EXHIBIT 99.2
U.S. $900,000,000
SENIOR SECURED CREDIT AGREEMENT
Dated as of March 2, 2001
among
▇▇▇▇▇ BROS. CORPORATION,
as U.S. Borrower,
GREIF SPAIN HOLDINGS, S.L.,
as Subsidiary Borrower,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
as Sole Lead Arranger, Sole Book-Runner and Administrative Agent,
KEYBANK NATIONAL ASSOCIATION,
as Syndication Agent,
ABN AMRO BANK N.V,
as Co-Documentation Agent,
NATIONAL CITY BANK,
as Co-Documentation Agent,
THE BANK OF NOVA SCOTIA,
as Paying Agent,
and
THE OTHER FINANCIAL INSTITUTIONS
PARTY HERETO FROM TIME TO TIME
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS, ETC.
1.1. Certain Defined Terms 1
1.2. Other Interpretive Provisions 33
1.3. Accounting Principles 34
1.4. Currency Equivalents Generally 34
ARTICLE II
THE CREDITS
2.1. Amounts and Terms of Commitments and Loans 35
2.2. Evidence of Debt; Notes 36
2.3. Procedure for Borrowings 36
2.4. Conversion and Continuation Elections for
Borrowings 37
2.5. Utilization of Commitments in Offshore
Currencies 39
2.6. Reduction or Termination of Commitments 41
2.7. Prepayments and Mandatory Commitment
Reductions 41
2.8. Currency Exchange Fluctuations 44
2.9. Repayment 45
2.10. Interest 47
2.11. Fees 47
(a) Arrangement Fees; Agency Fees 47
(b) Commitment Fees 48
2.12. Computation of Fees, Interest and Dollar
Equivalent Amount 48
2.13. Payments by Each Applicable Borrower 48
2.14. Payments by the Lenders to the Paying Agent 49
2.15. Adjustments 49
2.16. Swing Line Commitment 50
2.17. Borrowing Procedures for Swing Line Loans 50
2.18. Refunding of Swing Line Loans 50
2.19. Participations in Swing Line Loans 50
2.20. Swing Line Participation Obligations
Unconditional 51
2.21. Conditions to Swing Line Loans 51
2.22. Substitution of Lenders in Certain Circumstances 52
ARTICLE III
THE LETTERS OF CREDIT
3.1. The Letter of Credit Subfacility 52
3.2. Issuance, Amendment and Renewal of Letters
of Credit 53
3.3. Risk Participations, Drawings and Reimbursements 55
3.4. Repayment of Participations 56
3.5. Role of the L/C Lender 57
3.6. Obligations Absolute 57
3.7. Cash Collateral Pledge 58
3.8. Letter of Credit Fees 58
3.9. Uniform Customs and Practice 58
3.10. Letters of Credit for the Account of
Subsidiaries 59
ARTICLE IV
NET PAYMENTS, YIELD PROTECTION AND ILLEGALITY
4.1. Net Payments 59
4.2. Illegality 61
4.3. Increased Costs and Reduction of Return 61
4.4. Funding Losses 62
4.5. Inability To Determine Rates 62
4.6. Reserves on LIBOR Loans 63
4.7. Certificates of Lenders 63
4.8. Substitution of Lenders 63
4.9. Right of Lenders To Fund Through Branches
and Affiliates 64
ARTICLE V
CONDITIONS PRECEDENT
5.1. Conditions to Effectiveness 64
5.2. Conditions to Initial Credit Extension 64
5.3. Conditions to All Credit Extensions 69
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Corporate Status 70
6.2. Authority 70
6.3. No Conflicts; Consents 70
6.4. Binding Effect 71
6.5. Litigation 71
6.6. No Default; Material Contractual Obligations 71
6.7. ERISA 71
6.8. Use of Proceeds; Margin Regulations 72
6.9. Financial Condition; Financial Statements;
Solvency; etc 72
6.10. Subsidiaries; Properties 73
6.11. Taxes 73
6.12. Environmental Matters 74
6.13. Regulated Entities 75
6.14. Employee and Labor Matters 75
6.15. Intellectual Property 75
6.16. Existing Indebtedness 76
6.17. True and Complete Disclosure 76
6.18. Security Interests; Certain Matters
Relating to Collateral 76
6.19. Representations and Warranties in Credit
Documents and Transaction Documents 77
6.20. Van Leer Acquisition 78
6.21. Broker's Fees 78
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1. Financial Statements, etc 78
7.2. Certificates; Other Information 79
7.3. Notices 80
7.4. Preservation of Corporate Existence, etc 81
7.5. Maintenance of Property; Insurance 81
7.6. Payment of Obligations 82
7.7. Taxes 82
7.8. Compliance with Environmental Laws 82
7.9. Compliance with ERISA 82
7.10. Inspection of Property and Books and Records 83
7.11. End of Fiscal Years; Fiscal Quarters 83
7.12. Use of Proceeds 83
7.13. Further Assurances; New Subsidiaries 83
7.14. Equal Security for Loans and Notes 84
7.15. Pledge of Additional Collateral 84
7.16. Security Interests 85
7.17. Interest Rate Protection 85
7.18. Currency and Commodity Hedging Transactions 85
7.19. Foreign Subsidiaries Security 85
7.20. Register 86
7.21. Maintenance of Credit Rating 87
7.22. Post-Closing Obligations 87
7.23. Limitations on Activities of U.S. Holdco,
Subsidiary Borrower and Dutch Holdco 90
7.24. Certain Collateral Limitations 90
ARTICLE VIII
NEGATIVE COVENANTS
8.1. Limitation on Liens; No Further Negative Pledge 91
8.2. Consolidations, Mergers and Disposition of Assets 93
8.3. Leases 95
8.4. Loans and Investments 95
8.5. Limitation on Indebtednes 98
8.6. Transactions with Affiliates 99
8.7. Use of Proceeds 99
8.8. Contingent Obligations 100
8.9. Restrictions on Subsidiaries 100
8.10. Fixed Charge Coverage Ratio; Interest
Coverage Ratio 100
8.11. Minimum Net Worth 101
8.12. Total Leverage Ratio 101
8.13. Restricted Payments 101
8.14. ERISA 102
8.15. Change in Business 102
8.16. Accounting Changes 103
8.17. Amendments to Transaction Documents 103
8.18. Capital Expenditures 103
8.19. Sale and Lease-Backs 103
8.20. Sale or Discount of Receivables 103
8.21. Creation of Subsidiaries 103
8.22. [Reserved] 103
8.23. Limitation on Other Restrictions on
Amendment of Documents 104
8.24. Limitation on Payments or Prepayments of
Indebtedness or Modification of Debt Documents 104
8.25. Consolidated Returns 104
8.26. Limitation on Contribution 104
ARTICLE IX
EVENTS OF DEFAULT
9.1. Event of Default 105
(a) Non-Payment 105
(b) Representation or Warranty 105
(c) Specific Defaults 105
(d) Other Defaults 105
(e) Cross-Default 105
(f) Insolvency; Voluntary Proceedings 106
(g) Involuntary Proceedings 106
(h) ERISA 106
(i) Monetary Judgments 106
(j) Non-Monetary Judgments 106
(k) Guarantees 107
(l) Security Documents 107
(m) Intercompany Security Documents 107
(n) Change of Control 107
(o) Environmental Events 107
(p) Van Leer Acquisition 107
(q) Permitted Receivables Transaction Issues 107
9.2. Remedies 108
9.3. Rights Not Exclusive 108
ARTICLE X
THE AGENTS
10.1. Appointment and Authorization 108
10.2. Delegation of Duties 109
10.3. Exculpatory Provisions 109
10.4. Reliance by Co-Agents 110
10.5. Notice of Default 110
10.6. Credit Decision 110
10.7. Indemnification 111
10.8. Co-Agents in Individual Capacity 111
10.9. Successor Co-Agents 111
10.10. Holders 112
10.11. Failure To Act 112
10.12. Paying Agent as Joint and Several Creditor 112
ARTICLE XI
MISCELLANEOUS
11.1. Amendments and Waivers 112
11.2. Notices 115
11.3. No Waiver; Cumulative Remedies 116
11.4. Expenses, Indemnity, etc 116
11.5. Payments Pro Rata 118
11.6. Payments Set Aside 118
11.7. Successors and Assigns 118
11.8. Assignments and Participations, etc 118
11.9. Confidentiality 120
11.10. Set-off 121
11.11. Notification of Addresses, Lending Offices, etc 121
11.12. Counterparts 121
11.13. Severability; Modification To Conform to
Law 121
11.14. No Third Parties Benefitted 121
11.15. Governing Law; Submission to Jurisdiction; Venue 122
11.16. WAIVER OF JURY TRIAL 122
11.17. Judgment 122
11.18. Survival 123
Signatures S-1
ANNEXES
Annex A Agent's Payment Offices for Offshore Currency Loans
SCHEDULES
Schedule 1.1(a)(i) Domestic Mortgaged Property at the Closing
Date; Domestic Mortgaged Property (Leased)
After the Closing Date
Schedule 1.1(a)(ii) Foreign Mortgaged Property After the
Closing Date
Schedule 1.1(a)(iii) Intercompany Mortgaged Property After
the Closing Date
Schedule 1.1(b) Letters of Credit Issued by KeyBank National
Association Under the Credit Facility Being
Refinanced and to Remain Outstanding Hereunder
Schedule 1.1(c) [Reserved]
Schedule 1.1(d) Pledged Securities
Schedule 1.1(e) Refinanced Indebtedness
Schedule 1.1(f) Timber Assets
Schedule 1.1(g) Van Leer Acquisition Documents
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 5.2(a)(iv) Local Counsel Delivering Opinions at the
Closing Date
Schedule 5.2(a)(vi) Domestic Guarantors; Foreign Guarantees
Delivered at the Closing Date; Foreign Security
Agreements Delivered at the Closing Date
Schedule 5.2(a)(vii) Intercompany Loans Delivered at the
Closing Date; Intercompany Security Agreements
Delivered at the Closing Date; Intercompany
Guarantees Delivered at the Closing Date
Schedule 6.5 Litigation
Schedule 6.7 Certain ERISA Matters
Schedule 6.10 Subsidiaries and Minority Interests
Schedule 6.11 Certain Tax Matters
Schedule 6.12 Environmental Matters
Schedule 6.15 Intellectual Property
Schedule 6.16 Indebtedness To Remain Outstanding
Schedule 6.20 Certain Consents
Schedule 7.13A Domestic Subsidiaries That Are Not Loan Parties
Schedule 7.13B Foreign Subsidiaries That at the Closing Date
Are Required To Be Loan Parties
Schedule 7.13C Foreign Subsidiaries That at the Closing Date
Are Required To Be Intercompany Guarantors
Schedule 7.22A Credit Documents and Intercompany Loan
Documents to be Delivered Within 30 Days After
the Effective Date
Schedule 7.22B Credit Documents and Intercompany Loan
Documents to be Delivered Within 60 Days After
the Effective Date
Schedule 7.24(b) Collateral To Be Released After Rating Date
Schedule 8.1(a) Certain Existing Liens as of the Effective Date
Schedule 8.2(n) Certain Scheduled Asset Sales
Schedule 8.4(n) Existing Investments and Investments To Be Made
Under Binding Agreements
Schedule 8.8 Contingent Obligations
Schedule 11.2 Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Domestic Subsidiary Guarantee and
Security Agreement
Exhibit E Form of U.S. Borrower Guarantee and Security
Agreement
Exhibit F-1 Form of Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP To Be
Delivered on the Effective Date
Exhibit F-2 Form of Local Counsel Opinion to the Domestic
Loan Parties
Exhibit F-3 Form of Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP To Be
Delivered on the Closing Date
Exhibit F-4 Form of Opinion of Counsel to Subsidiary Borrower
Exhibit G Form of Assignment and Acceptance
Exhibit H-1 Form of Dollar Term A Note
Exhibit H-2 Form of Euro Term A Note
Exhibit H-3 Form of Term B Note
Exhibit H-4 Form of Revolving Note
Exhibit H-5 Form of Swing Line Note
Exhibit I Form of Domestic Mortgage
Exhibit J Form of Interest Rate Certificate
Exhibit K Form of Non-Bank Certificate
Exhibit L Form of Perfection Certificate
Exhibit M Amendments to Organizational Documents of
Subsidiary Borrower
Exhibit N Form of Soterra Guarantee
Exhibit O Form of Landlord Lien Waiver and Access Agreement
SENIOR SECURED CREDIT AGREEMENT
This SENIOR SECURED CREDIT AGREEMENT is entered into
as of March 2, 2001, among ▇▇▇▇▇ BROS. CORPORATION, a Delaware
corporation (together with its successors, "U.S. Borrower");
GREIF SPAIN HOLDINGS, S.L., a Sociedad limitada en formacion
incorporated under the laws of Spain and pending its registra-
tion in the relevant commercial registry ("Subsidiary Borrower"
and, together with U.S. Borrower, the "Borrowers"); the several
financial institutions listed on the signature pages hereto as
"Lenders" or from time to time made party to this Agreement
pursuant to Section 11.8 (collectively, the "Lenders"; indi-
vidually, each a "Lender"); ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH,
PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, as sole Lead Arranger (to-
gether with its successors in such capacity, the "Lead Ar-
ranger"), as sole Book-Runner and as Administrative Agent (to-
gether with its successors in such capacity, the "Administra-
tive Agent"); KEYBANK NATIONAL ASSOCIATION, as Syndication
Agent (together with its successors in such capacity, the "Syn-
dication Agent"); ABN AMRO BANK N.V., as Co-Documentation Agent
(together with its successors in such capacity, a "Co-
Documentation Agent"); NATIONAL CITY BANK, as Co-Documentation
Agent (together with its successors in such capacity, a "Co-
Documentation Agent"); and THE BANK OF NOVA SCOTIA, as Paying
Agent (together with its successors in such capacity, the "Pay-
ing Agent").
NOW, THEREFORE, in consideration of the mutual agree-
ments, provisions and covenants contained herein, the parties
agree as follows:
ARTICLE I
DEFINITIONS, ETC.
1.1. Certain Defined Terms. The following terms have
the following meanings:
ABR Loan means a Loan or an L/C Advance that bears
interest based on the Alternate Base Rate. ABR Loans may only
be made in U.S. Dollars.
Account means any account (as that term is defined in
Section 9-106 of the UCC) of any Company arising from the sale
or lease of goods or rendering of services.
Acquisition means any transaction or series of re-
lated 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 Sub-
sidiary, or (c) a merger or consolidation or any other combina-
tion with another Person.
Additional Collateral - see Section 7.15.
Adjusted Working Capital means the remainder of:
(a) (i) the consolidated current assets of the Companies, less
(ii) the amount of Cash and Cash Equivalents included in such
consolidated current assets; less (b) (i) consolidated Current
Liabilities of the Companies, less (ii) the amount of short-
term Indebtedness (including Revolving Loans and current matu-
rities of long-term Indebtedness) of the Companies included in
such consolidated Current Liabilities.
Administrative Agent - see the introduction to this
Agreement.
Administrative Fee Letter - see subsection 2.11(a).
Affected Lender - see Section 4.8.
Affiliate means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with such Person. A Person
shall be deemed to control another Person if the controlling
Person possesses, directly or indirectly, the power to direct
or cause the direction of the management and policies of such
other Person, including through the ownership of voting securi-
ties or membership interests or by contract.
Agent's Payment Office means (i) in respect of pay-
ments by the Borrowers in U.S. Dollars, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other address as the
Paying Agent may from time to time specify in accordance with
Section 11.2 and (ii) in the case of payments by the Borrowers
in any Offshore Currency, as set forth in Annex A or such other
address as the Paying Agent may from time to time specify in
accordance with Section 11.2.
Agents means the Lead Arranger, the Administrative
Agent, the Syndication Agent and the Paying Agent; and Agent
means any of them.
Aggregate Outstanding Revolving Credit means, as to
any Revolving Lender at any time, an amount equal to the sum of
(a) the aggregate unpaid principal Dollar Equivalent amount at
such time of all Revolving Loans made by such Lender, (b) such
Lender's Pro Rata Share of the Effective Amount of all out-
standing L/C Obligations at such time, and (c) such Lender's
Pro Rata Share of the aggregate amount of all outstanding Swing
Line Loans.
Agreed Alternative Currency - see subsection 2.5(e).
Agreement means this Senior Secured Credit Agreement,
as amended and in effect from time to time.
Agreement Currency - see Section 11.17.
Alternate Base Rate means, for any day, with respect
to all ABR Loans, a fluctuating rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
equal to the higher of: (a) 0.50% per annum above the latest
U.S. Federal Funds Rate; and (b) the Corporate Base Rate of in-
terest announced by the Paying Agent from time to time, ▇▇▇▇▇-
ing effective on the date of announcement of said Corporate
Base Rate change.
Amortization Payments means, as to any Term Loan Fa-
cility, the scheduled repayments of the Term Loans of such Term
Loan Facility as set forth in subsections 2.9(a) and (b), and
Amortization Payment means any such scheduled repayment.
Applicable Borrower means, with respect to any Term
Loan, U.S. Borrower, and, with respect to any Revolving Loan,
U.S. Borrower or Subsidiary Borrower, as applicable, that is
the Borrower to whom such Loan was, or is to be, made.
Applicable Commitment Fee Percentage means (i) on and
after the Effective Date and prior to the Trigger Date, 0.500%,
and (ii) thereafter, the percentage per annum set forth in the
grid below opposite the Total Leverage Ratio at the end of the
most recent fiscal quarter:
Total Leverage Ratio Applicable Commitment Fee Percentage
> 3.0 to 1.0 0.500%
< 3.0 to 1.0 and
> 2.5 to 1.0 0.500%
< 2.5 to 1.0 and
> 2.0 to 1.0 0.375%
< 2.0 to 1.0 0.375%
Any change in the Total Leverage Ratio shall result in the ad-
justment of the Applicable Commitment Fee Percentage as of the
date of receipt by the Paying Agent of the Interest Rate Cer-
tificate most recently delivered pursuant to subsection 7.2(b)
to the level applicable to such new Total Leverage Ratio (and
if not delivered when due, the Total Leverage Ratio shall be
presumed to be greater than 3.0 to 1.0 until delivered).
Applicable Currency means, as to any particular pay-
ment or Loan, U.S. Dollars or the Offshore Currency in which it
is denominated or is payable.
Applicable Margin means for each category of Loan
(i) on and after the Effective Date and prior to the Trigger
Date, with respect to such Loan category specified below, the
percentage per annum set forth opposite the Total Leverage Ra-
tio of greater than 3.0 to 1.0 for such category of Loan in the
grid below, and (ii) thereafter, with respect to such Loan
category specified below, is as set forth below, the percentage
per annum set forth in the grid below opposite the Total Lever-
age Ratio at the end of the most recent fiscal quarter:
LIBOR Loans ABR Loans
Revolving Revolving
Loans and Loans and
Term A Loans Term B Loans Term A Loans Term B Loans
Total Leverage Ratio
> 3.0 to 1.0 2.75% 3.25% 1.75% 2.25%
< 3.0 to 1.0 and
> 2.5 to 1.0 2.50% 3.25% 1.50% 2.25%
< 2.5 to 1.0 and
> 2.0 to 1.0 2.25% 3.00% 1.25% 2.00%
< 2.0 to 1.0 2.00% 3.00% 1.00% 2.00%
Any change in the Total Leverage Ratio shall result in the ad-
justment of the Applicable Margin as of the date of receipt by
the Paying Agent of the Interest Rate Certificate most recently
delivered pursuant to subsection 7.2(b) to the level applicable
to such new Total Leverage Ratio (and if not delivered when
due, the Total Leverage Ratio shall be presumed to be greater
than 3.0:1.0 until delivered).
Approved Fund means, as to any Lender, any entity de-
scribed in the last sentence of "Eligible Assignee."
Asset Sale means any sale, issuance, conveyance,
transfer, lease or other disposition (including by sale-
leaseback, merger, consolidation or otherwise) by any Company,
in one or a series of related transactions, of: (a) any Equity
Interests of any Company (other than U.S. Borrower) or any
other Equity Interests of any other Person owned by any Com-
pany; (b) all or substantially all of the properties and assets
of any Company; (c) any payment, liquidation or realization on
any Investment permitted by subsection 8.4(d); or (d) other
than inventory or timber in the ordinary course of business,
any properties or assets of any Company. For the purposes of
this definition, the term "Asset Sale" shall not include
(i) any such transaction by any Company to any Domestic Loan
Party or by any Foreign Loan Party to any Foreign Loan Party,
(ii) Asset Sales not resulting in total consideration in the
aggregate for all Companies of more than the Dollar Equivalent
amount of U.S. $5,000,000 in any fiscal year of U.S. Borrower
(in each case calculated at the time of consummation thereof),
(iii) any sale, issuance, conveyance, transfer, lease or other
disposition of properties or assets of any Company permitted by
Section 8.2 (other than subsection (d), (l), (m), (n) or (o)
thereof), (iv) Takings or Destructions or loss of title to any
Collateral or Intercompany Collateral, (v) any Lien permitted
by Section 8.1, (vi) any Investment permitted by Section 8.4,
and (vii) any Restricted Payment permitted by Section 8.13.
Assignee - see subsection 11.8(a).
Assignment and Acceptance - see subsection 11.8(b).
Attorney Costs means and includes all reasonable
fees, disbursements and other charges of any law firm or other
external counsel.
Available Revolving Commitment means, as to any Re-
volving Lender at any time, an amount equal to the excess, if
any, of (a) the amount of such Lender's Revolving Commitment at
such time, over (b) the sum of (i) the aggregate unpaid princi-
pal Dollar Equivalent amount at such time of all Revolving
Loans made by such Lender, (ii) such Lender's Pro Rata Share of
the Effective Amount of all outstanding L/C Obligations at such
time, and (iii) such Lender's Pro Rata Share of the aggregate
amount of all outstanding Swing Line Loans.
Balance Sheet - see Section 6.9.
Beneficial Owner shall have the meaning assigned
thereto in Rule 13d-3 of the SEC under the Exchange Act as in
effect on the date hereof.
Benefitted Lender - see Section 2.15.
Board of Directors means, as to any Person, the Board
of Directors of such Person or a designated committee thereof.
Borrowers - see the introduction to this Agreement.
Borrowing means a borrowing hereunder consisting of
Loans of the same Facility and Type and in the same Applicable
Currency made to a Borrower on the same day by one or more
Lenders under Article II and, other than in the case of ABR
Loans or Swing Line Loans, having the same Interest Period.
Borrowing Date means any day on which a Borrowing oc-
curs under Section 2.3 or 2.17.
Business Day means any day other than a Saturday,
Sunday or other day on which commercial banks in New York, New
York are authorized or required by law to close and (i) with
respect to disbursements and payments in U.S. Dollars relating
to LIBOR Loans, a day on which dealings are carried on in the
applicable offshore U.S. Dollar interbank market, and (ii) with
respect to disbursements and payments in and calculations per-
taining to any Offshore Currency, a day on which commercial
banks are open for foreign exchange business in London, Eng-
land, and on which dealings in the relevant Offshore Currency
are carried on in the applicable offshore foreign exchange in-
terbank market in which disbursement of or payment in such Off-
shore Currency will be made or received hereunder.
Capital Adequacy Regulation means, in respect of any
Lender, any guideline, request or directive of any central bank
or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each
case, regarding capital adequacy of such Lender or of any cor-
poration controlling such Lender which is generally applicable
to banks or corporations controlling banks in any applicable
jurisdiction (and not applicable to such Lender or the corpora-
tion controlling such Lender solely due to the financial or
regulatory condition of such Lender or such corporation).
Capital Expenditures means all expenditures which, in
accordance with GAAP, would be required to be capitalized and
shown on the consolidated balance sheet of U.S. Borrower, but
excluding (i) expenditures made in connection with the replace-
ment, substitution or restoration of assets to the extent fi-
nanced (x) from insurance proceeds (or other similar recover-
ies) paid on account of the loss of or damage to the assets be-
ing replaced or restored or (y) with awards of compensation
arising from the taking by eminent domain, expropriation or
condemnation of the assets being replaced, (ii) the Van Leer
Acquisition, and (iii) acquisitions of Timber Assets made in
accordance with subsection 8.2(l).
Capital Lease, as applied to any Person, shall mean
any lease of any property (whether real, personal or mixed) by
that Person as lessee which, in conformity with GAAP, is ac-
counted for as a capital lease on the balance sheet of that
Person.
Cash means money, currency or a credit balance in a
deposit account.
Cash Collateralize means to pledge and deposit with
or deliver to the Paying Agent, for the benefit of the Paying
Agent and the Revolving Lenders, as collateral for the L/C Ob-
ligations, Cash pursuant to documentation in form and substance
reasonably satisfactory to the Paying Agent and the L/C Lender
(which documents are hereby consented to by the Lenders). De-
rivatives of such term shall have corresponding meanings. The
Borrowers hereby grant to the Paying Agent, for the benefit of
the Paying Agent, the L/C Lender and the Revolving Lenders, a
security interest in all such Cash. Cash collateral shall be
maintained in an L/C sub-account of the Collateral Account es-
tablished in accordance with the provisions of Section 9.2 of
the U.S. Borrower Guarantee and Security Agreement and the Do-
mestic Guarantee and Security Agreement. The Collateral Ac-
count shall be the property of U.S. Borrower and shall be
pledged to the Paying Agent pursuant to the Security Documents;
the investment of all such cash collateral shall be directed by
U.S. Borrower (but only in Cash Equivalents), and all income
thereon shall be the property of U.S. Borrower (subject to the
reasonable fees of The Bank of Nova Scotia relating to the ad-
ministration of such account).
Cash Equivalents means (i) any security, maturing not
more than one year after the date of acquisition, issued by the
United States of America or an instrumentality or agency
thereof and guaranteed fully as to principal, premium, if any,
and interest by the United States of America; (ii) any certifi-
cate of deposit, time deposit or bankers' acceptance (or, with
respect to non-U.S. banking institutions, similar instruments),
maturing not more than one year after the day of acquisition,
issued by any commercial banking institution that is a member
of the U.S. Federal Reserve System or a commercial banking in-
stitution organized and located in a country recognized by the
United States of America, in each case, having combined capital
and surplus and undivided profits of not less than U.S. $500
million (or the foreign currency equivalent thereof), whose
short-term debt has a rating, at the time as of which any in-
vestment therein is made, of "P-1" (or higher) according to
▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P; (iii) commercial
paper maturing not more than one year after the date of acqui-
sition issued by a corporation (other than an Affiliate or Sub-
sidiary of either Borrower) with a rating, at the time as of
which any investment therein is made, of "P-1" (or higher) ac-
cording to ▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P;
(iv) any money market deposit accounts issued or offered by a
commercial banking institution that is a member of the U.S.
Federal Reserve System or a commercial banking institution or-
ganized and located in a country recognized by the United
States of America, in each case, having combined capital and
surplus in excess of U.S. $500 million (or the foreign currency
equivalent thereof); and (v) other short-term investments util-
ized by Foreign Subsidiaries in accordance with normal invest-
ment practices for cash management not exceeding a Dollar
Equivalent amount of U.S. $10.0 million in aggregate principal
amount outstanding at any time.
CERCLA - see subsection 6.12(a)(iii).
Change in Law means the introduction of any Require-
ment of Law, or any change in any Requirement of Law or in the
interpretation or administration of any Requirement of Law.
Change of Control means the occurrence at any time of
any of the following events: (a) the Permitted Investors col-
lectively cease to own at least 40% of the voting power with
respect to the election of directors of all then outstanding
voting Equity Interests of U.S. Borrower or at least 25% of the
economic interests of the then outstanding Equity Interests of
U.S. Borrower, such calculation to be based on the proportion-
ate interest held in the net worth of U.S. Borrower (other than
as a result of a public primary registered equity offering by
U.S. Borrower of new shares issued by U.S. Borrower in such of-
fering); or (b) any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act) (other than
the Permitted Investors) is or becomes (as a result of the ac-
quisition or issuance of securities, by merger or otherwise)
the Beneficial Owner, directly or indirectly, of more than 35%
of the voting power with respect to the election of directors
of all then outstanding voting Equity Interests of U.S. Bor-
rower (other than as a result of a public primary registered
equity offering by U.S. Borrower of new shares issued by U.S.
Borrower in such offering); or (c) during any consecutive two-
year period, individuals who at the beginning of such period
constituted the Board of Directors of U.S. Borrower (together
with any new directors whose election by such board or whose
nomination for election by the shareholders of U.S. Borrower
was approved by the Permitted Investors or by a vote of 66-2/3%
of the directors then still in office who were either directors
at the beginning of such period or whose election as directors
or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Direc-
tors of U.S. Borrower then in office.
Closing Date - see Section 5.2.
Co-Agents means the Agents and the Co-Documentation
Agents; and Co-Agent means any of them.
Code means the United States Internal Revenue Code of
1986, as amended.
Co-Documentation Agent - see the introduction to this
Agreement.
Collateral means all of the U.S. Borrower Security
Agreement Collateral, Domestic Security Agreement Collateral,
the Foreign Security Agreement Collateral, the Domestic Mort-
gaged Property, the Foreign Mortgaged Property, all other prop-
erty and assets pledged as collateral under any Security Docu-
ment or, prior to the date of the Contribution, any Intercom-
pany Security Document. Collateral shall in no event include
Timber Assets, Equity Interests in Soterra LLC and CorrChoice
and the property and assets of Soterra LLC and CorrChoice.
Collateral Account shall have the meaning assigned to
such term in the U.S. Borrower Guarantee and Security Agree-
ment.
Commitment, as to each Lender, means its Dollar
Term A Commitment, Euro Term A Commitment, Term B Commitment,
Revolving Commitment or Swing Line Commitment.
Commitment Fee - see subsection 2.11(b).
Company means U.S. Borrower or any of its Subsidiar-
ies, and Companies means U.S. Borrower and all of its Subsidi-
aries collectively.
Compliance Certificate means a certificate substan-
tially in the form of Exhibit C and delivered by the Borrowers
pursuant to subsection 7.2(a).
Computation Amount - see subsection 3.8(a).
Computation Date means any date on which the Paying
Agent determines the Dollar Equivalent amount of any Offshore
Currency Loans pursuant to subsection 2.5(a) or 2.8(b).
Confidential Memorandum shall mean the Confidential
Memorandum dated February 2001, and all written supplemental
material thereto prepared by or on behalf of the Loan Parties
and transmitted to the Lenders prior to the Closing Date.
Consolidated Net Income means, for any period, the
consolidated net income of the Companies for such period;
provided, however, that there shall be excluded therefrom
(i) the income of any Person which is not a Subsidiary (but any
dividends or other distributions received in cash by any
Company from such Person shall be included in Consolidated Net
Income), (ii) unrealized gains or losses in respect of Swap
Contracts, and (iii) unrealized foreign currency transaction
gains or losses in respect of Indebtedness of any Person
denominated in a currency other than the functional currency of
such Person and permitted by Section 8.5.
Consolidated Net Worth means at the date of
determination thereof, the sum of all items which in conformity
with GAAP would be classified as stockholders' equity on a
consolidated balance sheet of U.S. Borrower at such date.
Contingent Obligation means, as to any Person, any
direct or indirect liability of such Person, whether or not
contingent, with or without recourse, (a) with respect to any
Indebtedness, Lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the
"primary obligor"), including any obligation of such Person (i)
to purchase, repurchase or otherwise acquire such primary
obligations or any security therefor, (ii) to advance or
provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or
financial condition of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect
thereof (each of (i) - (iv), a "Guaranty Obligation"); (b) with
respect to any Surety Instrument (other than any Letter of
Credit) issued for the account of such Person or as to which
such Person is otherwise liable for reimbursement of drawings
or payments; (c) to purchase any materials, supplies or other
property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property
is ever made or tendered, or such services are ever performed
or tendered; or (d) in respect of any Swap Contract, but
Contingent Obligations exclude guarantees of obligations of
Subsidiaries which do not constitute Indebtedness, customary
contractual indemnification obligations entered into in the
ordinary course of business on ordinary business terms and
obligations to adjust the purchase price relating to any
disposition of assets. The amount of any Contingent Obligation
shall (x) in the case of a Guaranty Obligation, be deemed equal
to the stated or determinable amount of the primary obligation
in respect of which such Guaranty Obligation is made or, if not
stated or if indeterminable, the maximum reasonably anticipated
liability by the applicable Person in respect thereof, and (y)
in the case of other Contingent Obligations, be equal to the
maximum reasonably anticipated liability in respect thereof.
Contractual Obligation means, as to any Person, any
term, covenant, provision or condition of any security issued
by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by
which it or any of its property or assets are bound.
Contribution - see Section 8.26.
Conversion/Continuation Date means any Business Day
on which either Borrower (i) converts Loans of a Facility from
one Type to the other Type or (ii) continues as Loans of the
same Type, but with a new Interest Period, Loans of a Facility
having Interest Periods expiring on such date.
Corporate Base Rate means the rate of interest
announced by the Paying Agent as its "corporate base rate," as
such rate is changed by the Paying Agent from time to time.
The Corporate Base Rate is not necessarily the lowest rate
charged by the Paying Agent to its customers.
CorrChoice means CorrChoice, Inc., an Ohio
corporation established pursuant to the Joint Venture Agreement
between U.S. Borrower, RDJ Holdings, Inc. and a minority
shareholder of a subsidiary of Ohio Packaging Corporation, on
November 1, 1998.
Covered Taxes means any and all Taxes other than, in
the case of each Lender or Co-Agent, Taxes of any jurisdiction
(or any political subdivision thereof) that are imposed on or
measured by such Lender's or such Co-Agent's net income or net
profits (including any franchise Taxes imposed thereon) and
that arise by reason of a former, present or future connection
between such Lender or Co-Agent and such jurisdiction (in-
cluding, without limitation, a connection arising from such
Lender or Co-Agent being or having been a citizen or resident
of such jurisdiction, or having been organized or engaged in a
trade or business in such jurisdiction, or having or having had
a permanent establishment or fixed place of business in such
jurisdiction, but excluding a connection arising solely from
such Lender or Co-Agent having executed, delivered or performed
its obligations or having received a payment under this
Agreement). For the avoidance of doubt, Covered Taxes shall
include any deductions or withholdings by a Borrower on account
of any Taxes from payments made under this Agreement or any
other Credit Document.
Credit Documents means this Agreement, each Note, the
Administrative Fee Letter, the Fee Letter, the L/C-Related
Documents, each Security Document, the Soterra Guarantee and
all other documents delivered to any Creditor in connection
herewith.
Credit Extension means and includes (a) the making of
any Loan hereunder and (b) the Issuance of any Letter of Credit
hereunder.
Credit Facilities means the Revolving Facility and
the Term Loan Facilities.
Creditor means (i) each Co-Agent, (ii) each L/C
Lender, (iii) each Lender, and (iv) each party to a Swap
Contract relating to the Loans if at the date of entering into
such Swap Contract such Person was a Lender or an Affiliate of
a Lender.
Current Liabilities means, at any time, all amounts
which, in accordance with GAAP, would be included as current
liabilities on a consolidated balance sheet of the Companies at
such time, excluding current maturities of Indebtedness.
Destruction means any and all damage to, or loss or
destruction of, all or any portion of the Collateral.
Dollar Equivalent means, at any time, (a) as to any
amount denominated in U.S. Dollars, the amount thereof at such
time, and (b) as to any amount denominated in any Offshore
Currency, the equivalent amount in U.S. Dollars as determined
by the Paying Agent at such time on the basis of the Spot Rate
for the purchase of U.S. Dollars with such Offshore Currency on
the most recent Computation Date provided for in subsection
2.5(a) or such other date as is specified herein.
Dollar Term A Commitment means a Lender's commitment
to make a Dollar Term A Loan hereunder.
Dollar Term A Facility means the term loan facility
in an aggregate principal amount of U.S. $150,000,000.
Dollar Term A Lender means a lender having a Dollar
Term A Loan.
Dollar Term A Loan - see subsection 2.1(a)(i).
Dollar Term A Note or Dollar Term A Notes - see
subsection 2.2(d).
Domestic Guarantee and Security Agreement means the
guarantee and security agreement substantially in the form of
Exhibit D entered into and delivered by each Domestic
Guarantor.
Domestic Guarantor means (i) each Domestic Subsidiary
listed in Schedule 5.2(a)(vi) that executes and delivers the
Domestic Guarantee and Security Agreement on the Closing Date
and Soterra LLC and (ii) each other Domestic Subsidiary that
shall after the Effective Date execute and deliver a joinder
agreement substantially in the form of Exhibit 3 to the
Domestic Guarantee and Security Agreement pursuant to
subsections 7.13(a) and (b).
Domestic Loan Parties means U.S. Borrower and the
Domestic Guarantors.
Domestic Mortgage means a term loan and revolving
credit fee or leasehold mortgage or deed of trust, assignment
of leases and rents, security agreement and fixture filing
creating and evidencing a Lien on a Domestic Mortgaged
Property, which shall be (i) substantially in the form of
Exhibit I, containing such schedules and including such
additional provisions and other deviations from such exhibit as
shall be necessary to conform such document to applicable local
law or as shall be required or customary under local law or
shall otherwise be reasonably required by the Paying Agent or
the Lead Arranger and (ii) dated as of the date of delivery
thereof and (iii) made by the owner of the Domestic Mortgaged
Property described therein for the benefit of the Paying Agent
for the benefit of the secured parties described therein, as
mortgagee (grantee or beneficiary), assignee and secured party,
as the same may at any time be amended, modified or
supplemented in accordance with the terms thereof and hereof.
Domestic Mortgaged Property means (i) each Real
Property designated on Schedule 1.1(a)(i) as to which the
Paying Agent shall be granted a Lien pursuant to a Domestic
Mortgage in accordance with the provisions of (a) Section 5.2
in the case of the Domestic Mortgaged Properties in which the
Domestic Loan Parties hold a fee interest (as indicated in
Schedule 1.1(a)(i)) and (b) Section 7.22 in the case of the
Domestic Mortgaged Properties in which the Domestic Loan
Parties hold a leasehold interest (as indicated in Schedule
1.1(a)(i)) and (ii) each additional Real Property as to which
the Paying Agent shall be granted a Lien pursuant to a Domestic
Mortgage delivered pursuant to Section 7.15.
Domestic Security Agreement Collateral means all
"Pledged Collateral" as defined in the Domestic Guarantee and
Security Agreement, excluding for all purposes the Equity
Interests in CorrChoice and Soterra, LLC and all property and
assets of CorrChoice and Soterra, LLC.
Domestic Security Documents means each of the U.S.
Borrower Guarantee and Security Agreement, the Domestic
Guarantee and Security Agreement, the Domestic Mortgages and
any other documents utilized to pledge to the secured parties
contemplated thereby any other property as collateral to secure
the obligations of the Domestic Loan Parties party thereto.
Domestic Subsidiary means a Subsidiary that is
incorporated under the laws of any State of the United States
or Puerto Rico or the District of Columbia and that is a direct
Subsidiary of (i) U.S. Borrower or (ii) another Domestic
Subsidiary.
Downgrade Date - see subsection 7.24(a).
Dutch Holdco means Greif Netherlands Holdings B.V., a
private company with limited liability organized under the laws
of The Netherlands and a direct wholly-owned Subsidiary of U.S.
Holdco.
EBITDA means, for any period, the sum of:
(a) Consolidated Net Income of U.S. Borrower for
such period excluding, to the extent reflected in
determining such Consolidated Net Income,
(i) extraordinary gains and losses for such period,
(ii) any gain or loss associated with the sale or write-
down of assets not in the ordinary course of business,
(iii) any deferred financing costs for such period written
off, or premiums paid, in connection with the early
extinguishment of Indebtedness hereunder, (iv) any other
non-cash or non-recurring items of income or expense
(other than any non-cash item of expense requiring an
accrual or reserve for future cash expense) and (v) any
amount of gains from the sale of timber lands in excess of
U.S. $40,000,000 for any such period, plus
(b) to the extent deducted in determining
Consolidated Net Income for such period, Interest Expense,
income tax, deferred tax expense and capital tax expense,
depreciation, depletion and amortization expense for such
period.
Subject to the last sentence hereof, prior to such time as four
full fiscal quarters of financial information of U.S. Borrower
after the Closing Date are available pursuant to this
Agreement, EBITDA shall be calculated on a pro forma basis in
accordance with Regulation S-X under the United States
Securities Act of 1933, as amended (the "Securities Act"), as
if the Van Leer Acquisition had been consummated at the
beginning of the relevant period. EBITDA for any period shall
be calculated on a pro forma basis in accordance with
Regulation S-X under the Securities Act to give pro forma
effect to any material acquisition or disposition as if it had
occurred at the beginning of such period. In addition, EBITDA
for each period ending at a date set forth below shall be
increased by the amounts set forth below opposite such date
(and not by the amount set forth opposite any other date):
Fiscal quarter ended April 30, 2001 U.S. $14,000,000
Fiscal quarter ended July 31, 2001 12,900,000
Fiscal quarter ended October 31, 2001 9,600,000
Fiscal quarter ended January 31, 2001 6,000,000
Fiscal quarter ended April 30, 2002 2,500,000
Effective Amount means with respect to any
outstanding L/C Obligations on any date, the aggregate Dollar
Equivalent amount of such L/C Obligations on such date after
giving effect to any Issuances of Letters of Credit occurring
on such date and any other changes in the aggregate Dollar
Equivalent amount of the L/C Obligations as of such date,
including as a result of any reimbursement of outstanding
unpaid drawings under any Letter of Credit or any reduction in
the maximum amount available for drawing under any Letter of
Credit taking effect on such date.
Effective Date - see Section 5.1.
Eligible Assignee means (i) a commercial bank
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
U.S. $100.0 million; (ii) a commercial bank organized under the
laws of any other country that is a member of the Organization
for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a
combined capital and surplus in a Dollar Equivalent amount of
at least U.S. $100.0 million; provided, however, that such bank
is acting through a branch or agency located in the country in
which it is organized or another country which is also a member
of the OECD; (iii) an insurance company, mutual fund or other
financial institution organized under the laws of the United
States, any state thereof, any other country that is a member
of the OECD or a political subdivision of any such country with
assets, or assets under management, in a Dollar Equivalent
amount of at least U.S. $100.0 million; (iv) any Affiliate of a
Lender; (v) any other entity (other than a natural person) that
is an "accredited investor" (as defined in Regulation D under
the United States Securities Act of 1933, as amended) that
extends credit or buys loans as one of its businesses or
investing activities including, but not limited to, insurance
companies, mutual funds and investment funds; and (vi) any
other entity consented to by the Lead Arranger, the Syndication
Agent and U.S. Borrower; provided, however, that no Person
shall be an Eligible Assignee in respect of any Revolving
Commitment unless, at the time of the proposed assignment to
such Person, such Person is able to make the Revolving Loans in
U.S. Dollars and Euros. With respect to any Lender that is a
fund or commingled investment vehicle that invests in loans,
any other fund or commingled investment vehicle that invests in
loans and is managed or advised by the same investment advisor
of such Lender or by an Affiliate of such investment advisor
shall be treated as a single Eligible Assignee.
Environmental Approvals means any approval,
determination, order, consent, authorization, certificate,
license, permit, franchise, concession or validation of, or
exemption or other action by, or filing, recording or
registration with, or notice to, any Governmental Authority
pursuant to or required under any Environmental Law.
Environmental Claims means all claims, however
asserted, by any Governmental Authority or other Person
alleging potential liability under, or responsibility for
violation of, any Environmental Law on the part of any Company.
Environmental Laws means all applicable federal,
state, local and foreign laws, common law or regulations,
treaties, orders, decrees, permits, licenses, authorizations,
judgments or injunctions issued, promulgated, approved or
entered thereunder, now or hereafter in effect in each case
relating to pollution or protection of employee health or
safety or the environment (including, without limitation,
ambient and indoor air, surface water, groundwater, soil, land
surface or subsurface, and natural resources such as wetlands,
flora and fauna) including, without limitation, laws relating
to (a) emissions, discharges, releases or threatened releases
of Hazardous Materials into the environment and (b) the
manufacture, processing, distribution, use, generation, treat-
ment, storage, disposal, transport or handling of Hazardous
Materials.
Equity Interests means, with respect to any Person,
any and all shares, interests, participations or other
equivalents, including membership interests (however
designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership
interests (whether general or limited) and any other interest
or participation that confers on a Person the right to receive
a share of the profits and losses of, or distributions of
assets of, such partnership, whether outstanding on the date
hereof or issued after the Effective Date.
ERISA means the United States Employee Retirement
Income Security Act of 1974, as amended.
ERISA Entity means any member of an ERISA Group.
ERISA Event means (a) any "reportable event," as
defined in Section 4043 of ERISA or the regulations issued
thereunder, with respect to a Pension Plan (other than an event
for which the 30-day notice period is waived); (b) the
existence with respect to any Pension Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, the failure to
make by its due date a required installment under
Section 412(m) of the Code with respect to any Pension Plan or
the failure to make any required contribution to a
Multiemployer Plan; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any
Pension Plan; (d) the incurrence by any ERISA Entity of any
liability under Title IV of ERISA with respect to the
termination of any Pension Plan; (e) the receipt by any ERISA
Entity from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Pension Plan or to
appoint a trustee to administer any Pension Plan, or the
occurrence of any event or condition which would reasonably be
expected to constitute grounds under ERISA for the termination
of, or the appointment of a trustee to administer, any Pension
Plan; (f) the incurrence by any ERISA Entity of any liability
with respect to the withdrawal or partial withdrawal from any
Pension Plan or Multiemployer Plan; (g) the receipt by any
ERISA Entity of any notice, or the receipt by any Multiemployer
Plan from any ERISA Entity of any notice, concerning the
imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; (h)
the making of any amendment to any Pension Plan which would
reasonably be expected to result in the imposition of a lien or
the posting of a bond or other security; or (i) the occurrence
of a nonexempt prohibited transaction (within the meaning of
Section 4975 of the Code or Section 406 of ERISA) which would
reasonably be expected to result in liability to a Loan Party.
ERISA Group means a Loan Party and all members of a
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which,
together with a Loan Party, are treated as a single employer
under Section 414 of the Code.
Euro and (symbol) each mean lawful money of the European
Union.
Euro Term A Commitment means a Lender's commitment to
make a Euro Term A Loan hereunder.
Euro Term A Facility means the term loan facility
denominated in Euros in an aggregate principal amount at the
Closing Date of Euro 214,961,306.94.
Euro Term A Lender means a Lender having a Euro
Term A Loan.
Euro Term A Loan - see subsection 2.1(a)(ii).
Euro Term A Note or Euro Term A Notes - see
subsection 2.2(d).
Event of Default means any of the events or circum-
stances specified in Section 9.1.
Excess Cash Flow means, for any period, the remainder of
(a) the sum, without duplication, of
(i) Consolidated Net Income for such period (calculated by
(x) excluding any gains or losses on the sale or other
disposition of assets (other than sales of inventory in
the ordinary course of business), (y) adding back the non-
cash component of all extraordinary or non-recurring items
of expense and (z) deducting the non-cash component of all
extraordinary or non-recurring items of income, in each
case to the extent taken into account in the calculation
of such Consolidated Net Income), plus (ii) all
depreciation and amortization of assets (including
goodwill and other intangible assets), non-cash interest
expense and all other non-cash charges of the Companies de-
ducted in determining Consolidated Net Income for such
period, plus (iii) any net decrease in Adjusted Working
Capital (as reflected on the audited consolidated
statement of cash flows in accordance with FAS 52) during
such period (exclusive of decreases in working capital
associated with asset sales), plus (iv) all federal,
state, local and foreign income or capital taxes (whether
paid or deferred) of the Companies deducted in determining
Consolidated Net Income for such period, minus
(b) the sum, without duplication, of (i) regularly
scheduled installment payments of principal of Term Loans
pursuant to Section 2.9, voluntary prepayments of the Term
Loans pursuant to subsection 2.7(g), prepayments of
principal of Revolving Loans pursuant to Section 2.8, the
aggregate principal amount of permanent principal payments
with respect to any other Indebtedness of the Companies,
prepayments of the Revolving Loans to the extent of any
concurrent permanent reduction in the Revolving
Commitments and the portion of any regularly scheduled
payments with respect to Capital Leases allocable to
principal, in each case made during such period (in any
such case other than to the extent any such prepayment or
payment is made from the proceeds of any capital
contribution to any Company or from any proceeds from the
issuance or sale of Equity Interests of any Company, any
incurrence of Indebtedness by any Company or from the
proceeds of any sale or other disposition of assets by any
Company or insurance proceeds (other than sales of
inventory in the ordinary course of business)), plus
(ii) Capital Expenditures for such period and cash paid in
connection with any Acquisition during such period (in any
such case other than to the extent made from any capital
contribution to any Company or from any proceeds from the
issuance or sale of Equity Interests of any Company, any
incurrence of Indebtedness by any Company or from the
proceeds of any sale or other disposition of assets by any
Company or insurance proceeds (other than sales of
inventory in the ordinary course of business)), plus
(iii) all federal, state, local and foreign income or
capital taxes paid by the Companies during such period,
plus (iv) non-cash charges added back in any previous
period pursuant to item (a)(ii) above to the extent such
charge has become a cash item in the current period, plus
(v) any net increase in Adjusted Working Capital (as
reflected on the audited consolidated statement of cash
flows in accordance with FAS 52) during such period
(exclusive of increases in working capital associated with
asset sales), plus (vi) any earnings included in EBITDA
for such period of a Receivables Co. to the extent the
terms of any Permitted Receivables Transaction prohibit
the distribution thereof to any Loan Party, plus (vii) Re-
stricted Payments made pursuant to subsections 8.13(d) and
(e).
