default, mandatory prepayment or mandatory reduction of the
Commitments shall not constitute an extension or increase of any
Commitment of any Lender);
(b) postpone any date scheduled for any payment of principal or
interest under Section 2.07 or 2.08 without the written consent of each
Lender directly affected thereby, it being understood that the waiver of
any mandatory prepayment of the Term Loans shall not constitute a
postponement of any date scheduled for the payment of principal or
interest;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iii) of the
second proviso to this Section 10.01) any fees or other amounts payable
hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby, it being understood that any change
to the definition of Leverage Ratio or in the component definitions
thereof shall not constitute a reduction in the rate; provided that, only
the consent of the Required Lenders shall be necessary to amend the
definition of "Default Rate" or to waive any obligation of the Borrowers
to pay interest at the Default Rate;
(d) change any provision of this Section 10.01, the definition of
"Required Lenders" or Section 2.06(c) without the written consent of each
Lender;
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(e) other than in a transaction permitted under Section 7.05,
release all or substantially all of the Collateral in any transaction or
series of related transactions, without the written consent of each
Lender; or
(f) other than in connection with a transaction permitted under
Section 7.04 or 7.05, release all or substantially all of the value of the
Guaranty, without the written consent of each Lender;
and provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of, or any fees or other amounts payable to, the Administrative
Agent under this Agreement or any other Loan Document; (iv) Section 10.07(h) may
not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at the
time of such amendment, waiver or other modification; and (v) the Administrative
Agent Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender (it being understood that any Commitments or Loans held or deemed
held by any Defaulting Lender shall be excluded for a vote of the Lenders
hereunder requiring any consent of the Lenders).
Notwithstanding the foregoing, this Agreement may be amended (or amended
and restated) with the written consent of the Required Lenders, the
Administrative Agent, Holdings and the Borrowers (a) to add one or more
additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Term Loans and the Revolving Credit Loans and
the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination of
the Required Lenders.
In addition, notwithstanding the foregoing, this Agreement may be amended
with the written consent of the Administrative Agent, Holdings, the Borrowers
and the Lenders providing the relevant Replacement Term Loans (as defined below)
to permit the refinancing of all outstanding Term Loans ("REFINANCED TERM
LOANS") with a replacement term loan tranche hereunder ("REPLACEMENT TERM
LOANS"); provided that (a) the aggregate principal amount of such Replacement
Term Loans shall not exceed the aggregate principal amount of such Refinanced
Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not
be higher than the Applicable Margin for such Refinanced Term Loans, (c) the
Weighted Average Life to Maturity of such Replacement Term Loans shall not be
shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans
at the time of such
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refinancing (except to the extent of nominal amortization for periods where
amortization has been eliminated as a result of prepayment of the Term Loans)
and (d) all other terms applicable to such Replacement Term Loans shall be
substantially identical to, or less favorable to the Lenders providing such
Replacement Term Loans than, those applicable to such Refinanced Term Loans,
except to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the Term Loans in
effect immediately prior to such refinancing.
Notwithstanding anything to the contrary contained in Section 10.01, if
the Borrowers request that this Agreement be modified or amended in a manner
that would require the unanimous consent of all of the Lenders and such
modification or amendment is agreed to by the Super-Majority Lenders (as
hereinafter defined), then with the consent of the Borrowers and the
Super-Majority Lenders, the Borrowers and the Super-Majority Lenders shall be
permitted to amend the Agreement without the consent of the Lender or Lenders
that did not agree to the modification or amendment requested by the Borrowers
(such Lender or Lenders, collectively the "MINORITY Lenders") to provide for (w)
the termination of the Commitment of each of the Minority Lenders, (x) the
addition to this Agreement of one or more other financial institutions (each of
which shall be an Eligible Assignee), or an increase in the Commitment of one or
more of the Super-Majority Lenders (with the written consent thereof), so that
the total Commitment after giving effect to such amendment shall be in the same
amount as the total Commitment immediately before giving effect to such
amendment, (y) if any Loans are outstanding at the time of such amendment, the
making of such additional Loans by such new financial institutions or
Super-Majority Lender or Lenders, as the case may be, as may be necessary to
repay in full, at par, the outstanding Loans of the Minority Lenders immediately
before giving effect to such amendment and (z) such other modifications to this
Agreement as may be appropriate to effect the foregoing clauses (w), (x) and
(y). As used herein, the term "SUPER-MAJORITY LENDERS" shall have the same
meaning as "Required Lenders" except that the phrase "50%" set forth therein
shall be replaced by the phrase "66-2/3%".
