EXHIBIT 10.1
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Published CUSIP Number: ____
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 7, 2005
among
RAYOVAC CORPORATION,
as the U.S. Borrower,
the Subsidiary Borrowers named herein,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
CITICORP NORTH AMERICA, INC.,
as Syndication Agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as Documentation Agent and as Managing Agent,
The Other Lenders Party Hereto,
BANC OF AMERICA SECURITIES LLC and CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers
and
BANC OF AMERICA SECURITIES LLC, CITIGROUP GLOBAL MARKETS INC. and
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇,
as Joint Book Managers
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms........................................................1
1.02 Other Interpretive Provisions.......................................49
1.03 Accounting Terms....................................................50
1.04 Rounding............................................................50
1.05 Times of Day........................................................50
1.06 Letter of Credit Amounts............................................50
1.07 Currency Equivalents Generally......................................50
ARTICLE II
the COMMITMENTS and Credit Extensions
2.01 The Loans...........................................................51
2.02 Borrowings, Conversions and Continuations of Loans..................52
2.03 Dollar Letters of Credit............................................55
2.04 Euro Letters of Credit..............................................66
2.05 UK Letters of Credit................................................75
2.06 Swing Line Loans....................................................84
2.07 Prepayments.........................................................89
2.08 Termination or Reduction of Commitments.............................93
2.09 Repayment of Loans..................................................95
2.10 Interest............................................................97
2.11 Fees................................................................98
2.12 Computation of Interest and Fees....................................99
2.13 Evidence of Indebtedness............................................99
2.14 Payments Generally; Administrative Agent's Clawback................100
2.15 Sharing of Payments by Lenders.....................................102
2.16 Incremental Facility...............................................103
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes..............................................................106
3.02 Illegality.........................................................109
3.03 Inability to Determine Rates.......................................109
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans...............109
3.05 Compensation for Losses............................................111
3.06 Mitigation Obligations; Replacement of Lenders.....................111
3.07 Survival...........................................................112
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ARTICLE IV
CONDITIONS PRECEDENT TO Credit Extensions
4.01 Conditions of Initial Credit Extension.............................112
4.02 Conditions to all Credit Extensions................................116
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws...........117
5.02 Authorization; No Contravention....................................117
5.03 Governmental Authorization; Other Consents.........................118
5.04 Binding Effect.....................................................118
5.05 Financial Statements; No Material Adverse Effect...................118
5.06 Litigation.........................................................119
5.07 No Default.........................................................119
5.08 Ownership of Property..............................................119
5.09 Environmental Compliance...........................................120
5.10 Insurance..........................................................121
5.11 Taxes..............................................................121
5.12 ERISA Compliance...................................................121
5.13 Subsidiaries; Equity Interests; Loan Parties.......................122
5.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act................................................122
5.15 Disclosure.........................................................123
5.16 Intellectual Property; Licenses, Etc...............................123
5.17 Solvency...........................................................123
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements...............................................124
6.02 Certificates; Other Information....................................125
6.03 Notices............................................................126
6.04 Payment of Obligations.............................................127
6.05 Preservation of Existence, Etc.....................................127
6.06 Maintenance of Properties..........................................127
6.07 Maintenance of Insurance...........................................127
6.08 Compliance with Laws...............................................128
6.09 Books and Records..................................................128
6.10 Inspection Rights..................................................128
6.11 Use of Proceeds....................................................128
6.12 Covenant to Guarantee Obligations and Give Security................128
6.13 Compliance with Environmental Laws.................................132
6.14 Further Assurances.................................................132
6.15 Interest Rate Hedging..............................................132
6.16 Cash Collateral Accounts...........................................132
6.17 Euro Borrower Financial Condition..................................133
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6.18 Real Estate Post-Closing Obligations...............................133
6.19 Foreign Collateral Post-Closing Obligations........................135
ARTICLE VII
NEGATIVE COVENANTS
7.01 Liens..............................................................136
7.02 Indebtedness.......................................................139
7.03 Investments........................................................142
7.04 Fundamental Changes................................................145
7.05 Dispositions.......................................................146
7.06 Restricted Payments................................................147
7.07 Change in Nature of Business.......................................149
7.08 Transactions with Affiliates.......................................149
7.09 Burdensome Agreements..............................................149
7.10 Use of Proceeds....................................................149
7.11 Financial Covenants................................................149
7.12 Capital Expenditures...............................................150
7.13 Amendments of Organization Documents...............................150
7.14 Accounting Changes.................................................150
7.15 Prepayments, Etc. of Indebtedness..................................151
7.16 Amendment, Etc. of Related Documents and Indebtedness..............151
7.17 Speculative Transactions...........................................151
7.18 Limitations on Finance Companies and Certain German Entities.......151
7.19 Designation of Senior Debt.........................................151
7.20 Limitations of Undertakings........................................151
Article VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default..................................................152
8.02 Remedies Upon Event of Default.....................................155
8.03 Application of Funds...............................................156
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authority..........................................157
9.02 Power of Attorney for German Collateral Agreements to the
Administrative Agent in its capacity as "collateral agent".........157
9.03 Rights as a Lender.................................................158
9.04 Exculpatory Provisions.............................................158
9.05 Reliance by Administrative Agent...................................159
9.06 Delegation of Duties...............................................159
9.07 Resignation of Administrative Agent................................160
9.08 Non-Reliance on Administrative Agent and Other Lenders.............160
9.09 No Other Duties, Etc...............................................161
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9.10 Administrative Agent May File Proofs of Claim......................161
9.11 Collateral and Guaranty Matters....................................162
9.12 Appointment of Supplemental Collateral Agents......................162
9.13 Abstract Acknowledgement of Indebtedness/Joint Creditorship........163
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc....................................................165
10.02 Notices and Other Communications; Facsimile Copies.................167
10.03 No Waiver; Cumulative Remedies.....................................169
10.04 Expenses; Indemnity; Damage Waiver.................................169
10.05 Payments Set Aside.................................................171
10.06 Successors and Assigns.............................................172
10.07 Treatment of Certain Information; Confidentiality..................176
10.08 Right of Setoff....................................................177
10.09 Non-U.S. Subsidiaries..............................................177
10.10 Interest Rate Limitation...........................................178
10.11 Counterparts; Effectiveness........................................178
10.12 Survival of Representations and Warranties.........................178
10.13 Severability.......................................................178
10.14 Replacement of Lenders.............................................178
10.15 Judgment...........................................................179
10.16 Governing Law; Jurisdiction; Etc...................................180
10.17 Waiver of Jury Trial...............................................181
10.18 USA PATRIOT Act Notice.............................................181
10.19 "Know your customer" checks........................................181
SIGNATURES..................................................................183
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SCHEDULES
I KGaA Guarantors
II ROV Guarantors
III UK Guarantors
IV Consolidated EBITDA
V Existing Letters of Credit
2.01 Commitments and Applicable Percentages
5.05 Supplement to Interim Financial Statements
5.06 Litigation
5.08(b) Owned Real Property
5.08(c) Leased Real Property
5.09 Environmental Matters
5.13 Subsidiaries and Other Equity Investments;
Loan Parties
5.16 Intellectual Property Claims
6.18 Real Property to be Mortgaged
7.01(b) Existing Permitted Liens
7.02 Indebtedness
7.03(f) Existing Permitted Investments
7.05(m) Certain Dispositions
7.08 Certain Transactions with Affiliates
10.02 Administrative Agent's Office, Certain Addresses
for Notices
10.06 Processing and Recordation Fees
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C-1 Term Note
C-2 U.S. Revolving Credit Note
C-3 Euro Revolving Term Note
C-4 UK Revolving Credit Note
D Compliance Certificate
E Assignment and Assumption
▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
F-3 UK Guaranty
G Security Agreement
H-1 Mortgage
H-2 Third Amendment to Mortgage
I-1 Opinion Matters - Counsel to Loan Parties
I-2 Opinion Matters - Local Counsel to Loan Parties
I-3 Opinion Matters - Real Estate Counsel to Loan Parties
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CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is
entered into as of February 7, 2005, among Rayovac Corporation, a Wisconsin
corporation (the "U.S. Borrower"), Varta Consumer Batteries GmbH & Co. KGaA, a
German partnership limited by shares (the "Euro Borrower"), Rayovac Europe
Limited, a limited liability company (the "UK Borrower and, with the Euro
Borrower, each a "Subsidiary Borrower" and collectively, the "Subsidiary
Borrowers" and the Subsidiary Borrowers, with the U.S. Borrower, each a
"Borrower" and collectively, the "Borrowers"), each lender from time to time
party hereto (collectively, the "Lenders" and individually, a "Lender"),
Citicorp North America, Inc., as Syndication Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Corporation, as Documentation Agent and Managing Agent, and Bank of America,
N.A., as Administrative Agent (as hereinafter defined), Swing Line Lender (as
hereinafter defined) and L/C Issuer (as hereinafter defined).
The U.S. Borrower and the Euro Borrower have entered into that certain
Third Amended and Restated Credit Agreement dated as of October 1, 2002 with
Bank of America, N.A. as administrative agent, and the lenders party thereto
(as amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof, the "Existing Rayovac Credit Agreement").
Pursuant to the Agreement and Plan of Merger dated January 3, 2005 (as
amended, supplemented or otherwise modified in accordance with its terms, to
the extent permitted in accordance with the Loan Documents (as hereinafter
defined), the "Merger Agreement") between the U.S. Borrower, United Industries
Corporation ("UIC") and ▇▇▇▇▇▇▇▇ Corporation ("Newco"), the U.S. Borrower has
agreed to acquire all of the stock of UIC through a merger (the "Merger") of
Newco with and into UIC.
The Borrowers have requested that the Lenders amend and restate the
Existing Rayovac Credit Agreement to lend to the Borrowers up to U.S.$1.03
billion in order to (a) pay to the existing holders of the Equity Interests of
UIC the cash consideration for their shares in the Merger, (b) refinance (i)
the existing senior credit facilities of UIC and its Subsidiaries (as
hereinafter defined) and (ii) the existing senior subordinated notes of UIC
(collectively, the "Refinancing"), (c) pay transaction fees and expenses
incurred in connection with the Merger and the Refinancing and (d) provide
ongoing working capital and for other general corporate purposes of the
Borrowers and their Subsidiaries.
The Lenders have indicated their willingness to amend and restate the
Existing Rayovac Credit Agreement in its entirety to read as set forth herein,
on the terms and subject to the conditions set forth herein and it has been
agreed
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
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"2013 Notes" means the 8.5% unsecured subordinated notes of the U.S.
Borrower due 2013 in an aggregate principal amount of U.S.$350 million issued
and sold on September 30, 2003 pursuant to the 2013 Notes Indenture.
"2013 Notes Indenture" means the Indenture, dated as of September 30,
2003, among the U.S. Borrower, the guarantors named therein and U.S. Bank
National Association, as trustee.
"2015 Notes" means the 7.375% subordinated notes of the U.S. Borrower
due 2015 in an aggregate principal amount of U.S.$700 million issued and sold
on the Closing Date pursuant to the 2015 Notes Indenture.
"2015 Notes Indenture" means the Indenture to be dated as of the
Closing Date, among the U.S. Borrower, the guarantors named therein and U.S.
Bank National Association, as trustee.
"80% Subsidiary" means any Subsidiary in which (other than director's
qualifying shares or similar shares owned by other Persons due to native
ownership requirements) at least 80% of the capital stock or other equity
interests of each class is owned beneficially and of record by the U.S.
Borrower or by one or more Wholly-Owned Subsidiaries.
"Acceptable Bank" has the meaning specified in the definition of "Cash
Equivalents".
"Acknowledgment I" has the meaning specified in Section 9.13(a).
"Acknowledgment II" has the meaning specified in Section 9.13(b).
"Acknowledgment III" has the meaning specified in Section 9.13(c).
"Acquisition" means any transaction or series of related transactions
for the purpose of, or resulting directly or indirectly in, (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary), provided that the U.S. Borrower or a Subsidiary is the
surviving entity.
"Additional Foreign Currency Facility" means a revolving credit
facility made available by certain Lenders hereunder to a Subsidiary of the
U.S. Borrower in a currency other than Dollars.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify to the Borrowers and the Lenders.
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"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.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
"Applicable Euro Revolving Credit Percentage" means with respect to
any Euro Revolving Credit Lender at any time, such Euro Revolving Credit
Lender's Applicable Percentage in respect of the Euro Revolving Credit Facility
at such time.
"Applicable Percentage" means (a) in respect of the Canadian Term
Facility, with respect to any Canadian Term Lender at any time, the percentage
(carried out to the ninth decimal place) of the Canadian Term Facility
represented by (i) on or prior to the Closing Date, such Canadian Term Lender's
Canadian Term Commitment at such time and (ii) thereafter, the principal amount
of such Canadian Term Lender's Canadian Term Loans at such time, (b) in respect
of the Dollar Term Facility, with respect to any Dollar Term Lender at any
time, the percentage (carried out to the ninth decimal place) of the Dollar
Term Facility represented by (i) on or prior to the Closing Date, such Dollar
Term Lender's Dollar Term Commitment at such time and (ii) thereafter, the
principal amount of such Dollar Term Lender's Dollar Term Loans at such time,
(c) in respect of the Euro Term Facility, with respect to any Euro Term Lender
at any time, the percentage (carried out to the ninth decimal place) of the
Euro Term Facility represented by (i) on or prior to the Closing Date, such
Euro Term Lender's Euro Term Commitment at such time and (ii) thereafter, the
principal amount of such Euro Term Lender's Euro Term Loans at such time, (d)
in respect of the Euro Revolving Credit Facility, with respect to any Euro
Revolving Credit Lender at any time, the percentage (carried out to the ninth
decimal place) of the Euro Revolving Credit Facility represented by such Euro
Revolving Credit Lender's Euro Revolving Credit Commitment at such time and (e)
in respect of the UK Revolving Credit Facility, with respect to any UK
Revolving Credit lender at any time, the percentage (carried out to the ninth
decimal place) of the UK Revolving Credit Facility represented by such UK
Revolving Credit lender's UK Revolving Credit Commitment at such time and (f)
in respect of the U.S. Revolving Credit Facility, with respect to any U.S.
Revolving Credit Lender at any time, the percentage (carried out to the ninth
decimal place) of the U.S. Revolving Credit Facility represented by such U.S.
Revolving Credit Lender's Revolving Credit Commitment at such time. If the Euro
Revolving Credit Commitment of each Euro Revolving Credit Lender to make Euro
Revolving Credit Loans have been terminated pursuant to Section 8.02, or if the
Euro Revolving Credit Commitments have expired, then the Applicable Percentage
of each Euro Revolving Credit Lender in respect of the Euro Revolving Credit
Facility shall be determined based on the Applicable Percentage of such Euro
Revolving Credit Lender in respect of the Euro Revolving Credit Facility most
recently in effect, giving effect to any subsequent assignments. If the UK
Revolving Credit Commitment of each UK Revolving Credit Lender to make UK
Revolving Credit Loans have been terminated pursuant to Section 8.02, or if the
UK Revolving Credit Commitments have expired, then the Applicable Percentage of
each UK Revolving Credit Lender in respect of the UK Revolving Credit Facility
shall be determined based on the Applicable Percentage of such UK Revolving
Credit Lender in respect of the UK Revolving Credit Facility most recently in
effect, giving effect to any subsequent assignments. If the U.S. Revolving
Credit Commitment of each U.S. Revolving Credit Lender to make U.S. Revolving
Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 8.02, or if the U.S. Revolving Credit
Commitments have expired, then the Applicable Percentage
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of each U.S. Revolving Credit Lender in respect of the U.S. Revolving Credit
Facility shall be determined based on the Applicable Percentage of such U.S.
Revolving Credit Lender in respect of the U.S. Revolving Credit Facility most
recently in effect, giving effect to any subsequent assignments. The initial
Applicable Percentage of each Lender in respect of each Facility is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Applicable Rate" means (a) in respect of the Revolving Credit
Facilities, (i) for the first six months following the Closing Date, 1.25% per
annum for Base Rate Loans and 2.25% per annum for Eurocurrency Rate Loans and
(ii) thereafter, a percentage per annum as set forth in the table below
determined by reference to the Consolidated Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Administrative Agent
pursuant to Section 6.02(a):
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Eurocurrency Rate
Revolving Credit Base Rate
Loans and Letters of Revolving
Pricing Level Consolidated Leverage Ratio Commitment Fee Credit Credit Loans
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1 <3.50:1 0.50 1.75 0.75
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2 >3.50:1 but <4.00:1 0.50 2.00 1.00
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3 >4.00:1 0.50 2.25 1.25
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Any increase or decrease in the Applicable Rate resulting from a
change in the Consolidated 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(a); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Level 3 shall apply from and as of the first Business Day after the
date on which such Compliance Certificate was required to have been delivered
until the date such Compliance Certificate is delivered,
(b) in respect of the Canadian Term Loans and the Dollar Term Loans
(i) for the first six months following the Closing Date, 2.00% per annum
for Canadian Term Loans and for Dollar Term Loans that are Eurocurrency
Rate Loans and 1.00% per annum for Dollar Term Loans that are Base Rate
Loans and (ii) thereafter, a percentage to be determined by reference to
the Debt Rating certified by the U.S. Borrower as described below:
4
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Eurocurrency Base Rate
Pricing Debt Ratings Canadian Term Rate Dollar Term Dollar Term
Level S&P/▇▇▇▇▇'▇ Loans Loans Loans
----------------------------------------------------------------------------------------
1 BB-/Ba3 or better 1.75 1.75 0.75
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2 B+/B1 or worse 2.00 2.00 1.00
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Initially, the Applicable Rate shall be determined based upon the Debt
Rating specified in a certificate delivered by the U.S. Borrower as to its
existing Debt Rating on such date. Thereafter, each change in the Applicable
Rate resulting from a publicly announced change in the Debt Rating shall be
effective, in the case of an upgrade, during the period commencing on the date
of the public announcement thereof (such announcement to be notified to the
Administrative Agent by the U.S. Borrower) and ending on the date immediately
preceding the effective date of the next such change and, in the case of a
downgrade, during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date of the
next such change, and
(c) in respect of the Euro Term Loans, 2.50% per annum.
"Applicable UK Revolving Credit Percentage" means with respect to any
UK Revolving Credit Lender at any time, such UK Revolving Credit Lender's
Applicable Percentage in respect of the UK Revolving Credit Facility at such
time.
"Applicable U.S. Revolving Credit Percentage" means with respect to
any U.S. Revolving Credit Lender at any time, such U.S. Revolving Credit
Lender's Applicable Percentage in respect of the U.S. Revolving Credit Facility
at such time.
"Appropriate Lender" means, at any time, (a) with respect to any of
the Canadian Term Facility, the Dollar Term Facility, the Euro Term Facility,
the U.S. Revolving Credit Facility, the Euro Revolving Credit Facility or the
UK Revolving Credit Facility, a Lender that has a Commitment with respect to
such Facility at such time, (b) with respect to the Dollar 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 U.S. Revolving Credit Lenders, (c) with
respect to the Euro Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if
any Letters of Credit have been issued pursuant to Section 2.04(a), the Euro
Revolving Credit Lenders, (d) with respect to the UK Letter of Credit Sublimit,
(i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant
to Section 2.05(a), the UK Revolving Credit Lenders and (e) with respect to
either the Dollar Swing Line, the Euro Swing Line or the UK Swing Line, (i) the
Swing Line Lender, (ii) if any Dollar Swing Line Loans are outstanding pursuant
to Section 2.06(a), the U.S. Revolving Credit Lenders, (iii) if any Euro Swing
Line Loans are outstanding pursuant to Section 2.06(b), the Euro Revolving
Credit Lenders and (iv) if any UK Swing Line Loans are outstanding pursuant to
Section 2.06(c), the UK Revolving Credit Lenders.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity (including an
investment advisor) or an Affiliate of an entity that administers or manages a
Lender.
5
"Arrangers" means BAS and CGMI, in their capacities as joint lead
arrangers.
"Assignee Group" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Assuming Lender" has the meaning specified in Section 2.16(d).
"Assumption Agreement" has the meaning specified in Section 2.16(d).
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capitalized Lease of any Person, the capitalized amount of the remaining lease
thereof that would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation,
the capitalized amount of the remaining lease or similar payments under the
relevant lease or other applicable agreement or instrument that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease or other agreement or instrument were accounted for as a
Capitalized Lease and (c) all Synthetic Debt of such Person.
"Audited Financial Statements" means the audited consolidated balance
sheets of (i) the U.S. Borrower and its Subsidiaries for the fiscal year ended
September 30, 2004 and (ii) UIC and its Subsidiaries for the fiscal year ended
December 31, 2003 and, in each case, the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal year
of the U.S. Borrower and its Subsidiaries and UIC and its Subsidiaries,
respectively, including the notes thereto.
"Auto-Extension Dollar Letter of Credit" has the meaning specified in
Section 2.03(b)(iii).
"Auto-Extension Euro Letter of Credit" has the meaning specified in
Section 2.04(b)(iii).
"Auto-Extension UK Letter of Credit" has the meaning specified in
Section 2.05(b)(iii).
"Availability Period" means the period from and including the Closing
Date to (a) in respect of the U.S. Revolving Credit Facility, the earliest of
(i) the Maturity Date for the U.S. Revolving Credit Facility, (ii) the date of
termination of the U.S. Revolving Credit Commitments pursuant to Section 2.08,
and (iii) the date of termination of the commitment of each U.S. Revolving
Credit Lender to make U.S. Revolving Credit Loans and of the obligation of the
L/C Issuer to make Dollar L/C Credit Extensions pursuant to Section 8.02, (b)
in respect of the Euro Revolving Credit Facility, the earliest of (i) the
Maturity Date for the Euro Revolving Credit Facility, (ii) the date of
termination of the Euro Revolving Credit Commitments pursuant to Section 2.08,
and (iii) the date of termination of the commitment of each Euro Revolving
Credit
6
Lender to make Euro Revolving Credit Loans and of the obligation of the L/C
Issuer to make Euro L/C Credit Extensions pursuant to Section 8.02 and (c) in
respect of the UK Revolving Credit Facility, the earliest of (i) the Maturity
Date for the UK Revolving Credit Facility, (ii) the date of termination of the
UK Revolving Credit Commitments pursuant to Section 2.08, and (iii) the date of
termination of the commitment of each UK Revolving Credit Lender to make UK
Revolving Credit Loans and of the obligation of the L/C Issuer to make UK L/C
Credit Extensions pursuant to Section 8.02.
"Average Dollar Equivalent" means, on any date, in relation to any
Indebtedness outstanding on such date denominated in a Foreign Currency, the
amount of Dollars that could be purchased with the amount of such Indebtedness
at the average of the foreign exchange spot rates of the Administrative Agent
on the last day of each of the twelve calendar months preceding such date.
"Backstop L/C" has the meaning specified in Section 2.03(g).
"Bank of America" means Bank of America, N.A. and its successors.
"BAS" means Banc of America Securities LLC and its successors.
"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 Bank
of America as its "prime rate." The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Book Managers" means BAS, CGMI and MLPF&S in their capacities as
joint book managers.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a U.S. Revolving Credit Borrowing, a Euro Revolving
Credit Borrowing, a UK Revolving Credit Borrowing, a Dollar Swing Line
Borrowing, a Euro Swing Line Borrowing, a UK Swing Line Borrowing, a Canadian
Term Borrowing, a Dollar Term Borrowing or a Euro Term Borrowing, as the
context may require.
"Business Day" means any day other than (a) a Saturday, Sunday or
other day on which commercial banks in New York, Chicago or Charlotte are
authorized to close under the Laws of New York, Illinois or North Carolina, or
are in fact closed in, the state where the Administrative Agent's Office is
located, (b) if such day relates to any Eurocurrency Rate Loan, a day on which
banks are not open for general business in London and (c) if such day relates
to
7
any Eurocurrency Rate Loan denominated in a Foreign Currency other than Euro, a
day on which banks are not open for general business in the principal financial
center of the country of that currency or, if such day relates to a Loan in
Euros, any day that is not a TARGET Day.
"Canadian Dollar" and "CAD" mean lawful money of Canada.
"Canadian Share Pledge" means the Share Pledge Agreement dated as of
October 1, 2002 (as reaffirmed by the Confirmation of Security dated as of the
Closing Date) made by ROV Holding in favor of the Administrative Agent, for the
benefit of the Lenders, in respect of the Equity Interests in Rayovac Canada
Inc.
"Canadian Term Borrowing" means a borrowing consisting of simultaneous
Canadian Term Loans having the same Interest Period made by each of the
Canadian Term Lenders pursuant to Section 2.01(a).
"Canadian Term Commitment" means, as to each Canadian Term Lender, its
obligation to make Canadian Term Loans to the U.S. Borrower pursuant to Section
2.01(a) 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 "Canadian Term Commitment" or opposite such caption 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.
"Canadian Term Facility" means, at any time, (a) on or prior to the
Closing Date, the aggregate amount of the Canadian Term Commitments at such
time and (b) thereafter, the aggregate principal amount of the Canadian Term
Loans of all Canadian Term Lenders outstanding at such time.
"Canadian Term Lender" means (a) at any time on or prior to the
Closing Date, any Lender that has a Canadian Term Commitment at such time and
(b) at any time after the Closing Date, any Lender that holds Canadian Term
Loans, at such time.
"Canadian Term Loan" means an advance made by any Canadian Term Lender
under the Canadian Term Facility.
"Canadian Term Note" means a promissory note made by the U.S. Borrower
in favor of a Canadian Term Lender evidencing Canadian Term Loans made by such
Canadian Term Lender, in substantially the form of Exhibit C-1.
"Capital Expenditure Carryover Amount" has the meaning specified in
Section 7.12.
"Capital Expenditures" means, with respect to any Person for any
period, all expenditures that, in accordance with GAAP, would be required to be
capitalized and shown on the consolidated balance sheet of the U.S. Borrower,
but excluding expenditures made in connection with the replacement,
substitution, restoration or trade-in of assets to the extent financed (a) from
insurance proceeds (or other similar recoveries) paid on account of the loss of
or damage to the assets being replaced or restored, (b) with awards of
compensation arising from
8
the taking by eminent domain or condemnation of the assets being replaced, (c)
proceeds received from assets Disposed of contemporaneously with such
expenditure or (d) with a credit by the seller of such assets for the assets
being simultaneously traded in.
"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, non-interest bearing
deposit account of one or more of the Loan Parties at Bank of America or, in
respect of non-U.S. Cash Collateral Accounts, at Bank of America or another
commercial bank to the extent the Collateral Agent has a perfected security in
such account, in each case, in the name of the Collateral Agent and under the
sole dominion and control of the Collateral Agent, and otherwise established in
a manner reasonably 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 U.S. Borrower or any of its Subsidiaries free and clear
of all Liens (other than Liens permitted in the manner specified hereunder):
(a) readily marketable obligations issued or directly and fully
guaranteed or insured by the United States of America, an OECD Member, any
member of the European Economic Union or any agency or instrumentality
thereof having maturities of not more than 365 days from the date of
acquisition thereof; provided that the full faith and credit of the United
States of America, member of the European Economic Union or such OECD
Member is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or bankers'
acceptances of, any commercial bank that (each such bank an "Acceptable
Bank") (i) (A) is a Lender, (B) is organized under the laws of the United
States of America, 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 of America, any state thereof or the District of
Columbia, and is a member of the Federal Reserve System or (C) is a member
of the applicable central bank of any OECD Member or any member of the
European Economic Union, (ii) issues (or the parent of which issues)
commercial paper rated as described in clause (c) of this definition and
(iii) has combined capital and surplus of at least U.S. $250,000,000 (or
the equivalent in the applicable currency), in each case with maturities
of not more than 365 days from the date of acquisition thereof;
(c) commercial paper issued by any Person organized under the laws of
any state of the United States of America, any member state of the
European Economic Union or any OECD Member or any Acceptable Bank and
rated at least "Prime-1" (or the then equivalent grade) by ▇▇▇▇▇'▇ or
Fitch or at least "A-1" (or the then equivalent grade) by S&P, or
guaranteed by any industrial company with long-term unsecured debt rating
(at the time of investment) of at least AA by S&P or at least Aa by
▇▇▇▇▇'▇ or
9
Fitch in each case with maturities of not more than 365 days from the date
of acquisition thereof;
(d) investments, classified in accordance with GAAP as current assets
of the U.S. Borrower or any of its Subsidiaries, in money market
investment programs, which are administered by financial institutions that
have the highest rating obtainable from either ▇▇▇▇▇'▇ or S&P, and the
portfolios of which are limited solely to Investments of the character,
quality and maturity described in clauses (a), (b) and (c) of this
definition;
(e) repurchase agreements with any Lender or any primary dealer
maturing within 365 days from the date of investment that are fully
collateralized by investment instruments that would otherwise be Cash
Equivalents; provided that the terms of such repurchase agreements comply
with the guidelines set forth in the Federal Financial Institutions
Examination Council Supervisory Policy -- Repurchase Agreements of
Depository Institutions With Securities Dealers and Others, as adopted by
the Comptroller of the Currency on October 31, 1985;
(f) sterling bills of exchange eligible for rediscount at the Bank of
England and accepted by an Acceptable Bank (or their dematerialized
equivalents);
(g) any other debt security approved by the Required Lenders; and
(h) any investment made by a Foreign Subsidiary in its jurisdiction of
organization that is of similar credit quality and similar maturity
(including character, quality and maturities) as one of the investments
described in clause (a) - (f) above.
"Cayman Finance Co." means ROV International Finance Company, a Cayman
Islands exempted company and a Subsidiary.
"Caymans Share Charges" means, collectively, (a) the Share Charge in
respect of shares of Rayovac Overseas Corp. to be entered into by ROV Holding,
(b) the Share Charge in respect of shares of ROV International Finance Company
to be entered into by ROV Holding, and (c) the Share Charge in respect of
shares of Rayovac PRC to be entered into by ROV Holding, in each case in form
and substance satisfactory to the Administrative Agent.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"CGMI" means Citigroup Global Markets Inc. and its successors.
"Change in Law" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Governmental
Authority.
10
"Change of Control" means, an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) other than THLee or any group of which
THLee is a member becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of all
securities that such person or group has the right to acquire (such right,
an "option right"), whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 40% or more of the
equity securities of the U.S. Borrower entitled to vote for members of the
board of directors or equivalent governing body of the U.S. Borrower on a
fully-diluted basis; or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the U.S. Borrower cease to be composed of individuals (i) who were members
of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the
case of both clause (ii) and clause (iii), any individual whose initial
nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or
more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of
directors), or
(c) any Person or two or more Persons (other than THLEE or any group
of which THLEE is a member) acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation thereof, will result in its or their
acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the U.S.
Borrower, or control over the equity securities of the U.S. Borrower
entitled to vote for members of the board of directors or equivalent
governing body the U.S. Borrower on a fully-diluted basis (and taking into
account all such securities that such "person" or "group" has the right to
acquire pursuant to any option right) representing 40% or more of the
combined voting power of such securities, or
(d) the giving of notice to the holders of either the 2013 Notes or
the 2015 Notes that a "Change of Control" or any comparable term under,
and as defined in, the 2013 Notes Indenture, or the 2015 Notes Indenture,
respectively, shall have occurred.
"Chinese Facility" means a facility in an amount not to exceed the
Equivalent in Yuan of U.S. $35,000,000 that is made available to a Subsidiary
of the U.S. Borrower organized
11
under the laws of China pursuant to (i) a bilateral facility with a third party
lender that is guaranteed by the U.S. Borrower, (ii) a bilateral facility with
a third party lender and in connection therewith a Letter of Credit is issued
to such third party lender under the U.S. Revolving Credit Facility or (iii) a
revolving credit facility made available by certain Lenders hereunder.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Closing Date Dormant Subsidiaries" means Minera Vidaluz, S.A. de
C.V., a corporation organized under the laws of Mexico, Zoe-Phos International
N.V., a corporation organized under the laws of Netherlands Antilles, Rayovac
Far East Limited, a company organized under the laws of Hong Kong, Rayovac
Latin America, Ltd., a company organized under the laws of the Cayman Islands,
Rayovac Foreign Sales Corporation, a corporation organized under the laws of
Barbados, Remington Licensing Corporation, a corporation organized under the
laws of the state of Delaware, Rayovac (UK) Ltd., a limited liability company
organized under the laws of the United Kingdom, Varta Ltd., a limited liability
company organized under the laws of the United Kingdom, Remington Consumer
Products Ltd., a limited liability company organized under the laws of the
United Kingdom, Rayovac Europe B.V., a limited liability company organized
under the laws of the Netherlands, ▇▇▇▇▇▇ Electronics B.V., a limited liability
company organized under the laws of the Netherlands, Rayovac Brasil
Participacoes Ltda., a company organized under the laws of Brazil, Rayovac
Battery Participacoes Ltda., a company organized under the laws of Brazil,
Rayovac Honduras S.A., a company organized under the laws of Honduras, and
Remington Products GmbH, a limited liability companyorganized under the laws of
Germany.
"CNAI" means Citicorp North America, Inc.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means all of the "Collateral", "Mortgaged Property" and
"Pledged Shares" (or other similar terms) referred to in the Collateral
Documents and intended under the terms 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
Foreign Collateral Documents, the collateral assignments, Security Agreement
Supplements, IP Security Agreement Supplements, 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 Canadian Term Commitment, a Dollar Term
Commitment, a Euro Term Commitment or a Revolving Credit Commitment, as the
context may require.
"Commitment Date" has the meaning specified in Section 2.16(b).
12
"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 Eurocurrency Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated EBITDA" means, for any period, for the U.S. Borrower and
its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net
Income for such period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges for
such period, (ii) the provision for Federal, state, local and foreign income
taxes payable by the U.S. Borrower and its Subsidiaries for such period (iii)
depreciation and amortization expense, (b) non-recurring losses or charges,
including Restructuring Charges, (c) estimated synergies arising out of the
Merger in an amount equal to $10 million for the fiscal quarter ended June 30,
2005, $7.5 million for the fiscal quarter ended September 30, 2005, $5 million
for the fiscal quarter ended December 31, 2005 and $2.5 million for the fiscal
quarter ended March 31, 2006 and (d) without duplication with clause (1) below,
actual and projected cost savings and synergies implemented or reasonably
expected to be implemented in the first four quarters following the
consummation of any Acquisition, on a pro forma basis, so long as such
adjustments are accompanied by a certificate of the chief financial officer of
the U.S. Borrower and minus (e) to the extent included in calculating such
Consolidated Net Income, (i) other extraordinary gains and losses for such
period and (ii) non-recurring gains; provided that (1) with respect to any
Acquisition made by the U.S. Borrower and its Subsidiaries during the period
for which Consolidated EBITDA is calculated, Consolidated EBITDA shall be
increased by the EBITDA of the Person or assets so acquired using the
historical financial statements (including audited financial statements, to the
extent applicable) for such Person and such Acquisition shall be deemed to have
occurred on the first day of the relevant period for which such Consolidated
EBITDA is calculated and (2) with respect to any Disposition of all or
substantially all of the Equity Interests or property and assets of any Person
or all or substantially all of the property and assets of a division of any
Person made by the U.S. Borrower and its Subsidiaries during the period for
which Consolidated EBITDA is calculated, Consolidated EBITDA shall be decreased
by the EBITDA of the Person or assets so Disposed of using the historical
financial statements (including audited financial statements, to the extent
applicable) for such Person and such Disposition shall be deemed to have
occurred on the first day of the relevant period for which such Consolidated
EBITDA is calculated and all such adjustments to Consolidated EBITDA as
specified in clauses (1) and (2) shall be accompanied by a certificate of the
chief financial officer of the U.S. Borrower showing such calculations in
reasonable detail; provided further that Consolidated EBITDA for each of the
two fiscal quarters ending September 30, 2004 and December 31, 2004 shall be
calculated on a pro forma basis giving effect to the Acquisition, as set forth
in reasonable detail on a certificate of the Chief Financial Officer of the
U.S. Borrower delivered to the Administrative Agent (such certificate to be
reasonably satisfactory to the Administrative Agent).
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the U.S. Borrower and its Subsidiaries on a consolidated
basis, the sum of (a) the outstanding principal amount of all obligations
(including amounts drawn under both standby and
13
commercial letters of credit), whether current or long-term, for borrowed money
(including Obligations hereunder) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments, (b) all
purchase money Indebtedness, (c) all direct obligations arising under bankers'
acceptances, bank guaranties, surety bonds and similar instruments, (d) all
obligations in respect of the deferred purchase price of property or services
(other than trade accounts and accrued expenses payable in the ordinary course
of business), (e) Attributable Indebtedness (other than Synthetic Debt), (f)
without duplication, all Guarantees with respect to outstanding Indebtedness of
the types specified in clauses (a) through (e) above of Persons other than the
U.S. Borrower or any Subsidiary, (g) all Indebtedness of the types referred to
in clauses (a) through (f) above of any partnership or joint venture (other
than a joint venture that is itself a corporation or limited liability company)
in which the U.S. Borrower or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the U.S.
Borrower or such Subsidiary or is owed to the U.S. Borrower or a Subsidiary and
(h) the Average Dollar Equivalent of any such Indebtedness denominated in a
Foreign Currency minus the Equivalent in Dollars of any such Indebtedness
denominated in a Foreign Currency.
"Consolidated Interest Charges" means, for any period, for the U.S.
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses
of the U.S. Borrower and its Subsidiaries in connection with borrowed money
(excluding capitalized interest, other than to the extent set forth in clause
(b) below, and any amortization of such interest, premiums and other costs) or
in connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP and (b) the portion of rent
expense of the U.S. Borrower and its Subsidiaries with respect to such period
under Capitalized Leases that is treated as interest in accordance with GAAP.
If the U.S. Borrower or any Subsidiary makes an Acquisition or a Disposition of
all or substantially all of the Equity Interests or property and assets of any
Person or all or substantially all of the property and assets of a division of
any Person during any period, then for purposes of determining the Consolidated
Interest Coverage Ratio and the Consolidated Leverage Ratio for such period,
Consolidated Interest Charges shall be adjusted to account for all increases or
decreases in Indebtedness directly related to such Acquisition or Disposition
based on the assumption that such increase or decrease had occurred on the
first day of such period rather than on the date of such Acquisition or
Disposition, all as reasonably determined by the U.S. Borrower and certified in
reasonable detail to the Administrative Agent and the Lenders.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the period of the four
prior fiscal quarters ending on such date to (b) Consolidated Interest Charges
for such period; provided that for purposes of calculating Consolidated
Interest Charges with respect to the fiscal quarters ending June 30, 2005,
September 30, 2005 and December 31, 2005, respectively, Consolidated Interest
Charges shall be deemed to be (i) the actual Consolidated Interest Charges for
the fiscal quarter ended June 30, 2005 multiplied by 4, (ii) the actual
Consolidated Interest Charges for the two consecutive fiscal quarters ended
September 30, 2005 multiplied by 2 and (iii) the actual Consolidated Interest
Charges for the three consecutive fiscal quarters ended December 31, 2005,
multiplied by 4/3, respectively.
14
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date minus the
aggregate principal amount of cash and Cash Equivalents held by the U.S.
Borrower and its Subsidiaries on such date to (b) Consolidated EBITDA for the
period of the four fiscal quarters most recently ended.
"Consolidated Net Income" means, for any period, for the U.S. Borrower
and its Subsidiaries on a consolidated basis, the net income (or loss) of the
U.S. Borrower and its Subsidiaries for that period, provided that the net
income of any Subsidiary shall be excluded from Consolidated Net Income to the
extent that the declaration or payment of dividends or similar distributions by
such Subsidiary from such income is not at the time permitted by the terms of
its charter or by-laws or any judgment, decree, order, law, statute, rule,
regulation, agreement, indenture or other instrument (other than any agreement,
indenture or other instrument the breach of which could not reasonably be
expected to result in a Material Adverse Effect) which is binding on such
Subsidiary.
"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 other than the Loan Documents.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and
(b) an L/C Credit Extension.
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or ▇▇▇▇▇'▇ (collectively, the "Debt Ratings") of the
U.S. Borrower's non-credit-enhanced, senior unsecured long-term debt; provided
that if (i) a Debt Rating is issued by each of the foregoing rating agencies,
then the worse of such Debt Ratings shall apply (with the Debt Rating for
Pricing Level 1 being the worst and the Debt Rating for Pricing Level 2 being
the best) and (ii) either S&P or ▇▇▇▇▇'▇ shall change the basis on which
ratings are established by it, each reference to the Debt Rating announced by
S&P or ▇▇▇▇▇'▇ shall refer to the then equivalent rating by S&P or ▇▇▇▇▇'▇, as
the case may be.
"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.
"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 (a) when used with respect to Obligations other
than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2.0%
per annum; provided, however, that with respect to
15
a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Rate) otherwise applicable to such
Loan plus 2.0% per annum and (b) when used with respect to Letter of Credit
Fees, a rate equal to the Applicable Rate plus 2.0% per annum.
"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 or participations in Swing Line Loans or Foreign Currency Revolving
Credit Loans required to be funded by it hereunder within one Business Day of
the date required to be funded by it hereunder, (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 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, or other
disposition (including any sale and leaseback transaction but excluding other
license or lease arrangements) of any property by any Person (or the granting
of any option or other right to do any of the foregoing), 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.
"Documentation Agent" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its capacity as
documentation agent hereunder.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Honor Date" has the meaning specified in Section 2.03(c)(i).
"Dollar L/C Advance" means, with respect to each U.S. Revolving Credit
Lender, such Lender's funding of its participation in any Dollar L/C Borrowing
in accordance with its Applicable Percentage.
"Dollar L/C Borrowing" means an extension of credit resulting from a
drawing under any Dollar Letter of Credit which has not (a) been reimbursed
within one Business Day following the date when made or (b) refinanced as a
U.S. Revolving Credit Borrowing.
"Dollar L/C Obligations" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Dollar Letters of
Credit plus the aggregate of all Unreimbursed Dollar Amounts, including all
Dollar L/C Borrowings. For purposes of computing the amount available to be
drawn under any Dollar Letter of Credit, the amount of such Dollar Letter of
Credit shall be determined in accordance with Section 1.06. For all purposes of
this Agreement, if on any date of determination a Dollar Letter of Credit has
expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Dollar Letter of Credit shall be
deemed to be "outstanding" in the amount so remaining available to be drawn.
"Dollar Letter of Credit" means any letter of credit issued hereunder
that is denominated in Dollars and shall include the Existing Letters of
Credit. A Dollar Letter of Credit may be a commercial letter of credit or a
standby letter of credit.
16
"Dollar Letter of Credit Expiration Date" means the day that is seven
days prior (or such later date determined in the sole discretion of the L/C
Issuer) to the Maturity Date then in effect for the U.S. Revolving Credit
Facility (or, if such day is not a Business Day, the next preceding Business
Day).
"Dollar Letter of Credit Fee" has the meaning specified in Section
2.03(i).
"Dollar Letter of Credit Sublimit" means an amount equal to
$50,000,000. The Dollar Letter of Credit Sublimit is part of, and not in
addition to, the U.S. Revolving Credit Facility. If a Chinese Facility
contemplated by clause (ii) of the definition thereof is entered into, the
Dollar Letter of Credit Sublimit shall be increased by the amount of such
Chinese Facility solely to the extent that a Letter of Credit hereunder is
issued in connection with such Chinese Facility.
"Dollar Swing Line" means the Dollar revolving credit facility made
available by the Swing Line Lender pursuant to Section 2.06.
"Dollar Swing Line Borrowing" means a borrowing of a Dollar Swing Line
Loans pursuant to Section 2.06.
"Dollar Swing Line Loan" has the meaning specified in Section 2.06(a).