Exchange Act means the United States Securities Ex-
change Act of 1934, as amended.
Existing Letters of Credit means the Letters of
Credit listed in Schedule 1.1(b).
Facility means any of the Dollar Term A Facility,
Euro Term A Facility, Term B Facility or the Revolving
Facility.
Fee Letter - see subsection 2.11(a).
Financial Maintenance Covenants means the covenants
set forth in Sections 8.10, 8.11, 8.12 and 8.18.
FIRREA means the United States Financial Institutions
Reform, Recovery & Enforcement Act of 1989, as amended from
time to time, and any successor statute.
Fixed Charge Coverage Ratio means, for any Test Date,
the ratio of: (a) EBITDA for the four fiscal quarters ending
on such Test Date to (b) Fixed Charges for the four fiscal
quarters ending on such Test Date.
Fixed Charges means, for any period, the sum of
(a) Interest Expense for such period to the extent paid or
payable in cash during such period (which Interest Expense
shall be calculated on a pro forma basis for the Transactions
as if they had occurred at the beginning of the relevant four
quarter period for any Test Date prior to April 30, 2002), plus
(b) the sum of all scheduled principal payments on any
Indebtedness of the Companies (including, without duplication,
any lease payments in respect of Capital Leases of the
Companies attributable to the principal component thereof for
such period but excluding any prepayment of a type contemplated
by Section 2.7 and excluding any such payments or Indebtedness
between or among any two or more Companies), plus (c) all cash
income tax expense actually paid to any Governmental Authority
by the Companies for such period (other than taxes related to
Asset Sales or other dispositions of property not in the
ordinary course of business), plus (d) Capital Expenditures
during such period (in any such case other than to the extent
made from any capital contribution to any Company or from any
proceeds from the issuance or sale of Equity Interests of any
Company, any incurrence of Indebtedness by any Company or from
the proceeds of any sale or other disposition of assets by any
Company or insurance proceeds (other than sales of inventory in
the ordinary course of business)).
Foreign Guarantee means each guarantee with respect
to the Obligations of Subsidiary Borrower executed and
delivered by each Foreign Loan Party in accordance with the
requirements of this Agreement and in form and substance
reasonably satisfactory to the Agents and the Required Lenders
and conforming to the requirements of applicable foreign law.
Foreign Guarantor means each Foreign Subsidiary that
executes and delivers a Foreign Guarantee and a Foreign
Security Agreement that are in full force and effect.
Foreign Loan Parties means Subsidiary Borrower and
the Foreign Guarantors and Foreign Loan Party means any of
them.
Foreign Mortgage means each mortgage, deed of trust,
deed to secure debt, deed of hypothecation, debenture, charge,
assignment of leases, security agreement, fixture filing or
other instrument creating and evidencing a Lien on a Foreign
Mortgaged Property, which shall (i) be in form and substance
reasonably satisfactory to the Agents and the Required Lenders,
containing such schedules and including such provisions as
shall be necessary to conform such document to applicable
foreign law or as shall be required under foreign law and
(ii) be dated as of the date of delivery thereof and made by
the owner of the Foreign Mortgaged Property described therein
in favor of or for the benefit of the Paying Agent for the
benefit of the secured parties described therein, as mortgagee
(grantee or beneficiary), assignee and secured party, as the
same may at any time be amended, modified or supplemented from
time to time in accordance with the terms thereof and hereof.
Foreign Mortgaged Property means (i) each Real
Property designated on Schedule 1.1(a)(ii) as to which the
Paying Agent shall be granted a Lien pursuant to a Foreign
Mortgage in accordance with the provisions of (a) Section 7.22
in the case of the Foreign Mortgaged Properties in which the
Foreign Loan Parties hold a fee interest (as indicated in
Schedule 1.1(a)(ii)) and (b) Section 7.22 in the case of the
Foreign Mortgaged Properties in which the Foreign Loan Parties
hold a leasehold interest (as indicated in Schedule 1.1(a)(ii))
and (ii) each additional Real Property required to be subject
to a Foreign Mortgage pursuant to Section 7.15.
Foreign Plan means any employee benefit plan,
program, policy, arrangement or agreement maintained or
contributed to by, or entered into with, a Company with respect
to employees employed outside the United States.
Foreign Security Agreement means each security
agreement executed and delivered by each Foreign Loan Party in
accordance with the requirements of this Agreement and in form
and substance reasonably satisfactory to the Agents and the
Required Lenders and conforming to the requirements of
applicable foreign law.
Foreign Security Agreement Collateral means all
property and assets pledged as collateral, or in respect of
which a security interest or other Lien is granted or attaches,
under the Foreign Security Agreements.
Foreign Security Documents means each of the Foreign
Guarantees, the Foreign Security Agreements, the Foreign
Mortgages and any other documents utilized to pledge to the
secured parties contemplated thereby any other property as
collateral to secure the obligations of the pledgor thereunder.
Foreign Subsidiary means a direct or indirect
Subsidiary of U.S. Borrower that is not a Domestic Subsidiary.
FRB means the Board of Governors of the U.S. Federal
Reserve System, and any Governmental Authority succeeding to
any of its principal functions.
GAAP means United States generally accepted
accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of
the date of determination, subject to Section 1.3(a).
Governmental Authority means any nation or
government, any state, province, canton or other political
subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof (or any central bank or similar
monetary or regulatory authority created under the Treaty of
Rome (being the treaty establishing the European Economic
Community signed in Rome, Italy on 25 March 1957, as amended)
or created by any group of nations, governments or states), the
NAIC, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by
any of the foregoing.
Guarantees means the guarantee obligations of the
Domestic Guarantors under the Domestic Guarantee and Security
Agreement and each Foreign Guarantee and each Intercompany
Guarantee.
Guarantors means each of the Domestic Guarantors and
the Foreign Guarantors.
Guaranty Obligation - see the definition of Contin-
gent Obligation.
Hazardous Materials means any pollutant, contaminant,
toxic, hazardous or extremely hazardous substance, constituent
or waste, or any other constituent, waste, material, compound
or substance including, without limitation, petroleum
(including crude oil or any fraction thereof) or any petroleum
product, subject to regulation, or which can give rise to
liability, under any Environmental Law.
Honor Date - see subsection 3.3(b).
Indebtedness of any Person means, without
duplication, (a) all indebtedness for borrowed money of such
Person; (b) all obligations issued, undertaken or assumed by
such Person as the deferred purchase price of property or
services (other than trade payables and accrued expenses
entered into in the ordinary course of business on ordinary
terms); (c) all non-contingent reimbursement or payment
obligations of such Person with respect to Surety Instruments
(such as, for example, unpaid reimbursement obligations in
respect of a drawing under a letter of credit); (d) all
obligations of such Person evidenced by notes, bonds,
debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of
property, assets or businesses; (e) all indebtedness of such
Person created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either
case with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to
repossession or sale of such property) and all obligations and
indebtedness under any synthetic lease or similar transaction;
(f) all obligations of such Person with respect to Capital
Leases; (g) all net obligations of such Person with respect to
Swap Contracts (such obligations to be equal at any time to the
aggregate net amount that would have been payable by such
Person at the most recent fiscal quarter end in connection with
the termination of such Swap Contracts at such fiscal quarter
end if terminated during or at the end of that fiscal quarter);
(h) all indebtedness of other Persons referred to in clauses
(a) through (g) above secured by (or for which the holder of
such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (in-
cluding accounts and contracts rights) owned by such Person,
even though such Person has not assumed or become liable for
the payment of such Indebtedness; and (i) all Guaranty
Obligations of such Person in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a)
through (h) above. Indebtedness shall not include (x) accounts
extended by suppliers in the ordinary course on normal trade
terms in connection with the purchase of goods and services,
(y) any Indebtedness created by the sale or discount of
receivables permitted by Section 8.20 or (z) or obligations in
respect of insurance policies or performance or surety bonds
which themselves are not guarantees of Indebtedness (nor
drafts, acceptances or similar instruments evidencing the same
or obligations in respect of letters of credit supporting the
payment of same). For purposes of Section 8.12, Indebtedness
will be defined as above except that all non-U.S. Dollar
borrowings, including U.S. Dollar borrowings converted to
another currency via forward exchange contracts, will be
converted to U.S. Dollars at the average exchange rate of the
previous twelve months.
Indemnified Person - see Section 11.4.
Independent Auditor - see subsection 7.1(a).
Insolvency Proceeding means, with respect to any
Person, (a) any case, action or proceeding with respect to such
Person before any court or by or before any other Governmental
Authority relating to bankruptcy, insolvency, reorganization,
liquidation, receivership, dissolution, sequestration,
conservatorship, winding-up or relief of debtors (or the
convening of a meeting or the passing of a resolution for or
with a view to any of the foregoing), or (b) any assignment for
the benefit of creditors, composition, marshalling of assets
for creditors, or other similar arrangement in respect of such
Person's creditors generally or any substantial portion of its
creditors.
Intellectual Property - see Section 6.15.
Intercompany Borrower means any Company that is the
borrower of an Intercompany Loan.
Intercompany Collateral means all of the Intercompany
Security Agreement Collateral, Intercompany Mortgaged Property
and any other property and assets pledged as collateral, or in
respect of which a security interest or other Lien is granted
or attaches, under any Intercompany Security Document.
Intercompany Guarantee means each guarantee with
respect to the Intercompany Loans providing for a guarantee
with respect to the Intercompany Loans executed and delivered
by each Foreign Loan Party in accordance with the requirements
of this Agreement and in form and substance satisfactory to the
Agents and the Required Lenders and conforming to the
requirements of applicable foreign law.
Intercompany Guarantor means each Foreign Subsidiary
that executes and delivers an Intercompany Guarantee and
Intercompany Security Agreement that is in full force and
effect.
Intercompany Indebtedness - see subsection 8.4(c).
Intercompany Loan means the loans made by U.S.
Borrower to certain of its Subsidiaries on the Closing Date
from the proceeds of any Loan hereunder set forth on
Schedule 5.2(a)(vii) and evidenced by notes or other
documentation (the "Intercompany Notes") in form and substance
reasonably satisfactory to the Lead Arranger and conforming to
the requirements of applicable local or foreign law.
Intercompany Loan Documents means each Intercompany
Note, each Intercompany Security Document and all other
documents delivered to any Company in connection therewith.
Intercompany Mortgage means each mortgage, deed of
trust, deed to secure debt, deed of hypothecation, debenture,
charge, assignment of leases, security agreement, fixture
filing or other instrument creating and evidencing a Lien on an
Intercompany Mortgaged Property, which shall be in form and
substance reasonably satisfactory to the Agents and the
Required Lenders, containing such schedules and including such
provisions as shall be necessary to conform such document to
applicable foreign or local law or as shall be required under
foreign or local law and which shall be dated as of the date of
delivery thereof and made by the owner of the Intercompany
Mortgaged Property described therein for the benefit of the
lender under the applicable Intercompany Loan, as mortgagee
(grantee or beneficiary), assignee and secured party, as the
same may at any time be amended, modified or supplemented in ac-
cordance with the terms thereof and hereof.
Intercompany Mortgaged Property means each Real
Property designated on Schedule 1.1(a)(iii) as to which the
party which is the creditor under any Intercompany Loan shall
be granted a Lien pursuant to an Intercompany Mortgage in
accordance with the provisions of Section 7.22 and each
additional Real Property as to which such creditor shall be
granted a Lien pursuant to an Intercompany Mortgage delivered
pursuant to Section 7.15.
Intercompany Notes-see the definition of Intercompany
Loan.
Intercompany Security Agreement means each security
agreement providing for a pledge of property with respect to
the Intercompany Loans executed and delivered by each Foreign
Loan Party in accordance with the requirements of this
Agreement and in form and substance reasonably satisfactory to
the Agents and the Required Lenders and conforming to the
requirements of local law.
Intercompany Security Agreement Collateral means all
property and assets pledged as collateral, or in respect of
which a security interest or other Lien is granted or attaches,
under the Intercompany Security Agreements.
Intercompany Security Documents means each of the
Intercompany Guarantees, the Intercompany Security Agreements,
the Intercompany Mortgages and any other documents utilized to
pledge to the secured parties contemplated thereby any other
property as collateral to secure the obligations of the pledgor
thereunder.
Interest Coverage Ratio means, for any Test Date, the
ratio of: (a) EBITDA for the four fiscal quarters ending on
such Test Date to (b) Interest Expense for the four fiscal
quarters ending on such Test Date (which Interest Expense shall
be calculated on a pro forma basis for the Transactions as if
they had occurred at the beginning of the relevant four quarter
period for any Test Date prior to April 30, 2002).
Interest Expense means, for any period, the
consolidated interest expense of the Companies for such period
on Indebtedness (including all imputed interest on Capital
Leases, capitalized interest, fees, charges and commissions on
letters of credit and net costs under Swap Contracts, but
excluding (i) amortization of fees and expenses in connection
with this Agreement and the transactions contemplated by the
foregoing, (ii) amortization in connection with Swap Contracts,
(iii) expenses relating to the sale or discount of receivables
permitted by Section 8.20, (iv) interest expense on deferred
compensation or customer deposits and (v) in the event of the
consummation of a Permitted Receivables Transaction, an amount
equal to the interest (or other fees in the nature of interest
or discount accrued and paid or payable in cash for such
period) on such Permitted Receivables Transaction); provided,
however, that interest expense shall give effect to any
currency exchange agreements which have the effect of con-
verting the currency in which the related Loan is payable.
Interest Payment Date means (a) as to any ABR Loan,
the last Business Day of each fiscal quarter and (b) as to any
LIBOR Loan, the last day of each Interest Period applicable to
such Loan; provided, however, that if any Interest Period for a
LIBOR Loan exceeds three months, the date that falls each
successive three months after the beginning of such Interest
Period also shall be an Interest Payment Date.
Interest Period means, as to any LIBOR Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which such Loan is converted
into or continued as a LIBOR Loan, as applicable, and ending on
the date one, two, three or six months thereafter as selected
by the Applicable Borrower in its Notice of Borrowing or Notice
of Conversion/Continuation, as the case may be; provided, how-
ever, that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall
be extended to the following Business Day unless, in the
case of a LIBOR Loan, the result of such extension would
be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on
the preceding Business Day;
(ii) any Interest Period for a LIBOR Loan that begins
on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall
end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period for any Revolving Loan shall
extend beyond the scheduled Termination Date and no
Interest Period with respect to any Term Loan shall extend
beyond the date when principal is due with respect to such
Term Loan unless, after giving effect thereto, the
aggregate principal amount of the Term Loans having
Interest Periods that end after such date shall be equal
to or less than the aggregate principal amount of the Term
Loans scheduled to be outstanding after giving effect to
the payments of principal required to be made on such
date.
Interest Rate Certificate means an officers'
certificate substantially in the form of Exhibit J, delivered
pursuant to subsection 7.2(b), demonstrating in reasonable
detail the calculation of the Total Leverage Ratio as of the
last day of the subject period.
Inventory means all of the inventory of the
Companies, whether now existing or existing in the future,
including, without limitation: (i) all raw materials, work in
process, parts, components, assemblies, supplies and materials
used or consumed in their business, (ii) all goods, wares and
merchandise, finished or unfinished, held for sale or lease or
leased or furnished or to be furnished under contracts of
service, and (iii) all goods returned or repossessed by any
Company.
Investment - see Section 8.4.
IRS means the United States Internal Revenue Service,
and any Governmental Authority succeeding to any of its
principal functions under the Code.
Issuance Date - see subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to
issue or to extend the expiry of, or to renew or increase the
amount of, such Letter of Credit; and the terms Issued, Issuing
and Issuance have corresponding meanings.
Judgment Currency - see Section 11.17.
L/C Advance means each L/C Lender's participation in
any L/C Borrowing in accordance with its Pro Rata Share.
L/C Amendment Application means an application form
for amendment of outstanding standby or commercial documentary
letters of credit as shall at any time be in use by the
applicable L/C Lender, as the L/C Lender shall request.
L/C Application means an application form for
issuances of standby or commercial documentary letters of
credit as shall at any time be in use by the applicable L/C
Lender, as the L/C Lender shall request.
L/C Borrowing means an extension of credit resulting
from a drawing under any Letter of Credit which shall not have
been reimbursed on the date when made nor converted into a
Borrowing of Revolving Loans under subsection 3.3(b).
L/C Commitment means the commitment of the L/C Lender
to Issue Letters of Credit from time to time Issued or
outstanding under Article III, in an aggregate Dollar
Equivalent amount not to exceed on any date an amount equal to
the lesser of U.S. $20,000,000 and the amount of the combined
Commitments of all L/C Lenders; it being understood that the
L/C Commitment is a part of the combined Revolving Commitments
of all L/C Lenders, rather than a separate, independent com-
mitment.
L/C Lender means (i) other than with respect to the
Existing Letters of Credit, The Bank of Nova Scotia or such
other Lender or Lenders selected by the Paying Agent and
reasonably satisfactory to U.S. Borrower who agree to act in
such capacity to issue Letters of Credit and (ii) with respect
solely to the Existing Letters of Credit, KeyBank National
Association.
L/C Obligations means at any time the sum of (a) the
aggregate undrawn Dollar Equivalent amount of all Letters of
Credit then outstanding, plus (b) the Dollar Equivalent amount
of all outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit,
the L/C Applications, the L/C Amendment Applications and any
other document relating to any Letter of Credit, including any
of the applicable L/C Lender's standard form documents for
letter of credit issuances.
Lead Arranger - see the introduction to this
Agreement.
Lease means any lease, sublease, franchise agreement,
license (excluding licenses of personal property), occupancy or
concession agreement.
Lender - see the introduction to this Agreement;
Lender shall include the L/C Lender and the Swing Line Lender.
Lending Office means, as to any Lender, the office or
offices of such Lender (or, in the case of any Offshore
Currency Loan, of an Affiliate of such Lender) specified to the
Paying Agent and the Borrowers as its "Lending Office" or
"Domestic Lending Office" or "Offshore Lending Office," as the
case may be.
Letter of Credit means (i) other than with respect to
the Existing Letters of Credit, any letter of credit (whether a
standby letter of credit or a commercial documentary letter of
credit) Issued by an L/C Lender pursuant to Article III and
(ii) the Existing Letters of Credit.
LIBO Rate shall mean, with respect to any LIBOR Loan
for any Interest Period therefor, the rate per annum determined
by the Paying Agent to be the arithmetic mean (rounded to the
nearest 1/100th of 1%) of the offered rates for deposits in the
Applicable Currency of such Loan with a term comparable to such
Interest Period that appears on the Dow ▇▇▇▇▇ Market Screen
3750 (as defined below) at approximately 11:00 a.m., London,
England time, on the second full Business Day preceding the
first day of such Interest Period (as adjusted for maximum
statutory reserves (if applicable)); provided, however, that
(i) if no comparable term for an Interest Period is available,
the LIBO Rate shall be determined using the weighted average of
the offered rates for the two terms most nearly corresponding
to such Interest Period and (ii) if there shall at any time no
longer exist a Dow ▇▇▇▇▇ Market Screen 3750, "LIBO Rate" shall
mean, with respect to each day during each Interest Period per-
taining to LIBOR Loans comprising part of the same borrowing,
the rate per annum equal to the rate at which the Paying Agent
is offered deposits in such Applicable Currency at
approximately 11:00 a.m., London, England time, two Business
Days prior to the first day of such Interest Period in the
London interbank market for delivery on the first day of such
Interest Period for the number of days comprised therein and in
an amount comparable to its portion of the amount of such LIBOR
Loan to be outstanding during such Interest Period. "Dow ▇▇▇▇▇
Market Screen 3750" shall mean the display designated as
Page 3750 on the Dow ▇▇▇▇▇ Market Service (or such other page
as may replace such page on such service for the purpose of
displaying the rates at which U.S. Dollar deposits are offered
by leading banks in the London interbank deposit markets).
LIBOR Loan means any Loan that bears interest based
on the LIBO Rate.
Lien means any security interest, mortgage, deed of
trust, deed to secure debt, deed of hypothec, debenture,
pledge, claim, hypothecation, assignment for security, charge
or deposit arrangement, preferential arrangement in the nature
of security or lien (statutory or other), or other encumbrance
of any kind in respect of any property (including those created
by, arising under or evidenced by any conditional sale or other
title retention agreement).
Loan means a Credit Extension by a Lender to either
Borrower under Article II or Article III, which may be a Term
Loan, a Revolving Loan, a Swing Line Loan or an L/C Advance.
Loan Parties means the Domestic Loan Parties and the
Foreign Loan Parties.
Losses means as to any Person, the losses,
liabilities, claims (including those based upon negligence,
strict or absolute liability and liability in tort), damages,
expenses, obligations, penalties, actions, judgments, Liens,
penalties, fines, suits, costs or disbursements of any kind or
nature whatsoever (including Attorney Costs in connection with
any Proceeding commenced or threatened, whether or not such
Person shall be designated a party thereto) at any time
(including following the payment of the Obligations and/or the
termination of the Commitments hereunder) incurred by, imposed
on or asserted against such Person.
Margin Stock means "margin stock" as such term is
defined in Regulation T, U or X of the FRB.
Material Adverse Change means, with respect to any
Person, a material adverse change or any condition or event
that would reasonably be expected to result in a material
adverse change in the business, operations, financial
condition, liabilities (contingent or otherwise) or prospects
of such Person, together with its Subsidiaries taken as a
whole.
Material Adverse Effect means, as of any date of
determination, (a) any event, circumstance, occurrence or
condition which has caused (or would reasonably be expected to
cause) a material adverse effect, or any condition or event
that has resulted or could reasonably be expected to result in
a material adverse effect, on the business, operations,
financial condition, liabilities (contingent or otherwise) or
prospects of the Companies taken as a whole, (b) any event,
circumstance, occurrence or condition which has caused (or
would reasonably be expected to cause) a material adverse
effect on the ability of the Loan Parties to consummate in a
timely manner the Transactions or to perform any of their
material obligations under any Credit Document or (c) any
event, circumstance, occurrence or condition which has caused
(or would reasonably be expected to cause) a material adverse
effect on the legality, binding effect or enforceability of any
Credit Document or any of the material rights and remedies of
any Creditor thereunder or the legality, priority or
enforceability of the Liens granted under the Security
Documents on a material portion of the Collateral or the value
of the Collateral.
Minimum Loan means, in respect of Loans comprising
part of the same Borrowing, or to be converted or continued
under Section 2.4, (a) in the case of ABR Loans,
U.S. $10,000,000 or a higher integral multiple of
U.S. $1,000,000; (b) in the case of LIBOR Loans that are Dollar
Term A Loans or Term B Loans, U.S. $10,000,000 or a higher
integral multiple of U.S. $1,000,000; (c) in the case of LIBOR
Loans that are Euro Term A Loans, Euro 10,000,000 or a higher
integral multiple of Euro 1,000,000; (d) in the case of Revolving
Loans that are LIBOR Loans (other than Revolving Loans made in
Euros), a minimum Dollar Equivalent amount of U.S. $10,000,000
or a higher integral multiple of the Dollar Equivalent amount
of U.S. $1,000,000; (e) in the case of Revolving Loans made in
Euros, a minimum of Euro 10,000,000 and an integral multiple of
Euro 1,000,000; and (f) in the case of Revolving Loans made in any
Applicable Currency other than U.S. Dollars or Euros, a minimum
of 10,000,000 of the applicable unit and an integral multiple
of 1,000,000 of the applicable unit.
Moody's means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
Mortgage means any Domestic Mortgage, Foreign
Mortgage or Intercompany Mortgage.
Mortgaged Property means each Domestic Mortgaged
Property, Foreign Mortgaged Property or Intercompany Mortgaged
Property.
Multiemployer Plan means a multiemployer plan within
the meaning of Section 4001(a)(3) of ERISA (i) to which any
ERISA Entity is then making or accruing an obligation to make
contributions, (ii) to which any ERISA Entity has within the
preceding five plan years made contributions, including any
Person which ceased to be an ERISA Entity during such five year
period, or (iii) with respect to which a Company could incur
liability.
NAIC means the National Association of Insurance Com-
missioners.
Net Award means the proceeds of any condemnation
award or payment payable in respect of any Taking, less the
amount of any expenses incurred in litigating, arbitrating,
compromising or settling any claim arising out of such taking.
Net Cash Proceeds means
(a) with respect to any Asset Sale, the aggregate
cash proceeds (including cash proceeds received by way of
deferred payment of principal pursuant to a note,
installment receivable, liquidation or payment of any
Investment permitted by subsection 8.4(d), reserve for
adjustment or otherwise, but only as and when received)
received by any Company pursuant to such Asset Sale, net
of (i) the direct and indirect costs relating to such
Asset Sale (including sales commissions and legal,
accounting and investment banking fees), (ii) taxes, fees,
impositions and recording charges paid or payable as a
result thereof (after taking into account any tax credits
or deductions taken in connection with such Asset Sale and
any tax sharing arrangements), (iii) amounts applied to
the repayment of any Indebtedness secured by a Lien on the
asset subject to such Asset Sale (other than the
Obligations), (iv) liabilities of the entity, or relating
to the business or assets, sold, transferred or otherwise
disposed of which are retained by any Company, (v) amounts
required to be paid to any Person (other than any Company)
owning a beneficial interest in the assets subject to the
Asset Sale, (vi) appropriate amounts to be provided by any
Company as a reserve required in accordance with GAAP
against any liabilities associated with such Asset Sale
and retained by any Company after such Asset Sale (but
upon reversal of such reserve, any amount so reserved
shall thereupon be Net Cash Proceeds), and (vii) in the
case of any Permitted Receivables Transaction, any
escrowed or pledged cash proceeds which effectively
secure, or are required to be maintained as reserves by
the applicable Receivables Co. for, the obligations of any
Company under such Permitted Receivables Transaction;
(b) with respect to any issuance of equity
securities or Indebtedness, the aggregate cash proceeds
(including cash proceeds received by way of deferred
payment of principal pursuant to a note, installment
receivable, reserve for adjustment or otherwise, but only
as and when received) received by U.S. Borrower or any of
its Subsidiaries pursuant to such issuance, net of the
direct costs relating to such issuance (including sales
and underwriter's commissions and legal, accounting and
investment banking fees) and net of, in the case of any
Permitted Receivables Transaction, any escrowed or pledged
cash proceeds which effectively secure, or are required to
be maintained as reserves by the applicable Receivables
Co. for, the Indebtedness of any Company in respect of
such Permitted Receivables Transaction; and
(c) with respect to any Taking, Destruction, or loss
of title to all or a portion of any Mortgaged Property,
the Net Award, Net Proceeds or title insurance proceeds
(net of any reasonable costs incurred to recover such
title insurance proceeds), as applicable, resulting
therefrom, to be applied as Net Cash Proceeds under this
Agreement pursuant to the provisions of the Mortgages;
provided, however, such amounts have not been applied to
restore or rebuild the Mortgaged Property so Taken or De-
stroyed as permitted or required by the applicable
Mortgage and this Agreement.
If any Company receives Net Cash Proceeds in
currency other than U.S. Dollars, the Dollar Equivalent amount
thereof shall be determined as of the earlier of (i) the date
on which such Net Cash Proceeds are required to be applied to
prepayments under Section 2.7 and (ii) the date on which such
Net Cash Proceeds are converted into the currency in which any
such prepayment will be required.
Net Proceeds means the proceeds of any insurance
payable in respect of any Destruction, less the amount of any
expenses incurred in litigating, arbitrating, compromising or
settling any claim arising out of such Destruction.
Non-Bank Certificate - see subsection 4.1(e)(i).
Notes means the Revolving Notes, the Swing Line Notes
and the Term Notes, and Note means any of them.
Notice of Borrowing means a notice in substantially
the form of Exhibit A.
Notice of Conversion/Continuation means a notice
substantially in the form of Exhibit B.
Obligations means all advances, debts, liabilities,
obligations, guarantees, covenants and duties arising under (i)
any Credit Document or (ii) any Swap Contract which relates to
the Loans if such Swap Contract was entered into with a Lender
or an Affiliate of a Lender, owing by any Loan Party to any
Lender, any Co-Agent or any Indemnified Person, whether direct
or indirect (including those acquired by assignment), absolute
or contingent, due or to become due, or now existing or
hereafter arising.
Officers' Certificate shall mean, as applied to any
corporation, a certificate executed on behalf of such
corporation by its Chairman of the Board (if an officer) or its
President or one of its Vice Presidents and by its Chief
Financial Officer or its Treasurer or, in the case of Foreign
Subsidiaries, officers or persons performing comparable
functions. Each Officers' Certificate with respect to the
compliance with a condition precedent or agreement hereunder
shall include (i) a statement that the signers have read such
condition or agreement and any definitions or other provisions
contained in this Agreement relating thereto, (ii) a statement
that, in the opinion of the signers, they have made or have
caused to be made such examination or investigation as is rea-
sonably necessary to enable them to express an opinion as to
whether or not such condition or agreement has been complied
with, and (iii) a statement as to whether, in the opinion of
the signers, based upon such examination or investigation, such
condition or agreement has been complied with.
Offshore Currency means at any time Euros, pounds
sterling or any Agreed Alternative Currency.
Offshore Currency L/C Obligation means any L/C
Obligation denominated in an Offshore Currency.
Offshore Currency Letter of Credit means any Letter
of Credit denominated in an Offshore Currency.
Offshore Currency Loan means any LIBOR Loan de-
nominated in an Offshore Currency.
Offshore Currency Revolving Loan means any Revolving
Loan denominated in an Offshore Currency.
Offshore U.S. Dollar Loan means any LIBOR Loan
denominated in U.S. Dollars.
Organization Documents means (i) for any corporation,
the certificate or articles of incorporation or association,
the bylaws, any unanimous shareholder agreement or declaration,
any certificate of determination or instrument relating to the
rights of preferred shareholders of such corporation, any
shareholder rights agreement or voting trust agreement, and all
applicable resolutions of the Board of Directors (or any
committee thereof) of such corporation and all other documents
of a comparable nature, (ii) for any partnership, its partner-
ship agreement, its certificate of partnership and all other
documents of the nature previously described in clause (i) as
to a corporation and (iii) for any other entity, its
organizational or governing documents and all other documents
of the nature previously described in clause (i) as to a
corporation.
Other Taxes - see subsection 4.1(g).
Overnight Rate means, for any Loan for any day, the
rate of interest per annum at which overnight deposits in the
Applicable Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined,
would be offered for such day by the Paying Agent's London
Branch to major banks in the London or other applicable
offshore interbank market. The Overnight Rate for any day
which is not a Business Day shall be the Overnight Rate for the
preceding Business Day.
Participant - see subsection 11.8(d).
Paying Agent - see the introduction to this
Agreement.
PBGC means the United States Pension Benefit Guaranty
Corporation or any successor thereto.
Pension Plan means an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV
of ERISA or subject to the minimum funding standards under
Section 412 of the Code or Section 302 of ERISA and is
maintained or contributed to by any ERISA Entity or with
respect to which a Company could incur liability.
Permitted Investors means (i) All Life Foundation,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust, ▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Living Trust, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Charitable Lead Annuity Trust, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ Living Trust, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Living Trust, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ Living Trust, ▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Living Trust, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Charitable Remainder Annuity Trust, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Living Trust; (ii) the spouses,
heirs, legatees, descendants and blood relatives to the third
degree of consanguinity of any person in clause (i); (iii) the
executors and administrators of the estate of any such person,
and any court appointed guardian of any person in clause (i) or
(ii); and (iv) any trust, family partnership or similar
investment entity for the benefit of any such person referred
to in the foregoing clause (i) or (ii) or any other persons (in-
cluding for charitable purposes), so long as one or more
members of the group consisting of the Permitted Investors have
the exclusive or a joint right to control the voting and
disposition of securities held by such trust, family partner-
ship or other investment entity.
Permitted Liens - see Section 8.1.
Permitted Receivables Transaction means any
transaction providing for the sale or financing of Accounts
(other than between the Companies); provided, however, that any
such transaction shall be consummated (a) on terms reasonably
acceptable to the Required Lenders, and (b) pursuant to
documentation in form and substance reasonably satisfactory to
the Required Lenders, as evidenced by their written approval
thereof.
Person means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture or Governmen-
tal Authority.
Plan means an employee benefit plan (as defined in
Section 3(3) of ERISA) that is maintained or contributed to by
any ERISA Entity or with respect to which a Company could incur
liability.
Pledged Securities means all the Equity Interests
described in Schedule 1.1(d), and each additional Equity
Interest as to which the Paying Agent is granted a Lien
pursuant to any Security Document.
Prior Liens means Liens which pursuant to the
provisions of any Security Document are or may be superior to
the Liens of such Security Document.
Proceeding means any claim, action, judgment, suit,
dispute, hearing, governmental investigation, arbitration (to
the extent binding on any Company) or proceeding (to the extent
known to any Company), including by or before any Governmental
Authority.
Pro Rata Share means as to any Lender in respect of
any Facility at any time, the percentage equivalent (expressed
as a decimal, rounded to the ninth decimal place) at such time
of (a) prior to termination of the Commitments in such
Facility, (i) such Lender's Commitment in such Facility divided
by (ii) the combined Commitments of all Lenders in such
Facility, or (b) after termination of the Commitments in such
Facility, (i) the aggregate outstanding principal Dollar
Equivalent amount of such Lender's Loans under such Facility,
plus (in the case of the Revolving Facility) (without
duplication) the participation of such Lender in the aggregate
Effective Amount of all L/C Obligations and the outstanding
amount of all Swing Line Loans, divided by (ii) the aggregate
Dollar Equivalent of the principal amount of all Loans
outstanding under such Facility, plus (in the case of the Re-
volving Facility) (without duplication) the Effective Amount of
all L/C Obligations.
Qualified Subsidiary means any Domestic Loan Party
other than U.S. Holdco and Soterra LLC.
Rating Date means the date on which the Credit
Facilities achieve a rating of not less than BBB- by S&P and
not less than Baa3 by ▇▇▇▇▇'▇ for purposes of Section 7.24(b).
Real Property means all right, title and interest of
any Company (including, without limitation, any leasehold
estate) in and to any and all parcels of or interests in real
property owned, leased or operated by any Company together
with, in each case, all buildings, structures, fixtures and
improvements located or erected thereon from time to time,
easements, hereditaments and appurtenances incident, belonging
or pertaining thereto.
Real Property Disclosure Requirements means any
federal, state, local or foreign laws requiring notification of
the buyer or mortgagee of real property, or notification,
registration or filing to or with any Governmental Authority,
prior to the sale or mortgage of any real property or transfer
of control of an establishment, of the actual or threatened
presence or Release into the environment, or the use, disposal
or handling of Hazardous Materials on, at, under or near the
real property to be sold or mortgaged or the establishment of
which control is to be transferred.
Receivables Co. means any special purpose Wholly-
Owned Subsidiary of U.S. Borrower organized after the Effective
Date (or such other Person reasonably agreed to by the Required
Lenders) that purchases Accounts generated by any Company in
connection with a Permitted Receivables Transaction.
Refinanced Indebtedness means the Indebtedness of the
Loan Parties outstanding as of the Effective Date immediately
before giving effect to the Refinancing and set forth on
Schedule 1.1(e).
Refinancing means the repayment by the Loan Parties
of the Refinanced Indebtedness.
Register - see Section 7.20.
Reimbursement Obligations shall mean, at any time,
the obligations of the Borrowers then outstanding, or that may
thereafter arise in respect of all Letters of Credit then
outstanding, to reimburse amounts paid by the applicable L/C
Lender in respect of any drawings under a Letter of Credit
issued for the account of such Borrower.
Release means any releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing into the indoor or
outdoor environment.
Replacement Lender - see Section 4.8.
Reports - see subsection 6.12(b).
Required Lenders means (a) at any time prior to the
Termination Date, Lenders then holding more than 50% of the sum
of (i) the then aggregate unused amount of the Commitments of
the Lenders, plus (ii) the then aggregate unpaid Dollar
Equivalent principal amount of the Loans of the Lenders, plus
(iii) (without duplication) the then aggregate Effective Amount
of the L/C Obligations of the Lenders, and (b) otherwise,
Lenders then holding more than 50% of the sum of (i) the then
aggregate unpaid Dollar Equivalent principal amount of the
Loans of the Lenders, plus (ii) (without duplication) the then
aggregate Effective Amount of the L/C Obligations of the
Lenders. For purposes of clauses (a) and (b), (x) the
principal amount of each Revolving Lender's Loans shall be
deemed to be (i) in the case of any Revolving Lender other than
the Swing Line Lender, increased by such Revolving Lender's
participations in the Swing Line Loans pursuant to Section 2.19
(whether funded or unfunded), except to the extent such
Revolving Lender shall not have funded such participations as
required pursuant to Section 2.19, and (ii) in the case of the
Swing Line Lender, decreased by the amount of the
participations of all other Revolving Lenders in its Swing Line
Loans (whether funded or unfunded), except to the extent any
such other Revolving Lender shall not have funded such
participations as required pursuant to Section 2.19) and (y)
the Effective Amount of the L/C Obligations of each Revolving
Lender shall be the amount of the participation of such Lender
in aggregate Effective Amount of all L/C Obligations. For
purposes of determining whether the Required Lenders have
approved any amendment, waiver or consent or taken any other
action hereunder, the Dollar Equivalent amount of all Offshore
Currency Loans shall be calculated on the date immediately
preceding the date such amendment, waiver or consent is to
become effective or such action is to be taken.
Required Lenders of the Affected Tranche means (i) at
any time prior to the Closing Date, Lenders holding more than
50% of the aggregate amount of the Commitments of the Lenders
of the applicable Term Loan Facility which would be adversely
affected by any amendment, waiver or consent contemplated by
clause (6)(x) of the proviso to subsection 11.1(a)(v), and
(ii) at any time after the Closing Date, Lenders holding more
than 50% of the aggregate amount of the outstanding Loans of
the Lenders of the applicable Term Loan Facility which would be
adversely affected by any amendment, waiver or consent
contemplated by clause (6)(x) of the proviso to subsection
11.1(a)(v).
Required Revolving Lenders means (a) at any time
prior to the Termination Date, Revolving Lenders then holding
more than 50% of the sum of (i) the then aggregate Available
Revolving Commitments of all Revolving Lenders, plus (ii) the
then Aggregate Outstanding Revolving Credit of all Revolving
Lenders, and (b) otherwise, Revolving Lenders then holding more
than 50% of the then Aggregate Outstanding Revolving Credit of
all Revolving Lenders. For purposes of determining whether the
Required Revolving Lenders have approved any amendment, waiver
or consent or taken any other action hereunder, the Dollar
Equivalent amount of all Offshore Currency Loans shall be
calculated on the date immediately preceding the date such
amendment, waiver or consent is to become effective or such
action is to be taken.
Requirement of Law means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority,
in each case applicable to or binding upon the Person or any of
its property or to which the Person or any of its property is
subject.
Responsible Officer means the chief executive
officer, the chief financial officer, the president or any
vice-president of the Applicable Borrower, or any other officer
having substantially the same authority and responsibility; or,
with respect to compliance with financial covenants, the chief
financial officer, the treasurer or controller of the
Applicable Borrower, or any other officer having substantially
the same authority and responsibility.
Restoration has the meaning assigned to that term in
each Mortgage.
Restricted Payment - see Section 8.13.
Revolving Commitment - see subsection 2.1(b).
Revolving Facility means the revolving multicurrency
credit facility in an aggregate principal amount equal to the
Dollar Equivalent of U.S. $150,000,000 with a letter of credit
subfacility and a swing line subfacility provided hereunder as
set forth in Sections 2.16 and 3.1.
Revolving Lender means a lender having a Revolving
Commitment or a Swing Line Commitment or holding a Revolving
Loan or a participation in an L/C Advance.
Revolving Loan - see subsection 2.1(b).
Revolving Loan Maturity Date means February 28, 2006.
Revolving Note or Revolving Notes - see subsec-
tion 2.2(d).
Same Day Funds means (i) with respect to
disbursements and payments in U.S. Dollars, immediately
available funds, and (ii) with respect to disbursements and
payments in an Offshore Currency, same day or other funds as
may be determined by the Paying Agent to be customary in the
place of disbursement or payment for the settlement of
international banking transactions in the relevant Offshore Cur-
rency.
SEC means the United States Securities and Exchange
Commission, or any Governmental Authority succeeding to any of
its principal functions.
Secured Parties has the meaning specified in the Se-
curity Documents.
Security Documents means each of the Domestic
Security Documents, the Foreign Security Documents, all UCC or
other financing statements or instruments of perfection
required by this Agreement or any other security document
described in this definition to be filed and any other
documents utilized to pledge to the Paying Agent, for the
benefit of the secured parties contemplated thereby, any other
property as collateral for the Obligations and prior to the
date of Contribution, the Intercompany Security Documents.
S&P means Standard & Poor's Ratings Group, a division
of ▇▇▇▇▇▇-▇▇▇▇, Inc., and its successors.
Significant Subsidiary means, at any date of
determination, (a) any Subsidiary that, together with its
Subsidiaries (i) for the most recent fiscal quarter of U.S.
Borrower accounted for more than 5.0% of the consolidated
revenues of U.S. Borrower and its Subsidiaries or (ii) as of
the end of such fiscal quarter, owned more than 5.0% of the
consolidated assets of U.S. Borrower and its Subsidiaries, all
as set forth on the consolidated financial statements of U.S.
Borrower for such quarter prepared in conformity with GAAP and
(b) any Subsidiary which, when aggregated with all other
Subsidiaries that are not otherwise Significant Subsidiaries
and as to which any event described in clause (e), (f) or (g)
of Section 9.1 has occurred, would constitute a Significant
Subsidiary under clause (a) of this definition.
Solvent and Solvency means, for any Person on a
particular date, that on such date (a) the fair value of the
Property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair salable value
of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person
on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will,
incur debts and liabilities beyond such Person's ability to pay
as such debts and liabilities mature, (d) such Person is not
engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Person's
Property would constitute an unreasonably small capital and
(e) such Person is able to pay its debts as they become due and
payable.
Soterra LLC means Soterra LLC, a Delaware limited
liability company and a Wholly-Owned Subsidiary of U.S.
Borrower.
Soterra Guarantee means the guarantee agreement
substantially in the form of Exhibit N entered into and
delivered by Soterra LLC.
Specified Company and Specified Companies - see
subsection 9.1(e).
Spot Rate means, with respect to any Applicable
Currency, at any date of determination thereof, the spot rate
of exchange with respect to U.S. Dollars for such date in
London that appears on the display page applicable to such
Applicable Currency on the Telerate System Incorporated Service
(or such other page as may replace such page on such service
for the purpose of displaying the spot rate of exchange in
London); provided, however, that if there shall at any time no
longer exist such a page or a relevant spot rate is not shown
on such service, the spot rate of exchange shall be determined
by reference to another similar rate publishing service
selected by the Paying Agent and if no such similar rate
publishing service is available by reference to the published
rate of the Paying Agent in effect at such date for similar
commercial transactions.
Subsidiary of a Person means any corporation,
association, partnership, limited liability company, joint
venture, business trust or other business entity of which more
than 50% of the voting stock, membership interests or other
equity interests are owned or controlled directly or indirectly
by such Person, or one or more of the Subsidiaries of such
Person, or a combination thereof. Notwithstanding the
foregoing, any joint venture or other entity which is not
majority-owned by, but is controlled (by contract or otherwise)
by, any Company shall be deemed to be a Subsidiary of U.S.
Borrower. Unless the context otherwise clearly requires, refer-
ences herein to a "Subsidiary" refer to a Subsidiary of U.S.
Borrower. The term Subsidiary shall also include any Person to
become a Subsidiary pursuant to the Van Leer Acquisition. In
no event shall the term "Subsidiary" include CorrChoice. Any
joint venture or other Person that is majority-owned, but is
not controlled (by contract or otherwise), by any Company shall
not be deemed to be a Subsidiary of U.S. Borrower.
Subsidiary Borrower - see the introduction to this
Agreement.
Supermajority Lenders of the Affected Tranche means
(i) at any time prior to the Closing Date, Lenders holding more
than 66-2/3% of the aggregate amount of the Commitments of the
Lenders of the applicable Term Loan Facility which would be
adversely affected by any amendment, waiver or consent
contemplated by clause (6)(y) of the proviso to subsection
11.1(a)(v), and (ii) at any time after the Closing Date,
Lenders holding more than 66-2/3% of the aggregate amount of
the outstanding Loans of the Lenders of the applicable Term
Loan Facility which would be adversely affected by any
amendment, waiver or consent contemplated by clause (6)(y) of
the proviso to subsection 11.1(a)(v).
Substitute Lender - see Section 2.22.
Surety Instruments means all letters of credit
(including standby and commercial), banker's acceptances, bank
guaranties, surety bonds and similar instruments.
Survey means a survey of any Mortgaged Property (and
all improvements thereon): (i) prepared by a surveyor or
engineer licensed to perform surveys in the state, province or
country where such Mortgaged Property is located, (ii) dated
(or redated) not earlier than six months prior to the date of
delivery thereof unless there shall have occurred within the
six months prior to such date (or such earlier date as shall be
reasonably acceptable to the Lead Arranger) of delivery any
material exterior construction on the site of such Mortgaged
Property, in which event such survey shall be dated (or
redated) after the completion of such construction or if such
construction shall not have been completed as of such date of
delivery, not earlier than 20 days prior to such date of
delivery, (iii) certified by the surveyor (in a manner
reasonably acceptable to the Lead Arranger) to the Paying Agent
and the Title Company, and (iv) in the case of each Domestic
Mortgaged Property, complying in all material respects with the
minimum detail requirements of the American Land Title
Association as such requirements are in effect on the date of
preparation of such survey; provided, however, that such survey
is in a form sufficient for the Title Company to remove all
standard survey exceptions from the title insurance policy (or
commitment) and issue a survey and comprehensive endorsement
with respect to such Mortgaged Property and, in the case of
each Foreign Mortgaged Property or Intercompany Mortgaged
Property, in form and substance reasonably acceptable to the
Lead Arranger.
Swap Contract means any agreement (including any
master agreement and any agreement, whether or not in writing,
relating to any single transaction) that is an interest rate
swap agreement, basis swap, forward rate agreement, commodity
swap, commodity option, equity or equity index swap or option,
bond option, interest rate option, foreign exchange agreement,
rate cap, collar or floor agreement, currency swap agreement,
cross-currency rate swap agreement, swaption, currency option
or any other, similar agreement (including any option to enter
into any of the foregoing).
Swing Line Commitment means the commitment of the
Swing Line Lender to make Swing Line Loans hereunder in an
aggregate Dollar Equivalent amount not to exceed on any date an
amount equal to the lesser of U.S. $30,000,000 and the amount
of the Commitments of the Swing Line Lender, it being
understood that the Swing Line Commitment is a part of the
Revolving Commitments rather than a separate independent commit-
ment.
Swing Line Lender means The Bank of Nova Scotia.
Swing Line Loan - see Section 2.16.
Swing Line Note or Swing Line Notes - see
subsection 2.2(d).
Syndication Agent - see the introduction to this
Agreement.
Taking means any taking of the Collateral or any
portion thereof, in or by condemnation or other eminent domain
proceedings pursuant to any Requirement of Law, general or
special, or by reason of the temporary requisition of the use
of the Collateral or any portion thereof, by any Governmental
Authority, civil or military.
Tax Returns means all returns, declarations, reports,
estimates, information returns, statements and forms or other
documents (including any related or supporting information)
required to be filed in respect of any Taxes.
Taxes means (i) any and all present or future income,
stamp, documentary, excise, property or other taxes, levies,
imposts, duties, deductions, charges, fees or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, and all liabilities with respect
thereto (including any interest, penalties, additions to tax
and expenses), including any present or future Taxes or similar
levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Credit Document and
(ii) all transferee, successor, joint and several or
contractual liability (including, without limitation, liability
pursuant to Treas. Reg. 1.1502-6 (or any similar state, local
or foreign provisions)) in respect of any items described in
clause (i).
Term A Loans means the Dollar Term A Loans and the
Euro Term A Loans.
Term B Commitment means a Lender's commitment to make
a Term B Loan hereunder.
Term B Facility means the term loan facility in an
aggregate principal amount of U.S. $400,000,000.
Term B Lender means a lender having a Term B Loan.
Term B Loan - see subsection 2.1(a)(iii).
Term B Note or Term B Notes - see subsection 2.2(d).
Term Loan Commitments means the Dollar Term A
Commitments, the Euro Term A Commitments and the Term B
Commitments of all the Lenders having such commitments.
Term Loan Facilities means the Dollar Term A
Facility, the Euro Term A Facility and the Term B Facility.
Term Loans means the loans made under the Term Loan
Facilities.
Term Notes means the Dollar Term A Notes, the Euro
Term A Notes and the Term B Notes.
Termination Date means the earlier to occur of
(i) the date 30 Business Days prior to the Revolving Loan
Maturity Date and (ii) the date on which the Revolving
Commitments are terminated or reduced to zero pursuant to Sec-
tion 2.6 or Section 9.2.