Notwithstanding anything to the contrary contained in Section 10.01, the
terms of the Overdraft Loan Facility may be amended and waived with the consent
of the Administrative Agent, the Overdraft Loan Facility Lender and the Company
without the need to obtain the consent of any other Lender provided that the
consent of the Majority Revolving Credit Lenders shall be required for (i) any
amendment or waiver to the Overdraft Loan Facility which reduces the interest
rate on Overdraft Facility Loans to interest rates lower than those provided for
Base Rate Loans set forth in this Agreement or (ii) any amendment or waiver to
the Overdraft Loan Facility after the Overdraft Participation Date.
Notwithstanding anything to the contrary contained in Section 10.01,
guarantees, collateral security documents and related documents executed by
Foreign Subsidiaries in connection with this Agreement may be in a form
reasonably determined by the Administrative Agent and may be, together with this
Agreement, amended and waived with the consent of the Administrative Agent at
the request of the Company without the need to obtain the consent of any other
Lender if such amendment or waiver is delivered in order (i) to comply with
local law or advice of local counsel, (ii) to cure ambiguities or defects or
(iii) to cause such guarantee, collateral security document or other document to
be consistent with this Agreement and the other Loan Documents.
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Section 10.02 Notices and Other Communications; Facsimile Copies. (a)
General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder or any other Loan Document shall be in
writing (including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered to the applicable address, facsimile number or
(subject to Section 10.02(c)) electronic mail address, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:
(i) if to any Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, facsimile number, electronic mail
address or telephone number specified for such Person on Schedule 10.02 or
to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to the
other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such
party in a notice to the Company, the Administrative Agent, the L/C Issuer
and the Swing Line Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four (4) Business Days
after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of Section
10.02(c)), when delivered; provided that notices and other communications to the
Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to
Article 2 shall not be effective until actually received by such Person. In no
event shall a voice mail message be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually signed originals and shall be binding on all Loan
Parties, the Agents and the Lenders. The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually signed
original thereof; provided that the failure to request or deliver the same shall
not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 6.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Agents and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of any Borrower even if (i) such
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notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrowers shall indemnify each Agent-Related Person and each Lender
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the Borrowers in
the absence of gross negligence or willful misconduct. All telephonic notices to
the Administrative Agent may be recorded by the Administrative Agent, and each
of the parties hereto hereby consents to such recording.
(e) Designation by Overseas Borrowers. Each Overseas Borrower hereby
designates the Company as its representative and agent on its behalf for the
purposes of giving and receiving all notices (other than Borrowing Requests and
requests for the issuance of Letters of Credit pursuant to Section 2.03) and any
other documentation required to be delivered to it pursuant to this Agreement
and any other Loan Document by the Administrative Agent or any Lender. The
Company hereby accepts such appointment. The Agents and the Lenders may regard
any notice (other than Borrowing Requests and requests for the issuance of
Letters of Credit pursuant to Section 2.03) or other communication pursuant to
any Loan Document from the Company as a notice or communication from all
Borrowers, and may give any notice or communication required or permitted to be
given to any Overseas Borrower or Overseas Borrowers hereunder to the Company on
behalf of such Overseas Borrower or Overseas Borrowers. Each Overseas Borrower
agrees that each notice, election, representation and warranty, covenant,
agreement and undertaking made on its behalf by the Company shall be deemed for
all purposes to have been made by such Overseas Borrower and shall be binding
upon and enforceable against such Overseas Borrower to the same extent as if the
same had been made directly by such Overseas Borrower.