"Dollar Swing Line Sublimit" means at any time an amount equal to the
lesser of (a) U.S.$15,000,000 and (b) the U.S. Revolving Credit Facility at
such time. The Dollar Swing Line Sublimit is part of, and not in addition to,
the U.S. Revolving Credit Facility Commitments.
"Dollar Term Borrowing" means a borrowing consisting of simultaneous
Dollar Term Loans of the same Type and, in the case of Eurocurrency Rate Loans,
having the same Interest Period made by each of the Dollar Term Lenders
pursuant to Section 2.01(b).
"Dollar Term Commitment" means, as to each Dollar Term Lender, its
obligation to make Dollar Term Loans to the U.S. Borrower pursuant to Section
2.01(b) 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 "Dollar Term Commitment" or opposite such caption 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.
"Dollar Term Facility" means, at any time, (a) on or prior to the
Closing Date, the aggregate amount of the Dollar Term Commitments at such time
and (b) thereafter, the aggregate principal amount of the Dollar Term Loans of
all Dollar Term Lenders outstanding at such time.
"Dollar Term Lender" means (a) at any time on or prior to the Closing
Date, any Lender that has a Dollar Term Commitment at such time and (b) at any
time after the Closing Date, any Lender that holds Dollar Term Loans at such
time.
17
"Dollar Term Loan" means an advance made by any Dollar Term Lender
under the Dollar Term Facility.
"Dollar Term Note" means a promissory note made by the U.S. Borrower
in favor of a Dollar Term Lender evidencing Dollar Term Loans made by such
Dollar Term Lender, in substantially the form of Exhibit C-1.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Dormant Subsidiaries" means each of the Closing Date Dormant
Subsidiaries, and any other Subsidiary so designated by the U.S. Borrower in a
certificate to the Administrative Agent as to the matters below, so long as, in
the case of each such Closing Date Dormant Subsidiary and each Subsidiary so
designated, (a) all such Persons do not have consolidated assets with a fair
market value in the aggregate in excess of 2.5% of the Total Assets and (b) any
such Person transacts no business other than business required to maintain such
Person's existence; provided that no Subsidiary may be a Dormant Subsidiary if
the U.S. Borrower or any of its other Subsidiaries provides any credit support
thereto or is liable in any respect for the liabilities thereof greater in the
aggregate than such person's fair market value.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, (ii) in the case of any assignment of
a Revolving Commitment, the L/C Issuer and the Swing Line Lender, and (iii)
unless an Event of Default under Sections 8.01(f) or (g) has occurred and is
continuing, the U.S. Borrower (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing, "Eligible
Assignee" shall not include the Borrowers or any of their Affiliates or
Subsidiaries.
"Environmental Action" means any suit, notice of non-compliance or
violation, notice of liability, investigation, proceeding or consent order
relating in any way to any Environmental Law, Environmental Permit or Hazardous
Material.
"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 and the protection of the
environment or 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 Borrowers, 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.
18
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"Equity Interests" means, with respect to any Person, all of the
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the warrants, options or other rights for the purchase or
acquisition from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests
are outstanding on any date of determination.
"Equivalent" in Dollars of any Foreign Currency on any date means the
equivalent in Dollars of such Foreign Currency determined by using the
prevailing foreign exchange spot rate of the Administrative Agent and the
"Equivalent" in any Foreign Currency of Dollars on any date means the
equivalent in such Foreign Currency of Dollars determined by using the
prevailing foreign exchange spot rate of the Administrative Agent for such
date.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the U.S. Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the U.S. Borrower 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 the U.S. Borrower or
any ERISA Affiliate from a Multiemployer Plan, or notification that a
Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA; (d) the filing of a notice of intent to
terminate, the treatment of a Pension 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; (f) the application for a minimum funding waiver with
respect to a Pension Plan; (g) 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 the U.S. Borrower or any ERISA Affiliate; or (h) any other
event similar to those described under (a) - (g) with respect to any Foreign
Plan.
"Euro" and "(euro)" means the single currency of the participating
members of the European Union.
19
"Euro Borrower" has the meaning specified in the introductory
paragraph hereto.
"Euro Honor Date" has the meaning specified in Section 2.04(c)(i).
"Euro L/C Advance" means, with respect to each Euro Revolving Credit
Lender, such Lender's funding of its participation in any Euro L/C Borrowing in
accordance with its Applicable Percentage.
"Euro L/C Borrowing" means an extension of credit resulting from a
drawing under any Euro Letter of Credit which has not (a) been reimbursed
within one Business Day following the date when made or (b) refinanced as a
Euro Revolving Credit Borrowing.
"Euro L/C Obligations" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Euro Letters of
Credit plus the aggregate of all Unreimbursed Euro Amounts, including all Euro
L/C Borrowings. For purposes of computing the amount available to be drawn
under any Euro Letter of Credit, the amount of such Euro Letter of Credit shall
be determined in accordance with Section 1.06. For all purposes of this
Agreement, if on any date of determination a Euro Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Euro Letter of Credit shall be deemed
to be "outstanding" in the amount so remaining available to be drawn.
"Euro Letter of Credit" means any letter of credit issued hereunder
that is denominated in Euros. A Euro Letter of Credit may be a commercial
letter of credit or a standby letter of credit.
"Euro Letter of Credit Expiration Date" means the day that is seven
days prior (or such later date determined in the sole discretion of the L/C
Issuer) to the Maturity Date then in effect for the Euro Revolving Credit
Facility (or, if such day is not a Business Day, the next preceding Business
Day).
"Euro Letter of Credit Fee" has the meaning specified in Section
2.04(i).
"Euro Letter of Credit Sublimit" means an amount equal to the Euro
Revolving Credit Facility. The Euro Letter of Credit Sublimit is part of, and
not in addition to, the Euro Revolving Credit Facility.
"Euro Reduction Amount" has the meaning set forth in Section
2.07(b)(ix).
"Euro Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Euro Revolving Credit Loans to the Euro Borrower having the same
Interest Period made by each of the Euro Revolving Credit Lenders pursuant to
Section 2.01(e).
"Euro Revolving Credit Commitment" means, as to each Euro Revolving
Credit Lender, its obligation to (a) make Euro Revolving Credit Loans to the
Euro Borrower pursuant to Section 2.01(e), (b) purchase participations in Euro
L/C Obligations and (c) purchase participations in Euro Swing Line 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
20
under the caption "Euro Revolving Credit Commitment" or opposite such caption
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.
"Euro Revolving Credit Facility" means, at any time, the aggregate
amount of the Euro Revolving Credit Lenders' Euro Revolving Credit Commitments
at such time.
"Euro Revolving Credit Lender" means, at any time, any Lender that has
a Euro Revolving Credit Commitment at such time.
"Euro Revolving Credit Loan" has the meaning specified in Section
2.01(e).
"Euro Revolving Credit Note" means a promissory note made by the Euro
Borrower in favor of a Euro Revolving Credit Lender evidencing Euro Revolving
Credit Loans or Euro Swing Line Loans, as the case may be, made by such Euro
Revolving Credit Lender, in substantially the form of Exhibit C-3.
"Euro Swing Line" means the Euro revolving credit facility made
available by the Swing Line Lender pursuant to Section 2.06.
"Euro Swing Line Borrowing" means a borrowing of a Euro Swing Line
Loans pursuant to Section 2.06.
"Euro Swing Line Loan" has the meaning specified in Section 2.06(b).
"Euro Swing Line Sublimit" means at any time an amount equal to the
lesser of (a) (euro)5,000,000 and (b) the Euro Revolving Credit Facility at
such time. The Euro Swing Line Sublimit is part of, and not in addition to, the
Euro Revolving Credit Facility Commitments.
"Euro Term Borrowing" means a borrowing consisting of simultaneous
Euro Term Loans having the same Interest Period made by each of the Euro Term
Lenders pursuant to Section 2.01(c).
"Euro Term Commitment" means, as to each Euro Term Lender, its
obligation to make Euro Term Loans to the U.S. Borrower pursuant to Section
2.01(c) 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 "Euro Term Commitment" or opposite such caption 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.
"Euro Term Facility" means, at any time, (a) on or prior to the
Closing Date, the aggregate amount of the Euro Term Commitments at such time
and (b) thereafter, the aggregate principal amount of the Euro Term Loans of
all Euro Term Lenders outstanding at such time.
21
"Euro Term Lender" means (a) at any time on or prior to the Closing
Date, any Lender that has a Euro Term Commitment at such time and (b) at any
time after the Closing Date, any Lender that holds Euro Term Loans at such
time.
"Euro Term Loan" means an advance made by any Euro Term Lender under
the Euro Term Facility.
"Euro Term Note" means a promissory note made by the U.S. Borrower in
favor of a Euro Term Lender evidencing Euro Term Loans made by such Euro Term
Lender, in substantially the form of Exhibit C-1.
"Eurocurrency Rate" means, for any Interest Period, with respect to a
Eurocurrency Rate Loan, the rate per annum (rounded upward, if necessary, to
the next 1/100th of 1%) determined by the Administrative Agent as follows:
Eurocurrency Base Rate
Eurocurrency Rate = --------------------------------------
1.00 - Eurocurrency Reserve Percentage
Where,
"Eurocurrency Base Rate" means, for such Interest Period, the rate per
annum equal to the British Bankers Association LIBOR Rate ("BBA LIBOR"), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11.00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in Dollars or the applicable
Foreign Currency other than Pounds Sterling and at approximately 11:00a.m.
London time on the first day of such Interest Period for deposits in Pound
Sterling (in each case, for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period. If such rate is not available
at such time for any reason, then the "Eurocurrency Base Rate" for such
Interest Period shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars or the applicable Foreign
Currency for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America's London Branch to major
banks in the London interbank eurocurrency market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period.
"Eurocurrency Rate Loan" means a Loan that bears interest at a rate
based on the Eurocurrency Rate.
"Eurocurrency Reserve Percentage" means for any day during any
Interest Period the reserve percentage (expressed as a decimal, carried out to
five decimal places) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the FRB for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurocurrency Rate for each
22
outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurocurrency Reserve Percentage.
"Eurodollar Rate Loan" means any Eurocurrency Loan denominated in
Dollars.
"Event of Default" has the meaning specified in Section 8.01.
"Excess Cash Flow" means, for any period, the remainder of
(a) the sum of (i) Consolidated EBITDA for such period
plus
----
(ii) the aggregate amount of all extraordinary cash gains
received by the U.S. Borrower and its Subsidiaries during such period
less
----
(b) the sum, without duplication, of
(i) repayments of principal of Term Loans pursuant to Section
2.08, scheduled principal payments arising with respect to any other
long-term Indebtedness of the U.S. Borrower and its Subsidiaries, and the
portion of any scheduled payments with respect to Capital Leases allocable
to principal, in each case made during such period,
plus
----
(ii) voluntary prepayments of the Term Loans pursuant to
Section 2.07(a), voluntary principal prepayments arising with respect to
any other Indebtedness of the U.S. Borrower and its Subsidiaries and
permanently reducing such Indebtedness, and the portion of any voluntary
prepayments with respect to Capital Leases allocable to principal, in each
case to the extent permitted hereunder and made during such period,
plus
----
(iii) mandatory prepayments of the Term Loans pursuant to
Section 2.07(b)(ii), (iii) and (iv) made during such period to the
extent that the applicable Net Cash Proceeds applied to such mandatory
prepayments were taken into account in calculating Consolidated EBITDA
for such period,
plus
----
(iv) cash payments made in such period with respect to Capital
Expenditures,
plus
----
23
(v) all federal, state, local and foreign Taxes paid by the
U.S. Borrower and its Subsidiaries during such period,
plus
----
(vi) the cash component of Consolidated Interest Charges of the
U.S. Borrower and its Subsidiaries during such period,
plus
----
(vii) cash Restricted Payments permitted under Section 7.06 and
paid by the U.S. Borrower and its Subsidiaries during such period,
plus
----
(viii) non-recurring cash charges (including, without limitation,
cash Restructuring Charges),
plus
----
(ix) proceeds received by or on behalf of the U.S. Borrower and
its Subsidiaries from insurance claims with respect to casualty events,
business interruption or product recalls which reimburse prior business
expenses, to the extent such proceeds were taken into account when
calculating Consolidated EBITDA for such period,
plus
----
(x) cash expenses or charges incurred in connection with or in
contemplation of any Investment permitted under Section 7.03, issuance of
Equity Interests permitted hereunder and issuance or incurrence of
Indebtedness permitted by Section 7.02 (whether or not consummated),
plus
----
(xi) to the extent not deducted in calculating Consolidated
EBITDA, fees and expenses (including any applicable premium) in connection
with the Refinancing or exchanges, redemptions or refinancings permitted
by this Agreement, in each case to the extent incurred during such period,
plus
----
(xii) cash expenses incurred in connection with deferred
compensation arrangements in connection with the Nu-Gro Transaction and
the UPG Acquisition,
plus
----
(xiii) cash from operations used to consummate a Permitted
Acquisition,
plus
----
24
(xiv) Net Cash Proceeds of permitted equity issuances, to the
extent such proceeds were taken into account when calculating Consolidated
EBITDA for such period,
plus
----
(xv) Net Cash Proceeds received during such period pending
reinvestment in accordance with the provisions of Section 2.07(b), to the
extent such proceeds were taken into account when calculating Consolidated
EBITDA for such period
plus
----
(xvi) cash payments made in satisfaction of non-current
liabilities,
plus
----
(xvii) the aggregate amount of all extraordinary cash charges
made by the Borrower and its Subsidiaries during such period plus/minus
changes in working capital.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or
on account of any obligation of the Borrowers hereunder, (a) Taxes imposed on
or measured by its overall net income (however denominated), and franchise
Taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or in which it otherwise
does business or, in the case of any Lender, in which its applicable Lending
Office is located or in which it otherwise does business, (b) any branch
profits taxes imposed by the United States or any similar Tax imposed by any
other jurisdiction in which the Borrowers are located, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by a Borrower
under Section 10.14), any (i) United States withholding tax with respect to the
U.S. Borrower, (ii) German withholding tax with respect to the Euro Borrower
and (iii) United Kingdom withholding tax with respect to the UK Borrower, in
each case that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party hereto (or designates a new Lending Office)
or is attributable to such Foreign Lender's failure or inability (other than as
a result of a Change in Law) to comply with Section 3.01(f), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new Lending Office (or assignment), to receive
additional amounts from the applicable Borrower with respect to such Tax
pursuant to Section 3.01(a) and (d) in the case of a Lender that is neither a
Foreign Lender nor a Lender in respect of a Loan made to a Borrower
incorporated in the United Kingdom (to which the provisions of Section 3.01(h)
apply), in each case other than an assignee pursuant to a request by a Borrower
under Section 10.14, any Tax that is imposed on amounts payable to such Lender
at the time such Lender becomes a party hereto (or designates a new Lending
Office) or is attributable to such Lender's failure or inability (other than as
a result of a Change in Law) to comply with Section 3.01(f), except to the
extent that such Lender (or its assignor, if any) was
25
entitled at the time of designation of a new Lending Office (or assignment), to
receive additional amounts from the applicable Borrower with respect to such
Tax pursuant to Section 3.01(a).
"Existing Letters of Credit" means the letters of credit outstanding
under the Existing Rayovac Credit Agreement and the Existing UIC Credit
Agreement, as set forth on Schedule V.
"Existing Rayovac Credit Agreement" means has the meaning specified in
the preliminary statements hereto.
"Existing UIC Credit Agreement" means that certain Amended and
Restated Credit Agreement dated as of July 30, 2004 among UIC as borrower, Bank
of America, N.A. as administrative agent, and the lenders party thereto.
"Facility" means the Canadian Term Facility, the Dollar Term Facility,
the Euro Term Facility, the U.S. Revolving Credit Facility, the Euro Revolving
Credit Facility, the UK Revolving Credit Facility, the Dollar Swing Line
Sublimit, the Euro Swing Line Sublimit, the UK Swing Line Sublimit, the Dollar
Letter of Credit Sublimit, the Euro Letter of Credit Sublimit or the UK Letter
of Credit Sublimit, 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 of New York 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 Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated January 3, 2005 among
the U.S. Borrower, the Administrative Agent and the Joint Book Managers.
"Fitch" means Fitch Ratings and any successor thereto.
"Foreign Collateral Documents" means the Canadian Share Pledge, the
Netherlands Share Pledge, the Caymans Share Charges, the German Account Pledge
Agreement, the German Share Pledges, the German Global Assignment Agreement,
the German Security Transfer Agreement and any other Collateral Document
governed by laws other than laws of the U.S. or a subdivision thereof.
"Foreign Currency" means Euro, Canadian Dollars or Pounds Sterling.
"Foreign Government Scheme or Arrangement" has the meaning specified
in Section 5.12(d).
26
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than the United States, each State thereof and the
District of Columbia.
"Foreign Plan" has the meaning specified in Section 5.12(c).
"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 (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"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, which are applicable to the
circumstances as of the date of determination.
"German Account Pledge Agreement" means the account pledge agreement
to be entered into with respect to the accounts of the Euro Borrower.
"German Collateral Agreement" means any Foreign Collateral Document
governed by the Laws of the Federal Republic of Germany.
"German Finance Co." means ROV German Finance GmbH.
"German Global Assignment" means the Global Assignment Agreement dated
as of October 1, 2002 (as amended by the Global Amendment Agreement dated as of
the Closing Date) between the Euro Borrower, as assignor, and the
Administrative Agent, as assignee.
"German Loan Party" has the meaning specified in Section 7.20.
"German Security Interest" has the meaning specified in Section
9.02(a).
"German Security Transfer Agreement" means the Security Transfer
Agreement dated as of October 1, 2002 (as amended by the Global Amendment
Agreement dated as of the Closing Date) between the Euro Borrower, as
transferor, and the Administrative Agent, as transferee.
"German Share Pledges" means, collectively, (a) one or more share
pledges to be entered into with respect to the Equity Interests of (i) ROV
German General Partner GmbH, (ii) ROV German Limited GmbH, and (iii) the Euro
Borrower and (b) the Rayovac Europe GmbH Share Pledge."
"Governmental Authority" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising
27
executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government (including any supra-national
bodies such as the European Union or the European Central Bank).
"Granting Lender" has the meaning specified in Section 10.06(h).
"Guarantee" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness 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 Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). 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, the ROV Guarantors, the KGaA
Guarantors, the UK Guarantors and each other Subsidiary of the U.S. Borrower
that shall be required to execute and deliver a guaranty or guaranty supplement
pursuant to Section 6.12.
"Hazardous Materials" means all radioactive substances, radioactive
wastes, hazardous or toxic substances, hazardous or toxic wastes, or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, hazardous
materials and all other substances or wastes of any nature regulated as
hazardous, toxic or pollutants 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.
"Increase Date" has the meaning specified in Section 2.16(a).
"Increasing Lender" has the meaning specified in Section 2.16(b).
"Incremental Commitments" has the meaning specified in Section
2.16(a).
"Incremental Facility" has the meaning specified in Section 2.16(a).
28
"Incremental Revolving Credit Facility" has the meaning specified in
Section 2.16(a).
"Incremental Term Facility" has the meaning specified in Section
2.16(a).
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, each to the extent treated as indebtedness
or liabilities in accordance with GAAP:
(a) all indebtedness 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 of all direct or contingent obligations of such
Person arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
(c) all obligations of such Person to pay the deferred purchase price
of property or services (other than trade accounts and accrued expenses
payable in the ordinary course of business);
(d) 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) in an amount up to the lesser of the amount of indebtedness so
secured and the fair market value of the property securing such
indebtedness, whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(e) all Attributable Indebtedness;
(f) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any cash payment in respect of any Equity
Interest in such Person or any other Person or any warrant, right or
option to acquire such Equity Interest, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; and
(g) 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.
"Indemnified Taxes" means Taxes arising from any payment hereunder or
under any other Loan Document other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
29
"Information" has the meaning specified in Section 10.07.
"Information Memorandum" means the Information Memorandum dated
January 2005 used by the Arrangers in connection with the syndication of the
Commitments.
"Intellectual Property Security Agreement" has the meaning specified
in Section 4.01(a)(iv).
"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,
however, that if any Interest Period for a Eurocurrency 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 Dollar 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 Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the applicable Borrower in its
Committed Loan Notice or, to the extent available to all applicable Lenders,
nine or twelve months thereafter or, in respect of the initial Credit Extension
and solely to the extent provided in Section 2.02(f), 64 days or 98 days
thereafter; 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 (i) such Business Day falls in another calendar month or (ii) such
Business Day falls more than 365 days after the commencement of such
Interest Period (or if such Interest Period includes February 29, 366
days), 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.
"Internal Control Event" means a material fraud that involves
management employees who have a significant role in the U.S. Borrower's
internal controls over financial reporting, in each case as described in the
Securities Laws.
"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 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 interest in, another
30
Person, or (c) the purchase or other acquisition (in one transaction or a
series of transactions) of assets of another Person that constitute a business
unit or all or a substantial part of the business 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 Rights" has the meaning specified in Section 5.16.
"IP Security Agreement Supplement" has the meaning specified in
Section 12(f) of the Security Agreement.
"IRB Debt" means Indebtedness of the U.S. Borrower arising as a result
of the issuance of tax-exempt industrial revenue bonds or similar tax-exempt
public financing.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, 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).
"Issuer Documents" means with respect to any Letter of Credit, the
Letter of Credit Application, and any other document, agreement and instrument
entered into by the L/C Issuer and any Borrower (or any Subsidiary) or in favor
of the L/C Issuer and relating to any such Letter of Credit.
"KGaA Guarantors" means, collectively, the U.S. Borrower, the
Subsidiaries of the U.S. Borrower listed on Schedule I and each other
Subsidiary of the U.S. Borrower that shall be required to execute and deliver a
guaranty or guaranty supplement pursuant to Section 6.12(a)(i)(B).
"KGaA Guaranty" means, collectively, the KGaA Guaranty made by the
KGaA Guarantors in favor of the Administrative Agent, the L/C Issuers and the
Lenders, substantially in the form of Exhibit F-2, together with each other
guaranty and guaranty supplement delivered pursuant to Section 6.12(a)(i)(B).
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, regulations, ordinances and codes, and all
applicable administrative orders and agreements with, any Governmental
Authority, in each case having the force of law.
"L/C Advance" means, as the context may require, any or all of the
Dollar L/C Advances, Euro L/C Advances and UK L/C Advances.
"L/C Borrowing" means as the context may require, any or all of the
Dollar L/C Borrowings, Euro L/C Borrowings or UK L/C Borrowings.
"L/C Credit Extension" means, with respect to any Letter of Credit,
the issuance thereof or extension of the expiry date thereof, or the increase
of the amount thereof.
31
"L/C Issuer" means Bank of America in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
"L/C Obligations" means, any or all of, as the context may require,
the Dollar L/C Obligations, Euro L/C Obligations or UK L/C Obligations.
"Lender" has the meaning specified in the introductory paragraph
hereto and, as the context requires, includes the Swing Line Lender.
"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
Borrowers under the Facilities as to which such Lender has a Commitment and the
Administrative Agent.
"Letter of Credit" means, as the context requires, one or all of
Dollar Letters of Credit, Euro Letters of Credit and UK Letters 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, as the context requires, the
Dollar Letter of Credit Expiration Date, the Euro Letter of Credit Expiration
Date, or the UK Letter of Credit Expiration Date.
"Letter of Credit Fee" means any or all of (as the context requires) a
Dollar Letter of Credit Fee, Euro Letter of Credit Fee or UK Letter of Credit
Fee.
"Letter of Credit Sublimit" means, as the context may require, the
Dollar Letter of Credit Sublimit, the Euro Letter of Credit Sublimit or the UK
Letter of Credit Sublimit.
"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 in the nature
of a security interest of any kind (including any conditional sale or other
title retention agreement, any easement, right of way or other encumbrance on
title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing but not including the interest of a
lessor under an operating lease).
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Term Loan, a Revolving Credit Loan or a Swing Line
Loan.
"Loan Documents" means, collectively, (a) this Agreement, (b) the
Notes, (c) the ROV Guaranty, (d) the KGaA Guaranty, (e) the UK Guaranty, (f)
the Collateral Documents, (g) the Fee Letter, (h) each Issuer Document, (i)
each Secured Hedge Agreement and (j) each agreement evidencing a Qualified
Foreign Credit Facility or a Guarantee thereof; provided, that for purposes of
Articles IV through VIII, "Loan Documents" shall not include Secured Hedge
Agreements or agreements evidencing Qualified Foreign Credit Facilities or a
Guarantee thereof.
32
"Loan Parties" means, collectively, each Borrower and each Guarantor.
"Managing Agent" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its capacity as managing
agent.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, assets or condition
(financial or otherwise) of the U.S. Borrower and its Subsidiaries, taken as a
whole; (b) a material impairment of the rights and remedies of the
Administrative Agent or any Lender under any Loan Document, or of the ability
of the Loan Parties, taken as a whole, to perform the obligations under the
Loan Documents; or (c) as of the Closing Date, a reasonable expectation of the
Arrangers that the Senior Credit Facilities, the Acquisition or the Merger,
could be materially adversely affected.
"Maturity Date" means (a) with respect to the U.S. Revolving Credit
Facility, the earlier of (i) February 6, 2011 and (ii) the date of termination
in whole of the U.S. Revolving Credit Commitments pursuant to Section 2.08 or
8.02, (b) with respect to the Euro Revolving Credit Facility, the earlier of
(i) February 6, 2011 and (ii) the date of termination in whole of the Euro
Revolving Credit Commitments pursuant to Section 2.08 or 8.02, (c) with respect
to the UK Revolving Credit Facility, the earlier of (i) February 6, 2011 and
(ii) the date of termination in whole of the UK Revolving Credit Commitments
pursuant to Section 2.08 or 8.02 and (d) with respect to each of the Term
Facilities, the earlier of (i) February 6, 2012 and (ii) the date of
termination in whole of the Term Commitments pursuant to Section 2.08 or 8.02.
"Maximum Rate" has the meaning specified in Section 10.10.
"Merger" has the meaning specified in the Preliminary Statements to
this Agreement.
"Merger Agreement" has the meaning specified in the Preliminary
Statements to this Agreement.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation and its
successors.
"MLPF&S" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ and its
successors.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"Mortgage" has the meaning specified in Section 6.18(a).
"Mortgage Amendment" means an amendment, substantially in the form of
Exhibit H-2, to a Mortgage previously executed by any Loan Party or Subsidiary.
"Mortgage Policy" has the meaning specified in Section 6.18(a).
"Mortgage Properties" shall mean the fee owned real properties and the
leasehold interests listed on Schedule 6.18 hereto.
33
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the U.S. Borrower or any
ERISA Affiliate makes or is obligated to make contributions.
"Net Cash Proceeds" means:
(a) with respect to any Disposition by the U.S. Borrower or
any of its Subsidiaries, the excess, if any, of (i) the sum of cash
and Cash Equivalents received in connection with such transaction
(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) over (ii) the sum of (A)
the principal amount of any Indebtedness that is secured by the
applicable asset or owed by a Subsidiary and that is required to be
repaid in connection with such transaction (other than Indebtedness
under the Loan Documents), together with any interest, premium or
penalties required to be paid in connection therewith, (B) the direct
costs and expenses (including sales commissions and legal, accounting
and investment banking fees but excluding costs and expenses owed to
any Affiliate of the U.S. Borrower (other than THLee)) incurred by the
U.S. Borrower or such Subsidiary in connection with such transaction,
(C) Taxes reasonably estimated to be actually payable within two years
of the date of the relevant transaction as a result of any gain
recognized in connection therewith and (D) any reserve for adjustment
in respect of (x) sale price of such assets established in accordance
with GAAP and (y) any liabilities associated with such asset or assets
and retained by the Borrowers or any of their respective 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
indemnifications obligations associated with such transaction; and
(b) with respect to the incurrence or issuance of any
Indebtedness by the U.S. Borrower or any of its Subsidiaries, the
excess of (i) the sum of the cash and Cash Equivalents received in
connection with such transaction over (ii) the sales and underwriting
discounts, fees and commissions, and other direct costs and expenses
(including legal, accounting and investment banker fees), incurred by
the U.S. Borrower or such Subsidiary in connection therewith.
"Netherlands Share Pledge" means the share pledge to be entered into
in respect of the Equity Interests of Varta B.V., in form and substance
satisfactory to the Administrative Agent.
"Newco" has the meaning specified in the Preliminary Statements to
this Agreement.
"Non-Consenting Lender" has the meaning specified in Section 10.01.
"Non-Dollar Letters of Credit" means the Existing Letters of Credit
listed on Schedule V that are denominated in a currency other than Dollars.
"NonExtension Notice Date" has the meaning specified in Section
2.03(b)(iii).
34
"Note" means a Term Note or a Revolving Credit Note, as the context
may require.
"NPL" means the National Priorities List under CERCLA.
"NuGro Transaction" means the acquisition by UIC of all the equity
interests of The Nu-Gro Corporation, an Ontario corporation, as consummated on
April 30, 2004, and each of the related transactions entered into on April 30,
2004, in each case, as permitted under and specified by that certain Credit
Agreement dated as of April 30, 2004 among UIC, as borrower, certain banks,
financial institutions and other institutional lenders party thereto and Bank
of America, as administrative agent for the lenders thereunder.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof 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.
"OECD" means the Organization for Economic Cooperation and
Development.
"OECD Member" means a country that signed or ratified the Convention
on the Organisation for Economic Cooperation and Development and is thus a
member of OECD.
"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.
"Other Taxes" means all present or future stamp, documentary, excise,
property, intangible, mortgage recording or similar taxes, charges or similar
levies arising from any payment made hereunder or under any other Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document.
"Outstanding Amount" means, without duplication, (a) with respect to
Term Loans, Revolving Credit Loans and Swing Line Loans on any date, the
aggregate outstanding principal amount thereof (calculated in respect of Loans
denominated in a Foreign Currency on the Equivalent thereof in Dollars at such
time) after giving effect to any borrowings and prepayments or repayments of
Term Loans, Revolving Credit Loans and Swing Line Loans, as the case may be,
occurring on such date; and (b) with respect to any L/C Obligations on any
date,
35
the amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements by a Borrower of Unreimbursed Amounts.
"Overnight Rate" means with respect to any Euro Swing Line Loan, UK
Swing Line Loan or any unpaid sum denominated in a currency other than Dollars,
the rate of interest per annum determined by the Administrative Agent as the
rate of interest at which deposits in the applicable currency, in the
approximate amount of such Euro Swing Line Loan, such UK Swing Line Loan or
such sum and having a term of one Business Day (or, in the case of a Euro Swing
Line Loan or UK Swing Line Loan, such other period not exceeding ten Business
Days as may be agreed by the Euro Borrower or the UK Borrower, as applicable,
and the Swing Line Lender), would be offered to major banks in the London
interbank market at their request at approximately 1:00 p.m. (London time) (or
such other period of time as the Administrative Agent determines is customary
for deposits in the applicable currency and for the applicable term) on the
term for which such rate is being determined (or, in the case of a Euro Swing
Line Loan or a UK Swing Line Loan, such other rate as may be agreed upon
between the Euro Borrower of the UK Borrower, as applicable, and the Swing Line
Lender).
"Overnight Rate Loan" means a Loan having interest at the Overnight
Rate.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"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 the U.S.
Borrower or any ERISA Affiliate or to which the U.S. Borrower or any ERISA
Affiliate contributes or has an obligation to contribute or to which the U.S.
Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Permitted Acquisition" means an Investment that is consummated in
compliance with the requirements of Section 7.03(h).
"Permitted Encumbrances" has the meaning specified in the Mortgages.
"Permitted Lien" has the meaning specified in Section 7.01.
"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 the U.S. Borrower or, with respect to any
such plan that is subject to Section 412 of the Code or Title IV of ERISA, any
ERISA Affiliate.
"Platform" has the meaning specified in Section 6.02.
36
"Pledged Debt" has the meaning specified in Section 1(d) of the
Security Agreement.
"Pledged Equity" has the meaning specified in Section 1(d) of the
Security Agreement.
"Pound Sterling" or "(pound)" means lawful money of the United
Kingdom.
"Public Lender" has the meaning specified in Section 6.02.
"Qualified Foreign Credit Facility" means a credit facility provided
by a Lender or an Affiliate of a Lender to any foreign Subsidiary that (a) is
guaranteed by the U.S. Borrower, (b) is permitted under Section 7.02(g) and (d)
and (c) the U.S. Borrower has specified in a written notice to the
Administrative Agent is entitled to the benefit of the ROV Guaranty, the KGaA
Guaranty, the UK Guaranty and the Collateral Documents.
"Qualified Foreign Lender" means any Person that is a Lender or an
Affiliate of a Lender, in its capacity as a party to a Qualified Foreign Credit
Facility.
"Rayovac Europe GmbH Share Pledge" means the Share Pledge Agreement
dated as of the Closing Date among ROV Holding, as pledgor, and the
Administrative Agent and the lenders named therein, as pledgees, with respect
to the Equity Interests of Rayovac Europe GmbH.
"Refinancing" has the meaning specified in the Preliminary Statements
to this Agreement.
"Register" has the meaning specified in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified by the
Securities Laws and shall be independent of the U.S. Borrower as described by
the Securities Laws.
"Related Documents" means the Merger Agreement, the Shareholders
Agreement and the Standstill Agreement.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Person's Affiliates.
"Relevant Local Time" means, with respect to any notice being given or
any payment being made, the local time in the zone in which such notice or
payment is received.
"Relevant Undertakings" has the meaning specified in Section 7.20.
"Renminbi," "Yuan" and "Y" mean lawful money of China.
37
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than events for which the 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 Canadian Term Lenders" means, as of any date of
determination, Canadian Term Lenders holding more than 50% of the aggregate
principal amount of the Canadian Term Loans outstanding on such date; provided
that the Canadian Term Loans held by any Defaulting Lender shall be excluded
for purposes of making a determination of Required Canadian Term Lenders.
"Required Dollar Letter of Credit Lenders" means, as of any date of
determination, U.S. Revolving Credit Lenders holding more than 50% of the sum
of the (a) Total U.S. Revolving Credit Outstandings (with the aggregate amount,
without duplication, of each U.S. Revolving Credit Lender's risk participation
and funded participation in Dollar L/C Obligations and Dollar Swing Line Loans
being deemed "held" by such U.S. Revolving Credit Lender for purposes of this
definition) and (b) aggregate unused U.S. Revolving Credit Commitments;
provided that the unused U.S. Revolving Credit Commitment of, and the portion
of the Total U.S. Revolving Credit Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required U.S. Letter of Credit Lenders.
"Required Dollar Term Lenders" means, as of any date of determination,
Dollar Term Lenders holding more than 50% of the aggregate principal amount of
the Dollar Term Loans outstanding on such date; provided that the Dollar Term
Loans held by any Defaulting Lender shall be excluded for purposes of making a
determination of Required Dollar Term Lenders.
"Required Euro Letter of Credit Lenders" means, as of any date of
determination, Euro Revolving Credit Lenders holding more than 50% of the sum
of the (a) Total Euro Revolving Credit Outstandings (with the aggregate amount,
without duplication, of each Euro Revolving Credit Lender's risk participation
and funded participation in Euro L/C Obligations and Euro Swing Line Loans
being deemed "held" by such Euro. Revolving Credit Lender for purposes of this
definition) and (b) aggregate unused Euro Revolving Credit Commitments;
provided that the unused Euro Revolving Credit Commitment of, and the portion
of the Total Euro Revolving Credit Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Euro Letter of Credit Lenders.
"Required Euro Term Lenders" means, as of any date of determination,
at Euro Term Lenders holding more than 50% of the aggregate principal amount of
the Euro Term Loans outstanding on such date; provided that the Euro Term Loans
held by any Defaulting Lender shall be excluded for purposes of making a
determination of Required Euro Term Lenders.
38
"Required Lenders" means, as of any date of determination, Lenders
holding more than 50% of the sum of the (a) Total Outstandings (with the
aggregate amount, without duplication, of each Revolving Credit Lender's risk
participation and funded participation in L/C Obligations and Swing Line Loans
being deemed "held" by such Revolving Credit Lender for purposes of this
definition) and (b) aggregate unused Revolving Credit Commitments; provided
that the 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.
"Required Revolving Lenders" means, as of any date of determination,
Revolving Credit Lenders holding more than 50% of the sum of the (a) Total U.S.
Revolving Credit Outstandings (with the aggregate amount, without duplication,
of each U.S. Revolving Credit Lender's risk participation and funded
participation in Dollar L/C Obligations and Dollar Swing Line Loans being
deemed "held" by such U.S. Revolving Credit Lender for purposes of this
definition), (b) Total Euro Revolving Credit Outstandings (with the aggregate
amount, without duplication, of each Euro Revolving Credit Lender's risk
participation and funded participation in Euro L/C Obligations Euro Swing Line
Loans being deemed "held" by such Euro Revolving Credit Lender for purposes of
this definition), (c) Total UK Revolving Credit Outstandings (with the
aggregate amount, without duplication, of each UK Revolving Credit Lender's
risk participation and funded participation being deemed "held" by such UK
Revolving Credit Lender for purposes of this definition), (d) aggregate unused
U.S. Revolving Credit Commitments, (e) aggregate unused Euro Revolving Credit
Commitments and (f) aggregate unused UK Revolving Credit Commitments; provided
that the unused Revolving Credit Commitment of, and the portion of the Total
U.S. Revolving Credit Outstandings, Total Euro Revolving Credit Outstandings or
Total UK Revolving Credit Outstandings held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Revolving Lenders.
"Required Term Lenders" means, as of any date of determination, Term
Lenders holding more than 50% of the aggregate principal amount of the Term
Loans outstanding on such date; provided that the Term Loans held by any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Term Lenders.
"Required UK Letter of Credit Lenders" means, as of any date of
determination, UK Revolving Credit Lenders holding more than 50% of the sum of
the (a) Total UK Revolving Credit Outstandings (with the aggregate amount,
without duplication, of each UK Revolving Credit Lender's risk participation
and funded participation in UK L/C Obligations and UK Swing Line Loans being
deemed "held" by such UK Revolving Credit Lender for purposes of this
definition) and (b) aggregate unused UK Revolving Credit Commitments; provided
that the unused UK Revolving Credit Commitment of, and the portion of the Total
UK Revolving Credit Outstandings held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required UK Letter
of Credit Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer of a Loan Party, or
in the case of the U.K. Borrower, a director. 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,
39
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 with
respect to any capital stock or other Equity Interest of any Person or any of
its Subsidiaries, or any payment, including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such capital stock or other
Equity Interest, or on account of any return of capital to any Person's
stockholders, partners or members (or the equivalent of any thereof).
"Restructuring Charges" means all cash and noncash charges related to
the integration of an acquisition or non-recurring charges related to a
non-recurring restructuring of operations of the U.S. Borrower and its
Subsidiaries appearing or disclosed in the audited consolidated financial
statements of the U.S. Borrower and its Subsidiaries.
"Revolving Credit Borrowing" means any or all of (as the context may
require) a U.S. Revolving Credit Borrowing, a Euro Revolving Credit Borrowing
or a UK Revolving Credit Borrowing.
"Revolving Credit Commitment" means any or all of (as the context may
require) a U.S. Revolving Credit Commitment, a Euro Revolving Credit Commitment
or a UK Revolving Credit Commitment.
"Revolving Credit Facility" means any or all of (as the context may
require) the U.S. Revolving Credit Facility, the Euro Revolving Credit Facility
or the U.K. Revolving Credit Facility.
"Revolving Credit Lender" means any or all of (as the context may
require) a U.S. Revolving Credit Lender, a Euro Revolving Credit Lender or a UK
Revolving Credit Lender.
"Revolving Credit Loan" means any or all of (as the context may
require) a U.S. Revolving Credit Loan, a Euro Revolving Credit Loan or a UK
Revolving Credit Loan.
"Revolving Credit Note" means any or all of (as the context may
require) a U.S. Revolving Credit Note, a Euro Revolving Credit Note or a UK
Revolving Credit Note.
"▇▇▇▇▇▇/▇▇▇▇▇ Acquisitions" means the acquisition of one or more of
the Euro Borrower's leased facilities located in Ellwangen, Germany and
Dischingen, Germany, currently owned by ▇▇▇▇▇
Grundstucksverwaltungsgesellschaft mbH & Co. Vermietungs-KG, Mannheim and
▇▇▇▇▇▇ Grundstucksvermietungsgesellschaft mbH & Co. Object Dischingen KG,
Dusseldorf, respectively, or the equity interests of one or both such entities,
for an aggregate purchase price not to exceed (euro)20,000,000.
"ROV German Holding" means Rayovac Europe GmbH, with a registered seat
in Sulzbach, registered under file no. HRB 55482 with the Commercial Register
(Handelsregister) located with the local court (Amtsgericht) Frankfurt am Main,
Germany.
40
"ROV GP GmbH" means ROV German General Partner GmbH, with a registered
seat in Sulzbach, registered under file no. HRB 55425 with the Commercial
Register (Handelsregister) located with the local court (Amtsgericht) Frankfurt
am Main, Germany.
"ROV Guarantors" means, collectively, the Subsidiaries of the U.S.
Borrower listed on Schedule II and each other Subsidiary of the U.S. Borrower
that shall be required to execute and deliver a guaranty or guaranty supplement
pursuant to Section 6.12(a)(i)(A).
"ROV Guaranty" means, collectively, the ROV Guaranty made by the ROV
Guarantors in favor of the Secured Parties, substantially in the form of
Exhibit F-1, together with each other guaranty and guaranty supplement
delivered pursuant to Section 6.12(a)(i)(A).
"ROV Holding" means ROV Holding, Inc., a corporation organized under
the laws of Delaware.
"ROV LP GmbH" means ROV German Limited GmbH, with a registered seat in
Sulzbach, registered under file no. HRB 55352 with the Commercial Register
(Handelsregister) located with the local court (Amtsgericht) Frankfurt am Main,
Germany.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Secured Hedge Agreement" means any interest rate Swap Contract
required or permitted under Article VI or VII that is entered into by and
between any Borrower and any Lender or Affiliate of a Lender.
"Secured Obligations" means all Obligations of the Loan Parties now or
hereafter existing under the Loan Documents.
"Secured Parties" means, collectively, the Administrative Agent, the
Lenders, the L/C Issuer, the Hedge Banks, the Qualified Foreign Lenders, each
co-agent or sub-agent appointed by the Administrative Agent from time to time
pursuant to Section 9.06, and the other Persons the Secured Obligations owing
to which are or are purported to be secured by the Collateral under the terms
of the Collateral Documents.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇, and, in each case, the rules and
regulations of the SEC promulgated thereunder, and the applicable accounting
and auditing principles, rules, standards and practices promulgated, approved
or incorporated by the SEC or the Public Company Accounting Oversight Board, as
each of the foregoing may be amended and in effect on any applicable date under
this Agreement.
"Security Agreement" has the meaning specified in Section
4.01(a)(iii).
41
"Security Agreement Supplement" has the meaning specified in Section
22 of the Security Agreement.
"Shareholders' Agreement" means the Shareholders' Agreement dated as
of January 3, 2005, by and between the U.S. Borrower and UIC Holdings.
"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 the total amount of liabilities, including 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 10.06(h).
"Standstill Agreement" means the Standstill Agreement to be dated as
of February 7, 2005, by and among UIC Holdings, THLee and the U.S. Borrower.
"Subordinated Notes" means the 2013 Notes and the 2015 Notes.