Test Date means, for any Financial Maintenance
Covenant, the last day of each fiscal quarter of U.S. Borrower
included within any period set forth in the table for such
Financial Maintenance Covenant.
Test Period means each period of four full
consecutive fiscal quarters most recently ended and for which
financial statements are or are required to be available.
Timber Assets means the timber and all Real Property
described on Schedule 1.1(f) and any timberlands purchased
solely using the proceeds from the sale of timber or the
disposition of other timberlands or acquired in exchange for
such Real Property, provided that "Timber Assets" shall not
include timber solely for purposes of subsection 8.2(l).
Timber Sale Gains means, for any period, gains
properly classified as "Gain on Timber Sales" in the audited
financial statements of the Companies for the fiscal year then
ended or in the unaudited financial statements for the fiscal
quarter then ended;
Title Company means Chicago Title Insurance Company
or such other title insurance or abstract company as shall be
retained by U.S. Borrower and reasonably acceptable to the Lead
Arranger.
Total Assets means at any date total assets of U.S.
Borrower as shown in the most recent audited financials of U.S.
Borrower prepared in conformity with GAAP.
Total Leverage Ratio means, as of the last day of any
fiscal quarter, the ratio of: (a) the sum of (i) total
consolidated Indebtedness of U.S. Borrower and the Subsidiaries
less Cash and Cash Equivalents as of such day, plus
(ii) without duplication of amounts included in clause (i), an
amount equal to the aggregate cash proceeds received by any
Company from an unrelated third party (net of amounts repaid)
from the financing pursuant to any Permitted Receivables
Transaction of Accounts which are outstanding at such Test
Date, to (b) EBITDA for the Test Period ending on such day.
Calculations under clause (i) or under clause (ii) of this
definition shall be reduced by any escrowed or pledged cash
proceeds which effectively secure the Indebtedness or the
obligations of any Company under such Permitted Receivables
Transaction to the extent not already deducted in the
calculation of total consolidated Indebtedness.
Transaction Documents means the Van Leer Acquisition
Documents, the Intercompany Loan Documents and each other
document (other than the Credit Documents) relating to the
Transactions including all appendices, annexes, schedules,
attachments and exhibits to any such document.
Transactions means the making of the Loans hereunder
on the Closing Date, the Van Leer Acquisition, the Refinancing,
and the making of Intercompany Loans from the proceeds of the
Loans on the Closing Date.
Trigger Date means the first date after the Closing
Date on which U.S. Borrower delivers financial statements
pursuant to Section 7.1 and a computation of the Total Leverage
Ratio for the first fiscal quarter ended at least six months
after the Closing Date pursuant to Section 7.2.
Type of Loan means an ABR Loan or a LIBOR Loan, as
the case may be.
UCC means the Uniform Commercial Code as in effect in
the applicable jurisdiction.
Unfunded Pension Liability means the excess of a
Pension Plan's benefit liabilities under Section 4001(a)(16) of
ERISA over the fair market value of such Plan's assets
(including all accrued contributions required to be made to the
Plan in respect of the applicable plan year), determined in
accordance with the actuarial assumptions used for funding such
Plan pursuant to Section 412 of the Code for the applicable
plan year.
Unmatured Event of Default means any event or
circumstance which, with the giving of notice, the lapse of
time, or both, would (if not cured or otherwise remedied during
such time) constitute an Event of Default.
U.S. Borrower - see the introduction to this Agree-
ment.
U.S. Borrower Guarantee and Security Agreement means
the guarantee and security agreement substantially in the form
of Exhibit E entered into and delivered by U.S. Borrower.
U.S. Borrower Security Agreement Collateral means all
"Pledged Collateral" as defined in the U.S. Borrower Guarantee
and Security Agreement.
U.S. Dollars and U.S.$ each mean lawful money of the
United States.
U.S. Federal Funds Rate means, for any day, the rate
of interest per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) 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,
however, that (a) if the day for which such rate is to be
determined 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 such rate is not so published for any
Business Day, the Federal Funds Rate for such Business Day
shall be the average rate quoted to the Paying Agent on such
Business Day on such transactions by three federal funds
brokers of recognized standing, as determined by the Paying
Agent.
U.S. Holdco means Greif US Holdings Inc., a Nevada
corporation and a wholly owned Subsidiary of U.S. Borrower.
Van Leer means Royal Packaging Industries Van Leer
N.V., a public company with limited liability organized under
the laws of The Netherlands.
Van Leer Acquisition means the acquisition by U.S.
Borrower and certain of its Subsidiaries of all the capital
stock of Van Leer pursuant to the Van Leer Acquisition
Agreement.
Van Leer Acquisition Agreement means the Share
Purchase Agreement among Huhtamaki Van Leer Oyj, a company
incorporated under the laws of Finland, as seller, and U.S.
Borrower, as purchaser, dated as of October 27, 2000 and
amended as of January 5, 2001 and as of February 28, 2001.
Van Leer Acquisition Documents means the documents
listed in Schedule 1.1(g), in each case as in effect on the
Closing Date and as amended and in effect from time to time in
accordance with Section 8.18.
Van Leer Acquisition Transactions means the Van Leer
Acquisition and the other transactions contemplated hereby and
thereby to be effected in connection therewith on or about the
Closing Date.
Wholly-Owned Subsidiary means, for any Person, any
corporation in which (other than directors' qualifying shares
or other shareholdings required by law) 100% of the Equity
Interests of each class having ordinary voting power, and 100%
of the capital stock of each other class, at the time as of
which any determination is being made, are owned, beneficially
and of record, by such Person, or by one or more of the other
Wholly-Owned Subsidiaries, or a combination thereof.
Withdrawal Liability means liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part 1 of Subtitle E of Title IV of ERISA.
1.2. Other Interpretive Provisions. (a) The
meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and subsection,
Section, Article, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to
but excluding," and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein,
(i) references to agreements (including this Agreement) and
other contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but only
to the extent such amendments and other modifications are not
prohibited by the terms of any Credit Document, and
(ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.
(e) The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
(f) This Agreement and other Credit Documents may
use several different limitations, tests or measurements to
regulate the same or similar matters. All such limitations,
tests and measurements are cumulative and shall each be
performed in accordance with their terms.
(g) This Agreement and the other Credit Documents
are the result of negotiations among and have been reviewed by
counsel to the Co-Agents, the Borrowers and the other parties,
and are the products of all parties. Accordingly, they shall
not be construed against the Lenders or any Co-Agent merely
because of a Co-Agent's or Lender's involvement in their
preparation.
(h) The words "properties" or "assets" refer to any
right, title or interest in, to or under property or assets of
any kind whatsoever, whether real, personal or mixed, and
whether tangible or intangible and including any Equity
Interests of any Person.
1.3. Accounting Principles. (a) Unless the context
otherwise clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied; provided, however,
that if U.S. Borrower notifies the Lead Arranger that the
Borrowers wish to amend any covenant in Article VIII to
eliminate the effect of any change in GAAP on the operation of
such covenant (or if the Lead Arranger notifies U.S. Borrower
that the Required Lenders wish to amend Article VIII for such
purpose), then U.S. Borrower's compliance with such covenant
shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in
a manner reasonably satisfactory to U.S. Borrower and the Re-
quired Lenders.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of U.S. Borrower.
1.4. Currency Equivalents Generally. For all
purposes of any Loan or other Credit Extension made pursuant to
this Agreement (but not for purposes of the preparation of any
financial statements delivered pursuant hereto), the equivalent
in any Offshore Currency or other currency of an amount in U.S.
Dollars, and the equivalent in U.S. Dollars of an amount in any
Offshore Currency or other currency, shall be determined at the
Spot Rate. For purposes of determining compliance with any
restriction limited to a Dollar Equivalent amount in this
Agreement (other than to the extent relating to any Loan or
other Credit Extension under this Agreement), the Dollar
Equivalent amount of transactions occurring prior to the date
of determination shall be calculated based on the Spot Rate on
the date of determination; provided, however, that if such
Dollar Equivalent amount shall be exceeded, such restriction
shall nonetheless be deemed not violated if such Dollar
Equivalent amount of such transactions was calculated based on
the relevant currency exchange rate in effect on the date of
each such transaction.
ARTICLE II
THE CREDITS
2.1. Amounts and Terms of Commitments and Loans.
(a) (i) Each Dollar Term A Lender severally agrees, on the
terms and conditions set forth herein, to make a single loan in
U.S. Dollars (each such loan, a "Dollar Term A Loan") on the
Closing Date to U.S. Borrower in the amount set forth opposite
such Lender's name under the heading "Dollar Term A Commitment"
on Schedule 2.1.
(ii) Each Euro Term A Lender severally agrees, on the
terms and conditions set forth herein, to make a single loan in
Euros (each such loan, a "Euro Term A Loan") on the Closing
Date to U.S. Borrower in the amount in Euros set forth opposite
such Lender's name under the heading "Euro Term A Commitment"
on Schedule 2.1.
(iii) Each Term B Lender severally agrees, on the
terms and conditions set forth herein, to make a single loan in
U.S. Dollars (each such loan, a "Term B Loan") on the Closing
Date to U.S. Borrower in the amount set forth opposite such
Lender's name under the heading "Term B Commitment" on Schedule
2.1.
(b) Each Revolving Lender severally agrees, on the
terms and conditions set forth herein, to make loans in U.S.
Dollars and Offshore Currencies to each of the Borrowers (each
such loan, a "Revolving Loan") from time to time on any
Business Day during the period from the Closing Date to the
Termination Date in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite
such Lender's name under the heading "Revolving Commitment" on
Schedule 2.1 (such amount, as reduced pursuant to Section 2.6
or changed as a result of one or more assignments under Section
4.8 or 11.8, such Lender's "Revolving Commitment") in such
currencies as the Applicable Borrower may request pursuant to
subsection 2.3(a) and subsection 2.5(e). The making of
Revolving Loans shall be subject to the following limitations:
(i) Borrowings of Revolving Loans on the Closing
Date shall in no event exceed the Dollar Equivalent amount
of U.S. $45,000,000;
(ii) after giving effect to any Borrowing of
Revolving Loans, the aggregate principal Dollar Equivalent
amount of all outstanding Revolving Loans, plus the
aggregate principal amount of all outstanding Swing Line
Loans, plus (without duplication) the Effective Amount of
all L/C Obligations shall not exceed the combined
Revolving Commitments of all Revolving Lenders;
(iii) after giving effect to any Borrowing of
Revolving Loans, the aggregate principal Dollar Equivalent
amount of all outstanding Offshore Currency Revolving
Loans, plus (without duplication) the Effective Amount of
all L/C Obligations in Offshore Currencies shall not
exceed U.S. $75,000,000;
(iv) the Aggregate Outstanding Revolving Credit of
any Revolving Lender shall not at any time exceed such
Revolving Lender's Revolving Commitment; and
(v) at no time shall the aggregate principal Dollar
Equivalent amount of all outstanding Revolving Loans made
to Subsidiary Borrower, plus the aggregate principal
amount of all outstanding Swing Line Loans made to
Subsidiary Borrower, plus (without duplication) the
Effective Amount of all L/C Obligations for Letters of
Credit issued for the account of Subsidiary Borrower
exceed U.S. $75,000,000.
Any Revolving Loan made under Section 2.18 or Section 3.3 shall
be made by each Revolving Lender in an amount equal to its Pro
Rata Share of the Revolving Loan made thereunder. Within the
limits of each Revolving Lender's Revolving Commitment, and
subject to the other terms and conditions hereof, each Borrower
may borrow under this subsection 2.1(b), prepay under
subsection 2.7(g), and reborrow under this subsection 2.1(b).
(c) Amounts borrowed as Term Loans which are repaid
or prepaid may not be reborrowed.
2.2. Evidence of Debt; Notes. (a) Each Lender shall
maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Applicable Borrower
to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(b) The Paying Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made
hereunder, the class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the
Applicable Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Paying Agent hereunder for
the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained
pursuant to subsection 2.2(a) or subsection 2.2(b) shall be
prima facie evidence of the existence and amounts of the
obligations recorded therein; provided, however, that the
failure of any Lender or the Paying Agent to maintain such
accounts or any error therein shall not in any manner affect
the obligation of the Applicable Borrower to repay the Loans in
accordance with the terms of this Agreement.
(d) Each Applicable Borrower's obligation to pay the
principal of, and interest on, all the Loans made to it by each
Lender shall, if requested by any Lender, be evidenced (i) if a
Dollar Term A Loan, by a promissory note substantially in the
form of Exhibit H-1, with blanks appropriately completed (each,
a "Dollar Term A Note" and, collectively, the "Dollar Term A
Notes"), (ii) if a Euro Term A Loan, by a promissory note
substantially in the form of Exhibit H-2, with blanks
appropriately completed (each, a "Euro Term A Note" and,
collectively, the "Euro Term A Notes"), (iii) if a Term B Loan,
by a promissory note substantially in the form of Exhibit H-3,
with blanks appropriately completed (each, a "Term B Note" and,
collectively, the "Term B Notes"), (iv) if a Revolving Loan, by
a promissory note substantially in the form of Exhibit H-4,
with blanks appropriately completed (each, a "Revolving Note"
and, collectively, the "Revolving Notes"), and (v) if a Swing
Line Loan, by a promissory note substantially in the form of
Exhibit H-5, with blanks appropriately completed (each, a
"Swing Line Note" and, collectively, the Swing Line Notes").
Each such Lender shall make appropriate notations on the
schedules annexed to the applicable Note of the date, amount
and maturity of each applicable Loan made by it and the amount
of each payment of principal made by the Applicable Borrower
with respect thereto. Each such Lender is irrevocably
authorized by the Applicable Borrower to make such notations on
the applicable Note and each such Lender's record shall be
prima facie evidence of the correctness of the notations
thereon; provided, however, that the failure of a Lender to
make, or an error in making, a notation on any Note with
respect to any Loan shall not limit or otherwise affect the
obligations of the Applicable Borrower hereunder or under such
Note to such Lender.
2.3. Procedure for Borrowings. (a) Each Borrowing
(other than of a Swing Line Loan) shall be made upon the
Applicable Borrower's irrevocable written notice (or telephonic
notice promptly confirmed in writing) delivered to the Paying
Agent in the form of a Notice of Borrowing (which notice must
be received by the Paying Agent prior to (i) 10:00 a.m.
(London, England time), three Business Days prior to the re-
quested Borrowing Date, in the case of Offshore Currency Loans;
(ii) 10:00 a.m. (New York City time), three Business Days prior
to the requested Borrowing Date, in the case of Offshore U.S.
Dollar Loans; and (iii) 10:00 a.m. (New York City time), one
Business Day prior to the requested Borrowing Date, in the case
of ABR Loans, and in each case not more than five Business Days
prior to the requested Borrowing Date) specifying:
(A) the amount of the Borrowing, which shall be in
an aggregate amount not less than the Minimum Loan;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Borrowing;
(D) in the case of a Borrowing of LIBOR Loans, the
duration of the Interest Period therefor; and
(E) in the case of a Borrowing of Offshore Currency
Loans, the Applicable Currency.
(b) The Dollar Equivalent amount of any Borrowing of
Offshore Currency Revolving Loans will be determined by the
Paying Agent for such Borrowing on the Computation Date
therefor in accordance with subsection 2.5(a). Upon receipt of
a Notice of Borrowing, the Paying Agent will promptly notify
each Lender thereof and of the amount of such Lender's Pro Rata
Share of the Borrowing. In the case of a Borrowing of Offshore
Currency Revolving Loans, such notice will provide the
approximate amount of each Lender's Pro Rata Share of the
Borrowing, and the Paying Agent will, upon the determination of
the Dollar Equivalent amount of the Borrowing as specified in
the Notice of Borrowing, promptly notify each Lender of the
exact amount of such Lender's Pro Rata Share of the Borrowing.
(c) Each Lender will make the amount of its Pro Rata
Share of each Borrowing available to the Paying Agent for the
account of the Applicable Borrower at the Agent's Payment
Office on the Borrowing Date requested by such Applicable
Borrower in Same Day Funds and in the requested currency (i) in
the case of a Borrowing comprised of Loans in U.S. Dollars, by
11:00 a.m. (New York City time), and (ii) in the case of a
Borrowing comprised of Offshore Currency Loans, by such time
(London, England time) as the Paying Agent may specify. The
proceeds of all such Loans will promptly be made available to
the Applicable Borrower by the Paying Agent at the Agent's
Payment Office by crediting the account of the Applicable
Borrower where requested by the Applicable Borrower with the
aggregate of the amounts made available to the Paying Agent by
the Lenders and in like funds as received by the Paying Agent.
(d) After giving effect to any Borrowing, there may
not be more than six different Interest Periods in effect for
all Dollar Term A Loans, six different Interest Periods in
effect for all Euro Term A Loans, six different Interest
Periods in effect for all Term B Loans and eight different
Interest Periods in effect for all Revolving Loans.
(e) ABR Loans shall only be made in U.S. Dollars.
2.4. Conversion and Continuation Elections for
Borrowings. (a) Either Borrower may, upon irrevocable written
notice to the Paying Agent in accordance with subsection 2.4(b)
with respect to Loans made to it:
(i) elect, as of any Business Day in the case of ABR
Loans, or as of the last day of the applicable Interest
Period, in the case of Offshore U.S. Dollar Loans, to
convert any such Loans (or any part thereof in an amount
not less than the Minimum Loan) into Loans in U.S. Dollars
of the other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Loans having Interest
Periods expiring on such day (or any part thereof in an
amount not less than the Minimum Loan);
provided, however, that if at any time the aggregate amount of
Offshore U.S. Dollar Loans in respect of any Borrowing is
reduced, by payment, prepayment or conversion of part thereof,
to be less than the Minimum Loan, such Offshore U.S. Dollar
Loans shall automatically convert into ABR Loans, and on and
after such date the right of the Applicable Borrower to
continue such Loans as, and convert such Loans into, Offshore
U.S. Dollar Loans shall terminate unless and until such Loans
are increased, by additional Borrowings or Conversions, to be
at least the Minimum Loan.
(b) The Applicable Borrower shall deliver a Notice
of Conversion/Continuation to be received by the Paying Agent
not later than (i) 10:00 a.m. (London, England time), three
Business Days prior to the Conversion/Continuation Date, if the
Loans are to be continued as Offshore Currency Loans;
(ii) 10:00 a.m. (New York City time), three Business Days prior
to the Conversion/Continuation Date, if the Loans are to be
converted into or continued as Offshore U.S. Dollar Loans; and
(iii) 10:00 a.m. (New York City time), one Business Day prior
to the Conversion/Continuation Date, if the Loans are to be
converted into ABR Loans, and in each case not more than five
Business Days prior to the Conversion/Continuation Date,
specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount and Type of Loans to be con-
verted or continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into ABR
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore U.S. Dollar Loans, the Applicable
Borrower has failed to select timely a new Interest Period to
be applicable to such Offshore U.S. Dollar Loans, the
Applicable Borrower shall be deemed to have elected to convert
such Offshore U.S. Dollar Loans into ABR Loans effective as of
the expiration date of such Interest Period. If the Applicable
Borrower has failed to select a new Interest Period to be
applicable to Offshore Currency Loans by the applicable time on
the third Business Day in advance of the expiration date of the
current Interest Period applicable thereto as provided in
subsection 2.4(b), the Applicable Borrower shall be deemed to
have elected to continue such Offshore Currency Loans on the
basis of a one month Interest Period.
(d) The Paying Agent will promptly notify each
Lender of its receipt of a Notice of Conversion/Continuation
pursuant to this Section 2.4, or, if no timely notice is
provided by the Applicable Borrower, the Paying Agent will
promptly notify each Lender of the details of any automatic
conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal
amounts of the Loans held by each Lender with respect to which
the notice was given.
(e) Unless the Required Lenders otherwise agree or
otherwise as permitted hereby, during the existence of an Event
of Default or Unmatured Event of Default, no Applicable
Borrower may elect to have a Loan converted into an Offshore
U.S. Dollar Loan or continued as a LIBOR Loan.
(f) After giving effect to any conversion or
continuation of Loans, there may not be more than six different
Interest Periods in effect for all Dollar Term A Loans, six
different Interest Periods in effect for all Euro Term A Loans,
four different Interest Periods in effect for all Term B Loans,
and eight different Interest Periods in effect for all
Revolving Loans.
2.5. Utilization of Commitments in Offshore
Currencies. (a) The Paying Agent will determine the Dollar
Equivalent amount with respect to:
(i) any Borrowing comprised of Offshore Currency
Loans three Business Days prior to the requested Borrowing
Date,
(ii) any Issuance of an Offshore Currency Letter of
Credit for the account of any Borrower as of the requested
Issuance Date,
(iii) any drawing under a Letter of Credit Issued for
the account of any Borrower in an Offshore Currency as of
the related Honor Date,
(iv) all outstanding Offshore Currency Loans, plus
the Effective Amount of all L/C Obligations under Letters
of Credit Issued for the account of any Borrower as of the
last Business Day of each month and as of any other date
selected by the Paying Agent,
(v) any ABR Loan to be made in lieu of an Offshore
Currency Loan pursuant to subsection 2.5(b) as of the
Business Day prior to the proposed Borrowing Date,
(vi) the aggregate sum (without duplication) of the
amount of all Offshore Currency Loans, plus the Effective
Amount of all L/C Obligations of the Borrowers, plus all
Swing Line Loans, immediately prior to and after giving
effect to any Revolving Loan made under Section 2.18 as of
the proposed date of the making of any such Revolving
Loan,
(vii) the aggregate sum of the amount of all Offshore
Currency Loans, plus the Effective Amount of all L/C
Obligations of the Borrowers immediately prior to and
after giving effect to any Revolving Loan made under
Section 3.3 as of the proposed date of the making of any
such Revolving Loan,
(viii) any outstanding Offshore Currency Loan as of any
redenomination date pursuant to this Section 2.5 or
Section 4.5, and
(ix) all Offshore Currency Loans, plus the Effective
Amount of all L/C Obligations on any date on which the
Revolving Commitments are reduced pursuant to Section 2.6.
(b) In the case of a proposed Borrowing under the
Revolving Facility comprised of Offshore Currency Loans, in the
event that any Revolving Lender gives notice to the Paying
Agent not later than 10:00 a.m. (London, England time) one
Business Day prior to the proposed Borrowing Date that it is
unable to fund Offshore Currency Revolving Loans at a
reasonable cost to it, such Lender shall make its Pro Rata
Share of the proposed Borrowing as an ABR Loan in the Dollar
Equivalent amount of the amount it otherwise would have made in
such Offshore Currency; provided, however, that the Lenders
shall be under no obligation to make Offshore Currency Loans in
the requested Offshore Currency as part of such Borrowing if
the Paying Agent has received notice from the Required
Revolving Lenders by 10:00 a.m. (London, England time), two
Business Days prior to the day of such Borrowing, that the
Required Revolving Lenders cannot provide Loans in the
requested Offshore Currency, in which event the Paying Agent
will promptly give notice to the Applicable Borrower that the
Borrowing in the requested Offshore Currency is not then
available, and notice thereof also will be given promptly by
the Paying Agent to the Lenders. If the Paying Agent shall
have so notified the Applicable Borrower that, pursuant to any
such notice from the Required Revolving Lenders, any such
Borrowing in a requested Offshore Currency is not then
available, such Borrower may, by notice to the Paying Agent not
later than 10:00 a.m. (London, England time) on the Business
Day prior to the requested date of such Borrowing, withdraw the
Notice of Borrowing relating to such requested Borrowing. If
the Applicable Borrower does so withdraw such Notice of
Borrowing, the Borrowing requested therein shall not occur and
the Paying Agent will promptly so notify each Lender. If the
Applicable Borrower does not so withdraw such Notice of
Borrowing, the Paying Agent will promptly so notify each Lender
and such Notice of Borrowing shall be deemed to be a Notice of
Borrowing that requests a Borrowing comprised of ABR Loans in
an aggregate amount equal to the Dollar Equivalent of the
amount of the originally requested Borrowing in the Notice of
Borrowing (however, not in excess of the aggregate Available
Revolving Commitment of all Revolving Lenders at such time);
and in such notice by the Paying Agent to each Lender the
Paying Agent will state such aggregate amount of such Borrowing
in U.S. Dollars and such Lender's Pro Rata Share thereof.
(c) In the case of a proposed continuation of
Offshore Currency Loans under the Revolving Facility for an
additional Interest Period pursuant to Section 2.4, in the
event that any Revolving Lender gives notice to the Paying
Agent that it is unable to continue Offshore Currency Revolving
Loans at a reasonable cost to it, such Lender's Loans in such
Offshore Currency shall be repaid on the last day of the
current Interest Period; provided, however, that the Lenders
shall be under no obligation to continue such Offshore Currency
Loans if the Paying Agent has received notice from the Required
Revolving Lenders by 10:00 a.m. (London, England time), three
Business Days prior to the day of such continuation, that such
Lenders cannot continue to provide Loans in the relevant
Offshore Currency, in which event the Paying Agent will
promptly give notice to the Applicable Borrower that the
continuation of such Offshore Currency Loans in the relevant
Offshore Currency is not then available, and notice thereof
also will be given promptly by the Paying Agent to the Lenders.
If the Paying Agent shall have so notified the Applicable
Borrower that, pursuant to such notice from the Required
Revolving Lenders, any such continuation of Offshore Currency
Loans is not then available, any Notice of Continua-
tion/Conversion with respect thereto shall be deemed withdrawn
and such Offshore Currency Loans shall be repaid on the last
day of the Interest Period with respect to such Offshore Cur-
rency Loans.
(d) Notwithstanding anything herein to the contrary
and in addition to the rights of the Lenders pursuant to
Section 2.10(c), during the existence of an Event of Default,
upon the request of the Required Revolving Lenders (in the case
of clause (i) of this subsection), the Lenders holding more
than 50% of the Dollar Term A Loans (in the case of clause (ii)
of this subsection), the Lenders holding more than 50% of the
Euro Term A Loans (in the case of clause (iii) of this
subsection), or the Lenders holding more than 50% of the Term B
Loans (in the case of clause (iv) of this subsection), (i) all
or any part of any outstanding LIBOR Loans under the Revolving
Facility shall be redenominated (if not Offshore U.S. Dollar
Loans) and converted into ABR Loans with effect from the last
day of the Interest Period with respect to such LIBOR Loans,
(ii) at the end of the current Interest Period therefor, each
Dollar Term A Loan shall not be continued for any Interest
Period but instead shall bear interest at a rate per annum
equal to the Applicable Margin for Dollar Term A Loans, plus
the Alternate Base Rate from time to time in effect, (iii) at
the end of the current Interest Period therefor, each Euro Term
A Loan shall not be continued for any Interest Period but
instead shall bear interest at a rate per annum equal to the
Applicable Margin for Euro Term A Loans, plus the Overnight
Rate for Euros from time to time in effect or such other rate
as may be agreed to by U.S. Borrower and the Lenders holding
more than 50% of the Euro Term A Loans and specified to the
Paying Agent, and (iv) at the end of the current Interest
Period therefor, each Term B Loan shall not be continued for
any Interest Period but instead shall bear interest at a rate
per annum equal to the Applicable Margin for Term B Loans, plus
the Alternate Base Rate from time to time in effect. The
Paying Agent will promptly notify the Applicable Borrower of
any request pursuant to the foregoing sentence.
(e) Subject to subsection 2.1(b), the Borrowers
shall be entitled, in addition to requesting Revolving Loans in
Euros and pounds sterling as permitted by subsection 2.1(b), to
request that Revolving Loans hereunder also be permitted to be
made in any other lawful currency constituting a eurocurrency
that in the opinion of the Required Revolving Lenders is at
such time freely traded in the offshore interbank foreign ex-
change markets and is freely transferable and freely
convertible into U.S. Dollars (an "Agreed Alternative Cur-
rency"). The Applicable Borrower shall deliver to the Paying
Agent any request for designation of an Agreed Alternative
Currency not later than 10:00 a.m. (London, England time), at
least ten Business Days in advance of the date of any Borrowing
hereunder proposed to be made in such Agreed Alternative
Currency. Upon receipt of any such request the Paying Agent
will promptly notify the Revolving Lenders thereof, and each
Lender will use commercially reasonable efforts to respond to
such request within two Business Days of receipt thereof. If
the Paying Agent has not received any response from a Revolving
Lender by the end of the day four Business Days prior to the
date of Borrowing to be made in such Agreed Alternative
Currency, the Paying Agent shall conclusively presume the
assent of such Lender. Each Revolving Lender may grant or
accept such request in its sole discretion. Acceptance of the
request shall require the affirmative or deemed assent of all
of the Revolving Lenders. The Paying Agent will promptly
notify the Applicable Borrower of the acceptance or rejection
of any such request.
2.6. Reduction or Termination of Commitments.
(a) The Borrowers may, upon not less than five Business Days'
prior notice to the Paying Agent, terminate the Commitments in
any Facility, or permanently reduce the Commitments in any
Facility by an aggregate amount equal to the Dollar Equivalent
of U.S. $1,000,000 or a higher integral multiple of
U.S. $1,000,000; unless, in the case of the Revolving Facility,
after giving effect thereto and to any prepayments of the
Revolving Loans made on the effective date of such termination
or reduction, the then outstanding principal Dollar Equivalent
amount of all Revolving Loans, plus (without duplication) the
Effective Amount of all L/C Obligations together would exceed
the amount of the combined Revolving Commitments of all
Revolving Lenders then in effect. U.S. Borrower may, upon not
less than five Business Days' prior notice to the Paying Agent
and the Swing Line Lender, terminate or permanently reduce the
Swing Line Commitment; unless, after giving effect thereto and
to any prepayment of the Swing Line Loans made on the effective
date of such termination or reduction, the then outstanding
amount of all Swing Line Loans would exceed the amount of the
Swing Line Commitment then in effect.
(b) The aggregate amount of the Revolving
Commitments shall be automatically and permanently terminated
on the Termination Date.
(c) Once reduced in accordance with this Section,
the Commitments may not be increased or reinstated. Any
reduction of the Commitments in any Facility shall be applied
pro rata to each Lender's Commitment in such Facility. All
accrued Commitment Fees and accrued but unpaid interest in
respect of any Facility to, but not including, the effective
date of any reduction or termination of Commitments in such
Facility shall be paid on the effective date of such reduction
or termination.
2.7. Prepayments and Mandatory Commitment Reductions.
(a) Within five Business Days after the date on which the
applicable Company receives notice of collection by the Paying
Agent of the applicable Net Cash Proceeds from any Taking or
Destruction or loss of title to any Collateral or Intercompany
Collateral delivered to it as loss payee in accordance with the
provisions of the applicable Security Document or Intercompany
Security Document, a Dollar Equivalent amount equal to 100% of
such Net Cash Proceeds shall be applied as set forth in
subsection 2.7(f); provided, however, that (i) so long as no
Event of Default or Unmatured Event of Default then exists,
such proceeds shall not be required to be so applied on such
date to the extent that the Borrowers have delivered an
Officers' Certificate to the Paying Agent on or prior to such
date stating that such Net Cash Proceeds shall be used to
replace or restore (in accordance with the procedures of the
applicable Security Document or Intercompany Security Document)
any properties or assets in respect of which such proceeds were
paid or to invest in assets or property constituting Collateral
(with respect to any such event regarding Collateral of any
Company) or Intercompany Collateral (with respect to any such
event regarding Intercompany Collateral of any Foreign
Subsidiary) (in accordance with the procedures set forth in the
applicable Security Document or Intercompany Security Documents
and in compliance with Section 7.15) within 360 days following
the date of the receipt of such proceeds (which certificate
shall set forth the estimates of the proceeds to be so
expended), (ii) any and all replacement or restored property
and assets shall constitute Additional Collateral and shall be
made subject to the Lien of the Domestic Security Documents or
Foreign Security Documents or Intercompany Security Documents,
as the case may be, in accordance with the provisions of
Section 7.15, (iii) such Net Cash Proceeds shall be deposited
and maintained in the Collateral Account and applied in the
manner contemplated in the U.S. Borrower Guarantee and Security
Agreement, and (iv) if all or any portion of such Net Cash
Proceeds not so applied pursuant to clause (i) is not so used
within such 360-day period, such remaining portion shall be
applied on the last day of such period (or the next preceding
Business Day if such last day is not a Business Day) as set
forth in subsection 2.7(f); the Borrowers hereby covenant and
agree that they shall not, and shall not cause or permit any
Subsidiary to, reinvest any such Net Cash Proceeds other then
as stated in such Officers' Certificate.
(b) Within 90 days after the end of each fiscal year
of U.S. Borrower ending on or after October 31, 2001, a Dollar
Equivalent amount equal to 50% of Excess Cash Flow for such
fiscal year shall be applied as set forth in subsection 2.7(f).
(c) (i) Within five Business Days after the receipt
by any Company of Net Cash Proceeds from any Asset Sale, a
Dollar Equivalent amount equal to 100% of such Net Cash
Proceeds shall be applied as set forth in subsection
2.7(f); provided, however, that (i) so long as no Event of
Default or Unmatured Event of Default then exists, such
proceeds shall not be required to be so applied on such
date to the extent that the Borrowers have delivered an
Officers' Certificate to the Paying Agent on or prior to
such date stating that such Net Cash Proceeds shall be
invested in assets or property and, if such Asset Sale is
of Collateral, such asset or property acquired by such
investment shall be U.S. Borrower Security Agreement
Collateral, Domestic Security Agreement Collateral or
Domestic Mortgaged Property, as the case may be (with
respect to any Asset Sale of Collateral by any Company),
or Foreign Security Agreement Collateral (with respect to
any Asset Sale of Collateral by any Foreign Subsidiary)
and shall be made subject to the Lien of the Domestic
Security Documents, as the case may be, in accordance with
Section 7.15 within 360 days following the date of such
Asset Sale (which certificate shall set forth the
estimates of the proceeds to be so expended) (and, in the
case of any Asset Sale of Timber Assets, such reinvestment
shall be limited solely to timberlands), (ii) such Net
Cash Proceeds shall be deposited and maintained in the
Collateral Account and applied in the manner contemplated
in the U.S. Borrower Guarantee and Security Agreement, and
(iii) if all or any portion of such Net Cash Proceeds not
so applied pursuant to clause (i) is not so used as
described in such Officers' Certificate within such 360-
day period, such remaining portion shall be applied on the
last day of such period (or the next preceding Business
Day if such last day is not a Business Day) as set forth
in subsection 2.7(f); the Borrowers hereby covenant and
agree that they shall not, and shall not cause or permit
any Subsidiary to, reinvest any such Net Cash Proceeds
other then as stated in such Officers' Certificate.
(ii) Within five Business Days after the receipt by
any Company of any cash recovery pursuant to any purchase
price adjustment or as a direct or indirect result of any
action, suit, proceeding or settlement in respect of any
default or breach of any provision of the Van Leer
Acquisition Agreement (other than any such cash received
as a result of any loss, cost or expense paid or payable
by any Company to any third party in connection with such
recovery), a Dollar Equivalent amount equal to 100%
thereof shall be applied as set forth in subsection
2.7(f).
(d) Concurrently with the receipt of any Net Cash
Proceeds from the issuance or incurrence of any Indebtedness by
any Company (other than any Indebtedness permitted by
Section 8.5, except subsections 8.5(i) and (m)), a Dollar
Equivalent amount equal to 100% of such Net Cash Proceeds shall
be applied as set forth in subsection 2.7(f) (it being
understood that any issuance of any Indebtedness convertible
into or exchangeable or exercisable for Equity Interests of
U.S. Borrower shall be subject to this subsection 2.7(d) and
not subsection 2.7(e) below).
(e) Concurrently with the receipt of any Net Cash
Proceeds from any capital contribution to U.S. Borrower or from
the issuance or sale of any Equity Interests of U.S. Borrower
or any other direct or indirect parent of U.S. Borrower
(excluding an amount not to exceed an aggregate since the
Closing Date of U.S. $20,000,000 of proceeds from any such
issuance and excluding the proceeds of issuances under stock op-
tion or similar plans to officers, directors, management and
employees), a Dollar Equivalent amount equal to 50% of such Net
Cash Proceeds shall be applied as set forth in subsection
2.7(f) (it being understood that any issuance of any
Indebtedness convertible into or exchangeable or exercisable
for Equity Interests of U.S. Borrower shall not be subject to
this subsection 2.7(e) but instead shall be subject to
subsection 2.7(d) above).
(f) The amounts required by subsections (a)-(e) of
this Section 2.7 shall first be applied pro rata among the Term
Loan Facilities (based on the Dollar Equivalent amount of the
then remaining Loans under each such Facility) and, as to each
Term Loan Facility, pro rata to the remaining Amortization
Payments under such Term Loan Facility as set forth in the
relevant subsection of Section 2.9. Subject to subsection
2.10(b), all prepayments of Term Loans shall be made together
with all accrued interest thereon and any amounts required by
Section 4.4, and all such payments shall be applied to the
payment of interest and such Section 4.4 amounts before
application to principal. The Revolving Commitments shall be
reduced in an amount equal to the Net Cash Proceeds of any
Permitted Receivables Transaction on the date of consummation
thereof. Notwithstanding the foregoing, any holder of Term B
Loans may, to the extent that Term A Loans are then outstanding
after giving effect to any then applicable prepayment, elect
not to have mandatory prepayments applied to such holder's Term
B Loans, in which case the aggregate amount so declined shall
be applied to the Term A Loans pro rata (based on the Dollar
Equivalent amount of the then remaining Loans under each such
Facility) and to the Amortization Payments remaining thereunder
pro rata. To the extent that the amount to be applied to the
prepayment of Term Loans exceeds the aggregate amount of Term
Loans then outstanding, the Revolving Commitments shall be per-
manently reduced by the Dollar Equivalent amount of such
excess.
(g) Subject to Section 4.4, any Applicable Borrower
may, at any time or from time to time, ratably prepay, without
premium or penalty, Loans under the Revolving Facility or under
the Term Loan Facilities in whole or in part, in an aggregate
Dollar Equivalent principal amount of at least U.S. $1,000,000
and a higher integral multiple of 1,000,000 units of the
Applicable Currency. The Applicable Borrower shall deliver a
notice of prepayment in accordance with Section 11.2 to be
received by the Paying Agent not later than (i) 10:00 a.m.
(London, England time), three Business Days in advance of the
prepayment date, if the Loans to be prepaid are LIBOR Loans,
and (ii) 10:00 a.m. (New York City time), one Business Day
prior to the prepayment date, if the Loans to be prepaid are
ABR Loans (and in each case on not more than five Business
Days' prior notice). Such notice of prepayment shall specify
the date and amount of such prepayment and whether such pre-
payment is of ABR Loans, LIBOR Loans, or any combination
thereof, whether Revolving Loans or Term Loans are being
prepaid and the Applicable Currency. Such notice shall not
thereafter be revocable by the Applicable Borrower. The Paying
Agent will promptly notify each Lender thereof and of such
Lender's Pro Rata Share of such prepayment. If such notice is
given by any Applicable Borrower, such Applicable Borrower
shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified
therein, together with accrued interest to each such date on
the amount prepaid and any amounts required pursuant to Section
4.4. Each such prepayment (if a prepayment of Term Loans)
shall be applied pro rata among the Term Loan Facilities (based
on the Dollar Equivalent amount of the then remaining amounts
of the Amortization Payments of the Term Loan Facilities) and,
as to each Term Loan Facility, pro rata to the then remaining
amounts of the Amortization Payments under such Term Loan
Facility, subject, however, to clause (iii) of subsection
2.7(h). Notwithstanding the foregoing, any holder of Term B
Loans may, to the extent that Term A Loans are then outstanding
after giving effect to any then applicable prepayment, elect
not to have optional prepayments applied to such holder's Term
B Loans, in which case the aggregate amount so declined shall
be applied to the Term A Loans pro rata (based on the Dollar
Equivalent amount of the then remaining Loans under each such
Facility) and to the Amortization Payments remaining thereunder
pro rata.
(h) With respect to each prepayment of Loans
pursuant to this Section 2.7, the Applicable Borrower may
designate the Types of Loans which are to be repaid and the
specific Borrowing(s) under the affected Facility pursuant to
which made; provided, however, that (i) LIBOR Loans made
pursuant to a specific Facility may be designated for
prepayment only on the last day of an Interest Period
applicable thereto unless all LIBOR Loans made pursuant to such
Facility with Interest Periods ending on such date of
prepayment and all ABR Loans made pursuant to such Facility
have been paid in full; (ii) if any prepayment of LIBOR Loans
made pursuant to a single Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount
less than the Minimum Loan, such Borrowing shall be immediately
converted into, if such Borrowing is Offshore U.S. Dollar
Loans, ABR Loans, and, if such Borrowing is Offshore Currency
Loans, Offshore Currency Loans having an Interest Period of one
month; and (iii) each repayment of any Loans made pursuant to a
Borrowing shall be applied pro rata among such Loans, unless an
Applicable Borrower shall have become obligated to make any
payment pursuant to Section 4.1, in which case such Applicable
Borrower may prepay the Loans held solely by the Lender or
Lenders to which it is obligated to make such payment. In the
absence of a designation by the Applicable Borrower as
described in the preceding sentence, the Paying Agent shall,
subject to the above, make such designation in its sole
discretion with a view, but no obligation, to minimize funding
losses owing under Section 4.4. Notwithstanding the foregoing,
if the amount of any prepayment of Loans required under this
Section 2.7 shall be in excess of the amount of the ABR Loans
at the time outstanding, only the portion of the amount of such
prepayment as is equal to the amount of such outstanding ABR
Loans shall be immediately prepaid and, at the election of the
Applicable Borrower, the balance of such required prepayment
shall be either (i) deposited in the Collateral Account and
applied to the prepayment of LIBOR Loans on the last day of the
then next-expiring Interest Period for LIBOR Loans (with all
interest accruing thereon for the account of U.S. Borrower
(subject to the reasonable fees of The Bank of Nova Scotia
relating to the administration of such account), or (ii)
prepaid immediately, together with any amounts owing to the
Lenders under Section 4.4. Notwithstanding any such deposit in
the Collateral Account, interest shall continue to accrue on
such Loans until prepayment.
2.8. Currency Exchange Fluctuations. (a) U.S.
Borrower will implement and maintain internal controls to
monitor the borrowings and repayments of Loans by the Loan
Parties and the issuance of and drawings under Letters of
Credit, with the object of preventing any request for a Credit
Extension that would result in the Aggregate Outstanding
Revolving Credit with respect to all of the Revolving Lenders
(including the Swing Line Lender) being in excess of the
aggregate Revolving Commitments then in effect and of promptly
(but in any event within 15 Business Days) identifying and
remedying any circumstance where, by reason of changes in
exchange rates, the Aggregate Outstanding Revolving Credit with
respect to all of the Revolving Lenders exceeds the aggregate
Revolving Commitments then in effect.
(b) Subject to Section 4.4, if on any Computation
Date the Paying Agent shall have determined that the Aggregate
Outstanding Revolving Credit of all of the Revolving Lenders
exceeds the combined Revolving Commitments of all Revolving
Lenders by more than the Dollar Equivalent amount of
U.S. $7,500,000 due to a change in applicable rates of exchange
between U.S. Dollars, on the one hand, and Offshore Currencies,
on the other hand, then the Paying Agent shall give notice to
the Borrowers that a prepayment of Loans (or, if no Revolving
Credit Loans are outstanding, payment of unreimbursed drawings
under Letters of Credit, or if none thereof, Cash
Collateralization of outstanding Letters of Credit) is required
under this subsection, and the Borrowers agree if such excess
shall not have been prepaid within 30 days of such notice or
during such 30 days such excess has not been eliminated by
changes in currency exchange rates thereupon to make pre-
payments (by such repayment of Loans, payment of unreimbursed
drawings or Cash Collateralization) of their respective pro
rata portion of such excess (determined by reference to the
aggregate Dollar Equivalent amount of each Borrower's
outstanding Revolving Loans, plus (without duplication) the
Effective Amount of all L/C Obligations relative to the total
of such amounts for each Borrower) such that, after giving
effect to such prepayment (or payment or Cash Collateralization
and changes in currency exchange rates), the Aggregate
Outstanding Revolving Credit of all of the Revolving Lenders
does not exceed the combined Revolving Commitments of all Re-
volving Lenders.
2.9. Repayment. (a) U.S. Borrower shall repay the
Dollar Term A Loans and the Euro Term A Loans on the Business
Day immediately prior to the payment dates set forth below in
the percentages of the aggregate outstanding principal amount
thereof on the Closing Date set forth below:
Payment Date Dollar Term A Loans Euro Term A Loans
July 31, 2001 2.5% 2.5%
October 31, 2001 2.5% 2.5%
January 31, 2002 2.5% 2.5%
April 30, 2002 2.5% 2.5%
July 31, 2002 3.75% 3.75%
October 31, 2002 3.75% 3.75%
January 31, 2003 3.75% 3.75%
April 30, 2003 3.75% 3.75%
July 31, 2003 5.0% 5.0%
October 31, 2003 5.0% 5.0%
January 31, 2004 5.0% 5.0%
April 30, 2004 5.0% 5.0%
July 31, 2004 6.25% 6.25%
October 31, 2004 6.25% 6.25%
January 31, 2005 6.25% 6.25%
April 30, 2005 6.25% 6.25%
July 31, 2005 7.5% 7.5%
October 31, 2005 7.5% 7.5%
January 31, 2006 7.5% 7.5%
February 28, 2006 7.5% 7.5%
(b) U.S. Borrower shall repay the Term B Loans on
the Business Day immediately prior to the payment dates set
forth below in the installments set forth below:
Term B Loans
Payment Date (U.S. $)
July 31, 2001 1,000,000
October 31, 2001 1,000,000
January 31, 2002 1,000,000
April 30, 2002 1,000,000
July 31, 2002 1,000,000
October 31, 2002 1,000,000
January 31, 2003 1,000,000
April 30, 2003 1,000,000
July 31, 2003 1,000,000
October 31, 2003 1,000,000
January 31, 2004 1,000,000
April 30, 2004 1,000,000
July 31, 2004 1,000,000
October 31, 2004 1,000,000
January 31, 2005 1,000,000
April 30, 2005 1,000,000
July 31, 2005 1,000,000
October 31, 2005 1,000,000
January 31, 2006 1,000,000
April 30, 2006 1,000,000
July 31, 2006 1,000,000
October 31, 2006 1,000,000
January 31, 2007 1,000,000
April 30, 2007 1,000,000
July 31, 2007 94,000,000
October 31, 2007 94,000,000
January 31, 2008 94,000,000
February 28, 2008 94,000,000
(c) Each Amortization Payment as set forth above in
subsections 2.9(a) and (b) shall be automatically adjusted upon
application of any prepayment pursuant to Section 2.7.
(d) Until the Revolving Loan Maturity Date, the
Borrowers shall from time to time immediately prepay the
Revolving Loans (and/or provide cover for L/C Obligations as
specified in subsection 2.9(e)) in such amounts as shall be
necessary so that at all times the Aggregate Outstanding
Revolving Credit of all of the Revolving Lenders shall not
(other than as a result of a change in currency exchange rates)
exceed the Revolving Commitments of all of the Revolving
Lenders, such amount to be applied, first, to Revolving Loans
outstanding and, second, as cover for L/C Obligations
outstanding as specified in subsection 2.9(e).
(e) In the event that the Borrowers shall be
required pursuant to subsection 2.9(d) to provide cover for L/C
Obligations, the Borrowers shall effect the same by paying to
the Paying Agent immediately available funds in an amount equal
to the required amount (which amount shall be held in the
Collateral Account), which funds shall be retained by the
Paying Agent pursuant to the Collateral Account as collateral
security in the first instance for the L/C Obligations until
such time as all Letters of Credit shall have been terminated
and all of the L/C Obligations paid in full.
(f) All outstanding Revolving Loans (including Swing
Line Loans) shall be repaid in full on the Revolving Loan
Maturity Date.
2.10. Interest. (a) Each Loan (other than any
Swing Line Loan) shall, except as otherwise provided herein,
bear interest on the outstanding principal amount thereof from
the applicable Borrowing Date at a rate per annum equal to the
LIBOR Rate or the Alternate Base Rate, as the case may be (and
subject to the Applicable Borrower's right to convert to the
other Type of Loans under Section 2.4), plus the Applicable
Margin. Each Swing Line Loan shall bear interest at the rate
per annum equal to the then applicable Alternate Base Rate for
Revolving Loans, plus the Applicable Margin for Revolving Loans
that are ABR Loans.
(b) Interest on each Loan shall be paid in arrears
on each Interest Payment Date. Interest shall also be paid on
the date of any prepayment of Loans pursuant to Section 2.7 for
the portion of the Loans so prepaid; provided, however, that in
the event that any Term Loans that are ABR Loans are prepaid
pursuant to Section 2.7, interest accrued on such Loans shall
be payable on the next succeeding Interest Payment Date there-
after (or at final maturity, if earlier).