Section 10.03 No Waiver; Cumulative Remedies. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder or under any other
Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and
provided under each other Loan Document, are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by Law.
Section 10.04 Attorney Costs, Expenses and Taxes. The Company agrees (a)
to pay or reimburse the Administrative Agent, the Syndication Agent, the
Co-Documentation Agents and the Arrangers for all reasonable out-of-pocket costs
and expenses incurred in connection with the preparation, negotiation,
syndication and execution of this Agreement and the other Loan Documents, and
any amendment, waiver, consent or other modification of the provisions hereof
and thereof (whether or not the transactions contemplated thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, and (b) to pay or reimburse the Administrative Agent, the
Syndication Agent, the Co-Documentation Agents, the Arrangers and each Lender
for all out-of-pocket costs and expenses incurred in connection with the
enforcement of any rights or remedies under this Agreement or the other Loan
Documents (including, without limitation, all such costs and expenses incurred
during any legal proceeding,
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including any proceeding under any Debtor Relief Law, and including all Attorney
Costs of counsel to the Administrative Agent). The foregoing costs and expenses
shall include all search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other (reasonable, in the case
of Section 10.04(a)) out-of-pocket expenses incurred by any Agent. All amounts
due under this Section 10.04 shall be paid promptly. The agreements in this
Section 10.04 shall survive the termination of the Aggregate Commitments and
repayment of all other Obligations. If any Loan Party fails to pay when due any
costs, expenses or other amounts payable by it hereunder or under any Loan
Document, such amount may be paid on behalf of such Loan Party by the
Administrative Agent or any Lender, in its sole discretion.
Section 10.05 Indemnification by the Company. Whether or not the
transactions contemplated hereby are consummated, the Company shall indemnify
and hold harmless each Agent-Related Person, each Lender (including the
Overdraft Loan Facility Lender) and their respective Affiliates, directors,
officers, employees, counsel, agents and attorneys-in-fact (collectively the
"INDEMNITEES") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by
the L/C Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), or (c) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Company, any Subsidiary or any other Loan Party, or any
Environmental Liability related in any way to the Company, any Subsidiary or any
other Loan Party, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "INDEMNIFIED LIABILITIES"), in all cases, whether
or not caused by or arising, in whole or in part, out of the negligence of the
Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements resulted from the gross negligence or willful misconduct of such
Indemnitee as determined by a final judgment of a court of competent
jurisdiction. No Indemnitee shall be liable for any damages arising from the use
by others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this
Agreement, nor shall any Indemnitee or any Loan Party have any liability for any
special, punitive, indirect or consequential damages relating to this Agreement
or any other Loan Document or arising out of its activities in connection
herewith or therewith (whether before or after the Closing Date). In the case of
an investigation, litigation or other proceeding to which the indemnity in this
Section 10.05 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnitee or any other Person,
whether or not any Indemnitee is otherwise a party thereto and whether or
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not any of the transactions contemplated hereunder or under any of the other
Loan Documents is consummated. All amounts due under this Section 10.05 shall be
paid within ten Business Days after demand therefor; provided, however, that
such Indemnitee shall promptly refund such amount to the extent that there is a
final judicial or arbitral determination that such Indemnitee was not entitled
to indemnification or contribution rights with respect to such payment pursuant
to the express terms of this Section 10.05. The agreements in this Section 10.05
shall survive the resignation of the Administrative Agent, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
Section 10.06 Payments Set Aside. To the extent that any payment by or on
behalf of the Company is made to any Agent or any Lender, or any Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by such Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by any Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the applicable Overnight Rate from time to time in effect.