"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 (including, for the avoidance of doubt, a company,
corporation or partnership which is a "dependent enterprise" (abhangiges
Unternehmen) of such Person within the meaning of Section 17 of the German
Stock Corporation Act (Aktiengesetz), or which is a "subsidiary"
(Tochterunternehmen) within the meaning of Section 290 of the German Commercial
Code (Handelsgesetzbuch) of such Person, or where such Person has the power to
direct the management and the policies of such entity whether through the
ownership of share capital, contract or otherwise). Unless otherwise specified,
all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of U.S. Borrower.
"Subsidiary Borrower" has the meaning specified in the introductory
paragraph hereto.
"Supplemental Collateral Agent" has the meaning specified in Section
9.12(a) and "Supplemental Collateral Agents" shall have the corresponding
meaning.
42
"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" means any or all of (as the context may require) the
Dollar Swing Line, the Euro Swing Line or the UK Swing Line.
"Swing Line Borrowing" means any or all of (as the context may
require) a Dollar Swing Line Borrowing, a Euro Swing Line Borrowing or a UK
Swing Line Borrowing.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" means any or all of (as the context may require) a
Dollar Swing Line Loan, a Euro Swing Line Loan or a UK Swing Line Loan.
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.06(d), which, if in writing, shall be substantially in
the form of Exhibit B.
"Syndication Agent" means CNAI in its capacity as syndication agent
hereunder.
"Synthetic Debt" means, with respect to any Person as of any date of
determination thereof, all Obligations of such Person in respect of
transactions entered into by such Person that are intended to function
primarily as a borrowing of funds (including any minority interest transactions
that function primarily as a borrowing) but are not otherwise included in the
definition of "Indebtedness" or as a liability on the consolidated balance
sheet of such Person and its Subsidiaries in accordance with GAAP.
43
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property (including sale and
leaseback transactions), in each case, creating obligations that do not appear
on the balance sheet of such Person but which, upon the application of any
Debtor Relief Laws to such Person, would be characterized as the indebtedness
of such Person (without regard to accounting treatment).
"TARGET Day" means any day on which the Trans-European Automated
Real-time Gross settlement Express Transfer payment system is open for the
settlement of payments in Euro.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Term Borrowing" means either a Canadian Term Borrowing, a Dollar Term
Borrowing or a Euro Term Borrowing.
"Term Commitment" means (as the context requires) a Canadian Term
Commitment, a Dollar Term Commitment or a Euro Term Commitment.
"Term Facilities" means (as the context requires) the Canadian Term
Facility, the Dollar Term Facility and the Euro Term Facility.
"Term Loan" means one or all of (as the context requires) a Canadian
Term Loan, a Dollar Term Loan or a Euro Term Loan.
"Term Note" means one or all of (as the context may require) a
Canadian Term Note, a Dollar Term Note or a Euro Term Note.
"THLee" means ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P. and its Affiliates.
"Threshold Amount" means $20,000,000.
"Total Assets" means, as of any day, the total consolidated assets of
the U.S. Borrower and its Subsidiaries, as shown on the most recent balance
sheet delivered pursuant to Section 6.01.
"Total Euro Revolving Credit Outstandings" means the aggregate
Outstanding Amount of all Euro Revolving Credit Loans, Euro L/C Obligations and
Euro Swing Line Loans.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"Total UK Revolving Credit Outstandings" means the aggregate
Outstanding Amount of all UK Revolving Credit Loans, UK L/C Obligations and UK
Swing Line Loans.
44
"Total U.S. Revolving Credit Outstandings" means the aggregate
Outstanding Amount of all U.S. Revolving Credit Loans, Dollar Swing Line Loans
and Dollar L/C Obligations.
"Transaction" means, collectively, (a) the consummation of the Merger,
(b) the entering into by the Loan Parties and their applicable Subsidiaries of
the Loan Documents and the Related Documents to which they are or are intended
to be a party, (c) the Refinancing and (d) the payment of the fees and expenses
incurred in connection with the consummation of the foregoing.
"Treaty Lender" has the meaning specified in the definition of "UK
Lender".
"Type" means, with respect to a Loan denominated in Dollars, its
character as a Base Rate Loan or a Eurodollar Rate Loan.
"UIC" means United Industries Corporation, a Delaware corporation.
"UIC Holdings" means UIC Holdings, L.L.C., a Delaware limited
liability company.
"UIC Notes" means 9.875% senior subordinated notes of UIC existing on
the Closing Date.
"UK Borrower" has the meaning specified in the introductory paragraph
hereto.
"UK Guarantors" means, collectively, the U.S. Borrower, the
Subsidiaries of the U.S. Borrower listed on Schedule III and each other
Subsidiary of the U.S. Borrower that shall be required to execute and deliver a
guaranty or guaranty supplement pursuant to Section 6.12(a)(i)(B).
"UK Guaranty" means, collectively, the UK Guaranty made by the UK
Guarantors in favor of the Administrative Agent, the L/C Issuers and the
Lenders, substantially in the form of Exhibit F-3, together with each other
guaranty and guaranty supplement delivered pursuant to Section 6.12(a)(i)(B).
"UK Honor Date" has the meaning specified in Section 2.05(c)(i).
"UK Lender" means a Lender which is beneficially entitled to interest
payable to that Lender in respect of a loan made under this Agreement to a
Borrower incorporated in the United Kingdom and which Lender is either:
(i) a Lender:
(A) which is a bank (as defined for the purposes of Section 349 of
the UK Income and Corporation Taxes Act 1988) making an advance
under this Agreement; or
45
(B) in respect of an advance made under this Agreement by a person
that was a bank (as defined for the purposes of Section 349 of
the UK Income and Corporation Taxes Act 1988) at the time that
the advance was made,
and in either case is within the charge to UK corporation tax as
respects any payment of interest made in respect of that advance; or
(ii) a Lender which is treated as resident (for the purposes of the
relevant double taxation agreement) in a jurisdiction having a double
taxation agreement with the United Kingdom which makes provision for full
exemption from Tax imposed by the United Kingdom on interest and does not
carry on business in the United Kingdom through a permanent establishment
with which that Lender's participation in that loan is effectively
connected (a "Treaty Lender").
"UK L/C Advance" means, with respect to each UK Revolving Credit
Lender, such Lender's funding of its participation in any UK L/C Borrowing in
accordance with its Applicable Percentage.
"UK L/C Borrowing" means an extension of credit resulting from a
drawing under any UK Letter of Credit which has not been (a) reimbursed within
one Business Day following the date when made or (b) refinanced as a UK
Revolving Credit Borrowing.
"UK L/C Obligations" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding UK Letters of
Credit plus the aggregate of all Unreimbursed UK Amounts, including all UK L/C
Borrowings. For purposes of computing the amount available to be drawn under
any UK Letter of Credit, the amount of such UK Letter of Credit shall be
determined in accordance with Section 1.06. For all purposes of this Agreement,
if on any date of determination a UK Letter of Credit has expired by its terms
but any amount may still be drawn thereunder by reason of the operation of Rule
3.14 of the ISP, such UK Letter of Credit shall be deemed to be "outstanding"
in the amount so remaining available to be drawn.
"UK Letter of Credit" means any letter of credit issued hereunder that
is denominated in Pounds Sterling. A UK Letter of Credit may be a commercial
letter of credit or a standby letter of credit.
"UK Letter of Credit Expiration Date" means the day that is seven days
prior (or such later date determined in the sole discretion of the L/C Issuer)
to the Maturity Date then in effect for the UK Revolving Credit Facility (or,
if such day is not a Business Day, the next preceding Business Day).
"UK Letter of Credit Fee" has the meaning specified in Section
2.05(i).
"UK Letter of Credit Sublimit" means an amount equal to the UK
Revolving Credit Facility. The UK Letter of Credit Sublimit is part of, and not
in addition to, the UK Revolving Credit Facility.
"UK Reduction Amount" has the meaning specified in Section 2.07(b)(x).
46
"UK Revolving Credit Borrowing" means a borrowing consisting of
simultaneous UK Revolving Credit Loans to the UK Borrower having the same
Interest Period made by each of the UK Revolving Credit Lenders pursuant to
Section 2.01(f).
"UK Revolving Credit Commitment" means, as to each UK Revolving Credit
Lender, its obligation to (a) make UK Revolving Credit Loans to the UK Borrower
pursuant to Section 2.01(f), (b) purchase participations in UK L/C Obligations,
and (c) purchase participations in UK Swing Line 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 "UK Revolving
Credit Commitment" or opposite such caption 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.
"UK Revolving Credit Facility" means, at any time, the aggregate
amount of the UK Revolving Credit Lenders' UK Revolving Credit Commitments at
such time.
"UK Revolving Credit Lender" means, at any time, any Lender that has a
UK Revolving Credit Commitment at such time.
"UK Revolving Credit Loan" has the meaning specified in Section
2.01(f).
"UK Revolving Credit Note" means a promissory note made by the UK
Borrower in favor of a UK Revolving Credit Lender evidencing UK Revolving
Credit Loans or UK Swing Line Loans, as the case may be, made by such UK
Revolving Credit Lender, in substantially the form of Exhibit C-4.
"UK Swing Line" means the UK revolving credit facility made available
by the Swing Line Lender pursuant to Section 2.06.
"UK Swing Line Borrowing" means a borrowing of a UK Swing Line Loans
pursuant to Section 2.06.
"UK Swing Line Loan" has the meaning specified in Section 2.06(c).
"UK Swing Line Sublimit" means at any time an amount equal to the
lesser of (a) (pound)5,000,000 and (b) the UK Revolving Credit Facility at such
time. The UK Swing Line Sublimit is part of, and not in addition to, the UK
Revolving Credit Facility Commitments.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Dollar Amount" has the meaning specified in Section
2.03(c)(i).
47
"Unreimbursed Euro Amount" has the meaning specified in Section
2.04(c)(i).
"Unreimbursed UK Amount" has the meaning specified in Section
2.05(c)(i).
"UPG Acquisition" means the acquisition by UIC of all the outstanding
equity interests of United Pet Group, Inc., a Delaware corporation, pursuant to
a Merger Agreement dated as of June 14, 2004.
"U.S. Borrower" has the meaning specified in the introductory
paragraph hereto.
"U.S. Reduction Amount" has the meaning set forth in Section
2.07(b)(viii).
"U.S. Revolving Credit Borrowing" means a borrowing consisting of
simultaneous U.S. Revolving Credit Loans of the same Type and, in the case of
Eurocurrency Rate Loans, having the same Interest Period made by each of the
U.S. Revolving Credit Lenders pursuant to Section 2.01(d).
"U.S. Revolving Credit Commitment" means, as to each U.S. Revolving
Credit Lender, its obligation to (a) make U.S. Revolving Credit Loans to the
U.S. Borrower pursuant to Section 2.01(d), (b) purchase participations in
Dollar L/C Obligations and (c) purchase participations in Dollar Swing Line
Loans in an aggregate principal amount, without duplication, at any one time
outstanding not to exceed the amount set forth opposite such Lender's name on
Schedule 2.01 under the caption "U.S. Revolving Credit Commitment" or opposite
such caption 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.
"U.S. Revolving Credit Facility" means, at any time, the aggregate
amount of the U.S. Revolving Credit Lenders' U.S. Revolving Credit Commitments
at such time; provided that if a Chinese Facility contemplated by clause (iii)
of the definition thereof or an Additional Foreign Credit Facility is entered
into, the aggregate U.S. Revolving Credit Commitments shall be reduced by the
amount of such facility and the U. S. Revolving Credit Commitment of any Lender
that commits to such a Chinese Facility shall be reduced by the amount such
Lender so commits.
"U.S. Revolving Credit Lender" means, at any time, any Lender that has
a U.S. Revolving Credit Commitment at such time.
"U.S. Revolving Credit Loan" has the meaning specified in Section
2.01(d).
"U.S. Revolving Credit Note" means a promissory note made by the U.S.
Borrower in favor of a U.S. Revolving Credit Lender evidencing U.S. Revolving
Credit Loans made by such U.S. Revolving Credit Lender, in substantially the
form of Exhibit C-2.
"VARTA Acquisition" means the acquisition by the U.S. Borrower of
certain assets of the Euro Borrower (excluding the Euro Borrower's ownership
interest in Microlite and certain other assets transferred to the Euro
Borrower's parent or Affiliates).
48
"VARTA Acquisition Agreement" means the Agreement dated July 28, 2002
among VARTA AG, ROV German Limited GmbH and the U.S. Borrower delivered in
connection with the VARTA Acquisition.
"VARTA Exchange" means the transfer of the stock of German Finance Co.
to VARTA AG of an affiliate thereof in exchange for the stock of the Euro
Borrower owned by VARTA AG or an affiliate thereof and not more than
(euro)1,000,000, all on the terms set forth in Article XI of the VARTA
Acquisition Agreement as in effect on the date hereof.
"Wholly-Owned Subsidiary" means (i) the Euro Borrower, (ii) any Person
in which (other than director's qualifying shares or similar shares owned by
other Persons due to native ownership requirements) 100% of the capital stock
or other equity interests of each class is owned beneficially and of record by
the U.S. Borrower or by one or more Wholly-Owned Subsidiaries, and (iii) any
80% Subsidiary.
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 definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed
to be followed by the phrase "without limitation." The word "will" shall be
construed to have the same meaning and effect as the word "shall." Unless the
context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth
herein or in any other Loan Document), (ii) any reference herein to any Person
shall be construed to include such Person's successors and assigns, (iii) the
words "herein," "hereof" and "hereunder," and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references in a
Loan Document to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b) 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."
49
(c) 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.
1.03 Accounting Terms. (a) Generally. 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 applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Loan
Document, and either the U.S. Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the U.S. Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (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 and (ii) the U.S. Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.
1.04 Rounding. Any financial ratios required to be maintained by the
Borrowers pursuant to 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).
1.05 Times of Day. Unless otherwise specified, all references herein
to times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms
or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.
1.07 Currency Equivalents Generally. Unless otherwise set forth
herein, any amount specified in this Agreement in Dollars shall include the
Equivalent in Dollars of such amount in any Foreign Currency and if any amount
described in this Agreement is comprised of amounts in Dollars and amounts in
one or more Foreign Currencies, the Equivalent in Dollars of such Foreign
Currency amounts shall be used to determine the total.
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ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans. (a) The Canadian Term Borrowings. Subject to the terms
and conditions set forth herein, each Canadian Term Lender severally agrees to
make a single loan to the U.S. Borrower on the Closing Date in an amount not to
exceed such Canadian Term Lender's Canadian Term Commitment. The Canadian Term
Borrowing shall consist of Canadian Term Loans made in Canadian Dollars
simultaneously by the Canadian Term Lenders in accordance with their respective
Canadian Term Commitments. Amounts borrowed under this Section 2.01(a) and
repaid or prepaid may not be reborrowed. Canadian Term Loans shall be
Eurocurrency Rate Loans.
(b) The Dollar Term Borrowings. Subject to the terms and conditions
set forth herein, each Dollar Term Lender severally agrees to make a single
loan to the U.S. Borrower on the Closing Date in an amount not to exceed such
Dollar Term Lender's Dollar Term Commitment. The Dollar Term Borrowing shall
consist of Dollar Term Loans made in Dollars simultaneously by the Dollar Term
Lenders in accordance with their respective Dollar Term Commitments. Amounts
borrowed under this Section 2.01(b) and repaid or prepaid may not be
reborrowed. Dollar Term Loans may be Base Rate Loans or Eurocurrency Rate Loans
as further provided herein.
(c) The Euro Term Borrowings. Subject to the terms and conditions set
forth herein, each Euro Term Lender severally agrees to make a single loan to
the U.S. Borrower on the Closing Date in an amount not to exceed such Euro Term
Lender's Euro Term Commitment. The Euro Term Borrowing shall consist of Euro
Term Loans made in Euros simultaneously by the Euro Term Lenders in accordance
with their respective Euro Term Commitments. Amounts borrowed under this
Section 2.01(c) and repaid or prepaid may not be reborrowed. Euro Term Loans
shall be Eurocurrency Rate Loans.
(d) The U.S. Revolving Credit Borrowings. Subject to the terms and
conditions set forth herein, each U.S. Revolving Credit Lender severally agrees
to make loans denominated in Dollars to the U.S. Borrower (each such loan, a
"U.S. Revolving Credit Loan") to the U.S. Borrower from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender's U.S. Revolving
Credit Commitment; provided, however, that after giving effect to any U.S.
Revolving Credit Borrowing and the use of the proceeds thereof, (i) the Total
U.S. Revolving Credit Outstandings at such time shall not exceed the U.S.
Revolving Credit Facility at such time and (ii) the aggregate Outstanding
Amount of the U.S. Revolving Credit Loans of any Lender, plus such U.S.
Revolving Credit Lender's Applicable U.S. Revolving Credit Percentage of the
Outstanding Amount of all Dollar L/C Obligations, plus such U.S. Revolving
Credit Lender's Applicable U.S. Revolving Credit Percentage of the Outstanding
Amount of all Dollar Swing Line Loans determined on the date of delivery of the
applicable Committed Loan Notice shall not exceed such U.S. Revolving Credit
Lender's U.S. Revolving Credit Commitment. Within the limits of each U.S.
Revolving Credit Lender's U.S. Revolving Credit Commitment, and subject to the
other terms and conditions hereof, the U.S. Borrower may borrow under this
Section 2.01(d), prepay under Section 2.07, and reborrow under this Section
2.01(d). U.S.
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Revolving Credit Loans denominated in Dollars may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
(e) The Euro Revolving Credit Borrowings. Subject to the terms and
conditions set forth herein, each Euro Revolving Credit Lender severally agrees
to make loans denominated in Euros (each such loan, a "Euro Revolving Credit
Loan") to the Euro Borrower, from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Euro Revolving Credit Lender's Euro Revolving
Credit Commitment; provided, however, that after giving effect to any Euro
Revolving Credit Borrowing and the use of the proceeds thereof, (i) the Total
Euro Revolving Credit Outstandings at such time shall not exceed the Euro
Revolving Credit Facility at such time and (ii) the aggregate Outstanding
Amount of the Euro Revolving Credit Loans of any Lender, plus such Euro
Revolving Credit Lender's Applicable Euro Revolving Credit Percentage of the
Outstanding Amount of all Euro L/C Obligations, plus such Euro Revolving Credit
Lender's Applicable Euro Revolving Credit Percentage of the Outstanding Amount
of all Euro Swing Line Loans shall not exceed such Euro Revolving Credit
Lender's Euro Revolving Credit Commitment. Within the limits of each Euro
Revolving Credit Lender's Euro Revolving Credit Commitment, and subject to the
other terms and conditions hereof, the Euro Borrower may borrow under this
Section 2.01(e), prepay under Section 2.07, and reborrow under this Section
2.01(e). Euro Revolving Credit Loans shall be Eurocurrency Rate Loans.
(f) The UK Revolving Credit Borrowings. Subject to the terms and
conditions set forth herein, each UK Revolving Credit Lender severally agrees
to make loans denominated in Pounds Sterling (each such loan, a "UK Revolving
Credit Loan") to the UK Borrower, from time to time, on any Business Day during
the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such UK Revolving Credit Lender's UK Revolving Credit
Commitment; provided, however, that after giving effect to any UK Revolving
Credit Borrowing and the use of the proceeds thereof, (i) the Total UK
Revolving Credit Outstandings at such time shall not exceed the UK Revolving
Credit Facility at such time and (ii) the aggregate Outstanding Amount of the
UK Revolving Credit Loans of any Lender, plus such UK Revolving Credit Lender's
Applicable UK Revolving Credit Percentage of the Outstanding Amount of all UK
L/C Obligations plus such UK Revolving Credit Lender's Applicable UK Revolving
Credit Percentage of the Outstanding Amount of all UK Swing Line Loans shall
not exceed such UK Revolving Credit Lender's UK Revolving Credit Commitment.
Within the limits of each UK Revolving Credit Lender's UK Revolving Credit
Commitment, and subject to the other terms and conditions hereof, the UK
Borrower may borrow under this Section 2.01(f), prepay under Section 2.07, and
reborrow under this Section 2.01(f). UK Revolving Credit Loans shall be
Eurocurrency Rate Loans.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Canadian Term Borrowing, each Dollar Term Borrowing, each
Euro Term Borrowing, each U.S. Revolving Credit Borrowing, each Euro Revolving
Credit Borrowing, each UK Revolving Credit Borrowing, each conversion of Dollar
denominated Term Loans or U.S. Revolving Credit Loans from one Type to the
other, and each continuation of Eurocurrency Rate Loans shall be made upon the
applicable Borrower's irrevocable notice to the Administrative Agent, which may
be given by telephone. Each such notice must be received by
52
the Administrative Agent not later than (i) 1:00 p.m. three Business Days prior
to the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Base Rate Loans to Eurodollar
Rate Loans (ii) 1:00 p.m. (Relevant Local Time) three Business Days prior to
the requested date of any Borrowing or continuation of Eurocurrency Rate Loans
in any Foreign Currency, and (iii) on the requested date of any Borrowing of
Base Rate Loans; provided, however, that if a Borrower wishes to request
Eurocurrency Rate Loans having an Interest Period of nine or twelve months
duration as provided in the definition of "Interest Period", the applicable
notice must be received by the Administrative Agent not later than 1:00 p.m.
(Relevant Local Time) four Business Days prior to the requested date of such
Borrowing, conversion or continuation, whereupon the Administrative Agent shall
give prompt notice to the Lenders of such request and determine whether the
requested Interest Period is acceptable to all of them. Not later than 11:00
a.m. (Relevant Local Time), three Business Days before the requested date of
such Borrowing, conversion or continuation, the Administrative Agent shall
notify such Borrower (which notice may be by telephone) whether or not the
requested Interest Period has been consented to by all the Lenders. Each
telephonic notice by a 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
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and each Borrowing or continuation of
Eurocurrency Rate Loans in Foreign Currencies shall be in a principal amount of
(euro)5,000,000 or a whole multiple of (euro)1,000,000 in excess thereof in the
case of Loans denominated in Euros, in a principal amount of (pound)5,000,000
or a whole multiple of (pound)1,000,000 in excess thereof in the case of Loans
denominated in Pounds Sterling and in a principal amount of CAD5,000,000 or a
whole multiple of CAD1,000,000 in excess thereof in the case of Loans
denominated in Canadian Dollars. Except as provided in Sections 2.03(c) and
2.06(e), 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 telephonic request and each Committed Loan Notice shall specify (i)
whether the applicable Borrower is requesting a Canadian Term Borrowing, a
Dollar Term Borrowing, a Euro Term Borrowing, a U.S. Revolving Credit
Borrowing, a UK Revolving Credit Borrowing, a Euro Revolving Credit Borrowing,
a conversion of Dollar denominated Term Loans or Revolving Credit Loans from
one Type to the other, or a continuation of Eurocurrency 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 (expressed in the applicable currency), (iv)
in the case of Loans denominated in Dollars, the Type of Loans to be borrowed
or to which existing Term Loans or Revolving Credit Loans are to be converted,
and (v) in the case of a Eurocurrency Rate Loan, the currency and the duration
of the Interest Period with respect thereto. If a Borrower fails to specify a
Type of Loan in a Committed Loan Notice or if a Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Term Loans
or applicable Revolving Credit Loans shall be made as, or converted to, Base
Rate Loans, except in the case of Loans denominated in Foreign Currencies,
which shall always be Eurocurrency Rate Loans and upon such failure the
applicable Borrower shall be deemed to have specified an Interest Period for
Eurocurrency Rate Loans of one month. Any such automatic conversion to Base
Rate Loans or deemed Interest Period shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurocurrency
Rate
53
Loans. If a Borrower requests a Borrowing of, conversion to, or continuation of
Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify
an Interest Period, it will be deemed to have specified an Interest Period of
one month. Notwithstanding anything to the contrary herein, a Dollar Swing Line
Loan shall only be a Base Rate Loan and may not be converted to a Eurocurrency
Rate Loan.
(b) Following receipt of a Committed Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Applicable
Percentage under the applicable Facility of the applicable Canadian Term Loans,
Dollar Term Loans, Euro Term Loans, U.S. Revolving Credit Loans, Euro Revolving
Credit Loans or UK Revolving Credit Loans, and if no timely notice of a
conversion or continuation is provided by the applicable Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or automatic specification of a one month
Interest Period, as applicable, described in Section 2.02(a). In the case of a
Canadian Term Borrowing, a Dollar Term Borrowing, a Euro Term Borrowing, a U.S.
Revolving Credit Borrowing, a Euro Revolving Credit Borrowing or a UK Revolving
Credit Borrowing, each Appropriate Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 1:00 p.m. (Relevant Local Time) 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
applicable Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of such Borrower on the books of Bank of
America 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, however,
that (1) if, on the date a Committed Loan Notice with respect to a U.S.
Revolving Credit Borrowing is given by the U.S. Borrower, there are Dollar L/C
Borrowings outstanding, then the proceeds of such U.S. Revolving Credit
Borrowing first shall be applied to the payment in full of any such Dollar L/C
Borrowings and second, shall be made available to the U.S. Borrower as provided
above, (2) if, on the date a Committed Loan Notice with respect to a Euro
Revolving Credit Borrowing is given by the Euro Borrower, there are Euro L/C
Borrowings outstanding, then the proceeds of such Euro Revolving Credit
Borrowing first shall be applied to the payment in full of any such Euro L/C
Borrowing and second, shall be made available to the Euro Borrower as provided
above and (3) if, on the date a Committed Loan Notice with respect to a UK
Revolving Credit Borrowing is given by the UK Borrower, there are UK L/C
Borrowings outstanding, then the proceeds of such UK Revolving Credit Borrowing
first shall be applied to the payment in full of any such UK L/C Borrowing and
second, shall be made available to the UK Borrower as provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may
be continued or converted only on the last day of an Interest Period for such
Eurocurrency Rate Loan. During the existence of an Event of Default, no Loans
in Dollars may be requested as, converted to or continued as Eurodollar Rate
Loans and no Loans in any Foreign Currency may be requested as or continued as
Eurocurrency Rate Loans with an Interest Period of greater than one month, in
each case, without the consent of the Required Lenders.
54
(d) The Administrative Agent shall promptly notify the applicable
Borrower and the Lenders of the interest rate applicable to any Interest Period
for Eurocurrency Rate Loans upon determination of such interest rate. At any
time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the U.S. Borrower and the Lenders of any change in Bank of America's
prime rate used in determining the Base Rate promptly following the public
announcement of such change.
(e) After giving effect to all Canadian Term Borrowings and all
continuations of Canadian Term Loans, there shall be no more than 3 Interest
Periods in effect in respect of the Canadian Term Facility. After giving effect
to all Dollar Term Borrowings, all conversions of Dollar Term Loans from one
Type to the other, and all continuations of Dollar Term Loans as the same Type,
there shall be no more than 10 Interest Periods in effect in respect of the
Dollar Term Facility. After giving effect to all Euro Term Borrowings and all
continuations of Euro Term Loans, there shall be no more than 5 Interest
Periods in effect in respect of the Euro Term Facility. After giving effect to
all U.S. Revolving Credit Borrowings, all conversions of U.S. Revolving Credit
Loans from one Type to the other, and all continuations of U.S. Revolving
Credit Loans, there shall be no more than 5 Interest Periods in effect in
respect of the U.S. Revolving Credit Facility. After giving effect to all Euro
Revolving Credit Borrowings and all continuations of Euro Revolving Credit
Loans, there shall be no more than 5 Interest Periods in effect in respect of
the Euro Revolving Credit Facility. After giving effect to all UK Revolving
Credit Borrowings and all continuances of UK Revolving Credit Loans, there
shall be no more than 5 Interest Periods in effect in respect of the UK
Revolving Credit Facility.
(f) Anything in this Section 2.02 notwithstanding, for the initial
Credit Extension, the Borrowers may select Interest Periods of 64 days for up
to U.S. $70 million of Dollar Term Loans and 98 days for up to U.S. $100
million of Dollar Term Loans.
2.03 Dollar Letters of Credit.
(a) The Dollar 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 U.S. 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 Dollar
Letter of Credit Expiration Date, to issue Dollar Letters of Credit for
the account of the U.S. Borrower (or jointly for the account of the U.S.
Borrower and any Subsidiary), and to amend or extend Dollar Letters of
Credit previously issued by it, in accordance with Section 2.03(b), and
(2) to honor drawings under the Dollar Letters of Credit; and (B) the U.S.
Revolving Credit Lenders severally agree to participate in Dollar Letters
of Credit issued for the account of the U.S. Borrower (or jointly for the
account of the U.S. Borrower and any Subsidiary) and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension
with respect to any Dollar Letter of Credit, (x) the Total U.S. Revolving
Credit Outstandings at such time shall not exceed the U.S. Revolving
Credit Facility at such time, (y) the aggregate Outstanding Amount of the
U.S. Revolving Credit Loans of any U.S. Revolving Credit Lender, plus such
Lender's
55
Applicable U.S. Revolving Credit Percentage of the Outstanding Amount
of all Dollar L/C Obligations, plus such Lender's Applicable U.S.
Revolving Credit Percentage of the Outstanding Amount of all Dollar Swing
Line Loans, shall not exceed such Lender's U.S. Revolving Credit
Commitment, and (z) the Outstanding Amount of the Dollar L/C Obligations
at such time shall not exceed the Dollar Letter of Credit Sublimit. Each
request by the U.S. Borrower for the issuance or amendment of a Dollar
Letter of Credit shall be deemed to be a representation by the U.S.
Borrower that the Dollar L/C Credit Extension so requested complies with
the conditions set forth in the proviso to the preceding sentence. Within
the foregoing limits, and subject to the terms and conditions hereof, the
U.S. Borrower's ability to obtain Dollar Letters of Credit shall be fully
revolving, and accordingly the U.S. Borrower may, during the foregoing
period, obtain Dollar Letters of Credit to replace Dollar Letters of
Credit that have expired or that have been drawn upon and reimbursed. All
Existing Dollar Letters of Credit shall be deemed to have been Dollar
Letters of Credit issued pursuant hereto, and from and after the Closing
Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Dollar Letter of Credit if
subject to Section 2.03(b)(iii), the expiry date of such requested Dollar
Letter of Credit would occur more than twelve months after the date of
issuance or last extension, unless the Required Dollar Letter of Credit
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Dollar 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 Dollar 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 Dollar Letter of Credit in particular or shall impose upon the
L/C Issuer with respect to such Dollar 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 the
L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Dollar Letter of Credit would violate
one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Dollar Letter of Credit is in an initial stated
amount less than $100,000;
(D) the expiry date of such requested Dollar Letter of Credit
would occur after the Dollar Letter of Credit Expiration Date, unless
all of the U.S. Revolving Credit Lenders have approved such expiry
date.
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(E) such Dollar Letter of Credit is to be denominated in a
currency other than Dollars;
(F) such Dollar Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(G) a default of any Lender's obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the U.S. Borrower or such Lender to eliminate the
L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Dollar Letter of Credit if the
L/C Issuer would not be permitted at such time to issue such Dollar Letter
of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Dollar
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Dollar Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Dollar Letter of Credit does
not accept the proposed amendment to such Dollar Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the U.S. Revolving Credit
Lenders with respect to any Dollar Letters of Credit issued by it and the
documents associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by the L/C
Issuer in connection with Dollar Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such Dollar
Letters of Credit as fully as if the term "Administrative Agent" as used
in Article IX included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C
Issuer.
(b) Procedures for Issuance and Amendment of Dollar Letters of
Credit; Auto-Extension Dollar Letters of Credit.
(i) Each Dollar Letter of Credit shall be issued or amended, as the
case may be, upon the request of the U.S. Borrower 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 the U.S. Borrower. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than
1:00 p.m. (Relevant Local Time) at least two Business Days (or such later
date and time as the Administrative Agent and the L/C Issuer may agree in
a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a
request for an initial issuance of a Dollar 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 Dollar 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
57
documents to be presented by such beneficiary in case of any drawing
thereunder; and (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder. In the case of a
request for an amendment of any outstanding Dollar Letter of Credit, such
Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer (1) the Dollar Letter of Credit to be
amended; (2) the proposed date of amendment thereof (which shall be a
Business Day); and (3) the nature of the proposed amendment. Additionally,
the U.S. Borrower shall furnish to the L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested
Dollar Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may reasonably
require.
(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 with respect to a Dollar Letter of Credit from the
U.S. Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the L/C Issuer has received written
notice from any U.S. Revolving Credit Lender, the Administrative Agent or
any Loan Party, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Dollar Letter of Credit, that one
or more applicable conditions contained in Section 4.02 shall not then be
satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Dollar Letter of Credit for
the account of the U.S. Borrower (or jointly the U.S. Borrower and the
applicable Subsidiary) or enter into the applicable amendment, as the case
may be, in each case in accordance with the L/C Issuer's usual and
customary business practices. Immediately upon the issuance of each Dollar
Letter of Credit, each U.S. 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 Dollar Letter of Credit in an
amount equal to the product of such U.S. Revolving Credit Lender's
Applicable U.S. Revolving Credit Percentage times the amount of such
Dollar Letter of Credit.
(iii) If the U.S. Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Dollar Letter of Credit that has automatic
extension provisions (each, an "Auto-Extension Dollar Letter of Credit");
provided that any such Auto-Extension Dollar Letter of Credit must permit
the L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Dollar
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "NonExtension 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 U.S. Borrower
shall not be required to make a specific request to the L/C Issuer for any
such extension. Once an Auto-Extension Dollar Letter of Credit has been
issued, the U.S. Revolving Credit Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the extension of
such Dollar Letter of Credit at any time to an expiry date not later than
the Dollar Letter of Credit Expiration Date; provided, however, that the
L/C Issuer shall not have an obligation to permit any such extension if
(A) the L/C Issuer has determined that it would not be permitted, or would
have no obligation at such time to issue such Dollar Letter of Credit in
its revised form (as extended) under the
58
terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received notice (which may be
by telephone or in writing) on or before the day that is five Business
Days before the NonExtension Notice Date (1) from the Administrative Agent
that the Required Dollar Letter of Credit Lenders have elected not to
permit such extension, (2) from the Administrative Agent, any U.S.
Revolving Credit Lender or the U.S. Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and
in each such case directing the L/C Issuer not to permit such extension or
(3) from the U.S. Borrower directing the L/C Issuer not to permit such
extension.
(iv) Promptly after its delivery of any Dollar Letter of Credit or any
amendment to a Dollar Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver to
the U.S. Borrower and the Administrative Agent a true and complete copy of
such Dollar Letter of Credit or amendment and the Administrative Agent
will give prompt notice of such Dollar Letter of Credit issuance or
amendment to the U.S. Revolving Credit Lenders.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Dollar Letter of Credit
of any notice of a drawing under such Dollar Letter of Credit, the L/C
Issuer shall notify the U.S. Borrower and the Administrative Agent
thereof. If the L/C Issuer notifies the U.S. Borrower of such payment
prior to 11:00 a.m. on the date of any payment by the L/C Issuer under a
Dollar Letter of Credit (each such date, a "Dollar Honor Date"), the U.S.
Borrower shall reimburse the L/C Issuer through the Administrative Agent
in an amount equal to the amount of such drawing on such Dollar Honor
Date; provided, that if such notice is not provided to the U.S. Borrower
prior to 11:00 a.m. on the Dollar Honor Date, then the U.S. Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing on the next succeeding Business Day
and such extension of time shall be reflected in computing fees in respect
of any such Dollar Letter of Credit. If the U.S. Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Revolving Credit Lender of the Dollar Honor Date, the
amount of the unreimbursed drawing (the "Unreimbursed Dollar Amount"), and
the amount of such U.S. Revolving Credit Lender's Applicable U.S.
Revolving Credit Percentage thereof. In such event, the U.S. Borrower
shall be deemed to have requested a U.S. Revolving Credit Borrowing of
Base Rate Loans to be disbursed on the Dollar Honor Date in an amount
equal to the Unreimbursed Amount, without regard to 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 U.S.
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 U.S. Revolving Credit Lender shall upon receipt of any
notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the
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account of the L/C Issuer at the Administrative Agent's Office in an
amount equal to its Applicable U.S. Revolving Credit Percentage of the
Unreimbursed Dollar 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 U.S. Revolving Credit
Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the U.S. Borrower in such amount. The Administrative Agent
shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Dollar Amount that is not fully
refinanced by a U.S. Revolving Credit Borrowing of Base Rate Loans because
the conditions set forth in Section 4.02 (other than the delivery of a
Committed Loan Notice, which is not required to be satisfied) cannot be
satisfied or for any other reason, the U.S. Borrower shall be deemed to
have incurred from the L/C Issuer a Dollar L/C Borrowing in the amount of
the Unreimbursed Dollar Amount that is not so refinanced, which Dollar 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 U.S.
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 Dollar L/C Borrowing and
shall constitute a Dollar L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.03.
(iv) Until a U.S. Revolving Credit Lender funds its U.S. Revolving
Credit Loan or Dollar L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Dollar Letter of
Credit, interest in respect of such Lender's Applicable U.S. Revolving
Credit Percentage of such amount shall be solely for the account of the
L/C Issuer.
(v) Each U.S. Revolving Credit Lender's obligation to make U.S.
Revolving Credit Loans or Dollar L/C Advances to reimburse the L/C Issuer
for amounts drawn under Dollar 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, the U.S. 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, however, that each U.S. Revolving Credit Lender's
obligation to make U.S. 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 U.S. Borrower of a Committed Loan Notice ). No such making
of a Dollar L/C Advance shall relieve or otherwise impair the obligation
of the U.S. Borrower to reimburse the L/C Issuer for the amount of any
payment made by the L/C Issuer under any Dollar Letter of Credit, together
with interest as provided herein.
(vi) If any U.S. 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
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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 greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with banking industry rules on
interbank compensation from time to time in effect. A certificate of the
L/C Issuer submitted to any U.S. 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) At any time after the L/C Issuer has made a payment under any
Dollar Letter of Credit and has received from any U.S. Revolving Credit
Lender such Lender's L/C Advance in respect of such payment in accordance
with Section 2.03(c), if the Administrative Agent receives for the account
of the L/C Issuer any payment in respect of the related Unreimbursed
Dollar Amount or interest thereon (whether directly from the U.S. Borrower
or otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Lender its Applicable U.S. Revolving Credit Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's Dollar 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 10.05
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each U.S. Revolving Credit Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable U.S.
Revolving Credit Percentage 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 Federal Funds
Rate from time to time in effect. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.
(e) Obligations Absolute. The obligation of the U.S. Borrower to
reimburse the L/C Issuer for each drawing under each Dollar Letter of Credit
and to repay each Dollar 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 Dollar Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the U.S. Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Dollar 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 Dollar
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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 Dollar 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
Dollar Letter of Credit;
(iv) any payment by the L/C Issuer under such Dollar Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Dollar Letter of Credit; or any payment made
by the L/C Issuer under such Dollar 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 Dollar Letter
of Credit, including any arising in connection with any proceeding under
any Debtor Relief Law;
(v) 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, the
U.S. Borrower or any of its Subsidiaries.
The U.S. Borrower shall promptly examine a copy of each Dollar Letter
of Credit and each amendment thereto that is delivered to it and, in the event
of any claim of noncompliance with the U.S. Borrower's instructions or other
irregularity, the U.S. Borrower will promptly notify the L/C Issuer. The U.S.
Borrower 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 U.S. Borrower agree that,
in paying any drawing under a Dollar 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 Dollar 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, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee 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 U.S. Revolving Credit
Lenders or the Required Dollar Letter of Credit Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Dollar Letter of
Credit or Issuer Document. The U.S. Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Dollar Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the U.S. Borrower'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, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such
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clauses to the contrary notwithstanding, the U.S. Borrower may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the U.S. Borrower,
to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the U.S. Borrower which the
U.S. Borrower proves were caused by the L/C Issuer's willful misconduct or
gross negligence or the L/C Issuer's willful or grossly negligent failure to
pay under any Dollar 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 Dollar 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 Dollar 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. Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Dollar Letter of Credit and such drawing has resulted in a Dollar L/C
Borrowing, or (ii) if, as of the Dollar Letter of Credit Expiration Date, any
Dollar L/C Obligation for any reason remains outstanding, the U.S. Borrower
shall, in each case, immediately Cash Collateralize the then Outstanding Amount
of all Dollar L/C Obligations; provided, that all such Cash Collateral or
Backstop L/Cs (each as defined below) shall be denominated in Dollars. Sections
2.07 and 8.02(c) set forth certain additional requirements to deliver Cash
Collateral hereunder. For purposes of this Section 2.03, Section 2.04, Section
2.05, Section 2.07 and Section 8.02(c), "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") or one or more backstop Letters of
Credit in form and substance acceptable to, and issued by financial
institutions reasonably acceptable to the L/C Issuer (each such Letter of
Credit, a "Backstop L/C") 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 Borrowers hereby grant to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, a security interest
in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash Collateral shall be maintained in Cash Collateral Accounts.
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 and Backstop L/Cs
then held by the L/C Issuer in respect of Dollar L/C Obligations is less than
the aggregate Outstanding Amount of all Dollar L/C Obligations, the U.S.
Borrower will, forthwith upon demand by the Administrative Agent either (x)
deliver one or more additional Backstop L/Cs or (y) pay to the Administrative
Agent, as additional funds to be deposited as Cash Collateral 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 in respect of
Dollar L/C Obligations that the Administrative Agent determines to be free and
clear of any such right and claim or subjected to such existing Backstop L/Cs.
Upon the drawing of any Dollar 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 or the U.S. Revolving Credit
Lenders in accordance with the terms hereof. In the event that the funds held
as Cash Collateral exceed in respect of Dollar L/C Obligations 105% of the
aggregate
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Outstanding Amount of all Dollar L/C Obligations, the L/C Issuer shall, at the
U.S. Borrower's request, refund such excess to the U.S. Borrower so long as no
Default or Event of Default shall have occurred and be continuing. In the event
that the aggregate amount available to be drawn under any Backstop L/C held in
respect to Dollar L/C Obligations exceeds 105% of the aggregate Outstanding
Amount of all Dollar L/C Obligations, the L/C Issuer shall, upon request by the
U.S. Borrower, use reasonable efforts to cause the aggregate among available to
be drawn under any such Backstop L/C to be reduced by the amount of such
excess, so long as no Default or Event of Default shall have occurred and be
continuing.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the L/C Issuer and the U.S. Borrower when a Dollar Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the ISP shall apply to each standby Dollar 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 at
the time of issuance shall apply to each commercial Dollar Letter of Credit.
(i) Letter of Credit Fees. The U.S. Borrower shall pay to the
Administrative Agent for the account of each U.S. Revolving Credit Lender in
accordance with its Applicable U.S. Revolving Credit Percentage a Letter of
Credit Fee (the "Dollar Letter of Credit Fee") for each Dollar Letter of Credit
equal to the Applicable Rate times the daily amount available to be drawn under
such Dollar Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Dollar Letter of Credit, the amount of such
Dollar Letter of Credit shall be determined in accordance with Section 1.06.
Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the last Business Day of each March, June, September
and December, commencing with the first such date to occur after the issuance
of such Dollar Letter of Credit, on the Dollar Letter of Credit Expiration Date
and thereafter on demand. If there is any change in the Applicable Rate during
any quarter, the daily amount available to be drawn under each standby Dollar
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. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Dollar Letter of Credit Lenders, while any Event of
Default exists, all Letter of Credit Fees payable under shall accrue at the
Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. The U.S. Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee (i) with respect to each commercial Dollar Letter of
Credit, at a rate separately agreed between the U.S. Borrower and the L/C
Issuer, computed on the amount of such Dollar Letter of Credit, and payable
upon the issuance thereof, (ii) with respect to any amendment of a commercial
Dollar Letter of Credit increasing the amount of such Dollar Letter of Credit,
at a rate separately agreed between the U.S. Borrower and the L/C Issuer,
computed on the amount of such increase, and payable upon the effectiveness of
such amendment and (iii) with respect to each standby Dollar Letter of Credit,
at a rate separately agreed between the U.S. Borrower and the L/C Issuer,
computed on the daily amount available to be drawn under such Letter of Credit
on a quarterly basis in arrears, and due and payable on the last Business Day
of each calendar quarter, commencing with the first such date to occur after
the issuance of such Dollar Letter of Credit, on the Dollar Letter of Credit
Expiration Date and thereafter on demand. In addition, the U.S. Borrower shall
pay directly to the L/C Issuer for its own account the customary issuance,
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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 on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Dollar Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the U.S. Borrower shall
be obligated to reimburse the L/C Issuer hereunder for any and all drawings
under such Dollar Letter of Credit. The U.S. Borrower hereby acknowledges that
the issuance of Dollar Letters of Credit for the account of Subsidiaries inures
to the benefit of the U.S. Borrower, and that the U.S. Borrower's business
derives substantial benefits from the businesses of such Subsidiaries.
(m) Non-Dollar Letters of Credit
(i) The U.S. Borrower agrees that its reimbursement obligation
under Section 2.03(c) and any resulting L/C Borrowing, in each case in
respect of a drawing under any Non-Dollar Letter of Credit, (x) shall
be payable in Dollars at the Dollar Equivalent of such obligation in
the currency in which such Non-Dollar Letter of Credit was issued
(determined on the date of payment) and (y) in lieu of interest
payable pursuant to Section 2.03(c), shall bear interest at a rate per
annum equal to the sum of the Federal Funds Rate plus the Applicable
Rate plus 3% for each day from and including the Dollar Honor Date to
but excluding the date such obligation is paid in full.
(ii) Each Lender agrees that its obligation to make U.S.
Revolving Credit Loans under Section 2.03(c) and to make L/C Advances
for any unpaid reimbursement obligation or L/C Borrowing in respect of
a drawing under any Non-Dollar Letter of Credit shall be payable in
Dollars at the Dollar Equivalent of such obligation in the currency in
which such Non-Dollar Letter of Credit was issued (calculated on the
date of payment) (and, in lieu of interest payable pursuant to Section
2.03(c)(vi), any such amount which is not paid when due shall bear
interest at a rate per annum equal to the Overnight Rate plus,
beginning on the third Business Day after such amount was due, the
Applicable Rate).
(iii) For purposes of determining whether there is availability
for the U.S. Borrower to request, continue or convert any Loan, or
request, extend or increase the face amount of any Letter of Credit,
the Dollar Equivalent of the Outstanding Amount of each Non-Dollar
Letter of Credit shall be calculated on the date such Letter of Credit
is to be issued, extended or increased and on the last day of each
calendar month.
(iv) For purposes of determining (i) the amount of the
Outstanding Amount of Dollar L/C Obligations, (ii) the letter of
credit fee under Section 2.03(i), and (iii) the Total U.S. Revolving
Credit Outstandings in Section 2.07(b)(iv), the Dollar Equivalent of
the Outstanding Amount of any Non-Dollar
65
Letter of Credit shall be determined on each of (1) the date of any
payment by the Issuing Lender in respect of a drawing under such
Non-Dollar Letter of Credit, (2) the last day of each calendar month
and (4) each day on which the U.S. Revolving Credit Commitments are
reduced.
2.04 Euro Letters of Credit.
(a) The Euro 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 Euro Currency
Revolving Credit Lenders set forth in this Section 2.04, (1) from time to
time on any Business Day during the period from the Closing Date until the
Euro Letter of Credit Expiration Date, to issue Euro Letters of Credit for
the account of the Euro Borrower (or jointly for the account of the Euro
Borrower and any of its Subsidiaries), and to amend or extend Euro Letters
of Credit previously issued by it, in accordance with Section 2.04(b), and
(2) to honor drawings under the Euro Letters of Credit; and (B) the Euro
Revolving Credit Lenders severally agree to participate in Euro Letters of
Credit issued for the account of the Euro Borrower (or jointly for the
account of the Euro Borrower and any of its Subsidiaries) and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension
with respect to any Euro Letter of Credit, (x) the Total Euro Revolving
Credit Outstandings at such time shall not exceed the Euro Revolving
Credit Facility at such time, (y) the aggregate Outstanding Amount of the
Euro Revolving Credit Loans of any Euro Revolving Credit Lender, plus such
Lender's Applicable Euro Revolving Credit Percentage of the Outstanding
Amount of all Euro L/C Obligations, plus such Lender's Applicable Euro
Revolving Credit Percentage of the Outstanding Amount of all Euro Swing
Line Loans, shall not exceed such Lender's Euro Revolving Credit
Commitment, and (z) the Outstanding Amount of the Euro L/C Obligations at
such time shall not exceed the Euro Letter of Credit Sublimit. Each
request by the Euro Borrower for the issuance or amendment of a Euro
Letter of Credit shall be deemed to be a representation by the Euro
Borrower that the Euro L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the
foregoing limits, and subject to the terms and conditions hereof, the Euro
Borrower's ability to obtain Euro Letters of Credit shall be fully
revolving, and accordingly the Euro Borrower may, during the foregoing
period, obtain Euro Letters of Credit to replace Euro Letters of Credit
that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Euro Letter of Credit if
subject to Section 2.04(b)(iii), the expiry date of such requested Euro
Letter of Credit would occur more than twelve months after the date of
issuance or last extension, unless the Required Euro Letter of Credit
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Euro 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
66
issuing such Euro 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 Euro Letter
of Credit in particular or shall impose upon the L/C Issuer with
respect to such Euro 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 the L/C Issuer
in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Euro Letter of Credit would violate
one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Euro Letter of Credit is in an initial stated
amount less than (euro)100,000;
(D) the expiry date of such requested Euro Letter of Credit
would occur after the Euro Letter of Credit Expiration Date, unless
all of the Euro Revolving Credit Lenders have approved such expiry
date.
(E) such Euro Letter of Credit is to be denominated in a
currency other than Euros;
(F) such Euro Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(G) a default of any Lender's obligations to fund under Section
2.04(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Euro Borrower or such Lender to eliminate the
L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Euro Letter of Credit if the
L/C Issuer would not be permitted at such time to issue such Euro Letter
of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Euro
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Euro Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Euro Letter of Credit does
not accept the proposed amendment to such Euro Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Euro Revolving Credit
Lenders with respect to any Euro Letters of Credit issued by it and the
documents associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by the L/C
Issuer in connection with Euro Letters of Credit issued by it or
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proposed to be issued by it and Issuer Documents pertaining to such Euro
Letters of Credit as fully as if the term "Administrative Agent" as used
in Article IX included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C
Issuer.
(b) Procedures for Issuance and Amendment of Euro Letters of Credit;
Auto-Extension Euro Letters of Credit.
(i) Each Euro Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Euro Borrower 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 the Euro Borrower. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than
11:00 a.m. (Relevant Local Time) at least three Business Days (or such
later date and time as the Administrative Agent and the L/C Issuer may
agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Euro 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 Euro 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 and (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder. In the case of a request for an amendment of any outstanding
Euro Letter of Credit, such Letter of Credit Application shall specify in
form and detail reasonably satisfactory to the L/C Issuer (1) the Euro
Letter of Credit to be amended; (2) the proposed date of amendment thereof
(which shall be a Business Day) and (3) the nature of the proposed
amendment. Additionally, the Euro Borrower shall furnish to the L/C Issuer
and the Administrative Agent such other documents and information
pertaining to such requested Euro Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative
Agent may reasonably require.
(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 Euro Borrower and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Unless the L/C
Issuer has received written notice from any Euro Revolving Credit Lender,
the Administrative Agent or any Loan Party, at least one Business Day
prior to the requested date of issuance or amendment of the applicable
Euro Letter of Credit, that one or more applicable conditions contained in
Section 4.02 shall not then be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a
Euro Letter of Credit for the account of the Euro Borrower (or jointly the
Euro Borrower and the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each Euro Letter of Credit, each Euro 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
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Euro Letter of Credit in an amount equal to the product of such Euro
Revolving Credit Lender's Applicable Euro Revolving Credit Percentage
times the amount of such Euro Letter of Credit.
(iii) If the Euro Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Euro Letter of Credit that has automatic
extension provisions (each, an "Auto-Extension Euro Letter of Credit");
provided that any such Auto-Extension Euro Letter of Credit must permit
the L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Euro
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than the NonExtension Notice Date in each such twelve-month period
to be agreed upon at the time such Euro Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Euro Borrower shall not be
required to make a specific request to the L/C Issuer for any such
extension. Once an Auto-Extension Euro Letter of Credit has been issued,
the Euro Revolving Credit Lenders shall be deemed to have authorized (but
may not require) the L/C Issuer to permit the extension of such Euro
Letter of Credit at any time to an expiry date not later than the Euro
Letter of Credit Expiration Date; provided, however, that the L/C Issuer
shall not have an obligation to permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no
obligation at such time to issue such Euro Letter of Credit in its revised
form (as extended) under the terms hereof (by reason of the provisions of
clause (ii) or (iii) of Section 2.04(a) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before the
day that is five Business Days before the NonExtension Notice Date (1)
from the Administrative Agent that the Required Euro Letter of Credit
Lenders have elected not to permit such extension, (2) from the
Administrative Agent, any Euro Revolving Credit Lender or the Euro
Borrower that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied, and in each such case directing the
L/C Issuer not to permit such extension or (3) from the Euro Borrower
directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Euro Letter of Credit or any
amendment to a Euro Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver to
the Euro Borrower and the Administrative Agent a true and complete copy of
such Euro Letter of Credit or amendment and the Administrative Agent will
give prompt notice of such Euro Letter of Credit issuance or amendment to
the Euro Revolving Credit Lenders.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Euro Letter of Credit of
any notice of a drawing under such Euro Letter of Credit, the L/C Issuer
shall notify the Euro Borrower and the Administrative Agent thereof. If
the L/C Issuer notifies the Euro Borrower of such payment prior to 11:00
a.m. on the date of any payment by the L/C Issuer under a Euro Letter of
Credit (each such date, a "Euro Honor Date"), the Euro Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing. On such Euro Honor Date; provided
that if such
69
notice is not provided to the Euro Borrower prior to 11:00 a.m. on the
Euro Honor Date, then the Euro Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing on the next succeeding Business Day and such extension of time
shall be reflected in computing fees in respect of any such Euro Letter of
Credit. If the Euro Borrower fails to so reimburse the L/C Issuer by such
time, the Administrative Agent shall promptly notify each Euro Revolving
Credit Lender of the Euro Honor Date, the amount of the unreimbursed
drawing (the "Unreimbursed Euro Amount"), and the amount of such Euro
Revolving Credit Lender's Applicable Euro Revolving Credit Percentage
thereof. In such event, the Euro Borrower shall be deemed to have
requested a Euro Revolving Credit Borrowing of Eurocurrency Rate Loans
with an Interest Period of one month to be disbursed on the Euro Honor
Date in an amount equal to the Unreimbursed Euro Amount, without regard to
the minimum and multiples specified in Section 2.02 for the principal
amount of Eurocurrency Rate Loans, but subject to the amount of the
unutilized portion of the Euro 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 2.04(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 Euro Revolving Credit Lender shall upon receipt of any
notice pursuant to Section 2.04(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the
Administrative Agent's Office in an amount equal to its Applicable Euro
Revolving Credit Percentage of the Unreimbursed Euro 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
2.04(c)(iii), each Euro Revolving Credit Lender that so makes funds
available shall be deemed to have made a Eurocurrency Rate Loan with an
Interest Period of one month to the Euro Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Euro Amount that is not fully
refinanced by a Euro Revolving Credit Borrowing of Eurocurrency Rate Loans
because the conditions set forth in Section 4.02 (other than the delivery
of a Committed Loan Notice, which is not required to be satisfied) cannot
be satisfied or for any other reason, the Euro Borrower shall be deemed to
have incurred from the L/C Issuer a Euro L/C Borrowing in the amount of
the Unreimbursed Euro Amount that is not so refinanced, which Euro 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 Euro
Revolving Credit Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.04(c)(ii) shall be deemed
payment in respect of its participation in such Euro L/C Borrowing and
shall constitute a Euro L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.04.
(iv) Until a Euro Revolving Credit Lender funds its Euro Revolving
Credit Loan or Euro L/C Advance pursuant to this Section 2.04(c) to
reimburse the L/C Issuer for any amount drawn under any Euro Letter of
Credit, interest in respect of such
70
Lender's Applicable Euro Revolving Credit Percentage of such amount
shall be solely for the account of the L/C Issuer.
(v) Each Euro Revolving Credit Lender's obligation to make Euro
Revolving Credit Loans or Euro L/C Advances to reimburse the L/C Issuer
for amounts drawn under Euro Letters of Credit, as contemplated by 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
L/C Issuer, the Euro 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, however, that each Euro Revolving Credit Lender's
obligation to make Euro Revolving Credit Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by the Euro Borrower of a Committed Loan Notice ). No such making
of a Euro L/C Advance shall relieve or otherwise impair the obligation of
the Euro Borrower to reimburse the L/C Issuer for the amount of any
payment made by the L/C Issuer under any Euro Letter of Credit, together
with interest as provided herein.
(vi) If any Euro 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 2.04(c) by the time specified in Section 2.04(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 greater of the Overnight Rate and a rate determined by
the L/C Issuer in accordance with banking industry rules on interbank
compensation from time to time in effect. A certificate of the L/C Issuer
submitted to any Euro Revolving Credit Lender (through the Administrative
Agent) with respect to any amounts owing under this Section 2.04(c)(vi)
shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Euro Letter of Credit and has received from any Euro Revolving Credit
Lender such Lender's L/C Advance in respect of such payment in accordance
with Section 2.04(c), if the Administrative Agent receives for the account
of the L/C Issuer any payment in respect of the related Unreimbursed Euro
Amount or interest thereon (whether directly from the Euro Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Lender its Applicable Euro Revolving Credit Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's Euro 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 2.04(c)(i) is required to be
returned under any of the
71
circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the L/C Issuer in its discretion), each Euro
Revolving Credit Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Applicable Euro Revolving Credit Percentage
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 Overnight Rate from time to time
in effect. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this
Agreement.
(e) Obligations Absolute. The obligation of the Euro Borrower to
reimburse the L/C Issuer for each drawing under each Euro Letter of Credit and
to repay each Euro 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 Euro Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Euro Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Euro 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 Euro
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 Euro 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
Euro Letter of Credit;
(iv) any payment by the L/C Issuer under such Euro Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Euro Letter of Credit; or any payment made
by the L/C Issuer under such Euro 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 Euro Letter
of Credit, including any arising in connection with any proceeding under
any Debtor Relief Law;
(v) 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, the
Euro Borrower or any of its Subsidiaries.
The Euro Borrower shall promptly examine a copy of each Euro Letter of
Credit and each amendment thereto that is delivered to it and, in the event of
any claim of noncompliance with the Euro Borrower's instructions or other
irregularity, the Euro Borrower will promptly notify the L/C Issuer. The Euro
Borrower shall be conclusively deemed to have
72
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 Euro Borrower agree that,
in paying any drawing under a Euro 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 Euro 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, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee 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 Euro Revolving Credit
Lenders or the Required Euro Letter of Credit Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Euro Letter of
Credit or Issuer Document. The Euro Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Euro Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Euro Borrower'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, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.04(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
Euro Borrower may have a claim against the L/C Issuer, and the L/C Issuer may
be liable to the Euro Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Euro
Borrower which the Euro Borrower proves were caused by the L/C Issuer's willful
misconduct or gross negligence or the L/C Issuer's willful or grossly negligent
failure to pay under any Euro 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 Euro 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 Euro 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. Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Euro Letter of Credit and such drawing has resulted in a Euro L/C Borrowing, or
(ii) if, as of the Euro Letter of Credit Expiration Date, any Euro L/C
Obligation for any reason remains outstanding, the Euro Borrower shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of all Euro
L/C Obligations; provided that all such cash collateral or Backstop L/Cs shall
be denominated in Euros. The Euro Borrower 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 accounts and all balances therein and all proceeds of
the foregoing. Cash Collateral shall be maintained in Cash Collateral Accounts.
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
73
Administrative Agent or that the total amount of such funds and Backstop L/Cs
held in respect of Euro L/C Obligations is less than the aggregate Outstanding
Amount of all Euro L/C Obligations, the Euro Borrower will, forthwith upon
demand by the Administrative Agent either (x) deliver one or more additional
Backstop L/Cs or (y), pay to the Administrative Agent, as additional funds to
be deposited as Cash Collateral 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 in respect in respect of Euro L/C Obligations that
the Administrative Agent determines to be free and clear of any such right and
claim or subject to such existing Backstop L/Cs. Upon the drawing of any Euro
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 or the Euro Revolving Credit Lenders in accordance with the
terms hereof. In the event that the funds held as Cash Collateral in respect of
Euro L/C Obligations exceed 105% of the aggregate Outstanding Amount of all
Euro L/C Obligations, the L/C Issuer shall, at the Euro Borrower's request,
refund such excess to the Euro Borrower so long as no Default or Event of
Default shall have occurred and be continuing. In the event that the aggregate
amount available to be drawn under any Backstop L/C held in respect of Euro L/C
Obligations exceeds the 105% of the aggregate Outstanding Amount of all Euro
L/C Obligations, the L/C Issuer shall, upon request by the Euro Borrower and so
long as no Event of Default shall have occurred and be continuing, use
reasonable efforts to cause the aggregate amount available to be drawn under
any such Backstop L/C to be reduced by the amount of such excess.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the L/C Issuer and the Euro Borrower when a Euro Letter of Credit is issued,
(i) the rules of the ISP shall apply to each standby Euro 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 at the time of
issuance shall apply to each commercial Euro Letter of Credit.
(i) Euro Letter of Credit Fees. The Euro Borrower shall pay to the
Administrative Agent for the account of each Euro Revolving Credit Lender in
accordance with its Applicable Euro Revolving Credit Percentage a Letter of
Credit fee (the "Euro Letter of Credit Fee") for each Euro Letter of Credit
equal to the Applicable Rate times the daily amount available to be drawn under
such Euro Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Euro Letter of Credit, the amount of such Euro
Letter of Credit shall be determined in accordance with Section 1.06. Euro
Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the last Business Day of each March, June, September
and December, commencing with the first such date to occur after the issuance
of such Euro Letter of Credit, on the Euro Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each standby Euro 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.
Notwithstanding anything to the contrary contained herein, upon the request of
the Required Euro Letter of Credit Lenders, while any Event of Default exists,
all Euro Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. The Euro Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee (i) with respect to each commercial Euro Letter of
Credit, at a rate separately agreed between the
74
Euro Borrower and the L/C Issuer, computed on the amount of such Euro Letter of
Credit, and payable upon the issuance thereof, (ii) with respect to any
amendment of a commercial Euro Letter of Credit increasing the amount of such
Euro Letter of Credit, at a rate separately agreed between the Euro Borrower
and the L/C Issuer, computed on the amount of such increase, and payable upon
the effectiveness of such amendment and (iii) with respect to each standby Euro
Letter of Credit, at a rate separately agreed between the Euro Borrower and the
L/C Issuer, computed on the daily amount available to be drawn under such Euro
Letter of Credit on a quarterly basis in arrears, and due and payable on the
last Business Day of each calendar quarter, commencing with the first such date
to occur after the issuance of such Euro Letter of Credit, on the Euro Letter
of Credit Expiration Date and thereafter on demand. In addition, the Euro
Borrower 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 on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
(l) Euro Letters of Credit Issued for Subsidiaries. Notwithstanding
that a Euro Letter of Credit issued or outstanding hereunder is in support of
any obligations of, or is for the account of, one of its Subsidiaries, the Euro
Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Euro Letter of Credit. The Euro Borrower hereby
acknowledges that the issuance of Euro Letters of Credit for the account of its
Subsidiaries inures to the benefit of the Euro Borrower, and that the Euro
Borrower's business derives substantial benefits from the businesses of such
Subsidiaries.
2.05 UK Letters of Credit.
(a) The UK 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 UK Revolving
Credit Lenders set forth in this Section 2.05, (1) from time to time on
any Business Day during the period from the Closing Date until the UK
Letter of Credit Expiration Date, to issue UK Letters of Credit for the
account of the UK Borrower (or jointly for the account of the UK Borrower
and any Subsidiary), and to amend or extend UK Letters of Credit
previously issued by it, in accordance with Section 2.05(b), and (2) to
honor drawings under the UK Letters of Credit; and (B) the UK Revolving
Credit Lenders severally agree to participate in UK Letters of Credit
issued for the account of the UK Borrower (or jointly for the account of
the UK Borrower and any of its Subsidiaries) and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with respect
to any UK Letter of Credit, (x) the Total UK Revolving Credit Outstandings
at such time shall not exceed the UK Revolving Credit Facility at such
time, (y) the aggregate Outstanding Amount of the UK Revolving Credit
Loans of any UK Revolving Credit Lender, plus such Lender's Applicable UK
Revolving Credit Percentage of the Outstanding Amount of all UK L/C
Obligations, plus such Lender's Applicable UK Revolving Credit Percentage
of the Outstanding Amount of all UK Swing Line Loans, shall not exceed
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such Lender's UK Revolving Credit Commitment, and (z) the Outstanding
Amount of the UK L/C Obligations at such time shall not exceed the UK
Letter of Credit Sublimit. Each request by the UK Borrower for the
issuance or amendment of a UK Letter of Credit shall be deemed to be a
representation by the UK Borrower that the L/C Credit Extension so
requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms
and conditions hereof, the UK Borrower's ability to obtain UK Letters of
Credit shall be fully revolving, and accordingly the UK Borrower may,
during the foregoing period, obtain UK Letters of Credit to replace UK
Letters of Credit that have expired or that have been drawn upon and
reimbursed.
(ii) The L/C Issuer shall not issue any UK Letter of Credit if subject
to Section 2.05(b)(iii), the expiry date of such requested UK Letter of
Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required UK Letter of Credit Lenders have
approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any UK
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 UK 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 UK Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such UK 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 the L/C Issuer in good ▇▇▇▇▇
▇▇▇▇▇ material to it;
(B) the issuance of such UK Letter of Credit would violate one
or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than (pound)100,000;
(D) the expiry date of such requested UK Letter of Credit would
occur after the UK Letter of Credit Expiration Date, unless all of the
UK Revolving Credit Lenders have approved such expiry date.
(E) such UK Letter of Credit is to be denominated in a currency
other than Pounds Sterling;
(F) such UK Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
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(G) a default of any Lender's obligations to fund under Section
2.05(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the UK Borrower or such Lender to eliminate the L/C
Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any UK Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such UK Letter of
Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any UK
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such UK Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such UK Letter of Credit does not accept
the proposed amendment to such UK Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the UK Revolving Credit
Lenders with respect to any UK Letters of Credit issued by it and the
documents associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by the L/C
Issuer in connection with UK Letters of Credit issued by it or proposed to
be issued by it and Issuer Documents pertaining to such UK Letters of
Credit as fully as if the term "Administrative Agent" as used in Article
IX included the L/C Issuer with respect to such acts or omissions, and (B)
as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of UK Letters of Credit;
Auto-Extension UK Letters of Credit.
(i) Each UK Letter of Credit shall be issued or amended, as the case
may be, upon the request of the UK Borrower 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 the UK Borrower. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than
11:00 a.m. (Relevant Local Time) at least three Business Days (or such
later date and time as the Administrative Agent and the L/C Issuer may
agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a UK 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 UK 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 and (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder. In the case of a request for an amendment of any outstanding
UK Letter of Credit, such Letter of Credit Application shall specify in
form and detail reasonably satisfactory to the L/C Issuer (1) the UK
Letter of Credit to be amended; (2) the proposed date of amendment thereof
(which shall be a Business Day) and (3) the nature of the
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proposed amendment. Additionally, the UK Borrower shall furnish to the L/C
Issuer and the Administrative Agent such other documents and information
pertaining to such requested UK Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative
Agent may reasonably require.
(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 UK Borrower and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Unless the L/C
Issuer has received written notice from any UK Revolving Credit Lender,
the Administrative Agent or any Loan Party, at least one Business Day
prior to the requested date of issuance or amendment of the applicable UK
Letter of Credit, that one or more applicable conditions contained in
Section 4.02 shall not then be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a UK
Letter of Credit for the account of the UK Borrower (or jointly the UK
Borrower and the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each UK Letter of Credit, each UK 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 UK Letter of
Credit in an amount equal to the product of such UK Revolving Credit
Lender's Applicable UK Revolving Credit Percentage times the amount of
such UK Letter of Credit.
(iii) If the UK Borrower so requests in any applicable UK Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a UK Letter of Credit that has automatic
extension provisions (each, an "Auto-Extension UK Letter of Credit");
provided that any such Auto-Extension UK Letter of Credit must permit the
L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such UK
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than the NonExtension Notice Date in each such twelve-month period
to be agreed upon at the time such UK Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the UK Borrower shall not be
required to make a specific request to the L/C Issuer for any such
extension. Once an Auto-Extension UK Letter of Credit has been issued, the
UK Revolving Credit Lenders shall be deemed to have authorized (but may
not require) the L/C Issuer to permit the extension of such UK Letter of
Credit at any time to an expiry date not later than the UK Letter of
Credit Expiration Date; provided, however, that the L/C Issuer shall not
have an obligation to permit any such extension if (A) the L/C Issuer has
determined that it would not be permitted, or would have no obligation at
such time to issue such UK Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause
(ii) or (iii) of Section 2.05(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that
is five Business Days before the NonExtension Notice Date (1) from the
Administrative Agent that the Required UK Letter of Credit Lenders have
elected not to permit such extension, (2) from the Administrative Agent,
any UK Revolving Credit Lender or the UK Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then
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satisfied, and in each such case directing the L/C Issuer not to permit
such extension or (3) from the UK Borrower directing the L/C Issuer not to
permit such extension.
(iv) Promptly after its delivery of any UK Letter of Credit or any
amendment to a UK Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver to
the UK Borrower and the Administrative Agent a true and complete copy of
such UK Letter of Credit or amendment and the Administrative Agent will
give prompt notice of such UK Letter of Credit issuance or amendment to
the UK Revolving Credit Lenders.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any UK Letter of Credit of
any notice of a drawing under such UK Letter of Credit, the L/C Issuer
shall notify the UK Borrower and the Administrative Agent thereof. If the
L/C Issuer notifies the UK Borrower of such payment prior to 11:00 a.m.
(Relevant Local Time) on the date of any payment by the L/C Issuer under a
UK Letter of Credit (each such date, a "UK Honor Date"), the UK Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing on such UK Honor Date; provided
that if such notice is not provided to the UK Borrower prior to 11:00 a.m.
(Relevant Local Time) on the UK Honor Date, then the UK Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing on the next succeeding Business Day
and such extension of time shall be reflected in computing fees in respect
of any such UK Letter of Credit. If the UK Borrower fails to so reimburse
the L/C Issuer by such time, the Administrative Agent shall promptly
notify each UK Revolving Credit Lender of the UK Honor Date, the amount of
the unreimbursed drawing (the "Unreimbursed UK Amount"), and the amount of
such UK Revolving Credit Lender's Applicable UK Revolving Credit
Percentage thereof. In such event, the UK Borrower shall be deemed to have
requested a UK Revolving Credit Borrowing of Eurocurrency Rate Loans with
an Interest Period of one month to be disbursed on the UK Honor Date in an
amount equal to the Unreimbursed UK Amount, without regard to the minimum
and multiples specified in Section 2.02 for the principal Eurocurrency
Rate Loans, but subject to the amount of the unutilized portion of the UK
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
2.05(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 UK Revolving Credit Lender shall upon receipt of any notice
pursuant to Section 2.05(c)(i) make funds available to the Administrative
Agent for the account of the L/C Issuer at the Administrative Agent's
Office in an amount equal to its Applicable UK Revolving Credit Percentage
of the Unreimbursed UK 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 2.05(c)(iii), each UK Revolving Credit Lender
that so makes funds available shall be deemed to have made a Eurocurrency
Rate
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Loan with an Interest Period of one month to the UK Borrower in such
amount. The Administrative Agent shall remit the funds so received to the
L/C Issuer.
(iii) With respect to any Unreimbursed UK Amount that is not fully
refinanced by a UK Revolving Credit Borrowing of Eurocurrency Rate Loans
because the conditions set forth in Section 4.02 (other than the delivery
of a Committed Loan Notice, which is not required to be satisfied) cannot
be satisfied or for any other reason, the UK Borrower shall be deemed to
have incurred from the L/C Issuer a UK L/C Borrowing in the amount of the
Unreimbursed UK Amount that is not so refinanced, which UK 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 UK Revolving Credit
Lender's payment to the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.05(c)(ii) shall be deemed payment in respect
of its participation in such UK L/C Borrowing and shall constitute a UK
L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.05.
(iv) Until a UK Revolving Credit Lender funds its UK Revolving Credit
Loan or UK L/C Advance pursuant to this Section 2.05(c) to reimburse the
L/C Issuer for any amount drawn under any UK Letter of Credit, interest in
respect of such Lender's Applicable UK Revolving Credit Percentage of such
amount shall be solely for the account of the L/C Issuer.
(v) Each UK Revolving Credit Lender's obligation to make UK Revolving
Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn
under UK Letters of Credit, as contemplated by this Section 2.05(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, the UK
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,
however, that each UK Revolving Credit Lender's obligation to make UK
Revolving Credit Loans pursuant to this Section 2.05(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the UK
Borrower of a Committed Loan Notice ). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the UK Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any UK Letter of Credit, together with interest as provided
herein.
(vi) If any UK 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 2.05(c) by the time specified in Section 2.05(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 greater of the Overnight Rate and a rate determined by
the L/C Issuer in accordance with banking industry rules on interbank
compensation from time to time in effect. A certificate of the L/C Issuer
submitted to any UK Revolving Credit Lender (through the
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Administrative Agent) with respect to any amounts owing under this Section
2.05(c)(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any UK
Letter of Credit and has received from any UK Revolving Credit Lender such
Lender's UK L/C Advance in respect of such payment in accordance with
Section 2.05(c), if the Administrative Agent receives for the account of
the L/C Issuer any payment in respect of the related Unreimbursed UK
Amount or interest thereon (whether directly from the UK Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Lender its Applicable UK Revolving Credit Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's UK 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 2.05(c)(i) is required to be
returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each UK Revolving Credit Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable UK
Revolving Credit Percentage 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 Overnight
Rate from time to time in effect. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.
(e) Obligations Absolute. The obligation of the UK Borrower to
reimburse the L/C Issuer for each drawing under each UK Letter of Credit and to
repay each UK 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 UK Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the UK Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such UK 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 UK 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 UK 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
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transmission or otherwise of any document required in order to make a
drawing under such UK Letter of Credit;
(iv) any payment by the L/C Issuer under such UK Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such UK Letter of Credit; or any payment made by
the L/C Issuer under such UK 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 UK Letter of Credit,
including any arising in connection with any proceeding under any Debtor
Relief Law;
(v) 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, the
UK Borrower or any of its Subsidiaries.
The UK Borrower shall promptly examine a copy of each UK Letter of
Credit and each amendment thereto that is delivered to it and, in the event of
any claim of noncompliance with the UK Borrower's instructions or other
irregularity, the UK Borrower will promptly notify the L/C Issuer. The UK
Borrower 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 UK Borrower agree that,
in paying any drawing under a UK 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 UK 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, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee 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 UK Revolving Credit Lenders or the
Required UK Letter of Credit Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any UK Letter of Credit or Issuer Document. The UK
Borrower hereby assumes all risks of the acts or omissions of any beneficiary
or transferee with respect to its use of any UK Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude the
UK Borrower'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, the Administrative Agent, any of their respective Related Parties nor
any correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.05(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the UK Borrower may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to the UK Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the UK Borrower which the UK Borrower proves were caused by
the L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's
willful or grossly negligent failure to pay under any UK 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 UK Letter of Credit. In
furtherance and not in limitation of the
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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 UK 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. Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
UK Letter of Credit and such drawing has resulted in a UK L/C Borrowing, or
(ii) if, as of the UK Letter of Credit Expiration Date, any UK L/C Obligations
for any reason remains outstanding, the UK Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all UK L/C
Obligations; provided that all such Cash Collateral or Backstop L/Cs shall be
denominated in Pounds Sterling. The UK Borrower 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 accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in Cash
Collateral Accounts. 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 and Backstop L/Cs held in respect of the UK L/C Obligations is less than
the aggregate Outstanding Amount of all UK L/C Obligations, the UK Borrower
will, forthwith upon demand by the Administrative Agent, either (x) deliver one
or more additional Backstop L/Cs or (y) pay to the Administrative Agent, as
additional funds to be deposited as Cash Collateral 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 in respect of UK L/C
Obligations that the Administrative Agent determines to be free and clear of
any such right and claim or subject to such Backstop L/Cs. Upon the drawing of
any UK 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 or the UK Revolving Credit Lenders in accordance with
the terms hereof. In the event that the funds held as Cash Collateral exceed
105% of the aggregate Outstanding Amount of all UK L/C Obligations, the L/C
Issuer shall, at the UK Borrower's request, refund such excess to the UK
Borrower so long as no Default or Event of Default shall have occurred and be
continuing. In the event that the aggregate amount available to be drawn under
any Backstop L/C held in respect of UK L/C Obligations exceeds the 105% of the
aggregate Outstanding Amount of all UK L/C Obligations, the L/C Issuer shall,
upon request by the UK Borrower and so long as no Event of Default shall have
occurred and be continuing, use reasonable efforts to cause the aggregate
amount available to be drawn under any such Backstop L/C to be reduced by the
amount of such excess.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the
L/C Issuer and the UK Borrower when a UK Letter of Credit is issued, (i) the
rules of the ISP shall apply to each UK Letter of Credit.
(i) UK Letter of Credit Fees. The UK Borrower shall pay to the
Administrative Agent for the account of each UK Revolving Credit Lender in
accordance with its Applicable UK Revolving Credit Percentage a Letter of
Credit Fee (the "UK Letter or Credit Fee") for each UK Letter of Credit equal
to the Applicable Rate times the daily amount available to be drawn under such
UK Letter of Credit. For purposes of computing the daily amount
83
available to be drawn under any UK Letter of Credit, the amount of such UK
Letter of Credit shall be determined in accordance with Section 1.06. UK Letter
of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii)
due and payable on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such UK Letter of Credit, on the UK Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each UK 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.
Notwithstanding anything to the contrary contained herein, upon the request of
the Required UK Letter of Credit Lenders, while any Event of Default exists,
all UK Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. The UK Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee (i) with respect to each commercial UK Letter of Credit,
at a rate separately agreed between the UK Borrower and the L/C Issuer,
computed on the amount of such UK Letter of Credit, and payable upon the
issuance thereof, (ii) with respect to any amendment of a commercial UK Letter
of Credit increasing the amount of such UK Letter of Credit, at a rate
separately agreed between the UK Borrower and the L/C Issuer, computed on the
amount of such increase, and payable upon the effectiveness of such amendment
and (iii) with respect to each standby UK Letter of Credit, at a rate
separately agreed between the UK Borrower and the L/C Issuer, computed on the
daily amount available to be drawn under such UK Letter of Credit on a
quarterly basis in arrears, and due and payable on the last Business Day of
each calendar quarter, commencing with the first such date to occur after the
issuance of such UK Letter of Credit, on the UK Letter of Credit Expiration
Date and thereafter on demand. In addition, the UK Borrower 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 on
demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
(l) UK Letters of Credit Issued for Subsidiaries. Notwithstanding
that a UK Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary of the UK Borrower, the
UK Borrower shall be obligated to reimburse the L/C Issuer hereunder for any
and all drawings under such UK Letter of Credit. The UK Borrower hereby
acknowledges that the issuance of UK Letters of Credit for the account of its
Subsidiaries inures to the benefit of the UK Borrower, and that the UK
Borrower's business derives substantial benefits from the businesses of such
Subsidiaries.
2.06 Swing Line Loans.
(a) The Dollar Swing Line. Subject to the terms and conditions set
forth herein, the Swing Line Lender agrees, in reliance upon the agreements of
the other U.S. Revolving Credit Lenders set forth in this Section 2.06, to make
loans (each such loan, a "Dollar Swing Line Loan") denominated in Dollars to
the U.S. Borrower from time to time on any
84
Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Dollar Swing Line Sublimit,
notwithstanding the fact that such Dollar Swing Line Loans, when aggregated
with the Applicable U.S. Revolving Credit Percentage of the Outstanding Amount
of U.S. Revolving Credit Loans and Dollar L/C Obligations of the Lender acting
as Swing Line Lender, may exceed the amount of such Lender's U.S. Revolving
Credit Commitment; provided, however, that after giving effect to any Dollar
Swing Line Loan, (i) the Total U.S. Revolving Credit Outstandings shall not
exceed the U.S. Revolving Credit Facility at such time and (ii) the aggregate
Outstanding Amount of the U.S. Revolving Credit Loans of any U.S. Revolving
Credit Lender at such time plus such U.S. Revolving Credit Lender's Applicable
U.S. Revolving Credit Percentage of the Outstanding Amount of all Dollar L/C
Obligations at such time, plus such U.S. Revolving Credit Lender's Applicable
U.S. Revolving Credit Percentage of the Outstanding Amount of all Dollar Swing
Line Loans at such time shall not exceed such Lender's U.S. Revolving Credit
Commitment, and provided further that the U.S. Borrower shall not use the
proceeds of any Dollar Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the U.S. Borrower may borrow under this Section 2.06(a),
prepay under Section 2.07, and reborrow under this Section 2.06(a). Each Dollar
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Dollar Swing Line Loan, each U.S. 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 Dollar Swing Line Loan in an amount
equal to the product of such U.S. Revolving Credit Lender's Applicable U.S.
Revolving Credit Percentage times the amount of such Dollar Swing Line Loan.
(b) The Euro Swing Line. Subject to the terms and conditions set
forth herein, the Swing Line Lender agrees, in reliance upon the agreements of
the other Euro Revolving Credit Lenders set forth in this Section 2.06, to make
loans (each such loan a "Euro Swing Line Loan") denominated in Euros to the
Euro Borrower, in each case from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Euro Swing Line Sublimit, notwithstanding the
fact that such Euro Swing Line Loans, when aggregated with the Applicable Euro
Revolving Credit Percentage of the Outstanding Amount of Euro Revolving Credit
Loans and Euro L/C Obligations of the Lender acting as Swing Line Lender, may
exceed the amount of such Lender's Euro Revolving Credit Commitment; provided,
however, that after giving effect to any Euro Swing Line Loan, (i) the Total
Euro Revolving Credit Outstandings shall not exceed the Euro Revolving Credit
Facility at such time and (ii) the aggregate Outstanding Amount of the Euro
Revolving Credit Loans of any Euro Revolving Credit Lender at such time, plus
such Euro Revolving Credit Lender's Applicable Euro Credit Percentage of the
Outstanding Amount of all Euro L/C Obligations at such time, plus such Euro
Revolving Credit Lender's Applicable Euro Revolving Credit Percentage of the
Outstanding Amount of all Euro Swing Line Loans at such time shall not exceed
such Lender's Euro Revolving Credit Commitment, and provided further that the
Euro Borrower shall not use the proceeds of any Euro Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Euro Borrower may borrow
under this Section 2.06(b), prepay under Section 2.07, and reborrow under this
Section 2.06(b). Each Euro Swing Line Loan shall be an Overnight Rate Loan.
Immediately upon the making of a Euro Swing Line Loan, each Euro Revolving
Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees
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to, purchase from the Swing Line Lender a risk participation in such Euro Swing
Line Loan in an amount equal to the product of such Euro Revolving Credit
Lender's Applicable Euro Revolving Credit Percentage times the amount of such
Euro Swing Line Loan.
(c) The UK Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the
other UK Revolving Credit Lenders set forth in this Section 2.06, to make loans
(each such loan, a "UK Swing Line Loan") denominated in Pounds Sterling to the
UK Borrower from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount
of the UK Swing Line Sublimit, notwithstanding the fact that such UK Swing Line
Loans, when aggregated with the Applicable UK Revolving Credit Percentage of
the Outstanding Amount of UK Revolving Credit Loans and UK L/C Obligations of
the Lender acting as Swing Line Lender, may exceed the amount of such Lender's
UK Revolving Credit Commitment; provided, however, that after giving effect to
any UK Swing Line Loan, (i) the Total UK Revolving Credit Outstandings shall
not exceed the UK Revolving Credit Facility at such time and (ii) the aggregate
Outstanding Amount of the UK Revolving Credit Loans of any UK Revolving Credit
Lender at such time plus such UK Revolving Credit Lender's Applicable UK
Revolving Credit Percentage of the Outstanding Amount of all UK L/C Obligations
at such time, plus such UK Revolving Credit Lender's Applicable UK Revolving
Credit Percentage of the Outstanding Amount of all UK Swing Line Loans at such
time shall not exceed such Lender's UK Revolving Credit Commitment, and
provided further that the UK Borrower shall not use the proceeds of any UK
Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the UK
Borrower may borrow under this Section 2.06(c), prepay under Section 2.07, and
reborrow under this Section 2.06(c). Each UK Swing Line Loan shall be a
Overnight Rate Loan. Immediately upon the making of a UK Swing Line Loan, each
UK 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 UK Swing Line Loan in an amount equal to the product of
such UK Revolving Credit Lender's Applicable UK Revolving Credit Percentage
times the amount of such UK Swing Line Loan.
(d) Borrowing Procedures. Each Swing Line Borrowing shall be made
upon the applicable 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. (Relevant Local Time) on the requested borrowing date, and
shall specify (i) whether the Loan is a Dollar Swing Line Loan, a Euro Swing
Line Loan or a UK Swing Line Loan, (ii) the amount to be borrowed, which shall
be a minimum of U.S.$500,000 in the case of Dollar Swing Line Loans, (euro)
100,000 in the case of Euro Swing Line Loans and (pound) 100,000 in the case of
UK Swing Line Loans, and (iii) 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 applicable 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
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telephone or in writing) from the Administrative Agent (including at the
request of any U.S. Revolving Credit Lender, Euro Revolving Credit Lender or UK
Revolving Credit Lender, as applicable) prior to 2:00 p.m. (Relevant Local
Time) 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 2.06(a),(b) or (c), as
applicable, 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. (Relevant Local
Time) on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the applicable Borrower at its
office by crediting the account of such Borrower on the books of the Swing Line
Lender or by wire transfer in immediately available funds.
(e) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, (A) on behalf of the U.S. Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf),
that each U.S. Revolving Credit Lender make a Base Rate Loan in an amount
equal to such Lender's Applicable Percentage of the amount of Dollar Swing
Line Loans then outstanding, (B) on behalf of the Euro Borrower (which
hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Euro Revolving Credit Lender make a Eurocurrency Rate
Loan with an initial Interest Period of one month in an amount equal to
such Lender's Applicable Percentage of the amount of Euro Swing Line Loans
then outstanding, or (C) on behalf of the UK Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf),
that each UK Revolving Credit Lender make a Eurocurrency Rate Loan with an
initial Interest Period of one month in an amount equal to such Lender's
Applicable Percentage of the amount of UK Swing Line Loans them
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 or Eurocurrency Loans, but subject to the unutilized portion of
the applicable Revolving Credit Facility and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the applicable Borrower
with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each U.S. Revolving
Credit Lender, each Euro Revolving Credit Lender, or each UK Revolving
Credit Lender, as applicable, shall make an amount equal to its Applicable
U.S. Revolving Credit Percentage, Applicable Euro Revolving Credit
Percentage or Applicable UK Revolving Credit Percentage, respectively, of
the amount specified in such Committed Loan Notice available to the
Administrative Agent in immediately available funds for the account of the
Swing Line Lender at the Administrative Agent's Office not later than 1:00
p.m. (Relevant Local Time) on the day specified in such Committed Loan
Notice, whereupon, subject to Section 2.06(e)(ii), each U.S. Revolving
Credit Lender that so makes funds available shall be deemed to have made a
Base Rate Loan to the U.S. Borrowing in such amount, each Euro Revolving
Credit Lender that so makes funds available shall be deemed to have made a
Eurocurrency Rate Loan (with an initial Interest Period of one month) to
the Euro Borrower in such amount and each UK Revolving Credit Lender that
so makes funds
87
available shall be deemed to have made a Eurocurrency Rate Loan (with an
initial Interest Period of one month) to the UK 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 Revolving Credit Borrowing in accordance with Section 2.06(e)(i),
the request for 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 applicable Revolving Credit Lenders fund its risk participation in
the relevant Swing Line Loan and each applicable Revolving Credit Lender's
payment to the Administrative Agent for the account of the Swing Line
Lender pursuant to Section 2.06(e)(i) shall be deemed payment in respect
of such participation.
(iii) If any 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 2.06(e) by the time specified in Section 2.06(e)(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 greater of the Federal Funds Rate (in the
case of payments in Dollars) or the Overnight Rate (in the case of
payments in Euros or Pounds Sterling) and a rate determined by the Swing
Line Lender in accordance with banking industry rules on interbank
compensation. A certificate of the Swing Line 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 Revolving Credit Lender's obligation to make Revolving
Credit Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.06(e) 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 Borrowers 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, however, that each Revolving Credit
Lender's obligation to make Revolving Credit Loans pursuant to this
Section 2.06(e) 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 applicable Borrowers to repay Swing Line Loans, together
with interest as provided herein.
(f) Repayment of Participations.
(i) At any time after any 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 Revolving Credit Lender its applicable
Applicable U.S. Revolving Credit Percentage, Applicable Euro Revolving
Credit Percentage or Applicable UK Revolving Credit Percentage, as the
case may be, of such payment (appropriately adjusted, in the case of
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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 Dollar Swing Line Loan, Euro Swing Line Loan
or UK Swing Line Loan is required to be returned by the Swing Line Lender
under any of the circumstances described in Section 10.05 (including
pursuant to any settlement entered into by the Swing Line Lender in its
discretion), each U.S. Revolving Credit Lender, Euro Revolving Credit
Lender or UK Revolving Credit Lender, as applicable, shall pay to the
Swing Line Lender its Applicable U.S. Revolving Credit Percentage,
Applicable Euro Revolving Credit Percentage or Applicable UK Revolving
Credit Percentage, respectively, 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 Federal Funds Rate
(in the case of payments in Dollars) or the Overnight Rate (in the case of
payments in Euros or Pounds Sterling). The Administrative Agent will make
such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(g) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the applicable Borrowers for interest on the
Swing Line Loans. Until each applicable Revolving Credit Lender funds its Base
Rate Loan, Eurocurrency Rate Loan or risk participation pursuant to this
Section 2.06 to refinance such Revolving Credit Lender's Applicable U.S.
Revolving Credit Percentage, Applicable Euro Revolving Credit Percentage or
Applicable UK Revolving Credit Percentage of any Swing Line Loan, interest in
respect of such Applicable U.S. Revolving Credit Percentage, Applicable Euro
Revolving Credit Percentage or Applicable UK Revolving Credit Percentage shall
be solely for the account of the Swing Line Lender.
(h) Payments Directly to Swing Line Lender. The applicable Borrowers
shall make all payments of principal and interest in respect of the Swing Line
Loans directly to the Swing Line Lender.
2.07 Prepayments.
(a) Optional. (i) The Borrowers may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay Loans
in whole or in part without premium or penalty; provided that (A) such notice
must be received by the Administrative Agent not later than 1:00 p.m. (Relevant
Local Time) (1) three Business Days prior to any date of prepayment of
Eurocurrency Rate Loans and (2) on the date of prepayment of Base Rate Loans;
(B) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of
U.S.$5,000,000 or a whole multiple of U.S.$500,000 in excess thereof in the
case of Loans denominated in Dollars, (euro)5,000,000 or a whole multiple of
(euro)500,000 in the case of Loans denominated in Euros, (pound)5,000,000 or a
whole multiple of (pound)500,000 in excess thereof in the case of Loans
denominated in Pounds Sterling and CAD5,000,000 or a whole multiple of
CAD500,000 in excess thereof in the case of Loans denominated in Canadian
Dollars; and (C) any prepayment of Base Rate Loans shall be in a principal
amount of U.S.$500,000 or a whole
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multiple of U.S.$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 Type(s) of Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender's ratable portion
of such prepayment (based on such Lender's Applicable Percentage in respect of
the relevant Facility). 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; provided that the
Borrowers may rescind or postpone any such notice of prepayment if such
prepayment would have resulted from a refinancing of all the Loans and such
refinancing shall not be consummated or otherwise shall be delayed. Any
prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to
Section 3.05. Each prepayment of the outstanding Term Loans pursuant to this
Section 2.07(a) shall be applied (i) ratably to each of the Term Facilities and
(ii) to the principal repayment installments thereof at the U.S. Borrower's
election, and each such prepayment shall be paid to the Lenders in accordance
with their respective Applicable Percentages in respect of each of the relevant
Facilities.
(ii) The applicable Borrowers 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 (x) 1:00 p.m. (Relevant
Local Time) on the date of the prepayment of Dollar Swing Line Loans and (y)
12:00 noon (Relevant Local Time) on the date of prepayment of Euro Swing Line
Loans and UK Swing Line Loans, and (2) any such prepayment shall be in a
minimum principal amount of $100,000 in the case of Dollar Swing Line Loans,
(euro)100,000 in the case of Euro Swing Line Loans or (pound)100,000 in the
case of UK Swing Line Loans. Each such notice shall specify the date and amount
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.
(b) Mandatory. (i) Commencing with the fiscal year ended September
30, 2006, within five 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(a), the Borrowers shall prepay an
aggregate principal amount of Loans equal to (i) 50% of Excess Cash Flow for
the fiscal year covered by such financial statements if the Consolidated
Leverage Ratio for such fiscal year is greater than or equal to 3.75:1, (ii)
25% of Excess Cash Flow for such fiscal year if the Consolidated Leverage Ratio
for such fiscal year is less than 3.75:1, but greater than or equal to 3.00:1
or (iii) zero, if the Consolidated Leverage Ratio for such fiscal year is less
than 3.00:1.
(ii) If the U.S. Borrower or any of its 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), (e), (f) or (g)) which in the
aggregate results in the realization by the U.S. Borrower or such Subsidiary of
Net Cash Proceeds (determined as of the date of such Disposition) in excess of
U.S.$15 million in any fiscal year or U.S.$50 million during the term of this
Agreement, the Borrowers shall prepay an aggregate principal amount of Loans
equal to 100% of all Net Cash Proceeds received therefrom within 2 Business
Days after receipt thereof by the U.S. Borrower
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or such Subsidiary; provided, however, that, with respect to any Net Cash
Proceeds realized under a Disposition described in this Section 2.07(b)(ii), at
the option of the U.S. Borrower (as elected by the U.S. Borrower in writing to
the Administrative Agent on or prior to the date of such Disposition), and so
long as no Event of Default shall have occurred and be continuing, the U.S.
Borrower may reinvest all or any portion of such Net Cash Proceeds in operating
assets so long as (A) within 365 days following receipt of such Net Cash
Proceeds, a definitive agreement for the purchase of such assets with such
proceeds shall have been entered into (as certified by the U.S. Borrower in
writing to the Administrative Agent), and (B) within 545 days after the receipt
of such Net Cash Proceeds, such purchase shall have been consummated (as
certified by the U.S. Borrower in writing to the Administrative Agent);
provided further, however, that any Net Cash Proceeds not subject to such
definitive agreement or so reinvested shall be immediately applied to the
prepayment of the Loans as set forth in this Section 2.07.
(iii) Upon the incurrence or issuance by the U.S. Borrower or any of
its Subsidiaries of any Indebtedness (other than Indebtedness expressly
permitted to be incurred or issued pursuant to Section 7.02), the U.S. Borrower
shall prepay an aggregate principal amount of Loans equal to 100% of all Net
Cash Proceeds received therefrom immediately upon receipt thereof by the U.S.
Borrower or such Subsidiary.
(iv) If for any reason the Total U.S. Revolving Credit Outstandings at
any time exceed the U.S. Revolving Credit Facility at such time, the U.S.
Borrower shall immediately prepay U.S. Revolving Credit Loans, Dollar Swing
Line Loans and Unreimbursed Dollar Amounts and/or Cash Collateralize the Dollar
L/C Obligations in an aggregate amount equal to such excess; provided, however,
that the Euro Borrower shall not be required to Cash Collateralize the Dollar
L/C Obligations pursuant to this Section 2.07(b)(iv) unless after the
prepayment in full of the U.S. Revolving Credit Loans and U.S. Swing Line Loans
the Total U.S. Revolving Credit Outstandings exceed the U.S. Revolving Credit
Facility at such time.
(v) If for any reason the Total Euro Revolving Credit Outstandings at
any time exceed the Euro Revolving Credit Facility at such time, the Euro
Borrower shall immediately prepay Euro Revolving Credit Loans, Euro Swing Line
Loans and Unreimbursed Euro Amounts and/or Cash Collateralize the Euro L/C
Obligations in an aggregate amount equal to such excess; provided, however,
that the Euro Borrower shall not be required to Cash Collateralize the Euro L/C
Obligations pursuant to this Section 2.07(b)(v) unless after the prepayment in
full of the Euro Revolving Credit Loans and Euro Swing Line Loans the Total
Euro Revolving Credit Outstandings exceed the Euro Revolving Credit Facility at
such time.
(vi) If for any reason the Total UK Revolving Credit Outstandings at
any time exceed the UK Revolving Credit Facility at such time, the UK Borrower
shall immediately prepay UK Revolving Credit Loans, UK Swing Line Loans and
Unreimbursed UK Amounts and/or Cash Collateralize the UK L/C Obligations in an
aggregate amount equal to such excess; provided, however, that the UK Borrower
shall not be required to Cash Collateralize the UK L/C Obligations pursuant to
this Section 2.07(b)(vi) unless after the prepayment in full of the UK
Revolving Credit Loans and UK Swing Line Loans the Total UK Revolving Credit
Outstandings exceed the UK Revolving Credit Facility at such time.
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(vii) Each prepayment of Loans pursuant to Section 2.07(b)(i), (ii)
and (iii) shall be applied, first, ratably to each of the respective Term
Facilities and to the principal repayment installments thereof in direct order
of maturity in respect of payments due within twelve months following the date
of such prepayment, then to the remaining installments on a pro-rata basis and,
thereafter, ratably to each of the Revolving Credit Facilities in the manner
set forth in clauses (viii), (ix) and (x) of this Section 2.07(b).
(viii) Prepayments of the U.S. Revolving Credit Facility made pursuant
to clause (iv) or (vii) of this Section 2.07(b), first, shall be applied
ratably to the Unreimbursed Dollar Amounts and the Dollar Swing Line Loans,
second, shall be applied ratably to the outstanding U.S. Revolving Credit Loans
and, third, shall be used to Cash Collateralize the remaining Dollar L/C
Obligations; and, in the case of prepayments of the U.S. Revolving Credit
Facility required pursuant to clause (iv) of this Section 2.07(b), the amount
remaining, if any, after the prepayment in full of all Unreimbursed Dollar
Amounts, Dollar Swing Line Loans and U.S. Revolving Credit Loans outstanding at
such time and the Cash Collateralization of the remaining Dollar L/C
Obligations in full (the sum of such prepayment amounts, cash collateralization
amounts and remaining amount being, collectively, the "U.S. Reduction Amount")
may be retained by the U.S. Borrower for use in the ordinary course of its
business, and the U.S. Revolving Credit Facility shall be automatically and
permanently reduced by the U.S. Reduction Amount as set forth in Section
2.08(b)(ii). Upon the drawing of any Dollar Letter of Credit that has been Cash
Collateralized, the funds held as Cash Collateral shall be applied (without any
further action by or notice to or from the U.S. Borrower or any other Loan
Party) to reimburse the L/C Issuer or the U.S. Revolving Credit Lenders, as
applicable.
(ix) Prepayments of the Euro Revolving Credit Facility made pursuant
to clause (v) or (vii) of this Section 2.07(b), first, shall be applied ratably
to the Unreimbursed Euro Amounts and the Euro Swing Line Loans, second, shall
be applied ratably to the outstanding Euro Revolving Credit Loans and, third,
shall be used to Cash Collateralize the remaining Euro L/C Obligations; and, in
the case of prepayments of the Euro Revolving Credit Facility required pursuant
to clause (v) of this Section 2.07(b), the amount remaining, if any, after the
prepayment in full of all Unreimbursed Euro Amounts, Euro Swing Line Loans and
Euro Revolving Credit Loans outstanding at such time and the Cash
Collateralization of the remaining Euro L/C Obligations in full (the sum of
such prepayment amounts, cash collateralization amounts and remaining amount
being, collectively, the "Euro Reduction Amount") may be retained by the Euro
Borrower for use in the ordinary course of its business, and the Euro Revolving
Credit Facility shall be automatically and permanently reduced by the Euro
Reduction Amount as set forth in Section 2.08(b)(ii). Upon the drawing of any
Euro Letter of Credit that has been Cash Collateralized, the funds held as Cash
Collateral shall be applied (without any further action by or notice to or from
the Euro Borrower or any other Loan Party) to reimburse the L/C Issuer or the
Euro Revolving Credit Lenders, as applicable.
(x) Prepayments of the UK Revolving Credit Facility made pursuant to
clause (vi) or (vii) of this Section 2.07(b), first, shall be applied ratably
to the Unreimbursed UK Amounts and the UK Swing Line Loans, second, shall be
applied ratably to the outstanding UK Revolving Credit Loans and, third, shall
be used to Cash Collateralize the remaining UK L/C Obligations; and, in the
case of prepayments of the UK Revolving Credit Facility required pursuant to
clause (vi) of this Section 2.07(b), the amount remaining, if any, after the
prepayment
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in full of all Unreimbursed UK Amounts, UK Swing Line Loans and UK Revolving
Credit Loans outstanding at such time and the Cash Collateralization of the
remaining UK L/C Obligations in full (the sum of such prepayment amounts, cash
collateralization amounts and remaining amount being, collectively, the "UK
Reduction Amount") may be retained by the UK Borrower for use in the ordinary
course of its business, and the UK Revolving Credit Facility shall be
automatically and permanently reduced by the UK Reduction Amount as set forth
in Section 2.08(b)(ii). Upon the drawing of any UK Letter of Credit that has
been Cash Collateralized, the funds held as Cash Collateral shall be applied
(without any further action by or notice to or from the UK Borrower or any
other Loan Party) to reimburse the L/C Issuer or the UK Revolving Credit
Lenders, as applicable.
(xi) Notwithstanding any of the other provisions of Section 2.07(b)(i)
through (x), the applicable Borrower may, in its sole discretion, deposit the
amount of any prepayment required to be made thereunder (on the date on which
such prepayment is required to be made) into a Cash Collateral Account until
the last day of any Interest Period pertaining to Loans being prepaid, at which
time the Administrative Agent shall be authorized (without any further action
by or notice to or from the Borrowers or any other Loan Party) to apply such
amount to the prepayment of such Loans in accordance with this Section 2.07(b).
(xii) Anything contained in this Section 2.07(b) to the contrary
notwithstanding, (A) if, following the occurrence of any "Asset Sale" (as such
term is defined in the 2013 Notes Indenture or the 2015 Notes Indenture) by any
Loan Party or any of its Subsidiaries, the U.S. Borrower is required to commit
by a particular date (a "Commitment Date") to apply or cause its Subsidiaries
to apply an amount equal to any of the "Net Proceeds" (as defined in the 2013
Notes Indenture or the 2015 Notes Indenture) thereof in a particular manner, or
to apply by a particular date (an "Application Date") an amount equal to any
such "Net Proceeds" in a particular manner, in either case in order to excuse
the U.S. Borrower from being required to make an "Asset Sale Offer" (as defined
in the 2013 Notes Indenture or the 2015 Notes Indenture) in connection with
such "Asset Sale", and the U.S. Borrower shall have failed to so commit or to
so apply an amount equal to such "Net Proceeds" before the applicable
Commitment Date or Application Date, as the case may be, or (B) if the U.S.
Borrower at any other time shall have failed to apply or commit or cause to be
applied an amount equal to any such "Net Proceeds", and, thereafter assuming no
further application or commitment of an amount equal to such "Net Proceeds" the
U.S. Borrower would otherwise be required to make an "Asset Sale Offer" in
respect thereof, then in either such case the U.S. Borrower shall immediately
pay or cause to be paid to the Administrative Agent an amount equal to such
"Net Proceeds" to be applied to the payment of the Loans and L/C Borrowings and
to Cash Collateralize the L/C Obligations in the manner set forth in this
Section 2.07(b) in such amounts as shall excuse the U.S. Borrower from making
any such "Asset Sale Offer".
2.08 Termination or Reduction of Commitments.
(a) Optional. The Borrowers may, upon notice to the Administrative
Agent, terminate the unused portions of the Dollar Letter of Credit Sublimit,
the Euro Letter of Credit Sublimit, the UK Letter of Credit Sublimit, the
unused Euro Revolving Credit Commitments, the unused UK Revolving Credit
Commitments or the unused U.S. Revolving Credit Commitments, or from time to
time permanently reduce the unused portions of the Dollar Letter of Credit
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Sublimit, the Euro Letter of Credit Sublimit, the UK Letter of Credit Sublimit,
the unused Euro Revolving Credit Commitments, the unused UK Revolving Credit
Commitments or the unused U.S. Revolving Credit Commitments; provided that (i)
any such notice shall be received by the Administrative Agent not later than
1:00 p.m. (Relevant Local Time) five Business Days prior to the date of
termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof in respect of the U.S. Revolving Credit Facility, (euro)5,000,000 or
any whole multiple of (euro)1,000,000 in excess thereof in respect of the Euro
Revolving Credit Facility and (pound)5,000,000 or any whole multiple of
(pound)1,000,000 in excess thereof in respect of the UK Revolving Credit
Facility, (iii) the Borrowers shall not terminate or reduce the unused portions
of the Dollar Letter of Credit Sublimit or the unused U.S. Revolving Credit
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total U.S. Revolving Credit Outstandings would exceed the U.S.
Revolving Credit Facility, (iv) the Borrowers shall not terminate or reduce the
unused portions of the Euro Letter of Credit Sublimit or the Euro Revolving
Credit Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Euro Revolving Credit Outstandings would
exceed the Euro Revolving Credit Facility and (v) the Borrowers shall not
terminate or reduce the unused portions of the UK Letter of Credit Sublimit or
the UK Revolving Credit Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total UK Revolving Credit Outstandings
would exceed the UK Revolving Credit Facility; provided that the Borrowers may
rescind or postpone any such notice of termination of the Revolving Credit
Commitments if such termination would have resulted from a refinancing of all
the Loans and such refinancing shall not be consummated or otherwise shall be
delayed.
(b) Mandatory. (i) Each of the aggregate Canadian Term Commitments,
aggregate Dollar Term Commitments and aggregate Euro Term Commitments shall be
automatically and permanently reduced to zero on the date of, respectively, the
Canadian Term Borrowing, the Dollar Term Borrowing and the Euro Term Borrowing.
(ii) Each of the Euro Revolving Credit Facility, the U.S. Revolving
Credit Facility and the UK Revolving Credit Facility shall be automatically and
permanently reduced on each date on which the prepayment of Revolving Credit
Loans outstanding thereunder is required to be made pursuant to Section
2.07(b)(i), (ii) or (iii) by an amount equal to the Euro Reduction Amount, the
U.S. Reduction Amount or the UK Reduction Amount, as applicable.
(iii) If after giving effect to any reduction or termination of unused
Revolving Credit Commitments under this Section 2.08, (A) the Dollar Letter of
Credit Sublimit or the Dollar Swing Line Sublimit exceeds the amount of the
U.S. Revolving Credit Facility at such time, such Sublimit shall be
automatically reduced by the amount of such excess, (B) the Euro Swing Line
Sublimit or the Euro Letter of Credit Commitment exceeds the amount of the Euro
Revolving Credit Facility at such time, such Sublimit shall be automatically
reduced by the amount of such excess or (C) the UK Swing Line Sublimit or the
UK Letter of Credit Sublimit exceeds the amount of the UK Revolving Credit
Facility at such time, such Sublimit shall be automatically reduced by the
amount of such excess.
(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 any Letter of Credit Sublimit, or the unused
Revolving Credit Commitments under
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this Section 2.08. Upon any reduction of any of the unused Revolving Credit
Commitments, the applicable Revolving Credit Commitment of each applicable
Revolving Credit Lender shall be reduced by such Lender's Applicable U.S.
Revolving Credit Percentage, Applicable Euro Revolving Credit Percentage or
Applicable Revolving Credit Percentage, as the case may be, of such reduction
amount. All fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
2.09 Repayment of Loans.
(a) Canadian Term Loans. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the Canadian Term Lenders the
aggregate principal amount of all Canadian Term Loans outstanding on the
following dates in the respective amounts set forth opposite such dates (which
amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.07):
---------------------------------------------------
Date Amount
---------------------------------------------------
June 30, 2005 CAD $156,000
---------------------------------------------------
September 30, 2005 CAD $156,000
---------------------------------------------------
December 31, 2005 CAD $156,000
---------------------------------------------------
March 31, 2006 CAD $156,000
---------------------------------------------------
June 30, 2006 CAD $156,000
---------------------------------------------------
September 30, 2006 CAD $156,000
---------------------------------------------------
December 31, 2006 CAD $156,000
---------------------------------------------------
March 31, 2007 CAD $156,000
---------------------------------------------------
June 30, 2007 CAD $156,000
---------------------------------------------------
September 30, 2007 CAD $156,000
---------------------------------------------------
December 31, 2007 CAD $156,000
---------------------------------------------------
March 31, 2008 CAD $156,000
---------------------------------------------------
June 30, 2008 CAD $156,000
---------------------------------------------------
September 30, 2008 CAD $156,000
---------------------------------------------------
December 31, 2008 CAD $156,000
---------------------------------------------------
March 31, 2009 CAD $156,000
---------------------------------------------------
June 30, 2009 CAD $156,000
---------------------------------------------------
September 30, 2009 CAD $156,000
---------------------------------------------------
December 31, 2009 CAD $156,000
---------------------------------------------------
March 31, 2010 CAD $156,000
---------------------------------------------------
June 30, 2010 CAD $156,000
---------------------------------------------------
September 30, 2010 CAD $156,000
---------------------------------------------------
December 31, 2010 CAD $156,000
---------------------------------------------------
March 31, 2011 CAD $156,000
---------------------------------------------------
June 30, 2011 CAD $156,000
---------------------------------------------------
September 30, 2011 CAD $156,000
---------------------------------------------------
December 31, 2011 CAD $156,000
---------------------------------------------------
Maturity Date CAD $58,188,000
---------------------------------------------------
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provided, however, that the final principal repayment installment of the
Canadian Term Loans shall be repaid on the Maturity Date for the Canadian Term
Facility under which such Loans were made and in any event shall be in an
amount equal to the aggregate principal amount of all Canadian Term Loans
outstanding on such date.
(b) Dollar Term Loans. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the Dollar Term Lenders the
aggregate principal amount of all Dollar Term Loans outstanding on the
following dates in the respective amounts set forth opposite such dates (which
amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.07):
-----------------------------------------------------
Date Amount
-----------------------------------------------------
June 30, 2005 U.S. $1,350,000
-----------------------------------------------------
September 30, 2005 U.S. $1,350,000
-----------------------------------------------------
December 31, 2005 U.S. $1,350,000
-----------------------------------------------------
March 31, 2006 U.S. $1,350,000
-----------------------------------------------------
June 30, 2006 U.S. $1,350,000
-----------------------------------------------------
September 30, 2006 U.S. $1,350,000
-----------------------------------------------------
December 31, 2006 U.S. $1,350,000
-----------------------------------------------------
March 31, 2007 U.S. $1,350,000
-----------------------------------------------------
June 30, 2007 U.S. $1,350,000
-----------------------------------------------------
September 30, 2007 U.S. $1,350,000
-----------------------------------------------------
December 31, 2007 U.S. $1,350,000
-----------------------------------------------------
March 31, 2008 U.S. $1,350,000
-----------------------------------------------------
June 30, 2008 U.S. $1,350,000
-----------------------------------------------------
September 30, 2008 U.S. $1,350,000
-----------------------------------------------------
December 31, 2008 U.S. $1,350,000
-----------------------------------------------------
March 31, 2009 U.S. $1,350,000
-----------------------------------------------------
June 30, 2009 U.S. $1,350,000
-----------------------------------------------------
September 30, 2009 U.S. $1,350,000
-----------------------------------------------------
December 31, 2009 U.S. $1,350,000
-----------------------------------------------------
March 31, 2010 U.S. $1,350,000
-----------------------------------------------------
June 30, 2010 U.S. $1,350,000
-----------------------------------------------------
September 30, 2010 U.S. $1,350,000
-----------------------------------------------------
December 31, 2010 U.S. $1,350,000
-----------------------------------------------------
March 31, 2011 U.S. $1,350,000
-----------------------------------------------------
June 30, 2011 U.S. $1,350,000
-----------------------------------------------------
September 30, 2011 U.S. $1,350,000
-----------------------------------------------------
December 31, 2011 U.S. $1,350,000
-----------------------------------------------------
Maturity Date U.S. $503,550,000
-----------------------------------------------------
provided, however, that the final principal repayment installment of the Dollar
Term Loans shall be repaid on the Maturity Date for the Dollar Term Facility
under which such Loans were made and in any event shall be in an amount equal
to the aggregate principal amount of all Dollar Term Loans outstanding on such
date.
96
(c) Euro Term Loans. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the Euro Term Lenders the
aggregate principal amount of all Euro Term Loans outstanding on the following
dates in the respective amounts set forth opposite such dates (which amounts
shall be reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.07):
----------------------------------------------------
Date Amount
----------------------------------------------------
August 6, 2011 (euro)57,000,000
----------------------------------------------------
Maturity Date (euro)57,000,000
----------------------------------------------------
provided, however, that the final principal repayment installment of the Euro
Term Loans shall be repaid on the Maturity Date for the Euro Term Facility
under which such Loans were made and in any event shall be in an amount equal
to the aggregate principal amount of all Euro Term Loans outstanding on such
date.
(d) Revolving Credit Loans. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the U.S. Revolving Credit
Lenders on the Maturity Date for the U.S. Revolving Credit Facility the
aggregate principal amount of all U.S. Revolving Credit Loans outstanding on
such date. The Euro Borrower shall repay to the Administrative Agent for the
ratable account of the Euro Revolving Credit Lenders on the Maturity Date for
the Euro Revolving Credit Facility the aggregate principal amount of all Euro
Revolving Credit Loans outstanding on such date. The UK Borrower shall repay to
the Administrative Agent for the ratable account of the UK Revolving Credit
Lenders on the Maturity Date for the UK Revolving Credit Facility the aggregate
principal amount of all UK Revolving Credit Loans outstanding on such date.
(e) Swing Line Loans. The U.S. Borrower shall repay each Dollar Swing
Line Loan, the Euro Borrower shall repay each Euro Swing Line Loan and the UK
Borrower shall repay each UK Swing Line Loan, in each case on the earlier to
occur of (i) the date ten Business Days after such Loan is made and (ii) the
Maturity Date for the Revolving Credit Facilities.
2.10 Interest.
(a) Subject to the provisions of Section 2.10(b), (i) each
Eurocurrency Rate Loan under a Facility shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus the Applicable Rate for
such Facility; (ii) each Base Rate Loan under a Facility 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 such
Facility; (iii) each Dollar 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 the
Revolving Credit Facilities and (iv) each Euro Swing Line Loan and each UK
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 Overnight
Rate plus the Applicable Rate for the Revolving Credit Facilities.
97
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by a
Borrower under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, then upon the request of the Required Lenders such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default under Sections 8.01(a), (f) or (g) exists, the Borrowers shall pay
interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(iv) 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.
2.11 Fees. In addition to certain fees described in Sections 2.03(i)
and (j), 2.04(i) and (j) and 2.05(i) and (j):
(a) Commitment Fee. (i) The U.S. Borrower shall pay to the
Administrative Agent for the account of each U.S. Revolving Credit Lender in
accordance with its Applicable U.S. Revolving Credit Percentage, a commitment
fee equal to the Applicable Rate times the actual daily amount by which the
aggregate U.S. Revolving Credit Commitments exceed the sum of (1) the
Outstanding Amount of U.S. Revolving Credit Loans and (2) the Outstanding
Amount of Dollar L/C Obligations, (ii) the Euro Borrower shall pay to the
Administrative Agent for the account of each Euro Revolving Credit Lender in
accordance with its Applicable Euro Revolving Credit Percentage, a commitment
fee equal to the Applicable Rate times the actual daily amount by which the
aggregate Euro Revolving Credit Commitments exceed the sum of (1) the
Outstanding Amount of Euro Revolving Credit Loans and (2) the Outstanding
Amount of Euro L/C Obligations and (iii) the UK Borrower shall pay to the
Administrative Agent for the account of each UK Revolving Credit Lender in
accordance with its Applicable UK Revolving Credit Percentage a commitment fee
equal to the Applicable Rate times the actual daily amount by which the
aggregate UK Revolving Credit Commitments exceed the sum of (1) the Outstanding
Amount of UK Revolving Credit Loans and (2) the Outstanding Amount of UK L/C
Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Section 4.02 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
98
Maturity Date for the Revolving Credit Facilities. 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. (i) The U.S. Borrower shall pay to each of Bank of
America, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and CNAI and to the Administrative Agent for their own
respective accounts fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.
(ii) The U.S. Borrower shall pay to the Administrative Agent,
Arrangers and Joint Bookrunners 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.
2.12 Computation of Interest and Fees. All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America's
"prime rate" shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All computations of interest for all
Loans denominated in Pounds Sterling shall be made on the basis of a year of
365 days and actual days elapsed. All other computations of fees and interest
shall be made on the basis of a 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 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
2.14(a), bear interest for one 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.
2.13 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 by the
Administrative Agent 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 (set forth in the Register) shall control in the
absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the applicable Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Note, 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.
99
(b) In addition to the accounts and records referred to in Section
2.13(a), each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and sales
by such Lender of participations in Letters of Credit and Swing Line 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.
2.14 Payments Generally; Administrative Agent's Clawback.
(a) General. Except as otherwise expressly provided herein, all
payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, 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 Administrative Agent's Office in
Dollars or the applicable Foreign Currency and in immediately available funds
not later than 2:00 p.m. on the date specified herein. The Administrative Agent
will promptly distribute to each Lender its Applicable Percentage in respect of
the relevant Facility (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 after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by a
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 on computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent.
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing of Eurocurrency Loans (or, in the case of
any Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that
such Lender will not make available to the Administrative Agent such Lender's
share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with Section 2.02 (or,
in the case of a Borrowing of Base Rate Loans, that such Lender has made such
share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and such Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case
of a payment to be made by such Lender, the greater of the Federal Funds Rate
(in the case of Loans denominated in Dollars) or the Overnight Rate (in the
case of Loans denominated in a Foreign Currency) and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by a Borrower, the
interest rate applicable to Base Rate Loans (in the case of payments
denominated in Dollars) or the interest rate applicable to Eurocurrency Rate
Loans with an interest period of one month (in the case of payments denominated
in a Foreign Currency). If a Borrower and such Lender shall pay such interest
to the Administrative Agent
100
for the same or an overlapping period, the Administrative Agent shall promptly
remit to such Borrower the amount of such interest paid by such Borrower for
such period. If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender's
Loan included in such Borrowing. Any payment by a Borrower shall be without
prejudice to any claim such Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.
(ii) Payments by Borrowers; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from a Borrower
prior to the time at which any payment is due to the Administrative Agent for
the account of the Lenders or the L/C Issuer hereunder that such Borrower will
not make such payment, the Administrative Agent may assume that such Borrower
has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Appropriate Lenders or the L/C Issuer,
as the case may be, the amount due. In such event, if such Borrower has not in
fact made such payment, then each of the Appropriate Lenders or the L/C Issuer,
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the L/C Issuer,
in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds
Rate (in the case of Loans denominated in Dollars) or the Overnight Rate (in
the case of Loans denominated in a Foreign Currency) and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank
compensation.
A notice of the Administrative Agent to any Lender or any Borrower
with respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. 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 II, and such
funds are not made available to the applicable Borrower by the Administrative
Agent because the conditions to the applicable Credit Extension set forth in
Article IV 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.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and Swing
Line Loans and to make payments pursuant to Section 10.04(c) are several and
not joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payments under Section 10.04(c) 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, purchase its participation or
to make its payments under Section 10.04(c).
(e) Funding Source. 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.
101
(f) Insufficient Payment. 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 8.03.
(g) To the extent that the Administrative Agent receives funds for
application to the amounts owing by any Borrower under or in respect of this
Agreement in currencies other than the currency or currencies required to
enable the Administrative Agent to distribute funds to the Lenders in
accordance with the terms of this Agreement, the Administrative Agent shall be
entitled to convert or exchange such funds into Dollars or into a Foreign
Currency or from Dollars to a Foreign Currency or from a Foreign Currency to
Dollars, as the case may be, to the extent necessary to enable the Agent to
distribute such funds in accordance with the terms of this Agreement; provided
that each Borrower and each of the Lenders hereby agree that the
Administrative Agent shall not be liable or responsible for any loss, cost or
expense suffered by such Borrower or such Lender as a result of any conversion
or exchange of currencies affected pursuant to this Section 2.14(g) or as a
result of the failure of the Administrative Agent to effect any such
conversion or exchange; and provided further that each applicable Borrower
agrees to indemnify the Administrative Agent and each Lender, and hold the
Administrative Agent and each Lender harmless, for any and all losses, costs
and expenses incurred by the Administrative Agent or any Lender for any
conversion or exchange of currencies (or the failure to convert or exchange
any currencies) or which result in the Administrative Agent or the Lenders
receiving a lower amount that they would have received had such currency not
been required to be so converted or exchanged, in accordance with this Section
2.14(g).
2.15 Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of setoff or counterclaim or any right in respect of
Collateral or otherwise, obtain payment in respect of any principal of or
interest on any of the Loans made by it, or the participations in L/C
Obligations or Swing Line Loans held by it resulting in such Lender's
receiving payment of a proportion of the aggregate amount of such Loans or
participations and accrued interest thereon greater than its pro rata share
thereof of the applicable Facility as provided herein, then the Lender
receiving such greater proportion shall (subject to the provisions of Section
8.03) (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Loans and subparticipations in L/C
Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and other
amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to
(x) any payment made by the Borrowers pursuant to and in accordance with
the express terms of
102
this Agreement, (y) any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
subparticipations in L/C Obligations and Swing Line Loans to any assignee
or participant, other than to the U.S. Borrower or any Subsidiary thereof
(as to which the provisions of this Section shall apply) or (z) any
payment made to a Non-Consenting Lender pursuant to clause (y) of the
final paragraph of Section 10.01.
Each Loan Party consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan
Party in the amount of such participation.
2.16 Incremental Facility.
(a) The U.S. Borrower may, at any time and from time to time prior to
the Maturity Date, by notice to the Administrative Agent, request the addition
of a new term loan facility (each an "Incremental Term Facility") or a new
revolving credit facility (each an "Incremental Revolving Credit Facility"
and, together with the Incremental Term Facilities, an "Incremental Facility")
denominated in Dollars, Euros or other foreign currencies to be mutually
agreed by the U.S. Borrower and the Administrative Agent pursuant to
additional commitments (the "Incremental Commitments") in an amount up to the
sum of $500,000,000 in the aggregate (provided that the Incremental Revolving
Credit Facilities cannot exceed $100,000,000 in the aggregate) to be effective
as of a date that is at least 90 days prior to the scheduled Maturity Date
then in effect (the "Increase Date") as specified in the related notice to the
Administrative Agent; provided, however, that (i) in no event shall the
aggregate amount of all of the Incremental Commitments exceed $500,000,000 nor
shall the aggregate amount of Incremental Commitments relating to the
Incremental Revolving Credit Facilities exceed $100,000,000, (ii) the U.S.
Borrower may make a maximum of five such requests, (iii) on the date of any
request by the U.S. Borrower for an Incremental Facility and on the related
Increase Date, the applicable conditions set forth in Section 4.02 and in
subsection (d) of this Section 2.16 shall be satisfied, (iv) such Incremental
Facility shall be used for general corporate purposes, including, without
limitation, Permitted Acquisitions (in which case the conditions set forth in
Section 7.03(h) shall be satisfied), (v) the final maturity of such
Incremental Term Facilities is equal to or greater than the final maturity of
the existing Term Facilities and the final maturity of such Incremental
Revolving Credit Facilities is equal to or greater than the final maturity of
the existing Revolving Credit Facilities, (vi) such Incremental Facility is
either (A) an increase in a Facility existing prior to the Increase Date, in
which case the requirements of Section 2.16(e) shall be satisfied or (B) a new
Facility (i.e., not on the same terms as any existing Facility), (vii) such
Incremental Facility shall be on terms no more restrictive than those set
forth in this Agreement and shall contain such other terms as may be agreed by
the U.S. Borrower and the Administrative Agent and (viii) such Incremental
Facility may be made available to a foreign Subsidiary of the U.S. Borrower,
subject to the consent of the Administrative Agent.
(b) If the Administrative Agent approves the terms of the Incremental
Facility (which approval shall not be unreasonably withheld or delayed if such
terms are otherwise in
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accordance with the provisions of this Agreement), the Administrative Agent
shall promptly notify the Lenders of a request by the U.S. Borrower for
Incremental Commitments, which notice shall include (i) the proposed amount and
other material terms of the Incremental Facility, (ii) the proposed Increase
Date and (iii) the date by which Lenders wishing to participate in the
Incremental Facility must commit to an Incremental Commitment (the "Commitment
Date"). Each Lender that is willing to participate in the requested Incremental
Facility (each an "Increasing Lender") shall, in its sole discretion, give
written notice to the Administrative Agent on or prior to the Commitment Date
of the amount it is willing to commit to the Incremental Facility. If the
Lenders notify the Administrative Agent that they are willing to participate in
an Incremental Facility by an aggregate amount that exceeds the amount of the
requested Incremental Commitments, the requested Incremental Commitments shall
be allocated among the Lenders willing to participate therein in such amounts
as are agreed between the U.S. Borrower and the Administrative Agent.
(c) Promptly following the applicable Commitment Date, the
Administrative Agent shall notify the U.S. Borrower as to the amount, if any,
by which the Lenders are willing to participate in the requested Incremental
Facility. If the aggregate amount by which the Lenders are willing to
participate in the requested Incremental Facility on any such Commitment Date
is less than the requested Incremental Commitments, then the U.S. Borrower may
extend offers to one or more Eligible Assignees to participate in any portion
of the requested Incremental Facility that has not been committed to by the
Lenders as of the Commitment Date; provided, however, that the Commitment of
each such Eligible Assignee shall be in an amount equal to at least
U.S.$1,000,000.
(d) On the applicable Increase Date, each Eligible Assignee that
accepts an offer to participate in a requested Incremental Facility in
accordance with Section 2.16(c) (each such Eligible Assignee, an "Assuming
Lender") shall become a Lender party to this Agreement as of the applicable
Increase Date and the Commitment of each Increasing Lender for such
Incremental Facility shall be so increased by such amount (or by the amount
allocated to such Lender pursuant to the last sentence of Section 2.16(b)) as
of such Increase Date; provided, however, that the Administrative Agent shall
have received on or before the Increase Date the following, each dated such
date:
(i) (A) certified copies of resolutions of the Board of
Directors of the U.S. Borrower approving the Incremental Facility and
the corresponding modifications to this Agreement and (B) an opinion
of counsel for the U.S. Borrower, in a form reasonably satisfactory to
the Administrative Agent;
(ii) an assumption agreement from each Assuming Lender, if any,
in form and substance satisfactory to the U.S. Borrower and the
Administrative Agent (each an "Assumption Agreement"), duly executed
by such Eligible Assignee, the Administrative Agent and the U.S.
Borrower; and
(iii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the U.S.
Borrower and the Administrative Agent.
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On the applicable Increase Date, upon fulfillment of the conditions
set forth in the immediately preceding sentence of this Section 2.16(d), the
Administrative Agent shall notify the Lenders (including each Assuming Lender)
and the U.S. Borrower, on or before 11:00 A.M. (Relevant Local Time), by
telecopier or telex, of the occurrence of the Incremental Facility to be
effected on the related Increase Date and shall record in the Register the
relevant information with respect to each Increasing Lender and each Assuming
Lender on such date.
(e) Notwithstanding anything to the contrary contained above, each
Incremental Facility shall constitute a new Facility, which shall be separate
and distinct from the existing Facilities pursuant to this Agreement, provided
that an Incremental Facility may constitute part of, and be added to, an
existing Facility, so long as:
(i) the advances made under the Incremental Facility shall have
the same final maturity date and same weighted average life to
maturity as the existing Facility to which the new Incremental
Facility is being added, and shall bear interest at the same rates
(i.e., have the same "Applicable Rate") applicable to such Facility;
(ii) the new Incremental Facility shall have the same scheduled
repayment dates as then remain with respect to the existing Facility
to which such new Incremental Facility is being added, with the amount
of each scheduled repayment installment of the new Incremental
Facility to be the same (on a proportionate basis) as is theretofore
applicable to the existing Facility to which such new Incremental
Facility is being added; and
(iii) on the date of the making of loan under the new
Incremental Facility, and notwithstanding anything to the contrary in
Section 2.07, the aggregate principal amount of such new loan shall be
added to (and form part of) each Borrowing of outstanding Loans of the
respective Facility on a pro rata basis (based on the relative sizes
of the various outstanding Borrowings), so that each Lender will
participate proportionately in each then outstanding Borrowing under
the respective Facility, and so that the existing Lenders with respect
to such Facility continue to have the same participation (by amount)
in each Borrowing as they had before the making of the new advances
under such Facility.
To the extent the provisions of the preceding clause (iii) require
that Lenders making new loans under an Incremental Facility add the aggregate
principal amount of such new loans to the then outstanding Loans of
Eurocurrency Rate Advances, it is acknowledged that the effect thereof may
result in such new advances having short Interest Periods (i.e. an Interest
Period that will begin during an Interest Period then applicable to the
outstanding Eurocurrency Rate Advances and which will end on the last day of
such Interest Period). In connection therewith, the U.S. Borrower may agree to
compensate the Lenders making the advances under the new Incremental Facility
for funding Eurocurrency Rate Advances during an existing Interest Period on
such basis as may be agreed by the U.S. Borrower and the respective Lender or
Lenders.
(f) Conflicting Provisions. This Section shall supersede any
provisions in Sections 2.15 or 10.01 to the contrary.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrowers hereunder or under any other Loan Document
shall be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if any Borrower shall be
required by applicable Law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, any Lender or the L/C Issuer, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable Law.
(b) Payment of Other Taxes by the Borrowers. Without limiting the
provisions of subsection (a) above, the Borrowers shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable
law.
(c) Indemnification by the Borrowers. Each of the Borrowers shall
indemnify the Administrative Agent, each Lender and the L/C Issuer, within 30
days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto (provided that such penalties, interests and expenses are not
attributable to the gross negligence or willful misconduct of the
Administrative Agent, any Lender, or the L/C Issuer), whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment, setting forth in reasonable detail the calculation and basis for such
amount, delivered to a Borrower by a Lender or the L/C Issuer (with a copy to
the Administrative Agent), or by the Administrative Agent on its own behalf or
on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.
(d) Change in Place of Organization. The Borrowers shall not be
required pursuant to this Section 3.01 to pay any additional amount to, or to
indemnify, the Administrative Agent, any Lender, or the L/C Issuer, as the
case may be, to the extent such Administrative Agent, Lender, or L/C Issuer
becomes subject to Taxes subsequent to the date on which such Administrative
Agent, Lender, or L/C Issuer becomes a party to this Agreement as a result of
a change in the place of organization of such Administrative Agent, Lender, or
L/C Issuer, except to the extent that any such change is requested or required
by a Borrower (and provided, that nothing in this clause (d) shall be
construed as relieving the Borrowers from any obligation to make such payments
or indemnification in the event of a Change in Law, including a Change in Law
after the date of such change of place of organization).
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(e) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by a Borrower to a Governmental Authority,
such Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(f) Status of Lenders. Any Foreign Lender or any UK Lender that is
entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which the relevant Borrower with respect to that Foreign
Lender or UK Lender is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to such Borrower or the relevant Governmental
Authority (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by such Borrower or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by a Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by such
Borrower or the Administrative Agent as will enable such Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
withholding or information reporting requirements.
Without limiting the generality of the foregoing, if a Borrower is resident for
tax purposes in the United States, (i) any Foreign Lender shall deliver to such
Borrower and the Administrative Agent, or to such Persons as they may
reasonably designate, (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the request
of such Borrower or the Administrative Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable:
(A) duly completed originals of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party,
(B) duly completed originals of Internal Revenue Service Form
W-8ECI,
(C) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the Code,
(A) a certificate to the effect that such Foreign Lender is not (1) a
"bank" within the meaning of section 881(c)(3)(A) of the Code, (2) a
"10 percent shareholder" of such Borrower within the meaning of
section 881(c)(3)(B) of the Code, or (3) a "controlled foreign
corporation" described in section 881(c)(3)(C) of the Code and (B)
duly completed originals of Internal Revenue Service Form W-8BEN, or
(D) any other form prescribed by applicable law as a basis for
claiming exemption from or reduction in United States Federal
withholding tax (including any successor form to those referenced in
Sections 3.01(f)(i)-(iii) duly completed together with such
supplementary documentation as may be prescribed by
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applicable law to permit such Borrower to determine the withholding or
deduction required to be made, or
(ii) any Lender that is not a Foreign Lender shall deliver to such
Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such
Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of such Borrower or the Administrative Agent)
a duly completed Internal Revenue Service Form W-9 (or successor form
thereto).
(g) Treatment of Certain Refunds. If the Administrative Agent, any
Lender, or L/C Issuer becomes aware that it is entitled to claim a refund from
a Governmental Authority in respect of Indemnified Taxes or Other Taxes paid by
a Borrower pursuant to this Section 3.01, such Administrative Agent, Lender or
L/C Issuer, as the case may be, shall promptly notify the Borrower of the
availability of such refund claim and, within 30 days after receipt of a
request by a Borrower, make a claim to such Governmental Authority for such
refund. If the Administrative Agent, any Lender or the L/C Issuer receives a
refund of any Taxes or Other Taxes as to which it has been indemnified by a
Borrower or with respect to which a Borrower has paid additional amounts
pursuant to this Section, it shall pay to such Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower under this Section with respect to the Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent, such Lender or the L/C Issuer, as the case may be,
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, agrees to
repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed
to require the Administrative Agent, any Lender or the L/C Issuer to make
available its tax returns (or any other information relating to its taxes that
it reasonably deems confidential) to the Borrowers or any other Person.
(h) UK Lenders. A Borrower is not required to pay additional amounts
to a Lender (other than an assignee pursuant to a request by a Borrower under
Section 10.14) pursuant to Section 3.01(a) in respect of any Indemnified Tax
that is required by the United Kingdom to be withheld from a payment of
interest on a loan made to a Borrower incorporated in the United Kingdom if at
the time that that withholding is made: (i) the relevant Lender is not a UK
Lender and that Indemnified Tax would not have been required to be withheld
had that Lender been a UK Lender unless the reason that that Lender is not a
UK Lender is a change after the date on which it became a Lender under this
Agreement in (or in the interpretation, administration or application of) any
law or double taxation agreement or any published practice or published
concession of any relevant Tax authority; or (ii) the relevant Lender is a
Treaty Lender and the relevant Borrower is able to demonstrate that that
Indemnified Tax is required to be withheld as a result of the failure of the
relevant Lender to comply with its obligations under Section 3.01(f).
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3.02 Illegality.
If any Lender determines in good faith 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
Eurocurrency Rate Loans in dollars or any Foreign Currency, or to determine or
charge interest rates based upon the Eurocurrency Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars or any Foreign Currency in
the London interbank market, then, on notice thereof by such Lender to the U.S.
Borrower through the Administrative Agent, any obligation of such Lender to
make or continue Eurocurrency Rate Loans or to convert Base Rate Loans to
Eurocurrency Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the U.S. Borrower that the circumstances giving rise
to such determination no longer exist. Upon receipt of such notice, the U.S.
Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), (a) with respect to Loans denominated in Dollars, prepay or, if
applicable, convert all Eurocurrency Rate Loans of such Lender to Base Rate
Loans and (b) with respect to Loans denominated in a Foreign Currency, exchange
all such Loans into the Equivalent thereof in Dollars and convert such Loans to
Base Rate Loans, in each case either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurocurrency
Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurocurrency Rate Loans. Upon any such prepayment or
conversion, the U.S. Borrower shall also pay accrued interest on the amount so
prepaid or converted and amounts due pursuant to Section 3.05, if any.
3.03 Inability to Determine Rates.
If the Required Lenders determine that for any reason in connection
with any request for a Eurocurrency Rate Loan or a conversion to or
continuation thereof that (a) deposits in Dollars or the applicable Foreign
Currency are not being offered to banks in the London interbank eurocurrency
market for the applicable amount and Interest Period of such Eurocurrency Rate
Loan, (b) adequate and reasonable means do not exist for determining the
Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan, or (c) the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan does not adequately
and fairly reflect the cost to such Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Borrowers and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate
Loans shall be suspended until the Administrative Agent (upon the instruction
of the Required Lenders) revokes such notice. Upon receipt of such notice, the
applicable Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans or, failing that, (x)
in the case of requests for Borrowings in Dollars, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein and (y) in the case of requests for Borrowings in any
Foreign Currency, will be deemed to have revoked such request.
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, any Lender;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurocurrency Rate Loan made by
it, or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and any Excluded Tax); or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurocurrency Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining
its obligation to make any such Loan), or to increase the cost to such Lender
or the L/C Issuer of participating in, issuing or maintaining any Letter of
Credit (or of maintaining its obligation to participate in or to issue any
Letter of Credit), or to reduce the amount of any sum received or receivable by
such Lender or the L/C Issuer hereunder (whether of principal, interest or any
other amount) then, upon request of such Lender or the L/C Issuer, the
Borrowers will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer,
as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender's or the L/C Issuer's holding company, if
any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's or the L/C Issuer's capital or on the
capital of such Lender's or the L/C Issuer's holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans
made by, or participations in Letters of Credit held by, such Lender, or the
Letters of Credit issued by the L/C Issuer, to a level below that which such
Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the L/C Issuer's policies and the policies of such Lender's or the
L/C Issuer's holding company with respect to capital adequacy), then from time
to time the Borrowers will pay to such Lender or the L/C Issuer, as the case
may be, such additional amount or amounts as will compensate such Lender or
the L/C Issuer or such Lender's or the L/C Issuer's holding company for any
such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the
L/C Issuer setting forth the amount or amounts necessary to compensate such
Lender or the L/C Issuer or its holding company, as the case may be (which
certificate shall set forth in reasonable detail the basis for and calculation
thereof), as specified in subsection (a) or (b) of this Section and delivered
to the U.S. Borrower shall be conclusive absent manifest error. The Borrowers
shall pay such Lender or the L/C Issuer, as the case may be, the amount shown
as due on any such certificate within 10 days after receipt thereof.
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(d) Delay in Requests. Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender's or the L/C
Issuer's right to demand such compensation, provided that the Borrowers shall
not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that such Lender
or the L/C Issuer, as the case may be, notifies the U.S. Borrower of the
Change in Law giving rise to such increased costs or reductions and of such
Lender's or the L/C Issuer's intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions
is retroactive, then the nine-month period referred to above shall be extended
to include the period of retroactive effect thereof).
3.05 Compensation for Losses. Upon written demand of any Lender (with
a copy to the Administrative Agent) from time to time, the Borrowers 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);
(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; or
(c) any assignment of a Eurocurrency Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by
a Borrower pursuant to Section 10.14;
excluding any loss of anticipated profits, but 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. The Borrowers shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Base Rate used in
determining the Eurocurrency Rate for such Loan by a matching deposit or other
borrowing in the London interbank eurocurrency market for a comparable amount
and for a comparable period, whether or not such Eurocurrency Rate Loan was in
fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or a Borrower is required to pay, or
delivers to such Lender and the Administrative Agent a certificate
setting forth reasons it reasonably anticipates that it will be required
to pay, any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 3.01, or if any Lender
gives a notice pursuant to
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Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as applicable,
and (ii) in each case, would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender.
Each Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or
assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if any Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, the U.S. Borrower may replace such Lender in
accordance with Section 10.14.
3.07 Survival. All of the Borrowers' and Lenders' obligations under
this Article III shall survive termination of the Aggregate Commitments and
repayment of all other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO Credit Extensions
4.01 Conditions of Initial Credit Extension. The obligation of the
L/C Issuer and 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 telecopies (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible
Officer of the signing Loan Party, each dated the Closing Date (or, in
the case of certificates of governmental officials, a recent date before
the Closing Date) and each in form and substance satisfactory to the
Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the ROV Guaranty,
the KGaA Guaranty and the UK Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the
Borrowers;
(ii) Notes executed by each of the Borrowers in favor of each
Lender requesting a Note;
(iii) a security agreement, in substantially the form of Exhibit
G (together with each other security agreement and security agreement
supplement delivered pursuant to Section 6.12, in each case as
amended, the "Security Agreement"), duly executed by each Loan Party,
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,
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(B) proper financing statements, in form appropriate for
filing under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable in
order to perfect the Liens created under the Security Agreement,
covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before
the date of the initial Credit Extension, listing all effective
financing statements filed in the jurisdictions referred to in
clause (B) above that name any Loan Party as debtor, together
with copies of such other financing statements,
(D) evidence of the completion of all other actions,
recordings and filings of or with respect to the Security
Agreement that the Administrative Agent may deem necessary or
desirable in order to perfect and protect the Liens created
thereby, and
(E) evidence of the insurance required by the terms of the
Security Agreement.
(iv) an intellectual property security agreement, in
substantially the form attached to the Security Agreement (together
with each other intellectual property security agreement and
intellectual property security agreement supplement delivered pursuant
to Section 6.12, in each case as amended, the "Intellectual Property
Security Agreement"), duly executed by each Loan Party, together with
evidence that all actions that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created under the
Intellectual Property Security Agreement have 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 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 each Loan
Party 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 do so could not
reasonably be expected to have a Material Adverse Effect;
(vii) a favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP counsel to the Loan Parties, addressed to the Administrative
Agent and each Lender, as to the matters set forth in Exhibit I-1 and
such other matters
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concerning the Loan Parties and the Loan Documents as the Required
Lenders may reasonably request;
(viii) a favorable opinion of local counsel to the Loan Parties
in each of Germany, England, Delaware, California, Missouri, Wisconsin
and Hawaii, addressed to the Administrative Agent and each Lender, as
to the matters set forth in Exhibit I-2 and such other matters
concerning the Loan Parties and the Loan Documents as the Required
Lenders may reasonably request;
(ix) a favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇, counsel for
UIC, delivered in connection with the Merger;
(x) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all material consents, licenses and
approvals required in connection with the execution, delivery and
performance by such Loan Party and the validity against such Loan
Party of the Loan Documents to which it is a party, and such consents,
licenses and approvals shall be in full force and effect, or (B)
stating that no such consents, licenses or approvals are so required
and a certificate of a director of the UK Borrower that the Borrowings
to be made by it hereunder will not breach any borrowing, guarantee,
security or other limit binding on the UK Borrower;
(xi) a certificate signed by a Responsible Officer of the U.S.
Borrower certifying that the conditions specified in Sections 4.02(a)
and (b) have been satisfied;
(xii) certificates and letters attesting to the Solvency of each
Loan Party before and after giving effect to the Transaction (and the
incurrence of Indebtedness related thereto), from its Chief Financial
Officer;
(xiii) pro forma consolidated financial statements as to the
U.S. Borrower and its Subsidiaries that (1) meet the requirements of
Regulation S-X under the Securities Act of 1933, as amended, and all
other accounting rules and regulations of the SEC promulgated
thereunder applicable to a registration statement under such Act on
Form S-1 (including the inclusion of footnote disclosure) (2) are not
materially inconsistent with the Audited Financial Statements and (3)
do not contain or disclose any new facts or information that are
material and adverse to the Lenders and forecasts prepared by
management of the U.S. Borrower, in form and substance satisfactory to
the Arrangers, of balance sheets, income statements and cash flow
statements on a quarterly basis for the first year following the day
of the initial Credit Extension and on an annual basis for each year
thereafter until the Maturity Date for the Term Facilities, which
shall state the assumptions on the basis of which such forecasts shall
have been prepared, it being understood that actual results may vary
from such forecasts and such variations may be material;
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(xiv) certified copies of each of the Related Documents, duly
executed by the parties thereto and with no amendments, supplements or
waivers thereto since January 3, 2005 in any manner adverse to the
Lenders, together with all agreements, instruments and other documents
delivered in connection therewith as the Administrative Agent shall
reasonably request;
(xv) certified copies of a certificate of merger or other
confirmation reasonably satisfactory to the Lenders of the
consummation of the Merger from the Secretary of State of the State of
Delaware;
(xvi) a Notice of Borrowing or Notice of Issuance, as
applicable, relating to the initial Credit Extension;
(xvii) (A) evidence that all of the outstanding "Loans" as
defined in the Existing Rayovac Credit Agreement have been purchased
by the Lenders hereunder, (B) evidence that the Existing UIC Credit
Agreement has been or concurrently with the Closing Date is being
terminated and all Liens securing obligations under the Existing UIC
Credit Agreement have been or concurrently with the Closing Date are
being released, (C) evidence that the U.S. Borrower has accepted for
payment and paid for all UIC Notes tendered in the tender offer and
consent solicitation conducted with respect to the UIC Notes prior to
the Closing Date and (D) UIC shall have mailed or caused to be mailed,
by first class mail, their irrevocable notice of redemption to each
holder of UIC Notes in accordance with the provisions of Article III
of the Indenture dated March 27, 2003, among UIC, the Guarantors (as
defined therein) and U.S. Bank National Association, as Trustee, and
shall state that the redemption date for the UIC Notes, shall be 30
days from the date such notice is mailed; and
(xviii) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent, the L/C Issuer, the Swing
Line Lender or any Lender reasonably may require.
(b) All fees required to be paid to the Administrative Agent, the
Joint Book Managers and the Lenders on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall
have paid all reasonable out-of-pocket fees, charges and disbursements of
counsel to the Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees,
charges and disbursements incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a final
settling of accounts between the U.S. Borrower and the Administrative Agent).
(d) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or, to
the knowledge of any of the Borrowers, threatened, before any Governmental
Authority or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect or (ii) could be reasonably likely to have a
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material adverse effect on the operations, business, assets or condition
(financial or otherwise) of UIC and its Subsidiaries, taken as a whole.
(e) All material governmental authorizations and all third party
consents and approvals necessary in connection with the Transaction shall have
been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect; all applicable waiting
periods in connection with the Transaction shall have expired without any
action being taken by any Governmental Authority that restrains, prevents or
imposes materially adverse conditions upon the Transaction or the rights of
the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose
of, or to create any Lien on, any properties now owned or hereafter acquired
by any of them.
(f) All of the written information that was made available to the
Administrative Agent by or on behalf of any of the Loan Parties prior to
January 3, 2005 shall be complete and correct in all material respects and no
new or additional information shall have been received or discovered after
January 3, 2005 that is inconsistent with such information and either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(g) The Merger shall have been consummated in accordance with the
terms of the Merger Agreement, without any waiver or amendment of any term,
provision or condition set forth therein adverse to the Lenders and not
consented to by the Arrangers.
Without limiting the generality of the provisions of Section 9.05, for purposes
of determining compliance with the conditions specified in this 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.
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 denominated in Dollars to the
other Type, or a continuation of Eurocurrency Rate Loans) is subject to the
following conditions precedent:
(a) The representations and warranties of the Borrowers and each
other Loan Party contained in Article V or any other Loan Document, or
which are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct in all
material respects on and as of the date of such Credit Extension (other
than, with respect to Credit Extensions made on the Closing Date, the
representation in Section 5.05(c)), except to the extent that such
representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct in all material respects as of
such earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in Sections 5.05(a) and (b)
shall be deemed to refer to the most recent statements furnished pursuant
to Sections 6.01(a) and (b), respectively.
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(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 denominated in Dollars to the other Type
or a continuation of Eurocurrency Rate Loans) submitted by a 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.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers represents and warrants to the Administrative
Agent and the Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws. Each
Loan Party and each of its Subsidiaries (other than Dormant Subsidiaries) (a)
is duly organized or formed and validly existing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power
and authority and all requisite governmental licenses, authorizations
(including good standing), consents and approvals 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 and consummate the
Transaction, (c) is duly qualified and is licensed 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 or
license, and (d) is in compliance with all Laws and licenses, authorizations
and permits of Governmental Authorities in favor of such Loan Party; except in
each case referred to in clause (b)(i), (c) or (d), to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document and the Merger Agreement
to which such Loan Party is or is to be a party 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, except to
the extent that such breach, contravention or conflict could not reasonably be
expected to have a Material Adverse Effect (a) contravene the terms of any of
such Loan Party's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien (other than Permitted
Liens) under, or require any payment to be made under (i) any Contractual
Obligation to which such Loan Party is a party or, to such Loan Party's
knowledge, affecting such Loan Party or the properties of such Loan Party or
any of its Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Loan Party or its
property is subject; or (c) violate any Law or any license, authorization or
permit of a Governmental Authority reasonably necessarily in the conduct of
such Subsidiary's business. Each Loan Party and each Subsidiary thereof is in
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compliance with all Contractual Obligations referred to in clause (b)(i),
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.03 Governmental Authorization; Other Consents. No 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 the Merger Agreement, or for the consummation of the Transaction,
except those approvals, consents, exemption, authorization or other actions
the failure of which to obtain or take could not reasonably be expected to
have a Material Adverse Effect, (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 other than UCC
filings and other filings specifically contemplated by 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 and (ii)
approvals, consents, exemptions, authorizations, deletions, notices and
filings that (A) have been duly obtained, taken, given or made and are in full
force and effect or (B) the failure of which to obtain or take could not
reasonably be expected to have a Material Adverse Effect.
5.04 Binding Effect. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and
delivered by each Loan Party that is party thereto. This Agreement
constitutes, and each other Loan Document when so delivered will constitute, 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 to
the extent such enforceability may be limited by the effect of applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by equitable principles relating to enforceability.
5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein; (ii) in all material respects fairly
present the financial condition of each of the U.S. Borrower and its
Subsidiaries and UIC and its Subsidiaries, respectively, as of the date
thereof and their results of operations for the period covered thereby; and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of the U.S. Borrower and its Subsidiaries and UIC and its
Subsidiaries, respectively, as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.
(b) The unaudited consolidated balance sheet of UIC and its
Subsidiaries dated September 30, 2004 and the related consolidated statements
of income or operations, shareholders' equity and cash flows for the fiscal
quarters ended on such dates (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present in all material
respects the financial condition of UIC and its Subsidiaries as of the date
thereof and their results of operations for the
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period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments. Schedule 5.05
sets forth all material indebtedness and other liabilities, direct or
contingent, of UIC and its consolidated Subsidiaries as of the date of such
financial statements, including liabilities for taxes, material commitments and
Indebtedness.
(c) Since the date of the Audited Financial Statements, 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.
(d) The consolidated pro forma balance sheet of the U.S. Borrower and
its Subsidiaries as at September 30, 2004, and the related consolidated pro
forma statements of income and cash flows of the U.S. Borrower and its
Subsidiaries for the fiscal year then ended, certified by the chief financial
officer or treasurer of the U.S. Borrower, copies of which have been furnished
to each Lender, fairly present in all material respects the consolidated pro
forma financial condition of the U.S. Borrower and its Subsidiaries as at such
date and the consolidated pro forma results of operations of the U.S. Borrower
and its Subsidiaries for the period ended on such date, in each case giving
effect to the Transaction, all in accordance with GAAP.
(e) The consolidated forecasted balance sheets, statements of income
and statements of cash flows of the U.S. Borrower and its Subsidiaries
delivered to the Lenders pursuant to Section 4.01 or 6.01(c) were prepared in
good faith on the basis of the reasonable assumptions at the time made stated
therein, which assumptions were fair in light of the conditions existing at
the time of delivery of such forecasts, it being understood that (i) such
forecasts, as to future events, are not to be viewed as facts, that actual
results during the period or periods covered by any such forecasts may differ
significantly from the forecasted results and that such differences may be
material and that such forecasts are not a guarantee of financial performance
and (ii) no representation is made with respect to information of a general
economic or general industry nature.
5.06 Litigation. Except as disclosed on Schedule 5.06, there are no
actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Borrowers, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrowers or any of their
Subsidiaries or against any of their properties or revenues that either
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect.
5.07 No Default. None of the Borrowers or 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.
5.08 Ownership of Property.
(a) Each Loan Party has good record, indefeasible and insurable title
in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except where failure to have
such title or other property interests could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
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(b) Schedule 5.08(b) sets forth a complete and accurate list of all
real property owned by each Loan Party, which, as of the Closing Date, has an
estimated fair value greater than $5,000,000 or as to which a Mortgage will be
granted hereunder, in each case showing as of the date hereof the street
address, county or other relevant jurisdiction, state, record owner and
estimated fair value thereof. Each Loan Party has good, indefeasible and
insurable fee simple title to the real property owned by such Loan Party, free
and clear of all Liens, other than Permitted Liens.
(c) Schedule 5.08(c) sets forth a complete and accurate list of all
material leases of real property subject to a leasehold mortgage as of the
Closing Date or as to which a Mortgage will be granted hereunder under which
any Loan Party is the lessee, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, lessor, lessee and
expiration date thereof. Each such lease is the legal, valid and binding
obligation of the lessor (assuming corporate power and authority and due
execution and delivery on the part of the lessor with respect to such lease)
thereof, enforceable in accordance with its terms.
5.09 Environmental Compliance.
(a) The facilities and properties owned or leased by the Loan Parties
and their respective Subsidiaries are in compliance with all Environmental
Laws, except for such non-compliance as would not reasonably be expected to
result in a Material Adverse Effect.
(b) Except as otherwise set forth in Schedule 5.09, none of the
properties currently or, to the knowledge of any Borrower, formerly owned 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; and, except as would not reasonably be expected to result in a
Material Adverse Effect, Hazardous Materials have not been released,
discharged or disposed of at, on or under any property currently or, to the
knowledge of the Loan Parties, formerly owned or operated by any Loan Party or
any of its Subsidiaries.
(c) Except as otherwise set forth on Schedule 5.09 or as could not
individually or in the aggregate be reasonably expected to have a Material
Adverse Effect, neither any Loan Party 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; and 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 in individually or in the aggregate, a Material Adverse Effect to any
Loan Party or any of its Subsidiaries.
(d) No pending or threatened claims against any Loan Party or any of
their Subsidiaries of any Government Authority or any other party arising
under any Environmental Law have been made, except for such claims that are
not reasonably likely, either singly or in the aggregate, to result in a
Material Adverse Effect.
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5.10 Insurance. The properties of the U.S. Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the U.S. Borrower, in such amounts (after giving
effect to any self-insurance compatible with the following standards), with
such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in
localities where the U.S. Borrower or the applicable Subsidiary operates.
5.11 Taxes. The U.S. Borrower and its Subsidiaries have filed all
material Federal, state and other material tax returns and reports required to
be filed, and have paid all material Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except those
which are (a) not overdue by more than thirty (30) days, (b) being contested
in good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP and (c) to the
extent that the failure to make such filings individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect. There is
no proposed tax assessment against the U.S. Borrower or any Subsidiary that
would, if made, have a Material Adverse Effect. Neither any Loan Party nor any
of its Subsidiaries is party to any tax sharing agreement with any other
Person (other than the U.S. Borrower and its Subsidiaries) pursuant to which
it is liable for any Taxes of any Person that could be reasonably expected to
have a Material Adverse Effect.
5.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with its
terms, 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
is so qualified, and to the knowledge of the U.S. Borrower, nothing has
occurred which could reasonably be expected to cause the loss of such
qualification. There are no pending or, to the knowledge of the Borrowers,
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.
(b) No ERISA Event has occurred or could reasonably be expected to
occur that, either individually or in the aggregate, has had or could
reasonably be expected to have, a Material Adverse Effect. No Pension Plan has
any Unfunded Pension Liability, except as could not reasonably be expected to
have a Material Adverse Effect.
(c) With respect to each scheme or arrangement mandated by a
government other than the United States (a "Foreign Government Scheme or
Arrangement") and with respect to each employee benefit plan maintained or
contributed to by any Loan Party or any Subsidiary of any Loan Party that is
not subject to United States law (a "Foreign Plan"), except as could not
reasonably be expected to have a Material Adverse Effect:
(i) any employer and employee contributions required by law or
by the terms of any Foreign Government Scheme or Arrangement or any
Foreign Plan have been made, or, if applicable, accrued, in accordance
with normal accounting practices;
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(ii) the fair market value of the assets of each funded Foreign
Plan, the liability of each insurer for any Foreign Plan funded
through insurance or the book reserve established for any Foreign
Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the date
hereof, with respect to all current and former participants in such
Foreign Plan according to the actuarial assumptions and valuations
most recently used to account for such obligations in accordance with
applicable generally accepted accounting principles; and
(iii) each Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities.
5.13 Subsidiaries; Equity Interests; Loan Parties. As of the Closing
Date, the U.S. Borrower has no Subsidiaries other than those specifically
disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and
non-assessable and are owned by a Loan Party in the amounts specified on
Schedule 5.13 free and clear of all Liens except those permitted under Section
7.01(a), (b), (c), (h), (j), or (o). As of the Closing Date, each Loan Party
has no equity investments in any other corporation or entity other than those
specifically disclosed in Schedule 5.13, Cash Equivalents and equity
investments permitted pursuant to Section 7.03(p). All of the outstanding
Equity Interests in the U.S. Borrower and each of its Subsidiaries have been
validly issued and are fully paid and non-assessable. Set forth on Part (c) of
Schedule 5.13 is a complete and accurate list of all Loan Parties, showing as
of the Closing Date (as to each Loan Party) the jurisdiction of its
incorporation, the address of its principal place of business and its U.S.
taxpayer identification number, or, in the case of the UK Borrower, its
registered number at Companies House, or, in the case of any non-U.S. Loan
Party that does not have a U.S. taxpayer identification number, its unique
identification number issued to it by the jurisdiction of its incorporation.
The copy of the charter of each Loan Party and each amendment thereto provided
pursuant to Section 4.01(a) is a true and correct copy of each such document,
each of which is valid and in full force and effect.
5.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
(a) Following the application of the proceeds of each Borrowing or
drawing under each Letter of Credit, not more than 25% of the value of the
assets (of the U.S. Borrower only, the Subsidiary Borrower only, or of the
U.S. Borrower and its Subsidiaries on a consolidated basis) subject to the
provisions of Section 7.01 or Section 7.05 or subject to any restriction
contained in any agreement or instrument between the U.S. Borrower and any
Lender or any Affiliate of any Lender or the Subsidiary Borrower and any
Lender or any Affiliate of any Lender relating to Indebtedness and within the
scope of Section 8.01(e) will be margin stock.
(b) None of the U.S. Borrower, any Person Controlling the U.S.
Borrower, 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.
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5.15 Disclosure. The U.S. Borrower has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of the
Loan Parties, taken as a whole, to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder or under any other Loan Document (in each
case as modified or supplemented by other information so furnished) 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 misleading; provided that, with respect to projected
financial information, the U.S. Borrower represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at
the time, it being understood that actual results may vary from such
projections, and such variations may be material.
5.16 Intellectual Property; Licenses, Etc. The U.S. Borrower and each
of its Subsidiaries own, or possess the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, "IP Rights")
that are necessary for the operation of their respective businesses, without
conflict with the rights of any other Person, except to the extent that the
failure to so own or possess any such IP Rights (or any conflict pertaining
thereto) could not individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. To the knowledge of the Borrowers, no slogan or
other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by the U.S. Borrower
or any of its Subsidiaries infringes upon any valid rights held by any other
Person except to the extent that such infringement could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
Except as specifically disclosed in Schedule 5.16, no claim or litigation
regarding any of the foregoing is pending or, to the knowledge of the
Borrowers, threatened, which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
5.17 Solvency. Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, each of the Borrowers shall, and shall (except
in the case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11)
cause each Subsidiary to:
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6.01 Financial Statements. Deliver to the Administrative Agent and
each Lender:
(a) as soon as available, but in any event within 80 days after the
end of each fiscal year of the U.S. Borrower (commencing with the fiscal
year ended 2004 with respect to UIC and its Subsidiaries and 2005 with
respect to the U.S. Borrower and its Subsidiaries), a consolidated balance
sheet of the U.S. Borrower 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, such consolidated Statements to be audited and accompanied by a
report and opinion of a "big four" national accounting firm or other
Registered Public Accounting Firm of nationally recognized standing
reasonably acceptable to the Administrative Agent, which report and
opinion shall be prepared in accordance with generally accepted auditing
standards and applicable Securities Laws;
(b) as soon as available, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of the
U.S. Borrower (commencing with the fiscal quarter ended December 31, 2004
with respect to Rayovac Corporation and its Subsidiaries and with the
fiscal quarter ended March 31, 2005 with respect to the U.S. Borrower and
its Subsidiaries), a consolidated balance sheet of the U.S. Borrower 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 U.S.
Borrower's 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 the chief financial
officer or the treasurer of the U.S. Borrower as fairly presenting the
financial condition, results of operations, shareholders' equity and cash
flows of the U.S. Borrower 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, but in any event at within 91 days after
the end of each fiscal year, forecasts prepared by management of the U.S.
Borrower, in form reasonably satisfactory to the Administrative Agent and
the Required Lenders, of the operating budget and cash flow budget of the
U.S. Borrower and its Subsidiaries for the succeeding fiscal year, such
projections to be accompanied by a certificate of the chief financial
officer of the U.S. Borrower to the effect that (i) such projections were
prepared by the U.S. Borrower in good faith, (ii) the U.S. Borrower has a
reasonable basis for the assumptions contained in such projections and
(iii) such projections have been prepared according to such assumptions,
it being understood that actual results may vary from such projections,
and such variations may be material.
As to any information contained in materials furnished pursuant to Section
6.02(c), the U.S. Borrower shall not be separately required to furnish such
information under Sections 6.01(a) or (b) above, but the foregoing shall not be
in derogation of the obligation of the U.S. Borrower to furnish the information
and materials described in Sections 6.01(a) and (b) above at the times
specified therein.
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6.02 Certificates; Other Information. Deliver to the Administrative
Agent and each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the U.S. Borrower;
(b) promptly after any request by the Administrative Agent or any
Lender, copies of any final management letters submitted to the board of
directors (or the audit committee of the board of directors) of any Loan
Party by independent accountants;
(c) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication
sent to the stockholders of the U.S. Borrower, and copies of all annual,
regular, periodic and special reports and registration statements which
the U.S. Borrower may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934, 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 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 indenture, loan or
credit or similar agreement and not otherwise required to be furnished to
the Lenders pursuant to any other clause of this Section 6.02;
(e) promptly and in any event within five Business Days after receipt
thereof by any Loan Party or any of its Subsidiaries, notice of receipt
of any notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) concerning any
material investigation or possible material investigation or other
material inquiry by such agency regarding financial or other operational
results of any Loan Party or any of its Subsidiaries, but not copies of
any such notice or correspondence;
(f) promptly after the occurrence thereof, notice of any
Environmental Action against or of any noncompliance by any Loan Party or
any of its Subsidiaries with any Environmental Law or Environmental Permit
that could reasonably be expected to have a Material Adverse Effect ;
(g) in the case of the UK Borrower, prompt notice of any change of
name, change of office address or change in the center of main business;
and
(h) promptly, such additional information regarding the business,
financial, legal or corporate affairs of any Loan Party or any Subsidiary
thereof, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably
request.
Documents required to be delivered pursuant to Section 6.01(a), (b)
or (c) or otherwise (to the extent any such documents are included in
materials otherwise filed with the
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SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the U.S. Borrower posts such
documents, or provides a link thereto on the U.S. Borrower's website on the
Internet at the website address listed on Schedule 10.02; or (ii) on which such
documents are posted on the U.S. Borrower's behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that the U.S. Borrower shall notify the
Administrative Agent and each Lender who, upon reasonable written notice,
specifically requests such notifications from the U.S. Borrower (by telecopier
or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Except for the Compliance Certificate, 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 responsibility
to monitor compliance by the U.S. Borrower with any such request for delivery,
and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
The Borrowers hereby acknowledge that (a) the Administrative Agent
and/or the Arranger will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of the Borrowers
hereunder (collectively, "Borrower Materials") by posting the Borrower
Materials on IntraLinks or another similar electronic system (the "Platform")
and (b) certain of the Lenders may be "public-side" Lenders (i.e., Lenders that
do not wish to receive material non-public information with respect to the
Borrowers or their securities) (each, a "Public Lender"). The Borrowers hereby
agree that they will use commercially reasonable efforts to identify that
portion of the Borrower Materials that may not be distributed to the Public
Lenders and that (w) all such Borrower Materials shall be clearly and
conspicuously marked "MATERIAL NON-PUBLIC" which, at a minimum, shall mean that
the word "MATERIAL NON-PUBLIC" shall appear prominently on the first page
thereof; (x) by marking Borrower Materials "MATERIAL NON-PUBLIC," the Borrowers
shall be deemed to have directed the Administrative Agent, the Arrangers, the
L/C Issuer and the Lenders to treat such Borrower Materials as either
confidential information or as containing material non-public information with
respect to the Borrowers or their securities for purposes of United States
Federal and state securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth
in Section 10.07); (y) all Borrower Materials not marked "MATERIAL NON-PUBLIC"
are permitted to be made available through a portion of the Platform designated
"Public Investor" and the Borrowers hereby authorize the Administrative Agent,
the Arrangers, the L/C Issuer and the Lenders to treat all such Borrower
Materials as either publicly available information or information that although
it may be sensitive and proprietary, is not material with respect to the
Borrowers or their securities for purposes of United States Federal and State
securities; and (z) the Administrative Agent and the Arranger shall treat any
Borrower Materials that are marked "MATERIAL NON-PUBLIC" as being suitable only
for posting on a portion of the Platform not designated "Public Investor."
6.03 Notices. Promptly notify the Administrative Agent and each
Lender:
(a) of the occurrence of any Default;
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(b) of any matter that has resulted or could reasonably be expected
to result in a Material Adverse Effect;
(c) of the occurrence of any ERISA Event;
(d) of the (A) occurrence of any Disposition of property or assets
for which the U.S. Borrower is required to make a mandatory prepayment
pursuant to Section 2.07(b)(ii) and (B) incurrence or issuance of any
Indebtedness for which the U.S. Borrower is required to make a mandatory
prepayment pursuant to Section 2.07(b)(iii); and
(e) of the occurrence of any Internal Control Event.
Each notice pursuant to Section 6.03(a), (b), (c) or (e) shall be
accompanied by a statement of a Responsible Officer of the U.S. Borrower
setting forth details of the occurrence referred to therein and stating what
action the Borrowers have taken and propose 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 in respect of
which a Default exists.
6.04 Payment of Obligations. Pay, discharge or otherwise satisfy as
the same shall become due and payable, (a) all material tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by such Borrower or such Subsidiary except to the extent
the failure to pay or discharge the same could not reasonably be expected to
have a Material Adverse Effect; and (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property.
6.05 Preservation of Existence, Etc. (a) Other than as to Dormant
Subsidiaries, preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05 and
(other than with respect to the Borrowers) to the extent the failure to do so
could not reasonably be expected to have a Material Adverse Effect; (b) take
all reasonable action to maintain all rights, privileges, 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 and service marks, except to the
extent the failure to preserve or renew could not reasonably be expected to
have a Material Adverse Effect.
6.06 Maintenance of Properties. Except if 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 that are
necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; and (b) make all necessary repairs
thereto and renewals and replacements thereof in accordance with prudent
industry practice; provided, however, that this Section 6.06 shall not apply
to Dormant Subsidiaries.
6.07 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies not Affiliates of the U.S. Borrower, insurance
with respect to its properties
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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 (including with captive
insurance companies) compatible with the following standards) as are
customarily carried under similar circumstances by such other Persons.
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 in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted;
or (b) the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.
6.09 Books and Records. Maintain proper books of record and account,
in which full, true and correct entries shall be made of all material
financial transactions and matters involving the assets and business of the
Borrowers or such Subsidiary, as the case may be, in a manner that permits the
preparation of financial statements in accordance with GAAP.
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 such reasonable times during normal business hours,
in reasonable intervals, and upon reasonable advance notice to the Borrowers;
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 under this Section 6.10 and the
Administrative Agent shall not exercise such rights more often than two (2)
times during any calendar year and any one (1) such time shall be at the
Borrowers' expense; provided further, that when an Event of Default exists the
Administrative Agent or any Lender may do any of the foregoing at the expense
of the Borrowers at any time during normal business hours and upon reasonable
advance notice the Administrative Agent and the Lenders shall give the
Borrowers the opportunity to participate in any discussions with the
Borrowers' accountants.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for
general corporate purposes not in contravention of any Law or of any Loan
Document.
6.12 Covenant to Guarantee Obligations and Give Security. (a) Upon
the formation or acquisition of any new direct or indirect Subsidiaries by any
Loan Party, then the U.S. Borrower shall, at the U.S. Borrower's expense:
(i) within 30 days after such formation or acquisition (or such
longer period as the Administrative Agent may agree in its reasonable
discretion), cause such Subsidiary 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 (A) if such Subsidiary is a domestic Subsidiary, the U.S.
Borrower's and ROV Guarantors' obligations under the Loan Documents in
the case of a Domestic Subsidiary, or (B) if such Subsidiary is a direct
or indirect parent of a Subsidiary Borrower, the obligations of such
Subsidiary Borrower under the Loan Documents.
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(ii) within 15 days after such formation or acquisition (or such
longer period as the Administrative Agent may agree in its reasonable
discretion), furnish to the Administrative Agent a description of the
real and personal properties of each such Domestic Subsidiary, in a form
substantially consistent with Schedules 5.08(b) and 5.08(c),
(iii) within 30 days after such formation or acquisition (or such
longer period as the Administrative Agent may agree in its reasonable
discretion), cause each such Subsidiary to duly execute and deliver, to
the Administrative Agent deeds of trust, trust deeds, mortgages,
leasehold mortgages, leasehold deeds of trust, Security Agreement
Supplements, IP Security Agreement Supplements, supplements to any
Foreign Collateral Documents, and other security and pledge agreements,
as specified by and in form and substance reasonably satisfactory to the
Administrative Agent (including delivery of all pledged Equity Interests
in and of such Subsidiary, and other instruments of the type specified in
Section 4.01(a)(iii), (iv) and (v) and using commercially reasonable
efforts to deliver instruments of the type specified in clause
6.18(a)(v), in each case, as applicable), securing payment of all the
Obligations of such Subsidiary under the Loan Documents and constituting
Liens on all such personal properties, all such owned real properties
with an estimated fair value equal to or greater than $5 million and all
such material leased real properties; provided that with respect to any
such property outside the U.S., the Administrative Agent shall not
require a Subsidiary to grant a security interest therein, or provide
other deliveries to the extent the Administrative Agent determines in its
reasonable discretion that the cost of obtaining such Lien or delivery is
excessive in relation to the benefit to the Lenders, of the security
afforded thereby.
(iv) within 60 days after such formation or acquisition (or such
longer period as the Administrative Agent may agree in its reasonable
discretion), cause each such 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) may be necessary or advisable in the 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
deeds of trust, trust deeds, mortgages, leasehold mortgages, leasehold
deeds of trust, Security Agreement Supplements, IP Security Agreement
Supplements, supplements to Foreign Collateral Documents and security and
pledge agreements delivered pursuant to this Section 6.12, enforceable
against all third parties in accordance with their terms,
(v) within 30 days after the reasonable request therefor by the
Administrative Agent, deliver to the Administrative Agent, a signed copy
of a customary legal 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 the matters contained in
clauses (i), (iii) and (iv) above, and as to such other matters as the
Administrative Agent may reasonably request, and
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(vi) as promptly as practicable after such formation or acquisition,
deliver, upon the request of the Administrative Agent in its reasonable
discretion, to the Administrative Agent with respect to each parcel of
real property with fair market value equal to or greater than $5 million
owned or held by any domestic entity that is the subject of such
formation or acquisition title reports, surveys and environmental
assessment reports, each in scope, form and substance satisfactory to the
Administrative Agent, provided, however, that to the extent that any Loan
Party or any of its Subsidiaries shall have otherwise received any of the
foregoing items with respect to such real property, such items shall,
promptly after the receipt thereof, be delivered to the Administrative
Agent.
(b) Upon the acquisition of any personal property, any owned real
property with a fair market value greater than or equal to $5 million or any
material leased real property, by any Loan Party, and such property, in the
judgment of the Administrative Agent, shall not already be subject to a
perfected security interest in favor of the Administrative Agent for the
benefit of the Secured Parties provided that with respect to any such property
outside the U.S., the Administrative Agent shall not require a Loan Party to
comply with the following provisions to the extent that the Administrative
Agent determines, in its reasonable discretion, that the cost of such
compliance is excessive in relation to the benefit to be afforded to the
Lenders thereby, then the U.S. Borrower shall, at the U.S. Borrower's expense:
(i) within 15 days after such acquisition (or such longer period as
the Administrative Agent may agree in its reasonable discretion), furnish
to the Administrative Agent a description of the property so acquired in
detail reasonably satisfactory to the Administrative Agent,
(ii) within 30 days after such acquisition (or such longer period as
the Administrative Agent may agree in its reasonable discretion), cause
the applicable Loan Party to take whatever action (including the
execution and delivery of any agreement set forth in Section
6.12(a)(iii), the recording of mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or advisable
in the opinion of the Administrative Agent to vest in the Administrative
Agent (or in any representative of the Administrative Agent designated by
it) valid Liens on such property in accordance with the Loan Parties,
enforceable against all third parties,
(iii) within 30 days after the request therefor by the Administrative
Agent (or such longer period as the Administrative Agent may agree in its
reasonable discretion), deliver to the Administrative Agent a signed copy
of a favorable 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 the matters contained in
clause (ii) above and as to such other matters as the Administrative
Agent may reasonably request, and
(iv) as promptly as practicable after any acquisition of any such
real property, deliver, upon the request of the Administrative Agent in
its reasonable discretion, to the Administrative Agent with respect to
such real property title reports, surveys and
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environmental assessment reports, each in scope, form and substance
satisfactory to the Administrative Agent, provided, however, that to the
extent that any Loan Party or any of its Subsidiaries shall have otherwise
received any of the foregoing items with respect to such real property,
such items shall, promptly after the receipt thereof, be delivered to the
Administrative Agent,
(c) Upon the request of the Administrative Agent following the
occurrence and during the continuance of a Default, the U.S. Borrower shall,
at the U.S. Borrower's expense, furnish to the Administrative Agent such
descriptions of property of the U.S. Borrower and its Subsidiaries and deliver
to the Administrative Agent such additional Collateral Documents and other
deliveries of the nature contemplated by this Section 6.12 and Section
4.01(a), in each case to the extent, and within time periods, reasonably
requested by the Administrative Agent.
(d) In the event of, and upon the consummation of, an amendment to
the 2013 Notes Indenture that revises the covenants in the 2013 Notes
Indenture to be similar to the covenants in the 2015 Notes Indenture and,
specifically, allows new or additional Liens over the assets of foreign
Subsidiaries of the U.S. Borrower to secure the Obligations of the Subsidiary
Borrowers, the U.S. Borrower shall, at the U.S. Borrower's expense, (A)
deliver amendments, modifications, supplements to, restatements of or
replacements for, certain of the Foreign Collateral Documents including,
without limitation, (i) the UK Share Charges, the German Share Pledges, the
Netherlands Share Pledge and the German Account Pledge, (ii) pledge or other
agreements in respect of the Equity Interests of each Subsidiary Borrower and
(iii) take action of the type described in Section 6.12(a)(iii) and (iv) to
create valid perfected security interests over all property of each Subsidiary
Borrower as the Administrative Agent may reasonably request and (B) if Rayovac
(UK) Ltd. has not been put into liquidation at such time, a KGaA Guaranty and
a UK Guaranty duly executed by Rayovac (UK) Ltd..
(e) At any time upon request of the Administrative Agent, promptly
execute and deliver any and all further instruments and documents and take all
such other action as the Administrative Agent may deem necessary or desirable
in obtaining the full benefits of, or in perfecting and preserving the Liens
of, such guaranties, deeds of trust, trust deeds, mortgages, leasehold
mortgages, leasehold deeds of trust, Security Agreement Supplements, IP
Security Agreement Supplements, supplements to Foreign Collateral Documents
and other security and pledge agreements;
Notwithstanding the foregoing, (x) the Administrative Agent shall not
take a security interest in or require any title insurance or similar items
with respect to 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, title insurance or
similar items) is excessive in relation to the benefit to the Lenders of the
security afforded thereby and (y) Liens required to be granted pursuant to
this Section 6.12 shall be subject to exceptions and limitations consistent
with those set forth herein and in the Collateral Documents as in effect on
the Closing Date (to the extent appropriate in the applicable jurisdiction).
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provided, however, that in no event shall (a) greater than 65% of the issued
and outstanding Equity Interests of any Subsidiary Borrower or any foreign
Subsidiary be pledged or similarly hypothecated to Guarantee any Obligation of
the U.S. Borrower or any Domestic Subsidiary, (b) the Subsidiary Borrower or
any foreign Subsidiary Guarantee any Obligation of the U.S. Borrower or any
Domestic Subsidiary or (c) any security or similar interest be granted in the
assets of the Subsidiary Borrower or any foreign Subsidiary that secures or
Guarantees any Obligation of the U.S. Borrower or any Domestic Subsidiary.
6.13 Compliance with Environmental Laws. Except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect, comply, and cause all lessees and other Persons operating or occupying
its properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew all
Environmental Permits necessary for its operations and properties; and 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, materially in accordance with
the requirements of all applicable Environmental Laws; provided, however, that
neither the Borrowers nor any of their Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action (a) to the
extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect
to such circumstances or (b) where failure to do so could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.14 Further Assurances. Promptly upon request by the Administrative
Agent, or any Lender through the Administrative Agent, (a) correct any
material defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and (b) 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 (i)
to the fullest extent permitted by applicable law, subject any Loan Party's
properties, assets, rights or interests to the Liens now or hereafter intended
to be covered by any of the Collateral Documents, (ii) perfect and maintain
the validity, effectiveness and priority of any of the Collateral Documents
and any of the Liens intended to be created thereunder and (iii) assure,
convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted or now or hereafter
intended to be granted to the Secured Parties under any Loan Document or under
any other instrument executed in connection with any Loan Document to which
any Loan Party or any of its Subsidiaries is or is to be a party, and cause
each of its Subsidiaries to do so.
6.15 Interest Rate Hedging. Enter into prior to the Closing Date, and
maintain at all times thereafter, either Consolidated Funded Indebtedness
accruing interest at a fixed rate, or interest rate Swap Contracts (with
Persons acceptable to the Administrative Agent and providing for such Persons
to make payments thereunder for a period of the lesser of (a) three years and
(b) the Maturity Date with respect to the Term Facilities), covering a
notional amount of not less than 35% of the amount of Consolidated Funded
Indebtedness at such time.
6.16 Cash Collateral Accounts. Maintain, and cause each of its
Subsidiaries to maintain, all domestic Cash Collateral Accounts with Bank of
America.
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6.17 Euro Borrower Financial Condition.
The U.S. Borrower shall:
(a) provide at all times sufficient financial means to the Euro
Borrower and, if necessary, increase the capital of the Euro Borrower, to
ensure that none of the following situations occurs in which ROV German
General Partner GmbH would be obligated or entitled to file an application for
the opening of insolvency proceedings against the Euro Borrower under the
German Insolvency Act (Insolvenzordnung) pursuant to Section 283 No. 14 in
connection with Section 92 German Stock Corporation Act (Aktiengesetz):
(i) the Euro Borrower is not able to pay its obligations when they
become due (zahlungsunfahig) in the sense of Section 17(2) of the German
Insolvency Act;
(ii) the Euro Borrower is overindebted (uberschuldet) in the sense of
Section 19(2) of the German Insolvency Act; or
(iii) there is the threat that, in the immediate future, the Euro
Borrower is not able to pay obligations when they become due (drohende
Zahlungsunfahigkeit) in the sense of Section 18(2) of the German
Insolvency Act;
(b) ensure that there are reporting procedures in place so that the
U.S. Borrower is timely informed of the overall financial situation of the
Euro Borrower and, in particular the ability of the Euro Borrower to pay its
obligations when due and the status of its indebtedness; and
(c) notify the Administrative Agent not less than two Business Days
prior to making any investment in order to comply with its obligation under
subsection (a) above.
6.18 Real Estate Post-Closing Obligations.
Within 60 days after the Closing Date (or such later date as the
Administrative Agent may agree in its sole discretion), deliver to the
Administrative Agent (or, in the case of clause (v), use commercially
reasonable efforts to deliver to the Administrative Agent):
(a) (1) deeds of trust, trust deeds, mortgages, leasehold mortgages
and leasehold deeds of trust, in substantially the form of Exhibit H-1 or (2)
Mortgage Amendments in substantially the form of Exhibit H-2 (in each case
with such changes as may be satisfactory to the Administrative Agent and its
counsel to account for local law matters) covering the Mortgage Properties
(the mortgages, as amended by the Mortgage Amendments, together with each
other mortgage delivered pursuant to Section 6.12, in each case as amended,
the "Mortgages"), duly executed by the appropriate Loan Party, together with:
(i) 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 necessary or desirable in order to create a valid first
and subsisting Lien on the property described therein in favor of the
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Administrative Agent for the benefit of the Secured Parties and that all
filing and recording taxes and fees have been paid,
(ii) with respect to Mortgages, other than Mortgages amended by the
Mortgage Amendments, fully paid American Land Title Association Lender's
Extended Coverage title insurance policies (the "Mortgage Policies") in
form and substance, with endorsements and in amounts acceptable to the
Administrative Agent, issued, coinsured and reinsured by title insurers
acceptable to the Administrative Agent, insuring the Mortgages to be
valid first and subsisting Liens on the property described therein, free
and clear of all defects (including, but not limited to, mechanics' and
materialmen's Liens) and encumbrances, excepting only Permitted
Encumbrances and other Liens permitted under the Loan Documents, and
providing for such other affirmative insurance (including endorsements
for future advances under the Loan Documents and for mechanics' and
materialmen's Liens) and such coinsurance and direct access reinsurance
as the Administrative Agent may deem necessary or desirable,
(iii) with respect to the Mortgage Amendments, fully paid American
Land Title Association date down endorsements of the mortgage policies of
title insurers insuring that the Mortgage, as amended by the Mortgage
Amendment, creates and constitutes a valid first mortgage Lien against
the applicable Mortgaged Property in favor of the Administrative Agent,
(iv) copies of all the surveys currently in the possession of any
Loan Party or Subsidiary with respect to each Mortgage Property,
(v) estoppel and consent agreements, in form and substance
satisfactory to the Administrative Agent, executed by each of the lessors
of the leased real properties listed on Schedule 5.08(c) that are not
subject to an existing Mortgage, along with (A) a memorandum of lease in
recordable form with respect to such leasehold interest, executed and
acknowledged by the owner of the affected real property, as lessor, or
(B) evidence that the applicable lease with respect to such leasehold
interest or a memorandum thereof has been recorded in all places
necessary or desirable, in the Administrative Agent's reasonable
judgment, to give constructive notice to third-party purchasers of such
leasehold interest, or (C) if such leasehold interest was acquired or
subleased from the holder of a recorded leasehold interest, the
applicable assignment or sublease document, executed and acknowledged by
such holder, in each case in form sufficient to give such constructive
notice upon recordation and otherwise in form satisfactory to the
Administrative Agent,
(vi) evidence of the insurance required by the terms of the
Mortgages, and
(vii) such other consents, agreements and confirmations of third
parties as the Administrative Agent may deem reasonably necessary or
desirable and evidence that all other action that the Administrative
Agent may deem reasonably necessary or desirable in order to create valid
Liens on the property described in the Mortgages has been taken; and
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(b) opinions of local counsel for the Loan Parties in states in which
the Mortgage Properties are located, with respect to the enforceability and
perfection of the Mortgages and any related fixture filings substantially in
the form of Exhibit I-3 hereto (with such changes as may be approved by the
Administrative Agent and its counsel to account for local law matters), and
otherwise in form and substance reasonably satisfactory to the Administrative
Agent; and
(c) the opinion of counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to certain corporate formalities in
form and substance reasonably satisfactory to the Administrative Agent.
6.19 Foreign Collateral Post-Closing Obligations. Within 30 days
after the Closing Date (or such later date as the Administrative Agent may
agree in its sole discretion) deliver to the Administrative Agent:
(a) each of the Cayman Share Charges, duly executed by ROV Holding,
in each case together with evidence that all other actions, deliveries,
registrations and filings that the Administrative Agent may deem
necessary or desirable in order to create perfected security interests in
the assets expressed to be pledged thereunder have been taken, delivered
or made;
(b) a German Share Pledge in respect of the Equity Interests of ROV
Europe GmbH, together with all evidence that all other actions,
deliveries, registrations and filings that the Administrative Agent may
deem necessary or desirable in order to create perfected security
interests in the assets expressed to be pledged thereunder have been
taken, delivered or made;
(c) an amendment to each of the German Global Assignment and German
Security Transfer Agreement, duly executed by the Euro Borrower, in each
case together with evidence that all other actions, deliveries,
registrations and filings that the Administrative Agent may deem
necessary or desirable in order to create perfected security interests in
the assets expressed to be pledged thereunder have been taken, delivered
or made;
(d) a Reaffirmation of the Canadian Share Pledge, duly executed by
ROV Holding, together with evidence that all other actions, deliveries,
registrations and filings, including PPSA registrations, that the
Administrative Agent may deem necessary or desirable in order to create
perfected security interests in the assets expressed to be pledged
thereunder have been taken, delivered or made;
(e) a favorable opinion of counsel to the Loan Parties in each of
Canada, Germany, Cayman Islands and Delaware, addressed to the
Administrative Agent and each Lender, as to such matters concerning the
Loan Parties and the Loan Documents as the Administrative Agent may
reasonably request; or
(f) if such entities have not been merged into other Loan Parties
prior to such date (with such other Loan Party being the surviving
Person), a favorable opinion of Nevada and California counsel to each of
Firstrax Pet Products Inc., Firstrax Inc. and TAP, LLC
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as to such matters concerning such entity as the Administrative Agent may
reasonably request.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan
or other Obligation hereunder shall remain unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding, each Borrower shall not, nor shall
it permit any Subsidiary to, directly or indirectly:
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 ("Permitted Liens"):
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01(b)
and any renewals or extensions thereof, provided that (i) the property
covered thereby is not changed and (ii) the amount secured or benefited
thereby is not increased;
(c) Liens for Taxes, fees, assessments or other governmental charges
which are not overdue by more than 30 days or, if more than 30 days
overdue, (i) remain payable without penalty, (ii) 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 or (iii) with
respect to which in the aggregate the failure to make payment could not
reasonably be expected to have a Material Adverse Effect;
(d) Statutory liens of landlords, warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business that secure amounts that are not overdue by more than
30 days or, if more than 30 days overdue, (i) with respect to which no
action has been taken to enforce such Lien, (ii) 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 or (iii) with respect to which in the
aggregate the failure to make payment could not reasonably be expected to
have a Material Adverse Effect;
(e) (i) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA (ii)
pledges and deposits in the ordinary course of business securing
insurance premiums or reimbursement obligations under insurance policies,
in each case payable to insurance carriers that provide insurance to the
US Borrower or any of its Subsidiaries or (iii) obligations in respect of
letters of credit or bank guarantees that have been posted by the U.S.
Borrower or any of its Subsidiaries to support the payments of the items
set forth in clauses (i) and (ii) of this Section 7.01(e);
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(f) deposits made and letters of credit issued to secure the
performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety, stay, customs and appeal
bonds, performance bonds, performance and completion guarantees and other
obligations of a like nature (including those to secure health, safety
and environmental obligations) incurred in the ordinary course of
business; provided that all such liens and letters of credit in the
aggregate would not (even if enforced, or, in the case of letters of
credit, fully drawn) cause a Material Adverse Effect;
(g) easements, rights-of-way, restrictions, encroachments,
protrusions and other similar encumbrances and minor title defects
affecting real property that do not secure Indebtedness incurred in the
ordinary course of business which, in the aggregate, are not substantial
in amount, and which do not in any case materially and adversely affect
the use of the property subject thereto for its intended purpose;
(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 Section 7.02(e)
(including, without limitation, over any property acquired pursuant to
the ▇▇▇▇▇▇/▇▇▇▇▇ Acquisitions); provided that (i) such Liens do not at
any time encumber any property other than the property financed by such
Indebtedness or, if applicable, subject to such Capitalized Lease and the
proceeds and product thereof and accessions thereto, (ii) the
Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of
acquisition and (iii) individual financings of one lender may be
cross-collateralized to other financings of the same type of equipment
provided by such lender;
(j) other Liens securing Indebtedness or other obligations
outstanding in an aggregate principal amount not to exceed $15,000,000;
provided that any such Liens that extends to or covers any Collateral
shall not secure Indebtedness or other obligations in an aggregate
principal amount greater than $10 million;
(k) the replacement, extension or renewal of any Lien permitted by
subsections (b), (i) and (j) of this Section 7.01 above upon or in the
same property theretofore subject thereto or the replacement, extension
or renewal (without increase in the amount (including interest and fees)
or change in any direct or contingent obligor) of the Indebtedness
secured thereby.
(l) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
creditor depository institution, provided that such deposit account is
not intended by the U.S. Borrower or any Subsidiary to provide collateral
to the depository institution;
(m) Liens relating to IRB Debt permitted by Section 7.02(j) covering
only those capital improvements financed by such IRB Debt;
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(n) Liens on property of any Subsidiary in favor of the U.S. Borrower
or any other Subsidiary, provided that any such Lien shall be
subordinated to any Lien of the Administrative Agent on the applicable
property pursuant to documentation in form and substance reasonably
acceptable to the Administrative Agent;
(o) Liens on property of Remington Products Australia, Remington
Consumer Products (Ireland) Limited and Remington Products New Zealand
Ltd securing Indebtedness of such Subsidiary that is permitted under the
provisions of Section 7.02; and
(p) Liens on property of any Foreign Subsidiary (other than any
Subsidiary Borrower) securing Indebtedness of such Foreign Subsidiary
permitted under the provisions of Section 7.02(g); provided that no such
Lien shall extend to or cover any Collateral.
(q) (i) leases, licenses, subleases or sublicenses granted to other
Persons in the ordinary course of business which do not (x) interfere in
any material respect with the business of the U.S. Borrower or any of its
material Subsidiaries or (y) secure any Indebtedness for borrowed money
or (ii) the rights reserved or vested in any Person by the terms of any
lease, license, franchise, grant or permit held by the U.S. Borrower or
any of its Subsidiaries or by a statutory provision, to terminate any
such lease, license, franchise, grant or permit, or to require annual or
periodic payments as a condition to the continuance thereof;
(r) 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;
(s) Liens (i) of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection and (ii) of
a commodity intermediary attaching to commodity trading accounts or other
commodities brokerage accounts incurred in the ordinary course of
business and not for speculative purposes; provided that such accounts or
are not intended by the U.S. Borrower or any Subsidiary to provide
collateral to the commodity intermediary;
(t) Liens (i) in favor of the seller of any property to be acquired
in an Investment permitted pursuant to Sections 7.03(h), (i) and (j) to
be applied against the purchase price for such Investment, (ii)
consisting of an agreement to 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 and (iii) ▇▇▇▇▇▇▇ money deposits
made by the Borrower or any of its Subsidiaries in connection with any
letter of intent or purchase agreement entered into in connection with an
Investment permitted under Section 7.03;
(u) Liens existing on the property of any Person that becomes a
Subsidiary (or is merged into or consolidated with any of the
Subsidiaries of the Borrowers), in each case after the date hereof (other
than Liens on the Equity Interests of any Person that
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becomes a Subsidiary) and any modifications, replacements, renewals or
extensions thereof; provided that (i) such Lien does not extend to or
cover any other assets or property (other than the proceeds or products
thereof and after-acquired property subjected to a Lien pursuant to terms
existing at the time of such acquisition, 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), (ii) such
Lien was not created in anticipation of such merger or consolidation and
(iii) the Indebtedness secured thereby (or, as applicable, any
modifications, replacements, renewals or extensions thereof) is permitted
under Section 7.02(p);
(v) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by the
U.S. Borrower or any of its Subsidiaries in the ordinary course of
business not prohibited by this Agreement;
(w) Liens deemed to exist in connection with Investments in
repurchase agreements under Section 7.03; and
(x) Liens that are contractual rights of set-off (i) relating to
pooled deposit or sweep accounts of the Borrowers or any Subsidiary to
permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of a Borrower and its Subsidiaries or (ii)
relating to agreements entered into with customers of the Borrowers or
any Subsidiary in the ordinary course of business.
7.02 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness evidenced by the Subordinated Notes;
(b) Intercompany Indebtedness permitted by Section 7.03(c), which
Indebtedness shall (i) in the case of Indebtedness owed to a Loan Party
that is evidenced by an instrument, constitute Pledged Debt and (ii) be
on subordination terms reasonably acceptable to the Administrative Agent;
(c) Indebtedness under the Loan Documents;
(d) Guarantees of the U.S. Borrower and Loan Parties in respect of
Indebtedness otherwise permitted hereunder of any Wholly-Owned
Subsidiary;
(e) Indebtedness in respect of Capitalized Leases, Synthetic Lease
Obligations and purchase money obligations to finance the purchase,
repair or improvement of fixed or capital assets within the limitations
set forth in Section 7.01(i); provided, however, that the aggregate
amount of all such Indebtedness at any one time outstanding during each
fiscal year shall not exceed the amount of Capital Expenditures permitted
to be made on or prior to such time pursuant to Section 7.12.
(f) other unsecured Indebtedness (excluding Indebtedness of foreign
Subsidiaries) in an aggregate principal amount not to exceed $50,000,000
at any time
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outstanding provided that up to $15 million of such Indebtedness may be
secured by Liens permitted by Section 7.01.
(g) Indebtedness of foreign Subsidiaries to Persons other than the
U.S. Borrower and its Subsidiaries in an aggregate amount (other than
Indebtedness permitted by subsection (e) above) not at any time exceeding
$100,000,000 (provided the aggregate amount of Indebtedness of the
Subsidiary Borrowers, other than Indebtedness hereunder or permitted by
subsection (c) or (e) above, shall not exceed $25,000,000);
(h) Indebtedness in connection with Guarantees resulting from
endorsement of negotiable instruments in the ordinary course of business;
(i) Obligations in respect of surety, stay customs and appeal bonds,
performance bonds and performance and completion guarantees required in
the ordinary course of business or in connection with the enforcement of
rights or claims of the U.S. Borrower or its Subsidiaries or in
connection with judgments that do not result in an Event of Default;
(j) IRB Debt in a principal amount not to exceed $20,000,000 at any
one time outstanding;
(k) Indebtedness incurred by the Euro Borrower in connection with
leases for the Euro Borrower's leased facilities located in Ellwangen,
Germany and Dischingen, Germany;
(l) endorsements for collection or deposit in the ordinary course of
business;
(m) Indebtedness outstanding on the date hereof and listed on
Schedule 7.02 and any refinancings, refundings, renewals or extensions
thereof; provided that the principal amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder or as otherwise permitted by this
Section 7.02 and the direct or any contingent obligor with respect
thereto is not changed, as a result of or in connection with such
refinancing, refunding, renewal or extension; provided still further that
the terms relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other material terms
taken as a whole, of any such refinancing, refunding, renewing or
extending Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced,
refunded, renewed or extended and the interest rate applicable to any
such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate; and
(n) Indebtedness constituting Investments permitted by Section
7.03(i), (l) and (p).
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(o) Indebtedness (other than for borrowed money) constituting Liens
permitted under Section 7.01;
(p) Indebtedness of a Borrower and its 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 reasonably satisfactory to the
Administrative Agent, in each case, so long as (1) both immediately prior
and after giving effect thereto, (x) no Event of Default shall exist or
result therefrom, and (y) a Borrower and its 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, (2) the final maturity date of such
Indebtedness is at least 91 days after the Maturity Date with respect to
the Term Facilities, (3) the weighted average life to maturity of such
Indebtedness is greater than the weighted average life to maturity of the
Term Facilities and (4) such Indebtedness is on terms no less favorable
to the U.S. Borrower and its Subsidiaries than the terms of the
Subordinated Notes Indentures;
(q) Indebtedness incurred by the Borrowers or their respective
Subsidiaries in a Permitted Acquisition or Disposition under agreements
providing for indemnification, the adjustment of the purchase price or
similar adjustments;
(r) Indebtedness consisting of obligations of the Borrowers or their
respective Subsidiaries under deferred compensation or other similar
arrangements to employees of such Person or incurred by such Person in
connection with the Merger and Permitted Acquisitions;
(s) Indebtedness in respect of netting services, overdraft
protections and similar arrangements in each case in connection with cash
management and deposit accounts;
(t) Indebtedness consisting of (i) the financing of insurance
premiums in the ordinary course of business or (ii) take or pay
obligations contained in supply arrangements not to exceed $100,000,000
in the aggregate;
(u) Indebtedness incurred by any Borrower or any of its Subsidiaries
constituting reimbursement obligations with respect to letters of credit
issued in the ordinary course of business in respect of workers
compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance, other
Indebtedness with respect to reimbursement-type obligations regarding
workers compensation claims, or other Indebtedness in respect of bankers'
acceptance, letter of credit, warehouse receipts or similar facilities
entered into in the ordinary course of business; provided that upon the
drawing of such letters of credit or the incurrence of such Indebtedness,
such obligations are reimbursed within thirty (30) days following such
drawing or incurrence;
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(v) A Chinese Facility contemplated by clause (i) of the definition
thereof; and
(w) all premiums (if any), interest (including post-petition
interest), fees, expenses, charges and additional or contingent interest
on obligations described in clauses (a) through (v) above.
7.03 Investments. Make or hold any Investments, except:
(a) Investments held by the U.S. Borrower and its Subsidiaries in
assets that were Cash Equivalents when such Investment was made;
(b) advances to officers, directors and employees of the U.S.
Borrower and Subsidiaries (i) in an aggregate amount not to exceed
$10,000,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes and (ii) in
connection with such Person's purchase of Equity Interests of the U.S.
Borrower, in an aggregate amount not to exceed $10,000,000 (in each of
clauses (i) and (ii), determined without regard to any write-downs or
write-offs of such loans or advances);
(c) Investments by the U.S. Borrower in any Wholly-Owned Subsidiary
and Investments of any Subsidiary in any Wholly-Owned Subsidiary provided
that, immediately before and after giving effect to such Investment, no
Event of Default shall have occurred and be continuing and the aggregate
amount invested by the U.S. Borrower and its Subsidiaries (other than
foreign Subsidiaries) in foreign Subsidiaries after the Closing Date
(excluding Investments in Ningbo Baowang Battery Company, Microlite S.A.
and the Euro Borrower to the extent they increase the percentage of the
Equity Interests held by a Wholly-Owned Subsidiary in each such
Subsidiary) shall not exceed $100,000,000;
(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) Guarantees permitted by Section 7.02;
(f) Investments existing on the date hereof and set forth on Schedule
7.03(f);
(g) Investments by the U.S. Borrower in Swap Contracts;
(h) the purchase or other acquisition of all of the Equity Interests
in, or all or substantially all of the property and assets constituting a
line of business, a business unit or division of, any Person that, upon
the consummation thereof, will be wholly owned directly by the U.S.
Borrower or one or more of its Wholly-Owned Subsidiaries (other than any
80% Subsidiary) (including as a result of a merger or consolidation);
provided
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that, with respect to each purchase or other acquisition made pursuant to
this Section 7.03(h) (each a "Permitted Acquisition"):
(i) any such newly-created or acquired Subsidiary shall comply
with the requirements of Section 6.12;
(ii) the lines of business of the Person to be (or the property
and assets of which are to be) so purchased or otherwise acquired
shall be reasonably related or similar to the same lines of business
as one or more of the principal businesses of the U.S. Borrower and
its Subsidiaries in the ordinary course (including, without
limitation, consumer products);
(iii) (A) the total cash and noncash consideration (excluding
the fair market value of all Equity Interests issued or transferred to
the sellers thereof but including all indemnities, earnouts and other
contingent payment obligations to, and the aggregate amounts paid or
to be paid under noncompete, consulting and other affiliated
agreements with, the sellers thereof, all write-downs of property and
assets and reserves for liabilities with respect thereto and all
assumptions of debt, liabilities and other obligations in connection
therewith) paid by or on behalf of the U.S. Borrower and its
Subsidiaries for any such purchase or other acquisition, when
aggregated with the total cash and noncash consideration (excluding
the fair market value of all Equity Interests issued or transferred to
the sellers thereof but including all indemnities, earnouts and other
contingent payment obligations to, and the aggregate amounts paid or
to be paid under noncompete, consulting and other affiliated
agreements with, the sellers thereof, all write-downs of property and
assets and reserves for liabilities with respect thereto and all
assumptions of debt, liabilities and other obligations in connection
therewith) paid by or on behalf of the U.S. Borrower and its
Subsidiaries for all other purchases and other acquisitions made by
the U.S. Borrower and its Subsidiaries pursuant to this Section
7.03(h), shall not exceed the aggregate of $700,000,000 plus 50% of
the amount of Excess Cash Flow for each fiscal year (commencing with
the fiscal year ended September 30, 2006) not required to be applied
to the prepayment of Loans pursuant to Section 2.07(b)(i) or (B) such
Investment is made solely with capital stock of the U.S. Borrower;
(iv) (A) immediately before and immediately after giving pro
forma effect to any such purchase or other acquisition, no Event of
Default shall have occurred and be continuing and (B) immediately
after giving effect to such purchase or other acquisition, the U.S.
Borrower and its 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
(v) the U.S. Borrower shall have delivered to the
Administrative Agent, on behalf of the Lenders, at least five Business
Days prior to the date on
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which any such purchase or other acquisition is to be 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 (vi) have been satisfied or will
be satisfied on or prior to the consummation of such purchase or other
acquisition;
(i) Investments by the U.S. Borrower and its Subsidiaries not
otherwise permitted under this Section 7.03 in an aggregate amount not to
exceed $25,000,000; provided that, with respect to each Investment made
pursuant to this Section 7.03(i):
(i) such Investment shall be in property and assets that
are part of, or in lines of business that are, substantially the
same lines of business as one or more of the principal
businesses of the U.S. Borrower and its Subsidiaries in the
ordinary course;
(ii) any determination of the amount of such Investment
shall include all cash and noncash consideration (including the
fair market value of all Equity Interests issued or transferred
to the sellers thereof, all indemnities, earnouts and other
contingent payment obligations to, and the aggregate amounts
paid or to be paid under noncompete, consulting and other
affiliated agreements with, the sellers thereof, all write-downs
of property and assets and reserves for liabilities with respect
thereto and all assumptions of debt, liabilities and other
obligations in connection therewith) paid by or on behalf of the
U.S. Borrower and its Subsidiaries in connection with such
Investment; and
(iii) (A) immediately before and immediately after giving
pro forma effect to any such purchase or other acquisition, no
Event of Default shall have occurred and be continuing and (B)
immediately after giving effect to such purchase or other
acquisition, the U.S. Borrower and its 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 Investment had been consummated as of the
first day of the fiscal period covered thereby;
(j) other Investments not exceeding $50,000,000 in the aggregate
during the term of this Agreement (with all such Investments valued at the
time of Investment at the cash amount thereof, if in cash, the fair market
value thereof as determined by the board of directors of the U.S.
Borrower, if in property, and at the maximum amount thereof if in
Guarantees); and
(k) bank deposits in the ordinary course of business.
(l) Investments related to the VARTA Exchange;
(m) Investments consisting of Restricted Payments permitted by
Section 7.06.
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(n) promissory notes and other non-cash consideration received in
connection with Dispositions permitted by Section 7.05;
(o) Investments in the ordinary course of business consisting of (i)
endorsements for collection or deposit and (ii) customary trade
arrangements with customers consistent with past practices;
(p) Investments (including debt obligations and Equity Interests)
received in connection with the bankruptcy or reorganization of any
Person and in settlement of obligations of, or other disputes with, such
Persons 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; and
(q) advances of payroll payments to employees in the ordinary course
of business.
7.04 Fundamental Changes. Merge or 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, so long as no
Event of Default exists or would result therefrom:
(a) any Subsidiary (other than a Borrower) may merge with (i) the
U.S. Borrower, provided that the U.S. Borrower shall be the continuing or
surviving Person, except in connection with a merger the purpose of which
is to reorganize the U.S. Borrower into another state of the U.S. so long
as the surviving Person expressly assumes the obligations of the U.S.
Borrower in a manner reasonably satisfactory to the Administrative Agent,
or (ii) any one or more other Subsidiaries, provided that (i) when a
Wholly-Owned Subsidiary (other than an 80% Subsidiary) or Guarantor is
merging with another Subsidiary a Wholly-Owned Subsidiary (other than and
80% Subsidiary) or Guarantor, respectively shall be the continuing or
surviving person, (ii) when any Wholly-Owned Subsidiary that is not a
Guarantor is merging with a Guarantor, the Guarantor shall be the
continuing or surviving person and (iii) except in the case of a
transaction involving only foreign Subsidiaries, the continuing or
surviving Person shall not be a foreign Subsidiary;
(b) any Loan Party may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to a Borrower or to
another Loan Party;
(c) any Subsidiary that is not a Loan Party may dispose of all or
substantially all its assets to (i) another Subsidiary which is not a Loan
Party or (ii) to a Loan Party for no consideration, or, in the case of
this clause (ii), pursuant to a Disposition which is in the nature of a
liquidation;
(d) the U.S. Borrower and its Subsidiaries may consummate the Merger
and the transactions contemplated by the Merger Agreement; and
(e) in connection with any acquisition permitted under Section 7.03,
any Subsidiary of the U.S. Borrower may merge into or consolidate with any
other Person or
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permit any other Person to merge into or consolidate with it; provided
that the Person surviving such merger shall be a Wholly-Owned Subsidiary
(but not an 80% Subsidiary) of the U.S. Borrower; and
(f) Dispositions of Dormant Subsidiaries;
provided, however, that in each case, immediately after giving effect
thereto (i) in the case of any such merger to which a Borrower is a party,
such Borrower is the surviving corporation (except as expressly provided
to the contrary in clause (a)(i) hereof) and (ii) in the case of any such
merger to which any Loan Party (other than a Borrower) is a party, such
Loan Party is the surviving corporation and provided further that
Borrowers shall not merge into each other.
7.05 Dispositions. Make any Disposition, except:
(a) Dispositions of no longer useful, used, surplus, obsolete or worn
out property, whether now owned or hereafter acquired, in the ordinary
course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real 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
reasonably promptly applied to the purchase price of such replacement
property;
(d) Dispositions of cash or Cash Equivalents;
(e) Dispositions of property by any Subsidiary (other than a
Borrower) to the U.S. Borrower or to a Wholly-Owned Subsidiary (but not an
80% Subsidiary); provided that if the transferor of such property is a
Guarantor (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 7.03;
(f) Dispositions permitted by Section 7.01, Section 7.04 and Section
7.06;
(g) The VARTA Exchange and related transactions;
(h) Dispositions by the U.S. Borrower and its Subsidiaries not
otherwise permitted under this Section 7.05; provided that (i) at the time
of such Disposition, no Event of Default shall exist or would result from
such Disposition, (ii) the aggregate book value of all property Disposed
of in reliance on this subsection (h) shall not exceed $35,000,000 in any
fiscal year or $100,000,000 during the term of this Agreement and (iii) at
least 75% of the purchase price for such asset shall be paid to the U.S.
Borrower or such Subsidiary in cash or Cash Equivalent consideration;
(i) Intentionally Omitted;
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(j) Dispositions by the Borrowers and their respective Subsidiaries
of property 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 U.S. Borrower or such Subsidiary
for not less than 75% cash or Cash Equivalent consideration;
(k) (i) sales or discounts of accounts receivable without recourse
arising in the ordinary course of business in connection with the
compromise or collection thereof and (ii) sales or transfers of accounts
receivable and related rights by any foreign Subsidiary (other than a
Subsidiary Borrower) pursuant to customary receivables financing
facilities or factoring arrangements;
(l) transfers of property subject to casualty or condemnation upon
receipt of the Net Cash Proceeds of such casualty or condemnation;
(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 forth in, joint venture arrangements and similar binding
arrangements in effect on the Closing Date; and
(o) Dispositions in the ordinary course of business consisting of
abandonment of IP Rights which, in the reasonable good faith determination
of the US Borrower or any Subsidiary, are uneconomical, negligible,
obsolete or otherwise not material in the conduct of its business and
which Disposition, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
provided, however, that any Disposition pursuant to Section 7.05(a) through
(j), (k)(i) and (m) shall be for fair market value.
7.06 Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment except:
(a) each Subsidiary may make Restricted Payments to the Borrowers,
any Subsidiaries of the Borrowers that are Guarantors and any other Person
that owns a direct Equity Interest in such Subsidiary, ratably according
to their respective holdings of the type of Equity Interest in respect of
which such Restricted Payment is being made;
(b) each Borrower and each of its Subsidiaries may declare and make
dividend payments or other distributions payable solely in the common
stock or other common Equity Interests of such Person;
(c) the U.S. Borrower and each Subsidiary may purchase, redeem or
otherwise acquire of its common Equity Interests with the proceeds
received from the substantially concurrent issue of new common Equity
Interests;
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(d) So long as no Event of Default shall have occurred and be
continuing or would result therefrom, the U.S. Borrower or any of its
Subsidiaries may repurchase, retire or otherwise acquire or retire for
value common stock or options held with respect to common stock held by
future, present or former directors, officers, consultants, employees or
management of any Borrower or any of its Subsidiaries for the estate,
family members, spouse or former spouse of any of the foregoing, provided
that all such payments do not exceed $10,000,000 in the aggregate in any
calendar year and the price paid for any such common stock or options does
not exceed the market value of such common stock or options at the time
paid; provided further that such amount in any calendar year may be
increased by an amount not to exceed (i) the cash proceeds from the sale
of Equity Interests to directors, officers, members of management,
employees or consultants of the US Borrower or its Subsidiaries (or the
estate, family members, spouse or former spouse of any of the foregoing)
that occurs after the Closing Date plus (ii) the amount of any cash
bonuses otherwise payable to directors, officers, members of management,
employees or consultants of the US Borrower or its Subsidiaries in
connection with the Transaction that are foregone in return for the
receipt of Equity Interests of the US Borrower pursuant to a deferred
compensation plan of such Person less (iii) the amount of any Restricted
Payments previously made pursuant to clauses (i) and (ii) above;
(e) So long as no Event of Default shall have occurred and be
continuing or would result therefrom, the U.S. Borrower may repurchase
common stock (provided that (x) the price paid does not exceed the fair
market value of such common stock at the time paid and (y) any common
stock repurchased by the U.S. Borrower shall be immediately cancelled and
retired) and may make other Restricted Payments (determined at the time of
such Restricted Payment) in an aggregate amount, for all such repurchases
and other Restricted Payments, not exceeding $25,000,000 during the term
of this Agreement;
(f) So long as no Event of Default shall have occurred and be
continuing or would result therefrom, consideration paid in connection
with Investments in each of Ningbo Baowang Battery Company and Microlite
S.A or related to the VARTA Exchange, in the form of Restricted Payments
by such Subsidiary to the minority owner(s) of such Subsidiary;
(g) to the extent constituting Restricted Payments, the US Borrower
and its Subsidiaries may enter into transactions expressly permitted by
Section 7.04 or 7.05;
(h) So long as no Event of Default has occurred and is continuing or
would result therefrom, the proceeds of which shall be used solely to make
cash payments in lieu of issuing fractional shares in connection with the
exercise of warrants, options or other securities convertible into or
exchangeable for Equity Interests of the U.S. Borrower or its
Subsidiaries, provided that any such cash payment shall not be for the
purpose of evading the limitations set forth in this Section 7.06 (as
determined in good faith by the managing board or board of directors, as
the case may be, of the Borrower (or any authorized committee thereof).
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7.07 Change in Nature of Business. Engage in any material line of
business substantially different from those lines of business conducted by the
U.S. Borrower and its Subsidiaries on the date hereof or any business
reasonably related or ancillary thereto (including, without limitation,
consumer products).
7.08 Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of the U.S. Borrower (other than portfolio companies of
THLee), whether or not in the ordinary course of business, other than (a) on
fair and reasonable terms substantially as favorable to the U.S. Borrower or
such Subsidiary as would be obtainable by the U.S. Borrower or such Subsidiary
at the time in a comparable arm's length transaction with a Person other than
an Affiliate, (b) transactions among Loan Parties, (c) the payment of fees and
expenses in connection with the consummation of the Transactions, (d)
dividends, redemptions, repurchases, and other transactions permitted under
Section 7.06, (e) customary fees payable to any directors of the U.S. Borrower
and its Subsidiaries and reimbursement of reasonable out of pocket costs of the
directors of the U.S. Borrower and its Subsidiaries, (f) employment and
severance arrangements between the US Borrower or its Subsidiaries and their
respective officers and employees in the ordinary course of business, (g) the
payment of customary fees and indemnities to directors, officers and employees
of the US Borrower and its Subsidiaries in the ordinary course of business, and
(h) 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 materially adverse to the Lenders in any respect.
7.09 Burdensome Agreements. Enter into or permit to exist any
Contractual Obligation (other than this Agreement or any other Loan Document)
that (a) limits the ability (i) of any Subsidiary to make Restricted Payments
to any Borrower or any Guarantor or to otherwise transfer property to or invest
in any Borrower or any Guarantor, except for any agreement in effect (A) on the
date hereof or (B) at the time any Subsidiary becomes a Subsidiary of the U.S.
Borrower, so long as such agreement was not entered into solely in
contemplation of such Person becoming a Subsidiary of the U.S. Borrower, (ii)
of any Subsidiary to Guarantee the Indebtedness of any Borrower or (iii) of any
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.02(a), (c), (g), (j), (k) and (m) and
Section 7.02(e) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness; or (b) requires the
grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.
7.10 Use of Proceeds. Use the proceeds of any Credit Extension 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.
7.11 Financial Covenants.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of any fiscal quarter of the U.S.
Borrower to be less than the ratio set forth below opposite such fiscal
quarter:
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---------------------------------------------------------------------
Minimum
Consolidated
Interest Coverage
Four Fiscal Quarters Ending Ratio
---------------------------------------------------------------------
Closing Date through June 30, 2006 2.25:1.00
---------------------------------------------------------------------
September 30, 2006 through June 30, 2007 2.50:1.00
---------------------------------------------------------------------
September 30, 2007 through June 30, 2008 3.00:1.00
---------------------------------------------------------------------
September 30, 2008 and each fiscal quarter 3.50:1.00
thereafter
---------------------------------------------------------------------
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio at any time during any period of four fiscal quarters of the U.S.
Borrower set forth below to be greater than the ratio set forth below opposite
such period:
------------------------------------------------------------------
Maximum
Consolidated
Four Fiscal Quarters Ending Leverage Ratio
------------------------------------------------------------------
Closing Date through June 30, 2006 5.85:1.00
------------------------------------------------------------------
September 30, 2006 through June 30, 2007 5.00:1.00
------------------------------------------------------------------
September 30, 2007 through June 30, 2008 4.75:1.00
------------------------------------------------------------------
September 30, 2008 through June 30, 2009 4.25:1.00
------------------------------------------------------------------
September 30, 2009 and each fiscal quarter 3.75:1.00
thereafter
------------------------------------------------------------------
7.12 Capital Expenditures. Make any Capital Expenditure, except for
Permitted Acquisitions, Net Cash Proceeds reinvested pursuant to Section
2.07(b)(ii) and Capital Expenditures in the ordinary course of business not
exceeding, in the aggregate for the U.S. Borrower and it Subsidiaries during
each fiscal year, $75,000,000 and Capital Expenditures made during the fiscal
year ended September 30, 2005 in connection with the acquisition of the First
Trax pet business; provided, however, that so long as no Event of Default has
occurred and is continuing or would result from such expenditure, any portion
of such amount, if not expended in any fiscal year, may be carried over for
expenditure in the next two following fiscal years (such amount, the "Capital
Expenditure Carryover Amount").
7.13 Amendments of Organization Documents. Amend any of its
Organization Documents, except for any amendments that could not reasonably be
expected to have a Material Adverse Effect.
7.14 Accounting Changes. Make any change in (i) accounting policies or
reporting practices, except as required or permitted by GAAP, or (ii) fiscal
year.
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7.15 Prepayments, Etc. of Indebtedness. 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), or make any payment in violation of any subordination terms of,
any subordinated Indebtedness, except regularly scheduled or required
repayments or redemptions of Indebtedness set forth on Schedule 7.02.
7.16 Amendment, Etc. of Related Documents and Indebtedness. (a) Amend,
modify or change in any materially adverse manner any term or condition of any
Related Document or give any consent, waiver or approval thereunder or (b)
amend, modify or change in any manner materially adverse to the interests of
the Loan Parties any term or condition of any Indebtedness set forth in
Schedule 7.02, except for any refinancing, refunding, renewal or extension
thereof permitted by Section 7.02.
7.17 Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any speculative transaction involving commodity
options or futures contracts or any similar speculative transactions, which
are, in any case, inconsistent with prior practice and not otherwise made in
the ordinary course of business.
7.18 Limitations on Finance Companies and Certain German Entities. (a)
in the case of Cayman Finance Co. and German Finance Co., to engage in any
business other than lending funds to ROV German Holding and VARTA AG,
respectively, (b) in the case of ROV German Holding, to engage in any business
other than holding stock of, and lending money to, its Subsidiaries, (c) in the
case of ROV GP GmbH, to engage in any business other than acting as general
partner of the Euro Borrower and lending money to VARTA AG pursuant to the
terms of the Acquisition Agreement dated July 28, 2002 among Varta AG and
certain Subsidiaries and (d) in the case of ROV LP GmbH, to engage in any
business other than acting as limited partner of the Euro Borrower.
Notwithstanding the foregoing, ROV German Holding, ROV GP GmbH and/or ROV LP
GmbH may own and license, as licensor, intellectual property.
7.19 Designation of Senior Debt. Designate any Indebtedness (other
than the Indebtedness under the Loan Documents) of the U.S. Borrower or any of
its Subsidiaries as "Designated Senior Debt" (or any similar term) under, and
as defined in, each of the 2013 Notes Indenture and the 2015 Notes Indenture.
7.20 Limitations of Undertakings. Notwithstanding the foregoing
provisions of Article VII (but without prejudice to any of the obligations
thereunder of any Loan Party not incorporated in Germany), the undertakings set
out in Article VI, Section 7.03 (Investments), 7.04 (Fundamental Changes), 7.05
(Dispositions), 7.07 (Change in Nature of Business), 7.08 (Transaction with
Affiliates), 7.13 (Amendments of Organization Documents) and 7.14 (Accounting
Changes) (the "Relevant Undertakings") are not and shall not be given by any
Loan Party incorporated in Germany (each a "German Loan Party"). However:
(a) each German Loan Party shall give to the Administrative Agent not
less than 20 Business Days' prior written notice if it or any of its
Subsidiaries proposes to take or permit any action or circumstance which, if
all the Relevant Undertakings had been given by that German Loan Party on the
date hereof and had thereafter remained in force, would constitute a breach of
any of the Relevant Undertakings;
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(b) the Administrative Agent shall be entitled, within ten Business
Days of receipt of notice under subsection (a) above, to request that the
German Loan Party supply to the Administrative Agent in sufficient copies for
the Lenders, such further relevant information as the Administrative Agent
(acting reasonably) may consider necessary for the purposes of this Section
7.20 (Limitation of Undertakings), and the German Loan Party shall supply such
further information promptly and in any event within ten Business Days of the
request therefore, subject to any relevant confidentiality obligations;
(c) if any Lender considers that the relevant action or circumstance
(taken alone or together with other actions or circumstances, whether or not
permitted hereunder), may have a Material Adverse Effect or materially and
adversely affects its interests as a Lender under the Loan Documents, it may so
notify the Administrative Agent in writing;
(d) if, by not later than the date ten Business Days after receipt by
the Administrative Agent of notice pursuant to subsection (a) above (or, if
later and additional information has been requested pursuant to subsection (b)
above, by not later than the date 10 Business Days after receipt by the
Administrative Agent of such additional information if received within the
prescribed time or the date 10 Business Days after the request therefore if
not) the Administrative Agent has received notices pursuant to subsection (c)
above from Lenders which constitute the Required Lenders, the Administrative
Agent shall promptly notify the Euro Borrower and the Lenders; and
(e) if the Administrative Agent gives notice to the Euro Borrower
pursuant to subsection (d) above or the relevant action is undertaken or
circumstance is permitted before the date two Business Days after the latest
time for the receipt by the Administrative Agent of notices pursuant to
subsection (d) above, the undertaking of the relevant action or permitting of
the relevant circumstances shall immediately constitute an Event of Default.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event
of Default:
(a) Non-Payment. The U.S. Borrower, any Subsidiary Borrower or any
other Loan Party fails to (i) pay when due, any amount of principal of any
Loan or deposit any funds or Backstop L/Cs as Cash Collateral in respect
of L/C Obligations, or (ii) pay within three days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any fee due
hereunder, or (iii) pay within five days after the same becomes due, any
other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. Either Borrower fails to perform or observe
any term, covenant or agreement contained in any of Section 6.03(a) or
Article VII; 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
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thirty (30) days after the date on which such Loan Party knew or should
have known of such failure; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
either Borrower 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. (i) Any Loan Party (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness (other
than Indebtedness hereunder) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount and such failure shall
continue after the applicable grace period, or (B) fails to observe or
perform any other agreement or condition relating to any such Indebtedness
or contained in any instrument or agreement evidencing, securing or
relating thereto, 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 to cause, after the applicable grace period, with the giving
of notice if required, such Indebtedness to be demanded or 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; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such
Swap Contract as to which the U.S. Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the U.S.
Borrower or any Subsidiary is an Affected Party (as so defined) and, in
either event, the Swap Termination Value owed by the Loan Party or such
Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. (i) Any Loan Party or any of its
Subsidiaries (other than any Dormant Subsidiary) 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 or similar officer for it or for all or any material part of
its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and 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 continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or (ii) in the case of
the UK Borrower or any of its Subsidiaries (other than Dormant
Subsidiaries), any corporate action, legal proceedings or other procedure
or step is taken in relation to:
153
(A) the suspension of payments, a moratorium of any
indebtedness, winding up, dissolution, administration or
reorganisation (by way of voluntary arrangement scheme of arrangement
or otherwise) of the UK Borrower or any such Subsidiary other than a
solvent liquidation or reorganization;
(B) a composition, compromise, assignment or arrangement with
any creditor of the UK Borrower or any such Subsidiary;
(C) the appointment of a liquidator (other than in respect of a
solvent liquidation of the UK Borrower or any such Subsidiary)
receiver, administrative receiver, administrator, compulsory manager
or other similar officer in respect of the UK Borrower or any such
Subsidiary or any of its assets; or
(D) enforcement of any Lien over any assets of the UK Borrower
or any such Subsidiary;
(E) any winding up petition presented by a creditor (other than
a petition which is frivolous or vexatious and is contested in good
faith and with diligence and is discharged, stayed or dismissed within
14 days of commencement or, if earlier, the date on which it is
advertised); or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any of
its Subsidiaries (other than any Dormant 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 30 days after its issue or levy; or
(h) Judgments. There is entered against any Loan Party or any of its
Subsidiaries 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 the potential claim and does not dispute coverage), (i)
enforcement proceedings are commenced by any creditor upon such judgment
or order, or (ii) there is a period of forty-five (45) 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 Foreign Plan,
Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the U.S. Borrower under Title IV of
ERISA to the Pension Plan, Multiemployer Plan or the PBGC, or similar
liabilities of any Loan Party under a Foreign Plan, in each case which
could reasonably be expected to have a Material Adverse Effect, or (ii)
the U.S. Borrower 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, or a similar event occurs with respect to any Foreign
Plan, in each case which could reasonably be expected to have a Material
Adverse Effect; or
154
(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 Section 7.05, or
satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party or any other Person contests in any manner
the validity or enforceability of any provision of any Loan Document; or
any Loan Party denies that it has any or further liability or obligation
under any provision of any Loan Document, or purports to revoke, terminate
or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Collateral Document. 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 Section 7.05) cease to create a valid and
perfected first priority lien on and security interest in the Collateral
purported to be covered thereby.
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:
(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 Borrowers 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;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief under the Bankruptcy Code of the United States with respect to
the U.S. Borrower, or under any Debtor Relief Law with respect to any other
Borrower, 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 Borrowers 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.
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8.03 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), or after payment
of any amounts received pursuant to Section 2.14(f), 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 reasonable fees,
charges and disbursements of counsel to the Administrative Agent payable
under Section 10.04(a) and amounts payable under Article III) payable to
the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees (including commitment fees), indemnities and other amounts (other
than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including reasonable fees, charges and disbursements
of counsel to the respective Lenders and the L/C Issuer payable under
Section 10.04(b)) and amounts payable under Article III, ratably among
them in proportion to the respective amounts described in this clause
Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C
Borrowings and other Obligations, ratably among the Lenders and the L/C
Issuer 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, L/C Borrowings, amounts owing under Secured
Hedge Agreements, and amounts owing under Qualified Foreign Credit
Facilities, ratably among the Lenders, the L/C Issuer, the Hedge Banks and
the Qualified Foreign 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
owing under or in respect of the Loan Documents 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 U.S. Borrower 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
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applied to the other Obligations, if any, in the order set forth above, and, if
no Obligations remain outstanding, delivered to the Borrowers.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authority.
(a) Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The
provisions of this Article (excluding Section 9.07 and 9.13) are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuer, and none
of the Borrowers or any other Loan Party shall have rights as a third party
beneficiary of any of such provisions.
(b) 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 or Swing Line Lender (if applicable) and potential Hedge Bank) and the
L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent
to act as the agent of such Lender and the L/C Issuer 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 9.06 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 IX and Article X (including Section 10.04(c), 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.
(c) The Administrative Agent shall be released from the restrictions
of Section 181 of the German Civil Code (Burgerliches Gesetzbuch, BGB).
9.02 Power of Attorney for German Collateral Agreements to the
Administrative Agent in its capacity as "collateral agent".
(a) Each of the Lenders and the L/C Issuer hereby irrevocably authorizes the
Administrative Agent to act on its behalf and, if required under applicable Law
or if otherwise appropriate, in its name in connection with the preparation,
entering into, execution and delivery of each German Collateral Agreement and
the perfection and monitoring of each security interest granted under any
German Collateral Agreement (a "German Security Interest"), including, but not
limited to, any share pledge agreement with respect to shares in any German
company in notarial or private written form, as well as any other pledge,
mortgage, assignment or transfer of title for security purposes. The
Administrative Agent shall be authorized to make all statements, make and
receive any and all declarations and take any and all action necessary or
appropriate in
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this connection. The Administrative Agent shall be authorized to delegate this
power of attorney.
(b) The Administrative Agent shall: (i) hold such German Security
Interest, if any, which is transferred or assigned by way of security
(Sicherungsubereignung / Sicherungsabtretung) or otherwise granted under a
non-accessory security right (nicht akzessorische Sicherheit) as trustee
(Treuhander) for the benefit of the Lender Parties; and (ii) administer in the
name and on behalf of the Lender Parties such German Security Interest which is
pledged (Verpfandung) or otherwise transferred under an accessory security
right (akzessorische Sicherheit) to the Administrative Agent and the other
Lender Parties.
(c) It is hereby agreed that, in relation to any jurisdiction the
courts of which would not recognize or give effect to the trust (Treuhand)
expressed to be created by this Section 9.02, the relationship of the Lenders
and the L/C Issuer to the Administrative Agent in relation to any Lien or
security interest governed by German law shall be construed as one of principal
and agent but, to the extent permissible under the laws of such jurisdiction,
all the other provisions of this Section 9.02 shall have full force and effect
between the parties hereto.
9.03 Rights as a Lender. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with either Borrower or any Subsidiary
or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.
9.04 Exculpatory Provisions. The Administrative Agent shall not have
any duties or obligations except those expressly set forth herein and in the
other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable Law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrowers or any of
their Affiliates that is communicated
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to or obtained by the Person serving as the Administrative Agent or any of
its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
notice describing such Default is given to the Administrative Agent by a
Borrower, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral
Documents, (v) the value or sufficiency of any Collateral or (vi) the
satisfaction of any condition set forth in Article IV or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.
9.05 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the Administrative Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrowers), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
9.06 Delegation of Duties. The Administrative Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative
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Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
9.07 Resignation of Administrative Agent. The Administrative Agent may
at any time give notice of its resignation to the Lenders, the L/C Issuer and
the Borrowers. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrowers, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that
if the Administrative Agent shall notify the Borrowers and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (b) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrowers
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative
Agent hereunder, (i) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be
discharged from all of their respective duties and obligations hereunder or
under the other Loan Documents, and (iii) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangement
satisfactory to the retiring L/C Issuer to effectively assume the obligations
of the retiring L/C Issuer with respect to such Letters of Credit.
9.08 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such
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documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and the L/C
Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.
9.09 No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Book Managers, Arrangers, Documentation Agents,
Syndication Agents or Managing Agents listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the L/C Issuer hereunder.
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 a 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, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuer 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), 2.04(i) and
(j), 2.05(i) and (j), 2.11 and 10.04) allowed in such judicial proceeding;
and
(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 and the L/C Issuer to make such payments to the Administrative
Agent and, if the Administrative Agent shall consent to the making of such
payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its respective
agents and counsel, and any other amounts due the Administrative Agent under
Sections 2.11 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
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the L/C Issuer or to authorize the Administrative Agent to vote in respect of
the claim of any Lender in any such proceeding.
9.11 Collateral and Guaranty Matters. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(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
contingent indemnification obligations) and the expiration or termination
of all Letters of Credit, (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan
Document, or (iii) if approved, authorized or ratified in writing in
accordance with Section 10.01 hereof;
(b) to release any Guarantor from its obligations under the ROV
Guaranty, the KGaA Guaranty or the UK Guaranty if such Person ceases to be
a Subsidiary as a result of a transaction permitted hereunder; and
(c) to 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).
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 ROV Guaranty, the KGaA Guaranty or the
UK Guaranty pursuant to this Section 9.11. In each case as specified in this
Section 9.11, the Administrative Agent will, at the Borrowers' expense, execute
and deliver to the applicable Loan Party such 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 ROV Guaranty, the KGaA
Guaranty or the UK Guaranty, in each case in accordance with the terms of the
Loan Documents and this Section 9.11.
9.12 Appointment of Supplemental Collateral 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, it may be
necessary that the Administrative Agent appoint an additional individual or
institution as a separate trustee, co-trustee, collateral agent, collateral
sub-agent or collateral co-agent (any such additional individual or institution
being referred to herein
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individually as a "Supplemental Collateral Agent" and collectively as
"Supplemental Collateral Agents").
(b) In the event that the Administrative Agent appoints a
Supplemental Collateral 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 Collateral Agent to the extent,
and only to the extent, necessary to enable such Supplemental Collateral Agent
to exercise such rights, powers and privileges with respect to such Collateral
and to perform such duties with respect to such Collateral, and every covenant
and obligation contained in the Loan Documents and necessary to the exercise or
performance thereof by such Supplemental Collateral Agent shall run to and be
enforceable by either the Administrative Agent or such Supplemental Collateral
Agent, and (ii) the provisions of this Article and of Section 10.04 that refer
to the Administrative Agent shall inure to the benefit of such Supplemental
Collateral Agent and all references therein to the Administrative Agent shall
be deemed to be references to the Administrative Agent and/or such Supplemental
Collateral Agent, as the context may require.
(c) Should any instrument in writing from any Loan Party be required
by any Supplemental Collateral 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, such Loan Party shall execute,
acknowledge and deliver any and all such instruments promptly upon request by
the Administrative Agent. In case any Supplemental Collateral Agent, or a
successor thereto, shall die, become incapable of acting, resign or be removed,
all the rights, powers, privileges and duties of such Supplemental Collateral
Agent, to the extent permitted by Law, shall vest in and be exercised by the
Administrative Agent until the appointment of a new Supplemental Collateral
Agent.
9.13 Abstract Acknowledgement of Indebtedness/Joint Creditorship.
(a) Subject to Section 10.09 hereof, each of the parties hereto
agree, and each of the Euro Borrower and the KGaA Guarantors acknowledges by
way of an abstract acknowledgement of indebtedness (abstraktes
Schuldanerkenntnis), that each and every obligation of the Euro Borrower and
each KGaA Guarantor (and any of its successors), up to the aggregate amount of
(euro)25 million under this Credit Agreement and the other Loan Documents shall
also be owing in full to the Administrative Agent, and that accordingly the
Administrative Agent will have its own independent right to demand performance
by the Euro Borrower and/or each KGaA Guarantor of such obligations (the
"Acknowledgement I").
(b) Each of the parties hereto agree, and each of the U.S. Borrower
and the ROV Guarantors acknowledges by way of an abstract acknowledgement of
indebtedness (abstraktes Schuldanerkenntnis), that each and every obligation of
the U.S. Borrower and each ROV Guarantor (and any of its successors), up to the
aggregate amount of U.S. $1.0 billion under this Credit Agreement and the other
Loan Documents shall also be owing in full to the Administrative Agent, and
that accordingly the Administrative Agent will have its own independent right
to demand performance by the U.S. Borrower and/or each ROV Guarantor of such
obligations (the "Acknowledgement II").
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(c) Each of the parties hereto agree, and each of the U.K. Borrower
and the U.K. Guarantors acknowledges by way of an abstract acknowledgement of
indebtedness (abstraktes Schuldanerkenntnis), that each and every obligation of
the U.K. Borrower and each U.K. Guarantor (and any of its successors), up to
the aggregate amount of (pound)10,000,000 under this Credit Agreement and the
other Loan Documents shall also be owing in full to the Administrative Agent,
and that accordingly the Administrative Agent will have its own independent
right to demand performance by the U.K. Borrower and/or each U.K. Guarantor of
such obligations (the "Acknowledgement III").
The Acknowledgement I, the Acknowledgement II and the Acknowledgement
III are collectively referred to as the "Acknowledgements" and each an
"Acknowledgement".
(d) The Administrative Agent undertakes with the relevant Loan Party
that (i) in case of any discharge of any obligation owing to any Lender, the
Administrative Agent will not, to the extent of such discharge, make a claim
against such Loan Party under the relevant Acknowledgement and (ii) it will
not, at any time, make any claim against any Loan Party exceeding the amount
then owed by such Loan Party under the Loan Documents.
(c) (i) Each Loan Party hereby irrevocably and unconditionally
undertakes to pay to the Administrative Agent, as creditor in its own right and
not as representative of the other Lenders, sums equal to and in the currency
of each amount payable by such Loan Party to each of the Lenders under each of
the Loan Documents as and when that amount falls due for payment under the
relevant Loan Document. (ii) Each of the Loan Parties and each of the Lenders
(other than the Administrative Agent) agrees that the Administrative Agent
shall be the joint creditor (together with the relevant Lenders) of each and
every obligation of any Loan Party towards each of the Lenders (other than the
Administrative Agent) under the Loan Documents. Accordingly the Administrative
Agent will have its own independent right to demand performance by the relevant
Loan Party of those obligations irrespective of any discharge of such Loan
Party's obligation to pay those amounts to the other Lenders resulting from
failure by them to take appropriate steps in an insolvency proceeding of that
Loan Party to preserve their entitlement to be paid those amounts. However, any
discharge of any such obligation to either the Administrative Agent or a Lender
(other than the Administrative Agent) shall, to that extent, discharge the
corresponding obligation owing to the other. (iii) Without limiting or
affecting the Administrative Agent's rights against any Loan Party (whether
under this paragraph or under any other provision of the Loan Documents), the
Administrative Agent agrees with each other Lender (on a several and divided
basis) that, subject as set out in the next sentence, it will not exercise its
rights as a joint creditor with a Lender (other than the Administrative Agent)
except with the consent of the relevant Lender. However, for the avoidance of
doubt, nothing in the previous sentence shall in any way limit the
Administrative Agent's right to act in the protection or preservation of rights
under, or to enforce any Collateral Document as contemplated by, this deed
and/or the relevant Collateral Document (or to do any act reasonably incidental
to any of the foregoing).
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ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by either
Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and applicable Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a), or, in the case
of the initial Credit Extension, Section 4.02, without the written consent
of each Lender;
(b) extend or increase the Commitment of any Lender (it being
understood that a waiver of any condition or precedent set forth in
Section 4.02, or waiver of any Default or Event of Default, mandatory
prepayment or mandatory reduction of the Commitments shall not constitute
an extension or increase of any commitment of any Lender) without the
written consent of each Lender directly affected thereby;
(c) postpone any date fixed for any payment of principal under
Section 2.09, interest under Section 2.10, or fees under Sections 2.03(i)
and (j), 2.04(i) and (j), 2.05(i) and (j), 2.11(a) or 2.11(b) without the
written consent of each Lender directly affected thereby (it being
understood that the waiver of mandatory prepayments of the Term Loans
shall not constitute a postponement of any date fixed for the payment of
principal or interest);
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (v) 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 entitled to such amount; provided, however, that only the consent
of the Required Lenders shall be necessary (i) to amend the definition of
"Default Rate" or to waive any obligation of either Borrower to pay
interest or Letter of Credit Fees at the Default Rate or (ii) to amend any
financial covenant hereunder (or any defined term used therein) even if
the effect of such amendment would be to reduce the rate of interest on
any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(e) change (i) Section 8.03 in a manner that would alter the pro rata
sharing of payments required thereby without the prior written consent of
each Lender or (ii) the order of application of any reduction in the
Commitments or any prepayment of Loans among the Facilities from the
application thereof set forth in the applicable provisions of Section
2.07(b) or 2.08(b), respectively, in any manner that materially and
adversely affects the Lenders under a Facility without the written consent
of (i) if such Facility is the Revolving Credit Facility, the Required
Revolving Lenders, (ii) if such Facility is the Canadian Term Facility,
the Required Canadian Term Lenders, (iii) if such Facility is the Euro
Term Facility, the Required Euro Term Lenders and (iv) if such Facility is
the Dollar Term Facility, the Required Dollar Term Lenders; provided,
however, that if such
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amendment adversely affects all of the Term Facilities in a proportionate
manner, only the written consent of the Required Term Lenders shall be
required;
(f) change any provision of this Section 10.01 or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;
(g) release all or substantially all of the Collateral in any
transaction or series of related transactions, without the written consent
of each Lender (it being understood that a transaction permitted under
Section 7.05 shall not constitute a release of all or substantially all of
the Collateral);
(h) other than in connection with a transaction permitted by Section
7.04 or Section 7.05, release all or substantially all of the combined
value of the ROV Guaranty, the KGaA Guaranty and the UK Guaranty, without
the written consent of each Lender; or
(i) impose any greater restriction on the ability of any Lender under
a Facility to assign any of its rights or obligations hereunder without
the written consent of (i) if such Facility is the Revolving Credit
Facility, the Required Revolving Lenders, (ii) if such Facility is the
Canadian Term Facility, the Required Canadian Term Lenders, (iii) if such
Facility is the Euro Term Facility, the Required Euro Term Lenders and
(iv) if such Facility is the Dollar Term Facility, the Required Dollar
Term Lenders; provided, however, that if such amendment adversely affects
all of the Term Facilities in a proportionate manner, only the written
consent of the Required Term Lenders shall be required;
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
Issuer Document 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
the Administrative Agent under this Agreement or any other Loan Document; (iv)
Section 10.06(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 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, (A) 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 and (B) this Agreement and the other Loan Documents may be
amended by the Administrative Agent and the Loan Parties solely to reflect the
amortization, prepayment priority and other terms and conditions of any
Incremental Facility, any Chinese Facility contemplated by clause (iii) of the
definition thereof or any Additional Foreign Credit Facility (including, in
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the case of the Chinese Facility or Additional Foreign Credit Facility, the
reallocation of all or a portion of the U.S. Revolving Credit Commitment of a
U.S. Revolving Credit Lender to the Chinese Facility or Additional Foreign
Credit Facility, as the case may be, so long as such U.S. Revolving Credit
Lender consents to such reallocation.)
In the event that (1) the U.S. Borrower 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, (2) the consent,
waiver or amendment in question requires the agreement of all affected Lenders
in accordance with the terms of this Section 10.01 or all the Lenders with
respect to a certain class of the Loans and (3) 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."
The Borrowers shall be entitled to (x) replace any Non-Consenting Lender in
accordance with the provisions of Section 10.14 or (y) terminate the
Commitments of such Non-Consenting Lender and pay to such Lender an amount
equal to the outstanding principal of its Loans and L/C Advances, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder
and under the Loan Documents (including any amounts under Section 3.05).
10.02 Notices and Other Communications; Facsimile Copies.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail, electronic
mail or sent by telecopier as follows, 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 the Borrowers, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on Schedule 10.02;
and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service shall be deemed to have been
given when received; notices mailed by certified or registered mail shall be
deemed to have been given four (4) Business Days after deposit in the mails
postage prepaid; notices sent by telecopier shall be deemed to have been given
when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the
next Business Day for the recipient). Notices delivered through electronic
communications to the extent provided in subsection (b) below shall be
effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to
the Lenders and the L/C Issuer hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to
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any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C
Issuer, as applicable, has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic communication.
The Administrative Agent or the Borrowers may, in their discretion, agree to
accept notices and other communications to each of them hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of
such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon
the sender's receipt of an acknowledgement from the intended recipient (such as
by the "return receipt requested" function, as available, return e-mail or
other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS
OR THE PLATFORM. In no event shall the Administrative Agent of any of its
Related Parties (collectively, the "Agent Parties") have any liability to
either Borrower, any Lender, the L/C Issuer or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of either of the Borrowers' or the Administrative
Agent's transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any Agent Party
have any liability to either of the Borrowers, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrowers, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the Borrowers, the Administrative Agent, the L/C Issuer
and the Swing Line Lender. In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address,
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contact name, telephone number, telecopier number and electronic mail address
to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer 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 each Borrower even if
(i) such 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. Each Borrower shall indemnify the Administrative Agent,
the L/C Issuer, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of either Borrower. All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the
L/C Issuer or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder or 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.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and of one local or special counsel in each jurisdiction
and for each specialty in which the Administrative Agent reasonably determines
it is necessary to retain such counsel), in connection with the syndication of
the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof, (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or the L/C Issuer), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B)
in connection with Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrowers. Each Borrower shall indemnify
the Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each
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Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee
(which shall be limited to one (1) counsel to the Administrative Agent and the
Lenders, unless (x) the interests of the Administrative Agent and the Lenders
are sufficiently divergent, in which case one (1) additional counsel may be
appointed, and (y) if the interests of any Lender or group of Lenders (other
than all of the Lenders) are distinctly or disproportionately affected, one (1)
additional counsel for such Lender or group of Lenders)), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by either
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby or, in the case of the Administrative Agent (and any sub-agent thereof)
and its Related Parties only, the administration of this Agreement and the
other Loan Documents, (ii) any Loan or Letter of Credit, 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 any participation in a Letter of Credit (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the U.S. Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the U.S. Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by
either Borrower or any other Loan Party or any of the Borrower's or such Loan
Party's directors, shareholders or creditors, and regardless of whether any
Indemnitee is a party thereto and whether or not any of the transactions
contemplated hereunder or under any of the other Loan Documents is consummated,
in all cases, whether or not caused by or arising, in whole or in part, out of
the comparative, contributory or sole negligence of the Indemnitee; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee, (y) result from a claim brought by a Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if such Borrower or
such Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction, or (z) arise
from claims of any of the Lenders solely against one or more other Lenders (and
not by one or more Lenders against Administrative Agent or one or more of the
other Agents) that have not resulted from the action, inaction, participation
or contribution of the Borrower or its Subsidiaries or other Affiliates or any
of their respective officers, directors, stockholders, partners, members,
employees, agents, representatives or advisors. 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
transmissions systems in connection with this Agreement.
(c) Reimbursement by Lenders. To the extent that any Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by it to the Administrative Agent (or any
sub-agent thereof), the L/C Issuer or any
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Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent), the L/C Issuer or such
Related Party, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with
such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.14(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable Law, each Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof. No Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section 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.
10.05 Payments Set Aside. To the extent that any payment by or on
behalf of a Borrower is made to the Administrative Agent, the L/C Issuer or any
Lender, or the Administrative Agent, the L/C Issuer 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 the
Administrative Agent, the L/C Issuer 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
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative 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 Federal Funds Rate from time to time in effect. The obligations of the
Lenders and the L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this
Agreement.
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10.06 Successors and Assigns.
(a) Successors and Assigns Generally. 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 none
of the Borrowers or any other Loan Party may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of Section 10.06(b), (ii) by way of
participation in accordance with the provisions of Section 10.06(d), or (iii)
by way of pledge or assignment of a security interest subject to the
restrictions of Section 10.06(f), or (iv) to an SPC in accordance with the
provisions of Section 10.06(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 subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one
or more Eligible 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 10.06(b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in
effect, the principal outstanding balance of the Loan 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 or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
U.S. $5,000,000, in the case of any assignment in respect of the U.S.
Revolving Credit Facility, (euro)5,000,000 in the case of any assignment
in respect of the Euro Revolving Credit Facility, (pound)5,000,000 in the
case of any assignment in respect of the UK Revolving Credit Facility,
U.S. $1,000,000, in the case of any assignment in respect of the Dollar
Term Facility, (euro)1,000,000 in the case of any assignment in respect of
the Euro Term Facility or CAD1,000,000 in the case of any assignment in
respect of the Canadian Term Facility unless each of the Administrative
Agent and, so long as no Event of Default under Section 8.01 (a), (f), or
(g) has occurred and is continuing, the applicable Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a
single Eligible Assignee (or to an Eligible Assignee and members of its
Assignee Group) will be treated as a single assignments for purposes of
determine whether such minimum amount has been met;
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(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned,
except that this clause (ii) shall not (A) apply to rights in respect of
Swing Line Loans or (B) prohibit any Lender from assigning all or a
portion of its rights and obligations among separate Facilities on a
non-pro rata basis;
(iii) any assignment of a Revolving Credit Commitment must be approved
by the Administrative Agent, the L/C Issuer and the Swing Line Lender
unless the Person that is the proposed assignee is itself a Revolving
Credit Lender under the applicable Facility (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee);
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount, if any, required as set
forth in Schedule 10.06; and
(v) and the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, 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 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, 10.03, 10.04 and
10.15with respect to facts and circumstances occurring prior to the effective
date of such assignment). Upon request, the applicable 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 subsection 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 10.06(d). The Borrowers shall
not, as a result of any assignment by any Lender to any of such Lender's
Affiliates, incur increased liability for any Taxes.
(c) Register. 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 amounts) of the Loans, L/C
Obligations (specifying the aggregate Unreimbursed Amounts), L/C Borrowings and
the amounts due under Section 2.03, 2.04 and 2.05 owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent
and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender
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hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. No transfer or assignment of any rights or obligations with respect
to the Loans or L/C Obligations (including pursuant to Sections 10.06(b), (d),
and (h)) shall be effective unless such transfer or assignment is recorded in
the Register. This Section 10.06(c) shall be construed so that the Loans and
L/C Obligations are at all times maintained in "registered form" within the
meaning of Sections 163(f), 871(h)(2), and 881(c)(2) of the Code and the
Treasury regulations promulgated thereunder (and any other relevant or
successor provisions of the Code and Treasury regulations promulgated
thereunder). The Register shall be available for inspection by each of the
Borrowers, the Lenders and the L/C Issuer at any reasonable time and from time
to time upon reasonable prior notice. In addition, at any time that a request
for a consent for a material or other substantive change to the Loan Documents
is pending, any Lender may request and receive from the Administrative Agent a
copy of the Register. Upon receipt of a duly completed and executed Assignment
and Assumption and compliance by the assigning Lender and Eligible Assignee
with the other applicable provisions of this Section 10.06, the Administrative
Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the applicable Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the U.S. Borrower
or any of the Borrower's Affiliates or Subsidiaries) (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 Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement or any other Loan
Document. 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 to approve any amendment, modification or waiver of
any provision of this Agreement; 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 clauses (b),
(c), (d), (g) or (h) of Section 10.01 that directly affects such Participant.
Subject to subsection (e) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04, 3.05 and
10.15 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to Section 10.06(b).
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant. A Participant shall not be entitled to
the benefits of Section 3.01 unless the applicable Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of such Borrower, to comply with Section 3.01(f) as though it were a
Lender.
(f) Certain Pledges. 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)
174
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.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable Law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
(h) Special Purpose Funding Vehicles. 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 Borrowers (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 or, if it fails to do so, to make
such payment to the Administrative Agent as is required under Section 2.14.
Each party hereto hereby agrees that (A) 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 Borrowers under this
Agreement (including its obligations under Section 3.01 and Section 3.04), (B)
no SPC shall be liable for any indemnity or similar payment obligation under
this Agreement for which a Lender would be liable, and (C) 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. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any
SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the Laws of the United States or any State
thereof. Notwithstanding anything to the contrary contained herein, any SPC may
(1) with notice to, but without prior consent of the U.S. Borrower and the
Administrative Agent and with the payment of a processing fee in the amount of
$2,500, assign all or any portion of its right to receive payment with respect
to any Loan to the Granting Lender and (2) 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) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America
175
assigns all of its Revolving Credit Commitments and Revolving Credit Loans
pursuant to Section 10.06(b), Bank of America may, (i) upon 30 days' notice to
the U.S. Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30
days' notice to the U.S. Borrower, resign as Swing Line Lender. In the event of
any such resignation as L/C Issuer or Swing Line Lender, the Borrowers shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line
Lender hereunder; provided, however, that no failure by the Borrowers to
appoint any such successor shall affect the resignation of Bank of America as
L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns
as L/C Issuer, it shall retain all the rights, powers, privileges and duties 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, Eurocurrency Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c), 2.04(c) and 2.05(c)). If Bank of America
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 Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.06(e). Upon the appointment of a
successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the
successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.
10.07 Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates'
respective partners, directors, officers, employees, agents, advisors and
representatives (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 purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable Laws or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section 10.07, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its professional
advisors) to any swap or derivative transaction relating to the U.S. Borrower
and its obligations, (g) with the consent of the U.S. Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a result
of a breach of this Section 10.07 or (ii) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrowers.
For the purposes of this Section, "Information" means all information received
from any Loan Party relating to any Loan Party or its business, other than any
such information that is available to the Administrative Agent, the L/C Issuer
or any Lender on a
176
nonconfidential basis prior to disclosure by any Loan Party; provided that, in
the case of information received from a Loan Party after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section 10.07 shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrowers or a Subsidiary, as the case may be, (b)
it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
10.08 Right of Setoff.
If an Event of Default shall have occurred and be continuing, each
Lender and the L/C Issuer is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable Law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender or the L/C Issuer to or for the
credit or the account of either Borrower or any other Loan Party against any
and all of the Obligations of the Borrowers or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the
L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of such Borrower or such Loan Party may be contingent
or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender and the L/C Issuer under this Section
are in addition to other rights and remedies (including other rights of setoff)
that such Lender and the L/C Issuer may have. Each Lender and the L/C Issuer
agrees to notify the U.S. Borrower and the Administrative Agent promptly after
any such setoff and application, provided that the failure to give such notice
shall not affect the validity of such setoff and application.
10.09 Non-U.S. Subsidiaries. Notwithstanding any provision of any Loan
Document to the contrary (including any provision that would otherwise apply
notwithstanding other provisions or that is the beneficiary of other overriding
language), (i) no more than 65% of the voting interests in or of any Subsidiary
incorporated under the Laws of a jurisdiction other than the United States (a
"non-U.S. Subsidiary") shall be pledged or similarly hypothecated to Guarantee
or support any Obligation of the U.S. Borrower, (ii) no non-U.S. Subsidiary
shall Guarantee or support any Obligation of the U.S. Borrower, (iii) no
security or similar interest shall be granted in the assets of any non-U.S.
Subsidiary which security or similar interest Guarantees or supports any
Obligation of the U.S. Borrower and (iv) nothing in this Agreement shall be
construed as a Guarantee, security or support by the Euro Borrower of or for
obligations of the U.S. Borrower or any of its Subsidiaries. The parties agree
that any pledge, Guarantee or security or similar interest made or granted in
contravention of this Section 10.09 shall be void ab initio.
177
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 the
Administrative 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
applicable Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Law,
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Obligations
hereunder.
10.11 Counterparts; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy or by an electronically mailed scanned copy
shall be effective as delivery of a manually executed counterpart of this
Agreement.
10.12 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 the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative 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.
10.13 Severability. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
10.14 Replacement of Lenders. If any Lender requests compensation
under Section 3.04, or if a Borrower is required to pay or delivers to such
Lender and the Administrative Agent a certificate setting forth reasons as to
why it reasonably anticipates that it will be required to pay, and such Lender
and the Administrative Agent agree with such reasons, any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 3.01, if any Lender ceases to make Eurocurrency Rate Loans as a
178
result of a condition described in Section 3.02 or Section 3.04, if any Lender
is a Defaulting Lender or a Non-Consenting Lender or if any other circumstance
exists hereunder that gives a Borrower the right to replace a Lender as a party
hereto, then such Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.06), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:
(a) such Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or a
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation
or payments thereafter; and
(d) such assignment does not conflict with applicable Law.
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the applicable Borrower to require such
assignment and delegation cease to apply.
10.15 Judgment. (a) Rate of Exchange. If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due
hereunder, under the ROV Guaranty, the KGaA Guaranty or the UK Guaranty, or
under any Note or Notes in another currency into US Dollars or into a Foreign
Currency, as the case may be, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that
at which, in accordance with normal banking procedures, a Lender could purchase
such other currency with US Dollars or with a Foreign Currency, as the case may
be, in New York City, New York at the close of business on the Business Day
immediately preceding the day on which final judgment is given, together with
any premiums and costs of exchange payable in connection with such purchase.
(b) Indemnity. The obligation of each Borrower in respect of any
sum due from it to the Administrative Agent or any Lender hereunder or under
any Note or Notes shall, notwithstanding any judgment in a currency other than
US Dollars or a Foreign Currency, as the case may be, be discharged only to the
extent that on the Business Day next succeeding receipt by the Administrative
Agent or such Lender of any sum adjudged to be so due in such other currency,
the Administrative Agent or such Lender may, in accordance with normal banking
procedures, purchase US Dollars or such Foreign Currency, as the case may be,
with such other
179
currency. If the US Dollars or such Foreign Currency so purchased are less than
the sum originally due to the Administrative Agent or such Lender in US Dollars
or in such Foreign Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or
such Lender against such loss, and if the US Dollars or such Foreign Currency
so purchased exceed the sum originally due to the Administrative Agent or any
Lender in US Dollars or in such Foreign Currency, as the case may be, the
Administrative Agent or such Lender agrees to remit to such Borrower such
excess.
10.16 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, PROVIDED THAT SECTIONS
9.01 (C), 9.02 AND 9.13 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE FEDERAL REPUBLIC OF GERMANY.
(b) SUBMISSION TO JURISDICTION. EACH BORROWER AND EACH OTHER LOAN
PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN
NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST A BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B)
OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
180
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 (OTHER
THAN BY EMAIL OR OTHER ELECTRONIC COMMUNICATION). NOTHING IN THIS AGREEMENT
WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.
10.17 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any 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 each Loan Party, which information includes the
name and address of each Loan Party and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify each Loan Party
in accordance with the Act.
10.19 "Know your customer" checks
(a) If:
(i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
regulation made after the date of this Agreement;
(ii) any change in the status of any Borrower after the date of
this Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of
its rights and obligations under this Agreement to a party that is not
a Lender prior to such assignment or transfer,
181
obliges the Administrative Agent or any Lender (or, in the case of paragraph
(iii) above, any prospective new Lender) to comply with "know your customer" or
similar identification procedures in circumstances where the necessary
information is not already available to it, each Borrower shall promptly upon
the request of the Administrative Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Administrative Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of the event described in paragraph (iii) above, on
behalf of any prospective new Lender) in order for the Administrative Agent,
such Lender or, in the case of the event described in paragraph (iii) above,
any prospective new Lender to carry out and be reasonably satisfied it has
complied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations pursuant to the transactions contemplated
in this Agreement.
(b) Each Lender shall promptly upon the request of the Administrative
Agent supply, or procure the supply of, such documentation and other evidence
as is reasonably requested by the Administrative Agent (for itself) in order
for the Administrative Agent to carry out and be reasonably satisfied it has
complied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations pursuant to the transactions contemplated
in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
RAYOVAC CORPORATION, as the U.S.
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President, Secretary and
General Counsel
183
VARTA CONSUMER BATTERIES GmbH & Co.
KGaA, as the Subsidiary Borrower
By: /s/ Andreas Rouve
-------------------------------------------
Name: Andreas Rouve
Title: Chief Financial Officer
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
184
RAYOVAC EUROPE LIMITED, as the UK
Borrower
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
185
LENDER:
BANC ONE HIGH YIELD
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
186
LENDER:
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇
▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ BRANCH
By: /s/ Philippe Soustra
-------------------------------------------
Name: Philippe Soustra
Title: Senior Vice President
By: /s/ Attila Coach
-------------------------------------------
Name: Attila Coach
Title: Managing Director
188
LENDER:
CAROLINA FIRST BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
189
LENDER:
CITICORP NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
190
LENDER:
CIT LENDING SERVICES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Title: Vice President
191
LENDER:
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. Spark
-------------------------------------------
Name: ▇▇▇▇▇ ▇. Spark
Title: Assistant Vice President
192
LENDER:
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ Rock
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President
193
LENDER:
GSC EUROPEAN CDO I S.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
194
LENDER:
GSC EUROPEAN CDO II S.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
195
LENDER:
▇▇▇▇▇▇▇▇▇ GLOBAL INVESTORS LIMITED
FOR AND ON BEHALF OF AQUILAE CLO I PLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
196
LENDER:
▇▇▇▇▇▇▇▇▇ GLOBAL INVESTORS LIMITED
FOR AND ON BEHALF OF ▇▇▇▇▇▇▇▇ CDO I SA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
197
LENDER:
IKB CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
198
LENDER:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
199
LENDER:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
200
LENDER:
MFS FLOATING RATE HIGH INCOME FUND
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
201
LENDER:
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Assitant Vice President
202
LENDER:
RMF EURO CDO II S.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
203
LENDER:
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
204
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A., as a Lender, L/C
Issuer or Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
206
Schedule I
KGaA Guarantors
Rayovac Corporation
ROV International Finance Company
Rayovac Europe GmbH
ROV German General Partner GmbH
ROV German Limited GmbH
Schedule II
ROV Guarantors
Rovcal, Inc.
ROV Holding, Inc.
United Industries Corporation
Nu-Gro America Corp.
Nu-Gro US Holdco Corp.
Nu-Gro Technologies, Inc.
IB Nitrogen Inc.
▇▇▇▇▇▇▇ Company
Ground Zero Inc.
Sylorr Plant Corp.
WPC Brands, Inc.
United Pet Group, Inc.
AQ Holdings, Inc.
Perfecto Holding Corp.
Aquarium Systems, Inc.
Perfecto Manufacturing, Inc.
Jungletalk International, Inc.
Pets 'N People, Inc.
Southern California Foam, Inc.
Aquaria, Inc.
DB Online, LLC
Schedule III
UK Guarantors
Rayovac Corporation
ROV International Finance Company
Rayovac Europe GmbH
Schedule IV
Consolidated EBITDA
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule V
Existing Letters of Credit
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 2.01
Commitments and Applicable Percentages
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 5.05
Supplement to Interim Financial Statements
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 5.06
Litigation
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 5.08(b)
Owned Real Property
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 5.08(c)
Leased Real Property
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 5.09
Environmental Matters
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 5.13
Subsidiaries and Other Equity Investments; Loan Parties
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 5.16
Intellectual Property Claims
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 6.18
Real Property to be Mortgaged
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 7.01(b)
Existing Permitted Liens
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 7.02
Indebtedness
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 7.03(f)
Existing Permitted Investments
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 7.05(m)
Certain Dispositions
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 7.08
Certain Transactions with Affiliates
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 10.02
Administrative Agent's Office, Certain Addresses for Notices
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Schedule 10.06
Processing and Recordation Fees
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
Exhibit A
Form of Committed Loan Notice
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit B
Form of Swing Line Loan Notice
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit C-1
Form of Term Note
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit C-2
Form of U.S. Revolving Credit Note
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit C-3
Form of Euro Revolving Term Note
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit C-4
Form of UK Revolving Credit Note
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit D
Form of Compliance Certificate
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit E
Form of Assignment and Assumption
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit F-1
Form of ROV Guaranty
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit F-2
Form of KGaA Guaranty
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit F-3
Form of UK Guaranty
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit G
Form of Security Agreement
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit H-1
Form of Mortgage
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit H-2
Form of Third Amendment to Mortgage
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit I-1
Form of Opinion Matters - Counsel to Loan Parties
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit I-2
Form of Opinion Matters - Local Counsel to Loan Parties
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
Exhibit I-3
Form of Opinion Matters - Real Estate Counsel to Loan Parties
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]