(c) Notwithstanding subsections (a) and (b) of this
Section 2.10, if any amount of principal of or interest on any
Loan, or any other amount payable hereunder or under any other
Credit Document, is not paid in full when due (whether at
stated maturity, by acceleration, demand or otherwise), the
Applicable Borrower agrees, to the extent permitted by
applicable law, to compensate the Lenders for additional
administrative and other costs they will thereafter incur and
to pay interest on such unpaid principal or other amount from
the date such amount becomes due until the date such amount is
paid in full, after as well as before any entry of judgment
thereon, payable on demand, at a rate per annum equal to (i) in
the case of principal due in respect of any Loan prior to the
end of an Interest Period applicable thereto, the rate
otherwise applicable to such Loan, plus 2%, and (ii) in the
case of any other amount, (x) if such amount is payable in U.S.
Dollars, the Alternate Base Rate from time to time in effect,
plus the Applicable Margin (but not less than 0) for ABR Loans,
plus 2%, (y) if such amount is payable in Euros, the Overnight
Rate from time to time in effect, plus 2%, and (z) if such
amount is payable in a currency other than U.S. Dollars and
Euros, the Overnight Rate from time to time in effect, plus the
Applicable Margin for LIBOR Loans under the applicable Facility
from time to time in effect, plus 2%.
(d) Anything herein to the contrary notwithstanding,
the obligations of each Applicable Borrower to any Lender
hereunder shall be subject to the limitation that payments of
interest shall not be required for any period for which
interest is computed hereunder, to the extent (but only to the
extent) that contracting for or receiving such payment by such
Lender would be contrary to the provisions of any law
applicable to such Lender limiting the highest rate of interest
that may be lawfully contracted for, charged or received by
such Lender, and in such event the Applicable Borrower shall
pay such Lender interest at the highest rate permitted by
applicable law.
2.11. Fees. In addition to certain fees described in Section 3.8:
(a) Arrangement Fees; Agency Fees. U.S. Borrower
shall pay fees to the Lead Arranger as required by the
letter agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation
and U.S. Borrower dated January 24, 2001 (the "Fee
Letter"). U.S. Borrower shall pay fees to the Paying
Agent for the Paying Agent's own account as required by
the letter agreement between the Paying Agent and U.S.
Borrower dated February 27, 2001 (the "Administrative Fee
Letter"). All fees paid under the Fee Letter and the
Administrative Fee Letter shall be paid solely in U.S. Dol-
lars.
(b) Commitment Fees. The Borrowers shall pay to the
Paying Agent for the account of each Revolving Lender a
facility fee computed at a rate per annum equal to the
Applicable Commitment Fee Percentage (the "Commitment
Fee") on the average daily amount of such Lender's unused
Revolving Commitment, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter.
Such Commitment Fee shall accrue from the Effective Date
to the earlier of the Termination Date and the date on
which the Revolving Commitments have been terminated in
full and shall be due and payable quarterly in arrears on
the last Business Day of each fiscal quarter (commencing
April 30, 2001) through the Termination Date or such
earlier date as the Revolving Commitments have been ter-
minated in full. The Commitment Fee shall be paid solely
in U.S. Dollars.
2.12. Computation of Fees, Interest and Dollar
Equivalent Amount. (a) All computations of the Commitment Fee
shall be made on the basis of a year of 360 days and actual
days elapsed. All other computations of interest and fees
shall be made on the basis of a 360-day year and actual days
elapsed, except that interest on ABR Loans shall be made on the
basis of a 365 or 366-day year, as the case may be, and the
actual number of days elapsed. Interest and fees shall accrue
during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
If a Loan is repaid on the day on which it is made, one day's
interest shall accrue at the rate per annum applicable thereto
as determined in accordance with Section 2.10 shall be paid.
(b) Each determination of an interest rate or a
Dollar Equivalent amount by the Paying Agent shall be
conclusive and binding on each Applicable Borrower and the
Lenders in the absence of manifest error. The Paying Agent
will, at the request of the Applicable Borrower or any Lender,
deliver to the Borrowers or such Lender, as the case may be, a
statement showing the calculations used by the Paying Agent in
determining any interest rate or Dollar Equivalent amount.
2.13. Payments by Each Applicable Borrower.
(a) All payments to be made by each Applicable Borrower shall
be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by each
Applicable Borrower shall be made to the Paying Agent for the
account of the Lenders or at the Agent's Payment Office.
Except as otherwise expressly provided herein, all payments by
each Applicable Borrower (i) with respect to principal of,
interest on, and any other amount relating to any Offshore
Currency Loan, shall be made in the Offshore Currency in which
such Loan is denominated or payable, and (ii) with respect to
all other amounts payable hereunder, shall be made in U.S.
Dollars. Such payments shall be made in Same Day Funds and
(x) in the case of Offshore Currency payments, no later than
such time on the dates specified herein as may be determined by
the Paying Agent (and advised in writing to each Applicable
Borrower) to be necessary for such payment to be credited on
such date in accordance with normal banking procedures in the
place of payment, and (y) in the case of any U.S. Dollar
payments, no later than 11:00 a.m. (New York City time) on the
date specified herein. The Paying Agent will promptly
distribute to each Lender its Pro Rata Share of such payment
received by it for the account of the Lenders in like funds as
received. Any payment received by the Paying Agent later than
the time specified in clause (x) or (y) above, as applicable,
shall be deemed to have been received on the following Business
Day, and any applicable interest or fee shall continue to
accrue.
(b) Whenever any payment is due on a day other than
a Business Day, such payment shall be made on the following
Business Day, and such extension of time shall be included in
the computation of interest or fees, as the case may be.
(c) Unless the Paying Agent receives notice from an
Applicable Borrower prior to the date on which any payment is
due to the Lenders that such Applicable Borrower will not make
such payment in full as and when required, the Paying Agent may
assume that such Applicable Borrower has made such payment in
full to the Paying Agent on such date in Same Day Funds, and
the Paying Agent may (but shall not be required to), in
reliance upon such assumption, distribute to each Lender on
such due date an amount equal to the amount then due such
Lender. If and to the extent an Applicable Borrower has not
made such payment in full to the Paying Agent, each Lender
shall repay to the Paying Agent on demand such amount
distributed to such Lender, together with interest thereon at
(i) in the case of a payment in an Offshore Currency, the
Overnight Rate, or (ii) in the case of a payment in U.S.
Dollars, the U.S. Federal Funds Rate, in each case for each day
from the date such amount is distributed to such Lender until
the date repaid.
2.14. Payments by the Lenders to the Paying
Agent. (a) Unless the Paying Agent receives notice from a
Lender on or prior to the Closing Date or, with respect to any
Borrowing after the Closing Date, at least one Business Day
prior to the date of such Borrowing, that such Lender will not
make available as and when required hereunder to the Paying
Agent for the account of the Applicable Borrower the amount of
that Lender's Pro Rata Share of the Borrowing, the Paying Agent
may assume that such Lender has made such amount available to
the Paying Agent in Same Day Funds on the Borrowing Date, and
the Paying Agent may (but shall not be required to), in
reliance upon such assumption, make available to the Applicable
Borrower on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available
to the Paying Agent in Same Day Funds and the Paying Agent in
such circumstances has made available to the Applicable Bor-
rower such amount, such Lender shall on the Business Day
following such Borrowing Date make such amount available to the
Paying Agent, together with interest at (i) in the case of a
payment in an Offshore Currency, the Overnight Rate, and
(ii) in the case of a payment in U.S. Dollars, at the U.S.
Federal Funds Rate, in each case for each day during such
period. A notice of the Paying Agent submitted to any Lender
with respect to amounts owing under this subsection (a) shall
be conclusive, absent manifest error. If such amount is so
made available, such payment to the Paying Agent shall
constitute such Lender's Loan on the date of Borrowing for all
purposes of this Agreement. If such amount is not made
available to the Paying Agent on the Business Day following the
Borrowing Date, the Paying Agent will notify the Applicable
Borrower of such failure to fund and, upon demand by the Paying
Agent, the Applicable Borrower shall pay such amount to the
Paying Agent for the Paying Agent's account, together with
interest thereon for each day elapsed since the date of such
Borrowing at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on
any Borrowing Date shall not relieve any other Lender of its
obligation hereunder (if any) to make a Loan on such Borrowing
Date, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender
on any Borrowing Date.
2.15. Adjustments. If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part
of the Obligations then due and owing to it, or receive any
collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in subsection 9.1(f) or (g), or
otherwise (except pursuant to Article IV)), in a greater
proportion than any such payment to or collateral received by
any other Lender, if any, in respect of the Obligations then
due and owing to such other Lender, such Benefitted Lender
shall purchase for cash from the other Lenders an interest (by
participation or assignment (each in accordance with Section
11.8) in such portion of each such other Lender's Obligations
owing to it, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefitted Lender to share the
excess payment or benefits of such collateral or proceeds
ratably (based upon Dollar Equivalent amounts) with each of the
Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such re-
covery, but without interest. Each Borrower expressly consents
to the foregoing arrangement and agrees that any holder of a
participation in any such Loan or L/C Obligation, as the case
may be, so purchased and any other subsequent holder of a
participation in any Loan or L/C Obligation otherwise acquired
may exercise any and all rights of set-off (in all events
subject to Section 11.10) with respect to any and all monies
owing by such Borrower to that holder as fully as if that
holder were a holder of such a Loan or L/C Obligation in the
amount of the participation held by that holder.
2.16. Swing Line Commitment. Subject to the
terms and conditions of this Agreement, the Swing Line Lender
agrees to make loans to the Borrowers on a revolving basis
(each such loan, a "Swing Line Loan") from time to time on any
Business Day during the period from the Closing Date to the
Termination Date in an aggregate principal amount at any one
time outstanding not to exceed U.S. $30,000,000; provided, how-
ever, that the sum of the amount of the aggregate principal
amount of all outstanding Swing Line Loans, plus the aggregate
principal Dollar Equivalent amount of all other outstanding
Revolving Loans, plus (without duplication) the Effective
Amount of all L/C Obligations shall not at any time exceed the
Revolving Commitments of all Revolving Lenders. All Swing Line
Loans shall be made and maintained as ABR Loans.
2.17. Borrowing Procedures for Swing Line Loans.
The Borrower requesting a Swing Line Loan shall give written or
telephonic notice to the Swing Line Lender of each proposed
Borrowing pursuant to this Section 2.17 not later than 11:00
a.m. (local time) on the proposed Borrowing Date (promptly
followed within one Business Day by delivery of a written
notice). Each such notice shall be effective upon receipt by
the Swing Line Lender and shall specify the Borrowing Date and
amount of Borrowing. Unless the Swing Line Lender has received
written notice prior to 1:00 p.m. (N.Y. time) on the proposed
Borrowing Date from the Paying Agent or any Lender (or
otherwise has knowledge) that one or more of the conditions
precedent set forth in Article V with respect to such Borrowing
is not then satisfied, the Swing Line Lender shall pay over the
requested amount to the Borrower on the requested Borrowing
Date. Each Swing Line Loan shall be made on a Business Day and
shall be in the amount of U.S. $500,000 and an integral
multiple of U.S. $250,000.
2.18. Refunding of Swing Line Loans. The Swing
Line Lender may, at any time in its sole and absolute
discretion, on behalf of the Applicable Borrower, with respect
to any Swing Line Loan (and each Borrower hereby irrevocably
directs the Swing Line Lender to act on its behalf), request
each Revolving Lender to make a Revolving Loan to the
Applicable Borrower in U.S. Dollars in an amount equal to such
Revolving Lender's Pro Rata Share of the principal amount of
the Swing Line Loans outstanding on the date such notice is
given. Unless any of the events described in subsection 9.1(f)
or (g) shall have occurred (in which event the procedures of
Section 2.19 shall apply), and regardless of whether the
conditions precedent set forth in this Agreement to the making
of a Revolving Loan are then satisfied or the aggregate amount
of such Revolving Loans is not in the minimum or integral
amount otherwise required hereunder, each Revolving Lender
shall make the proceeds of its Revolving Loan available to the
Paying Agent for the account of the Swing Line Lender at the
office of the Paying Agent in New York prior to 11:00 a.m. (New
York City time) in Same Day Funds on the Business Day next
succeeding the date such notice is given. The proceeds of such
Revolving Loans shall be immediately applied to repay the
outstanding Swing Line Loans of the Swing Line Lender. All
Revolving Loans made pursuant to this Section 2.18 shall be
LIBOR Loans with an Interest Period of one month (but, subject
to the other provisions of this Agreement, may be continued as
LIBOR Loans with a different Interest Period). No Revolving
Lender need make any Loan under this Section 2.18 unless the
Swing Line Loan has been made in accordance with subsection
2.16. Notwithstanding any other provision of this Agreement,
if the Swing Line Lender shall have made Swing Line Loans such
that the amount of Swing Line Loans made and outstanding is in
excess of the Swing Line Commitment, no Lender shall have any
obligation to make a Revolving Loan with respect to such
excess.
2.19. Participations in Swing Line Loans.
(a) If an event described in subsection 9.1(f) or (g) occurs
(or for any reason the Revolving Lenders may not make Revolving
Loans pursuant to Section 2.18, other than as specified in the
last sentence thereof), each Revolving Lender will, upon notice
from the Paying Agent, purchase from the Swing Line Lender (and
the Swing Line Lender will sell to each such Revolving Lender)
an undivided participation interest in all outstanding Swing
Line Loans in an amount equal to its Pro Rata Share of the
outstanding principal amount of the Swing Line Loans of such
Swing Line Lender (and each Revolving Lender will immediately
transfer to the Paying Agent, for the account of the Applicable
Swing Line Lender, in immediately available funds, the amount
of its participation as if it were refunding such Swing Line
Loans pursuant to Section 2.18).
(b) Whenever, at any time after the Swing Line
Lender has received payment for any Revolving Lender's
participation interest in the Swing Line Loans pursuant to
subsection 2.19(a), the Swing Line Lender receives any payment
on account thereof, such Swing Line Lender will distribute to
the Paying Agent for the account of such Revolving Lender its
participation interest in such amount (appropriately adjusted,
in the case of interest payments, to reflect the period of time
during which such Revolving Lender's participation interest was
outstanding and funded) in like funds as received; provided,
however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving
Lender will return to the Paying Agent for the account of the
Swing Line Lender any portion thereof previously distributed by
the Swing Line Lender to it in like funds as such payment is
required to be returned by the Swing Line Lender.
(c) Notwithstanding any other provision of this
Agreement, if the Swing Line Lender shall have made Swing Line
Loans such that the amount of Swing Line Loans made and
outstanding is in excess of the Swing Line Commitment, no
Lender shall have any obligation to purchase any participation
in the amount of such excess.
2.20. Swing Line Participation Obligations
Unconditional. (a) Except as provided in Section 2.18 and
Section 2.19, each Revolving Lender's obligation to make
Revolving Loans pursuant to Section 2.18 and/or to purchase
participation interests in Swing Line Loans pursuant to Section
2.19 shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including (i) any set-
off, counterclaim, recoupment, defense or other right which
such Revolving Lender may have against the Swing Line Lender,
any Loan Party or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of an Event of Default;
(iii) any adverse change in the condition (financial or
otherwise) of any Loan Party or any other Person; (iv) any
breach of this Agreement by any Loan Party or any other
Revolving Lender; (v) any inability of any Borrower to satisfy
the conditions precedent to borrowing set forth in this
Agreement on the date upon which any Swing Line Loan is to be
refunded or any participation interest therein is to be
purchased; or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(b) Notwithstanding the provisions of subsection
2.20(a), no Revolving Lender shall be required to make any
Revolving Loan to the Applicable Borrower to refund a Swing
Line Loan pursuant to Section 2.18 or to purchase a
participation interest in a Swing Line Loan pursuant to Section
2.19 if, prior to the making by the Swing Line Lender of such
Swing Line Loan, the Swing Line Lender received written notice
from such Revolving Lender specifying that such Revolving
Lender believes in good faith that one or more of the con-
ditions precedent to the making of such Swing Line Loan were
not satisfied and, in fact, such conditions precedent were not
satisfied at the time of the making of such Swing Line Loan;
provided, however, that the obligation of such Revolving Lender
to make such Revolving Loans and to purchase such participation
interests shall be reinstated upon the earlier to occur of
(i) the date on which such Revolving Lender notifies the Swing
Line Lender that its prior notice has been withdrawn and
(ii) the date on which all conditions precedent to the making
of such Swing Line Loan have been satisfied (or waived by the
Required Revolving Lenders, the Required Lenders or all
Lenders, as applicable).
2.21. Conditions to Swing Line Loans.
Notwithstanding any other provision of this Agreement, the
Swing Line Lender shall not be obligated to make any Swing Line
Loan if an Event of Default or Unmatured Event of Default
exists or would result therefrom.
2.22. Substitution of Lenders in Certain
Circumstances. In the event that (x) S&P or ▇▇▇▇▇'▇ shall,
after the date that any Person becomes a Lender, downgrade the
long-term certificate of deposit ratings of such Lender, and
the resulting ratings shall be below BBB- or Baa3,
respectively, or the equivalent or (y) any Revolving Lender
gives notice to the Paying Agent that it is unable to make,
convert or continue any Offshore Currency Loan pursuant to
subsection 2.5(b) or (c), then each Applicable Borrower or the
Paying Agent shall each have the right, but not the obligation,
upon notice to such Lender and the Paying Agent, to replace
such Lender with a financial institution (a "Substitute
Lender") acceptable to each Applicable Borrower and the Paying
Agent (such consents not to be unreasonably withheld or
delayed; provided, however, that no such consent shall be
required if the Substitute Lender is an existing Lender), and
upon any such downgrading of any Lender's long-term certificate
of deposit rating or the giving of such notice, each such
Lender hereby agrees to transfer and assign (in accordance with
and subject to the restrictions contained in Section 11.8) its
Commitments, Loans, Notes and other rights and obligations
under this Agreement and all other Credit Documents to such
Substitute Lender; provided, however, that (i) such assignment
shall be without recourse, representation or warranty (other
than that such Lender owns the Commitments, Loans, and Notes
being assigned, free and clear of any Liens) and (ii) the
purchase price paid by the Substitute Lender shall be in the
amount of such Lender's Loans and its Pro Rata Share of
outstanding L/C Obligations, together with all accrued and
unpaid interest and fees in respect thereof, plus all other
amounts (other than the amounts (if any) demanded and
unreimbursed under Sections 4.1, 4.3 and 4.4, which shall be
paid by each Applicable Borrower) owing to such Lender
hereunder. Upon any such termination or assignment, such
Lender shall cease to be a party hereto but shall continue to
be entitled to the benefits of any provisions of this Agreement
which by their terms survive the termination of this Agreement.
ARTICLE III
THE LETTERS OF CREDIT
3.1. The Letter of Credit Subfacility. (a) On the
terms and conditions set forth herein, (i) the L/C Lender
agrees, (A) from time to time on any Business Day during the
period from the Closing Date to the Termination Date, to issue
Letters of Credit (including irrevocable standby letters of
credit) for the account of any Borrower (or, if a Letter of
Credit is for the account of a Subsidiary, jointly for the
account of the applicable Borrower and such Subsidiary) and to
amend or renew Letters of Credit previously issued by it, in
accordance with subsections 3.2(c) and 3.2(d), and (B) to honor
properly drawn drafts under the Letters of Credit; and (ii) the
Revolving Lenders severally agree to participate in Letters of
Credit Issued for the accounts of the Borrowers (including any
Letter of Credit issued jointly for the account of a Borrower
and any Subsidiary); provided, however, that the L/C Lender
shall not be obligated to Issue, and no Lender shall be
obligated to participate in, any Letter of Credit if as of the
date of Issuance of such Letter of Credit (the "Issuance Date")
with respect to any Issuance for the account of any Borrower
(or jointly for the account of a Borrower and a Subsidiary),
(1) the Effective Amount of all L/C Obligations, plus (without
duplication) the outstanding principal Dollar Equivalent amount
of all Revolving Loans exceeds the combined Revolving
Commitments of all Revolving Lenders, (2) the participation of
such Revolving Lender in the Effective Amount of all L/C
Obligations, plus (without duplication) the outstanding
principal Dollar Equivalent amount of the Revolving Loans of
such Revolving Lender, plus such Revolving Lender's Pro Rata
Share of all outstanding Swing Line Loans exceeds such
Revolving Lender's Revolving Commitment, or (3) the Effective
Amount of all L/C Obligations exceeds the L/C Commitment.
Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrowers' ability to obtain Letters of
Credit shall be fully revolving, and, accordingly, the
Borrowers may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit which have expired or which
have been drawn upon and reimbursed. Letters of Credit may be
denominated in U.S. Dollars or Offshore Currencies.
(b) The L/C Lender is under no obligation to Issue
any Letter of Credit if: (i) any order, judgment or decree of
any Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Lender from Issuing such
Letter of Credit, or any Requirement of Law applicable to the
L/C Lender or any request or directive (whether or not having
the force of law) from any Governmental Authority with
jurisdiction over the L/C Lender shall prohibit, or request
that the L/C Lender refrain from, the Issuance of letters of
credit generally or such Letter of Credit in particular or
shall impose upon the L/C Lender with respect to such Letter of
Credit any restriction, reserve or capital requirement (for
which the L/C Lender is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the L/C
Lender any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Lender in good
▇▇▇▇▇ ▇▇▇▇▇ material to it; (ii) the L/C Lender has received
written notice from any Lender, the Paying Agent or either
Borrower, on or prior to the Business Day prior to the
requested date of Issuance of such Letter of Credit, that one
or more of the applicable conditions contained in Article V is
not then satisfied; (iii) the expiry date of any requested
Letter of Credit is (A) more than twelve months after the date
of such Issuance for standby Letters of Credit or more than 180
days after the date of such issuance for commercial
documentation Letters of Credit, unless the Required Revolving
Lenders have approved such expiry date in writing; provided,
however, that any standby Letter of Credit may be automatically
extendible for periods of up to one year so long as no Event of
Default or Unmatured Event of Default then exists and such
Letter of Credit provides that the L/C Lender retains an option
reasonably satisfactory to the L/C Lender, to terminate such
Letter of Credit prior to each extension date, or (B) after the
fifth Business Day prior to the Termination Date, unless all of
the Revolving Lenders have approved such expiry date in
writing; (iv) any requested Letter of Credit does not provide
for drafts, or is not otherwise in form and substance
reasonably acceptable to the L/C Lender, or the Issuance of a
Letter of Credit shall violate any applicable policies of the
L/C Lender; (v) such Letter of Credit is denominated in a
currency other than U.S. Dollars or an Offshore Currency; or
(vi) an Event of Default or Unmatured Event of Default has
occurred and is continuing.
3.2. Issuance, Amendment and Renewal of Letters of
Credit. (a) Each Letter of Credit (other than an Existing
Letter of Credit) shall be Issued upon the irrevocable written
request of the Applicable Borrower received by the L/C Lender
(with a copy sent by the Applicable Borrower to the Paying
Agent) at least three Business Days (or such shorter time as
the L/C Lender may agree in a particular instance in its sole
discretion) prior to the proposed date of Issuance. Each such
request for Issuance of a Letter of Credit shall be by fac-
simile, confirmed in an original writing, in the form of an L/C
Application, and shall specify in form and detail reasonably
satisfactory to the L/C Lender:
(i) the proposed date of Issuance of the Letter of
Credit (which shall be a Business Day);
(ii) the face amount of the Letter of Credit and the
Applicable Currency;
(iii) the expiry date of the Letter of Credit;
(iv) the name and address of the beneficiary thereof;
(v) the documents to be presented by the beneficiary
of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented
by the beneficiary in case of any drawing thereunder;
(vii) the type of Letter of Credit; and
(viii) such other matters as the L/C Lender may reasonably require.
(b) At least two Business Days prior to the Issuance
of any Letter of Credit, the L/C Lender will confirm with the
Paying Agent (by telephone or in writing) that the Paying Agent
has received a copy of the L/C Application or L/C Amendment
Application from the Applicable Borrower and, if not, the L/C
Lender will provide the Paying Agent with a copy thereof.
Unless the L/C Lender has received, on or before the Business
Day immediately preceding the date the L/C Lender is to Issue a
requested Letter of Credit, (A) notice from the Paying Agent
directing the L/C Lender not to Issue such Letter of Credit
because such Issuance is not then permitted under subsection
3.1(a) as a result of the limitations set forth in clauses (1)
through (3) thereof, or (B) a notice described in subsection
3.1(b)(ii), then, subject to the terms and conditions hereof,
the L/C Lender shall, on the requested date, Issue a Letter of
Credit for the account of the Applicable Borrower (or jointly
for the account of the Applicable Borrower and the applicable
Subsidiary) in accordance with the L/C Lender's usual and
customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Termination Date, the L/C Lender
will, upon the written request of the Applicable Borrower
received by the L/C Lender (with a copy sent by the Applicable
Borrower to the Paying Agent) at least three days (or such
shorter time as the L/C Lender may agree in a particular
instance in its sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit Issued by it. Each such
request for amendment of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, made
in the form of an L/C Amendment Application and shall specify
in form and detail reasonably satisfactory to the L/C Lender:
(i) the Letter of Credit to be amended; (ii) the proposed date
of amendment of the Letter of Credit (which shall be a Business
Day); (iii) the nature of the proposed amendment; and (iv) such
other matters as the L/C Lender may reasonably require. The
L/C Lender shall be under no obligation to, and shall not,
amend any Letter of Credit if: (A) the L/C Lender would have
no obligation at such time to Issue such Letter of Credit in
its amended form under the terms of this Agreement; or (B) the
beneficiary of any such Letter of Credit does not accept the
proposed amendment to the Letter of Credit. The Paying Agent
will promptly notify the Revolving Lenders of the receipt by it
of any L/C Application or L/C Amendment Application.
(d) The L/C Lender and the Revolving Lenders agree
that, while a standby Letter of Credit is outstanding and prior
to the Termination Date, at the option of the Applicable
Borrower and upon the written request of the Applicable
Borrower received by the L/C Lender (with a copy sent by the
Applicable Borrower to the Paying Agent) at least three
Business Days (or such shorter time as the L/C Lender may agree
in a particular instance in its sole discretion) prior to the
proposed date of notification of renewal, the L/C Lender shall
be entitled to authorize the automatic renewal of any Letter of
Credit Issued by it. Each such request for renewal of a Letter
of Credit shall be made by facsimile, confirmed in an original
writing, in the form of an L/C Amendment Application, and shall
specify in form and detail reasonably satisfactory to the L/C
Lender: (i) the standby Letter of Credit to be renewed;
(ii) the proposed date of notification of renewal of the Letter
of Credit (which shall be a Business Day not more than 60 days
prior to the expiry date of the Letter of Credit being re-
newed); (iii) the revised expiry date of the Letter of Credit;
and (iv) such other matters as the L/C Lender may reasonably
require. The L/C Lender shall be under no obligation so to
renew any Letter of Credit and shall not do so if: (A) the L/C
Lender would have no obligation at such time to Issue or amend
such Letter of Credit in its renewed form under the terms of
this Agreement; or (B) the beneficiary of any such Letter of
Credit does not accept the proposed renewal of the Letter of
Credit. If any outstanding Letter of Credit shall provide that
it shall be automatically renewed unless the beneficiary
thereof receives notice from the L/C Lender that such Letter of
Credit shall not be renewed, and if at the time of renewal the
L/C Lender would be entitled to authorize the automatic renewal
of such Letter of Credit in accordance with this subsection
3.2(d) upon the request of the Applicable Borrower but the L/C
Lender shall not have received any L/C Amendment Application
from the Applicable Borrower with respect to such renewal or
other written direction by the Applicable Borrower with respect
thereto, the L/C Lender shall nonetheless be permitted to allow
such Letter of Credit to renew, and the Applicable Borrower and
the Revolving Lenders hereby authorize such renewal, and,
accordingly, the L/C Lender shall be deemed to have received an
L/C Amendment Application from the Applicable Borrower
requesting such renewal.
(e) The L/C Lender may, at its election (or as
required by the Paying Agent at the direction of the Required
Revolving Lenders), deliver any notices of termination or other
communications to any Letter of Credit beneficiary or
transferee, and take any other reasonable action, at any time
and from time to time, in order to cause the expiry date of
such Letter of Credit to be a date not later than the fifth
Business Day prior to the Termination Date.
(f) This Agreement shall control in the event of any
inconsistency between this Agreement and any L/C-Related
Document (other than any Letter of Credit) or if any provision
of any L/C Related Document is more restrictive or burdensome
than a comparable provision in this Agreement or to the extent
it provides for a Lien on property or assets.
(g) The L/C Lender will also deliver to the Paying
Agent, concurrently or promptly following its delivery of a
Letter of Credit, or amendment to or renewal of a Letter of
Credit, to an advising bank or a beneficiary, a true and
complete copy of each such Letter of Credit or amendment to or
renewal of a Letter of Credit.
3.3. Risk Participations, Drawings and
Reimbursements. (a) Immediately upon the Issuance of each
Letter of Credit, each Revolving Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from
the L/C Lender a participation in such Letter of Credit and
each drawing thereunder in an amount equal to the product of
(i) the Pro Rata Share of such Revolving Lender times (ii) the
maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, respectively.
(b) In the event of any request for a drawing under
a Letter of Credit by the beneficiary or transferee thereof,
the L/C Lender will promptly notify the Applicable Borrower
(but the failure to so notify any Borrower shall not impair any
rights of the Lenders or modify any obligation of the
Borrowers). The Applicable Borrower shall reimburse the L/C
Lender prior to 1:00 p.m. (New York City time), on each date
that any amount is paid by the L/C Lender under any Letter of
Credit issued for the account of such Borrower (each such date,
an "Honor Date"), if such payment by the L/C Lender is made
prior to 11:00 a.m. (New York City time) on the Honor Date or
by 11:00 a.m. (New York City time) on the next Business Day
after the Honor Date if such payment is made on or after 11:00
a.m. (New York City time) on the Honor Date, in each case in an
amount equal to the amount so paid by the L/C Lender. In the
event the Applicable Borrower fails to reimburse the L/C Lender
for the full amount of any drawing under any Letter of Credit
by 1:00 p.m. (New York City time) on the Honor Date, the L/C
Lender will promptly notify the Paying Agent and the Paying
Agent will promptly notify each Revolving Lender thereof.
Thereupon the Applicable Borrower shall be deemed to have
requested that Revolving Loans be made by the Revolving Lenders
to be disbursed on the Honor Date under such Letter of Credit,
subject to the amount of the unutilized portion of the
Revolving Commitment and subject to the conditions set forth in
subsections 5.3(b) and (c), which Loans shall be ABR Loans
accruing interest at a rate per annum equal to the Alternate
Base Rate, plus the Applicable Margin for ABR Loans which are
Revolving Loans, in the case of a drawing in U.S. Dollars, or
Loans accruing interest at a rate per annum equal to the
Overnight Rate applicable to such Offshore Currency from time
to time in effect, plus the Applicable Margin for LIBOR Loans
which are Revolving Loans, in the case of a drawing in an
Offshore Currency. Any notice given by the L/C Lender or the
Paying Agent pursuant to this subsection 3.3(b) may be oral if
immediately confirmed in writing (including by facsimile);
provided, however, that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding
effect of such notice.
(c) Each Revolving Lender shall upon any notice
pursuant to subsection 3.3(b) make available to the Paying
Agent for the account of the L/C Lender an amount in U.S.
Dollars or the Offshore Currency in which such Letter of Credit
is denominated, as the case may be, and in Same Day Funds equal
to its Pro Rata Share of the amount of the drawing, whereupon
the participating Revolving Lenders shall (subject to sub-
section 3.3(d)) each be deemed to have made a Revolving Loan to
the Applicable Borrower in that amount accruing interest at a
rate per annum equal to the Alternate Base Rate, plus the
Applicable Margin for ABR Loans which are Revolving Loans (in
the case of a drawing in U.S. Dollars), or the Overnight Rate
applicable to such Offshore Currency from time to time in
effect, plus the Applicable Margin for LIBOR Loans which are
Revolving Loans (in the case of a drawing in an Offshore
Currency). If any Revolving Lender so notified fails to make
available to the Paying Agent for the account of the L/C Lender
the amount of such Revolving Lender's Pro Rata Share of the
amount of the drawing by no later than 1:00 p.m. (New York
time) on the Honor Date, then interest shall accrue on such
Revolving Lender's obligation to make such payment, from the
Honor Date to the date such Revolving Lender makes such
payment, at a rate per annum equal to (i) in the case of a
drawing in U.S. Dollars, the U.S. Federal Funds Rate in effect
from time to time during such period and (ii) in the case of a
drawing in an Offshore Currency, the Overnight Rate applicable
to such Offshore Currency from time to time in effect. The
Paying Agent will promptly give notice of the occurrence of the
Honor Date, but failure of the Paying Agent to give any such
notice on the Honor Date or in sufficient time to enable any
Revolving Lender to effect such payment on such date shall not
relieve such Revolving Lender from its obligations under this
Section 3.3.
(d) With respect to any unreimbursed drawing that is
not converted into Revolving Loans to the Applicable Borrower
in whole or in part, because of such Borrower's failure to
satisfy the conditions set forth in subsections 5.3(b) and (c)
or for any other reason, such Borrower shall be deemed to have
incurred from the L/C Lender an L/C Borrowing in the amount of
such drawing, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at a
rate per annum equal to (i) in the case of a drawing in U.S.
Dollars, the Alternate Base Rate, plus 2% per annum, and
(ii) in the case of a drawing in an Offshore Currency, the
Overnight Rate applicable to such Offshore Currency from time
to time in effect, plus 2% per annum, and each Revolving
Lender's payment to the L/C Lender pursuant to subsection
3.3(c) shall be deemed payment in respect of its participation
in such L/C Borrowing and shall constitute an L/C Advance from
such Revolving Lender in satisfaction of its participation
obligation under this Section 3.3.
(e) Each Revolving Lender's obligation in accordance
with this Agreement to make the Revolving Loans or L/C
Advances, as contemplated by this Section 3.3, as a result of a
drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the L/C Lender and shall
not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Re-
volving Lender may have against the L/C Lender, the Applicable
Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of an Event of Default, an
Unmatured Event of Default or a Material Adverse Effect; or
(iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided,
however, that each Revolving Lender's obligation to make
Revolving Loans under this Section 3.3 is subject to the
conditions set forth in Section 5.3.
3.4. Repayment of Participations. (a) Upon (and
only upon) receipt by the Paying Agent for the account of the
L/C Lender of Same Day Funds from the Applicable Borrower
(i) in reimbursement of any payment made by the L/C Lender
under the Letter of Credit with respect to which any Revolving
Lender has paid the Paying Agent for the account of the L/C
Lender for such Revolving Lender's participation in the Letter
of Credit pursuant to Section 3.3 or (ii) in payment of
interest thereon, the Paying Agent will pay to each Revolving
Lender, in the same funds as those received by the Paying Agent
for the account of the L/C Lender, the amount of such Revolving
Lender's Pro Rata Share of such funds, and the L/C Lender shall
receive the amount of the Pro Rata Share of such funds of any
Revolving Lender that did not so pay the Paying Agent for the
account of the L/C Lender.
(b) If the Paying Agent or the L/C Lender is
required at any time to return to the Applicable Borrower, or
to a trustee, receiver, liquidator or custodian, or any
official in any Insolvency Proceeding, any portion of any
payment made by such Borrower to the Paying Agent for the
account of the L/C Lender pursuant to subsection 3.4(a) in
reimbursement of a payment made under any Letter of Credit or
interest or fee thereon, each Revolving Lender shall, on demand
of the Paying Agent, forthwith return to the Paying Agent or
the L/C Lender the amount of its Pro Rata Share of any amount
so returned by the Paying Agent or the L/C Lender, plus
interest thereon from the date such demand is made to the date
such amount is returned by such Revolving Lender to the Paying
Agent or the L/C Lender, at a rate per annum equal to the U.S.
Federal Funds Rate in effect from time to time.
3.5. Role of the L/C Lender. (a) Each Revolving
Lender and the Borrowers agree that, in paying any drawing
under a Letter of Credit, the L/C Lender shall not have any
responsibility to obtain any document (other than any sight
draft and certificates or other documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the
validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) None of the Co-Agents, any of their respective
Affiliates or any of the respective correspondents,
participants or assignees of the L/C Lender shall be liable to
any Revolving Lender for: (i) any action taken or omitted in
connection herewith at the request or with the approval of the
Revolving Lenders (including the Required Revolving Lenders, as
applicable); (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any
L/C-Related Document.
(c) Each Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect
to its use of any Letter of Credit issued for its account;
provided, however, that this assumption is not intended to, and
shall not, preclude a Borrower'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 Co-Agents,
any of their respective Affiliates or any of the respective
correspondents, participants or assignees of the L/C Lender
shall be liable or responsible for any of the matters described
in clauses (i) through (iv) of Section 3.6; provided, however,
that, anything in such clauses to the contrary notwithstanding,
a Borrower may have a claim against the L/C Lender, and the L/C
Lender may be liable to such Borrower, to the extent, but only
to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by such Borrower which such
Borrower proves were caused directly by the L/C Lender's
willful misconduct or gross negligence or the L/C Lender's
willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions
of a Letter of Credit. In furtherance and not in limitation of
the foregoing: (i) the L/C Lender may accept documents that
appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information
to the contrary; and (ii) the L/C Lender shall not be
responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.6. Obligations Absolute. The obligations of the
Borrowers under this Agreement and any L/C-Related Document to
reimburse the L/C Lender for a drawing under a Letter of
Credit, and to repay any L/C Borrowing and any drawing under a
Letter of Credit converted into Loans, shall be unconditional
and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement and each such other L/C-Related
Document under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or
any L/C-Related Document; (ii) the existence of any claim, set-
off, defense or other right that a Borrower may have at any
time against any beneficiary or any transferee of any Letter of
Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Lender or any other Person,
whether in connection with this Agreement, the transactions
contemplated hereby or by the L/C-Related Documents or any
unrelated transaction; (iii) any draft, demand, certificate or
other document presented under any Letter or Credit proving to
be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any
Letter of Credit; or (iv) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, a
Borrower or a guarantor; provided, however, that the Borrowers
shall not be obligated to reimburse the L/C Lender for any
wrongful payment made by the L/C Lender as a result of acts or
omissions constituting willful misconduct or gross negligence
on the part of the L/C Lender.
3.7. Cash Collateral Pledge. If any Letter of Credit
remains outstanding and partially or wholly undrawn as of the
Termination Date, then the Borrowers shall immediately Cash
Collateralize the L/C Obligations Issued for their respective
accounts in an amount equal to the maximum amount then
available to be drawn under all Letters of Credit.
3.8. Letter of Credit Fees. (a) The Applicable
Borrower shall pay to the Paying Agent for the pro rata account
of each of the Revolving Lenders a letter of credit fee at a
rate per annum equal to the then Applicable Margin for LIBOR
Loans which are Revolving Loans on an amount equal to the
average daily maximum amount available to be drawn of the
outstanding Letters of Credit from the date of Issuance thereof
or, in the case of the Existing Letters of Credit, from the
Effective Date (the "Computation Amount"), computed on a
quarterly basis in arrears on the last Business Day of each
fiscal quarter and on the Termination Date (or such later date
on which all outstanding Letters of Credit have been terminated
or have expired) based upon Letters of Credit outstanding for
the applicable period as calculated by the Paying Agent.
(b) The Applicable Borrower shall pay to the Paying
Agent, solely for the account of the L/C Lender, a letter of
credit fronting fee for each Letter of Credit Issued by the L/C
Lender of at least U.S. $100 or, if greater, at the rate per
annum equal to 1/8% of the Computation Amount, computed on the
last Business Day of each calendar quarter and on the
Termination Date (or such later date on which all outstanding
Letters of Credit have been terminated or have expired) based
upon the Letters of Credit outstanding for the applicable pe-
riod as calculated by the Paying Agent.
(c) The letter of credit fees payable under
subsection 3.8(a) and the fronting fees payable under
subsection 3.8(b) shall be due and payable quarterly in arrears
on the last Business Day of each calendar quarter during which
Letters of Credit are outstanding, commencing on the first such
quarterly date to occur after the Closing Date, through the
Termination Date (or such later date upon which all outstanding
Letters of Credit Issued for the respective account of a
Borrower have been terminated or have expired), with the final
payment to be made on the Termination Date (or such later
termination or expiration date). All fees payable under this
Section 3.8 shall be calculated as of their due date based upon
the Dollar Equivalent amount of the Computation Amount as of
such date based upon the Spot Rate. All such fees shall be
payable solely in U.S. Dollars.
(d) The Borrowers shall pay to the L/C Lender from
time to time on demand the normal issuance, presentation,
amendment and other processing fees, and other standard costs
and charges, of the L/C Lender relating to letters of credit as
from time to time in effect.
3.9. Uniform Customs and Practice. The Uniform
Customs and Practice for Documentary Credits as published by
the International Chamber of Commerce most recently at the time
of issuance of any Letter of Credit shall (unless otherwise
expressly provided in such Letter of Credit) apply to such
Letter of Credit.
3.10. Letters of Credit for the Account of
Subsidiaries. Each Borrower and its applicable Subsidiaries
shall be jointly and severally liable for any Letter of Credit
which is issued jointly for the account of that Borrower and
any of its Subsidiaries.
ARTICLE IV
NET PAYMENTS, YIELD PROTECTION AND ILLEGALITY
4.1. Net Payments. (a) Except as provided in
subsection 4.1(b), all payments by any Loan Party to any Lender
or any Co-Agent under this Agreement and any other Credit
Document shall be made without setoff, counterclaim or other
defense. Except as provided in Section 4.1(b), all such
payments shall be made free and clear of, and without deduction
or withholding for, any Covered Taxes levied or imposed by any
Governmental Authority with respect to such payments.
(b) If any Loan Party shall be required by law to
deduct or withhold any Covered Taxes from or in respect of any
sum payable hereunder to any Lender or any Co-Agent, then
except as provided in subsection 4.1(g): (i) the sum payable
shall be increased as necessary so that after making all such
required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this
Section) such Lender or such Co-Agent, as the case may be,
receives an amount equal to the sum it would have received had
no such deductions or withholdings been made; (ii) the
Borrowers shall, and shall cause each other Loan Party to, make
such deductions and withholdings; and (iii) the Borrowers
shall, and shall cause each other Loan Party to, timely pay the
full amount deducted or withheld to the relevant taxing
authority or other authority in accordance with applicable law.
If for any reason any Loan Party fails to make any payments
required under the preceding sentence, then U.S. Borrower shall
make such payments on behalf of such Loan Party. Within 30
days after the date of any payment by a Loan Party of Covered
Taxes, such Loan Party shall furnish the Paying Agent the
original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment reasonably satisfactory
to the Paying Agent.
(c) The Borrowers agree jointly and severally to,
and shall cause each other Loan Party jointly and severally to,
indemnify and hold harmless each Lender and each Co-Agent for,
and upon written request of such Lender or Co-Agent shall
promptly reimburse such Lender or Co-Agent for, (i) the full
amount of Covered Taxes (including any Covered Taxes imposed by
any jurisdiction on amounts payable under this Section 4.1)
paid or payable by such Lender or such Co-Agent and any
liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or
not such Covered Taxes were correctly or legally asserted, and
(ii) any Taxes levied or imposed by any Governmental Authority
on any additional amounts paid by any Loan Party under this
Section 4.1 that are measured by such Lender's or such Co-
Agent's net income or net profits by the jurisdiction (or any
political subdivision thereof) under the laws of which such
Lender or such Co-Agent, as the case may be, is or was
organized or maintains (or maintained) a Lending Office.
(d) If any Loan Party is required to pay additional
amounts to any Lender or any Co-Agent pursuant to this Section
4.1, then such Lender shall use (at the Loan Parties' expense)
reasonable efforts (consistent with internal policy and legal
and regulatory restrictions) to change the jurisdiction of its
Lending Office or take other appropriate action so as to
eliminate any obligation to make such additional payment by
such Loan Party which may thereafter accrue, if such change or
other action in the sole judgment of such Lender is not
otherwise disadvantageous or burdensome to such Lender.
(e) (i) Each Lender or Co-Agent which is not a
United States person (as such term is defined in Section
7701(a) of the Code) agrees that:
(A) it shall, no later than the Closing Date (or, in
the case of a Lender which becomes a party hereto after
the Closing Date, the date upon which such Lender becomes
a party hereto) deliver to the Paying Agent and to the
Borrowers through the Paying Agent (x) two accurate and
complete signed originals of IRS Form W-8ECI or any
successor thereto ("Form W-8ECI"), or two accurate and com-
plete signed originals of IRS Form W-8BEN or any successor
thereto ("Form W-8BEN"), as appropriate, or (y) if such
Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Form W-
8BEN or Form W-8ECI pursuant to clause (x) above, a
certificate substantially in the form of Exhibit K (any
such certificate, a "Non-Bank Certificate") and, in the
case of either (x) or (y), two accurate and complete
original signed copies of IRS Form W-8 or any successor
thereto ("Form W-8");
(B) from time to time after the Effective Date, when
a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any
material respect, it will deliver to the Paying Agent and
U.S. Borrower through the Paying Agent, two new accurate
and complete original signed copies of Form W-8BEN, Form
W-8ECI, Form W-8 or Non-Bank Certificate, as applicable in
replacement for, or in addition to, the forms previously
delivered by it hereunder.
(ii) Each Lender or Co-Agent that is incorporated or
organized under the laws of the United States of America or a
state thereof shall provide two properly completed and duly
executed copies of Form W-9, or successor applicable form, at
the times specified for delivery of forms under
paragraph (e)(i) of this subsection.
(iii) Each Form W-8BEN or W-8ECI delivered by a Lender
or Co-Agent pursuant to this subsection (e) shall certify,
unless unable to do so by virtue of a Change in Law occurring
after the date such Lender or Co-Agent becomes a party hereto,
that such Lender or Co-Agent is entitled to receive payments
under this Agreement without deduction or withholding of U.S.
federal income taxes and each Form W-9 shall certify, unless
unable to do so by virtue of a Change in Law occurring after
the Effective Date, that such Lender or Co-Agent is entitled to
an exemption from U.S. backup withholding.
(iv) Notwithstanding the foregoing provisions of this
subsection (e) or any other provision of this Section 4.1, no
Lender or Co-Agent shall be required to deliver any form
pursuant to this Section 4.1 if such Lender or Co-Agent is not
legally able to do so by virtue of a Change in Law occurring
after the Effective Date.
(v) Each Lender or Co-Agent shall, promptly upon a
Loan Party's or the Paying Agent's reasonable request to that
effect, at its expense, deliver to such Loan Party or the
Paying Agent (as the case may be) such other forms or similar
documentation or other information as may reasonably be
required from time to time by any applicable law, treaty, rule
or regulation of any Governmental Authority in order to
establish such Lender's or Co-Agent's tax status for
withholding purposes.
(f) No Loan Party will be required to pay any
additional amount in respect of Taxes pursuant to this Section
4.1 to any Lender or to any Co-Agent with respect to any Lender
if the obligation to pay such additional amount would not have
arisen but for a failure by such Lender or Co-Agent to comply
with its obligations under subsection 4.1(e) (other than by
reason of a Change in Law occurring after the Effective Date or
the date upon which such Lender became a party hereto, if
later).
(g) In addition, the Borrowers jointly and severally
agree to pay, and will cause each other Loan Party jointly and
severally to agree to pay, any present or future stamp or
documentary taxes or any other excise or property taxes,
charges or similar levies (including, without limitation,
interest, penalties, additions to tax and expenses) which arise
from any payment made hereunder or from the execution,
delivery, filing, recordation or registration of, or otherwise
with respect to, this Agreement or any other Credit document
(hereinafter referred to as "Other Taxes").
4.2. Illegality. (a) If any Lender determines that
any Change in Law has made it unlawful, or that any central
bank or other Governmental Authority has asserted that it is
unlawful, for such Lender or its applicable Lending Office to
make or maintain LIBOR Loans in any Applicable Currency, then,
on notice thereof by the Lender to the Applicable Borrower
through the Paying Agent any obligation of such Lender to make,
convert or continue LIBOR Loans in such Applicable Currency, as
the case may be, shall be suspended until such Lender notifies
the Paying Agent and the Applicable Borrower that the
circumstances giving rise to such determination no longer exist
and until such time such Lender's commitment shall be only to
make an ABR Loan, when a LIBOR Loan is requested in such
Applicable Currency.
(b) If a Lender determines that it is unlawful to
maintain any LIBOR Loan in any Applicable Currency, (x) with
respect to any such LIBOR Loan that is an Offshore U.S. Dollar
Loan, such Loan shall be automatically converted to an ABR Loan
either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such LIBOR Loan to
such day, or immediately if not, and (y) with respect to any
other LIBOR Loan, the Applicable Borrower shall, upon their
receipt of notice of such fact and demand from such Lender
(with a copy to the Paying Agent), prepay in full such LIBOR
Loans, as applicable, of such Lender then outstanding in such
Applicable Currency, together with interest accrued thereon and
amounts required under Section 4.4, either on the last day of
the Interest Period therefor, if such Lender may lawfully
continue to maintain such LIBOR Loan to such day, or
immediately, if not.
(c) Before giving any notice to the Paying Agent
under this Section, the affected Lender shall designate a
different Lending Office with respect to its LIBOR Loans or
take other appropriate action if such designation or other
action will avoid the need for giving notice and will not, in
the judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
4.3. Increased Costs and Reduction of Return.
(a) If any Lender determines that, due to either (i) the
introduction of or any change in or in the interpretation of
any law or regulation or (ii) the compliance by such Lender
with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of
law), in either case after the Closing Date, there shall be any
increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any LIBOR Loan or participating
in Letters of Credit, or, in the case of the L/C Lender, any
increase in the cost to the L/C Lender of agreeing to Issue,
Issuing or maintaining any Letter of Credit or of agreeing to
make or making, funding or maintaining any unpaid drawing under
any Letter of Credit, then each Applicable Borrower shall be
liable for, and shall from time to time, within 15 Business
Days of demand (which demand shall contain a reasonably
detailed calculation of any relevant costs and shall be
conclusive and binding in the absence of manifest error, and a
copy thereof shall be sent to the Paying Agent), pay to the
Paying Agent for the account of such Lender, additional amounts
as are sufficient to compensate such Lender for such increased
costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any
change in any Capital Adequacy Regulation, (iii) any change in
the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or
(iv) compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender with any Capital Adequacy
Regulation, in each case after the date of this Agreement,
affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such
Lender's or such corporation's policies with respect to capital
adequacy) determines that the amount of such capital is
increased as a consequence of its Commitment, Loans, credits or
obligations under this Agreement, then, within 15 Business Days
of demand of such Lender to the Applicable Borrower through the
Paying Agent, each Applicable Borrower shall pay to such
Lender, from time to time as specified by such Lender,
additional amounts reasonably sufficient to compensate such
Lender for such increase. A statement of such Lender as to any
such additional amount or amounts (including calculations
thereof in reasonable detail), in the absence of manifest
error, shall be conclusive and binding on each Applicable
Borrower. In determining such amount or amounts, such Lender
may use any method of averaging and attribution that it (in its
sole and absolute discretion) shall deem applicable and that is
not materially less favorable to each Applicable Borrower than
to any of its other customers.
(c) Nothing in this Section 4.3 shall obligate any
Loan Party to make any payments with respect to Taxes of any
sort, indemnification for which is governed by Section 4.1.
4.4. Funding Losses. Each Applicable Borrower shall,
within 15 Business Days of receipt of written notice thereof,
reimburse each Lender and hold each Lender harmless from any
loss or expense which such Lender may sustain or incur as a
consequence of: (a) the failure of such Applicable Borrower to
make on a timely basis any payment of principal of any LIBOR
Loan; (b) the failure (including by reason of Section 4.5) of
such Applicable Borrower to borrow, continue or convert a LIBOR
Loan after such Applicable Borrower has given (or is deemed to
have given) a Notice of Borrowing or a Notice of
Conversion/Continuation (other than any such failure arising as
a result of a default by such Lender or the Paying Agent);
(c) the failure of such Applicable Borrower to make any
prepayment of any Loan in accordance with any notice delivered
under Section 2.7; (d) the prepayment by such Applicable
Borrower (including pursuant to Section 2.7 or 2.8) or other
payment (including after acceleration thereof) the principal of
any LIBOR Loan on a day that is not the last day of the
relevant Interest Period; or (e) the conversion by such
Applicable Borrower under Section 2.4 of any LIBOR Loan to an
ABR Loan on a day that is not the last day of the relevant
Interest Period; including any such loss or expense arising
from the liquidation or reemployment of deposits or other funds
obtained by it to make, continue or maintain the applicable
Loans or from fees payable to terminate the deposits from which
such funds were obtained. Such written notice (which shall
include calculations in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on each
Applicable Borrower. For purposes of calculating amounts
payable by each Applicable Borrower to any Lender under this
Section and under subsection 4.3(a), each LIBOR Loan made by a
Lender (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded
at the LIBOR Rate used in determining the interest rate for
such LIBOR Loan by a matching deposit or other borrowing in the
interbank eurocurrency market for a comparable amount and for a
comparable period and in the same Applicable Currency, whether
or not such LIBOR Loan is in fact so funded.
4.5. Inability To Determine Rates. (a) If the
Required Revolving Lenders or Lenders holding more than 50% of
the Loans under the Dollar Term A Facility or Lenders holding
more than 50% of the Loans under the Term B Facility determine
that for any reason adequate and reasonable means do not exist
for determining the LIBOR Rate for any requested Interest
Period with respect to a proposed LIBOR Loan under the
applicable Facility, the Paying Agent will promptly so notify
the Applicable Borrower and each Lender under such Facility.
Thereafter, the obligation of the Lenders under such Facility
to make, convert or maintain LIBOR Loans in the Applicable
Currency shall be suspended until the Paying Agent upon the
instruction of the Required Revolving Lenders or Lenders
holding more than 50% of the Loans under the Dollar Term A
Facility or Lenders holding more than 50% of the Loans under
the Term B Facility, as the case may be, revoke such notice in
writing. Upon receipt of such notice, the Applicable Borrower
may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the
Applicable Borrower does not revoke (x) any such Notice of
Borrowing for Revolving Loans or (y) any such Notice of
Conversion/Continuation with respect solely to Offshore U.S.
Dollar Loans, the Lenders shall make, convert or continue the
applicable Loans, as proposed by such Applicable Borrower in
the amount specified in the applicable notice submitted by such
Applicable Borrower, but such Loans shall be made, converted or
continued as ABR Loans instead of LIBOR Loans, and in the case
of any Offshore Currency Loans under the Revolving Facility,
the Borrowing shall be redenominated and thereby be made in an
aggregate amount equal to the Dollar Equivalent amount of the
originally requested Borrowing in the Offshore Currency. If
the Applicable Borrower does not revoke any Notice of
Conversion/Continuation with respect to any outstanding
Revolving Loans that are Offshore Currency Loans which are the
subject of any such continuation, such Offshore Currency Loans
shall from the end of the current Interest Period therefor bear
interest at a rate per annum equal to the Applicable Margin for
LIBOR Loans which are Revolving Loans, plus the Overnight Rate
for the Applicable Currency as in effect from time to time or
such other rate as may be agreed to between the Applicable
Borrower and the Required Revolving Lenders, and specified to
the Paying Agent from time to time.
(b) If Lenders holding more than 50% of the Euro
Term A Loans determine that for any reason adequate and
reasonable means do not exist for determining the LIBOR Rate
for any requested Interest Period with respect to Euro Term A
Loans, the Paying Agent will promptly so notify the Applicable
Borrower and each Lender under the Euro Term A Facility.
Thereafter, until the Paying Agent upon the instruction of
Lenders holding more than 50% of the Euro Term A Loans revokes
such notice in writing, the Euro Term A Loans shall bear
interest at a rate per annum equal to the Applicable Margin for
LIBOR Loans which are Euro Term A Loans, plus the Overnight
Rate for the Applicable Currency as in effect from time to time
or such other rate as may be agreed to between the Applicable
Borrower and Lenders holding more than 50% of the Euro Term A
Loans and specified to the Paying Agent from time to time.
4.6. Reserves on LIBOR Loans. Each Applicable
Borrower shall pay to each Lender, as long as such Lender shall
be required under regulations of the FRB to maintain reserves
with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities") and, in respect of any Offshore
Currency Loans, under any applicable regulations of the country
in which the Offshore Currency of such Offshore Currency Loans
circulates, additional costs on the unpaid principal amount of
each LIBOR Loan and Offshore Currency Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender
(as calculated by such Lender in good faith and using a method
that is not materially less favorable to each Applicable
Borrower than to any of its other customers, which calculation
shall be set forth in reasonable detail and shall be
conclusive), payable on each date on which interest is payable
on such Loan, provided the Applicable Borrower shall have
received at least 15 Business Days' prior written notice (with
a copy to the Paying Agent) of the amount of such additional
interest from such Lender. If a Lender fails to give notice 15
days prior to the relevant Interest Payment Date, such
additional interest shall be payable 15 Business Days from
receipt of such notice.
4.7. Certificates of Lenders. Any Lender claiming
reimbursement or compensation under this Article IV shall
deliver to each Applicable Borrower (with a copy to the Paying
Agent) a certificate (a) setting forth in reasonable detail the
circumstances giving rise to such claim and a computation of
the amount payable to such Lender hereunder in respect thereof
and (b) certifying that such Lender is making similar claims
based on such circumstances to similarly-situated borrowers
from such Lender. Any such certificate shall be conclusive and
binding on each Applicable Borrower in the absence of manifest
error.
4.8. Substitution of Lenders. Upon (x) the receipt
by any Applicable Borrower or the Paying Agent from any Lender
(an "Affected Lender") of a claim for compensation under
Section 4.1 or 4.3 (or a Change in Law which could reasonably
be determined to allow a Lender to make such a claim) or a
notice of the type described in subsection 2.5(b), 2.5(c),
4.2(a) or 4.2(b), (y) any Lender providing notice to any
Applicable Borrower that a representation contained in a Non-
Bank Certificate is no longer true and correct or (z) the
refusal of any Lender to consent to a proposed amendment,
waiver or consent with respect to the Credit Documents which
has been approved by the Required Lenders as provided in
subsection 11.1(b), any Applicable Borrower may: (i) request
the Affected Lender to use its best efforts to obtain a
replacement bank or financial institution satisfactory to such
Applicable Borrower to acquire and assume all or a ratable part
of all of such Affected Lender's Loans, participation in L/C
Obligations and Commitments (a "Replacement Lender");
(ii) request one or more of the other Lenders to acquire and
assume all or part of such Affected Lender's Loans and Commit-
ments; or (iii) designate a Replacement Lender. Any such
designation of a Replacement Lender under clause (i) or (iii)
shall be subject to the prior written consent of the Agents
(which consent shall not be unreasonably withheld).
4.9. Right of Lenders To Fund Through Branches and
Affiliates. Each Lender may, if it so elects, fulfill its
commitment as to any Loan hereunder by designating a branch or
Affiliate of such Lender to make such Loan; provided, however,
that (a) such Lender shall remain solely responsible for the
performances of its obligations hereunder, (b) no such
designation shall result in any material increased costs to any
Applicable Borrower and (c) such branch or Affiliate complies
with all form delivery and other requirements hereunder (in-
cluding pursuant to Section 4.1) as if it were a Lender.
ARTICLE V
CONDITIONS PRECEDENT
5.1. Conditions to Effectiveness. The effectiveness
of this Agreement is subject to the satisfaction of the
following conditions precedent (the date of the satisfaction
(or waiver) of each condition in this Section 5.1, the
"Effective Date"):
Documentation and Evidence of Certain Matters. The
Lead Arranger shall have received the following documents,
each duly executed and notarized where appropriate (with
one conformed copy for each Lender), each of which shall
be reasonably satisfactory in form and substance to the
Lead Arranger:
(i) Corporate Documents. Certified true and
complete copies of the charter and by-laws and all
amendments thereto (or equivalent documents) of each
Loan Party and all corporate authority for each Loan
Party (including board of director resolutions and
evidence of the incumbency, including specimen
signatures, of officers) with respect to the
execution, delivery and performance of each of the
Credit Documents to which such Loan Party is intended
to be a party and each other document to be delivered
by such Loan Party from time to time in connection
herewith and the extensions of credit hereunder and
the consummation of the Transactions, certified as of
the Effective Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of
such Loan Party.
(ii) The Credit Agreement. This Agreement
(i) executed and delivered by a duly authorized
officer of each Loan Party party hereto, and
(ii) executed and delivered by a duly authorized
officer of each Lender, the Lead Arranger and each
other Co-Agent.
(iii) Van Leer Acquisition Agreement. Executed
copies of the Van Leer Acquisition Agreement and all
amendments, exhibits, appendices, annexes and
schedules to any thereof, each certified by a senior
officer of U.S. Borrower as true, complete and
correct copies thereof.
5.2. Conditions to Initial Credit Extension. The
obligation of the Lenders to make the initial Credit Extension
hereunder is subject to the satisfaction of the conditions
precedent that the Effective Date shall have occurred (or shall
occur simultaneously therewith) and to the satisfaction of the
additional following conditions precedent on or prior to
March 15, 2001 (the date of the satisfaction (or waiver) of
each condition to the initial Credit Extension in this
Section 5.2, the "Closing Date").
(a) Documentation and Evidence of Certain Matters.
The Lead Arranger shall have received the following
documents, each duly executed and notarized where
appropriate (with sufficient conformed copies for each
Lender), each of which shall be reasonably satisfactory in
form and substance to the Lead Arranger:
(i) Officers' Certificate. An Officers'
Certificate of each Borrower, dated the Closing Date,
(A) to the effect set forth in clauses (b) and (c) of
Section 5.3, (B) to the effect that all conditions
precedent to the making of such initial Credit
Extension have been satisfied or waived and
(C) stating that (I) all requisite material
Governmental Authorities and material third parties
have approved or consented to the Transactions and
the other transactions contemplated hereby to the
extent required (without the imposition of any
materially burdensome or materially adverse
conditions or requirements in the judgment of the
Lead Arranger), (II) all such approvals are in full
force and effect and (III) there is no Proceeding,
actual or threatened, that has or would have a
reasonable likelihood of restraining, preventing or
imposing materially burdensome conditions on any of
the Transactions or the other transactions
contemplated hereby. The Lead Arranger shall have
received copies (certified by U.S. Borrower as true
and correct) of any such approvals or consents so
obtained.
(ii) Opinion of Ohio Counsel. Opinion of ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇ LLP, Ohio counsel to the Loan Parties.
(iii) Opinion of New York Counsel. Opinion of
Debevoise & ▇▇▇▇▇▇▇▇, New York counsel to the Loan
Parties.
(iv) Opinions of Counsel. Opinions of each
foreign local counsel to the Companies listed on
Schedule 5.2(a)(iv) and each domestic local counsel
to the Companies listed on Schedule 5.2(a)(iv).
(v) Notes. The Notes, duly completed and
executed for each Lender that has requested Notes
prior to the Closing Date.
(vi) U.S. Borrower Guarantee and Security
Agreement; Domestic Guarantee and Security Agreement;
Foreign Guarantees; Foreign Security Agreements;
Soterra Guarantee. The U.S. Borrower Guarantee and
Security Agreement, the Domestic Guarantee and
Security Agreement from each Domestic Guarantor
listed on Schedule 5.2(a)(vi), a Foreign Guarantee
from each Foreign Guarantor listed on Schedule
5.2(a)(vi), a Foreign Security Agreement from each
Foreign Guarantor listed on Schedule 5.2(a)(vi), the
Soterra Guarantee and such other pledge agreements
required under applicable local or foreign law in the
judgment of counsel to the Lead Arranger (each of
which shall be in full force and effect), together
with (A) the certificates evidencing the Pledged
Securities and the Equity Interests pledged under
such Security Documents, and (B) undated stock
powers, instruments of transfer or assignment or
issuer acknowledgments executed in blank, if appli-
cable.
(vii) Intercompany Loans; Intercompany Security
Documents. The Intercompany Notes from each Company
listed on Schedule 5.2(a)(vii) (together with
instruments of transfer or assignment executed in
blank), an Intercompany Guarantee from each Company
listed on Schedule 5.2(a)(vii), an Intercompany
Security Agreement from each Company listed on
Schedule 5.2(a)(vii), and such other pledge
agreements required under local or foreign law in the
judgment of counsel to the Lead Arranger and
requested reasonably in advance of the Closing Date
(each of which shall be in full force and effect),
together with (A) the certificates identified under
the name of such Companies in the Intercompany
Security Agreements, and (B) undated stock powers,
instruments of assignment or issuer acknowledgments
executed in blank, if applicable.
(viii) Solvency Certificate. A certificate from
the chief financial officer of U.S. Borrower in form
and substance reasonably satisfactory to the Lead
Arranger with respect to the Solvency (on a
consolidated basis) of each Loan Party immediately
after the consummation of the Transactions to occur
on the Closing Date.
(ix) Insurance. Evidence of insurance complying
with the requirements of Section 7.5 and the Security
Documents and certificates naming the Paying Agent as
an additional insured and/or loss payee, and stating
that such insurance shall not be canceled or revised
without 30 days' prior written notice by the insurer
to the Paying Agent.
(b) Financial Statements. The Lead Arranger shall
have received (i) audited financial statements of Van Leer
that are reasonably acceptable to the Lead Arranger for
each of the fiscal years 1999, 1998 and 1997 (other than
audited balance sheets for fiscal years 1997 and 1998),
(ii) unaudited financial statements of Van Leer for the
fiscal year ended December 31, 2000, and (iii) a letter
from the certified public accountants of Van Leer with
respect to an interim review dated December 31, 2000, in
each case that are reasonably acceptable to the Lead
Arranger.
(c) Van Leer Acquisition Agreement in Full Force and
Effect; Filings. The Van Leer Acquisition Agreement shall
be in full force and effect. The Lead Arranger shall have
received copies, certified by U.S. Borrower, of all
filings made with any Governmental Authority in connection
with the Transactions.
(d) Compliance with Law. The Transactions and the
financing therefor shall be in compliance with all laws
and regulations or the Lead Arranger shall have determined
such to be inapplicable to the Transactions.
(e) Consummation of Van Leer Acquisition.
Simultaneously with the making of the initial Credit
Extension, the Van Leer Acquisition shall have been
consummated in all material respects in accordance with
the terms of the Van Leer Acquisition Agreement (without
the waiver or amendment of any material condition unless
consented to by the Lead Arranger and the Required
Lenders). Each of the parties thereto shall have complied
in all material respects with all covenants set forth in
the Van Leer Acquisition Agreement to be complied with by
it on or prior to the Closing Date (without the waiver or
amendment of any of the material terms thereof unless
consented to by the Lead Arranger and the Required Lend-
ers).
(f) Intercompany Loans. The Borrowers shall
simultaneously with the Closing Date make the Intercompany
Loans listed on Schedule 5.2(a)(vii).
(g) Refinancing. Simultaneously with the making of
the initial Credit Extension, U.S. Borrower shall have
effected the Refinancing on terms and conditions and
pursuant to documentation reasonably satisfactory to the
Lead Arranger. After giving effect to the Transactions,
U.S. Borrower and its subsidiaries shall have outstanding
no Indebtedness or preferred stock (or direct or indirect
guarantee or other credit support in respect thereof)
other than the Loans and the Indebtedness set forth on
Schedule 6.16, which shall not exceed the Dollar
Equivalent amount of U.S. $50,000,000. All Liens in re-
spect of the Refinanced Indebtedness shall have been
released, and the Lead Arranger shall have received
evidence thereof reasonably satisfactory to the Lead
Arranger and a "pay-off" letter or letters reasonably
satisfactory to the Lead Arranger with respect to the
Refinanced Indebtedness.
(h) No Conflicting Law or Regulation. No law or
regulation shall be applicable in the judgment of the Lead
Arranger that restrains, prevents or imposes material
adverse conditions upon the Transactions or the financing
thereof, including the Credit Facilities.
(i) No Material Adverse Change. There shall not
have occurred or become known any Material Adverse Change
of U.S. Borrower (after giving effect to the Transactions)
since October 31, 2000.
(j) Minimum EBITDA; Minimum Ratio of Consolidated
Indebtedness to EBITDA. The Lead Arranger shall have
received reasonably satisfactory evidence (including
satisfactory supporting schedules and other data) that
(i) pro forma EBITDA of the Companies calculated in
accordance with GAAP in a manner reasonably acceptable to
the Lead Arranger after giving effect to the Transactions
and to cash dividends received from CorrChoice for the
trailing four fiscal quarters ended immediately prior to
the Closing Date was not less than U.S. $230,000,000, and
(ii) the pro forma Total Leverage Ratio after giving
effect to the Transactions for the trailing four fiscal
quarters ended immediately prior to the Closing Date was
not greater than 3.3:1.0.
(k) Approvals. All requisite Governmental
Authorities and third parties shall have approved or
consented to the Transactions and the other transactions
contemplated hereby to the extent required (without the
imposition of any materially burdensome condition or
qualification in the judgment of the Lead Arranger), and
all such approvals shall be in full force and effect, all
applicable waiting periods shall have expired and there
shall be no governmental or judicial action, actual or
threatened, that has or would, individually or in the
aggregate, reasonably be expected to have a reasonable
likelihood of restraining, preventing or imposing
materially burdensome or materially adverse conditions on
any of the Transactions or the other transactions
contemplated hereby. The Lead Arranger shall have
received copies (certified by U.S. Borrower as true and
correct) of any such approvals or consents so obtained.
(l) Domestic Filings; Lien Searches; Perfection
Certificate. The Domestic Loan Parties shall have
authorized, executed and delivered each of the following:
(i) UCC Financing Statements or comparable
documents in appropriate form for filing under the
UCC and any other applicable law, rule or regulation
in each jurisdiction as may be necessary or
appropriate to perfect the Liens created, or
purported to be created, by the Security Documents on
the Collateral;
(ii) certified copies of Requests for
Information (Form UCC-11), tax lien, judgment lien
and pending lawsuit searches or equivalent reports or
lien search reports, each of a recent date listing
all effective financing statements, lien notices or
comparable documents that name any Domestic Loan
Party as debtor and that are filed in those state,
county and other domestic jurisdictions in which any
of the Collateral of such Domestic Loan Party is
located, the state, county and other domestic
jurisdictions in which each such Person's principal
place of business or chief executive office is
located and the state in which such Person is
organized, none of which encumber the Collateral
covered or intended to be covered by the Security
Documents other than those encumbrances which
constitute Prior Liens and other Liens expressly
permitted by the terms of the applicable Security
Document;
(iii) evidence of arrangements for (A) the
completion of all recordings and filings of, or with
respect to, the Security Documents, including, to the
extent required by the Lead Arranger, filings with
the United States Patent and Trademark Office and
United States Copyright Office, and (B) the taking of
all actions as may be necessary or, in the reasonable
opinion of the Lead Arranger, desirable, to perfect
the Liens created, or purported to be created, by the
Security Documents; and
(iv) a perfection certificate substantially in
the form of Exhibit L.
(m) Foreign Filings; Lien Searches; Perfection
Certificate. The Foreign Loan Parties shall have
authorized, executed and delivered each of the following:
(i) certified copies of requests for
information, tax lien, judgment lien and pending
lawsuit searches or equivalent reports or lien search
reports where available, each of a recent date
listing all effective financing statements, lien
notices or comparable documents that name any Foreign
Loan Party as debtor and that are filed in those
foreign jurisdictions in which any of the Collateral
or Intercompany Collateral of such Foreign Loan Party
is located, none of which encumber the Collateral or
Intercompany Collateral covered or intended to be
covered by the Security Documents other than those
encumbrances which constitute Prior Liens and other
Liens expressly permitted by the terms of the
applicable Security Document; and
(ii) evidence of arrangements for (A) the
completion of all recordings and filings of, or with
respect to, the Security Documents and (B) the taking
of all actions as may be necessary or, in the
reasonable opinion of the Lead Arranger, desirable,
to perfect the Liens created, or purported to be
created, by the Security Documents.
(n) Domestic Mortgage Matters. On or prior to the
Closing Date, each Loan Party shall have caused to be
delivered to the Lead Arranger, on behalf of the Lenders:
(i) a Domestic Mortgage encumbering each
Domestic Mortgaged Property in which the applicable
Loan Party holds a fee interest (as indicated on
Schedule 1.1(a)(i)) in favor of the Paying Agent, for
the benefit of the secured parties described therein,
duly executed and acknowledged by the Loan Party that
is the owner of or holder of an interest in such Mort-
gaged Property, and otherwise in form for recording
in the recording office of each political subdivision
where each such Mortgaged Property is situated,
together with such certificates, affidavits,
questionnaires or returns as shall be required in
connection with the recording or filing thereof to
create a lien under applicable law, and such UCC-1
Financing Statements and other similar statements as
are contemplated by such Mortgage, all of which shall
be in form and substance reasonably satisfactory to
the Lead Arranger, and any other instruments
necessary to grant a mortgage lien under the laws of
any applicable jurisdiction, which Mortgage and fi-
nancing statements and other instruments shall when
recorded be effective to create a first priority Lien
on such Mortgaged Property subordinate to no Liens
other than Prior Liens applicable to such Mortgaged
Property and subject to no other Liens except Liens
expressly permitted by such Mortgage;
(ii) with respect to each Domestic Mortgaged
Property described in subparagraph (i) above,
policies or certificates of insurance as required by
the Mortgage relating thereto, which policies or
certi ficates shall comply with the insurance
requirements contained in such Mortgage;
(iii) evidence reasonably acceptable to the Lead
Arranger of payment by U.S. Borrower of all mortgage
recording taxes, fees, charges, costs and expenses
required for the recording of the Domestic Mortgages
referred to in subparagraph (i) above;
(iv) with respect to each Real Property, copies
of all Leases in U.S. Borrower's possession or which
can be obtained without undue burden; and
(v) with respect to each Domestic Mortgaged
Property described in subparagraph (i) above, U.S.
Borrower and each Subsidiary shall have made all
notification, registrations and filings, to the
extent required by, and in accordance with, all state
and local Real Property Disclosure Requirements
applicable to such Mortgaged Property, including the
use of forms provided by state or local agencies,
where such forms exist, whether to U.S. Borrower or
to or with the state, local or foreign agency.
(o) Payment of Fees and Expenses. All accrued fees
and expenses (including the reasonable fees and expenses
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and of all local domestic and
foreign counsel) of the Lenders and the Lead Arranger in
connection with the Credit Documents and the Intercompany
Loan Documents shall have been paid. U.S. Borrower hereby
authorizes the Lead Arranger to deduct the amount of all
such fees and expenses from the proceeds of the Loans at
the Closing Date and make payment directly to all such
counsel by wire transfer of funds at the Closing Date as
set forth in a schedule to an Officers' Certificate
delivered at the Closing Date.
5.3. Conditions to All Credit Extensions. The
obligation of the Lenders to make any Credit Extension
(including the initial Credit Extension) hereunder is subject
to the satisfaction of the following conditions precedent on
the relevant Borrowing Date or Issuance Date:
(a) Notice, Application. The Paying Agent shall
have received a Notice of Borrowing from the Applicable
Borrower or the L/C Lender, and the Paying Agent shall
have received an L/C Application or L/C Amendment
Application from the Applicable Borrower as required under
Section 3.2 (in the case of any Issuance of a Letter of
Credit).
(b) No Existing Default; No Legal Bar. No Event of
Default or Unmatured Event of Default shall exist or shall
result from such Credit Extension. No order, judgment or
decree of any court, arbitrator or Governmental Authority
shall purport to restrain any Lender from making any Loans
to be made by it on the date of such Credit Extension; and
no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed
with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the
transactions contemplated by this Agreement or the making
of Credit Extensions hereunder.
(c) Continuation of Representations and Warranties.
The representations and warranties of each Borrower in
Article VI and each Loan Party in each other Credit
Document to which it is a party shall be true and correct
in all material respects (except for those representations
or warranties which are already qualified as to
materiality, which shall be true and correct) on and as of
the date of such Credit Extension with the same effect as
if made on and as of such date (except to the extent such
representations and warranties expressly refer to an
earlier date, in which case they shall be true and correct
as of such earlier date).
Each Notice of Borrowing, L/C Application and L/C
Amendment Application request submitted by any Applicable
Borrower hereunder shall constitute a representation and
warranty by each Applicable Borrower hereunder, as of the date
of such notice or request and as of the relevant Borrowing Date
or Issuance Date, as applicable, that the applicable conditions
in Section 5.1, Section 5.2 and/or this Section 5.3 are
satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each Borrower makes the following representations and
warranties to each Co-Agent and each Lender, all of which shall
survive the execution and delivery of this Agreement and the
making of the Loans (with the execution and delivery of this
Agreement on the Closing Date and the making of each Credit
Extension thereafter being deemed to constitute a
representation and warranty that the matters specified in this
Article VI are true and correct in all material respects after
giving effect to the Van Leer Acquisition and the related trans-
actions and as of the date of such Credit Extension unless such
representation and warranty expressly indicates that it is be-
ing made as of any specific date).
6.1. Corporate Status. Each Company (a) is a
corporation, partnership, joint stock company, limited
liability company, unlimited liability company or other legal
entity duly organized or formed, validly existing and, if
applicable, in good standing under the laws of its jurisdiction
of organization; (b) has full corporate or other organizational
power and authority and possesses all material governmental
franchises, licenses, permits, authorizations and approvals
necessary to enable it to own, lease or otherwise hold its
properties and assets and to carry on its business as presently
conducted; (c) in the case of the Domestic Loan Parties is duly
qualified and in good standing to do business as a foreign
corporation or other organization in each U.S. state in which
the conduct or nature of its business or the ownership, leasing
or holding of its properties makes such qualification
necessary; and (d) is in compliance with all Requirements of
Law, except, in each case referred to in clauses (b), (c) and
(d), to the extent that the failure to do so would not,
individually or in the aggregate, have a Material Adverse
Effect.
6.2. Authority. Each Company has all requisite
corporate or other organizational power and authority to enter
into each Credit Document and Transaction Document to which it
is a party and to perform its obligations thereunder and to
consummate the transactions contemplated thereby. All
corporate or other organizational acts and other proceedings
required to be taken by each Company to authorize the
execution, delivery and performance of each Credit Document and
Transaction Document to which such entity is a party and the
consummation of the transactions contemplated thereby have been
duly and properly taken.
6.3. No Conflicts; Consents. (a) The execution,
delivery and performance by each Company of each Credit
Document and Transaction Document to which such entity is a
party does not and will not conflict with, or result in any
violation of or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a
material benefit under, any provision of (i) the Organization
Documents of such Company; (ii) any note, bond, mortgage, inden-
ture, deed of trust, license, Lease, contract, commitment,
agreement or arrangement to which such Company is a party or by
which any of its properties or assets are bound, except as the
same may relate to any Refinanced Indebtedness; or (iii) any
judgment, order or decree, or statute, law, ordinance, rule or
regulation applicable to such Company or its properties or
assets, other than, in the case of clauses (ii) and (iii)
above, any such items that would not, individually or in the
aggregate, have a Material Adverse Effect.
(b) No consent, approval, license, permit, order or
authorization of, or registration, declaration or filing with,
any Governmental Authority is required to be obtained or made
by or with respect to any Company in connection with (i) the
execution, delivery and performance of any Credit Document or
Transaction Document, (ii) the consummation of the Transactions
or the other transactions contemplated hereby or thereby,
(iii) the exercise by the Paying Agent of the voting or other
rights provided for in the Security Documents, or (iv) the
exercise by the Paying Agent of the remedies in respect of the
Collateral pursuant to the Security Documents, in each case
other than (A) those the failure of which to obtain would not,
individually or in the aggregate, have a Material Adverse
Effect, and (B) filings required pursuant to applicable
antitrust or merger laws.
6.4. Binding Effect. Each Credit Document and
Transaction Document to which any Company is a party
constitutes the legal, valid and binding obligation of such
Company, enforceable against such Company in accordance with
its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable
principles relating to enforceability, or by other laws and
regulations of non-U.S. jurisdictions.
6.5. Litigation. Except as set forth on
Schedule 6.5, there are no Proceedings pending or, to the best
knowledge of U.S. Borrower, threatened or contemplated, at law,
in equity, in arbitration or before any Governmental Authority,
against or affecting any Company or any of its properties which
(a) would, individually or in the aggregate, have a Material
Adverse Effect; or (b) would reasonably be expected to give
rise to any legal restraint on or prohibition against or
challenge the Transactions or any of the transactions
contemplated by any Credit Document or Transaction Document.
No Company is a party or subject to or in default under any
material judgment, order, injunction or decree of any
Governmental Authority or arbitration tribunal applicable to it
or any of its respective properties, assets, operations or
businesses, except where such events would not, individually or
in the aggregate, have a Material Adverse Effect. To the best
of U.S. Borrower's knowledge, there is no pending investigation
of any Company, nor has there been any such investigation
threatened in writing in either case by any Governmental
Authority, except where such events would not, individually or
in the aggregate, have a Material Adverse Effect.
6.6. No Default; Material Contractual Obligations.
No Company is in default in the performance, observance or
fulfillment of any Contractual Obligation of such Company which
default would, individually or in the aggregate with any other
default, have a Material Adverse Effect, and no condition
exists which, with the giving of notice or the lapse of time or
both, would, individually or in the aggregate with any other
condition, constitute such a default. No event has occurred
and no condition exists which, individually or in the aggregate
with any other event or condition, would constitute an Event of
Default or an Unmatured Event of Default. No Company is in
violation of any term of its Organization Documents.
6.7. ERISA. (a) No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all
other such ERISA Events for which liability is reasonably
expected to occur, would reasonably be expected to result in a
Material Adverse Effect. As of the most recent valuation date
for any Pension Plan, except as set forth on Schedule 6.7, the
amount of Unfunded Pension Liabilities individually or in the
aggregate for all Pension Plans (excluding for purposes of such
computation any Pension Plans which have a negative amount of
Unfunded Pension Liabilities) does not exceed U.S. $15,000,000.
Each ERISA Entity is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code
with respect to each Plan, except for noncompliance that would
not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Using actuarial assumptions
and computation methods consistent with subpart 1 of subtitle E
of Title IV of ERISA, the aggregate liabilities of each ERISA
Entity to all Multiemployer Plans in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal
year of each such Multiemployer Plan, would not reasonably be
expected to result in a Material Adverse Effect.
(b) Each Foreign Plan has been maintained in
material compliance with its terms and with the requirements of
any and all applicable laws, statutes, rules, regulations and
orders and has been maintained, where required, in good
standing with applicable regulatory authorities, except for
noncompliance that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Except as set forth on Schedule 6.7, no Loan Party has incurred
any material obligation in connection with the termination of
or withdrawal from any Foreign Plan that would, individually or
in the aggregate, reasonably be expected to have a Material
Adverse Effect. The present value of the accrued benefit
liabilities (whether or not vested) in the aggregate for all
Foreign Plans which are funded, determined as of the end of the
most recently ended fiscal year of a Loan Party on the basis of
actuarial assumptions, each of which is reasonable, did not
exceed the current value of the assets of such Foreign Plans by
an amount that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and
for the Foreign Plans which are not funded, the obligations of
such Foreign Plans are properly accrued in all material
respects in accordance with local accounting policies, except
where the failure to do so would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Ef-
fect.
6.8. Use of Proceeds; Margin Regulations. The
proceeds of the Loans are to be used solely for the purposes
set forth in and permitted by Section 7.12 and Section 8.7. No
proceeds of any Revolving Loan were or will be used as
consideration for any portion of the Van Leer Acquisition. No
Company is generally engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of pur-
chasing or carrying Margin Stock.
6.9. Financial Condition; Financial Statements;
Solvency; etc. (a) The audited consolidated balance sheet of
U.S. Borrower dated October 31, 2000 (the "Balance Sheet"), and
the audited consolidated statements of operations and cash
flows of U.S. Borrower for the fiscal year ended October 31,
2000, together with the notes to such financial statements,
have been prepared in conformity with principles consistently
applied (except in each case as described in the notes thereto)
and on that basis fairly present in all material respects the
consolidated financial condition and results of operations of
U.S. Borrower as of the date thereof and for the period
indicated. The audited consolidated balance sheet of Van Leer
and its Subsidiaries for the fiscal year ended December 31,
1999 and the audited consolidated profit and loss account and
cash flow statements of Van Leer and its Subsidiaries for the
fiscal years ended December 31, 1997, December 31, 1998 and
December 31, 1999, together with the notes to such financial
statements, have been prepared in conformity with generally
accepted accounting practices in The Netherlands consistently
applied (except in each case as described in the notes thereto)
and the unaudited consolidated balance sheet, profit and loss
account and cash flow statements of Van Leer and its
Subsidiaries for the fiscal year ended December 31, 2000, have
been prepared in conformity with generally accepted accounting
practices in The Netherlands consistently applied and on that
basis fairly present in all material respects the consolidated
financial condition and results of operations of Van Leer and
its Subsidiaries at the dates and for the periods indicated.
(b) Since October 31, 2000, there has not occurred
an event or condition that has had or would have, individually
or in the aggregate, a Material Adverse Effect.
(c) On and as of the Closing Date and on and as of
each Borrowing Date and each Issuance Date, on a pro forma
basis after giving effect to the Transactions to occur on such
date (solely as to the Closing Date) and to all Indebtedness
incurred, and to be incurred, and Liens created, and to be
created, by each Loan Party on such date, each Loan Party (on a
consolidated basis with its Subsidiaries) is and will be
Solvent.
(d) Except as fully reflected in the financial
statements delivered at any time pursuant to Section 7.1 or any
financial statements delivered in connection with the
consummation of the Transactions and except for the
Indebtedness incurred under this Agreement, there were as of
the Closing Date and on and as of each Borrowing Date and each
Issuance Date (and after giving effect to any Loans made on
such date) no liabilities or obligations (excluding current
obligations incurred in the ordinary course of business) with
respect to any Company of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether or not
due) which, individually or in the aggregate, have had or would
have a Material Adverse Effect.
(e) During the period from October 31, 2000 to and
including the Effective Date, except as provided in the
Transaction Documents, there has been no sale, transfer or
other disposition by any Company of any material part of its
business or property, taken as a whole, and no purchase or
other acquisition by any of them of any business or property
(including any capital stock of any other Person) material in
relation to the consolidated financial condition of U.S.
Borrower and its Subsidiaries, taken as a whole.
6.10. Subsidiaries; Properties. As of the
Closing Date and after giving effect to the Transactions, U.S.
Borrower had no Subsidiaries other than those specifically
disclosed in part (a) of Schedule 6.10 hereto and has no equity
investments in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 6.10. Each
Company owns or leases, as applicable, all properties and
assets reflected in the most recent financial statements
delivered pursuant to Section 7.1, except as sold or otherwise
disposed of since the date of such financial statements in the
ordinary course of business and in accordance with this
Agreement. Title to each such property or asset is held by
U.S. Borrower or a Subsidiary free and clear of all Liens,
except in the case of Collateral, Liens permitted by the
applicable Security Documents, and in the case of properties
and assets not constituting Collateral, Permitted Liens. The
Companies hold all material licenses, certificates of occupancy
or operation and similar certificates and clearances of
municipal and other authorities necessary to own and operate
their properties in the manner and for the purposes currently
operated by such parties the absence of which would,
individually or in the aggregate, have a Material Adverse
Effect. No Company has received written notice of defaults
with respect to any leases of real property under which any
Company is lessor or lessee that would, individually or in the
aggregate, have a Material Adverse Effect.
6.11. Taxes. (a) Each Company has timely filed
all Tax Returns required to be filed by it, and each such Tax
Return is complete and correct in all material respects.
Except as set forth in Schedule 6.11, each Company has timely
paid all Taxes shown as due and payable on such Tax Returns or
that are otherwise due and payable (except those Taxes that are
being contested in good faith and for which adequate reserves
are being maintained in accordance with GAAP), except where
failure to do so would not, individually or in the aggregate,
have a Material Adverse Effect. Each Company has made adequate
provision for all Taxes of such Company which are not yet due
and payable. The Loan Parties do not know of any proposed or
pending tax assessment, audit or deficiency against any Company
that would, individually or in the aggregate, have a Material
Adverse Effect.
(b) (i) No extension of a statute of limitations
relating to material Taxes is in effect with respect to any
Company; (ii) no Company has ever been a member of an
affiliated group of corporations within the meaning of
Section 1504 of the Code other than an affiliated group of
corporations of which U.S. Borrower was the common parent; and
(iii) there are no material Tax sharing agreements or similar
arrangements (including Tax indemnity arrangements) with
respect to or involving any Company other than between or among
the Companies.
(c) All deficiencies or assessments which have been
asserted against any Company as a result of any federal, state,
local or foreign Tax examination for each taxable year in
respect of which an examination has been conducted have been
fully paid or finally settled or are being contested in good
faith, and no issue has been raised in any such examination
which, by application of similar principles, reasonably would
be expected to result in assertion of a material deficiency for
any other year not so examined which has not been reserved for
in U.S. Borrower's consolidated financial statements heretofore
delivered to the Lead Arranger to the extent, if any, required
by GAAP.
6.12. Environmental Matters. (a) Except as set
forth on Schedule 6.12 and except as would not, individually or
in the aggregate, after giving effect to the insurance policy
described in subsection 6.12(c) below, have a Material Adverse
Effect:
(i) Each Company has obtained all Environmental
Approvals with respect to the operation of the businesses
and facilities and properties owned, leased or operated by
any of them including, without limitation, any joint
ventures.
(ii) Each Company is in compliance with all terms and
conditions of the Environmental Approvals specified in
subsection (i) above, and is also in compliance with, and
has no liability under, any Environmental Laws.
(iii) No Company has received written notice that it
has been identified as a potentially responsible party
under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended
("CERCLA"), or any comparable foreign or state law, nor
has any Company received any written notification that any
Hazardous Materials that it or any of its predecessors in
interest has used, generated, stored, treated, handled,
transported or disposed of, or arranged for disposal or
treatment of, or arranged with a transporter for transport
for disposal or treatment of, have been found at any site
at which any governmental agency or private party is
conducting or plans to conduct a remedial investigation or
other action pursuant to any Environmental Law.
(iv) There have been no Releases of Hazardous
Materials by any Company or, to the knowledge of the
Borrowers, their respective predecessors in interest on,
at, upon, into or from any facilities or properties owned,
leased, or operated by any of them. To the knowledge of
the Borrowers, there have been no such Releases of
Hazardous Materials on, at, under or from any property
adjacent to any Mortgaged Property that, through soil,
air, surface water or groundwater migration or contamination,
would reasonably be expected to have migrated to or
under any Mortgaged Property.
(v) No properties now or formerly owned, leased or
operated by any Company are (i) listed or proposed for
listing on the National Priorities List under CERCLA or
(ii) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List
promulgated pursuant to CERCLA or (iii) included on any
comparable lists maintained by any Governmental Authority.
(vi) There are no past or present events, conditions,
activities, practices, or actions which would reasonably
be expected to prevent any Company's compliance with any
Environmental Law, or which could reasonably be expected
to give rise to any liability under any Environmental Law.
(vii) No properties now or formerly owned, leased or
operated by any Company are or would reasonably be
expected to be the subject of any investigation, response
or corrective action under any Environmental Law.
(viii) No Lien has been asserted or recorded, or to the
knowledge of the Borrowers threatened under any
Environmental Law with respect to any assets, facility,
Inventory or property owned, leased or operated by any Com-
pany.
(ix) No Company has assumed by contract or agreement
any liabilities or obligations arising under any
Environmental Law.
(x) No Company has entered into or agreed to any
currently pending or effective judgment, decree or order
by any judicial or administrative tribunal, or is subject
to any judgment, decree or order relating to compliance
with any Environmental Law or to investigation, response
or corrective action with respect to any Hazardous
Material under any Environmental Law.
(xi) No Company has received any notice of an Environ-
mental Claim.
(xii) There are no underground storage tanks or
related piping surface impoundments, or landfills at any
property owned, operated or leased by any Company, other
than those maintained in all material respects in
compliance with all Environmental Laws, the violation of
which would not have a Material Adverse Effect, and any
former underground tanks or related piping surface
impoundments, or landfills on any such property have been
removed or closed in accordance with Environmental Laws.
(b) Environmental Documents. On the Effective Date,
to the knowledge of U.S. Borrower, all environmental
investigations, studies, audits or assessments in the
possession or control of any Company ("Reports") concerning any
violation or potential violation of, or liability or potential
liability under, any Environmental Law relating to any current
or prior business, facilities or properties of any Company (or
any of their respective predecessors in interest) or any
property, asset or facility currently or formerly (i) owned,
operated or leased or (ii) used for the storage or disposal of
Hazardous Materials, in each case by any Company (or any of
their respective predecessors in interest) have been made
available to the Lead Arranger, except for Reports concerning
such violation or liability, individually or in the aggregate,
which would not have a Material Adverse Effect.
(c) Environmental Insurance. As of the Effective
Date, the Companies currently maintain in full force and
effect, with Environmental Compliance Services (or other
financially sound and reputable independent insurer reasonably
satisfactory to the Lead Arranger), insurance with respect to
their properties and business against Environmental Claims
substantially in the form provided to the Lead Arranger prior
to the Effective Date.
6.13. Regulated Entities. No Company is an
"investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended. No Company is subject to
regulation under the Public Utility Holding Company Act of
1935, the U.S. Federal Power Act, the Interstate Commerce Act,
any state public utilities code, or any other U.S. Federal or
state statute or regulation limiting its ability to incur In-
debtedness.
6.14. Employee and Labor Matters. There is
(i) no unfair labor practice complaint pending against any
Company or, to the best knowledge of the Borrowers, threatened
against any of them, before the National Labor Relations Board
or similar foreign entity, and no grievance or arbitration
proceeding arising out of or under any collective bargaining
agreement is so pending against any Company or, to the best
knowledge of the Borrowers, threatened against any of them, and
(ii) no strike, labor dispute, slowdown or stoppage pending
against any Company or, to the best knowledge of the Borrowers,
threatened against any Company, except such as would not (with
respect to any matter specified in clause (i) or (ii) above,
either individually or in the aggregate) have a Material Ad-
verse Effect.
6.15. Intellectual Property. (a) Each Company
owns or possesses adequate licenses or otherwise has the right
to use all of the patents, patent applications, trademarks,
trademark applications, service marks, service ▇▇▇▇
applications, trade names, copyrights, trade secrets and know-
how (whether domestic or foreign) (collectively, "Intellectual
Property") that are necessary for the operation of its business
as presently conducted, except where the failure to so own or
possess licenses or rights would not, individually or in the ag-
gregate, have a Material Adverse Effect. To the knowledge of
U.S. Borrower, no claim is pending that any Company infringes
upon the asserted rights of any other Person under any
Intellectual Property, except for any such claim which would
not, individually or in the aggregate, have a Material Adverse
Effect. To the knowledge of U.S. Borrower, no claim is pending
that any such Intellectual Property owned or licensed by any
Company or which any Company otherwise has the right to use, is
invalid or unenforceable, except for any such claim which would
not, individually or in the aggregate, have a Material Adverse
Effect.
(b) Except as set forth in Schedule 6.15 or except
as would not, individually or in the aggregate, have a Material
Adverse Effect, a Company owns or has the right to use all
Intellectual Property described in clause (a), and the
consummation of the transactions contemplated hereby will not
alter or impair any such rights. Subject to the rights of
third parties set forth in Schedule 6.15, the applicable
Company's rights, title and interests in its Intellectual
Property described in clause (a) (i) that constitutes
Collateral are free and clear of all Liens other than Liens
permitted by this Agreement and the applicable Security
Documents, excluding licenses entered into in the ordinary
course of business and (ii) that does not constitute Collateral
are free and clear of all Liens other than Permitted Liens.
6.16. Existing Indebtedness. Schedule 6.16 sets
forth a true and complete list of all Indebtedness of the
Companies owed to any person other than a Company outstanding
as of the Effective Date (other than the Obligations) and that
is to remain outstanding after giving effect to the
Transactions occurring on the Closing Date and the incurrence
of Loans on the Closing Date, in each case showing the
aggregate principal amount thereof and the name of the
applicable borrower and any other entity which directly or
indirectly guaranteed such Indebtedness. Such Indebtedness has
a Dollar Equivalent principal amount of less than U.S.
$50,000,000.
6.17. True and Complete Disclosure. All factual
information (taken as a whole) heretofore or contemporaneously
furnished by or on behalf of U.S. Borrower and the other
Companies in writing to any Lender (including, without
limitation, all information contained in the Transaction
Documents and the Confidential Memorandum) for purposes of or
in connection with this Agreement or any transaction
contemplated herein is (or was, on the Closing Date), and all
other such factual information (taken as a whole) furnished by
or on behalf of the Companies in writing to any Lender after
the Closing Date was and will be, true and accurate in all
material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any
material fact necessary to make such information, taken as a
whole, not misleading at such time in light of the
circumstances under which such information was provided. The
projections and pro forma financial information contained in or
to be contained in such materials (including the projections
included in the Confidential Memorandum and the budgets to be
furnished pursuant to Section 7.1(c)) are and will be based on
good faith estimates and assumptions believed by U.S. Borrower
to be reasonable at the time made, it being recognized by the
Lenders that such projections as to future events are not to be
viewed as facts, that actual results during the period or
periods covered by any such projections may differ materially
from the projected results and that U.S. Borrower makes no
representation or warranty that such projections, pro forma
results or budgets will be realized. There is no fact known to
U.S. Borrower which materially and adversely affects the
business, operations, property, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of
the Companies, taken as a whole, which has not been disclosed
herein or in such other documents, certificates and written
statements furnished to the Lenders for use in connection with
the transactions contemplated hereby.
6.18. Security Interests; Certain Matters
Relating to Collateral. (a) The Security Documents, once
executed, delivered, filed and/or recorded, together with all
necessary filings contemplated by the Security Documents, will
create, in favor of the Paying Agent for its benefit and for
the benefit of the Lenders, as security for the obligations
purported to be secured thereby, a valid and enforceable
perfected first priority security interest in and Lien upon all
of the Collateral, superior to and prior to the rights of all
third persons and subject to no Liens except the Prior Liens
applicable to such Collateral and Liens permitted by the
applicable Security Document, in all cases until the security
interests created thereby are released in accordance with this
Agreement and the Security Documents. The mortgagor under each
Domestic Mortgage and Foreign Mortgage has good and marketable
title to the Mortgaged Property free and clear of all Liens
other than Liens and Prior Liens applicable to such Mortgaged
Property and Liens permitted by the applicable Mortgage. Each
pledgor or assignor, as the case may be, has (or on and after
the time it executes the applicable Security Document, will
have) good and marketable title to all items of Collateral
(other than Real Property subject to a Mortgage) covered by
such Security Document free and clear of all Liens other than
Liens permitted by the applicable Security Document. No
filings or recordings are required in order to perfect the
security interests created under any Security Document on the
date such document is delivered, except for filings or
recordings required in connection with any such Security
Document as set forth in such Security Document.
(b) The Intercompany Security Documents, once
executed, delivered, filed and/or recorded, will create, in
favor of the lender under the applicable Intercompany Loan, as
security for the obligations purported to be secured thereby, a
valid and enforceable perfected first priority security
interest in and Lien upon all of the Intercompany Collateral,
superior to and prior to the rights of all third persons and
subject to no Liens except the Prior Liens applicable to such
Intercompany Collateral and Liens permitted by the applicable
Security Document, in all cases until the security interests
created thereby are released in accordance with this Agreement
and the Intercompany Security Documents. The mortgagor under
each Intercompany Mortgage has good and marketable title to the
Mortgaged Property free and clear of all Liens other than Prior
Liens applicable to such Mortgaged Property and Liens permitted
by the applicable Mortgage. Each pledgor or assignor, as the
case may be, has (or on and after the time it executes the
applicable Intercompany Security Document, will have) good and
marketable title to all items of Intercompany Collateral (other
than Real Property subject to a Mortgage) covered by such
Intercompany Security Document free and clear of all Liens
other than Liens permitted by the applicable Intercompany
Security Document. No filings or recordings are required in
order to perfect the security interests created under any
Intercompany Security Document on the date such document is
delivered, except for filings or recording required in
connection with any such Intercompany Security Document as set
forth in such Security Document.
(c) No Company owns any Real Property located in the
United States and not listed on Schedule 1.1(a)(i) the loss of
which (without giving effect to any insurance recovery or other
recovery), by itself, would reasonably result in a Material
Adverse Change with respect to U.S. Borrower. On and after the
date that is 90 days after the Effective Date, no Company
leases any Real Property located in the United States and not
subject to a leasehold Mortgage in favor of the Creditors the
loss of which (without giving effect to any insurance recovery
or other recovery), by itself would reasonably be expected to
result in a Material Adverse Change with respect to U.S.
Borrower. Such leased Real Property as of the date hereof is
listed in Schedule 1.1(a)(i).
6.19. Representations and Warranties in Credit
Documents and Transaction Documents. All representations and
warranties set forth in the other Credit Documents and the
Transaction Documents were (with respect to representations and
warranties of parties other than U.S. Borrower, to the
knowledge of U.S. Borrower) true and correct in all material
respects as of the time such representations and warranties
were made and are true and correct in all material respects as
of the Closing Date as if such representations and warranties
were made on and as of such date, unless stated to relate to a
specific earlier date, in which case such representations and
warranties were true and correct in all material respects as of
such earlier date.
6.20. Van Leer Acquisition. At the time of
consummation thereof, the Van Leer Acquisition will be
consummated substantially in accordance with the terms of the
Van Leer Acquisition Documents and all applicable Requirements
of Law. At the time of consummation thereof, all consents and
approvals of, and filings and registrations with, and all other
actions in respect of, all Governmental Authorities required to
make or consummate the Van Leer Acquisition shall be obtained,
given, filed or taken or waived and are or will be in full
force and effect (or effective judicial relief with respect
thereto has been obtained), except as set forth on Schedule
6.20 and except where the failure to obtain, give, file, or
take would not, individually or in the aggregate, have a
Material Adverse Effect. All applicable waiting periods with
respect thereto have or, prior to the time when required, will
have, expired without, in all such cases, any action being
taken by any competent Governmental Authority which restrains,
prevents, or imposes material adverse conditions upon the Van
Leer Acquisition except where the failure to so expire would
have a Material Adverse Effect. Additionally, there does not
exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon the Van Leer Acquisition or
the performance by the Companies of their obligations under the
Van Leer Acquisition Documents and all applicable Requirements
of Law.
6.21. Broker's Fees. No broker's or finder's fee
or commission will be payable with respect to this Agreement or
any of the Transactions contemplated hereby, and the Borrowers
hereby jointly and severally indemnify the Co-Agents and the
Lenders against, and agree that they will jointly and severally
hold the Co-Agents and the Lenders harmless from, any claim,
demand or liability for any such broker's or finder's fees al-
leged to have been incurred in connection herewith or therewith
and any expenses (including fees, expenses and disbursements or
counsel) arising in connection with any such claim, demand or
liability.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment
hereunder, or any Loan or other Obligation (other than any
contingent indemnity Obligations) shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding:
7.1. Financial Statements, etc. The Borrowers shall
deliver to the Paying Agent and each Lender, in form and detail
reasonably satisfactory to the Paying Agent:
(a) as soon as available, but not later than 90 days
after the end of each fiscal year, a copy of the audited
consolidated balance sheet of the Companies as at the end
of such year and the related consolidated statements of
operations, retained earnings, shareholders' equity and
cash flow for such year, setting forth in each case in
comparative form the corresponding consolidated figures
for the previous fiscal year and comparable budgeted
figures for such fiscal year, and, in the case of the
consolidated statements, accompanied by the opinion of
Ernst & Young LLP or another internationally recognized
independent certified public accounting firm selected by
U.S. Borrower and reasonably acceptable to the Paying
Agent (the "Independent Auditor"), which opinion (i) shall
state that such consolidated financial statements present
fairly in all material respects the consolidated financial
position and results of operations of the Companies for
the periods indicated in conformity with GAAP and
(ii) shall not be qualified or limited because of a
restricted or limited examination or in any other material
respect by the Independent Auditor of any material portion
of any Company's records and shall be delivered to the
Paying Agent pursuant to a reliance agreement between the
Paying Agent and Lenders and such Independent Auditor in
form and substance reasonably satisfactory to the Agents
and a certificate of such accountants stating that in the
course of its regular audit of the business of the
Companies no Event of Default or Unmatured Event of
Default which has occurred and is continuing has come to
their attention or, if such an Event of Default or
Unmatured Event of Default has come to their attention, a
statement as to the nature thereof;
(b) as soon as available, but not later than 45 days
after the end of each fiscal quarter (other than the
fourth fiscal quarter, which will be delivered in 90 days)
of each fiscal year, a copy of the consolidated balance
sheet of the Companies as at the end of such quarter and
the related consolidated statements of operations,
retained earnings and cash flow for the period commencing
on the first day and ending on the last day of such
quarter, and the period from the beginning of the
respective fiscal year to the end of such quarter, setting
forth in each case in comparative form the corresponding
consolidated figures for the corresponding period in the
previous fiscal year, accompanied by a certificate of a Re-
sponsible Officer of U.S. Borrower, which certificate
shall state that said consolidated financial statements
fairly present in all material respects, in accordance
with GAAP (subject to ordinary, good-faith year-end
adjustments and the absence of footnotes), the
consolidated financial position and the results of
operations of the Companies;
(c) within 90 days after the commencement of each
fiscal year, budgets of the Companies in reasonable detail
for each fiscal quarter of such fiscal year and for each
fiscal quarter of the immediately succeeding fiscal year,
in each case, as customarily prepared by management for
its internal use, setting forth, with appropriate
discussion, the principal assumptions upon which such
budgets are based. Together with each delivery of
statements of operations pursuant to subsection 7.1(b), a
comparison of the current year-to-date financial results
against the budgets required to be submitted pursuant to
this subsection (c) shall be presented; and
(d) promptly upon receipt thereof, a copy of each
definitive report or "management letter" submitted to any
Company by its independent accountants in connection with
any annual, interim or special audit made by them of the
books of any Company.
7.2. Certificates; Other Information. The Borrowers
shall deliver to the Paying Agent and each Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and (b), a
Compliance Certificate executed by a Responsible Officer
of U.S. Borrower stating that the Borrowers and their
Subsidiaries are in compliance with each covenant set
forth under this Article VII and Article VIII, together
with calculations demonstrating Excess Cash Flow (in the
case of delivery of financial statements pursuant to
subsection 7.1(a)) in reasonable detail compliance with
each Financial Maintenance Covenant, and with respect to
any calculation utilizing EBITDA, a schedule showing the
pro forma effect of any Acquisition to the extent pro
forma effect is given thereto with appropriate supporting
information and data;
(b) on and after the Trigger Date, concurrently with
the financial statements delivered pursuant to subsections
7.1(a) and 7.1(b), an Interest Rate Certificate executed
by a Responsible Officer of U.S. Borrower;
(c) as soon as practicable, copies of all financial
statements and regular, periodical or special reports that
any Company may make to, or file with, the SEC or similar
foreign authority or securities exchange if not otherwise
delivered under Section 7.1;
(d) as soon as practicable, such additional
information regarding the business, financial or corporate
affairs of any Company as the Paying Agent or any Lender
(through the Paying Agent) may from time to time rea-
sonably request; and
(e) within 45 days after the end of each fiscal
quarter of each fiscal year, a certificate of a
Responsible Officer (i) certifying compliance with
Sections 5.6, 5.7, 6.5, 7.1 and 8.5 of the U.S. Borrower
Guarantee and Security Agreement and the Domestic
Guarantee and Security Agreement and the provisions of
Sections 7.15 and 7.16 and (ii)(A) certifying that no Real
Property has been acquired subsequent to the Closing Date
or the date of the last certificate delivered under this
subsection 7.2(e), as appropriate, or if such Real
Property has been so acquired, certifying which Real
Property has been so acquired; (B) if such Real Property
has been so acquired, certifying that such Real Property
has been made subject to the Lien of the Security
Documents in accordance with the provisions of Section
7.15, if so required; and (C) certifying that no property
(other than Real Property) has been acquired subsequent to
the Closing Date or the date of the last certificate
delivered under this subsection 7.2(e), as appropriate,
which property has not been made subject to the Lien of
the Security Documents in accordance with the provisions
of Section 7.15.
7.3. Notices. Promptly upon a Responsible Officer of
any Company learning thereof, a Borrower shall notify the
Paying Agent and each Lender:
(a) of the occurrence of any Event of Default or
Unmatured Event of Default;
(b) of any of the following matters that would,
individually or in the aggregate with any other such
matters, reasonably be expected to have a Material Adverse
Effect: (i) any material breach or non-performance of, or
any material default under, a Contractual Obligation of
any Company; (ii) any dispute, litigation, investigation,
proceeding or suspension by or before any Governmental
Authority affecting any Company; or (iii) the commencement
of, or any material development in, any litigation or
proceeding affecting any Company, including pursuant to
any applicable Environmental Laws; and
(c) of the occurrence of any of the following events
if such event has resulted or could reasonably be expected
to result in any Material Adverse Effect or in a Lien
under ERISA or the Code (but in no event more than ten
days after such event), and deliver to the Paying Agent
and each Lender a copy of any notice with respect to such
event that is filed with a Governmental Authority and any
notice delivered by a Governmental Authority to any ERISA
Entity with respect to such event, and upon the request of
the Paying Agent or any Lender shall furnish any Schedule
B (Actuarial Information) to the annual report (Form 5500
Series) filed by any ERISA Entity with the Internal
Revenue Service with respect to any Pension Plan: (i) an
ERISA Event; (ii) the adoption after the Closing Date of,
or the commencement after the Closing Date of
contributions to, any Plan subject to Section 412 of the
Code by any ERISA Entity; (iii) the adoption after the
Closing Date of any amendment to a Plan subject to Sec-
tion 412 of the Code; (iv) of any pending or threatened
Environmental Claim against any Company or any Real
Property owned or operated by any Company that would,
individually or in the aggregate, have a Material Adverse
Effect; (v) of any condition or occurrence on any Real
Property owned or operated by any Company that (x) results
in noncompliance by any Company with any applicable
Environmental Law or (y) would form the basis of an
Environmental Claim against any Company or any such Real
Property, in each case of clause (x) or clause (y) to the
extent that any such noncompliance or Environmental Claim
would, singly or in the aggregate, have a Material Adverse
Effect; and (vi) of any condition or occurrence on any
Real Property owned or operated by any Company that could
reasonably be expected to cause such Real Property to be
subject to any restrictions on the ownership, occupancy,
use or transferability by any Company, as the case may be,
of its interest in such Real Property under any
Environmental Law which condition or occurrence would,
individually or in the aggregate, have a Material Adverse
Effect.
Each notice under this Section 7.3 shall be
accompanied by a written statement by a Responsible Officer
setting forth details of the occurrence referred to therein,
and stating what action the Borrowers or any affected Company
proposes to take with respect thereto.
7.4. Preservation of Corporate Existence, etc. Each
Borrower shall, and shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect
its existence and, if applicable, good standing under the
laws of its state or jurisdiction of organization, except
in a transaction permitted by Section 8.2;
(b) preserve and maintain in full force and effect
all material governmental rights, privileges,
qualifications, permits, licenses and franchises necessary
in the normal conduct of its business, except in
connection with transactions permitted by Section 8.2 and
except where the failure to do so would not, individually
or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(c) use reasonable efforts, in the ordinary course
of business, to preserve its business organization and
goodwill and except where the failure to do so would not,
individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect;
(d) preserve or renew all of its Intellectual
Property, the non-preservation of which would,
individually or in the aggregate, have a Material Adverse
Effect; and
(e) comply in all material respects with all
material Requirements of Law of any Governmental Authority
having jurisdiction over it or its business if failure to
comply with such requirements would, individually or in
the aggregate, have a Material Adverse Effect,
except, in the case of clauses (a) (with respect to any Company
which is of de minimis significance to the Companies taken as a
whole), (b), (c) and (d), to the extent no longer economically
desirable, in the commercially reasonable opinion of management
and except for the Van Leer Acquisition.
7.5. Maintenance of Property; Insurance. (a) Each
Borrower shall, and shall cause each of its Subsidiaries,
(i) to maintain or cause to be maintained in good repair,
working order and condition (subject to normal wear and tear)
all properties used in its businesses and from time to time
will make or cause to be made all repairs, renewals and
replacements thereof which the applicable Company determines in
good faith to be commercially reasonable so that the business
carried on in connection therewith may be properly and advanta-
geously conducted and will maintain and renew as necessary all
licenses, permits and other clearances reasonably necessary to
use and occupy such properties, except to the extent no longer
economically desirable in the commercially reasonable opinion
of the applicable Company, and (ii) promptly to pay all calls,
installments and other payments which may be made or become due
in respect of any shares held by any Company, except in each
case where the failure to do so would reasonably be expected to
have a Material Adverse Effect.
(b) Each Borrower shall, and shall cause each of its
Subsidiaries to, maintain in full force and effect, with
financially sound and reputable independent insurers, insurance
or reinsurance with respect to their properties and business
against loss or damage of the kinds customarily insured against
by businesses of established reputation engaged in the same or
similar business and similarly situated, of such types and in
such amounts as are customarily carried under similar
circumstances by such other corporations (including the insur-
ance referred to in subsection 6.12(c)). U.S. Borrower shall
furnish to the Lead Arranger on the Closing Date a summary of
the insurance carried by any Company material to the Companies
taken as a whole, together with certificates of insurance and
other evidence of such insurance, if any, naming the Paying
Agent as an additional insured and/or loss payee.
(c) Without duplicating the requirements of
subsection 7.5(b), each Borrower shall, and shall cause each of
its Subsidiaries to, maintain in full force the insurance
coverages specified in the Mortgages and the other Security
Documents so long as any Collateral is pledged thereunder
pursuant to the terms of this Agreement and the Security
Documents.
7.6. Payment of Obligations. Each Borrower shall,
and shall cause each of its Subsidiaries to, pay and discharge
as the same shall become due and payable all of their
obligations and liabilities, including all material lawful
claims which, if unpaid, would by law become a Lien (other than
a Permitted Lien) upon their property; unless, in each case,
the same are being contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are
being maintained by such Company with respect thereto, or the
failure to so pay or discharge would not, individually or in
the aggregate, have a Material Adverse Effect.
7.7. Taxes. Each Borrower shall, and shall cause
each of its Subsidiaries to timely file all Tax Returns
required by any Governmental Authority to be filed by them
(which Tax Returns shall be accurate in all material respects)
and timely pay and discharge all Taxes imposed on them or any
of their property or assets (except those Taxes that are being
contested in good faith and for which adequate reserves are
being maintained in accordance with GAAP), which if not paid
would reasonably be expected to result in a Material Adverse Ef-
fect.
7.8. Compliance with Environmental Laws. (a) Each
Borrower shall, and shall cause each of its Subsidiaries to,
comply with all Environmental Laws; (b) each Borrower shall,
and shall cause each of its Subsidiaries to, pay all costs and
expenses incurred by it in complying in all respects with all
Environmental Laws, and will keep or cause to be kept all Real
Property owned, operated or leased by any of them free and
clear of any Liens imposed pursuant to such Environmental Laws;
(c) in the event of the presence of any Hazardous Material at,
on, under or upon any property owned, operated or leased by any
Company which would reasonably be expected to result in
liability under or a violation of any Environmental Law, in
each case which would, individually or in the aggregate, have a
Material Adverse Effect, U.S. Borrower agrees to undertake,
and/or to cause any of its Subsidiaries, tenants or occupants
to undertake, at their sole expense, any investigation,
response or other action required pursuant to Environmental
Laws to mitigate and eliminate any such adverse effect unless
the failure to comply with these requirements specified in
clause (a), (b) or (c) above would not, individually or in the
aggregate, have a Material Adverse Effect; provided, however,
that no Company shall be required to comply with any order or
directive which is being contested in good faith and by proper
proceedings so long as it has maintained adequate reserves with
respect to such compliance to the extent required in accordance
with GAAP; and (d) U.S. Borrower shall as promptly as
practicable notify the Paying Agent of the occurrence of any
event specified in clause (c) of this Section 7.8 and shall
thereafter keep the Paying Agent informed on a periodic basis
of any actions taken in response to such event and the results
of such actions.
7.9. Compliance with ERISA. Each Borrower shall, and
shall cause each ERISA Entity to: (a) maintain each Plan in
compliance in all material respects with the applicable
provisions of ERISA, the Code and other applicable law;
(b) cause each Plan which is qualified under Section 401(a) of
the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of
the Code, except where failure to comply with clause (a), (b)
or (c) would not, individually or in the aggregate, have a
Material Adverse Effect.
7.10. Inspection of Property and Books and
Records. Each Borrower shall, and shall cause each of its
Subsidiaries to, maintain proper books of record and account,
in which full, true and correct entries in all material
respects (in order to permit the preparation of U.S. Borrower's
consolidated financial statements in conformity with GAAP)
shall be made of all financial transactions and matters
involving the assets and business of the Companies. Each
Borrower shall, and shall cause each of its Subsidiaries to,
permit representatives and independent contractors of any Co-
Agent or any Lender to visit and inspect any of their
properties or assets, to examine their corporate, financial and
operating records, and make copies thereof or abstracts
therefrom, and to discuss their affairs, finances and accounts
with their directors, officers, and independent public
accountants, all at the expense of U.S. Borrower so long as
such expenses are reasonable and at such reasonable times and
intervals during normal business hours and as often as may be
reasonably desired, upon not less than two Business Days'
advance notice to U.S. Borrower and to the applicable
Subsidiary; provided, however, when an Event of Default or
emergency exists the Paying Agent or any Lender may do any of
the foregoing at any time and without advance notice in a
reasonable manner.
7.11. End of Fiscal Years; Fiscal Quarters. U.S.
Borrower shall, for financial reporting purposes, cause
(i) each of its, and each of its Subsidiaries', fiscal years to
end on October 31 of each year and (ii) each of its, and each
of its Subsidiaries', fiscal quarters to end on January 31,
April 30, July 31 and October 31 of each year.
7.12. Use of Proceeds. U.S. Borrower shall use
the proceeds of the Term Loans solely to (i) finance the Van
Leer Acquisition, (ii) consummate the Refinancing, and (iii)
pay fees and expenses related to the Van Leer Acquisition and
the Refinancing. The Borrowers shall use the proceeds of the
Revolving Loans solely to (i) finance the Van Leer Acquisition,
(ii) consummate the Refinancing, (iii) pay fees and expenses re-
lated to the Van Leer Acquisition and the Refinancing, and
(iv) provide working capital and for general business purposes
of the Companies.
7.13. Further Assurances; New Subsidiaries. Each
Borrower shall, and shall cause each of its Subsidiaries to,
take such actions as are reasonably necessary or as the Paying
Agent or any Lender may reasonably request from time to time to
(a) Ensure that (i) the Obligations of U.S. Borrower
and Subsidiary Borrower are unconditionally guaranteed by
each Domestic Subsidiary (other than the Domestic
Subsidiaries set forth on Schedule 7.13A (which Schedule
expressly shall not include Soterra LLC)) and secured by
all of each such Domestic Subsidiary's (other than any
Receivables Co.'s or Soterra LLC's) property and assets
(to the extent required by the Domestic Security
Documents), in each case pursuant to the Domestic Guar-
▇▇▇▇▇ and Security Agreement, (ii) the Obligations of
Subsidiary Borrower are unconditionally guaranteed by each
Foreign Subsidiary listed on Schedule 7.13B and by each
Foreign Subsidiary required to provide such a guarantee
under subsection 7.13(b), in each case pursuant to a
Foreign Guarantee and secured by such Foreign Subsidiary's
assets (to the extent required by the Foreign Security
Documents), in each case pursuant to a Foreign Security
Agreement, subject to the absence of such requirements con-
templated by Section 7.22 and (iii) the Intercompany Loans
are unconditionally guaranteed by each Foreign Subsidiary
listed on Schedule 7.13C and by each Foreign Subsidiary
required to provide such a guarantee under subsection
7.13(b), in each case pursuant to an Intercompany
Guarantee and secured by such Foreign Subsidiary's assets
(to the extent required by the Intercompany Security
Documents), in each case pursuant to an Intercompany
Security Agreement subject to the absence of such
requirements contemplated by Section 7.22 , and
(b) Cause (A) each Domestic Subsidiary (other than
any Receivables Co.) created or acquired after the
Effective Date by any Company in which the aggregate
amount invested therein by any Company is in excess of the
Dollar Equivalent of U.S. $2,000,000 after the Closing
Date to execute and deliver a joinder agreement
substantially in the form of Exhibit 3 to the Domestic
Guarantee and Security Agreement and Domestic Mortgage and
(B) each Foreign Subsidiary created or acquired after the
Effective Date by any Company in which the aggregate
amount invested therein by any Company is in excess of the
Dollar Equivalent of U.S. $2,000,000 after the Closing
Date to execute and deliver a Foreign Guarantee and
Foreign Security Agreement and an Intercompany Guarantee
and an Intercompany Security Agreement, subject to the
limitations and prohibitions of local law.
7.14. Equal Security for Loans and Notes. If any
Company (other than any Receivables Co.) shall create or assume
any Lien upon any of their respective property or assets,
whether now owned or hereafter acquired and whether or not such
property or assets constitute Collateral, other than any Lien
permitted by the Credit Documents, it shall make or cause to be
made effective provisions whereby the Obligations will be
secured by such Lien equally and ratably with any and all other
Indebtedness thereby secured as long as any such Indebtedness
shall be secured; provided, however, that this covenant shall
not be construed as consent by the Paying Agent and the
Required Lenders to any violation by any Company of the
provisions of Section 8.1.
7.15. Pledge of Additional Collateral.
(a) Subject to Section 7.14, as soon as reasonably practicable
after the acquisition after the Closing Date of any personal
property or assets by any Loan Party or Intercompany Loan Party
with a Dollar Equivalent value in excess of the Dollar
Equivalent of U.S. $5,000,000 (the "Additional Collateral"),
each such Loan Party or Intercompany Loan Party shall take all
reasonably necessary or desirable action, including the filing
of appropriate financing statements under the provisions of the
UCC and applicable foreign, domestic or local laws, rules or
regulations in each of the offices where such filing is nec-
▇▇▇▇▇▇ or appropriate, to (1) with respect to Additional
Collateral acquired by any Loan Party, grant to the Paying
Agent for the benefit of (i) with respect to any such
Additional Collateral acquired by any Domestic Loan Party, all
of the Creditors, and (ii) with respect to any such Additional
Collateral acquired by a Foreign Loan Party, the Lenders owed
Obligations by Subsidiary Borrower and (2) with respect to
Additional Collateral acquired by any Intercompany Loan Party,
grant to the obligee of Intercompany Loans a perfected first
priority Lien in such Additional Collateral (or comparable
interest under foreign law in the case of foreign Additional
Collateral), subject to Liens of the type permitted in the
Security Documents, pursuant to and to the full extent required
by the applicable Security Documents, the applicable
Intercompany Security Documents and this Agreement; provided,
however, that notwithstanding the foregoing, (1) "Additional
Collateral" shall in no event include Timber Assets or the
Equity Interests in CorrChoice or Soterra LLC or the property
or assets of CorrChoice or Soterra LLC; (2) no Domestic Loan
Party shall be required, subject to Section 7.19, to pledge
more than 65% of the Equity Interests of any Foreign
Subsidiary, and no Equity Interests of any Foreign Subsidiary
which is not a "first tier" Subsidiary of a Domestic Loan Party
need be pledged by a Domestic Loan Party; and (3) no Foreign
Subsidiary need pledge any property or assets to the extent
prohibited by applicable law or to the extent such pledge would
secure the Obligations of any Domestic Loan Party.
(b) In the event that (x) any Loan Party or
Intercompany Loan Party acquires after the Closing Date an
interest in any additional Real Property with a fair market
value in excess of the Dollar Equivalent of U.S. $15,000,000,
such Company shall take such actions and execute such documents
as the Paying Agent shall reasonably require to (1) with
respect to any such Real Property acquired by any Loan Party,
grant to the Paying Agent a first priority perfected Lien on
such Real Property for the benefit of (i) with respect to any
such Real Property acquired by any Domestic Loan Party, all of
the Creditors, and (ii) with respect to any such Real Property
acquired by any Foreign Loan Party, the Lenders owed
Obligations by Subsidiary Borrower and (2) with respect to any
such Real Property acquired by any Intercompany Loan Party,
grant to the obligee of the Intercompany Loans, through a
Mortgage, a first priority perfected Lien on such Real Property
for the Creditors and a second priority perfected Lien for such
obligee (second only to the Lien of the Creditors and Liens
permitted by the applicable Mortgage). All actions taken by
the parties in connection with the pledge of Additional
Collateral, including reasonable costs of counsel for the
Lenders, shall be for the account of the Borrowers, who shall
pay all reasonable sums due on demand.
7.16. Security Interests. (a) Each Borrower
shall, and shall cause each of its Subsidiaries (other than any
Receivables Co., Soterra LLC and the Subsidiaries listed on
Schedule 7.13A) to, perform any and all reasonable acts and
execute any and all documents (including, without limitation,
the execution, amendment or supplementation of any financing
statement, continuation statement or other statement) for
filing in any appropriate jurisdiction under the provisions of
the UCC and applicable foreign, domestic or local law or any
statute, rule or regulation of any applicable jurisdiction,
including any filings in local real estate land record offices
and the United States Patent and Trademark Office, or the
United States Copyright Office or similar foreign offices,
which are reasonably necessary or advisable, from time to time,
in order to grant, continue or maintain in favor of the secured
parties set forth in the applicable Security Document or
Intercompany Security Document, as the case may be, to which
that Company is a party, a valid and perfected Lien on the
Collateral or Intercompany Collateral and any Additional
Collateral, subject to no Liens except for Prior Liens and
Liens permitted by the applicable Security Documents or Inter-
company Security Documents, as the case may be.
(b) Each Borrower shall, and shall cause each of its
Subsidiaries to, deliver or cause to be delivered to the Paying
Agent from time to time such other reasonable documentation,
consents, authorizations, approvals and orders in form and
substance reasonably satisfactory to the Paying Agent as the
Paying Agent shall deem reasonably necessary or advisable to
perfect or maintain the Liens on the Collateral granted by the
Security Documents and the Intercompany Collateral granted by
the Intercompany Security Documents. Furthermore, with respect
to any Additional Collateral, U.S. Borrower shall cause to be
delivered to the Paying Agent such opinions of counsel, title
insurance and other related documents as may reasonably be
requested by the Paying Agent to assure itself that Sections
7.15 and 7.16 have been complied with.
(c) If the Paying Agent or the Required Lenders
determine that they are required by law or regulation to have
appraisals prepared in respect of any Real Property
constituting Collateral, U.S. Borrower shall provide to the
Paying Agent appraisals which satisfy the applicable
requirements of the Real Estate Appraisal Reform Amendments of
FIRREA and which shall be in form and substance reasonably
satisfactory to the Paying Agent.
7.17. Interest Rate Protection. U.S. Borrower
shall obtain on or within 90 days after the Closing Date, and
shall thereafter maintain interest rate protection having terms
and with counterparties reasonably satisfactory to the Lead
Arranger as shall result in effectively limiting the interest
rate exposure to the Borrowers of 40% of the aggregate Dollar
Equivalent principal amount of then outstanding Loans for a
period of at least three years from the date the initial
interest rate protection was obtained.
7.18. Currency and Commodity Hedging
Transactions. Each Company shall only enter into, purchase or
otherwise acquire agreements or arrangements relating to
currency or commodity hedging to the extent and only to the
extent that such agreements or arrangements are entered into,
purchased or otherwise acquired in the ordinary course of
business of the Companies with reputable financial institutions
or counterparties and not for purposes of speculation.
7.19. Foreign Subsidiaries Security. If
following a change in the relevant sections of the Code or the
regulations, rules, rulings, notices or other official
pronouncements issued or promulgated thereunder, counsel for
the Borrowers reasonably acceptable to the Agents does not
within 30 days after a request from the Agents or the Required
Lenders deliver its opinion (in form and substance reasonably
acceptable to the Agents) with respect to any Foreign
Subsidiary which has not already had all of its Equity
Interests owned by any Domestic Loan Party pledged pursuant to
a Domestic Security Document, that (i) a pledge to secure the
Obligations of any Domestic Loan Party of 66-2/3% or more of
the total combined voting power of all classes of Equity
Interests of such Foreign Subsidiary entitled to vote and
(ii) the entering into by such Foreign Subsidiary of a security
agreement in substantially the form of the Domestic Guarantee
and Security Agreement (with appropriate modifications to
conform to applicable law) could reasonably be expected to
cause the undistributed earnings of such Foreign Subsidiary as
determined for U.S. Federal income tax purposes to be treated
as a deemed dividend to such Foreign Subsidiary's United States
parent for U.S. Federal income tax purposes, then in the case
of a failure to deliver the opinion with respect to the factors
described in clause (i) above, that portion of such Foreign
Subsidiary's outstanding Equity Interests so issued by such
Foreign Subsidiary, in each case not theretofore pledged
pursuant to a Domestic Security Document, shall be pledged to
the Paying Agent pursuant to a Domestic Security Document (with
appropriate modifications to conform to and subject to
limitations of law) (or another guarantee and security
agreement in substantially similar form, if needed) and, in the
case of a failure to deliver the opinion with respect to the
factors described in clause (ii) above, such Foreign Subsidiary
shall execute and deliver a Foreign Guarantee and Foreign
Security Agreement in substantially the form executed and
delivered by the Foreign Loan Parties (with appropriate
modifications to conform to and subject to limitations of law)
(or another guarantee and security agreement in substantially
similar form, if needed) securing the Obligations of U.S.
Borrower and its obligations under any Swap Agreement with a
Creditor and guaranteeing the Obligations of U.S. Borrower
(with appropriate modifications to conform to and subject to
limitations of law) (or another guaranty in substantially
similar form, if needed), and its obligations under any Swap
Agreement with a Creditor, in each case to the extent that the
entering into of such agreements is permitted by the laws of
the respective foreign jurisdiction and with all documents
delivered pursuant to this Section 7.19 to be in form and
substance reasonably satisfactory to the Lead Arranger.
7.20. Register. The Borrowers hereby designate
the Paying Agent to serve as the Borrowers' agent, solely for
purposes of this Section 7.20, to maintain a copy of each
Assignment and Acceptance delivered to and accepted by it and a
register (the "Register") on which it will record the
Commitment from time to time of each of the Lenders, the Loans
made by each of the Lenders and each repayment in respect of
the principal amount of the Loans of each Lender. Failure to
make any such recordation or any error in such recordation
shall not affect either Borrower's obligations in respect of
such Loans. The entries in the Register shall be prima facie
evidence of the correctness thereof, and the Applicable
Borrower, the Paying Agent and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of
such a Loan or other obligation hereunder as the owner thereof
for all purposes of this Agreement and the other Credit
Documents, notwithstanding any notice to the contrary. With
respect to any Lender, the transfer of any Commitment of such
Lender or the rights to the principal of, and interest on, any
Loan shall not be effective until such transfer is recorded on
the Register maintained by the Paying Agent with respect to
ownership of such Commitment or Loans and prior to such
recordation all amounts owing to the transferor with respect to
such Commitment or Loans shall remain owing to the transferor.
The registration of assignment or transfer of all or part of
any Commitment or Loans shall be recorded by the Paying Agent
on the Register only upon the acceptance by the Paying Agent of
a properly executed and delivered Assignment and Acceptance
pursuant to Section 11.8. Coincident with the delivery of such
an Assignment and Acceptance to the Paying Agent for acceptance
and registration of assignment or transfer of all or part of a
Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Note evidencing such Loan
(but only if Notes were requested by and issued to such Lender)
and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor
Lender and/or the new Lender. The Borrowers agree to indemnify
the Paying Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Paying Agent in
performing its duties under this Section 7.20, except to the
extent finally determined by a court of competent jurisdiction
to have arisen solely from the gross negligence or willful
misconduct of the Paying Agent.
7.21. Maintenance of Credit Rating. U.S.
Borrower shall take all necessary actions, including but not
limited to, the provision of all information and the payment of
all fees and expenses (including the reasonable fees and
expenses of counsel), in order to maintain a credit rating on
the Credit Facilities by both S&P and ▇▇▇▇▇'▇ (or their
successors or any other rating agency reasonably acceptable to
the Lead Arranger).
7.22. Post-Closing Obligations. (a) Each
Borrower shall, and shall cause each of its Subsidiaries set
forth on Schedule 7.22A and each other applicable Company
contemplated herein to, as expeditiously as possible, but in no
event later than the number of days after the Effective Date
applicable to each item set forth below:
(i) within 30 days after the Effective Date, execute
and deliver each of the Credit Documents and Intercompany
Security Documents as set forth on Schedule 7.22A
identified thereon to be executed and delivered by such
Subsidiary (except that this obligation with respect to
any Foreign Subsidiary shall not apply to the extent (but
only to the extent) that the fulfillment thereof is
prohibited by applicable law and grant a perfected first
priority pledge and security interest (or comparable
interest under foreign law) subject to Liens of the type
permitted under the Security Documents) in 100% of the
Equity Interests of each of the Subsidiaries listed in
Schedule 7.22A not granted on the Closing Date);
(ii ) within 60 days after the Effective Date, execute
and deliver each of the Credit Documents and Intercompany
Security Documents as set forth on Schedule 7.22B
identified thereon to be executed and delivered by such
Subsidiary (except that this obligation with respect to
any Foreign Subsidiary shall not apply to the extent (but
only to the extent) that the fulfillment thereof is
prohibited by applicable law);
(iii) within 120 days after the Effective Date,
execute and deliver a Domestic Mortgage encumbering each
Domestic Mortgaged Property in which the applicable
Company holds a leasehold interest (as indicated in
Schedule 1.1(a)(i)) (or, in the case of the Domestic
Mortgaged Property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ in
Florence, Kentucky, in the event the applicable Company
acquires a fee interest in such Domestic Mortgaged
Property, a Domestic Mortgage encumbering such fee
interest) and a Foreign Mortgage encumbering each Foreign
Mortgaged Property set forth on Schedule 1.1(a)(ii), in
each case duly executed and acknowledged by the Company
that is the owner of or holder of an interest in such
Mortgaged Property, and otherwise in form for recording in
the recording office of each political subdivision where
each such Mortgaged Property is situated, together with
such certificates, affidavits, questionnaires or returns
as shall be required in connection with the recording or
filing thereof to create a lien under applicable law, and
such financing statements or other instruments as are
contemplated by the local or foreign counsel opinions
described in subparagraph (xiii) below in respect of such
Mortgage, all of which shall be in form and substance
reasonably satisfactory to the Lead Arranger, and any
other instruments necessary to grant a mortgage lien under
the laws of any applicable jurisdiction, which Mortgage
and financing statements and other instruments shall when
recorded be effective to create a first priority Lien on
such Mortgaged Property subordinate to no Liens other than
Prior Liens applicable to such Mortgaged Property and
subject to no other Liens except Liens expressly permitted
by such Mortgage (except that this obligation with respect
to any Foreign Subsidiary shall not apply to the extent
(but only to the extent) that the fulfillment thereof is
prohibited by applicable law);
(iv) within 120 days after the Effective Date, with
respect to each Domestic Mortgaged Property and Foreign
Mortgaged Property, execute and deliver such consents,
approvals, amendments, supplements, estoppels, tenant
subordination agreements or other instruments as necessary
or required or as shall reasonably be deemed necessary by
the Lead Arranger in order for the owner or holder of the
fee or leasehold interest constituting such Mortgaged
Property to grant the Lien contemplated by the Mortgage
with respect to such Mortgaged Property;
(v) within 120 days after the Effective Date, with
respect to each Domestic Mortgage or Foreign Mortgage,
deliver a policy (or commitment to issue a policy) of
title insurance insuring (or committing to insure) or the
customary foreign equivalent, if any, the Lien of such
Mortgage as a valid first mortgage Lien on the real
property and fixtures described therein in an amount equal
to 100% of the fair market value thereof which policies
(or commitments) shall (A) be issued by the Title Company,
(B) to the extent necessary, include such reinsurance
arrangements as shall be reasonably acceptable to the Lead
Arranger, (C) contain a "tie-in" or "cluster" endorsement
(if available under applicable law) (i.e., policies which
insure against losses regardless of location or allocated
value of the insured property up to a stated maximum
coverage amount), (D) have been supplemented by such
endorsements (or to the extent where such endorsements are
not available at commercially reasonable rates, opinions
of special counsel, architects or other professionals
reasonably acceptable to the Lead Arranger to the extent
that such opinions can be obtained at a cost which is
reasonable with respect to the value of the Real Property
subject to such Mortgage) as shall be reasonably requested
by the Lead Arranger (including, without limitation,
endorsements on matters relating to usury, first loss,
last dollar, zoning (provided that with respect to zoning,
each Borrower may, and may cause each of its Subsidiaries
to, in lieu of such endorsement deliver a zoning letter
prepared by a Governmental Authority or a zoning and site
requirement summary report prepared by the Planning and
Zoning Resource Corporation or other similar service
reasonably acceptable to the Lead Arranger), contiguity,
revolving credit, doing business, non-imputation, public
road access, survey, variable rate and so-called
comprehensive coverage over covenants and restrictions),
and (E) contain no exceptions to title other than
exceptions for the Prior Liens applicable to such
Mortgaged Property and other Liens reasonably acceptable
to the Lead Arranger and (F) in the case of each Domestic
Mortgage delivered on the Closing Date pursuant to Section
5.2, be dated the Closing Date and in the case of each
other Domestic Mortgage or Foreign Mortgage, be dated the
date of delivery of such Mortgage;
(vi) within 120 days after the Effective Date, with
respect to each Domestic Mortgaged Property or Foreign
Mortgaged Property described in subparagraph (iii) above,
deliver policies or certificates of insurance as required
by the Mortgage relating thereto, which policies or
certificates shall comply with the insurance requirements
contained in such Mortgage;
(vii) within 120 days after the Effective Date, with
respect to each Domestic Mortgaged Property or Foreign
Mortgaged Property, execute and/or deliver such
affidavits, certificates, information (including financial
data) and instruments of indemnification (including,
without limitation, a so-called "gap" indemnification) as
shall be required to induce the Title Company to issue the
policy or policies (or commitment) and endorsements
contemplated in subparagraph (v) above;
(viii) within 120 days after the Effective Date,
deliver evidence reasonably acceptable to the Lead
Arranger of payment by U.S. Borrower of all title
insurance premiums, search and examination charges, and
related charges, mortgage recording taxes, fees, charges,
costs and expenses required for the recording of the
Domestic Mortgages and Foreign Mortgages and issuance of
the title insurance policies referred to subparagraph (v)
above;
(ix) within 120 days after the Effective Date, with
respect to each Domestic Mortgaged Property and Foreign
Mortgaged Property, deliver a Survey or customary foreign
equivalent, if any;
(x) within 60 days after the Effective Date, with
respect to each Leased Real Property at which Collateral
is located, deliver a lien waiver and access agreement
substantially in the form of Exhibit O with such changes
thereto as shall be reasonably acceptable to the Lead
Arranger (except that this covenant shall be satisfied so
long as the Borrowers use their commercially reasonable
best efforts to fulfill this obligation).
(xi) within 120 days after the Effective Date, with
respect to each Domestic Mortgaged Property or Foreign
Mortgaged Property described in subparagraph (iii) above,
U.S. Borrower and each Subsidiary shall have made all
notification, registrations and filings, to the extent
required by, and in accordance with, all Real Property
Disclosure Requirements applicable to such Mortgaged
Property, including the use of forms provided by state,
local or foreign agencies, where such forms exist, whether
to U.S. Borrower or to or with the state, local or foreign
agency;
(xii) within 60 days after the Effective Date, obtain
and deliver to the Lead Arranger, to the extent not
previously delivered prior to the Closing Date, UCC,
judgment and the tax lien search reports or customary or
equivalent foreign reports, where available, opinions or
other documents each of a recent date listing all
effective financing statements or comparable documents
that name any Company as debtor in each of the
jurisdictions set forth on Schedule 7.22; and
(xiii) at the time of delivery of each item set forth
in this Section 7.22, procure such opinions of domestic
local counsel and foreign local counsel to the Companies
in each jurisdiction governing the Lien granted to the
Paying Agent under any Security Document delivered
pursuant to the provisions of this Section 7.22 and, to
the extent not delivered on the Effective Date pursuant to
Section 5.2 but in no event later than five Business Days
after the Closing Date, in the states of California,
Kansas, Missouri and Texas, each of which shall be
reasonably satisfactory in form and substance to the Lead
Arranger.
(b) At the time of delivery of each item set forth
in this Section 7.22, the Borrowers shall or shall cause to be
delivered a perfection certificate substantially in the form of
Exhibit L, together with evidence of the completion of all
related recordings and filings of, or with respect to, the
Security Documents and Intercompany Security Documents and
delivery of such other security and other documents as may be
necessary or, in the reasonable opinion of the Lead Arranger,
desirable to perfect the Liens created, or purported or in-
tended to be created, by the Security Documents and
Intercompany Security Documents delivered at such time.
(c) With respect to the legal descriptions attached
to the Domestic Mortgages delivered pursuant to Section 5.2, in
the event that in connection with the delivery of the title
insurance policies contemplated in Section 7.22(v) relating to
such Domestic Mortgages, it is determined that any such
Domestic Mortgage affects real property to which U.S. Borrower
or a Domestic Subsidiary of U.S. Borrower does not have fee sim-
ple title or leasehold title, then, upon written request at the
sole cost and expense of U.S. Borrower, the Paying Agent shall
execute all necessary documentation to release (without
recourse to, or warranty by, the Paying Agent), including,
without limitation, a partial release of mortgage in recordable
form and otherwise in form and substance reasonably acceptable
to the parties hereto, that portion of real property subject to
such Domestic Mortgage which is not owned or leased by U.S
Borrower or a Domestic Subsidiary. Furthermore, if, the Paying
Agent determines that any Domestic Mortgage does not include
all of the real property which is owned or leased by U.S.
Borrower or a Domestic Subsidiary at that particular site, then
upon written notice of the Paying Agent, U.S. Borrower or its
Domestic Subsidiary shall execute and deliver (at the sole cost
and expense of U.S. Borrower) all necessary documentation,
including without limitation an amendment to the applicable
Domestic Mortgage, to cause the unencumbered portion of said
real property to be included in such Domestic Mortgage.
7.23. Limitations on Activities of U.S. Holdco,
Subsidiary Borrower and Dutch Holdco. (a) U.S. Borrower shall
at all times hold 100% of the Equity Interests of U.S. Holdco.
U.S. Holdco shall at all times directly hold 100% of the Equity
Interests of Subsidiary Borrower. Prior to the Contribution,
U.S. Holdco shall at all times directly hold 100% of the Equity
Interests of Dutch Holdco. Following the Contribution, Sub-
sidiary Borrower shall at all times directly hold 100% of the
Equity Interests of Dutch Holdco. U.S. Holdco shall at all
times conduct no operations or business, incur no direct or
indirect obligations, contingent or otherwise, and hold no
assets, other than in all such cases to the extent related to
or arising out of its ownership of the Equity Interests of
Subsidiary Borrower and, prior to the Contribution, Dutch
Holdco.
(b) Subsidiary Borrower shall at all times conduct
no operations or business, incur no direct or indirect
obligations, contingent or otherwise, and hold no assets other
than the following: (i) its Obligations under the Credit
Documents, (ii) Investments in its Subsidiaries permitted by
this Agreement, (iii) Intercompany Loans and Intercompany
Guarantees, and (iv) grant of security interests in support of
Intercompany Loans and Intercompany Guarantees.
(c) Dutch Holdco shall at all times conduct no
operations or business, incur no direct or indirect obligations
(other than the Intercompany Loans), contingent or otherwise,
and hold no assets, other than in all such cases to the extent
related to or arising out of its ownership of the Equity
Interests of Foreign Subsidiaries.
7.24. Certain Collateral Limitations. (a)
Notwithstanding the foregoing, the provisions of Sections 7.13,
7.15, 7.16, 7.19, 7.22 and 7.23 pertaining to the grant of any
Lien on Collateral securing the Obligations or the Intercompany
Loans need only be complied with after any Rating Date to the
extent relating to the pledge of Equity Interests of
Subsidiaries as provided in such Sections, except that this
limitation shall not apply so long as at any time after any
Rating Date the Credit Facilities are rated BB+ or less by S&P
or are rated Ba1 or less by ▇▇▇▇▇'▇ (a "Downgrade Date"), it
nevertheless being expressly understood that all provisions of
such Sections dealing with Guarantees shall remain in full
force and effect on and after the Rating Date. Each Company
shall, at the sole expense of U.S. Borrower, take any action
and execute all documents and instruments necessary or
desirable to reattach Liens on Collateral of at least equal
value as the Collateral released after a Rating Date, in each
case as promptly as practicable but in no event later than 90
days after such Downgrade Date.
(b) From and after the Rating Date, the Paying Agent
shall and the lenders of the Intercompany Loans may, at the
request and sole expense of U.S. Borrower, take any action and
execute all documents and instruments to effect the release of
the Lien of the Security Documents (as well as of Swap
Contracts with Lenders or their Affiliates) on all Collateral
which is not the Equity Interests of any Company pledged under
any Security Document. Such release shall no longer be
permitted if any Downgrade Date occurs, and each Company shall,
at the sole expense of U.S. Borrower, take any action and
execute all documents and instruments necessary or desirable to
reattach Liens on Collateral of at least equal value as the
Collateral released after a Rating Date, in each case as
promptly as practicable but in no event later than 60 days
after such Downgrade Date.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment
hereunder, or any Loan or other Obligation (other than any
contingent indemnity Obligations) shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding:
8.1. Limitation on Liens; No Further Negative Pledge.
(a) The Borrowers shall not, and shall not cause or permit any
Subsidiary to, create, incur, assume or suffer to exist any
Lien upon or with respect to any property or assets of any
Company constituting Collateral, whether now owned or hereafter
acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to
repurchase such property or assets or assign any right to
receive income, or file or permit the filing of any financing
statement under the UCC or any other similar effective notice
of Lien under any similar recording or notice statute, except
Prior Liens and other Liens expressly permitted by the Security
Documents. U.S. Borrower shall not and shall not cause or
permit any Subsidiary to, create, incur, assume or suffer to
exist any Lien upon or with respect to any property or assets
of any Company not constituting Collateral, whether now owned
or hereafter acquired, or sell any such property or assets
subject to an understanding or agreement, contingent or
otherwise, to repurchase such property or assets or assign any
right to receive income, or file or permit the filing of any
financing statement under the UCC or any other similar
effective notice of Lien under any similar recording or notice
statute, except the following, which are herein collectively
referred to as "Permitted Liens" (each of which shall be given
independent effect):
(i) any Lien existing on the Effective Date and set
forth in Schedule 8.1(a), including Prior Liens, covering
only the property or assets set forth in such Schedule
8.1(a) and securing Indebtedness outstanding on such date
(other than any Refinanced Indebtedness);
(ii) any Lien created under any Credit Document or
under any Intercompany Security Document;
(iii) Liens for taxes, fees, assessments or other
governmental charges which are not yet delinquent, or to
the extent that non-payment thereof is permitted by
Section 7.6;
(iv) Liens in respect of property or assets of any
Company imposed by law which were incurred in the ordinary
course of business and have not arisen to secure
Indebtedness, such as landlords', carriers',
warehousemen's, mechanics', materialmen's, workmen's and
repairmen's Liens, equipment leases and other similar
Liens arising in the ordinary course of business, and
(x) which do not in the aggregate materially detract from
the value of such property or assets or materially impair
the use thereof in the operation of the business of the
Companies or (y) which are being contested in good faith
by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the
property or asset subject to such Lien;
(v) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary
course of business in connection with workers'
compensation, unemployment insurance and other social
security or similar legislation;
(vi) Liens on the property of any Company securing
(A) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases or
statutory obligations, (B) contingent obligations on
surety or appeal bonds, and (C) other non-delinquent
obligations of a like nature, in each case, incurred in
the ordinary course of business; provided, however, that
all such Liens individually or in the aggregate would not
(even if enforced) cause a Material Adverse Effect;
(vii) Liens consisting of judgment or judicial
attachment liens (including prejudgment attachment),
provided that the enforcement of such Liens is effectively
stayed or payment of which is covered in full (subject to
a customary deductible) by insurance or which do not
otherwise result in an Event of Default under subsec-
tion 9.1(i);
(viii) easements, rights-of-way, servitudes, covenants,
restrictive covenants, encumbrances, minor defects or
irregularities in title and other similar restrictions
which, individually or in the aggregate, do not materially
interfere with the ordinary conduct of the businesses of
the Companies and which do not materially impair for its
intended purpose the Real Property to which they relate in
a manner which would reasonably be expected to have a Ma-
terial Adverse Effect;
(ix) security interests (whether purchase money or
otherwise) on any real or personal property acquired,
constructed or improved after the Closing Date by any
Company securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of
acquiring, constructing or improving such property;
provided, however, that (A) any such Lien attaches to such
property concurrently with or within 180 days after the
acquisition thereof or the completion of construction or
improvement, (B) such Lien attaches solely to the property
so acquired, constructed or improved in such transaction,
(C) the principal amount of the Indebtedness secured
thereby does not exceed 100% of the fair market value of
such property at the time of incurrence of such
Indebtedness, plus the cost of construction or
improvement, and (D) the principal amount of the
Indebtedness secured by any and all such security
interests, plus the aggregate amount of all Indebtedness
arising under Capital Leases permitted solely by clause
(x) of this subsection 8.1(a), shall not at any time
exceed a Dollar Equivalent amount of U.S. $20,000,000;
(x) Liens securing obligations in respect of Capital
Leases on assets subject to such leases; provided,
however, that the aggregate amount of all Indebtedness
arising under Capital Leases permitted solely by this
clause (x) (other than in respect of Capital Leases for
automobiles leased in the ordinary course of business that
are not required to be capitalized under International
Accounting Standards), plus the aggregate amount of all
Indebtedness secured by security interests permitted
solely by clause (ix) of this subsection 8.1(a), shall not
at any time exceed a Dollar Equivalent amount of U.S.
$20,000,000;
(xi) Liens arising solely by virtue of any statutory
or common law provision relating to banker's liens, rights
of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor
depository institution; provided, however, that (A) such
deposit account is not a dedicated cash collateral account
and is not subject to restrictions against access by any
Company in excess of those set forth by regulations
promulgated by the FRB or comparable Governmental
Authority, and (B) such deposit account is not intended by
any Company to provide collateral to the depository insti-
tution;
(xii) Liens existing on any asset (other than of Van
Leer and its Subsidiaries as of the Closing Date) prior to
the date of acquisition thereof by any Company which (A)
were not created in contemplation of or in connection with
such acquisition and (B) do not extend to or cover any
other property or assets of any Company;
(xiii) Liens existing on any asset of any Person (other
than Van Leer and its Subsidiaries as of the Closing Date)
at the time such Person becomes a Subsidiary or is merged,
amalgamated or consolidated with or into a Subsidiary
which (A) were not created in contemplation of or in
connection with such event and (B) do not extend to or
cover any other property or assets of any Company;
(xiv) Liens not otherwise permitted hereunder securing
Indebtedness or other obligations not at any time
exceeding in the aggregate a Dollar Equivalent amount of
U.S. $10,000,000;
(xv) Leases with respect to the assets or properties
of any Company entered into in the ordinary course of
business;
(xvi) Liens evidenced by UCC financing statements
regarding operating and equipment leases permitted by this
Agreement or in respect of consigned goods in the ordinary
course of business;
(xvii) any Lien arising out of the refinancing,
extension, renewal or refunding of any Indebtedness
secured by any Lien permitted by any of clause (i), (ix),
(x), (xii), (xiii) or (xiv) of this subsection 8.1(a);
provided, however, that such Indebtedness is not increased
and is not secured by any additional assets as to which a
Lien is not otherwise permitted hereunder;
(xviii) Liens solely in favor of either Borrower or, if
granted by any Qualified Subsidiary, any Subsidiary which
is a Qualified Subsidiary or, if granted by any other
Subsidiary, any Subsidiary;
(xix) Liens securing obligations under Swap Contracts
with any Creditor;
(xx) Liens permitted by Article 4 of the Domestic
Mortgage;
(xxi) Liens or assets sold in accordance with
subsection 8.2(e) or Section 8.20; and
(xxii) Liens on Accounts or related assets of any
Receivables Co. created in connection with a Permitted
Receivables Transaction.
(b) Except with respect to prohibitions against
other encumbrances on specific property encumbered to secure
payment of particular Indebtedness permitted hereunder or
prohibitions in license agreements under which any Company is
the licensee, no Company shall enter into any agreement
prohibiting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired,
except pursuant to (1) the Credit Documents, (2) any other
agreement that does not restrict in any manner (directly or
indirectly) Liens created pursuant to the Credit Documents on
property or assets of any Company (whether now owned or
hereafter acquired) securing the Obligations and does not
require the direct or indirect granting of any Lien securing
any Indebtedness or other obligation by virtue of the granting
of Liens on or pledge of property of any Company to secure the
Obligations, and (3) any industrial revenue or development
bonds, acquisition agreements, agreements in connection with
any Permitted Receivables Transaction permitted hereby (in
which case, any prohibition or limitation shall only be
effective against the property financed or acquired thereby) or
operating leases of Real Property entered into in the ordinary
course of business.
8.2. Consolidations, Mergers and Disposition of
Assets. The Borrowers shall not, and shall not cause or permit
any Subsidiary to, directly or indirectly, (a) consummate any
Asset Sale, (b) wind up, liquidate or dissolve its affairs, (c)
merge, amalgamate, consolidate with or into, or (d) convey,
transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or
substantially all of their respective properties or assets
(whether now owned or hereafter acquired) to or in favor of any
Person, except (each of which shall be given independent ef-
fect):
(a) dispositions of used, worn-out, obsolete or
surplus equipment or other property, all in the ordinary
course of business; provided, however, that the proceeds
thereof are reinvested in the business of one or more of
the Companies;
(b) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase
price of similar replacement equipment, or the proceeds of
such sale are reasonably promptly applied to the purchase
price of similar replacement equipment;
(c) Capital Expenditures permitted by Section 8.18,
Leases not prohibited by this Agreement, the Liens
permitted by Section 8.1, the Investments permitted
pursuant to Section 8.4 and the Restricted Payments
permitted by Section 8.13;
(d) any Asset Sale so long as (x) the aggregate sale
proceeds from all such Asset Sales shall not exceed the
Dollar Equivalent amount of U.S. $5,000,000 in any fiscal
year of U.S. Borrower and (y) the Net Cash Proceeds
therefrom are applied as provided in subsection 2.7(c);
(e) the sale or discount, in each case without
recourse, of accounts receivable arising in the ordinary
course of business, but only in connection with the
compromise or collection thereof or as permitted by
Section 8.20; provided, however, that any Foreign
Subsidiary may effect such sale or discount with recourse
if such is consistent with its past practice or is
consistent with customary practice in such Subsidiary's
country of business;
(f) the licensing, in the ordinary course of
business, of patents, trademarks, copyrights and know-how
to or from third Persons, so long as any such license
granted by any Company after the Effective Date is
permitted to be assigned pursuant to the applicable
Security Document and does not otherwise prohibit the
granting of a Lien therein by any Company pursuant to any
Security Document;
(g) any Subsidiary may be merged or consolidated
with or into U.S. Borrower or any Qualified Subsidiary and
any Subsidiary may transfer assets to U.S. Borrower or any
Qualified Subsidiary; provided, however, that in any
merger or consolidation involving U.S. Borrower, U.S.
Borrower shall be the surviving corporation;
(h) the consummation of the Van Leer Acquisition in
accordance with the Van Leer Acquisition Documents;
(i) any Acquisition permitted by Section 8.4;
(j) any Foreign Subsidiary (other than Subsidiary
Borrower) may merge or consolidate with or into or sell,
assign or transfer its assets to any other Foreign
Subsidiary and if the Foreign Subsidiary that is merged or
consolidated or that sells, assigns or transfers its
assets had executed and delivered a Foreign Guarantee and
Foreign Security Agreement or Intercompany Guarantee and
Intercompany Security Agreement, then the surviving entity
or transferee, as the case may be, shall have executed and
delivered a Foreign Guarantee, Foreign Security Agreement,
Intercompany Guarantee and Intercompany Security Agree-
ment, as the case may be, which is in full force and
effect;
(k) the contribution to Subsidiary Borrower of
Intercompany Loans made by U.S. Borrower and related Inter-
company Loan Documents and security interests as permitted
by Section 8.26;
(l) any disposition in the ordinary course of
business of Timber Assets for fair market value as
reasonably determined by U.S. Borrower so long as either
(A) the Net Cash Proceeds therefrom are applied as
provided in subsection 2.7(c) or used to effect a
substantially contemporaneous acquisition of Timber
Assets, or (B) such disposition is pursuant to a
substantially contemporaneous exchange for Timber Assets;
(m) any Subsidiary (other than Subsidiary Borrower)
may be liquidated in connection with the sale of its
assets as permitted by this Agreement and the cessation of
operations in connection therewith so long as the Net Cash
Proceeds therefrom are applied as provided in subsection
2.7(c);
(n) Asset Sales contemplated by Schedule 8.2(n) so
long as made for fair market value as reasonably
determined by U.S. Borrower and on ordinary business terms
and so long as the Net Cash Proceeds therefrom are applied
as provided in subsection 2.7(c); and
(o) the sale, transfer or discount of Accounts
pursuant to any Permitted Receivables Transaction so long
as the Net Cash Proceeds therefrom are applied as provided
in subsection 2.7(c).
To the extent the Required Lenders waive the provisions of this
Section 8.2 with respect to the sale or other disposition of
any Collateral, or any Collateral is sold or otherwise disposed
of as permitted by this Section 8.2 (other than to a Company),
the Co-Agents and Lenders acknowledge and agree that such
Collateral in each case shall be sold or otherwise disposed of
free and clear of the Liens created by the Security Documents
and the Paying Agent shall, at the sole expense of U.S.
Borrower, take such actions as are appropriate in connection
therewith.
8.3. Leases. The Borrowers shall not permit, and
shall not cause or permit any Subsidiary to permit, the
aggregate lease payments calculated in accordance with GAAP
(including, without limitation, any property taxes paid as
additional rent or lease payments) by the Companies on a
consolidated basis under any agreement to rent or lease any
real or personal property (or any extension or renewal thereof)
(excluding Capital Leases) to exceed in any fiscal year
(commencing with fiscal 2001) prior to and including fiscal
2003, the Dollar Equivalent amount of U.S. $40,000,000 and in
any fiscal year thereafter, the Dollar Equivalent amount of
U.S. $50,000,000.
8.4. Loans and Investments. The Borrowers shall not,
and shall not cause or permit any Subsidiary to, directly or
indirectly, (i) purchase or acquire, or make any commitment to
purchase or acquire, any Equity Interest, or obligations or
other securities of, or any interest in, any Person, (ii) make
or commit to make any Acquisition, (iii) make or commit to make
any advance, loan, extension of credit or capital contribution
to, or guarantee of any obligation of, or any other investment
in, or (iv) incur Guaranty Obligations on behalf of, any Person
(including any Affiliate of U.S. Borrower) other than the
guarantee of any Indebtedness permitted by Section 8.5 (any of
the foregoing, an "Investment"), except, subject to
Section 8.26, for (each of which shall be given independent ef-
fect):
(a) Investments by any Company in Cash and Cash
Equivalents;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or
lease of goods or services in the ordinary course of
business;
(c) Investments (including extensions of credit
(such extensions of credit, "Intercompany Indebtedness")
and Guaranty Obligations) by any Company in or to U.S.
Borrower or any Qualified Subsidiary (or in any Person
that thereby becomes a Qualified Subsidiary or is merged
or consolidated into U.S. Borrower or any Qualified
Subsidiary); provided, however, that (x) with respect to
any Guaranty Obligation issued by any Subsidiary of either
Borrower's obligations, such Subsidiary has entered into
the Domestic Guarantee and Security Agreement (if it is a
Domestic Subsidiary) or a Foreign Guarantee (if it is
Foreign Subsidiary), in each case, at least as favorable
as such Guaranty Obligation, (y) upon request of the
Required Lenders, all such Intercompany Indebtedness shall
be evidenced by promissory notes in form, and shall be
pledged to the Paying Agent pursuant to documentation, rea-
sonably satisfactory to the Required Lenders, and (z) such
Subsidiary shall have entered into the appropriate
Security Documents pursuant to Section 7.15 and taken all
necessary action pursuant to Section 7.16;
(d) Investments consisting of non-cash consideration
received in the form of securities, notes or similar
obligations in connection with disposition of assets
permitted by subsection 8.2(d); provided, however, that
(i) the aggregate amount of such non-cash consideration
received in connection with any such disposition shall not
exceed 20% of the total consideration received in
connection with such disposition and (ii) such non-cash
consideration is pledged pursuant to the appropriate
Security Document;
(e) Investments made in order to consummate
Acquisitions (other than the Van Leer Acquisition);
provided, however, that (i) no Event of Default or
Unmatured Event of Default exists or will result therefrom
(including any such event under Section 8.15), (ii) on a
pro forma basis, after giving effect to such
Acquisition(s), U.S. Borrower would have been in
compliance with Sections 8.10, 8.11 and 8.12 on the last
day of the most recently completed fiscal quarter
(assuming, for purposes of Sections 8.10 and, if
applicable, 8.12, that such Acquisition had occurred on
the first day of the Test Period ending on such last day)
which compliance shall be demonstrated in an Officers'
Certificate delivered to the Paying Agent and each Lender
and (iii) the aggregate Dollar Equivalent amount of the
consideration (which for each Acquisition shall be
measured at the date of consummation thereof and which
shall include debt assumed (not to exceed 50% of the total
consideration for any Acquisition), earn-outs, working
capital deficits and deferred payments) paid for all
Acquisitions (other than the Van Leer Acquisition)
consummated since the Effective Date shall not exceed the
Dollar Equivalent amount of U.S. $50,000,000;
(f) pledges or deposits required in the ordinary
course of business in connection with workmen's
compensation, unemployment insurance and other social
security or similar legislation;
(g) pledges or deposits in connection with (i) the
non-delinquent performance of bids, trade contracts (other
than for borrowed money), leases or statutory obligations,
(ii) contingent obligations on surety or appeal bonds
(including those permitted by subsection 8.8(d)), and
(iii) other non-delinquent obligations of a like nature,
in each case incurred in the ordinary course of business;
(h) advances, loans or extensions of credit to
suppliers in the ordinary course of business consistent
with past practice as of the Effective Date;
(i) advances, loans or extensions of credit by any
Company to employees of any Company; provided, however,
that the aggregate amount of all such loans, advances and
extensions of credit shall not at any time exceed in the
aggregate a Dollar Equivalent amount of U.S. $7,500,000;
(j) other Investments and Guarantees (excluding
Investments and Guarantees of the types described in
subsection 8.4(i)) by any Company not at any time
exceeding the sum of (i) in the aggregate a Dollar
Equivalent amount of U.S. $7,500,000 since the Effective
Date plus (ii) the aggregate net cash received by U.S.
Borrower since the Effective Date in connection with such
Investments and Guarantees as dividends, distributions or
other returns of capital from Investments;
(k) Investments to consummate the Van Leer
Acquisition on the terms set forth in the Van Leer
Acquisition Documents;
(l) Investments (including debt obligations)
received in connection with the bankruptcy or
reorganization, recapitalization or workout of suppliers
and customers and in settlement of delinquent obligations
of, and other disputes with, customers and suppliers
arising in the ordinary course of business or any
foreclosure by any Company; provided, however, that any
securities or other property so received is pledged
pursuant to the appropriate Security Document;
(m) Swap Contracts and other Contingent Obligations
entered into in compliance with subsection 8.8(b);
(n) Investments in existence on the Effective Date
and listed in Schedule 8.4(n), without giving effect to
any additions thereto and Investments to be made pursuant
to binding agreements in existence on the Effective Date
set forth on Schedule 8.4(n) to the extent made in
accordance with the terms of such agreements as in effect
on the Effective Date, and any renewal or extension of any
thereof in the ordinary course of business and on ordinary
business terms in an amount not to exceed the original
amount thereof;
(o) any Company may hold additional Investments in
any Subsidiary to the extent that such Investments reflect
an increase in the value of such Subsidiary resulting from
retained earnings of such Subsidiary;
(p) any endorsement of a check of other medium of
payment for deposit or collection, or any similar transac-
tion in the ordinary course of business;
(q) Investments of any Person in the amount existing
at the time such Person became a Subsidiary, to the extent
such Investment was not made in connection with, or in
contemplation of, such Person becoming a Subsidiary;
(r) any Subsidiary which is not a Qualified
Subsidiary may make Investments in or to any other
Subsidiary which has executed and delivered a Foreign
Guarantee and Foreign Security Agreement which is in full
force and effect or Intercompany Guarantee and
Intercompany Security Agreement which is in full force and
effect;
(s) Investments (including Intercompany Indebtedness
and Guaranty Obligations) by any Company in any Wholly-
Owned Subsidiary to the extent made in the ordinary course
to fund or support the ordinary course operations of such
Wholly-Owned Subsidiary or if de minimis and made in
connection with the organization or formation thereof;
provided, however, that upon the request of the Required
Lenders all or any part of such Intercompany Indebtedness
shall be evidenced by promissory notes in form, and shall
be pledged to the Paying Agent pursuant to documentation,
reasonably satisfactory to the Required Lenders;
(t) Investments consisting of the transfer of
equipment (and any intellectual property rights necessary
for the use of such assets) to Foreign Subsidiaries in the
ordinary course of business so long as, at the time of any
such transfer, the sum of the current book value of the
assets transferred plus the book values of all other
assets previously transferred to Foreign Subsidiaries
pursuant to this clause (t) (measured as of the time of
the relevant transfer) since the Effective Date, does not
exceed 5% of the Total Assets of U.S. Borrower (measured
at the time of such transfer);
(u) the Contribution if and to the extent
consummated in accordance with Section 8.26;
(v) any Investment which, in the judgment of such
Company, is reasonably necessary in connection with, and
pursuant to, any Permitted Receivables Transaction; and
(w) Investments in joint ventures by any Company not
at any time exceeding the sum of (i) in the aggregate a
Dollar Equivalent amount of U.S. $10,000,000 since the
Effective Date plus (ii) the aggregate net cash received
by any Company since the Effective Date in connection with
such Investments as dividends, distributions or other
returns of capital from Investments.
In the case of any Investment by a Company in any
Receivables Co., such Investment shall only be made in
connection with a Permitted Receivables Transaction on terms
satisfactory to the Required Lenders.
8.5. Limitation on Indebtedness. The Borrowers shall
not, and shall not cause or permit any Subsidiary to, directly
or indirectly, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except (each of which shall be
given independent effect):
(a) the Obligations and the Intercompany Loans;
(b) Indebtedness consisting of Contingent
Obligations permitted pursuant to Section 8.8;
(c) Indebtedness existing on the Effective Date
which is Refinanced Indebtedness (which Indebtedness may
not be outstanding beyond the Closing Date);
(d) Indebtedness existing on the Effective Date set
forth in Schedule 6.16, which amount shall not exceed the
Dollar Equivalent amount of U.S. $50,000,000 reduced by
any Indebtedness incurred pursuant to subsection 8.5(n),
and any refinancing, renewal or extension thereof by the
applicable obligor that does not shorten the maturity or
the average life to maturity thereof or increase the
amount thereof (other than by the amount of fees and
expenses (including prepayment premiums) related to such
refinancing, renewal or extension);
(e) Indebtedness incurred in connection with Capital
Leases to the extent permitted by subsection 8.1(a)(x) and
Indebtedness incurred in connection with the acquisition,
construction or improvement of property to the extent
permitted by subsection 8.1(a)(ix);
(f) Indebtedness of U.S. Borrower or any Qualified
Subsidiary to any Subsidiary or, subject to Section 8.4,
of any Subsidiary which is not a Qualified Subsidiary to
any other Subsidiary;
(g) unsecured Indebtedness in an aggregate principal
amount not to exceed in the aggregate at any time
outstanding the Dollar Equivalent amount of
U.S. $15,000,000;
(h) Guaranty Obligations of any Company in respect
of recourse events in connection with any Permitted
Receivables Transaction;
(i) Indebtedness subordinated on terms satisfactory
to the Required Lenders not to exceed in the aggregate at
any time outstanding the Dollar Equivalent amount of U.S.
$20,000,000 so long as the Net Cash Proceeds therefrom are
applied in accordance with subsection 2.7(d);
(j) Indebtedness arising from honoring a check,
draft or similar instrument against insufficient funds;
provided, however, that such Indebtedness is extinguished
within five Business Days of its incurrence;
(k) obligations under Leases permitted by Section
8.3 and Guaranty Obligations permitted by Sections 8.4 and
8.8;
(l) Indebtedness of a Person (other than
Indebtedness of Van Leer and its Subsidiaries as of the
Closing Date) existing at the time such Person became a
Subsidiary or assets were acquired from such Person, to
the extent such Indebtedness was not incurred in
connection with, or in contemplation of, such Person
becoming a Subsidiary or the acquisition of such assets;
(m) Indebtedness of any Receivables Co. incurred in
connection with a Permitted Receivables Transaction
consisting of (i) Indebtedness in an aggregate amount at
any time not to exceed the Dollar Equivalent amount of
U.S. $40.0 million and (ii) Indebtedness of any Company to
any Receivables Co. in connection with any Permitted
Receivables Transaction; provided, however, that such In-
debtedness and Contingent Obligations shall be
subordinated to the Obligations and on terms and con-
ditions reasonably acceptable to the Required Lenders;
provided, however, that in the case of clause (i) of this
subsection, the Net Cash Proceeds therefrom shall be
applied as specified in subsection 2.7(d); and
(n) unsecured Indebtedness of any Foreign Subsidiary
in an aggregate principal amount for all Foreign
Subsidiaries not to exceed in the aggregate at any time
outstanding the Dollar Equivalent amount of U.S.
$25,000,000.
If such Indebtedness is incurred to refinance
Indebtedness denominated in a currency other than U.S. Dollars
and such refinancing would cause a Dollar Equivalent
restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such
refinancing, such Dollar Equivalent restriction shall not be
deemed to have been exceeded so long as the principal amount of
such refinancing Indebtedness does not exceed the principal
amount of such Indebtedness being refinanced, but the ability
to make subsequent incurrences of Indebtedness subject to the
applicable Dollar Equivalent restriction shall be determined as
if the relevant currency exchange rate applied to any such
previous refinancing was the rate in effect on the date of such
refinancing.
8.6. Transactions with Affiliates. The Borrowers
shall not, and shall not cause or permit any Subsidiary to,
directly or indirectly, enter into any transaction with any
Affiliate of U.S. Borrower (other than one or more Companies),
except upon fair and reasonable terms no less favorable to such
Subsidiary than would obtain in a comparable arm's-length
transaction with a Person not an Affiliate of U.S. Borrower or
such Subsidiary; provided, however, that the following shall in
any event be permitted: (a) Restricted Payments permitted by
Section 8.13; (b) the payment of reasonable and customary
regular fees to directors of any Company who are not employees
of any Company; (c) any transaction with an officer or member
of the board of directors of any Company in the ordinary course
of business involving compensation, indemnity or employee
benefit arrangements; (d) Investments permitted by Section 8.4;
and (e) any Permitted Receivables Transaction.
8.7. Use of Proceeds. The Borrowers shall not and
shall not cause or permit any Subsidiary to, directly or
indirectly, use any portion of the Loan proceeds or any Letter
of Credit, directly or indirectly, (i) to purchase or carry
Margin Stock, (ii) to repay or otherwise refinance Indebtedness
of any Loan Party or others incurred to purchase or carry
Margin Stock or (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock.
8.8. Contingent Obligations. The Borrowers shall
not, and shall not cause or permit any Subsidiary to, directly
or indirectly, create, incur, assume or suffer to exist any
Contingent Obligations, except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Swap Contracts entered into in the ordinary
course of business and designed to protect against
fluctuations in interest rates, currency exchange rates,
commodity prices or similar risks (including any Swap
Contract entered into pursuant to Section 7.17 or Section
7.18 and Swap Contracts that do not violate Section 7.18);
(c) Contingent Obligations existing as of the
Effective Date and listed in Schedule 8.8;
(d) Contingent Obligations arising under (i) Surety
Instruments arising in the ordinary course of business of
any Company or (ii) any guaranty of the performance of
Contractual Obligations (other than obligations to pay
money) of other Persons that are not Subsidiaries so long
as such guaranty arises in connection with a project in
which a Company is otherwise involved in the ordinary
course of business, not to exceed in the aggregate for all
Contingent Obligations pursuant to this subclause (d) the
Dollar Equivalent amount of U.S. $5,000,000;
(e) Guaranty Obligations permitted by Section 8.4
and Guaranty Obligations by U.S. Borrower with respect to
any Indebtedness of any Subsidiary incurred in accordance
with Section 8.5;
(f) other Contingent Obligations not at any time
exceeding in the aggregate outstanding a Dollar Equivalent
amount of U.S. $5,000,000; and
(g) Guaranty Obligations arising under the Credit
Documents or the Intercompany Guarantees.
8.9. Restrictions on Subsidiaries. (a) The
Borrowers shall not cause or permit any Subsidiary to, directly
or indirectly, enter into any agreement or instrument (other
than the Credit Documents) which by its terms restricts the
ability of such Subsidiary (a) to declare or pay dividends or
make similar distributions, (b) to repay principal of, or pay
any interest on, any Indebtedness owed to any Company, (c) to
make payments of royalties, licensing fees and similar amounts
to any Company or (d) to make loans or advances to, or
guarantee any Indebtedness or other obligation of, any Company,
except for such encumbrances or restrictions existing under or
by reason of (i) customary provisions restricting subletting or
assignment of any Lease governing a leasehold interest of any
Company, (ii) customary provisions restricting assignment of
any agreement or license entered into by any Company in the
ordinary course of business, (iii) customary provisions
restricting the transfer of assets subject to Liens permitted
under Section 8.1 and (iv) applicable law (including minimum
capital requirements).
(b) U.S. Borrower will not, and will not cause any
Subsidiary to, directly or indirectly take any action which
would cause any Subsidiary to cease to be a Subsidiary by
virtue of the last sentence of the definition of Subsidiary.
8.10. Fixed Charge Coverage Ratio; Interest
Coverage Ratio. (a) U.S. Borrower shall not permit, as of any
Test Date (beginning with the Test Date ending April 30, 2001),
the Fixed Charge Coverage Ratio to be less than 1.20 to 1.0.
(b) U.S. Borrower shall not permit, as of any Test
Date (beginning with the Test Date ending April 30, 2001)
ending during any period set forth below, the Interest Coverage
Ratio to be less than the ratio set forth opposite such period
in the table below:
Period Ratio
February 1, 2001 to April 30, 2001 3.00 to 1.00
May 1, 2001 to July 31, 2001 3.00 to 1.00
August 1, 2001 to October 31, 2001 3.25 to 1.00
November 1, 2001 to January 31, 2002 3.25 to 1.00
February 1, 2002 to April 30, 2002 3.25 to 1.00
May 1, 2002 to July 31, 2002 3.25 to 1.00
August 1, 2002 to October 31, 2002 and any
Test Date thereafter 3.50 to 1.00
8.11. Minimum Net Worth. U.S. Borrower shall not
permit Consolidated Net Worth (to be calculated for the
purposes of this Section 8.11 by excluding net gains (but not
losses) resulting from asset sales (other than sales of timber
and timber lands)) at the end of any fiscal quarter (beginning
with the fiscal quarter ending April 30, 2001) to be less than
(i) U.S. $500,000,000 plus (ii) 50% of the sum of positive
Consolidated Net Income for each fiscal quarter beginning with
the first fiscal quarter after the Closing Date (without
reduction for losses) plus (iii) 100% of the Net Cash Proceeds
received by U.S. Borrower after the Closing Date from each
issuance of Equity Interests.
8.12. Total Leverage Ratio. U.S. Borrower shall
not permit, as of any Test Date(beginning with the Test Date
ending April 30, 2001) ending during any period set forth
below, the Total Leverage Ratio to exceed the ratio set forth
opposite such period in the table below:
Period Total Leverage Ratio
February 1, 2001 to April 30, 2001 3.50 to 1.00
May 1, 2001 to July 31, 2001 3.50 to 1.00
August 1, 2001 to October 31, 2001 3.25 to 1.00
November 1, 2001 to January 31, 2002 3.25 to 1.00
February 1, 2002 to April 30, 2002 3.00 to 1.00
May 1, 2002 to July 31, 2002 3.00 to 1.00
August 1, 2002 to October 31, 2002 2.75 to 1.00
November 1, 2002 to January 31, 2003 2.75 to 1.00
February 1, 2003 to April 30, 2003 2.50 to 1.00
May 1, 2003 to July 31, 2003 2.50 to 1.00
August 1, 2003 to October 31, 2003 2.50 to 1.00
November 1, 2003 to January 31, 2004 and any
Test Date thereafter 2.00 to 1.00
8.13. Restricted Payments. The Borrowers shall
not, and shall not permit any Subsidiary to, directly or
indirectly, (i) declare or make any dividend payment or other
distribution of assets, properties, Cash, rights, obligations
or securities on account of any shares of any class of the
Equity Interests of any Company (other than to U.S. Borrower or
any Qualified Subsidiary) or (ii) purchase, redeem or otherwise
acquire for value any shares of any Company's Equity Interests
or any warrants, rights or options to acquire such Equity
Interests, now or hereafter outstanding owned by any Person
other than U.S. Borrower or any Qualified Subsidiary (any such
prohibited transaction, a "Restricted Payment"), except that
(each of which shall be given independent effect):
(a) any Company may declare and make dividend
payments or other distributions payable solely in its
Equity Interests;
(b) any Company may purchase, redeem, defease or
otherwise acquire or retire for value shares of its Equity
Interests or warrants or options to acquire any such
Equity Interests with shares of its Equity Interests;
(c) any Subsidiary may pay dividends and
distributions or purchase, redeem, defease or otherwise
acquire or retire for value shares of its Equity Interests
or warrants or options to acquire any such Equity
Interests so long as any such payments pursuant thereto by
any non-Wholly-Owned Subsidiary of U.S. Borrower are made
on a pro rata basis to such Subsidiary's shareholders
generally or are paid solely to a Loan Party;
(d) so long as no Unmatured Event of Default or
Event of Default then exists pursuant to subsection
9.1(a), (f) or (g), U.S. Borrower may make Restricted
Payments during any fiscal year in an amount not to exceed
the excess of (I) the sum of (A) U.S. $18,000,000 plus (B)
the sum of 50% of Consolidated Net Income for each fiscal
year ending during the period beginning on the Closing
Date and ending immediately prior to the date of such
Restricted Payment and for which financial statements
complying with subsection 7.1(a) have been delivered to
the Lenders (it being understood that there shall not be
any deductions for any net loss as shown on U.S.
Borrower's income statement for any fiscal year prepared
in accordance with GAAP) over (II) the aggregate amount of
Restricted Payments made since the Closing Date; provided,
however, that in no event shall the aggregate amount of Re-
stricted Payments made in any fiscal year exceed
U.S. $18,000,000 (or U.S. $25,000,000 at any time that the
Total Leverage Ratio is less than 2.0 to 1.0);
(e) so long as no Unmatured Event of Default or
Event of Default then exists, U.S. Borrower may repurchase
shares of its common stock from time to time during any
fiscal year in an amount not to exceed the lesser of (I)
U.S. $15,000,000 and (II) the Dollar Equivalent amount of
25% of Excess Cash Flow for the most recent fiscal year of
U.S. Borrower; provided, however, that in no event shall
such a repurchase be permitted if (A) the mandatory
prepayment required by subsection 2.7(b) for such fiscal
year has not been completed in accordance with the
requirements thereof and applied as set forth in
subsection 2.7(f), or (B) at the time of the proposed
repurchase the Total Leverage Ratio is greater than 2.0 to
1.0; and
(f) U.S. Borrower may pay dividends of up to the
lesser of (I) $0.01 per share of Class A Common Stock for
each four consecutive fiscal quarters and (II)
U.S. $250,000 for each consecutive fiscal quarter.
8.14. ERISA. The Borrowers shall not, and shall
not cause or permit any ERISA Entities to, engage in a
transaction that would be reasonably likely subject to
Section 4069 or 4212(c) of ERISA and that would, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.15. Change in Business. The Borrowers shall
not, and shall not cause or permit any Subsidiary to, directly
or indirectly, engage in any line of business that, taken on a
consolidated basis, would be material and substantially
different from those lines of business carried on by the
Companies (including Van Leer and its Subsidiaries) on the
Effective Date, except that the Companies may engage in any
reasonable extension, development or expansion thereof or in
any business ancillary thereto.
8.16. Accounting Changes. The Borrowers shall
not, and shall not cause or permit any Subsidiary to, make any
change in accounting principles or reporting practices, except
as required by GAAP, or change their fiscal years.
8.17. Amendments to Transaction Documents. The
Borrowers shall not and shall not cause or permit any
Subsidiary to, directly or indirectly, make any amendment,
supplement or other modification of, or enter into any consent
or waiver with respect to any material obligations under any
Transaction Document.
8.18. Capital Expenditures. The Borrowers shall
not permit the aggregate amount of all Capital Expenditures
made by the Companies for any fiscal year to exceed U.S.
$90,000,000; provided, however, that (x) if the aggregate
amount of Capital Expenditures for any fiscal year shall be
less than U.S. $90,000,000 (before giving effect to any
carryover), then the shortfall may be added to the amount of
Capital Expenditures permitted for the immediately succeeding
(but not any other) fiscal year if the amount expended in such
fiscal year would not exceed U.S. $112,500,000 and (y) in
determining whether any amount is available for carryover, the
amount expended in any fiscal year shall first be deemed to be
from the amount allocated to such year before any carryover.
8.19. Sale and Lease-Backs. The Borrowers shall
not, and shall not cause or permit any Subsidiary to, directly
or indirectly, become or thereafter remain liable as lessee or
as guarantor or other surety with respect to the lessee's
obligations under any lease, whether an operating lease or a
Capital Lease, of any property (whether real or personal or
mixed), whether now owned or hereafter acquired, (i) which any
Company has sold or transferred or is to sell or transfer to
any other Person (other than any Domestic Loan Party) or
(ii) which any Company intends to use for substantially the
same purpose as any other property which has been or is to be
sold or transferred by any Company to any Person in connection
with such lease, if in the case of clause (i) or (ii) above,
such sale and such lease are part of the same transaction or a
series of related transactions or such sale and such lease
occur within one year of each other or are with the same other
Person, except for any transaction permitted by subsection
8.2(d).
8.20. Sale or Discount of Receivables. The
Borrowers shall not, and shall not cause or permit any
Subsidiary to, directly or indirectly, sell, with or without
recourse, or discount (other than in connection with trade
discounts or arrangements necessitated by the creditworthiness
of the other party, in each case in the ordinary course of
business consistent with past practice) or otherwise sell for
less than the face value thereof, notes or accounts receivable,
except (i) to any Domestic Loan Party and (ii) by Foreign
Subsidiaries in the ordinary course and either (I) consistent
with past practice as of the Effective Date, (II) consistent
with the customary practices of the applicable country or (III)
permitted by subsection 8.2(e) and (o).
8.21. Creation of Subsidiaries. The Borrowers
shall not, and shall not cause or permit any Subsidiary to,
establish, create or acquire after the Effective Date any
Subsidiary; provided, however, that U.S. Borrower shall be
permitted to establish, create or acquire direct or indirect
Subsidiaries which are Qualified Subsidiaries or any other
Subsidiary in connection with any Investment permitted by
Section 8.4 so long as (i) at least 10 days' prior written
notice thereof is given to the Paying Agent and (ii) at such
time Section 7.13 is complied with in all respects.
8.22. [Reserved].
8.23. Limitation on Other Restrictions on
Amendment of Documents. The Borrowers shall not, and shall not
cause or permit any Subsidiary to, directly or indirectly,
enter into, suffer to exist or become or remain subject to any
agreement or instrument to which any of them is a party or to
which any of them or any property of any of them (now owned or
hereafter acquired) may be subject or bound (except for the
Credit Documents, the Intercompany Loan Documents and the
Transaction Documents (but with respect to the Transaction
Documents, only as to themselves)) that would expressly
prohibit or restrict (including by way of any covenant,
representation or warranty or event of default), or require the
consent of any Person to any amendment to, or waiver or consent
to departure from the terms of, any Credit Document,
Intercompany Loan Document or Transaction Document (which, in
the case of the Transaction Documents, would be materially
adverse to the Lenders).
8.24. Limitation on Payments or Prepayments of
Indebtedness or Modification of Debt Documents. The Borrowers
shall not, and shall not cause or permit any Subsidiary to,
directly or indirectly:
(a) make any payment or prepayment (optional or
otherwise) on, or redemption of, or any payments in
redemption, defeasance or repurchase (whether in Cash,
securities or other property) of any Indebtedness (other
than the Obligations or Intercompany Loans or other
intercompany loans) of any Company in excess of the Dollar
Equivalent of U.S.$5,000,000, except (i) regularly
scheduled mandatory payments of interest, (ii) the
conversion or exchange of any Indebtedness into shares of
common Equity Interests of U.S. Borrower,
(iii) refinancing of Indebtedness permitted by
subsection 8.5(c), (iv) any such payments related to
Indebtedness incurred under subsection 8.5(e) and (v) the
Refinancing; or
(b) amend, supplement, waive or otherwise modify any
of the provisions of any agreement or instrument governing
any Indebtedness of any Company which is subject to the
restrictions of subsection 8.24(a):
(i) which shortens the fixed maturity, or
increases the rate or shortens the time of payment of
interest or dividends on, or increases the amount or
shortens the time of payment of any principal, or
premium payable whether at maturity, at a date fixed
for prepayment or by acceleration or otherwise of
such Indebtedness, or increases the amount of, or
accelerates the time of payment of, any fees payable
in connection therewith;
(ii) which relates to the affirmative or
negative covenants, events of default, redemption or
repurchase provisions, or remedies under the
documents or instruments evidencing such Indebtedness
and the effect of which is to subject any Company to
any materially more onerous or more restrictive provisions; or
(iii) if such Indebtedness is subordinated
Indebtedness, which effects and changes to the
subordination provisions (or related definitions)
therein or otherwise materially adversely affects the
interests of the Lenders as senior creditors or the
interests of the Lenders under this Agreement or any
other Credit Document in any respect.
8.25. Consolidated Returns. U.S. Borrower shall
not, and shall not permit any of its Subsidiaries to, file or
consent to the filing of any consolidated income tax return
with any Person other than the U.S. Borrower or a Subsidiary
wholly owned directly or indirectly by the U.S. Borrower.
8.26. Limitation on Contribution. U.S. Borrower
shall not, directly or indirectly, contribute the Intercompany
Loans or the related Intercompany Collateral and Intercompany
Security Documents to Subsidiary Borrower (the "Contribution")
or to any other Company, and shall not fail to be the legal and
beneficial owner of any thereof, (a) at any time prior to the
date on which (i) each requirement of Section 7.22 is completed
(except that the requirements with respect to the Foreign
Mortgaged Property described in Subsection 7.22(a) need only be
met with respect to the property set forth on Schedule
1.1(a)(ii) constituting 80% of the book value of property set
forth on Schedule 1.1(a)(ii)) (ii) the Organization Documents
of Subsidiary Borrower shall have been amended as set forth on
Exhibit M, and (iii) U.S. Borrower has provided an Officers'
Certificate to the Agents certifying as to the items set forth
in this subsections 8.26(a)(i) and (ii) and (b), and (b) unless
and until all such Intercompany Loan Documents are
contemporaneously collaterally assigned by Subsidiary Borrower
pursuant to documentation reasonably satisfactory to the Agents
to the Paying Agent as security for Subsidiary Borrower's
Obligations. Upon the consummation of the Contribution
effected in accordance with this Section 8.26, the Agents shall
release all Liens on the Intercompany Loan Documents and shall
execute and deliver all documents and instruments (at the sole
expense of U.S. Borrower) to evidence the same.
ARTICLE IX
EVENTS OF DEFAULT
9.1. Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. Any Loan Party shall fail to pay,
(i) when and as required to be paid herein (whether at
stated maturity, upon prepayment or repayment or
acceleration or otherwise), any principal of any Loan or
of any L/C Obligation or (ii) within five Business Days
after the same becomes due, any interest, fee or any other
amount payable under any Credit Document.
(b) Representation or Warranty. Any representation
or warranty by any Loan Party made or deemed made in any
Credit Document, or which is contained in any certificate,
document or financial or other statement by any Loan Party
or any Responsible Officer furnished at any time under any
Credit Document, shall be incorrect in any material
respect on or as of the date made or deemed made.
(c) Specific Defaults. Any Loan Party shall fail to
perform or observe any term, covenant or agreement
contained in subsection 7.3(a), subsection 7.4(a), Section
7.22, Section 7.23, or in Article VIII (other than
Section 8.16, Section 8.17 and Section 8.23).
(d) Other Defaults. Any Loan Party shall fail to
perform or observe any term, covenant or agreement (other
than those referred to in subsections 9.1(a), (b) or (c)
above) contained in any Credit Document, and such failure
shall continue unremedied for a period of at least 30 days
after the date upon which written notice thereof is given
to the Borrowers by any Co-Agent or any Lender.
(e) Cross-Default. (i) Any Loan Party, any Obligor
under any Intercompany Note or any Significant Subsidiary
(collectively, the "Specified Companies" and each a
"Specified Company") shall fail to make any payment in
respect of any one or more issues of Indebtedness (other
than the Obligations) or Contingent Obligation having an
aggregate principal of more than the Dollar Equivalent
amount of U.S. $10,000,000 beyond the period of grace, if
any, provided in the instrument or agreement under which
such Indebtedness or Contingent Obligation was created or
by which it is governed; or (ii) any Specified Company
shall fail to perform or observe any other term, condition
or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any
Indebtedness or Contingent Obligation, if the effect of
such failure, event or condition is to cause, or to permit
the holder or holders of such Indebtedness or beneficiary
or beneficiaries of such Indebtedness or Contingent
Obligation (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause (with
or without notice or passage of time or both), such
Indebtedness to be declared to be due and payable prior to
its stated maturity or to require any Company to redeem or
purchase, or offer to redeem or purchase, all or any
portion of such Indebtedness, or any such Indebtedness
shall be required to be prepaid (other than by a regularly
scheduled required prepayment or redemption) prior to the
stated maturity thereof or such Contingent Obligation to
become payable or cash collateral in respect thereof to be
demanded; provided, however, that the aggregate amount of
all such Indebtedness or Contingent Obligations for all
Specified Companies so affected and cash collateral so
required shall be in a Dollar Equivalent amount of
U.S. $10,000,000 or more.
(f) Insolvency; Voluntary Proceedings. Any
Specified Company (i) shall cease or fail to be Solvent,
or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due;
(ii) commences or consents to any Insolvency Proceeding
with respect to itself; or (iii) takes any action to
effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding shall be commenced or filed against
any Specified Company, or any writ, judgment, warrant of
attachment, execution or similar process is issued or
levied against a Company, and such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be re-
leased, vacated or fully bonded, within 60 days after
commencement, filing or levy; (ii) any Specified Company
shall admit the material allegations of a petition against
it in any Insolvency Proceeding, or an order for relief
(or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) any Specified Company
shall acquiesce in the appointment of a receiver, receiver
and manager, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other
similar person for itself or a substantial portion of its
property or business.
(h) ERISA. (i) An ERISA Event shall occur with
respect to a Pension Plan or a Multiemployer Plan which
has resulted or would be reasonably likely to result in
liability of any Company under Title IV of ERISA to such
Pension Plan or Multiemployer Plan or to the PBGC in an
aggregate Dollar Equivalent amount in excess of
U.S. $10,000,000; (ii) the aggregate Dollar Equivalent
amount of Unfunded Pension Liability among all Pension
Plans at any time exceeds U.S. $10,000,000 and as a result
thereof a lien shall be imposed, a security interest shall
be granted or a material liability is incurred, which
lien, security interest or liability, in the reasonable
judgment of the Required Lenders, would be reasonably
likely to result in a Material Adverse Effect; or
(iii) noncompliance with respect to Foreign Plans shall
occur that, in the opinion of the Required Lenders, when
taken together with all other noncompliance with respect
to Foreign Plans that have occurred, would reasonably be
expected to result in liability of any Company in an
aggregate amount exceeding U.S. $10,000,000.
(i) Monetary Judgments. One or more non-
interlocutory judgments, non-interlocutory orders, decrees
or arbitration awards shall be entered against any Company
involving in the aggregate a liability (to the extent not
covered by independent third-party insurance as to which
the insurer does not dispute coverage) as to any single or
related series of transactions, incidents or conditions,
of a Dollar Equivalent amount for all Companies of
U.S. $10,000,000 or more, and the same shall remain unva-
cated and unstayed pending appeal for a period of 30 days
after the entry thereof.
(j) Non-Monetary Judgments. Any non-monetary
judgment, order or decree shall be entered against any
Company which does or would reasonably be expected to have
a Material Adverse Effect, and there shall be any period
of 30 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect.
(k) Guarantees. Any Guarantee shall cease to be in
full force and effect (other than due to any effect of
applicable foreign law or action by any foreign government
or in accordance with its terms) or any of the Guarantors
repudiates, or attempts to repudiate, any of its
obligations under any of the Guarantees.
(l) Security Documents. Any Security Document shall
cease to be in full force and effect (other than due to
any effect of applicable foreign law or action by any
foreign government or in accordance with its terms), or
shall cease to give the Paying Agent the Liens, rights,
powers and privileges purported to be created thereby, in
favor of the Paying Agent, superior to and prior to the
rights of all third Persons and subject to no Liens other
than Permitted Liens and Liens expressly permitted by the
applicable Security Document, or any Company shall fail to
comply with or to perform any material obligation or
agreement under any Security Document within ten days
after being requested by the Paying Agent or any Lender.
(m) Intercompany Security Documents. Any
Intercompany Guarantee, Intercompany Pledge or
Intercompany Mortgage shall cease to be in full force and
effect (other than due to any effect of applicable foreign
law or action by any foreign government), or shall cease
to give the lender under the related Intercompany Loan the
Liens, rights, powers and privileges purported to be
created thereby, in favor of such lender, superior to and
prior to the rights of all third Persons and subject to no
Liens other than Prior Liens and Liens expressly permitted
by the applicable Intercompany Security Document, or any
Company shall fail to comply with or to perform any
material obligation or agreement under any Intercompany
Security Document within ten days after being requested by
the Paying Agent or any Lender.
(n) Change of Control. Any Change of Control shall
occur.
(o) Environmental Events. There shall have been
asserted against any Company, claims, whether accrued,
absolute or contingent, based on or arising from the
generation, storage, transport, handling or disposal of
Hazardous Materials by any Company or any Affiliate, or
any predecessor in interest of any Company or any
Affiliate, which claims would, individually or in the
aggregate, reasonably be expected to be determined
adversely to any Company and the amount of any such claim
(insofar as it is payable by any Company but after
deducting any portion thereof which is reasonably expected
to be paid, discharged or forgiven by other creditworthy
Persons jointly and severally liable therefor) would,
individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(p) Van Leer Acquisition. The Van Leer Acquisition
shall not be consummated in all material respects in
accordance with this Agreement and the Van Leer
Acquisition Agreement substantially concurrently with the
making of the initial Credit Extensions hereunder, or the
Van Leer Acquisition shall be unwound, reversed or
otherwise rescinded in whole or in any material part for
any reason.
(q) Permitted Receivables Transaction Issues. Any
event or circumstance shall occur which permits or
requires the Persons purchasing, or financing the purchase
of, Accounts under a Permitted Receivables Transaction to
stop so purchasing or financing such Accounts, other than
by reason of the occurrence of the stated expiration date
of such Permitted Receivables Transaction or the voluntary
termination thereof by any Company; provided that any
notices or cure periods that are conditions to the rights
of such Persons to stop purchasing, or financing the
purchase of, such Accounts have been given or have
expired, as the case may be.
9.2. Remedies. If any Event of Default occurs and is
continuing, the Paying Agent shall, at the request, or may,
with the consent, of the Required Lenders:
(a) declare the commitment of each Lender to make
Loans and the obligation of the L/C Lender to Issue
Letters of Credit to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become
available for drawing under any outstanding Letters of
Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present,
the drafts or other documents required to draw under such
Letters of Credit) to be immediately due and payable, and
declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all
other amounts owing or payable hereunder or under any
other Credit Document to be immediately due and payable,
without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived by the
Borrowers;
(c) direct the Borrowers to pay (and the Borrowers
agree that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in subsection
9.1(f) or (g) with respect to any Borrowers, such
Borrowers shall pay) to the Paying Agent at the Agent's
Payment Office such additional amount of cash, to be held
as security by the Paying Agent, as is equal to the
aggregate undrawn face amount of all Letters of Credit
issued for the account of either Borrower and then
outstanding; and
(d) exercise on behalf of the Paying Agent and the
Lenders all rights and remedies available to the Paying
Agent and the Lenders under the Credit Documents or
applicable law;
provided, however, that upon the occurrence of any event
specified in subsection 9.1(f) or (g), the obligation of each
Lender to make Loans and any obligation of the L/C Lender to
Issue Letters of Credit shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically
become due and payable without further act of the Paying Agent,
the L/C Lender or any other Lender.
9.3. Rights Not Exclusive. The rights provided for
in this Agreement and the other Credit Documents are cumulative
and are not exclusive of any other rights, powers, privileges
or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter
arising.
ARTICLE X
THE AGENTS
10.1. Appointment and Authorization. (a) Each
Lender hereby irrevocably (subject to Section 10.9) appoints,
designates and authorizes each Co-Agent to take such action on
its behalf under the provisions of this Agreement and each
other Credit Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of
this Agreement or any other Credit Document, together with such
powers as are reasonably incidental thereto. The Paying Agent
is expressly authorized to (A) execute and deliver, and approve
the form and substance of, all Security Documents on the
Closing Date or any other time and (B) execute and deliver on
behalf of the Lenders and the Co-Agents all documents necessary
to release Collateral from the Lien of the Credit Documents as
and when permitted by Section 11.1. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement
or in any other Credit Document, no Co-Agent shall have any
duties or responsibilities except those expressly set forth
herein, nor shall any Co-Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other
Credit Document or otherwise exist against any Co-Agent or any
of its affiliates. The provisions of this Article X are solely
for the benefit of the Co-Agents and the Lenders, and no Loan
Party shall have any rights as a third party beneficiary of any
of the provisions hereof. In performing its functions and
duties under this Agreement, each Co-Agent shall act solely as
an agent of the Lenders as provided for herein and no Co-Agent
assumes or shall be deemed to have assumed any obligation or
relationship of agency or trust with or for any Loan Party.
No Co-Agent shall have any responsibilities under any Credit
Document, except as expressly set forth therein.
(b) The L/C Lender shall act on behalf of the
Revolving Lenders with respect to any Letters of Credit Issued
by it and the documents associated therewith until such time
and except for so long as the Paying Agent may agree at the
request of the Required Lenders to act for the L/C Lender with
respect thereto; provided, however, that the L/C Lender shall
have all of the benefits and immunities (i) provided to the
Paying Agent in this Article X with respect to any acts taken
or omissions suffered by the L/C Lender in connection with
Letters of Credit Issued by it or proposed to be Issued by it
and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term
"Paying Agent," as used in this Article X, included the L/C
Lender with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the L/C
Lender.
(c) The Swing Line Lender shall have all of the
benefits and immunities (i) provided to the Paying Agent in
this Article X with respect to any acts taken or omissions
suffered by the Swing Line Lender in connection with Swing Line
Loans made or proposed to be made by it as fully as if the term
"Paying Agent," as used in this Article X, included the Swing
Line Lender with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the
Swing Line Lender.
10.2. Delegation of Duties. Each Co-Agent may
execute any of its duties under this Agreement or any other
Credit Document by or through agents, employees or attorneys-
in-fact and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. No Co-Agent shall be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3. Exculpatory Provisions. No Co-Agent or any
of its Affiliates shall (i) be liable for any action taken or
omitted to be taken by any of them under or in connection with
this Agreement or any other Credit Document or under any other
document or instrument referred to or provided for herein or
therein or the transactions contemplated hereby or thereby
(except for its own gross negligence or willful misconduct),
(ii) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by any Loan
Party or any Subsidiary or Affiliate of any Loan Party, or any
officer thereof, contained in this Agreement or in any other
Credit Document, under or in connection with, this Agreement
or any other Credit Document, or the value, validity,
effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or any other
document referred to or provided for herein or therein, or for
any failure of any Loan Party or any other party to any Credit
Document to perform its obligations hereunder or thereunder,
(iii) except to the extent that, with respect to any Co-Agent,
it is expressly instructed by the Lenders with respect to
collateral security under the Security Documents, be required
to initiate or conduct any litigation or collection proceedings
hereunder or under any other Credit Document or (iv) with
respect to any Co-Agent, be under any obligation to take any
action hereunder or under any other Credit Document if such Co-
Agent believes in good faith that taking such action may
conflict with any law or any provision of any Credit Document,
or may require such Co-Agent to qualify to do business in any
jurisdiction where it is not then so qualified. No Co-Agent or
any of its Affiliates shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or per-
formance of any of the agreements contained in, or conditions
of, this Agreement or any other Credit Document, or to inspect
the properties, books or records of any Loan Party or any
Subsidiary or Affiliate of any Loan Party.
10.4. Reliance by Co-Agents. (a) Each Co-Agent
shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been
signed, sent or made by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel
(including counsel to any Loan Party or any Subsidiary),
independent accountants and other experts selected by any Co-
Agent. Each Co-Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other
Credit Document, unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate
and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Co-Agent shall in all
cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Credit Document, in
accordance with a request or consent of the Required Lenders,
and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 5.1, each Lender that has
executed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or
other matter either sent by any Co-Agent to such Lender for
consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or
satisfactory to the Lender.
10.5. Notice of Default. No Co-Agent shall be
deemed to have knowledge or notice of the occurrence of any
Event of Default or Unmatured Event of Default, unless such Co-
Agent shall have received written notice from a Lender or a
Borrower referring to this Agreement, describing such Event of
Default or Unmatured Event of Default and stating that such
notice is a "notice of default." If a Co-Agent receives such a
notice, such Co-Agent will notify the Lenders of its receipt
thereof. Each Co-Agent shall take such action with respect to
such Event of Default or Unmatured Event of Default as may be
requested by the Required Lenders in accordance with Article
IX; provided, however, that, unless and until a Co-Agent has
received any such request, such Co-Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Event of Default or Unmatured
Event of Default as it shall deem advisable or in the best
interest of the Lenders except to the extent that this
Agreement expressly requires otherwise.
10.6. Credit Decision. Each Lender acknowledges
that no Co-Agent or any of its Affiliates has made any
representation or warranty to it, and that no act by any Co-
Agent hereafter taken, including any review of the affairs of
any Loan Party, shall be deemed to constitute any
representation or warranty by any Co-Agent or any Lender. No
Co-Agent shall be required to keep itself informed as to the
performance or observance by any Lender of this Agreement or
any of the other Credit Documents or any other document
referred to or provided for herein or therein or to inspect the
properties or books of any Loan Party. Each Lender represents
to each Co-Agent that it has, independently and without
reliance upon any Co-Agent or any other Lender, and based on
such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition
and creditworthiness of the Loan Parties, and all applicable
bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement
and to extend credit hereunder. Each Lender also represents
that it will, independently and without reliance upon any Co-
Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue
to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement or any other
Credit Document, and to make such investigations as it deems
necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Loan Parties. Except for notices,
reports and other documents and information expressly herein
required to be furnished to the Lenders by any Co-Agent, no Co-
Agent shall have any duty or responsibility to provide any
Lender with any credit or other information concerning the busi-
ness, prospects, operations, property, financial and other
condition or creditworthiness of the Loan Parties which may
come into the possession of any Co-Agent or any of its Affili-
ates.
10.7. Indemnification. Whether or not the
transactions contemplated hereby are consummated, the Lenders
shall indemnify upon demand each Co-Agent and each of its
Affiliates (to the extent not reimbursed by or on behalf of the
Loan Parties in accordance with the terms hereof and without
limiting the obligation of the Borrowers to do so), pro rata
(determined on the same basis used in determining Required
Lenders), from and against any and all Losses which may at any
time be imposed on, incurred by or asserted against any Co-
Agent in its capacity as such (including by any Lender) arising
out of or by reason of any investigation in any way relating to
or arising out of this Agreement or any other Credit Document,
or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or
the enforcement of any of the terms hereof or thereof or of any
such other documents; provided, however, that no Lender shall
be liable for the payment to any Co-Agent or any of its
Affiliates of any portion of the Losses resulting from such
Person's gross negligence, bad faith or willful misconduct.
Without limitation of the foregoing, each Lender shall ▇▇▇▇-
▇▇▇▇▇ the Paying Agent upon demand for its ratable share
(determined on the same basis used in determining Required
Lenders) of any costs or out-of-pocket expenses (including
Attorney Costs) incurred by the Paying Agent in connection with
the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this
Agreement, any other Credit Document, or any document
contemplated by or referred to herein or therein, to the extent
that any Co-Agent is not reimbursed for such expenses by or on
behalf of the Loan Parties. The agreements set forth in this
Section 10.7 shall survive the payment of all Loans and other
obligations hereunder and the resignation or replacement of any
Co-Agent and shall be in addition to and not in lieu of any
other indemnification agreements contained in any other Credit
Document.
10.8. Co-Agents in Individual Capacity. Each Co-
Agent and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire Equity
Interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with
the Loan Parties and Affiliates of the Loan Parties as though
such Co-Agent were not a Co-Agent hereunder, without notice to
or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, a Co-Agent and its Affiliates may
receive information regarding the Loan Parties or their
Affiliates (including information that may be subject to con-
fidentiality obligations in favor of the Borrowers or such
Affiliates) and acknowledge that no Co-Agent or any of its
Affiliates shall be under any obligation to provide such
information to them. With respect to its Loans, a Co-Agent
(and any of its Affiliates which may become a Lender) shall
have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not a
Co-Agent or the L/C Lender. The terms "Lender" and "Lenders"
shall, unless the context otherwise indicates, include a Co-
Agent in its individual capacity.
10.9. Successor Co-Agents. Any Co-Agent may, and
at the request of the Required Lenders shall, resign as a Co-
Agent upon 30 days' notice to the Lenders and the Borrowers.
If a Co-Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor Co-
Agent, as applicable, which successor agent shall, so long as
no Event of Default exists, be subject to the approval of the
Borrowers (which approval shall not be unreasonably withheld or
delayed). If no successor agent is appointed prior to the
effective date of the resignation of a Co-Agent, such Co-Agent
may appoint, after consulting with the Lenders and the
Borrowers, a successor agent, from among the Lenders. Upon the
acceptance of its appointment as successor agent hereunder,
such successor agent shall succeed to all the rights, powers
and duties of the retiring Co-Agent, and the term "Paying
Agent" or "Syndication Agent" shall mean such successor agent
and the retiring Co-Agent's appointment, powers and duties as
such Co-Agent shall be terminated. After the retiring Co-
Agent's resignation hereunder as such Co-Agent, the provisions
of this Article X and Section 11.4 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it
was such Co-Agent under this Agreement. If no successor agent
has accepted appointment as the applicable Co-Agent by the date
which is 30 days following the retiring Co-Agent's notice of
resignation, the retiring Co-Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall
perform all of the duties of such Co-Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent
as provided for above. Each successor Co-Agent shall comply
with subsection 4.1(e).
10.10. Holders. Each Co-Agent may deem and treat
the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment,
transfer or endorsement thereof, as the case may be, shall have
been filed with such Co-Agent. Any request, authority or
consent of any Person or entity who, at the time of making such
request or giving such consent, is the holder of any Note shall
be conclusive and binding on any subsequent holder, transferee,
assignee or indorsee, as the case may be, of such Note or of
any Note or Notes issued in exchange therefor.
10.11. Failure To Act. Except for action
expressly required of a Co-Agent hereunder and under the other
Credit Documents, each Co-Agent shall in all cases be fully
justified in failing or refusing to act hereunder and
thereunder unless it shall receive further assurances to its
satisfaction from the Lenders of their indemnification
obligations under Section 10.7 against any and all liability
and expense that may be incurred by it by reason of taking or
continuing to take any such action.
10.12. Paying Agent as Joint and Several Creditor.
(a) Each Borrower and each Lender agree that the Paying Agent
shall be the joint creditor (together with the relevant Lender)
of each and every obligation of any Borrower towards each of
the Lenders under or in connection with the Revolving Facility,
and that accordingly the Paying Agent will have its own
independent right to demand performance by the relevant Bor-
rower of those obligations. However, any discharge of any such
obligation to one of the Paying Agent or a Lender shall, to the
same extent, discharge the corresponding obligation owing to
the other.
(b) Without limiting or affecting the Paying Agent's
rights against any Borrower (whether under this paragraph or
under any other provision of this Agreement), the Paying 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 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 Paying Agent's right to act in the protection
or preservation of rights under or to enforce any Security
Document as contemplated by this Agreement and/or this
Agreement (or to do any act reasonably incidental to any of the
foregoing).
ARTICLE XI
MISCELLANEOUS
11.1. Amendments and Waivers. (a) No amendment
or waiver of any provision of any Credit Document, and no
consent with respect to any other departure by any Loan Party
therefrom, shall be effective unless the same shall be in
writing and signed by the Required Lenders (or by the Paying
Agent at the written request of the Required Lenders) and the
Loan Parties and acknowledged by the Paying Agent, and then any
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given;
provided, however, that
(i) no such waiver, amendment or consent shall,
unless in writing and signed by each of the Lenders (with
Obligations directly affected thereby in the case of the
following clauses (A), (B) or (C)) (or by the Paying Agent
at the written request of such Lenders) and the Loan
Parties and acknowledged by the Paying Agent, do any of
the following: (A) extend the term of any of the
Commitments (it being understood that a waiver of any
condition, covenant violation, Event of Default or
Unmatured Event of Default shall not constitute a change
in the term of any Commitment of any Lender) or extend the
time or waive any requirement for the reduction or
termination of any of the Commitments (or reinstate any
Commitment terminated pursuant to Section 9.2) or change
the currency in which any Obligation is payable, except as
expressly permitted herein; (B) extend the final scheduled
maturity of any Loan or Note, or extend the expiration
date of any Letter of Credit beyond the Revolving Loan
Maturity Date or postpone or delay any date fixed for any
payment of interest, fees or other amounts (other than any
mandatory prepayment of the Loans required by subsections
2.7(a) - (e) or any Amortization Payment except the final
Amortization Payment of any Term Loan Facility) due to the
Lenders (or any of them) under any Credit Document;
(C) reduce the principal of, or the rate of interest
specified herein (other than as a result of waiving the
applicability of any post-default increase in interest
rates) on, any Loan or (subject to clause (v)(5) below)
any fees or other amounts payable under any Credit
Document; (D) reduce the percentage set forth in the
definition of the term "Required Lenders" (it being
understood that additional extensions of credit pursuant
to this Agreement consented to by the Required Lenders may
be included in the determination of any such definition
without notice or consent of any other Lender or Co-Agent
on substantially the same basis as the Commitments (and
related extensions of credit) are included on the Closing
Date) or make any change to Clause Third of Article XII of
the Domestic Guarantee and Security Agreement; (E) release
all or substantially all of the Collateral or permit the
Companies to release all or substantially all of the
Intercompany Collateral (except as expressly permitted by
the Credit Documents or the Intercompany Loan Documents,
as the case may be); (F) amend this Section 11.1, Section
2.15, Article IV, or Section 11.4 or any provision herein
or under any Credit Document providing for consent or
other action by all Lenders (except for technical amend-
ments with respect to additional extensions of credit
pursuant to this Agreement which afford the protections to
such additional extensions of credit of the type provided
to each Facility); (G) release any Guarantor from its
obligations under its Guarantee or permit the Companies to
allow any Foreign Subsidiary to be released from its
Foreign Guarantee or Foreign Security Agreement or
Intercompany Guarantee or Intercompany Security Agreement
(except upon a permitted sale of such Subsidiary or as re-
quired by applicable law based on an opinion of counsel
delivered to the Paying Agent by counsel of competent
standing); or (H) consent to the assignment or transfer by
any Loan Party of its rights and obligations under any
Credit Document or the making of any assignment of Loans
or other Obligations or participation therein to any Loan
Party or any Affiliate thereof;
(ii) no such waiver, amendment or consent shall
increase the Commitments of any Lender over the amount
thereof then in effect without the consent of such Lender
(it being understood that amendments, modifications or
waivers of conditions precedent, covenants, Events of
Default or Unmatured Events of Default shall not
constitute an increase of the Commitment of any Lender);
(iii) no consent of any Lender need be obtained, and
the Paying Agent (or the Company being the applicable
secured party with respect to Intercompany Security
Documents) is hereby authorized, to release any Lien
securing the Obligations (or the Intercompany Loans) on
property or asset which is the subject of any disposition
permitted by this Agreement and the other Credit Documents
and the Lien of the Intercompany Security Document as
permitted with respect to any such disposition;
(iv) no reduction of the percentage specified in the
definition of "Required Revolving Lenders" shall be made
without the consent of each Revolving Lender (it being
understood that additional extensions of credit pursuant
to this Agreement consented to by the Required Lenders may
be included in such definition without notice to or
consent of any other Lender or Co-Agent on substantially
the same terms as the Commitments (and related extensions
of credit) are included on the Closing Date); and
(v) no reduction of the percentage specified in the
definition of "Required Lenders of the Affected Tranche"
or "Supermajority Lenders of the Affected Tranche" shall
be made without the consent of each Lender having a Term
Loan Commitment or Term Loan (it being understood that
additional extensions of credit pursuant to this Agreement
consented to by the Required Lenders may be included in
such definition without notice to or consent of any other
Lender or Co-Agent on substantially the same terms as the
Commitments (and related extensions of credit) all
included on the Closing Date); provided, further, however,
that (1) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Lender in addition to the
Required Lenders or all Lenders, as the case may be,
affect the rights or duties of the L/C Lender under this
Agreement or any L/C-Related Document, (2) no amendment,
waiver or consent shall, unless in writing signed by the
Swing Line Lender in addition to the Required Lenders or
all Lenders, as the case may be, affect the rights or
duties of the Swing Line Lender under any Credit Document,
(3) no amendment, waiver or consent shall, unless in
writing and signed by the Paying Agent in addition to the
Required Lenders or all Lenders, as the case may be,
affect the rights or duties of the Paying Agent under any
Credit Document, (4) no amendment, waiver or consent (in-
cluding any of the foregoing with respect to any
representation, warranty, covenant, default or other
matter which is otherwise effective for purposes of this
Agreement) shall, unless in writing and signed by the
Required Revolving Lenders, be effective for determining
whether the conditions precedent to any Credit Extension
under the Revolving Facility have been satisfied, (5) the
Fee Letter may be amended, or rights or privileges
thereunder waived, in accordance with their respective
terms, (6) no amendment, waiver or consent shall, unless
in writing signed by the Required Lenders of the Affected
Tranche (with respect to subclause (x) of this subsection
11.1(a)(v)(6)), or the Supermajority Lenders of the
Affected Tranche (with respect to subclause (y) of this
subsection 11.1(a)(v)(6)), (x) change the application of
prepayments as set forth in subsection 2.7(f) as between
the Term Loan Facilities or provide for the application of
mandatory prepayments required by subsections 2.7(a)-(e)
first to Revolving Loans or change the order in which such
prepayments are applied to Amortization Payments with re-
spect to any such Facility or make any change to the
penultimate sentence of subsection 2.7(f) or the last
sentence of subsection 2.7(g) (although any required
prepay ment under Section 2.7 may be waived or amended, in
whole or in part, by the Required Lenders so long as the
application of any such prepayment which is still made is
not altered) or (y) extend the time for any scheduled
Amortization Payments or reduce the principal amount of
any scheduled Amortization Payment, and (7) no amendment,
waiver or consent, unless in writing signed by the Lenders
holding not less than 75% of the sum of the then aggregate
unused amounts of the Commitments plus the then aggregate
unpaid Dollar Equivalent principal amount of the Loans
plus (without duplication) the then aggregate Effective
Amount of the L/C Obligations shall make any change to
Section 7.24 or the definition of "Rating Date"; provided,
further, still, however, that no amendment, waiver or
consent shall, unless in writing signed by the Required
Lenders, amend, waive or consent to the departure from any
required prepayment under Section 2.7. In the case of any
waiver effected in accordance with this Section 11.1, the
Loan Parties, the Lenders and the Co-Agents shall be
restored to their former position and rights under each
Credit Document, and any Event of Default or Unmatured
Event of Default waived shall be deemed to be cured and
not continuing; but no such waiver shall extend to any
subsequent or other Event of Default or Unmatured Event of
Default, or impair any right consequent thereon. Any
amendment, waiver or consent effected in accordance with
this Section 11.1 shall be binding upon each holder of the
Notes at the time outstanding, each future holder of the
Notes and, if signed by the Borrowers, on the Borrowers
and the other Loan Parties.
(b) If, in connection with any proposed change,
waiver, discharge or termination to any of the provisions of
this Agreement as contemplated by clauses (i), (iv) or (v),
inclusive, of the first proviso to subsection 11.1(a), the
consent of the Required Lenders is obtained but the consent of
one or more of such other Lenders whose consent is required is
not obtained, then U.S. Borrower shall have the right, so long
as all non-consenting Lenders whose individual consent is
required are treated as described in either clause (A) or (B)
below, to either (A) replace each such non-consenting Lender or
Lenders (or, at the option of U.S. Borrower if the respective
Lender's consent is required with respect to less than all
Facilities (or related Commitments), to replace only the
respective Facilities and/or Loans of the respective non-
consenting Lender which gave rise to the need to obtain such
Lender's individual consent) with one or more Replacement
Lenders pursuant to Section 4.8 so long as at the time of such
replacement, each such Replacement Lender consents to the
proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender's Commitments (if such
Lender's consent is required as a result of its respective
Commitment) and/or repay each Facility of outstanding Loans of
such Lender which gave rise to the need to obtain such Lender's
consent and/or cash collateralize its applicable pro rata share
of the Effective Amount of L/C Obligation, in accordance with
this Agreement; provided that, unless the Commitments which are
terminated and Loans which are repaid pursuant to preceding
clause B are immediately replaced in full at such time through
the addition of new Lenders or the increase of the Commitments
and/or outstanding Loans of existing Lenders (who in each case
must specifically consent thereto), then in the case of any
action pursuant to preceding clause B the Required Lenders
(determined after giving effect to the proposed action) shall
specifically consent thereto; provided, further, that U.S.
Borrower shall not have the right to replace a Lender,
terminate its Commitments or repay its Loans solely as a result
of the exercise of such Lender's rights (and the withholding of
any required consent by such Lender) pursuant to this proviso.
11.2. Notices. (a) Except as otherwise
expressly provided herein, all notices, requests and other
communications hereunder and under the Security Documents
(including any modifications of, or waivers, requests or
consents under, this Agreement) shall be in writing (including,
unless the context expressly otherwise provides, by facsimile
transmission; provided, however, that any matter transmitted by
any Loan Party (x) to any Co-Agent, the L/C Lender or the Swing
Line Lender by facsimile shall be immediately confirmed by a
telephone call to the recipient at the number specified on
Schedule 11.2 and (y) to any Lender by facsimile shall be imme-
diately confirmed by a telephone call to the recipient at the
number specified on Schedule 11.2 or by overnight mail to the
recipient at the address specified on Schedule 11.2) and
mailed, faxed or delivered to the applicable party at the
address or facsimile number specified for notices on Schedule
11.2 (which such facsimile notices shall be confirmed by
overnight mail); or, as directed to any Loan Party or any Co-
Agent, the L/C Lender or the Swing Line Lender, to such other
address as shall be designated by such party in a written
notice to the other parties, and as directed to any other
party, at such other address as shall be designated by such
party in a written notice to the Loan Parties and the Co-
Agents, the L/C Lender and the Swing Line Lender.
(b) All such notices, requests and communications
shall be effective, (i) if transmitted by overnight delivery or
faxed, when delivered or transmitted in legible form by
overnight delivery or facsimile machine, respectively, (ii) if
mailed, upon receipt or (iii) if delivered, upon delivery;
except that notices pursuant to Article II, III or X to a Co-
Agent shall not be effective until actually received by such
Co-Agent, and notices pursuant to Article III to the L/C Lender
shall not be effective until actually received by the L/C
Lender.
(c) Any agreement of any Co-Agent and the Lenders
herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Loan
Parties. The Co-Agents and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person
authorized by a Loan Party to give such notice, and neither any
Co-Agent nor any Lender shall have any liability to any Loan
Party or any other Person on account of any action taken or not
taken by a Co-Agent or any Lender in reliance upon such
telephonic or facsimile notice. The obligation of the
Borrowers to repay the Loans and L/C Obligations shall not be
affected in any way or to any extent by any failure by any Co-
Agent or any Lender to receive written confirmation of any
telephonic or facsimile notice or the receipt by any Co-Agent
or any Lender of a confirmation which is at variance with the
terms understood by such Co-Agent or such Lender to be
contained in the telephonic or facsimile notice.
11.3. No Waiver; Cumulative Remedies. No failure
to exercise and no delay in exercising, on the part of any Co-
Agent or any Lender, any right, remedy, power or privilege
hereunder or under any other Credit Document, and no course of
dealing between any Loan Party and any Co-Agent or Lenders
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege
hereunder or under any other Credit Document preclude any other
or further exercise thereof or the exercise of any other right,
remedy, power or privilege hereunder or under such other Credit
Document. The rights and remedies expressly provided herein
are cumulative and not exclusive of any rights or remedies
provided by law. No notice to or demand upon any Loan Party in
any case shall entitle any Loan Party to any other or further
notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Co-Agents or the
Lenders to any other or further action in any circumstance
without notice or demand.
11.4. Expenses, Indemnity, etc. Each Borrower
agrees: (a) to jointly and severally pay or reimburse the Co-
Agents for all of their reasonable out-of-pocket costs and
expenses (including the reasonable fees and expenses of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and of all local domestic and foreign counsel)
in connection with (i) the negotiation, preparation, execution
and delivery of this Agreement and the other Credit Documents
and Security Documents and the extensions of credit hereunder,
the negotiation, preparation, execution and delivery of the
Intercompany Loan Documents, the administration of the
transactions contemplated hereby (including the monitoring of
the Collateral) and the Lead Arranger's syndication efforts
(including the Co-Agents' due diligence investigation expenses)
with respect to this Agreement, the Transactions and the
extensions of credit hereunder and (ii) the negotiation or
preparation of any modification, supplement or waiver of any of
the terms of this Agreement or any of the other Credit
Documents or the Intercompany Loan Documents (whether or not
consummated or effective) (including, without limitation, in
connection with the Borrowers' complying with Section 7.22);
(b) to jointly and severally pay or reimburse each Lender and
each Co-Agent for its proportionate share of all reasonable
out-of-pocket costs and expenses of the Lenders and each Co-
Agent (including Attorney Costs of each Co-Agent and the
Lenders) in connection with (i) protection of the Lenders'
rights following any Event of Default and any enforcement or
collection proceedings resulting therefrom, including all
manner of participation in or other involvement with
(x) bankruptcy, insolvency, receivership, foreclosure, winding
up, dissolution or liquidation proceedings, (y) judicial or
regulatory proceedings, and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consum-
mated), and (ii) the enforcement of this Section 11.4; and
(c) to jointly and severally pay or reimburse each Lender and
each Agent for its proportionate share of all transfer, stamp,
documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of
this Agreement or any of the other Credit Documents or the
Intercompany Loan Documents or any other document referred to
herein or therein and all costs, expenses, taxes, assessments
and other charges (including title insurance and Attorney
Costs) incurred in connection with any filing, registration,
recording or perfection of any security interest contemplated
by any Credit Document or any other document referred to
therein.
Subject to the limitations under Article IV, each
Borrower agrees, whether or not the transactions contemplated
hereby are consummated, to jointly and severally indemnify each
Lender, each Co-Agent and each of their respective directors,
officers, employees, attorneys, trustees and agents (each, an
"Indemnified Person") from, and hold each of them harmless
against, its proportionate share of any and all Losses incurred
by any of them in connection with any Proceeding (whether or
not any Co-Agent or any Lender is a party thereto and whether
or not brought by or on behalf of any Company or any other
Person) arising out of or by reason of relating to any of the
Credit Documents, the extensions of credit hereunder or any
actual or proposed use by any Company of the proceeds of any of
the extensions of credit hereunder or the use of any collateral
security for the Loans (including the exercise by any Co-Agent
or any Lender of the rights and remedies or any power of
attorney with respect thereto and any action or inaction in
respect thereof), but excluding any such Losses to the extent
determined by a court of competent jurisdiction to have arisen
from the gross negligence, bad faith or willful misconduct of
the Indemnified Person. Without limiting the generality of the
foregoing, each Borrower jointly and severally agrees to
(x) indemnify each Co-Agent for any payments that any Co-Agent
is required to make under any indemnity issued to any Lender
referred to in any Security Document, and (y) indemnify each
Lender and each other Indemnified Person from, and hold each
Lender and each other Indemnified Person harmless against, any
Losses described in the preceding sentence (net of insurance
proceeds actually received but excluding, as provided in the
preceding sentence, any Loss to the extent determined by a
court of competent jurisdiction to have arisen from the gross
negligence, bad faith or willful misconduct of such Indemnified
Person) arising under any Environmental Law based on or arising
out of (A) the past, present or future operations of any Com-
pany (or any predecessor in interest to any Company), (B) the
past, present or future condition of any facility or property
owned, operated or leased at any time by any Company (or any of
their respective predecessors in interest), or (C) any Release
or threatened Release of any Hazardous Materials at, on, under
or from any such facility or property, including, without
limitation, any such Release or threatened Release that shall
occur during any period when any Lender or other Indemnified
Person shall be in possession of any such facility or property
following the exercise by such Lender or other Indemnified
Person of any of its rights and remedies hereunder or under any
of the Security Documents, and the alleged disposal or alleged
arranging for disposal or treatment or transport for disposal
or treatment of any Hazardous Materials by any Company (or any
of their respective predecessors in interest) at any third-
party site.
To the extent that the undertaking to indemnify and
hold harmless set forth in this Section 11.4 is unenforceable
because it is violative of any law or public policy or
otherwise, each Loan Party shall contribute the maximum portion
that each of them is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all
indemnified liabilities incurred by any of the Persons
indemnified hereunder.
Each Borrower also agrees that no Indemnified Person
shall have any liability (whether direct or indirect, in
contract or tort or otherwise) for any Losses to any Loan Party
or any Loan Party's security holders or creditors resulting
from, arising out of, in any way related to or by reason of,
any matter referred to in the second paragraph of this
Section 11.4, except to the extent that any Loss is determined
by a court of competent jurisdiction to have arisen solely from
the gross negligence, bad faith or willful misconduct of such
Indemnified Person.
In the event that any Indemnified Person is requested
or required to appear as a witness in any Proceeding brought by
or on behalf of or against any Loan Party or any Affiliate of
any Loan Party in which such Indemnified Person is not named as
a defendant, each Borrower agrees to jointly and severally
reimburse each Indemnified Person for all reasonable out-of-
pocket expenses and all reasonable allocable costs of in-house
legal counsel incurred by each Indemnified Person in connection
with such Indemnified Person's appearing and preparing to
appear as such a witness, including the reasonable fees and
disbursements of one common counsel for all Indemnified Per-
sons.
Each Borrower agrees that, without the prior written
consent of the Paying Agent, the Lead Arranger and the Required
Lenders, which consent shall not be unreasonably withheld or
delayed, no Loan Party will settle, compromise or consent to
the entry of any judgment in any pending or threatened
Proceeding in respect of which indemnification could be sought
under the indemnification provisions of this Section 11.4
(whether or not any Indemnified Person is an actual or
potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional written release
reasonably satisfactory to the Paying Agent, the Lead Arranger
and the Required Lenders of each Indemnified Person from all
liability arising out of such Proceeding and does not include
any statement as to an admission of fault, culpability or
failure to act by or on behalf of any Indemnified Person and
does not involve any payment of money or other value by any
Indemnified Person or any injunctive relief or factual findings
or stipulations binding on any Indemnified Person. No
Indemnified Person shall settle, compromise or consent to the
entry of any judgment in any pending or threatened Proceeding
without the prior written consent of the Borrowers, which
consent shall not be unreasonably withheld or delayed.
11.5. Payments Pro Rata. Subject to Section
2.15, the Paying Agent agrees that promptly after its receipt
of each payment from or on behalf of any Loan Party in respect
of any Obligations of such Loan Party, it shall distribute such
payment to the Lenders based upon their respective Pro Rata
Shares, if any, of the Obligations with respect to which such
payment was received.
11.6. Payments Set Aside. To the extent that a
Loan Party makes a payment to the Paying Agent or any Lender,
or the Paying Agent or any Lender exercises its right of set-
off, and such payment or the proceeds of such set-off or any
part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Paying Agent or
such Lender in its discretion) to be repaid to a trustee,
receiver, receiver manager or any other party, in connection
with any Insolvency Proceeding or otherwise, then (a) to the
extent of such recovery the obligation or part thereof
originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not
been made or such set-off had not occurred and (b) each Lender
severally agrees to pay to such Paying Agent upon demand its
pro rata share of any amount so recovered from or repaid by
such Paying Agent.
11.7. Successors and Assigns. The provisions of
this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
assigns.
11.8. Assignments and Participations, etc.
(a) No Borrower may assign its rights or obligations hereunder
or under the Notes without the prior written consent of all of
the Lenders and the Co-Agents.
(b) Any Lender may upon prior written consent of the
Lead Arranger, the Paying Agent and U.S. Borrower (and The Bank
of Nova Scotia in its capacity as the Swing Line Lender and The
Bank of Nova Scotia in its capacity as the L/C Lender in the
case of any assignment of Revolving Commitments) (which
consent, in each case, shall not be unreasonably withheld or
delayed), at any time assign and delegate to one or more
Eligible Assignees (each, an "Assignee") (provided that no
written consent of U.S. Borrower, the Lead Arranger, the Paying
Agent, the Swing Line Lender or the L/C Lender shall be
required in connection with any assignment and delegation by a
Lender to an Eligible Assignee that is an Affiliate of such
Lender or to another Lender or to an Approved Fund of any
Lender) (in which case, the Assignee and assignor Lenders shall
give notice of the assignment to the Lead Arranger and the
Paying Agent) all or any part of the Loans, the Commitments,
the L/C Obligations and the other rights and obligations of
such Lender hereunder, which assignment, other than to a Lender
or an Affiliate of a Lender or to an Approved Fund of any
Lender, shall be in a minimum (unless U.S. Borrower and the
Lead Arranger agree to a lesser amount) Dollar Equivalent
amount of U.S. $1,000,000 or, if less, the entire amount of all
Loans, the Commitments, L/C Obligations and other rights and
obligations of such Lender hereunder in any Facility; provided,
however, that (i) in no event may any such assignment be made
to any Company or any of its Affiliates; (ii) the Loan Parties
and the Co-Agents may continue to deal solely and directly with
such Lender in connection with the interest so assigned to an
Assignee until (x) written notice of such assignment, together
with payment instructions, addresses and related information
with respect to the Assignee, shall have been given to any Loan
Party and the Co-Agents by such Lender and the Assignee, and
(y) such Lender and its Assignee shall have delivered to the
Borrowers and the Paying Agent an Assignment and Acceptance in
the form of Exhibit G ("Assignment and Acceptance") together
with any Note or Notes subject to such assignment; (iii) no
such consent of U.S. Borrower or the Paying Agent need be
obtained if any Unmatured Event of Default or Event of Default
has occurred and is continuing; and (iv) no such consent of
U.S. Borrower or the Paying Agent need be obtained for any
assignment of a Term B Loan to an Eligible Assignee. Notwith-
standing any other term of this subsection 11.8(b), the
agreement of the Swing Line Lender to provide the Swing Line
Commitment shall not impair or otherwise restrict in any manner
the ability of the Swing Line Lender to make any assignment of
its Loans or Commitments in accordance with the provisions of
this Section 11.8, it being understood and agreed that the
Swing Line Lender may terminate its Swing Line Commitment in
connection with the making of any assignment so long as the
Assignee assumes the Swing Line Commitment. At the time of
each assignment pursuant to this subsection 11.8(b) to a Person
which is not already a Lender hereunder within the same
Facility, the Assignee shall provide to the Loan Parties and
the Co-Agents the appropriate forms and certificates described
in subsection 4.1(f) (except to the extent expressly provided
otherwise). To the extent that an assignment of all or any
portion of a Lender's Commitments and related outstanding
Obligations pursuant to this subsection 11.8(b) would, at the
time of such assignment, result in increased costs payable to
such assignee Lender under Section 4.1, 4.3 or 4.4 from those
being charged by the respective assigning Lender prior to such
assignment, then no Borrower shall be obligated to pay such
increased costs (although the Borrowers shall be obligated to
pay any increased costs resulting from any Change in Law after
the date of the respective assignment).
(c) From and after the date that the Lead Arranger
and the Paying Agent notify the assignor Lender that they have
received (and provided their consent and, to the extent
required, received the consents of U.S. Borrower, the Swing
Line Lender and the L/C Lender with respect to) an executed
Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights hereunder have been
assigned to it and obligations hereunder have been assumed by
it pursuant to such Assignment and Acceptance, shall have the
rights and obligations of a Lender under the Credit Documents,
and (ii) the assignor Lender shall, to the extent that rights
and obligations hereunder and under the other Credit Documents
have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its
obligations under the Credit Documents.
(d) Any Lender may at any time sell to one or more
commercial banks or other Persons that are not Affiliates of
any Borrower (a "Participant") participating interests in all
or any part of any Loan, the Commitment of such Lender and the
other interests of such Lender (the "originating Lender")
hereunder and under the other Credit Documents; provided,
however, that (i) the originating Lender's obligations under
this Agreement shall remain unchanged, (ii) the originating
Lender shall remain solely responsible for the performance of
such obligations, (iii) the Loan Parties, the Swing Line
Lender, the L/C Lender and the Co-Agents shall continue to deal
solely and directly with the originating Lender in connection
with the originating Lender's rights and obligations under this
Agreement and the other Credit Documents, and (iv) no Lender
shall transfer or grant any participating interest under which
the Participant has rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other
Credit Document, except to the extent such amendment, consent
or waiver would (1) extend the final scheduled maturity of any
Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Termination Date) in which such
Participant is participating, or reduce the rate or extend the
time of payment of interest or fees thereon (except in
connection with a waiver of applicability of any post-default
increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the Participant's
participation over the amount thereof then in effect (it being
understood that a waiver of any condition, covenant, violation,
Event of Default or Unmatured Event of Default shall not
constitute a change in the terms of such participation, and
that an increase in any Revolving Commitment or Revolving Loan
shall be permitted without the consent of any Participant if
the Participant's participation is not increased as a result
thereof), (2) consent to the assignment or transfer by any Loan
Party of any of its rights and obligations under this Agreement
or (3) release all or substantially all of the Collateral under
all of the Security Documents (except as expressly provided in
the Credit Documents) supporting the Loans hereunder in which
such Participant is participating. In the case of any such
participation, the Participant shall be entitled to the benefit
of Sections 2.15, 4.1, 4.3, 4.4, 4.6 and 11.4 as though it were
also a Lender hereunder (provided that no Loan Party shall be
obligated to pay any amount under Section 4.1, 4.3, 4.4 or 4.6
to any Participant which is greater than a Loan Party would
have been required to pay to the originating Lender at the time
such participation was sold (although the Loan Parties shall be
obligated to pay any other increased amounts under the
foregoing sections that result from any Change in Law after the
date on which the participation was sold)), and if amounts
outstanding under this Agreement are due and unpaid, or shall
have been declared or shall have become due and payable upon
the occurrence of an Event of Default, the Participant shall be
deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this
Agreement, any Lender may at any time create a security
interest in, or pledge, all or any portion of its rights under
and interest in this Agreement and any Note held by it in favor
of any U.S. Federal Reserve Bank in accordance with Regulation
A and any Operating Circular issued by such U.S. Federal
Reserve Bank. In addition, any Lender that is a fund that
invests in loans may at any time create a security interest in,
or pledge, all or any portion of its rights under and interest
in this Agreement and any Note held by it in favor of any
trustee or holders of obligations owed, or securities issued
by, such funds as security for such obligations or securities
or to any other representative of such holders. No such
assignment shall release the assigning Lender from its ob-
ligations hereunder.
(f) Each Borrower shall and shall cause each of its
Subsidiaries to assist any Lender in effectuating any
assignment or participation pursuant to this subsection 11.8(f)
(including during syndication) in whatever manner such Lender
reasonably deems necessary, including the participation in
meetings with prospective Assignees.
11.9. Confidentiality. (a) Each of the Lenders
agrees that it will use its reasonable efforts not to disclose
without the prior consent of U.S. Borrower (other than to its
employees, auditors, counsel or other professional advisors, to
Affiliates or to another Lender if the Lender or such Lender's
holding or parent company in its sole discretion determines
that any such party should have access to such information) any
information with respect to any Company which is furnished
pursuant to this Agreement or any other Credit Document; pro-
vided, however, that any Lender may disclose any such
information (i) as has become generally available to the
public, (ii) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state,
provincial or U.S. Federal or foreign regulatory body having or
claiming to have jurisdiction over such Lender or to the U.S.
Federal Reserve Board or the U.S. Federal Deposit Insurance
Corporation or the NAIC or similar organizations (whether in
the United States or elsewhere) or their successors, (iii) as
may be required or appropriate in response to any summons or
subpoena or in connection with any litigation (provided that,
where practicable (unless prohibited by law), U.S. Borrower
shall be afforded prior notice thereof and a reasonable op-
portunity to contest such summons or subpoena; it being
understood, however, that the Co-Agents and Lenders shall be
permitted in any event to comply with such summons or
subpoena), (iv) to comply with any law, order, regulation or
ruling applicable to such Lender, (v) to any prospective
transferee in connection with any contemplated transfer of any
of the Notes or any interest therein by such Lender; provided,
however, that the transferring Lender shall use reasonable
efforts to cause such prospective transferee (unless it is a
Lender) to execute an agreement with such Lender containing
provisions substantially identical to those contained in this
Section 11.9, and (vi) to any direct or indirect contractual
counterparties in swap agreements or such contractual
counterparties' professional advisors, provided that such
contractual counterparty or professional advisor to such
contractual counterparty agrees in writing to keep such
information confidential to the same extent required of the
Lenders hereunder.
(b) Each Borrower hereby acknowledges and agrees
that each Lender may share with any of its Affiliates or
investment advisor any information related to any Company
(including, without limitation, any nonpublic customer
information regarding the creditworthiness of any Loan Party
and its Subsidiaries, provided that such Persons shall be
subject to the provisions of this Section 11.9 to the same
extent as such Lender).
(c) Notwithstanding anything herein to the contrary,
each Borrower hereby acknowledges and agrees that each Lender
may share any information with respect to any Company furnished
pursuant to this Agreement to any Person which shares or bears,
whether directly or indirectly, such Lender's economic benefits
or burdens hereunder; provided, however, that such Person shall
be subject to the provisions of this Section 11.9 to the same
extent as such Lender.
11.10. Set-off. In addition to any right or
remedy of the Lenders now or hereafter provided by law, and not
by way of limitation of any such right or remedy, during the
continuance of an Event of Default such Lender is authorized at
any time and from time to time, without prior notice to any
Loan Party, any such notice being waived by the Borrowers on
their own behalf and on behalf of their Subsidiaries to the
fullest extent permitted by law, to set off and to appropriate
and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other
Indebtedness at any time owing by, such Lender (including by
branches and agencies of such Lender wherever located) to or
for the credit or the account of the Applicable Borrower
against such amount, irrespective of whether or not any Co-
Agent or such Lender shall have made demand under this
Agreement or any Credit Document, including all interests in
Obligations of such Borrower purchased by such Lender pursuant
to Section 2.19 and all other claims of any nature or
description arising out of or connected with any Credit
Document, irrespective of whether or not such Lender shall have
made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or
unmatured. Each Lender agrees promptly to notify the
Applicable Borrower and the Co-Agents after any such set-off
and application made by such Lender; provided, however, that
the failure to give such notice shall not affect the validity
of such set-off and application.
11.11. Notification of Addresses, Lending Offices,
etc. Each Lender shall notify the Co-Agents in writing of any
change in the address to which notices to such Lender should be
directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it
hereunder and of such other administrative information as any
Co-Agent shall reasonably request.
11.12. Counterparts. This Agreement may be
executed in any number of separate counterparts, each of which,
when so executed, shall be deemed an original, and all of which
taken together shall be deemed to constitute but one and the
same instrument. Any of the parties hereto may execute this
Agreement by signing any such counterpart.
11.13. Severability; Modification To Conform to
Law. It is the intention of the parties that this Agreement be
enforceable to the fullest extent permissible under applicable
law, but that the unenforceability (or modification to conform
to such law) of any provision or provisions hereof shall not
render unenforceable, or impair, the remainder hereof. If any
provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, this
Agreement shall, as to such jurisdiction, be deemed amended to
modify or delete, as necessary, the offending provision or
provisions and to alter the bounds thereof in order to render
it or them valid and enforceable to the maximum extent
permitted by applicable law, without in any manner affecting
the validity or enforceability of such provision or provisions
in any other jurisdiction or the remaining provisions hereof in
any jurisdiction.
11.14. No Third Parties Benefitted. This
Agreement is made and entered into for the sole protection and
legal benefit of the Loan Parties, the Lenders, the Co-Agents
and the Affiliates of the Co-Agents, and their permitted
successors and assigns, and no other Person shall be a direct
or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this
Agreement or any other Credit Document.
11.15. Governing Law; Submission to Jurisdiction;
Venue. (a) THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Agreement or any other Credit
Document may be brought in the courts of the State of New York
in the County of New York (Manhattan) or of the United States
for the Southern District of New York and, by execution and de-
livery of this Agreement, each of U.S. Borrower and Subsidiary
Borrower hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each of U.S. Borrower
and Subsidiary Borrower hereby further irrevocably waives any
claim that any such courts lack jurisdiction over such party,
and agrees not to plead or claim, in any legal action or
proceeding with respect to this Agreement or any other Credit
Document brought in any of the aforesaid courts, that any such
court lacks jurisdiction over such party. Each of U.S.
Borrower and Subsidiary Borrower irrevocably consents to the
service of process in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to such party, at its address for notices
pursuant to Section 11.2, such service to become effective 30
days after such mailing. Each of U.S. Borrower and Subsidiary
Borrower hereby irrevocably waives any objection to such
service of process and further irrevocably agrees not to plead
or claim in any action or proceeding commenced hereunder or
under any other Credit Document that service of process was in
any way invalid or in effective. Nothing herein shall affect
the right of any Co-Agent, any Lender or the holder of any Note
to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against any
Loan Party in any other jurisdiction.
(b) Each of U.S. Borrower and Subsidiary Borrower on
its own behalf and each Borrower on behalf of each other Loan
Party hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the
aforesaid proceedings arising out of or in connection with this
Agreement or any other Credit Document brought in the courts
referred to in clause (a) above and hereby further irrevocably
waives and agrees not to plead or claim in any such court that
any such proceeding brought in any such court has been brought
in an inconvenient forum.
11.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES
TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT OR ANY
OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
11.17. Judgment. If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due
hereunder or any other Credit Document in one currency into
another currency, the rate of exchange used shall be that at
which in accordance with normal banking procedures the Paying
Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final
judgment is given. The obligation of each of U.S. Borrower and
Subsidiary Borrower in respect of any such sum due from it to
any Co-Agent or Lender hereunder or under any other Credit
Document shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of
this Agreement (the "Agreement Currency"), be discharged only
to the extent that on the Business Day following receipt by the
applicable Co-Agent or Lender of any sum adjudged to be so due
in the Judgment Currency, such Person may in accordance with
normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency
so purchased is less than the sum originally due to the
applicable Co-Agent in the Agreement Currency, each Borrower
agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Person to whom such obligation was
owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to
the applicable Co-Agent or Lender in such currency, such Person
agrees to return the amount of any excess to the applicable
Loan Party (or to any other Person who may be entitled thereto
under applicable law).
11.18. Survival. The obligations of the Borrowers
under Article IV and Sections 11.4, 11.15 and 11.16 shall
survive the repayment of the Loans and other Obligations and
the termination of the Commitments and, in the case of any
Lender that may assign any interest in its Commitments, Loans
or Letter of Credit interest hereunder, shall survive the
making of such assignment, notwithstanding that such assigning
Lender may cease to be a "Lender" hereunder.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
▇▇▇▇▇ BROS. CORPORATION, as U.S. Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Assistant Secretary
▇▇▇▇▇ SPAIN HOLDINGS, S.L., as Subsidiary Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH,
PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
as Sole Lead Arranger, Sole Book-Runner and
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
THE BANK OF NOVA SCOTIA, as Paying Agent
By: /s/ F.C.H. ▇▇▇▇▇
Name: F.C.H. ▇▇▇▇▇
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇
Telecopier No.: [ ]
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
KEYBANK NATIONAL ASSOCIATION, as Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO BANK N.V., as Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Address for Notices:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Loan Administration
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONAL CITY BANK, as Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
National City Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇. ▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