Section 10.07 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, except that neither Holdings
nor any Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee, (ii) by way of participation in
accordance with the provisions of Section 10.07(e), (iii) by way of pledge or
assignment of a security interest subject to the restrictions of Section
10.07(g) or (iv) to an SPC in accordance with the provisions of Section 10.07(h)
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in Section 10.07(e) and, to the extent expressly contemplated hereby,
the Indemnitees) 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 ("Assignees") all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans (including for purposes of this Section 10.07(b),
participations in L/C Obligations, in Swing Line Loans and in Overdraft Facility
Loans) at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of:
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(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 Assignee;
(B) the Administrative Agent, provided that no consent
of the Administrative Agent shall be required for an
assignment (i) of all or any portion of a Term Loan to a
Lender, an Affiliate of a Lender or an Approved Fund or (ii)
to an Agent or an Affiliate of an Agent; and
(C) the L/C Issuer, provided that no consent of the L/C
Issuer shall be required for any assignment of a Term Loan or
any assignment to an Agent or an Affiliate of an Agent.
(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 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 (in the case of each
Revolving Credit Facility), or $1,000,000 (in the case of a
Term Loan) unless each of the Company and the Administrative
Agent otherwise consent, provided that (1) no such consent of
the Company shall be required if an Event of Default under
Section 8.01(a) or (f) has occurred and is continuing and (2)
such amounts shall be aggregated in respect of each Lender and
its Affiliates or Approved Funds, if any;
(B) 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; provided that only one such $3,500 fee shall be paid
in respect of all assignments to a Lender or its Affiliates on
any single day by a single Approved Fund and its Affiliates;
and
(C) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an administrative
questionnaire in the form requested by the Administrative
Agent.
This paragraph (b) shall not prohibit any Lender from assigning all or a
portion of its rights and obligations among separate Facilities on a non-pro
rata basis.
(c) Subject to acceptance and recording thereof by the Administrative
Agent pursuant to Section 10.07(d), from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and
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obligations of a Lender 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 3.01,
3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Upon request, and the surrender
by the assigning Lender of its Note, the relevant Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this clause (c) 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 Section 10.07(e).
(d) The Administrative Agent, acting solely for this purpose as an agent
of the Borrowers, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts (and related interest amounts) of the Loans, L/C
Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts
due under Section 2.03, owing to, each Lender pursuant to the terms hereof from
time to time (the "REGISTER"). The entries in the Register shall be conclusive,
absent manifest error, and the Borrowers, the Agents and the Lenders shall 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 any Borrower,
any Agent and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Any Lender may at any time, without the consent of, or notice to, the
Borrowers or the Administrative Agent, sell participations to any Person (other
than a natural person) (each, a "PARTICIPANT") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Agents 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 this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or the
other 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, waiver or other modification described in the first proviso to
Section 10.01 that directly affects such Participant. Subject to Section
10.07(f), the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 10.07(c)
but shall not be entitled to recover greater amounts under such Sections than
the selling Lender would be entitled to recover. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.09 as
though it were a Lender; provided that such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
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(f) A Participant shall not be entitled to receive any greater payment
under Section 3.01, 3.04 or 3.05 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
relevant Borrower's prior written consent. A Participant shall not be entitled
to the benefits of Section 3.01 unless the relevant Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the relevant Borrower, to comply with Section 10.15 as though it were
a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Note, if
any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained herein, any Lender
(a "GRANTING LENDER") may grant to a special purpose funding vehicle identified
as such in writing from time to time by the Granting Lender to the
Administrative Agent and the relevant Borrower (an "SPC") the option to provide
all or any part of any Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC
elects not to exercise such option or otherwise fails to make all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof. Each party hereto hereby agrees that (i) neither the grant to
any SPC nor the exercise by any SPC of such option shall increase the costs or
expenses or otherwise increase or change the obligations of the relevant
Borrower under this Agreement (including its obligations under Section 3.01,
3.04 or 3.05), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii)
the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the relevant Borrower and the Administrative Agent and with the
payment of a processing fee of $3,500, assign all or any portion of its right to
receive payment with respect to any Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of
any surety or Guarantee or credit or liquidity enhancement to such SPC.
(i) Notwithstanding anything to the contrary contained herein, (1) any
Lender may in accordance with applicable law create a security interest in all
or any portion of the Loans owing to it and the Note, if any, held by it and (2)
any Lender that is a Fund may create a security interest in all or any portion
of the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities; provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 10.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall
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not be entitled to exercise any of the rights of a Lender under the Loan
Documents even though such trustee may have acquired ownership rights with
respect to the pledged interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein, JPMorgan
Chase Bank may, upon thirty (30) days' notice to the Company and the Lenders,
resign as L/C Issuer and/or Swing Line Lender; provided that on or prior to the
expiration of such 30-day period with respect to JPMorgan Chase Bank's
resignation as L/C Issuer, JPMorgan Chase Bank shall have identified a successor
L/C Issuer reasonably acceptable to the Company willing to accept its
appointment as successor L/C Issuer. In the event of any such resignation as L/C
Issuer or Swing Line Lender, the Company shall be entitled to appoint from among
the Lenders willing to accept such appointment a successor L/C Issuer or Swing
Line Lender hereunder; provided that no failure by the Company to appoint any
such successor shall affect the resignation of JPMorgan Chase Bank as L/C Issuer
or Swing Line Lender, as the case may be, except as expressly provided above. If
JPMorgan Chase Bank resigns as L/C Issuer, it shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). If JPMorgan Chase Bank resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c).
Section 10.08 Confidentiality. Each of the Agents and the Lenders agrees
to maintain the confidentiality of the Information, except that Information may
be disclosed (a) to its 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); (b) to the extent requested by any regulatory authority; (c) to
the extent required by applicable Laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) subject to
an agreement containing provisions substantially the same as those of this
Section 10.08 (or as may otherwise be reasonably acceptable to the Company), to
any Eligible Assignee of or Participant in, or any prospective Eligible Assignee
of or Participant in, any of its rights or obligations under this Agreement; (f)
with the written consent of the Company; (g) to the extent such Information
becomes publicly available other than as a result of a breach of this Section
10.08; (h) to any state, Federal or foreign authority or examiner (including the
National Association of Insurance Commissioners or any other similar
organization) regulating any Lender; or (i) to any rating agency when required
by it (it being understood that, prior to any such disclosure, such rating
agency shall undertake to preserve the confidentiality of any Information
relating to the Loan Parties received by it from such Lender). In addition, the
Agents and the Lenders may disclose the existence of this Agreement and
information about this Agreement to market data collectors, similar service
providers to the lending industry, and service providers to the Agents and the
Lenders in connection with the administration and management of this Agreement,
the other Loan Documents, the Commitments, and the Credit Extensions. For the
purposes of this Section 10.08, "INFORMATION" means all information received
from any Loan Party relating to any Loan Party
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or its business, other than any such information that is publicly available to
any Agent or any Lender prior to disclosure by any Loan Party other than as a
result of a breach of this Section 10.08; provided that, in the case of
information received from a Loan Party after the date hereof, such information
is clearly identified at the time of delivery as confidential or (ii) is
delivered pursuant to Section 6.01, 6.02 or 6.03 hereof.
Section 10.09 Setoff. In addition to any rights and remedies of the
Lenders provided by Law, upon the occurrence and during the continuance of any
Event of Default, each Lender and its Affiliates is authorized at any time and
from time to time, without prior notice to the Company or any other Loan Party,
any such notice being waived by the Company (on its own behalf and on behalf of
each Loan Party and its Subsidiaries) 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 by, and other Indebtedness at any time
owing by, such Lender and its Affiliates to or for the credit or the account of
the respective Loan Parties and their Subsidiaries against any and all
Obligations owing to such Lender and its Affiliates hereunder or under any other
Loan Document, now or hereafter existing, irrespective of whether or not such
Agent or such Lender or Affiliate shall have made demand under this Agreement or
any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or Indebtedness; provided that, in the case of any such deposits or
other Indebtedness for the credit or the account of any Foreign Subsidiary, such
set off may only be against any Obligations of Foreign Subsidiaries. Each Lender
agrees promptly to notify the Company and the Administrative Agent after any
such set off and application made by such Lender; provided, that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of the Administrative Agent and each Lender under this Section 10.09
are in addition to other rights and remedies (including, without limitation,
other rights of setoff) that the Administrative Agent and such Lender may have.
Notwithstanding anything herein or in any other Loan Document to the contrary,
in no event shall the assets of any Foreign Subsidiary that is not a Loan Party
constitute collateral security for payment of the Obligations of the Company or
any Domestic Subsidiary, it being understood that (a) the Equity Interests of
any Foreign Subsidiary that is not a Loan Party do not constitute such an asset
and (b) the provisions hereof shall not limit, reduce or otherwise diminish in
any respect the Borrowers' obligations to make any mandatory prepayment pursuant
to Section 2.05(b)(ii), it being understood that the foregoing provisions of
this sentence shall not limit any rights or remedies which any Lender or its
Affiliates may have with respect to the Overdraft Loan Facility.
Section 10.10 Interest Rate Limitation. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "MAXIMUM RATE"). If any Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrowers. In determining whether the
interest contracted for, charged, or received by an Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable Law,
(a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or
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unequal parts the total amount of interest throughout the contemplated term of
the Obligations hereunder.
Section 10.11 Counterparts. This Agreement and each other Loan Document
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Delivery by telecopier of an executed counterpart of a signature
page to this Agreement and each other Loan Document shall be effective as
delivery of an original executed counterpart of this Agreement and such other
Loan Document. The Agents may also require that any such documents and
signatures delivered by telecopier be confirmed by a manually signed original
thereof; provided that the failure to request or deliver the same shall not
limit the effectiveness of any document or signature delivered by telecopier.
Section 10.12 Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Agents or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
Section 10.13 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by each Agent
and each Lender, regardless of any investigation made by any Agent or any Lender
or on their behalf and notwithstanding that any Agent or any Lender may have had
notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
Section 10.14 Severability. If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.15 Tax Forms. Each Lender and Agent that is not a "United
States person" within the meaning of Section 7701(a)(30) of the Code (each, a
"FOREIGN LENDER") shall deliver to the Company and the Administrative Agent, on
or prior to the date which is ten (10) Business Days after the Closing Date (or
upon accepting an assignment of an interest herein), two duly signed, properly
completed copies of either IRS Form W-8BEN or any successor thereto (relating to
such Foreign Lender and entitling it to an exemption from, or reduction of,
United States withholding tax on all payments to be made to such Foreign Lender
by the Company or any other Loan Party pursuant to this Agreement or any other
Loan
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Document) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Foreign Lender by the Company or any other Loan Party
pursuant to this Agreement or any other Loan Document) or such other evidence
reasonably satisfactory to the Company and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, United States
withholding tax, including any exemption pursuant to Section 871(h) or 881(c) of
the Code, and in the case of a Foreign Lender claiming such an exemption under
Section 881(c) of the Code, a certificate that establishes in writing to the
Company and the Administrative Agent that such Foreign Lender is not (i) a
"bank" as defined in Section 881(c)(3)(A) of the Code, (ii) a 10-percent
shareholder within the meaning of Section 871(h)(3)(B) of the Code, or (iii) a
controlled foreign corporation related to the Company with the meaning of
Section 864(d) of the Code. Thereafter and from time to time, each such Foreign
Lender shall (A) promptly submit to the Company and the Administrative Agent
such additional duly completed and signed copies of one or more of such forms or
certificates (or such successor forms or certificates as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is reasonably satisfactory to the Company and the
Administrative Agent of any available exemption from, or reduction of, United
States withholding taxes in respect of all payments to be made to such Foreign
Lender by the Company or other Loan Party pursuant to this Agreement, or any
other Loan Document, in each case, (1) on or before the date that any such form,
certificate or other evidence expires or becomes obsolete, (2) after the
occurrence of any event requiring a change in the most recent form, certificate
or evidence previously delivered by it to the Company and the Administrative
Agent and (3) from time to time thereafter if reasonably requested by the
Company or the Administrative Agent, and (B) promptly notify the Company and the
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.
(ii) Each Foreign Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or
payable to such Foreign Lender under any of the Loan Documents (for
example, in the case of a typical participation by such Foreign Lender),
shall deliver to the Company and the Administrative Agent on the date when
such Foreign Lender ceases to act for its own account with respect to any
portion of any such sums paid or payable, and at such other times as may
be necessary in the determination of the Company or the Administrative
Agent (in either case, in the reasonable exercise of its discretion), (A)
two duly signed completed copies of the forms or statements required to be
provided by such Foreign Lender as set forth above, to establish the
portion of any such sums paid or payable with respect to which such
Foreign Lender acts for its own account that is not subject to United
States withholding tax, and (B) two duly signed completed copies of IRS
Form W-8IMY (or any successor thereto), together with any information such
Foreign Lender chooses to transmit with such form, and any other
certificate or statement of exemption required under the Code, to
establish that such Foreign Lender is not acting for its own account with
respect to a portion of any such sums payable to such Foreign Lender.
(iii) The Company shall not be required to pay any additional amount
or any indemnity payment under Section 3.01 to (A) any Foreign Lender if
such Foreign Lender shall have failed to satisfy the foregoing provisions
of this Section 10.15(a), or (B) any U.S. Lender if such U.S. Lender shall
have failed to satisfy the provisions of Section
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10.15(b); provided that (i) if such Lender shall have satisfied the
requirement of this or Section 10.15(b), as applicable, on the date such
Lender became a Lender or ceased to act for its own account with respect
to any payment under any of the Loan Documents, nothing in this Section
10.15(a) or Section 10.15(b) shall relieve any Borrower of its obligation
to pay any amounts pursuant to Section 3.01 in the event that, as a result
of any change in any applicable Law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration
or application thereof, such Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of
which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate and (ii) nothing in this Section 10.15(a) shall relieve any
Borrower of its obligation to pay any amounts pursuant to Section 3.01 in
the event that the requirements of 10.15(a)(ii) have not been satisfied if
such Borrower is entitled, under applicable Law, to rely on any applicable
forms and statements required to be provided under this Section 10.15 by
the Foreign Lender that does not act or has ceased to act for its own
account under any of the Loan Documents, including in the case of a
typical participation.
(iv) The Administrative Agent may deduct and withhold any taxes
required by any Laws to be deducted and withheld from any payment under
any of the Loan Documents.
(b) Each Lender and Agent that is a "United States person" within the
meaning of Section 7701(a)(30) of the Code (each, a "U.S. LENDER") shall deliver
to the Administrative Agent and the Company two duly signed, properly completed
copies of IRS Form W-9 on or prior to the Closing Date (or on or prior to the
date it becomes a party to this Agreement), certifying that such U.S. Lender is
entitled to an exemption from United States backup withholding tax, or any
successor form. If such U.S. Lender fails to deliver such forms, then the
Administrative Agent may withhold from any payment to such U.S. Lender an amount
equivalent to the applicable backup withholding tax imposed by the Code.
Section 10.16 Governing Law. (a) THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER,
HOLDINGS, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER,
HOLDINGS, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
163
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO.
Section 10.17 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.17 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
Section 10.18 Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrowers and Holdings and the Administrative
Agent shall have been notified by each Lender, Swing Line Lender and the L/C
Issuer that each such Lender, Swing Line Lender and the L/C Issuer has executed
it and thereafter shall be binding upon and inure to the benefit of each
Borrower, each Agent and each Lender and their respective successors and
assigns, except that no Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders except as permitted by Section 7.04.
Section 10.19 Judgment Currency. If, for the purposes of obtaining
judgment in any court, it is necessary to convert a sum due hereunder or any
other Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given. The
obligation of each Borrower in respect of any such sum due from it to the
Administrative Agent or the Lenders hereunder or under the other Loan Documents
shall, notwithstanding any judgment in a currency (the "JUDGMENT CURRENCY")
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the "AGREEMENT CURRENCY"), be
discharged only to the extent that on the Business Day following receipt by the
Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the Administrative Agent may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from any Borrower in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the Person to whom such obligation was
owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to
such Borrower (or to any other Person who may be entitled thereto under
applicable law).
164
Section 10.20 Lender Action. Each Lender agrees that it shall not take or
institute any actions or proceedings, judicial or otherwise, for any right or
remedy against any Loan Party or any other obligor under any of the Loan
Documents or the Secured Hedge Agreements (including, without limitation, the
exercise of any right of setoff, rights on account of any banker's lien or
similar claim or other rights of self-help), or institute any actions or
proceedings, or otherwise commence any remedial procedures, with respect to any
Collateral or any other property of any such Loan Party, without the prior
written consent of the Administrative Agent. The provision of this Section 10.20
are for the sole benefit of the Lenders and shall not afford any right to, or
constitute a defense available to, any Loan Party. Notwithstanding the
foregoing, the Lenders and their Affiliates may exercise set off rights in
accordance with Section 10.09 against the Company and its Subsidiaries with
respect to the Overdraft Loan Facility.
Section 10.21 USA PATRIOT Act. Each Lender hereby notifies the Borrowers
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "ACT"), it is required to
obtain, verify and record information that identifies 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.
Section 10.22 Agent for Service of Process. The Company agrees that
promptly following request by the Administrative Agent it shall cause each
Foreign Subsidiary which is a Loan Party or for whose account a Letter of Credit
is issued to appoint and maintain an agent reasonably satisfactory to the
Administrative Agent to receive service of process in New York City on behalf of
such Foreign Subsidiary.
Section 10.23 Existing Credit Agreement; Effectiveness of Second Amendment
and Restatement. Until this Agreement becomes effective in accordance with the
terms of the Second Amendment and Restatement Agreement, the Existing Credit
Agreement shall remain in full force and effect and shall not be affected
hereby. After the Second Restatement Effective Date, all obligations of the
Borrowers under the Existing Credit Agreement shall become obligations of the
Borrowers hereunder, secured by the Loan Documents, and the provisions of the
Existing Credit Agreement shall be superseded by the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
* * * * * * *
165
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
UGS CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
UGS HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
JPMORGAN CHASE BANK, as Administrative
Agent, Lender, L/C Issuer and Swing Line Lender
By: /s/ Illegible
-------------------------------------------
Name: Illegible
Title: Vice President
CITICORP NORTH AMERICA, INC., as
Syndication Agent and Initial Lender
By: /s/ ▇▇▇▇▇ Wirdnam
--------------------------------------------
Name: ▇▇▇▇▇ Wirdnam
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING,
INC., as Co-Documentation Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO FOOTHILL, LLC, as Co-
Documentation Agent and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
KZH CRESCENT-2 LLC
By: /s/ Hi Hua
-----------------------------------------
Name: Hi Hua
Title: Authorized Agent
KZH CRESCENT-3 LLC
By: /s/ Hi Hua
-----------------------------------------
Name: Hi Hua
Title: Authorized Agent
KZH SOLEIL LLC
By: /s/ Hi Hua
-----------------------------------------
Name: Hi Hua
Title: Authorized Agent
KZH SOLEIL-2 LLC
By: /s/ Hi Hua
-----------------------------------------
Name: Hi Hua
Title: Authorized Agent
FOOTHILL INCOME TRUST, L.P.
BY FIT GP, LLC, Its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Member
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
UBS AG, STAMFORD BRANCH
By: /s/ Illegible
--------------------------------------------
Name: Illegible
Title:
By: /s/ Illegible
--------------------------------------------
Name: Illegible
Title:
The undersigned hereby acknowledges and agrees that, upon the
effectiveness of the merger of UGS Corp. with and into UGS PLM Solutions Inc.
with UGS PLM Solutions Inc. continuing as the surviving corporation under the
name "UGS Corp.", it will succeed by operation of law to all of the rights and
obligations of UGS Corp. set forth herein and that all references herein to the
"Company" shall thereupon be deemed to be references to the undersigned.
UGS PLM SOLUTIONS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: