EXHIBIT 10.47
CREDIT AGREEMENT
dated as of
January 11, 2007
among
WATERS CORPORATION
as US Borrower
WATERS TECHNOLOGIES IRELAND LIMITED
as European Borrower
The Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
and
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
as London Agent
---------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and ABN AMRO INCORPORATED
as Joint Lead Arrangers
and Joint Bookrunners
ABN AMRO INCORPORATED
as Syndication Agent
BANK OF AMERICA, N.A., BARCLAYS BANK PLC, CITIZENS BANK OF
MASSACHUSETTS, BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY
and
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
as Co-Documentation Agents
[CSM #6701-450]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
Section 1.01. Defined Terms..................................................................................... 1
Section 1.02. Classification of Loans and Borrowings............................................................ 19
Section 1.03. Terms Generally................................................................................... 19
Section 1.04. Accounting Terms; GAAP............................................................................ 20
Section 1.05. Exchange Rates.................................................................................... 20
ARTICLE II
The Credits
Section 2.01. Commitments....................................................................................... 21
Section 2.02. Loans and Borrowings.............................................................................. 21
Section 2.03. Notice of Borrowings.............................................................................. 22
Section 2.04. Swingline Loans................................................................................... 23
Section 2.05. Letters of Credit................................................................................. 25
Section 2.06. Funding of Borrowings............................................................................. 29
Section 2.07. Repayment of Borrowings; Evidence of Debt......................................................... 30
Section 2.08. Interest Elections................................................................................ 31
Section 2.09. Termination and Reduction of Commitments.......................................................... 32
Section 2.10. Increase in Commitments........................................................................... 33
Section 2.11. Prepayment of Loans............................................................................... 35
Section 2.12. Fees.............................................................................................. 36
Section 2.13. Interest.......................................................................................... 37
Section 2.14. Alternate Rate of Interest........................................................................ 38
Section 2.15. Increased Costs................................................................................... 38
Section 2.16. Break Funding Payments............................................................................ 39
Section 2.17. Taxes............................................................................................. 40
Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs........................................ 41
Section 2.19. Mitigation Obligations; Replacement of Lenders.................................................... 43
ARTICLE III
Representations and Warranties
Section 3.01. Corporate Existence and Standing.................................................................. 44
ii
Section 3.02. Authorization; No Violation....................................................................... 44
Section 3.03. Governmental Consents............................................................................. 44
Section 3.04. Validity.......................................................................................... 44
Section 3.05. Use of Proceeds................................................................................... 44
Section 3.06. Litigation........................................................................................ 44
Section 3.07. Financial Statements; No Material Adverse Change.................................................. 45
Section 3.08. Investment Company Act............................................................................ 45
Section 3.09. Taxes............................................................................................. 45
Section 3.10. ERISA............................................................................................. 45
Section 3.11. Regulation U...................................................................................... 46
Section 3.12. Environmental Matters............................................................................. 46
Section 3.13. Disclosure........................................................................................ 46
Section 3.14. Subsidiary Guarantors............................................................................. 46
ARTICLE IV
Conditions
Section 4.01. Effective Date.................................................................................... 46
Section 4.02. Each Credit Event................................................................................. 47
ARTICLE V
Affirmative Covenants
Section 5.01. Payment of Taxes, Etc............................................................................. 48
Section 5.02. Preservation of Existence, Etc.................................................................... 48
Section 5.03. Compliance with Laws, Etc......................................................................... 48
Section 5.04. Keeping of Books.................................................................................. 49
Section 5.05. Inspection........................................................................................ 49
Section 5.06. Reporting Requirements............................................................................ 49
Section 5.07. Use of Proceeds and Letters of Credit............................................................. 51
Section 5.08. Guarantee Requirement............................................................................. 51
ARTICLE VI
Negative Covenants
Section 6.01. Subsidiary Debt................................................................................... 51
Section 6.02. Liens Securing Debt............................................................................... 52
Section 6.03. Sale and Leaseback Transactions................................................................... 52
Section 6.04. Merger, Consolidation, Etc........................................................................ 52
Section 6.05. Change in Business................................................................................ 53
Section 6.06. Certain Restrictive Agreements.................................................................... 53
Section 6.07. Leverage Ratio.................................................................................... 54
iii
Section 6.08. Interest Coverage Ratio.......................................................................... 54
ARTICLE VII
Events of Default
ARTICLE VIII
The Agents
ARTICLE IX
Collection Allocation Mechanism
Section 9.01. CAM Exchange..................................................................................... 58
ARTICLE X
Guarantee
ARTICLE XI
Miscellaneous
Section 11.01. Notices.......................................................................................... 61
Section 11.02. Waivers; Amendments.............................................................................. 62
Section 11.03. Expenses; Indemnity; Damage Waiver............................................................... 63
Section 11.04. Successors and Assigns........................................................................... 64
Section 11.05. Survival......................................................................................... 67
Section 11.06. Counterparts; Integration; Effectiveness......................................................... 67
Section 11.07. Severability..................................................................................... 68
Section 11.08. Right of Setoff.................................................................................. 68
Section 11.09. Governing Law; Jurisdiction; Consent to Service of Process....................................... 68
Section 11.10. WAIVER OF JURY TRIAL............................................................................. 69
Section 11.11. Headings......................................................................................... 69
Section 11.12. Confidentiality.................................................................................. 69
Section 11.13. Conversion of Currencies......................................................................... 70
Section 11.14. Release of Subsidiary Guarantors................................................................. 70
Section 11.15. USA Patriot Act.................................................................................. 70
iv
SCHEDULES:
Schedule 1.01 -- Subsidiary Guarantors
Schedule 2.01 -- Lenders and Commitments
Schedule 2.05 -- Existing Letters of Credit
Schedule 2.18 -- Payment Instructions
Schedule 6.01 -- Debt of Subsidiaries
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Subsidiary Guarantee Agreement
Exhibit C -- Form of Irish Certificate
Exhibit D-1 -- Form of Opinion of Counsel for the Company
Exhibit D-2 -- Form of Opinion of Irish Counsel for the European Borrower
Exhibit D-3 -- Form of Opinion of General Counsel of the Company
Exhibit E -- Form of Promissory Note
CREDIT AGREEMENT dated as of January 11, 2007, among
WATERS CORPORATION, a Delaware corporation (the "Company");
WATERS TECHNOLOGIES IRELAND LIMITED, a company organized under
the laws of Ireland (the "European Borrower" and, together
with the Company, the "Borrowers"); the LENDERS from time to
time party hereto; JPMORGAN CHASE BANK, N.A., as
Administrative Agent; and ▇.▇.▇▇▇▇▇▇ EUROPE LIMITED, as London
Agent.
The Company has requested the Lenders (such term and each other
capitalized term used and not otherwise defined herein having the meaning
assigned to it in Article I) to extend credit in the form of (a) Term Loans to
the Company in US Dollars in an aggregate principal amount of $500,000,000 and
(b) revolving commitments consisting of the following: (i) US Tranche
Commitments under which the Company may obtain Loans in US Dollars in an
aggregate principal amount at any time outstanding that will not result in
aggregate US Tranche Revolving Exposures exceeding $350,000,000 and (ii)
European Tranche Commitments under which the European Borrower may obtain Loans
in US Dollars or Euros and the Company may obtain Loans in US Dollars in an
aggregate principal amount at any time outstanding that will not result in
aggregate European Tranche Revolving Exposures exceeding $250,000,000. The
proceeds of borrowings are to be used for general corporate purposes of the
Company and its subsidiaries, including repayment of amounts outstanding under
the Existing Credit Agreements, payment of indebtedness, financing of
acquisitions, payment of fees and expenses in connection with the credit
facilities established hereby, repurchases of equity securities of the Company
and working capital.
The Lenders are willing to establish the credit facilities referred to
in the preceding paragraph upon the terms and subject to the conditions set
forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
2
"Administrative Agent" means JPMCB, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means, collectively, the Administrative Agent and the London
Agent.
"Agreement Currency" has the meaning assigned to such term in Section
11.13(b).
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Agent" means (a) with respect to a Loan or Borrowing
denominated in US Dollars, or any Letter of Credit, and with respect to any
payment hereunder that does not relate to a particular Loan or Borrowing, the
Administrative Agent and (b) with respect to a Loan or Borrowing denominated in
Euros, the London Agent.
"Applicable Rate" means, with respect to any Loan of any Type or the
facility fees payable hereunder, as the case may be:
(a) For any day on which either or both of ▇▇▇▇▇'▇ and S&P shall not
have a Rating in effect, the applicable rate per annum set forth under the
appropriate caption in the table below, based upon the Leverage Ratio as of the
most recent determination date:
FACILITY
FEE (BASIS LIBOR SPREAD ABR SPREAD
LEVERAGE POINTS PER (BASIS POINTS PER (BASIS POINTS
CATEGORY RATIO ANNUM) ANNUM) PER ANNUM)
------------- ---------------------- ---------- ----------------- -------------
Category 1 < 1.50 7.0 33.00 0.0
Category 2 > or = 1.50 and < 2.00 8.0 42.00 0.0
Category 3 > or = 2.00 and < 2.50 10.0 52.50 0.0
Category 4 > or = 2.50 and < 3.00 12.5 62.50 0.0
Category 5 > or = 3.00 15.0 72.50 0.0
3
The Leverage Ratio used on any date to determine the Applicable Rate shall be
that in effect at the end of the most recent fiscal quarter for which financial
statements shall have been delivered pursuant to Section 5.06(a) or (b);
provided that if any financial statements required to have been delivered under
Section 5.06(a) or (b) shall not at any time have been delivered, the Applicable
Rate shall, until such financial statements shall have been delivered, be
determined by reference to Category 5 in the Table above.
(b) For any day on which each of ▇▇▇▇▇'▇ and S&P shall have a Rating
in effect, the applicable rate per annum set forth under the appropriate caption
in the table below, based upon the Ratings as of the most recent determination
date:
FACILITY
FEE (BASIS LIBOR SPREAD ABR SPREAD
POINTS PER (BASIS POINTS PER (BASIS POINTS
CATEGORY RATING ANNUM) ANNUM) PER ANNUM)
------------- ----------------- ---------- ----------------- -------------
Category 1 A3/A- or higher 7.0 33.00 0.0
Category 2 Baa1/BBB+ 8.0 42.00 0.0
Category 3 Baa2/BBB 10.0 52.50 0.0
Category 4 Baa3/BBB- 12.5 62.50 0.0
Category 5 Ba1/BB+ or lower 20.0 80.0 0.0
In the event of split Ratings, the Applicable Rate will be based on the higher
Rating unless the Ratings differ by two or more categories, in which case the
Applicable Rate will be based upon the category one level above the category
corresponding to the lower Rating.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 11.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Attributable Debt" means, in connection with any Sale and Leaseback
Transaction, the present value (discounted in accordance with GAAP at the
discount rate implied in the lease) of the obligations of the lessee for rental
payments during the term of the lease.
4
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means the Company or the European Borrower.
"Borrowing" means (a) Loans of the same Class, Type and currency,
made, converted or continued on the same date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect and (b) a Swingline
Loan.
"Borrowing Minimum" means (a) in the case of a Borrowing denominated
in US Dollars, $5,000,000 and (b) in the case of a Borrowing denominated in
Euros, (euro)5,000,000.
"Borrowing Multiple" means (a) in the case of a Borrowing denominated
in US Dollars, $1,000,000 and (b) in the case of a Borrowing denominated in
Euros, (euro)1,000,000.
"Borrowing Request" means a request by a Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided, that (a) when used in connection with a Eurocurrency
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in deposits in the London interbank market, (b) when used in
connection with a Letter of Credit denominated in a Designated Foreign Currency,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in deposits in the applicable Designated Foreign Currency in the
principal financial center in the country of such Designated Foreign Currency
and (c) when used in connection with a Loan denominated in Euros, the term
"Business Day" shall also exclude any day on which the TARGET payment system is
not open for the settlement of payments in Euros.
"Calculation Date" means the last Business Day of each calendar month.
"CAM" shall mean the mechanism for the allocation and exchange of
interests in the Specified Obligations and collections thereunder established
under Article IX.
"CAM Exchange" shall mean the exchange of the Lender's interests
provided for in Article IX.
"CAM Exchange Date" shall mean the date on which any event referred to
in paragraph (g) of Article VII shall occur in respect of the Company.
"CAM Percentage" shall mean, as to each Lender, a fraction, expressed
as a decimal, of which (a) the numerator shall be the aggregate US Dollar
Equivalent (determined on the basis of Exchange Rates prevailing on the CAM
Exchange Date) of the Specified Obligations owed to such Lender immediately
prior to the CAM Exchange
5
Date and (b) the denominator shall be the aggregate US Dollar Equivalent (as so
determined) of the Specified Obligations owed to all the Lenders.
"Cash Management Arrangements" means treasury, depository and cash
management services or any automated clearing house transfer of funds.
"Cash Management Obligations" means the due and punctual payment and
performance of all obligations of any Loan Party in respect of any overdraft or
other liability that (a) arises under Cash Management Arrangements in effect on
the Effective Date with a counterparty that is (i) a Lender as of the Effective
Date or (ii) an Affiliate of such Lender or (b) arises under Cash Management
Arrangements entered into after the Effective Date with a counterparty that is
(i) a Lender as of the date on which such Cash Management Arrangements are
entered into or (ii) an Affiliate of such Lender.
"Change of Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934, as amended, and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
of shares representing more than 30% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Company; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were not (i) directors of the Company on
the date hereof, (ii) nominated by the board of directors of the Company or
(iii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank or by any lending office of such Lender or by such Lender's or Issuing
Bank's holding company with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the
date of this Agreement.
"Class", when used in reference to (a) any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Term Loans, US
Tranche Revolving Loans or European Tranche Revolving Loans and (b) any
Commitment, refers to whether such Commitment is a Term Commitment, a US Tranche
Commitment or a European Tranche Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means a Term Commitment, a US Tranche Commitment or a
European Tranche Commitment.
"Company" has the meaning assigned to such term in the heading of this
Agreement.
6
"Confidential Information Memorandum" means the Confidential
Information Memorandum dated December 2006 distributed to the Lenders, together
with the appendices thereto, as amended through the date hereof.
"Consolidated Debt" means all Debt of the Company and the
Subsidiaries, determined on a consolidated basis.
"Consolidated EBITDA" means, for any period, the consolidated net
income (loss) of the Company and the Subsidiaries for such period plus, to the
extent deducted in computing such consolidated net income for such period, the
sum (without duplication) of (a) Consolidated Interest Expense, (b) consolidated
income tax expense, (c) depreciation and amortization expense, (d) stock-based
employee compensation expense related to any grant of stock options or
restricted stock to the extent deducted from such consolidated net income for
such period pursuant to Statement of Financial Accounting Standards 123 (revised
2004) and (e) extraordinary or non-recurring non-cash expenses or losses, minus,
to the extent added in computing such consolidated net income for such period,
extraordinary gains, all determined on a consolidated basis.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Company and the consolidated Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, but excluding
deferred financing fees.
"Consolidated Net Tangible Assets" means the total amount of assets
that would be included on a consolidated balance sheet of the Company and the
consolidated Subsidiaries (and which shall reflect the deduction of applicable
reserves) after deducting therefrom all current liabilities of the Company and
the consolidated Subsidiaries and all Intangible Assets.
"Consolidated Total Assets" means the total amount of assets that
would be included on a consolidated balance sheet of the Company and the
consolidated Subsidiaries.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Debt" means, with respect to any Person and without duplication, all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services, all accrued or contingent obligations in respect
of letters of credit, all capitalized lease obligations, all indebtedness of
others secured by assets of the Company or a Subsidiary, all guarantees of Debt
of others (but excluding guarantees issued for customer advance payments) and
all obligations under Hedging Agreements. For the avoidance of doubt, "Debt"
shall not include pension liabilities under any employee pension benefit plan.
7
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Foreign Currency" means Euros, British Pounds Sterling,
Japanese Yen or any other currency (other than US Dollars) approved in writing
by the Issuing Bank and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary that is incorporated under
the laws of the United States or its territories or possessions.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 11.02).
"EMU Legislation" means the legislative measures of the European Union
for the introduction of, changeover to or operation of the Euro in one or more
member states.
"Environmental Laws" means all federal, state, local and foreign laws,
rules and regulations relating to the release, emission, disposal, storage and
related handling of waste materials, pollutants and hazardous substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any member of an ERISA Group of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any member of the ERISA Group from the PBGC or
a plan administrator of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence
by the Company or any member of the ERISA Group of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Company or any member of the ERISA Group of any notice, or
the receipt by any Multiemployer Plan from the Company or any member of the
ERISA Group 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.
"ERISA Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Company, are treated as a single employer under Section
414 of the Code.
8
"Euro" or "(euro)" means the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in the EMU
Legislation.
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"European Borrower" means Waters Technologies Ireland Limited a
company organized under the laws of Ireland.
"European Tranche Commitment" means, with respect to each European
Tranche Lender, the commitment of such European Tranche Lender to make European
Tranche Revolving Loans pursuant to Section 2.01(c), expressed as an amount
representing the maximum aggregate amount of such European Tranche Lender's
European Tranche Revolving Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.09, (b) increased pursuant to
Section 2.10 and (c) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 11.04. The initial amount
of each European Tranche Lender's European Tranche Commitment is set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such
European Tranche Lender shall have assumed its European Tranche Commitment, as
applicable. The aggregate amount of the European Tranche Commitments on the date
hereof is $250,000,000.
"European Tranche Lender" mean a Lender with a European Tranche
Commitment or European Tranche Revolving Loans.
"European Tranche Percentage" means, with respect to any European
Tranche Lender, the percentage of the total European Tranche Commitments
represented by such Lender's European Tranche Commitment. If the European
Tranche Commitments have terminated or expired, the European Tranche Percentages
shall be determined based upon the European Tranche Commitments most recently in
effect, giving effect to any assignments.
"European Tranche Revolving Borrowing" means a Borrowing comprised of
European Tranche Revolving Loans.
"European Tranche Revolving Exposure" means, with respect to any
European Tranche Lender at any time, such Lender's European Tranche Percentage
of the sum of the US Dollar Equivalents of the principal amounts of the
outstanding European Tranche Revolving Loans.
"European Tranche Revolving Loan" means a Loan made by a European
Tranche Lender pursuant to Section 2.01(c). Each European Tranche Revolving Loan
made to the Company shall be denominated in US Dollars and shall be a
Eurocurrency Loan or an ABR Loan, and each European Tranche Revolving Loan made
to the European Borrower shall be denominated in US Dollars or Euros and shall
be a Eurocurrency Loan.
9
"Event of Default" has the meaning assigned to such term in Article
VII.
"Exchange Rate" means on any day, with respect to any Designated
Foreign Currency, the rate at which such Designated Foreign Currency may be
exchanged into US Dollars, as set forth at approximately 11:00 a.m., London
time, on such day on the Reuters World Currency Page for such Designated Foreign
Currency. In the event that such rate does not appear on any Reuters World
Currency Page, the Exchange Rate shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Company or, in the absence of such
agreement, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such Designated Foreign
Currency are then being conducted, at or about 10:00 a.m., local time, on such
date for the purchase of US Dollars for delivery two Business Days later;
provided that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent, after consultation with the
Company, may use any reasonable method it deems appropriate to determine such
rate, and such determination shall be presumed correct absent manifest error.
"Excluded Subsidiary" means at any time (a) any Foreign Subsidiary,
(b) any subsidiary of a Foreign Subsidiary and (c) any other Subsidiaries
acquired or organized after the Effective Date that, together with their own
subsidiaries on a combined consolidated basis, shall not, individually or in the
aggregate for all such Subsidiaries under this clause (c), have accounted for
more than 5% of Consolidated Total Assets or more than 5% of the consolidated
total revenues of the Company and the Subsidiaries at the end of, or for the
period of four fiscal quarters ended with, the most recent fiscal quarter of the
Company for which financial statements shall have been delivered pursuant to
Section 5.06(a) or (b) (or, prior to the delivery of any such financial
statements, at the end of or for the period of four fiscal quarters ended
September 30, 2006).
"Excluded Taxes" means, with respect to any Lender or the Issuing
Bank, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America (or any political subdivision thereof), or by
the jurisdiction under which such recipient is organized or in which its
principal office or any lending office from which it makes Loans or issues
Letters of Credit hereunder is located, (b) any branch profit taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction described in clause (a) above, (c) any withholding tax that is
imposed by the United States of America (or any political subdivision thereof)
on payments by the Company from an office within such jurisdiction to the extent
such tax is in effect and would apply as of the date such Lender becomes a party
to this Agreement or relates to payments received by a new lending office
designated by such Lender and is in effect and would apply at the time such
lending office is designated, (d) in the case of a European Tranche Lender
(other than a Lender that becomes a European Tranche Lender by operation of the
CAM), any withholding tax that is imposed by Ireland (or any political
subdivision thereof) on payments by the European Borrower from an office within
such jurisdiction to the extent such tax is in effect and would apply
10
as of the date such European Tranche Lender becomes a party to this Agreement or
relates to payments received by a new lending office designated by such European
Tranche Lender and is in effect and would apply at the time such lending office
is designated or (e) any withholding tax that is attributable to such Lender's
failure to comply with Section 2.17(e), except, in the case of clause (c) or (d)
above, to the extent that (i) such Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the applicable Borrower with respect to such
withholding tax pursuant to Section 2.17(a) or (ii) such withholding tax shall
have resulted from the making of any payment to a location other than the office
designated by the Applicable Agent or such Lender for the receipt of payments of
the applicable type from the applicable Borrower.
"Existing Credit Agreements" means, collectively, the Existing
Multiborrower Credit Agreement and the Existing Term Loan Agreement.
"Existing Issuing Bank" means JPMCB and Deutsche Bank Trust Company,
in their capacities as issuing banks in respect of Existing Letters of Credit.
"Existing Letters of Credit" means the outstanding letters of credit
set forth on Schedule 2.05.
"Existing Multiborrower Credit Agreement" means the Five Year Credit
Agreement dated as of December 15, 2004, among the Company, the European
Borrower and Waters Chromatography Ireland Limited, a company organized under
the laws of Ireland, as borrowers, the lenders from time to time party thereto,
JPMCB, as administrative agent, and the London Agent, as London agent.
"Existing Term Loan Agreement" means the Five Year Credit Agreement
dated as of November 28, 2005, among the Company, as borrower, the lenders party
thereto, and JPMCB, as administrative agent.
"Exposure" means, with respect to any Lender, such Lender's Term Loan
Exposure, US Tranche Revolving Exposure and European Tranche Revolving Exposure.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Foreign Subsidiary" means any Subsidiary that is not incorporated
under the laws of the United States or its territories or possessions.
"GAAP" means generally accepted accounting principles in the United
States of America.
11
"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, taxing, regulatory or administrative functions
of or pertaining to government.
"Guarantee Requirement" means, at any time, that the Subsidiary
Guarantee Agreement (or a supplement referred to in Section 16 thereof) shall
have been executed by each Subsidiary (other than any Excluded Subsidiary)
existing at such time, shall have been delivered to the Administrative Agent and
shall be in full force and effect; provided, however, that in the case of a
Subsidiary that becomes subject to the Guarantee Requirement after the Effective
Date, the Guarantee Requirement shall be satisfied with respect to such
Subsidiary if a supplement to the Subsidiary Guarantee Agreement is executed by
such Subsidiary, delivered to the Administrative Agent and in full force and
effect no later than (i) 30 days after the date on which such Subsidiary becomes
subject to the Guarantee Requirement or (ii) such other date as the
Administrative Agent may reasonably determine, but in any case no later than 60
days after the date on which such Subsidiary becomes subject to the Guarantee
Requirement.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement or other interest or currency exchange rate
hedging arrangement. The "principal amount" of the obligations of any Person in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that such Person would be
required to pay if such Hedging Agreement were terminated at such time.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Initial Borrowing Date" means the date of the initial Borrowing
hereunder.
"Intangible Assets" means all assets of the Company and the
consolidated Subsidiaries that would be treated as intangibles in conformity
with GAAP on a consolidated balance sheet of the Company and the consolidated
Subsidiaries.
"Interest Coverage Ratio" means, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Interest Election Request" means a request by the relevant Borrower
to convert or continue a Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
12
"Interest Period" means, with respect to any Eurocurrency Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter (or, if available from each applicable Lender, nine or
twelve months thereafter), as the relevant Borrower may elect; provided that (i)
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made,
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means JPMCB, in its capacity as the issuer of Letters
of Credit hereunder, and its successors in such capacity as provided in Section
2.05(i). The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case
the term "Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate. The term "Issuing Bank" shall also mean the
Existing Issuing Bank solely with respect to the Existing Letters of Credit.
"JPMCB" means JPMorgan Chase Bank, N.A. and its successors.
"Judgment Currency" has the meaning assigned to such term in Section
11.13(b).
"LC Disbursement" means a payment made by the Issuing Bank in respect
of a Letter of Credit.
"LC Exposure" means at any time the sum of (a) the sum of US Dollar
Equivalents of undrawn amounts of all outstanding Letters of Credit at such time
and (b) the sum of US Dollar Equivalents of the amounts of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Company or the
applicable Subsidiary at such time. The LC Exposure of any US Tranche Lender at
any time shall be such Lender's US Tranche Percentage of the aggregate LC
Exposure.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance or as provided in Section 2.10, other than any such Person that shall
have ceased to be a party hereto pursuant to an Assignment and Acceptance.
"Letter of Credit" means an Existing Letter of Credit and any letter
of credit issued pursuant to this Agreement on behalf of Lenders holding US
Tranche Commitments.
13
"Leverage Ratio" means, at any time, the ratio of (a) Consolidated
Debt at such time to (b) Consolidated EBITDA for the most recent period of four
consecutive fiscal quarters of the Company ended at or prior to such time;
provided, that in the event any Material Acquisition shall have been completed
during such period of four consecutive fiscal quarters, the Leverage Ratio shall
be computed giving pro forma effect to such Material Acquisition as if it had
been completed at the beginning of such period.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate per annum determined by the Applicable Agent at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the British Bankers' Association Interest Settlement
Rates for deposits in the currency of such Borrowing (as reflected on the
applicable Telerate screen), for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, "LIBO Rate" shall mean the
interest rate per annum determined by the Applicable Agent to be the average of
the rates per annum at which deposits in the currency of such Borrowing are
offered for such Interest Period to major banks in the London interbank market
by JPMCB at approximately 11:00 a.m., London time, on the Quotation Day for such
Interest Period.
"Lien" means, with respect to any asset, any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset.
"Loan Documents" means this Agreement, the Subsidiary Guarantee
Agreement and each Letter of Credit and promissory note delivered pursuant to
this Agreement.
"Loan Parties" means the Borrowers and the Subsidiary Guarantors.
"Loans" means the loans made by the Lenders to the Borrowers pursuant
to this Agreement.
"Local Time" means (a) with respect to a Loan or Borrowing denominated
in US Dollars or any Letter of Credit, New York City time and (b) with respect
to a Eurocurrency Loan or Eurocurrency Borrowing denominated in Euros, London
time.
"London Agent" means ▇.▇. ▇▇▇▇▇▇ Europe Limited.
"Margin Stock" has the meaning ascribed to such term in Regulation U
issued by the Board.
"Material Acquisition" means (i) the acquisition by the Company or a
Subsidiary of assets of or an interest in another Person or (ii) the merger or
consolidation of the Company with another corporation, in each case if the
Consolidated Total Assets of the Company after giving effect to such
acquisition, merger or consolidation are at least 5% greater than the
Consolidated Total Assets of the Company immediately prior to such acquisition,
merger or consolidation.
14
"Material Adverse Effect" means a (i) a material adverse effect on the
business, assets, operations or financial condition of the Company and the
Subsidiaries, taken as a whole or (ii) a material adverse effect on the validity
or enforceability of any one or more provisions of any of the Loan Documents
that, taken as a whole, are material.
"Material Debt" means Consolidated Debt in an aggregate principal
amount of $20,000,000 or more.
"Material Subsidiary" means each Subsidiary of the Company, other than
Subsidiaries designated by the Company from time to time that in the aggregate
do not account for more than 15% of the consolidated revenues of the Company and
its Subsidiaries for the period of four fiscal quarters most recently ended or
more than 15% of the consolidated assets of the Company and its Subsidiaries at
the end of such period.
"Maturity Date" means January 11, 2012.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Obligations" means (a) the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans made to any Borrower, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by any Borrower under this Agreement in respect of
any Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Loan Parties under this
Agreement and the other Loan Documents, and (b) the due and punctual payment and
performance of all obligations of the Company or any Subsidiary, monetary or
otherwise, under (i) each interest rate hedging Agreement relating to
Obligations referred to in the preceding clause (a) entered into with any
counterparty that was a Lender (or an Affiliate thereof) at the time such
hedging agreement was entered into and (ii) Cash Management Obligations.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
15
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum standards under Section
412 of the Internal Revenue Code and is either (a) maintained by a member of the
ERISA Group for employees of a member of the ERISA Group or (b) maintained
pursuant to a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which a member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMCB as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Quotation Day" means, with respect to any Eurocurrency Borrowing and
any Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the currency
of such Borrowing for delivery on the first day of such Interest Period. If such
quotations would normally be given by prime banks on more than one day, the
Quotation Day will be the last of such days.
"Ratings" means published debt ratings issued by each of Moody's and
S&P with respect to the Company's senior, unsecured, non-credit enhanced
long-term indebtedness for borrowed money (each a "Rating").
"Register" has the meaning set forth in Section 11.04(c).
"Reimbursement Obligations" has the meaning set forth in Section
11.02(b).
"Related Fund" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is managed
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, trustees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having aggregate Term
Loans, Revolving Credit Exposures and unused Commitments representing more than
50% of the sum of the total Term Loans, Revolving Credit Exposures and unused
Commitments at such time.
"Reset Date" has the meaning set forth in Section 1.05(a).
16
"Responsible Officer" of any Person, means the chief executive
officer, the chief financial officer, the principal accounting officer, the
treasurer or the controller of such Person, and any other officer of such Person
with responsibility for the administration of the obligations of such Person
under this Agreement.
"Revolving Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Maturity Date and the
date of termination of the Revolving Commitments.
"Revolving Borrowing" means a Borrowing comprised of US Tranche
Revolving Loans or European Tranche Revolving Loans.
"Revolving Commitments" means the European Tranche Commitments and the
US Tranche Commitments.
"Revolving Credit Exposure" means a US Tranche Revolving Exposure or a
European Tranche Revolving Exposure.
"Revolving Loan" means any US Tranche Revolving Loan or European
Tranche Revolving Loan.
"S&P" means Standard & Poor's Ratings Service.
"Sale and Leaseback Transaction" means any arrangement whereby the
Company or a Subsidiary, directly or indirectly, shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
"Specified Obligations" means Obligations consisting of the principal
of and interest on outstanding Loans, reimbursement obligations in respect of LC
Disbursements and any interest with respect thereto, and fees.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal to
which the Applicable Agent is subject, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board of
Governors of the Federal Reserve System of the United States of America). Such
reserve percentages include, but are not limited to, those imposed pursuant to
such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
17
"subsidiary" means, with respect to any Person, any entity with
respect to which such Person alone owns, such Person or one or more of its
subsidiaries together own, or such Person and any Person Controlling such Person
together own, in each case directly or indirectly, capital stock or other equity
interests having ordinary voting power to elect a majority of the members of the
Board of Directors of such corporation or other entity or having a majority
interest in the capital or profits of such corporation or other entity.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Guarantee Agreement" means a Subsidiary Guarantee
Agreement substantially in the form of Exhibit B, and all supplements thereto
made by the Subsidiary Guarantors in favor of the Administrative Agent for the
benefit of the Lenders.
"Subsidiary Guarantors" means each Person listed on Schedule 1.01 and
each other Person that becomes party to a Subsidiary Guarantee Agreement as a
Subsidiary Guarantor, and the permitted successors and assigns of each such
Person.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be such Lender's US Tranche Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means JPMCB in its capacity as a lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Borrowing" means a Borrowing comprised of Term Loans.
"Term Commitment" means, with respect to each Term Lender, the
commitment of such Term Lender to make Term Loans pursuant to Section 2.01(a),
as such commitment may be (a) reduced from time to time pursuant to Section 2.09
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 11.04. The initial amount of each Term Lender's
Term Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Term Lender shall have assumed its Term
Commitment, as applicable. The aggregate amount of the Term Commitments on the
date hereof is $500,000,000.
"Term Lender" means a Lender with a Term Commitment.
"Term Loan" means a Loan made by a Term Lender pursuant to Section
2.01(a).
18
"Term Loan Exposure" means, with respect to any Term Lender at any
time, the principal amount of such Lender's outstanding Term Loans.
"Transactions" means the execution, delivery and performance by the
Loan Parties of the Loan Documents, the borrowing of Loans, the issuance of
Letters of Credit hereunder and the use of the proceeds of such Loans and such
Letters of Credit.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Unfunded Liabilities" means, (a) in the case of a single-employer
Plan which is covered by Title IV of ERISA, the amount, if any, by which the
present value of all accumulated benefit obligations accrued to the date of
determination under such Plan exceeds the fair market value of all assets of
such Plan allocable to such benefits as of such date calculated in accordance
with GAAP and based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87, as amended, or any successor standard,
and (b) in the case of a Multiemployer Plan, the Withdrawal Liability of the
Company and the Subsidiaries calculated as set forth in Title IV of ERISA.
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001.
"US Corporation" means a corporation organized and existing under the
laws of the United States, any state thereof or the District of Columbia.
"US Dollar Equivalent" means, on any date of determination, (a) with
respect to any amount in US Dollars, such amount, and (b) with respect to any
amount in any Designated Foreign Currency, the equivalent in US Dollars of such
amount, determined by the Administrative Agent pursuant to Section 1.05 using
the Exchange Rate with respect to such Designated Foreign Currency at the time
in effect under the provisions of such Section.
"US Dollars" or "$" means the lawful money of the United States of
America.
"US Tranche Commitment" means, with respect to each US Tranche Lender,
the commitment of such US Tranche Lender to make US Tranche Revolving Loans
pursuant to Section 2.01(b) and acquire participations in Swingline Loans and
Letters of Credit pursuant to Sections 2.04 and 2.05(e), respectively, expressed
as an amount representing the maximum aggregate amount of such US Tranche
Lender's US Tranche Revolving Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.09, (b) increased pursuant to
Section 2.10 and (c) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 11.04. The initial amount
of each US Tranche Lender's US Tranche Commitment is set forth on Schedule 2.01,
or in the Assignment and Acceptance pursuant to which such US Tranche Lender
shall have assumed its US Tranche
19
Commitment, as applicable. The aggregate amount of the US Tranche Commitments on
the date hereof is $350,000,000.
"US Tranche Lender" mean a Lender with a US Tranche Commitment or US
Tranche Revolving Loans.
"US Tranche Percentage" means, with respect to any US Tranche Lender,
the percentage of the total US Tranche Commitments represented by such Lender's
US Tranche Commitment. If the US Tranche Commitments have terminated or expired,
the US Tranche Percentages shall be determined based upon the US Tranche
Commitments most recently in effect, giving effect to any assignments.
"US Tranche Revolving Borrowing" means a Borrowing comprised of US
Tranche Revolving Loans.
"US Tranche Revolving Exposure" means, with respect to any US Tranche
Lender at any time, the sum at such time, without duplication, of (a) such
Lender's US Tranche Percentage of the sum of the principal amounts of the
outstanding US Tranche Revolving Loans, (b) the aggregate amount of such
Lender's LC Exposure and (c) the aggregate amount of such Lender's Swingline
Exposure.
"US Tranche Revolving Loan" means a Loan made by a US Tranche Lender
pursuant to Section 2.01(b). Each US Tranche Revolving Loan shall be a
Eurocurrency Loan or an ABR Loan.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a "US
Tranche Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Eurocurrency US Tranche Revolving Loan"). Borrowings also may
be classified and referred to by Class (e.g., a "US Tranche Revolving
Borrowing") or by Type (e.g., a "US Tranche Eurocurrency Borrowing") or by Class
and Type (e.g., a "Eurocurrency US Tranche Revolving Borrowing").
Section 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors
20
and assigns, (c) the words "herein", "hereof" and "hereunder" and words of
similar import shall be construed to refer to this Agreement in its entirety and
not to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
Section 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP as in effect from time to time; provided that
if the Company notifies the Administrative Agent that the Company requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
Section 1.05. Exchange Rates. (a) Not later than 10:00 a.m., New York
City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to each
Designated Foreign Currency and (ii) give written notice thereof to the Lenders
and the Company. The Exchange Rates so determined shall become effective on the
first Business Day immediately following the relevant Calculation Date (a "Reset
Date"), shall remain effective until the next succeeding Reset Date, and shall
for all purposes of this Agreement (other than Section 2.05(e), Section 11.13 or
any other provision expressly requiring the use of a current Exchange Rate) be
the Exchange Rates employed in converting any amounts between US Dollars and
Designated Foreign Currencies.
(b) Not later than 5:00 p.m., New York City time, on each Reset Date
and each date on which European Tranche Revolving Loans denominated in Euros are
made or Letters of Credit denominated in any Designated Foreign Currency are
issued, the Administrative Agent shall (i) determine (A) the aggregate amount of
the US Dollar Equivalents of the principal amounts of the European Tranche
Revolving Loans denominated in Euros (after giving effect to any European
Tranche Revolving Loans made or repaid on such date) and (B) the aggregate
amount of the US Dollar Equivalents of the stated amounts of the Letters of
Credit and unreimbursed LC Disbursements denominated in Designated Foreign
Currencies and (ii) notify the Lenders and the Company of the results of such
determination.
21
ARTICLE II
The Credits
Section 2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender agrees to make a Term Loan to the Company on the
Effective Date in a principal amount equal to its Term Commitment.
(b) Subject to the terms and conditions set forth herein, each US
Tranche Lender agrees to make US Tranche Revolving Loans to the Company from
time to time during the Revolving Availability Period in US Dollars in an
aggregate principal amount at any time outstanding that will not result in (i)
such Lender's US Tranche Revolving Exposure exceeding its US Tranche Commitment
or (ii) the aggregate amount of the Lenders' US Tranche Revolving Exposures
exceeding the aggregate amount of the US Tranche Commitments.
(c) Subject to the terms and conditions set forth herein, each
European Tranche Lender agrees to make European Tranche Revolving Loans from
time to time during the Revolving Availability Period to the European Borrower
in US Dollars or Euros and to the Company in US Dollars in an aggregate
principal amount at any time outstanding that will not result in (i) such
Lender's European Tranche Revolving Exposure exceeding its European Tranche
Commitment or (ii) the aggregate amount of the Lenders' European Tranche
Revolving Exposures exceeding the aggregate amount of the European Tranche
Commitments.
Section 2.02. Loans and Borrowings. (a) Each Term Loan shall be made
as part of a Borrowing consisting of Term Loans made by the Term Lenders ratably
in accordance with their respective Term Commitments. Each US Tranche Revolving
Loan shall be made as part of a Borrowing consisting of US Tranche Revolving
Loans made by the US Tranche Lenders ratably in accordance with their respective
US Tranche Commitments. Each European Tranche Revolving Loan shall be made as
part of a Borrowing consisting of European Tranche Revolving Loans made by the
European Tranche Lenders ratably in accordance with their respective European
Tranche Commitments. The failure of any Lender to make any Loan required to be
made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required hereunder.
(b) Subject to Section 2.14, (i) each Term Borrowing shall be
comprised entirely of Eurocurrency Loans or ABR Loans as the Company may request
in accordance herewith; (ii) each US Tranche Revolving Borrowing shall be
comprised entirely of Eurocurrency Loans or ABR Loans as the Company may request
in accordance herewith; (iii) each European Tranche Revolving Borrowing shall be
comprised entirely of (A) in the case of a Borrowing made by the Company,
Eurocurrency Loans or ABR Loans as the Company may request in accordance
herewith and, (B) in the case of a Borrowing made by the European Borrower,
Eurocurrency Loans; and (iv) each Swingline Loan shall be comprised entirely of
ABR Loans. Each
22
Lender at its option may make any Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan (and in the case of an Affiliate,
the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such
Affiliate to the same extent as to such Lender); provided that any exercise of
such option shall not affect the obligation of the applicable Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Borrowing
(other than a Swingline Loan), such Borrowing shall be in an aggregate amount
that is at least equal to the Borrowing Minimum and an integral multiple of the
Borrowing Multiple; provided that (i) an ABR Revolving Borrowing may be made in
an aggregate amount that is equal to the aggregate available US Tranche
Commitments or European Tranche Commitments, as the case may be and (ii) a
Revolving Borrowing made to refinance an existing Swingline Loan may be made in
an aggregate principal amount that is equal to the aggregate principal amount of
such existing Swingline Loan. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of (i) eight US Tranche Eurocurrency Revolving Borrowings
outstanding or (ii) four European Tranche Eurocurrency Revolving Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request, or to elect to convert or continue, any Borrowing
if the Interest Period requested with respect thereto would end after the
Maturity Date.
Section 2.03. Notice of Borrowings. To request a Borrowing (other than
a Swingline Loan), the applicable Borrower, or the Company on behalf of the
applicable Borrower, shall notify the Applicable Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing, not later than 12:00
noon, Local Time, three Business Days before the date of the proposed Borrowing
and (b) in the case of an ABR Borrowing, not later than 12:00 noon, Local Time,
one Business Day before the date of the proposed Borrowing; provided that any
such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e) may be given not later than
12:00 noon, Local Time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Applicable Agent of a written
Borrowing Request in a form approved by the Applicable Agent and signed by the
applicable Borrower, or by the Company on behalf of the applicable Borrower.
Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf the
Company is requesting such Borrowing);
(ii) whether the requested Borrowing is to be a Term Borrowing, US
Tranche Revolving Borrowing or a European Tranche Revolving Borrowing;
23
(iii) the currency and aggregate principal amount of the requested
Borrowing;
(iv) the date of the requested Borrowing, which shall be a Business
Day;
(v) the Type of the requested Borrowing;
(vi) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vii) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.06.
If no currency is specified with respect to any requested Eurocurrency Revolving
Borrowing, then the relevant Borrower shall be deemed to have selected US
Dollars. If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be (i) in the case of a Borrowing by the Company, an
ABR Borrowing and (ii) in the case of a Borrowing by the European Borrower, a
Eurocurrency Borrowing. If no Interest Period is specified with respect to any
requested Eurocurrency Borrowing, then the relevant Borrower shall be deemed to
have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the Applicable
Agent shall advise each Lender that will make a Loan as part of the requested
Borrowing of the details thereof and of the amount of the Loan to be made by
such Lender as part of the requested Borrowing.
Section 2.04. Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Company from time to time during the Revolving Availability Period in an
aggregate principal amount at any time outstanding that will not exceed the
lesser of (i) $25,000,000 and (ii) the difference between (A) total US Tranche
Commitments and (B) the sum of (x) the aggregate principal amount of US Tranche
Revolving Loans outstanding at such time and (y) the LC Exposure at such time;
provided that no Swingline Loan shall be made to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Company may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Company shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount (which shall be no less than
$1,000,000) of the requested Swingline Loan and the location and number of the
Company's account to which funds are to be disbursed, which account shall comply
with the requirements of Section 2.06. The Administrative Agent will promptly
advise the Swingline Lender of any such notice received from the Company. The
Swingline Lender shall make each Swingline Loan
24
available to the Company by means of a credit or wire transfer to the account
specified in writing by the Company in such notice (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the US Tranche Lenders to acquire participations on such
Business Day in all or a portion of the outstanding Swingline Loans. Such notice
shall specify the aggregate amount of Swingline Loans in which US Tranche
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each US Tranche Lender,
specifying in such notice such Lender's US Tranche Percentage of such Swingline
Loan or Swingline Loans. Each US Tranche Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender's US
Tranche Percentage of such Swingline Loan or Swingline Loans. Each US Tranche
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the US Tranche
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each US Tranche Lender shall
comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the US Tranche Lenders), and the Administrative Agent
shall promptly pay to the Swingline Lender the amounts so received by it from
the US Tranche Lenders. The Administrative Agent shall promptly notify the
Company in writing of any participations in any Swingline Loan acquired pursuant
to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent, for the account of the US Tranche
Lenders, and not to the Swingline Lender. Any amounts received by the Swingline
Lender from the Company (or other party on behalf of the Company) in respect of
a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the US Tranche Lenders that shall have
made their payments pursuant to this paragraph and to the Swingline Lender, as
their interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Company of any default in the
payment thereof provided, that a US Tranche Lender shall not be required to
purchase a participation in a Swingline Loan pursuant to this Section 2.04(c) if
(x) a Default shall have occurred and was continuing at the time such Swingline
Loan was made and (y) such US Tranche Lender shall have notified the Swingline
Lender in writing, not less than one Business Day before such Swingline Loan was
made, that such Default has occurred and that such US Tranche Lender will not
refund or participate in any Swingline Loans made while such Default exists.
25
Section 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Company may request the issuance (or the
amendment, renewal or extension) of Letters of Credit denominated in US Dollars
or any Designated Foreign Currency, in any case in a form reasonably acceptable
to the Administrative Agent and the Issuing Bank, at any time and from time to
time during the Revolving Availability Period. In the event of any inconsistency
between this Agreement and any form of letter of credit application or other
agreement submitted by the Company or the European Borrower to, or entered into
by the Company or the European Borrower with, the Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall control. The
Existing Letters of Credit will, for all purposes of this Agreement, be deemed
to have been issued hereunder on the Effective Date and will, for all purposes
of this Agreement, constitute Letters of Credit. On the Effective Date, (i) any
fronting fees provided for in the agreements under which the Existing Letters of
Credit were issued shall cease to accrue and shall be replaced by the fronting
fee provided for in Section 2.12(b) (it being understood that any other fees
referred to in Section 2.12(b) that shall have been agreed upon by the Company
and the Existing Issuing Bank shall continue to apply, but that no new issuance
fee will be charged in connection with the deemed issuance of any Existing
Letter of Credit on the Effective Date).
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Company shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
the date of issuance, amendment, renewal or extension (which shall be a Business
Day), the date on which such Letter of Credit is to expire (which shall comply
with paragraph (c) of this Section), the currency and amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to enable the Issuing Bank to prepare, amend,
renew or extend such Letter of Credit. If requested by the Issuing Bank, the
Company also shall submit a letter of credit application on the Issuing Bank's
standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Company shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension, (i) the LC Exposure will not exceed $50,000,000
and (ii) the aggregate US Tranche Revolving Exposures will not exceed the
aggregate US Tranche Commitments. Notwithstanding anything to the contrary
contained herein, no Existing Letter of Credit may be amended, renewed or
extended.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the
26
Maturity Date provided, that any Letter of Credit with a one-year tenor may
provide for renewal thereof under procedures satisfactory to the Issuing Bank
for additional one-year periods (which shall in no event extend beyond the date
referred to in clause (ii) above).
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the US Tranche Lenders, the
Issuing Bank hereby grants to each US Tranche Lender, and each US Tranche Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such US Tranche Lender's US Tranche Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each US Tranche Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, in US Dollars such Lender's US Tranche Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Company on the
date due as provided in paragraph (e) of this Section or of any reimbursement
payment required to be refunded to the Company for any reason. Each US Tranche
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the US
Tranche Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Company shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement, not later than 1:00 p.m., New York City time, on the date that
such LC Disbursement is made, if the Company shall have received notice of such
LC Disbursement prior to 11:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Company prior to such time on such
date, then not later than 1:00 p.m., New York City time, on (A) the Business Day
that the Company receives such notice, if such notice is received prior to 11:00
a.m., New York City time, on the day of receipt, or (B) the Business Day
immediately following the day that the Company receives such notice, if such
notice is not received prior to such time on the day of receipt. If the Company
fails to make such payment when due then, upon notice from the applicable
Issuing Bank to the Company and the Administrative Agent, (i) if the applicable
Letter of Credit is denominated in a Designated Foreign Currency, the Company's
obligation to reimburse such LC Disbursement shall be converted into an
obligation in US Dollars in such amount as the Administrative Agent shall
determine would be required, based on current exchange rates, to enable it to
purchase an amount of such Designated Foreign Currency equal to the amount of
such LC Disbursement, and (ii) the Administrative Agent shall notify each US
Tranche Lender of the applicable LC Disbursement, the payment then due from the
Company in respect thereof and such Lender's US Tranche Percentage, thereof.
Promptly following receipt of such notice, each US Tranche Lender shall pay to
the Administrative Agent in US Dollars its US Tranche Percentage of the payment
then due from the Company in the same manner as provided in Section 2.06 with
respect to Loans made by such US Tranche Lender (and Section 2.06 shall apply,
mutatis
27
mutandis, to the payment obligations of the US Tranche Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the US Tranche Lenders. Promptly following
receipt by the Administrative Agent of any payment from the Company pursuant to
this paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that US Tranche Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such US
Tranche Lenders and the Issuing Bank as their interests may appear. Any payment
made by a US Tranche Lender pursuant to this paragraph to reimburse the Issuing
Bank for any LC Disbursement shall not constitute a Loan and shall not relieve
the Company of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Company's obligations to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement or any other Loan Document, or any term or provision
herein or therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section, constitute
a legal or equitable discharge of, or provide a right of set-off against, the
Company's obligations hereunder. None of the Administrative Agent, the US
Tranche Lenders or the Issuing Bank, or any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Company to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Company to the extent permitted by applicable law) suffered by the Company that
are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or wilful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the
28
contrary, or refuse to accept and make payment upon such documents if such
documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Company by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Company of its obligation to
reimburse the Issuing Bank and the US Tranche Lenders with respect to any such
LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Company shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Company reimburses such LC Disbursement,
at the rate per annum then applicable to ABR Revolving Loans; provided that, at
all times after the Company fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, Section 2.13(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any US Tranche
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such US Tranche Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced
at any time by written agreement among the Company, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Company shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If the US Tranche Commitments shall be
terminated, then on the Business Day that the Company receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, US Tranche Lenders with LC Exposures representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Company shall deposit in an account with the
Administrative Agent, in the
29
name of the Administrative Agent and for the benefit of the US Tranche Lenders,
an amount in cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand presentment, protest or other notice
of any kind, all of which are expressly waived by the Borrowers, upon the
occurrence of any Event of Default with respect to the Company described in
clause (g) of Article VII. Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the
Company under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of the
Administrative Agent and at the Company's risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Company for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of US Tranche Lenders with LC Exposures
representing greater than 50% of the total LC Exposure) be applied to satisfy
other obligations of the Company under this Agreement. If the Company is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to it within three Business Days after all Events
of Default have been cured or waived.
Section 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan (other than a Swingline Loan) to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds in the applicable
currency by 11:00 a.m., Local Time, to the account of the Applicable Agent most
recently designated by it for such purpose for Loans of such Class and currency
by notice to the applicable Lenders. The Applicable Agent will make such Loans
available to the relevant Borrower by promptly crediting the amounts so
received, in like funds, to an account of such Borrower (i) in New York City or
Boston, in the case of Loans denominated in US Dollars and (ii) in London, in
the case of Loans denominated in Euros; provided that US Tranche Revolving Loans
made to finance the reimbursement of an LC Disbursement shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Applicable Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Applicable Agent such Lender's share of such Borrowing,
the Applicable Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Applicable Agent, then the
applicable Lender and such Borrower severally agree to pay to the Applicable
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to such
Borrower to but excluding
30
the date of payment to the Applicable Agent, at (i) in the case of such Lender,
the rate reasonably determined by the Applicable Agent to be the cost to it of
funding such amount or (ii) in the case of such Borrower, the interest rate
applicable to the subject Loan. If such Lender pays such amount to the
Applicable Agent, then such amount shall constitute such Lender's Loan included
in such Borrowing and the Applicable Agent shall return to such Borrower any
amount (including interest) paid by such Borrower to the Applicable Agent
pursuant to this paragraph.
Section 2.07. Repayment of Borrowings; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay to the Applicable Agent for the
accounts of the applicable Lenders (i) the then unpaid principal amount of each
Revolving Borrowing and Term Loan of such Borrower on the Maturity Date and (ii)
the then unpaid amount of each Swingline Loan on the earlier of the Maturity
Date and the twenty-first Business Day after such Swingline Loan is made.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class, Type and currency
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 each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
any Agent hereunder for the accounts of the Lenders and each Lender's share
thereof. The London Agent shall furnish to the Administrative Agent, promptly
after the making of any Loan or Borrowing with respect to which it is the
Applicable Agent or the receipt of any payment of principal or interest with
respect to any such Loan or Borrowing, information with respect thereto that
will enable the Administrative Agent to maintain the accounts referred to in the
preceding sentence. The Administrative Agent shall notify the London Agent
promptly after the making of any Loan or Borrowing with respect to which it is
the Applicable Agent or the receipt of payment of any principal with respect to
any such Loan or Borrowing.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of any Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it to any
Borrower be evidenced by a promissory note, substantially in the form of Exhibit
E hereto. In such event, each applicable Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by each such promissory note
31
and interest thereon shall at all times (including after assignment pursuant to
Section 11.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its registered assigns).
Section 2.08. Interest Elections. (a) Each Borrowing initially shall
be of the Type specified in the applicable Borrowing Request and, in the case of
a Eurocurrency Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the relevant Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as
provided in this Section and on terms consistent with the other provisions of
this Agreement. A Borrower may elect different options with respect to different
portions of an affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Revolving Borrowing. This Section shall not apply to Swingline Loans, which may
not be converted or continued pursuant to this Section 2.08.
(b) To make an election pursuant to this Section, a Borrower, or the
Company on its behalf, shall notify the Applicable Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if such Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Applicable Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by the relevant Borrower, or by the Company on its behalf.
Notwithstanding any contrary provision herein, this Section shall not be
construed to permit any Borrower to (i) change the currency of any Borrowing,
(ii) elect an Interest Period for Eurocurrency Loans that does not comply with
Section 2.02(d) or (iii) convert any Borrowing to a Borrowing of a Type not
available under the Class of Commitments pursuant to which such Borrowing was
made.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) the Type of the resulting Borrowing; and
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(iv) if the resulting Borrowing is to be a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Applicable Agent shall advise each Lender holding a Loan to which such request
relates of the details thereof and of such Lender's portion of each resulting
Borrowing.
(e) If the relevant Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period, such Borrowing shall (i) in
the case of a Borrowing denominated in US Dollars, be converted to an ABR
Borrowing and (ii) in the case of any other Eurocurrency Borrowing, become due
and payable on the last day of such Interest Period.
Section 2.09. Termination and Reduction of Commitments. (a) The Term
Commitment shall terminate upon the earlier of the borrowing of the Term Loans
and 5:00 p.m., New York City time, on the Effective Date. Unless previously
terminated, the US Tranche Commitments and European Tranche Commitments shall
terminate on the Maturity Date; provided that all Commitments shall terminate at
5:00 p.m., New York City time, on January 31, 2007, if the Effective Date shall
not have occurred prior to such time.
(b) The Company may at any time terminate, or from time to time
reduce, without premium or penalty, the Commitments of any Class; provided that
(i) each reduction of the Commitments of any Class shall be in an amount that is
an integral multiple of the Borrowing Multiple and not less than the Borrowing
Minimum, (ii) the Company shall not terminate or reduce the US Tranche
Commitments if, after giving effect to any concurrent prepayment of the US
Tranche Revolving Loans in accordance with Section 2.11, the aggregate US
Tranche Revolving Exposures would exceed the aggregate US Tranche Commitments
and (iii) the Company shall not terminate or reduce the European Tranche
Commitments if, after giving effect to any concurrent prepayment of the European
Tranche Revolving Loans in accordance with Section 2.11, the aggregate European
Tranche Revolving Exposures would exceed the aggregate European Tranche
Commitments.
(c) The Company shall notify the Administrative Agent of any election
to terminate or reduce the Commitments of any Class under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying the effective date of such election.
Promptly following receipt of any such notice, the Administrative Agent shall
advise the European Agent and the applicable Lenders of the contents thereof.
Each notice delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments
33
delivered by the Company may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments of any Class shall be permanent. Each reduction of
the Commitments of any Class shall be made ratably among the applicable Lenders
in accordance with their respective Commitments of such Class.
Section 2.10. Increase in Commitments. (a) The Company may on one or
more occasions, by written notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Lenders), request that the total US
Tranche Commitments or European Tranche Commitments be increased by an amount
not less than $25,000,000 (with simultaneous increases in the US Tranche
Commitments and the European Tranche Commitments being deemed to be a single
increase); provided that the aggregate amount of the increases in the US Tranche
Commitments and the European Tranche Commitments shall not exceed $250,000,000.
Such notice shall set forth the amount of the requested increase in the total US
Tranche Commitments or European Tranche Commitments, as the case may be, and the
date on which such increase is requested to become effective (which shall be not
less than 30 days or more than 60 days after the date of such notice), and shall
offer each Lender the opportunity to increase its Commitment by its US Tranche
Percentage or European Tranche Percentage, as the case may be, of the proposed
increased amount. Each applicable Lender shall, by notice to the Company and the
Administrative Agent given not more than 10 Business Days after the date of the
Company's notice, either agree to increase its applicable Commitment by all or a
portion of the offered amount (each Lender so agreeing being an "Increasing
Lender") or decline to increase its applicable Commitment (and any Lender that
does not deliver such a notice within such period of 10 Business Days shall be
deemed to have declined to increase its Commitment) (each Lender so declining or
deemed to have declined being a "Non-Increasing Lender"). In the event that, on
the 10th Business Day after the Company shall have delivered a notice pursuant
to the first sentence of this paragraph, the Lenders shall have agreed pursuant
to the preceding sentence to increase their Commitments by an aggregate amount
less than the increase in the total Commitments requested by the Company, the
Company may arrange for one or more banks or other financial institutions (any
such bank or other financial institution being called an "Augmenting Lender"),
which may include any Lender, to extend US Tranche Commitments or European
Tranche Commitments, as the case may be, or increase their existing US Tranche
Commitments or European Tranche Commitments, as the case may be, in an aggregate
amount equal to the unsubscribed amount; provided that each Augmenting Lender,
if not already a Lender hereunder, shall be subject to the approval of the
Administrative Agent, the Issuing Bank and the Swingline Lender (which approval
shall not be unreasonably withheld) and the Borrowers and each Augmenting Lender
shall execute all such documentation as the Administrative Agent shall
reasonably specify to evidence the Commitment of such Augmenting Lender and/or
its status as a Lender hereunder. Any increase in the total US Tranche
Commitments or European Tranche Commitments, as the case may be, may be made in
an amount which is less than the increase requested by the Company if the
Company is unable to arrange for, or chooses not to arrange for, Augmenting
Lenders.
34
(b) On the effective date (the "Increase Effective Date") of any
increase in the total US Tranche Commitments or European Tranche Commitments
pursuant to this Section (the "Commitment Increase"), (i) the aggregate
principal amount of the US Tranche Revolving Loans or European Tranche Revolving
Loans, as the case may be, outstanding (the "Initial Loans") immediately prior
to giving effect to the Commitment Increase on the Increase Effective Date shall
be deemed to be paid, (ii) each Increasing Lender and each Augmenting Lender
that shall have been a US Tranche Lender or European Tranche Lender, as the case
may be, prior to the Commitment Increase shall pay to the Administrative Agent
or, if designated by the Administrative Agent for such purpose, the European
Agent in same day funds an amount equal to the difference between (A) the
product of (1) such Lender's US Tranche Percentage or European Tranche
Percentage, as the case may be (calculated after giving effect to the Commitment
Increase), multiplied by (2) the amount of the Subsequent Borrowings (as
hereinafter defined) and (B) the product of (1) such Lender's US Tranche
Percentage or European Tranche Percentage, as the case may be (calculated
without giving effect to the Commitment Increase), multiplied by (2) the amount
of the Initial Loans, (iii) each Augmenting Lender that shall not have been a
Lender prior to the Commitment Increase shall pay to the Administrative Agent
or, if designated by the Administrative Agent for such purpose, the European
Agent in same day funds an amount equal to the product of (1) such Augmenting
Lender's US Tranche Percentage or European Tranche Percentage (calculated after
giving effect to the Commitment Increase) multiplied by (2) the amount of the
Subsequent Borrowings, and (iv) after the Administrative Agent or European Agent
receives the funds specified in clauses (ii) and (iii) above, the Administrative
Agent or European Agent shall pay to each Non-Increasing Lender the portion of
such funds that is equal to the excess of (A) the product of (1) such
Non-Increasing Lender's US Tranche Percentage or European Tranche Percentage
(calculated without giving effect to the Commitment Increase) multiplied by (2)
the amount of the Initial Loans, over (B) the product of (1) such Non-Increasing
Lender's US Tranche Percentage or European Tranche Percentage (calculated after
giving effect to the Commitment Increase) multiplied by (2) the amount of the
Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase,
the applicable Borrowers shall be deemed to have made new Borrowings (the
"Subsequent Borrowings") in an aggregate principal amount equal to the aggregate
principal amount of the Initial Loans and of the types and for the Interest
Periods specified in a Borrowing Request delivered to the Administrative Agent
in accordance with Section 2.03, (vi) each Non-Increasing Lender, each
Increasing Lender and each Augmenting Lender shall be deemed to hold its US
Tranche Percentage or European Tranche Percentage, as the case may be, of each
Subsequent Borrowing (each calculated after giving effect to the Commitment
Increase) and (vii) the applicable Borrowers shall pay each Increasing Lender
and each Non-Increasing Lender any and all accrued but unpaid interest on the
Initial Loans. The deemed payments made pursuant to clause (i) above in respect
of each Eurocurrency Loan shall be subject to indemnification by the Borrowers
pursuant to the provisions of Section 2.16 if the Increase Effective Date occurs
other than on the last day of the Interest Period relating thereto and breakage
costs result. In the case of an increase in the European Tranche Commitments at
a time when Loans denominated in both Euro and US Dollars shall be outstanding,
the amounts payable by the Increasing Lenders and any Requesting Lenders
pursuant to this paragraph
35
shall be paid in Euro and US Dollars in proportion to the principal amounts of
the Euro and US Dollar denominated European Tranche Revolving Loans outstanding
on the Increase Effective Date.
(c) Increases and new Commitments pursuant to this Section shall
become effective on the date specified in the notice delivered by the Company
pursuant to the first sentence of paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the Commitments of
any Class (or in any Commitment of any Lender) or addition of an Augmenting
Lender shall become effective under this Section unless, (i) on the date of such
increase, the conditions set forth in paragraphs (a) and (b) of Section 4.02
shall be satisfied and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by the chief financial
officer of the Company, and (ii) the Administrative Agent shall have received
(with sufficient copies for each of the Lenders) documents consistent with those
delivered on the Effective Date under clauses (b) and (c) of Section 4.01 as to
the corporate power and authority of the applicable Borrowers to borrow
hereunder after giving effect to such increase.
Section 2.11. Prepayment of Loans. (a) Any Borrower shall have the
right at any time and from time to time to prepay any Borrowing of such Borrower
in whole or in part, subject to prior notice in accordance with paragraph (d) of
this Section.
(b) If the aggregate Exposures of any Class shall exceed the aggregate
Commitments of such Class, then (i) on the last day of any Interest Period for
any Eurocurrency Revolving Borrowing and (ii) on any other date in the event ABR
Revolving Borrowings of such Class shall be outstanding, the applicable
Borrowers shall prepay Revolving Loans of such Class in an amount equal to the
lesser of (A) the amount necessary to eliminate such excess (after giving effect
to any other prepayment of Loans on such day) and (B) the amount of the
applicable Borrowings referred to in clause (i) or (ii), as applicable. If, on
any Reset Date, the aggregate amount of the Exposures of any Class shall exceed
105% of the aggregate Commitments of such Class, then the applicable Borrowers
shall, not later than the next Business Day, prepay one or more Borrowings of
such Class in an aggregate principal amount sufficient to eliminate such excess.
(c) Prior to any prepayment of Borrowings hereunder, the applicable
Borrower shall select the Borrowing or Borrowings to be prepaid and shall
specify such selection in the notice of such prepayment pursuant to paragraph
(d) of this Section.
(d) The applicable Borrower, or the Company on behalf of the
applicable Borrower, shall notify the Applicable Agent by telephone (confirmed
by telecopy) of any prepayment of a Borrowing hereunder not later than 11:00
a.m., Local Time, three Business Days before the date of such prepayment (to the
extent practicable, in the case of a prepayment under paragraph (b) above). Each
such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in
36
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09(c), then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.09(c).
Promptly following receipt of any such notice, the Applicable Agent shall advise
the applicable Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to
the extent required by Section 2.13 and (ii) break funding payments pursuant to
Section 2.16.
Section 2.12. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue (i) with respect to US Tranche Lenders and European Tranche Lenders, at
the Applicable Rate with respect to the facility fee (A) on the daily amount of
the US Tranche Commitment and the European Tranche Commitment of such Lender
(whether used or unused) during the period from and including the date hereof to
but excluding the date on which the last of such Commitments terminates and (B)
after the Commitment of each Class terminates, on the daily amount of such
Lender's Exposure of such Class to but excluding the date on which such Lender
ceases to have any such Exposure and (ii) with respect to Term Lenders, at the
Applicable Rate with respect to the facility fee on the daily amount of such
Lender's Term Loan Exposure to but excluding the date on which such Lender
ceases to have any Term Loan Exposure. Accrued facility fees shall be payable in
arrears on the last day of March, June, September and December of each year,
commencing on the first such date to occur after the date hereof, and on the
date on which all the Commitments shall have terminated and the Lenders shall
have no further Exposures. All facility fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) The Company agrees to pay (i) to the Administrative Agent for the
account of each US Tranche Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the Applicable Rate
used to determine the interest rate applicable to US Tranche Eurocurrency
Revolving Loans on the daily amount of such US Tranche Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the date hereof to but excluding the later
of the date on which such US Tranche Lender's US Tranche Commitment terminates
and the date on which such Lender ceases to have any LC Exposure, and (ii) to
the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per
annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the date hereof to but excluding the later of the date of
termination of the US Tranche Commitments and the date on which there ceases to
be any LC Exposure, as well as the Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees accrued
under this paragraph through and including the last day of March, June,
September and December of each year shall be payable on
37
such last day, commencing on the first such date to occur after the date hereof;
provided that all such fees shall be payable on the date on which the US Tranche
Commitments terminate and any such fees accruing after the date on which the US
Tranche Commitments terminate shall be payable on demand. Any other fees payable
to the Issuing Bank pursuant to this paragraph shall be payable within 10 days
after demand. All participation fees and fronting fees payable under this
paragraph shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Company agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for prompt distribution, in the case of
facility fees and participation fees with respect to Letters of Credit, to the
Lenders. Fees paid hereunder shall not be refundable.
Section 2.13. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee payable by any Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum equal
to (i) in the case of overdue principal of any Loan, 2% per annum plus the rate
otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) above.
(d) Accrued interest on each Loan shall be payable by the applicable
Borrower in arrears on each Interest Payment Date for such Loan; provided that
(i) interest accrued pursuant to paragraph (c) above shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurocurrency Revolving Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when
38
the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO
Rate shall be determined by the Applicable Agent, and such determination shall
be conclusive absent manifest error.
Section 2.14. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurocurrency Borrowing denominated in any currency:
(a) the Applicable Agent determines (which determination shall be
conclusive absent manifest error) that adequate means do not exist for
ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Applicable Agent is advised by a majority in interest of the
Lenders that would participate in such Borrowing that the Adjusted LIBO Rate for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing for such
Interest Period; then the Applicable Agent shall give notice thereof to the
applicable Borrower and the applicable Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the Applicable Agent notifies the
applicable Borrower and the applicable Lenders that the circumstances giving
rise to such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Revolving Borrowing denominated in such currency
to, or continuation of any Revolving Borrowing denominated in such currency as,
a Eurocurrency Borrowing shall be ineffective, and any Eurocurrency Borrowing
denominated in such currency that is requested to be continued shall be repaid
on the last day of the then current Interest Period applicable thereto, and (ii)
any Borrowing Request for a Eurocurrency Revolving Borrowing denominated in such
currency shall be ineffective.
Section 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurocurrency Loans
made by such Lender or any Letter of Credit or participations therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Company will pay or cause the European Borrower to pay to such Lender or the
Issuing Bank, as the case may be, such additional
39
amount or amounts as will compensate such Lender or the Issuing Bank for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank reasonably determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or Issuing Bank's capital or on the
capital of such Lender's or Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Company will pay
or cause the European Borrower to pay to such Lender or the Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company for any
such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section, and setting forth in
reasonable detail the calculations used by such Lender or the Issuing Bank to
determine such amount, shall be delivered to the Company and shall be conclusive
absent manifest error. The Company shall pay or cause the European Borrower to
pay to such Lender or the Issuing Bank, as the case may be, the amount shown as
due on any such certificate within 15 Business Days after receipt thereof. Any
additional interest owed pursuant to paragraph (b) above shall be determined by
the relevant Lender, which determination shall be conclusive absent manifest
error, and notified to the relevant Borrower (with copies to the Administrative
Agent and the London Agent) at least five Business Days before each date on
which interest is payable for the relevant Loan, and such additional interest so
notified to the relevant Borrower by such Lender shall be payable to the London
Agent for the account of such Lender on each date on which interest is payable
for such Loan.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Company shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the applicable Borrower of the Change in Law giving
rise to such increased costs or reductions; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
Section 2.16. Break Funding Payments. In the event of (a) the payment
(or deemed payment pursuant to Section 2.10) of any principal of any
Eurocurrency Loan
40
other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan
to a Loan of a different Type or Interest Period other than on the last day of
the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.11(d) and is revoked in accordance therewith), or (d) the assignment or deemed
assignment of any Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Company pursuant to
Section 2.19 or the CAM Exchange, then, in any such event, the applicable
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, such loss, cost
or expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest that would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest that would accrue on such principal amount for such period at
the interest rate such Lender would bid were it to bid, at the commencement of
such period, for deposits in the applicable currency of a comparable amount and
period from other banks in the London interbank market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section, and setting forth in reasonable detail the
calculations used by such Lender to determine such amount or amounts, shall be
delivered to the applicable Borrower and shall be conclusive absent manifest
error. The applicable Borrower shall pay such Lender the amount shown as due on
any such certificate within 15 Business Days after receipt thereof.
Section 2.17. Taxes. (a) Any and all payments by or on account of any
Borrower hereunder or under any other Loan Document shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
if any Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, the London
Agent, the applicable Lender or the Issuing Bank, as the case may be, receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent, the London
Agent, each Lender and the Issuing Bank, within 15 Business Days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by such Agent or Lender or the Issuing Bank, as the case may be, on or with
respect to any payment by or on account of any obligation of such Borrower
hereunder or under any other Loan
41
Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability setting forth in reasonable detail the
circumstances giving rise thereto and the calculations used by such Lender to
determine the amount thereof delivered to the Company by a Lender or the Issuing
Bank, or by an Agent, on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by any Borrower to a Governmental Authority, such Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which a Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Company as will permit such payments to be made
without withholding or at a reduced rate (including, in the case of a European
Tranche Lender, the certificate attached hereto as Exhibit C); provided that
such Lender has received written notice from the Company advising it of the
availability of such exemption or reduction and containing all applicable
documentation. Each Lender shall promptly notify the Company at any time it
determines that it is no longer in a position to provide any such previously
delivered documentation to the Company.
Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to 12:00 noon, Local Time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Applicable Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Applicable Agent to the applicable account specified in
Schedule 2.18 or, in any such case, to such other account as the Applicable
Agent shall from time to time specify in a notice delivered to the Company;
provided that payments to be made directly to the Issuing Bank as expressly
provided herein and payments pursuant to Sections 2.15, 2.16, 2.17 and 11.03
shall be made directly to the Persons entitled thereto and payments pursuant to
other Loan Documents shall be made to the Persons specified therein (it being
agreed that the Borrowers will be deemed to have satisfied their obligations
with respect to payments
42
referred to in this proviso if they shall make such payments to the persons
entitled thereto in accordance with instructions provided by the Administrative
Agent; the Administrative Agent agrees to provide such instructions upon
request, and no Borrower will be deemed to have failed to make such a payment if
it shall transfer such payment to an improper account or address as a result of
the failure of the Administrative Agent to provide proper instructions). The
Applicable Agent shall distribute any such payments received by it for the
account of any Lender or other Person promptly following receipt thereof at the
appropriate lending office or other address specified by such Lender or other
Person. If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension. All payments hereunder of principal or
interest in respect of any Loan or LC Disbursement shall, except or otherwise
expressly provided herein, be made in the currency of such Loan or LC
Disbursement; all other payments hereunder and under each other Loan Document
shall be made in US Dollars. Any payment required to be made by an Agent
hereunder shall be deemed to have been made by the time required if such Agent
shall, at or before such time, have taken the necessary steps to make such
payment in accordance with the regulations or operating procedures of the
clearing or settlement system used by such Agent to make such payment.
(b) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on its Loans or participations in LC Disbursements resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Loans and participations in LC Disbursements and accrued interest thereon than
the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of their respective
Loans and participations in LC Disbursements and accrued interest thereon;
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by any Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Company or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(c) Unless the Applicable Agent shall have received notice from the
relevant Borrower prior to the date on which any payment is due for the account
of all or
43
certain of the Lenders or the Issuing Bank hereunder that such Borrower will not
make such payment, the Applicable Agent may assume that such Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the applicable Lenders or the Issuing Bank, as the
case may be, the amount due. In such event, if such Borrower has not in fact
made such payment, then each of the applicable Lenders or the Issuing Bank, as
the case may be, severally agrees to repay to the Applicable Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Applicable Agent, at a rate
determined by the Applicable Agent in accordance with banking industry practices
on interbank compensation.
(d) If any Lender shall fail to make any payment required to be made
by it to any Agent pursuant to this Agreement, then the Agents may, in their
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by them for the account of such Lender to satisfy such
Lender's obligations to the Agents until all such unsatisfied obligations are
fully paid.
Section 2.19. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Company
hereby agrees to pay all reasonable, direct, out-of-pocket costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if any
Loan Party is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 11.04), all its interests, rights and obligations under the Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) the
Company shall have received the prior written consent of the Administrative
Agent (and if a US Tranche Revolving Commitment is being assigned, the Issuing
Bank and the Swingline Lender), which consent shall not be unreasonably withheld
and (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee or the Company. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a
44
result of a waiver by such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
Each of the Company and the European Borrower represents and warrants
as follows:
Section 3.01. Corporate Existence and Standing. The Company and each
Subsidiary is duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, except for failures which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect or a material adverse effect on the rights or interests
of the Lenders hereunder, and has all requisite authority to conduct its
business in each jurisdiction in which the failure so to qualify could
reasonably be expected to result in a Material Adverse Effect. The European
Borrower is a wholly owned direct or indirect subsidiary of the Company.
Section 3.02. Authorization; No Violation. The Transactions are within
each Loan Party's corporate or partnership powers, have been duly authorized by
all necessary corporate or partnership action and do not contravene (i) any Loan
Party's charter, by-laws or other constitutive documents or (ii) any law or
contractual restriction binding on or affecting any Loan Party, except for
contraventions of contractual restrictions which individually or in the
aggregate could not reasonably be expected to result in a Material Adverse
Effect or a material adverse effect on the rights or interests of the Lender
hereunder.
Section 3.03. Governmental Consents. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority or
regulatory body is required for the due execution, delivery and performance by
the Loan Parties of this Agreement or the other Loan Documents.
Section 3.04. Validity. This Agreement is, and the other Loan
Documents when executed and delivered will be, the legal, valid and binding
obligations of the Loan Parties party thereto, enforceable against such Loan
Parties in accordance with their respective terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and to the effect of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
Section 3.05. Use of Proceeds. The Borrowers will use the proceeds of
the Loans and the Letters of Credit only for the purposes specified in the
preamble to this Agreement.
Section 3.06. Litigation. As of the date hereof, there is no pending
or, to the best of the knowledge of the Borrowers, threatened action or
proceeding affecting the
45
Company or any of its Subsidiaries before any court, Governmental Authority or
arbitrator, which could reasonably be expected to result in a Material Adverse
Effect, or which purports to affect the legality, validity or enforceability of
this Agreement or any other Loan Document.
Section 3.07. Financial Statements; No Material Adverse Change. (a)
The consolidated balance sheet of the Company and the Subsidiaries and the
related consolidated statements of income, shareholders' equity and cash flows
of the Company and the Subsidiaries (i) as at December 31, 2005, and for the
year then ended, which financial statements are accompanied by the report of
PricewaterhouseCoopers LLC, and (ii) as at April 1, July 1 and September 30,
2006, and for the fiscal quarters and the portions of the fiscal year then
ended, certified by the Company's chief financial officer, as heretofore
furnished to the Lenders, fairly present in all material respects the
consolidated financial condition of the Company and the Subsidiaries as at such
dates and their consolidated results of operations, shareholders' equity and
cash flows for the periods then ended in conformity with GAAP, subject to
year-end adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) As of the date hereof, there has been, since December 31, 2005, no
Material Adverse Effect.
Section 3.08. Investment Company Act. The Company is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
Section 3.09. Taxes. The Company and each Subsidiary has timely filed
or caused to be filed all Tax returns and reports required to have been filed by
it and has paid or caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Company or such Subsidiary, as applicable, has set
aside on its books adequate reserves or (b) to the extent that the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.
Section 3.10. 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, could reasonably be expected to
result in a Material Adverse Effect.
(b) The present value of all accumulated benefit obligations under
each Plan (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87, as amended, or any successor standard) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan by an amount that could
reasonably be expected to result in a Material Adverse Effect, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of
46
all such underfunded Plans by an amount that could reasonably be expected to
result in a Material Adverse Effect.
Section 3.11. Regulation U. Neither the Company nor any of the
Subsidiaries is engaged in the business of purchasing or carrying Margin Stock.
The value of the Margin Stock owned directly or indirectly by the Company and
the Subsidiaries which is subject to any arrangement hereunder described in the
definition of "indirectly secured" in Section 221.2 of Regulation U issued by
the Board represents less than 25% of the value of all assets of the Company and
the Subsidiaries subject to such arrangement. For the purpose of making the
calculation pursuant to the preceding sentence, to the extent consistent with
Regulation U, Treasury Stock shall be deemed not to be an asset of the Company
and its Subsidiaries.
Section 3.12. Environmental Matters. The operations of the Company and
each Subsidiary comply in all material respects with all Environmental Laws, the
noncompliance with which could reasonably be expected to result in a Material
Adverse Effect.
Section 3.13. Disclosure. None of the Confidential Information
Memorandum or any other information prepared and furnished by or on behalf of
the Loan Parties to any Agent or Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains or will contain as of the date thereof (or,
in the case of any such information that is not dated, the earliest date on
which such information is furnished to the Administrative Agent or any Lender)
any material misstatement of fact or omits or will omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Company represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
Section 3.14. Subsidiary Guarantors. The Subsidiary Guarantors include
each Subsidiary of the Company other than Excluded Subsidiaries and
newly-acquired or created Domestic Subsidiaries that are not yet required to
have become Subsidiary Guarantors under the definition of "Guarantee
Requirement".
ARTICLE IV
Conditions
Section 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions has
been satisfied (or waived in accordance with Section 11.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which
47
may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company,
substantially in the form of Exhibit D-1, (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Irish counsel for the European Borrower, substantially in the form of
Exhibit D-2 and (iii) the general counsel of the Company, substantially in
the form of Exhibit D-3. Each Loan Party hereby requests such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the formation, existence and good standing of the Loan
Parties and the authorization of the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received (i) a certificate,
dated the Effective Date and signed by the chief financial officer of the
Company, confirming that the conditions set forth in paragraphs (a) and (b)
of Section 4.02 and in paragraphs (f) and (g) of this Section have been
satisfied.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent an invoice with respect thereto shall have been received by the
Company, reimbursement or payment of all out-of-pocket expenses required to
be reimbursed or paid by the Company hereunder or under any other Loan
Document.
(f) The Guarantee Requirement shall be satisfied.
(g) The Existing Credit Agreements shall have been terminated, all
amounts outstanding or accrued thereunder shall have been paid and all
letters of credit issued thereunder (other than the Existing Letters of
Credit) shall have been terminated or shall have expired.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions shall be satisfied (or waived pursuant to Section
11.02) on or prior to January 31, 2007.
Section 4.02. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of each Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Loan Parties set forth
in the
48
Loan Documents shall be true and correct in all material respects on and as
of the date of such Borrowing or the date of issuance, amendment, renewal
or extension of such Letter of Credit, as applicable, other than
representations which are given as of a particular date, in which case such
representations shall be true and correct as of that date.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, and the application of the proceeds thereof, no
Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Company on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
have been reimbursed, each of the Company and the European Borrower covenants
and agrees with the Lenders that it will:
Section 5.01. Payment of Taxes, Etc. Pay and discharge, and cause each
Subsidiary to pay and discharge, before the same shall become delinquent, (i)
all material taxes, assessments and governmental charges or levies imposed upon
it or upon its income, profit or property, and (ii) all material lawful claims
which, if unpaid, might by law become a lien upon its property; provided,
however, that neither the Company nor any Subsidiary shall be required to pay or
discharge any such tax, assessment, charge or claim which is being contested in
good faith and by proper proceedings and with respect to which the Company shall
have established appropriate reserves in accordance with GAAP.
Section 5.02. Preservation of Existence, Etc. Preserve and maintain,
and cause each Subsidiary to preserve and maintain, its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business, except to the extent that failures to keep in effect such rights,
licenses, permits, privileges, franchises and, in the case of Subsidiaries only,
legal existence could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution not
prohibited under Section 6.04.
Section 5.03. Compliance with Laws, Etc. Comply, and cause each
Subsidiary to comply, with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including, without
limitation, all Environmental
49
Laws), noncompliance with which could reasonably be expected to result in a
Material Adverse Effect.
Section 5.04. Keeping of Books. Keep, and cause each Subsidiary to
keep, proper books of record and account in all material respects, in which full
and correct entries shall be made of all financial transactions and the assets
and business of the Company and each Subsidiary in accordance with GAAP
consistently applied.
Section 5.05. Inspection. Permit, and cause each Subsidiary to permit,
the Administrative Agent, and its representatives and agents, to inspect any of
the properties, corporate books and financial records of the Company and its
Subsidiaries, to examine and make copies of the books of account and other
financial records of the Company and its Subsidiaries, and to discuss the
affairs, finances and accounts of the Company and its Subsidiaries with, and to
be advised as to the same by, their respective officers or directors, at such
reasonable times and upon reasonable advance notice during normal business hours
and intervals as the Administrative Agent may reasonably designate.
Section 5.06. Reporting Requirements. Furnish to the Administrative
Agent for distribution to each Lender:
(a) As soon as available and in any event within 55 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and the consolidated Subsidiaries
as of the end of such quarter and consolidated statements of income and
changes in financial position (or consolidated statement of cash flow, as
the case may be) of the Company and the consolidated Subsidiaries for the
period commencing at the end of the previous fiscal year and ending with
the end of such quarter, certified by the chief financial officer of the
Company;
(b) As soon as available and in any event within 100 days after the
end of each fiscal year of the Company, an audited consolidated balance
sheet of the Company and the consolidated Subsidiaries as of the end of
such year and audited consolidated statements of income and stockholder's
equity and changes in financial position of the Company and the
consolidated Subsidiaries for such fiscal year and accompanied by a report
of PricewaterhouseCoopers LLC, independent public accountants of the
Company, or other independent public accountants of nationally recognized
standing, on the results of their examination of such consolidated annual
financial statements of the Company and the consolidated Subsidiaries,
which report shall be reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of
the audit, or shall be otherwise reasonably acceptable to the Required
Lenders;
(c) Promptly after the sending or filing thereof, copies of all
financial information, reports and proxy materials the Company files with
the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended, including, without limitation, all such reports that
disclose material
50
litigation pending against the Company or any Subsidiary or any material
noncompliance with any Environmental Law on the part of the Company or any
Subsidiary;
(d) Together with each delivery of financial statements pursuant to
clause (a) or (b) above, a certificate signed by the chief financial
officer of the Company (A) stating that no Default exists or, if any does
exist, stating the nature and status thereof and describing the action the
Company proposes to take with respect thereto, (B) demonstrating, in
reasonable detail, the calculations used by such officer to determine
compliance with the financial covenants contained in Sections 6.07 and 6.08
and (C) identifying the Subsidiaries, if any, that are "Excluded
Subsidiaries" under clause (c) of the definition of such term;
(e) With respect to each fiscal year for which the Company shall have
an aggregate Unfunded Liability of $20,000,000 or more for all of its
single employer Plans covered by Title IV of ERISA and all Multiemployer
Plans covered by Title IV of ERISA to which the Company has an obligation
to contribute, as soon as available, and in any event within ten months
after the end of such fiscal year, a statement of Unfunded Liabilities of
each such Plan or Multiemployer Plan, certified as correct by an actuary
enrolled in accordance with regulations under ERISA and a statement of
estimated Withdrawal Liability as of the most recent plan year end as
customarily prepared by the trustees under the Multiemployer Plans to which
the Company has an obligation to contribute;
(f) As soon as possible, and in any event within 30 days after the
occurrence of each event the Company knows is or may be a reportable event
(as defined in Section 4043 of ERISA, but excluding any reportable event
with respect to which the 30 day reporting requirement has been waived)
with respect to any Plan or Multiemployer Plan with an Unfunded Liability
in excess of $20,000,000, a statement signed by the chief financial officer
of the Company describing such reportable event and the action which the
Company proposes to take with respect thereto;
(g) As soon as possible, and in any event within five Business Days
after a Responsible Officer of the Company shall become aware of the
occurrence of each Default, which Default is continuing on the date of such
statement, a statement of the chief financial officer of the Company
setting forth details of such Default or event and the action which the
Company proposes to take with respect thereto;
(h) From time to time, such other information as to the business and
financial condition of the Company and the Subsidiaries and their
compliance with the Loan Documents as any Agent, or any Lender through the
Administrative Agent, may reasonably request; and
(i) Promptly following a request therefor, all documentation and other
information that a Lender reasonably requests in order to comply with its
ongoing
51
obligations under applicable "know your customer" and anti-money laundering
rules and regulations, including the USA Patriot Act.
Information required to be delivered to the Administrative Agent for
distribution to the Lenders pursuant to this Section shall be deemed to
have been so delivered or distributed, as the case may be, (i) on the date
on which such information, or one or more annual or quarterly reports
containing such information, shall have been delivered to the
Administrative Agent and posted by the Administrative Agent on an
IntraLinks or similar website to which the Lenders have been granted access
or (ii) in the case of information referred to in paragraphs (a), (b) and
(c) of this Section, on the date on which the Borrower provides notice to
the Administrative Agent that such information is available (A) on the
website of the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ or
(B) on the Borrower's website at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇. Information
required to be delivered pursuant to this Section may also be delivered by
electronic communications pursuant to procedures approved by the
Administrative Agent.
Section 5.07. Use of Proceeds and Letters of Credit. Use the proceeds
of Borrowings hereunder and the Letters of Credit for the purposes referred to
in the recitals to this Agreement, and not for any purpose that would entail a
violation of any applicable law or regulation (including, without limitation,
Regulations U and X of the Board).
Section 5.08. Guarantee Requirement. Cause the Guarantee Requirement
to be satisfied at all times.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
have been reimbursed, each of the Company and the European Borrower covenants
and agrees with the Lenders that it will not:
Section 6.01. Subsidiary Debt. Permit any Subsidiary that is not a
Subsidiary Guarantor to create, incur, assume or permit to exist any Debt,
except:
(a) Debt created hereunder;
(b) Debt existing on the date hereof and set forth in Schedule 6.01
and extensions, renewals and replacements of any such Debt that do not
increase the outstanding principal amount thereof;
(c) Debt to the Company or any other Subsidiary; and
(d) other Debt; provided that the sum of (without duplication) (i) the
52
principal amount of all Debt permitted by this clause (d), (ii) the
principal amount of all Debt secured by Liens permitted by Section 6.02 and
(iii) all Attributable Debt in respect of Sale and Leaseback Transactions
(other than Sale and Leaseback Transactions entered into at the time the
property subject thereto is acquired or within 90 days thereafter)
permitted by Section 6.03 does not at any time exceed the greater of
$150,000,000 or 15% of Consolidated Net Tangible Assets.
Section 6.02. Liens Securing Debt. Create, incur, assume or permit to
exist, or permit any Subsidiary to create, incur, assume or permit to exist, any
Lien on any property or asset now owned or hereafter acquired by it securing
Debt unless, after giving effect thereto, the sum of (without duplication) (i)
all Debt secured by all such Liens, (ii) the principal amount of all Debt of
Subsidiaries that are not Subsidiary Guarantors permitted by Section 6.01(d) and
(iii) all Attributable Debt in respect of Sale and Leaseback Transactions (other
than Sale and Leaseback Transactions entered into at the time the property
subject thereto is acquired or within 90 days thereafter) permitted by Section
6.03 does not at any time exceed the greater of $150,000,000 or 15% of
Consolidated Net Tangible Assets. For the purpose of this Section 6.02, Treasury
Stock to the extent constituting Margin Stock shall be deemed not to be an asset
of the Company and its Subsidiaries.
Section 6.03. Sale and Leaseback Transactions. Enter into or be party
to, or permit any Subsidiary to enter into or be party to, any Sale and
Leaseback Transaction (other than any Sale and Leaseback Transaction entered
into at the time the property subject thereto is acquired or within 90 days
thereafter) unless after giving effect thereto the sum of (without duplication)
(i) all Attributable Debt permitted by this Section, (ii) the principal amount
of all Debt of Subsidiaries that are not Subsidiary Guarantors permitted by
Section 6.01(d) and (iii) the principal amount of all Debt secured by Liens
permitted by Section 6.02(i) does not exceed the greater of $150,000,000 or 15%
of Consolidated Net Tangible Assets.
Section 6.04. Merger, Consolidation, Etc. (a) In the case of the
Company, merge or consolidate with or into, or transfer or permit the transfer
of all or substantially all its consolidated assets to, any Person (including by
means of one or more mergers or consolidations of or transfers of assets by
Subsidiaries), except that the Company may merge or consolidate with any US
Corporation if (i) the Company shall be the surviving corporation in such merger
or consolidation, (ii) immediately after giving effect thereto no Default shall
have occurred and be continuing and (iii) the Company shall be in compliance
with the covenants set forth in Sections 6.07 and 6.08 as of and for the most
recently ended period of four fiscal quarters for which financial statements
shall have been delivered pursuant to Section 5.06, giving pro forma effect to
such merger or consolidation and any related incurrence of Debt as if they had
occurred at the beginning of such period, and the Administrative Agent shall
have received a certificate of the chief financial officer of the Company
setting forth computations demonstrating such compliance.
53
(b) In the case of any Material Subsidiary, merge or consolidate with
or into, or transfer all or substantially all its assets to, any Person, except
that (i) any Material Subsidiary may merge into or transfer all or substantially
all its assets to the Company, (ii) any Material Subsidiary may merge or
consolidate with or transfer all or substantially all its assets to any
Subsidiary; provided that if either constituent corporation in such merger or
consolidation, or the transferor of such assets, shall be a Subsidiary
Guarantor, then the surviving or resulting corporation or the transferee of such
assets, as the case may be, must be or at the time of such transaction become a
Subsidiary Guarantor and (iii) so long as, at the time of and immediately after
giving effect to such transaction, no Default shall have occurred and be
continuing, any Material Subsidiary may merge or consolidate with or transfer
all or substantially all its assets to any Person other than the Company or a
Subsidiary so long as such transaction would not be prohibited by paragraph
(a)(iii) above. Notwithstanding the foregoing, nothing in this paragraph shall
(a) so long as, at the time of and immediately after giving effect to such
transaction, no Event of Default shall have occurred and be continuing, prohibit
the Company or any Subsidiary from (i) transferring any assets of such Person to
acquire Foreign Subsidiaries, (ii) making capital or working capital
contributions to Foreign Subsidiaries in the ordinary course of business, or
(iii) selling or otherwise disposing of assets to a Foreign Subsidiary on
arm's-length terms (as determined in good faith by the Company or the applicable
Subsidiary) or (b) require any Foreign Subsidiary to become a Subsidiary
Guarantor hereunder.
(c) In the case of the Company, permit any Domestic Subsidiary to
become a subsidiary of a Foreign Subsidiary; provided that nothing in this
paragraph shall prevent the Company from acquiring, directly or indirectly, any
Person that at the time of and immediately after giving effect to such
acquisition would constitute a Foreign Subsidiary and would own any Domestic
Subsidiary not acquired by it in contemplation of such acquisition.
For purposes of this Section 6.04, Treasury Stock to the extent constituting
Margin Stock shall be deemed not to be an asset of the Company.
Section 6.05. Change in Business. Fail to be engaged in the business
conducted by the Company and the Subsidiaries on the date hereof to an extent
such that the character of the business conducted by the Company and the
Subsidiaries on the date hereof, taken as a whole, shall be materially changed.
Section 6.06. Certain Restrictive Agreements. Enter into, or permit
any Subsidiary to enter into, any contract or other agreement that would limit
the ability of any Subsidiary to pay dividends or make loans or advances to, or
to repay loans or advances from, the Company or any other Subsidiary, other than
(i) customary non-assignment provisions in any lease or sale agreement relating
to the assets that are the subject of such lease or sale agreement, (ii) any
restriction binding on a Person acquired by the Company at the time of such
acquisition, which restriction is applicable solely to the Person so acquired
and its subsidiaries and was not entered into in contemplation of such
acquisition and (iii) in connection with any secured Debt permitted under
Section 6.02, customary restrictions on the transfer of the collateral securing
such Debt.
54
Section 6.07. Leverage Ratio. Permit the Leverage Ratio as of the end
of any fiscal quarter to exceed 3.25:1.00.
Section 6.08. Interest Coverage Ratio. Permit the Interest Coverage
Ratio as of the end of any fiscal quarter for any period of four consecutive
fiscal quarters to be less than 3.50:1.00.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur and
be continuing:
(a) Any Borrower shall fail to pay (i) any amount of principal of any
Loan or any reimbursement obligation in respect of any LC Disbursement when due
hereunder or (ii) any interest, fee or other amount due hereunder and such
default shall continue for five days; or
(b) Any representation or warranty made or deemed made by the Company
or any other Loan Party (or any of their respective officers) in connection with
this Agreement or any other Loan Document shall prove to have been incorrect in
any material respect when made or deemed made; provided, however, that no Event
of Default shall be deemed to exist by reason of the incorrectness of any
representation or warranty after such incorrectness shall have been cured (other
than by disclosure, which shall not be deemed to cure any breach of a
representation or warranty); or
(c) The Company or the European Borrower shall fail to maintain its
corporate, limited liability company or partnership existence as required by
Section 5.02, or the Company shall fail for five Business Days to comply with
Section 5.06(g), or the Company or any Subsidiary shall fail to perform or
observe any term, covenant or agreement contained in Section 5.07 or Article VI
of this Agreement on its part to be performed or observed; or
(d) The Company or any Subsidiary shall (i) fail to perform or observe
any other term, covenant or agreement contained in this Agreement or any other
Loan Document on its part to be performed or observed (other than those failures
or breaches referred to in paragraphs (a), (b) and (c) above) and any such
failure shall remain unremedied for 30 days after written notice thereof has
been given to the Company by the Administrative Agent or the Required Lenders;
or
(e) The Company or any Subsidiary shall fail to pay any amount of
principal of, interest on or premium with respect to, Material Debt (other than
the Loans) when due (whether at scheduled maturity or by required prepayment,
acceleration, demand or otherwise) and such failure shall continue beyond the
applicable grace period, if any, specified in the agreement or instrument
governing such Debt, or any other event shall occur or condition shall exist
with respect to Material Debt (other than the Loans) of
55
the Company or such Subsidiary if the effect of such other event or condition is
to cause, or to permit the holder or holders of such debt (or any trustee or
agent on their behalf) to cause, such Material Debt to become due, or to require
such Material Debt to be prepaid or repurchased, prior to the stated maturity
thereof; or
(f) The Company or any Subsidiary shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its debts
generally; or
(g) The Company or any Subsidiary shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Company or such Subsidiary seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debt under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property; or the
Company or any such Subsidiary shall take corporate action to authorize any of
the actions set forth above in this paragraph (f); provided that, in the case of
any such proceeding filed or commenced against the Company or any Subsidiary,
such event shall not constitute an "Event of Default" hereunder unless either
(i) the same shall have remained undismissed or unstayed for a period of 60
days, (ii) an order for relief shall have been entered against the Company or
such Subsidiary under the federal bankruptcy laws as now or hereafter in effect
or (iii) the Company or such Subsidiary shall have taken corporate action
consenting to, approving or acquiescing in the commencement or maintenance of
such proceeding; or
(h) Any judgment or judgments for the payment of money in excess of
$20,000,000 in the aggregate for all such judgments shall be rendered against
the Company or one or more Subsidiaries and (i) enforcement proceedings shall
have been commenced by any creditor upon such judgments or (ii) there shall be
any period of 10 consecutive days during which stays of enforcement of such
judgments, by reason of pending appeals or otherwise, shall not be in effect;
(i) Either (i) the PBGC shall terminate any single-employer Plan (as
defined in Section 4001(b)(2) of ERISA) that provides benefits for employees of
the Company or any Subsidiary and such plan shall have an Unfunded Liability in
an amount in excess of $20,000,000 at such time or (ii) Withdrawal Liability
shall be assessed against the Company or any Subsidiary in connection with any
Multiemployer Plan (whether under Section 4203 or Section 4205 of ERISA) and
such Withdrawal Liability shall be an amount in excess of $20,000,000 or
(j) the guarantee of any Subsidiary Guarantor under the Subsidiary
Guarantee Agreement or the Company's guarantee under Article X shall not be (or
shall be asserted by the Company or any Subsidiary Guarantor not to be) valid or
in full force and effect; or
(k) a Change of Control shall have occurred.
56
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Required Lenders, by notice to the Company, (i)
declare the obligation of each Lender to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder to be terminated, whereupon the same shall
forthwith terminate and/or (ii) declare the Loans, all interest accrued and
unpaid thereon and all other amounts outstanding or accrued under this Agreement
to be forthwith due and payable, whereupon the Loans, all such accrued interest
and all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrowers. In the event of the occurrence of an
Event of Default under clause (g) of this Article VII, (A) the obligation of
each Lender to make Loans and of the Issuing Bank to issue Letters of Credit
hereunder shall automatically be terminated and (B) the Loans, all interest
accrued and unpaid thereon and all other amounts outstanding or accrued under
this Agreement shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by each Borrower.
ARTICLE VIII
The Agents
In order to expedite the transactions contemplated by this Agreement,
the Persons named in the heading of this Agreement are hereby appointed to act
as Administrative Agent and London Agent on behalf of the Lenders and the
Issuing Bank. Each of the Lenders, each assignee of any Lender and the Issuing
Bank hereby irrevocably authorizes the Agents to take such actions on their
behalf and to exercise such powers as are delegated to the Agents by the terms
of the Loan Documents, together with such actions and powers as are reasonably
incidental thereto. The Agents are hereby expressly authorized by the Lenders
and the Issuing Bank, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders and the Issuing Bank all payments of principal
of and interest on the Loans and all other amounts due to the Lenders or the
Issuing Bank hereunder, and promptly to distribute to each Lender or the Issuing
Bank its proper share of each payment so received; (b) to give notice on behalf
of each of the Lenders to the Company of any Event of Default of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices, financial
statements and other materials delivered by the Company or any other Loan Party
pursuant to this Agreement or the other Loan Documents as received by the
Administrative Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
57
The Agents shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) no Agent shall be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) no
Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that such Agent is required to exercise upon
receipt of notice in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.02), and (c) except as expressly set forth in the Loan
Documents, no Agent shall have any duty to disclose, and no Agent shall be
liable for the failure to disclose, any information relating to the Company or
any of its Subsidiaries that is communicated to or obtained by the institution
serving as Agent or any of its Affiliates in any capacity. No Agent shall be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
11.02) or in the absence of its own gross negligence or wilful misconduct. No
Agent shall be deemed to have knowledge of any Default unless and until written
notice thereof is given to such Agent by a Borrower, and no Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly required to
be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for any
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by such Agent.
Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Agent.
58
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, any Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Company. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Company, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After the
Agent's resignation hereunder, the provisions of this Article and Section 11.03
shall continue in effect for the benefit of such retiring Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
Each Lender hereby acknowledges that each institution named on the
cover page of this Agreement as Co-Syndication Agent has no duties or
responsibilities hereunder other than, in the case of a Co-Syndication Agent
that is a Lender, in its capacity as a Lender.
ARTICLE IX
Collection Allocation Mechanism
Section 9.01. CAM Exchange. (a) On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as
provided in Article VII and (ii) the Lenders shall automatically and without
further act be deemed to have exchanged interests in the Specified Obligations
such that, in lieu of the interests of each Lender in the particular Specified
Obligations that it shall own as of such date and prior to the CAM Exchange,
such Lender shall own an interest equal to such Lender's CAM Percentage in all
the Specified Obligations. Each Lender, each person acquiring a participation
from any Lender as contemplated by Section 11.02, the Company and the European
Borrower hereby consents and agrees to the CAM Exchange. Each of the Company,
the European Borrower and the Lenders agrees from time to time to execute
59
and deliver to the Agents all such promissory notes and other instruments and
documents as the Administrative Agent shall reasonably request to evidence and
confirm the respective interests and obligations of the Lenders after giving
effect to the CAM Exchange, and each Lender agrees to surrender any promissory
notes originally received by it hereunder to the Administrative Agent against
delivery of any promissory notes so executed and delivered; provided that the
failure of the Company or the European Borrower to execute or deliver or of any
Lender to accept any such promissory note, instrument or document shall not
affect the validity or effectiveness of the CAM Exchange.
(b) As a result of the CAM Exchange, on and after the CAM Exchange
Date, (i) each payment received by an Agent pursuant to any Loan Document in
respect of the Specified Obligations shall be distributed to the Lenders pro
rata in accordance with their respective CAM Percentages (to be redetermined as
of each such date of payment or distribution to the extent required by paragraph
(c) below) and (ii) Section 2.17(e) shall not apply with respect to any Taxes
required to be withheld or deducted by a Borrower from or in respect of payments
hereunder to any Lender or Administrative Agent that exceed the Taxes such
Borrower would have been required to withhold or deduct from or in respect of
payments to such Lender or Agent had such CAM Exchange not occurred.
(c) In the event that, on or after the CAM Exchange Date, the
aggregate amount of the Specified Obligations shall change as a result of the
making of an LC Disbursement by the Issuing Bank that is not reimbursed by a
Borrower, then (i) each US Tranche Lender (determined without giving effect to
the CAM Exchange) shall, in accordance with Section 2.05(d), promptly purchase
from the applicable Issuing Bank a participation in such LC Disbursement in the
amount of such US Tranche Lender's applicable US Tranche Percentage of such LC
Disbursement (without giving effect to the CAM Exchange), (ii) the
Administrative Agent shall redetermine the CAM Percentages after giving effect
to such LC Disbursement and the purchase of participations therein by the
applicable US Tranche Lenders, and (iii) in the event distributions shall have
been made in accordance with clause (i) of paragraph (b) above, the Lenders
shall make such payments to one another as shall be necessary in order that the
amounts received by them shall be equal to the amounts they would have received
had each LC Disbursement been outstanding immediately prior to the CAM Exchange.
Each such redetermination shall be binding on each of the Borrowers and Lenders
and their successors and assigns and shall be conclusive absent manifest error.
ARTICLE X
Guarantee
In order to induce the Lenders to extend credit to the European
Borrower hereunder, the Company hereby irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the payment when
and as due of the Obligations of the European Borrower. The Company further
agrees that the due and punctual payment of
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such Obligations may be extended or renewed, in whole or in part, without notice
to or further assent from it, and that it will remain bound upon its guarantee
hereunder notwithstanding any such extension or renewal of any such Obligation.
The Company waives presentment to, demand of payment from and protest
to the European Borrower of any of the Obligations, and also waives notice of
acceptance of its obligations and notice of protest for nonpayment. The
obligations of the Company under this Article X shall not be affected by (a) the
failure of any Agent or Lender to assert any claim or demand or to enforce any
right or remedy against any Loan Party under the provisions of this Agreement,
any other Loan Document or otherwise; (b) any extension or renewal of any of the
Obligations; (c) any rescission, waiver, amendment or modification of, or
release from, any of the terms or provisions of this Agreement, or any other
Loan Document or agreement; (d) any default, failure or delay, wilful or
otherwise, in the performance of any of the Obligations; or (e) any other act,
circumstance, omission or delay to do any other act which may or might in any
manner or to any extent vary the risk of the Company or otherwise operate as a
discharge of or defense available to a guarantor as a matter of law or equity or
which would impair or eliminate any right of the Company to subrogation.
The Company further agrees that its agreement under this Article X
constitutes a guarantee of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Agent or Lender to
any balance of any deposit account or credit on the books of any Agent or Lender
in favor of any Borrower or any other Person.
The obligations of the Company under this Article X shall not be
subject to any reduction, limitation, impairment or termination for any reason,
and shall not be subject to any defense or set-off, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of any of the Obligations, any impossibility in the performance
of any of the Obligations or otherwise.
The Company further agrees that its obligations under this Article X
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Agent or Lender upon the bankruptcy or
reorganization of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Agent or Lender may have at law or in equity against the Company
by virtue hereof, upon the failure of the European Borrower to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Company hereby
promises to and will, upon receipt of written demand by any Agent or Lender,
forthwith pay, or cause to be paid, to the applicable Agent or Lender in cash an
amount equal to the unpaid principal amount of such Obligation then due,
together with accrued and unpaid interest thereon. The Company further agrees
that if payment in respect of any Obligation shall be due in a currency other
than US Dollars
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and/or at a place of payment other than New York and if, by reason of any Change
in Law, disruption of currency or foreign exchange markets, war or civil
disturbance or other event, payment of such Obligation in such currency or at
such place of payment shall be impossible or, in the reasonable judgment of any
Agent or Lender, not consistent with the protection of its rights or interests,
then, at the election of the Administrative Agent, the Company shall make
payment of such Obligation in US Dollars (based upon the applicable Exchange
Rate in effect on the date of payment) and/or in New York, and shall indemnify
each Agent and Lender against any losses or reasonable out-of-pocket expenses
that it shall sustain as a result of such alternative payment.
Upon payment by the Company of any sums as provided above, all rights
of the Company against the European Borrower arising as a result thereof by way
of right of subrogation or otherwise shall in all respects be subordinated and
junior in right of payment to the prior indefeasible payment in full in cash of
all the Obligations owed by the European Borrower to the Agents and the Lenders.
Nothing shall discharge or satisfy the liability of the Company
hereunder except the full performance and indefeasible payment in full in cash
of the Obligations.
ARTICLE XI
Miscellaneous
Section 11.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (508) 482-2249);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., 131
South Dearborn, 6th floor, Mailcode: IL1-0010, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention of ▇▇▇▇▇▇▇ ▇▇▇▇(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, Telephone No. (312)
▇▇▇-▇▇▇▇);
(c) if to the London Agent, to it at ▇.▇. ▇▇▇▇▇▇ Europe Limited, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention of ▇▇▇▇ Satchel (Telecopy
No. ▇▇-▇▇▇-▇▇▇▇▇▇▇, Telephone No. ▇▇-▇▇▇-▇▇▇▇▇▇▇); with a copy to the
Administrative Agent as provided in paragraph (b) above;
(d) if to the Issuing Bank, to it at the JPMorgan Chase Bank, N.A.,
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(e) if to any Lender, to it at its address (or telecopy number) set
forth in its
62
Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
Section 11.02. Waivers; Amendments. (a) No failure or delay by any
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not
be construed as a waiver of any Default, regardless of whether any Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) None of this Agreement, or any other Loan Document or any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Company and the
Required Lenders or by the Company and the Administrative Agent with the consent
of the Required Lenders or, in the case of any other Loan Document, pursuant to
an agreement or agreements in writing entered into by the Administrative Agent
and the Loan Party or Loan Parties that are parties thereto, in each case with
the consent of the Required Lenders; provided that no such agreement shall (i)
increase any Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan, LC Disbursement or
reimbursement obligation of any Borrower with respect to any Letter of Credit
("Reimbursement Obligation") or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender adversely
affected thereby, (iii) postpone the date of any scheduled payment of the
principal amount of any Loan, LC Disbursement or Reimbursement Obligation, or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender,
or alter the manner in which payments or prepayments of principal, interest or
other amounts hereunder shall be applied as among Lenders or Types of Loans
without the written consent of each Lender, (v) change any of the provisions of
this Section or the definition of "Required Lenders" or any other provision of
any Loan Document specifying the number or percentage of Lenders (or
63
Lenders of any Class) required to waive, amend or modify any rights thereunder
or make any determination or grant any consent thereunder, without the written
consent of each Lender (or each Lender of such Class, as the case may be), (vi)
release the Company or all or substantially all the Subsidiary Guarantors from,
or limit or condition, its or their obligations under Article X or the
Subsidiary Guarantee Agreement, or change the definition of Guarantee
Requirement without the written consent of each Lender, (vii) change any
provisions of Article IX or any provision of this Agreement that requires action
by each Lender without the written consent of each Lender, or (viii) change any
provisions of any Loan Document in a manner that by its terms adversely affects
the rights in respect of payments due to Lenders holding Loans of any Class
differently than those of Lenders holding Loans of any other Class without the
written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each adversely affected Class; provided further
that (A) no such agreement shall amend, modify or otherwise affect the rights or
duties of any Agent or the Issuing Bank hereunder or under any other Loan
Document without the prior written consent of such Agent or the Issuing Bank, as
the case may be, and (B) any waiver, amendment or modification of this Agreement
that by its terms affects the rights or duties under this Agreement of the
Lenders of one Class (but not the Lenders of any other Class) may be effected by
an agreement or agreements in writing entered into by the Company and requisite
percentage in interest of the affected Class of Lenders.
Section 11.03. Expenses; Indemnity; Damage Waiver. (a) The Company
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents and
their Affiliates, including the reasonable fees, charges and disbursements of
counsel for the Agents, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses
(including reasonable fees, charges and disbursements of any counsel) incurred
by any Agent, and, following and during the continuance of an Event of Default,
the Issuing Bank and/or any Lender, in connection with the enforcement or
protection of its rights in connection with any Loan Document, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
The Company shall indemnify each Agent, the Issuing Bank and each
Lender and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, liabilities and reasonable out-of-pocket costs or expenses,
including the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) any transaction or proposed transaction
(whether or not consummated) in which any proceeds of any borrowing hereunder
are applied or proposed to be applied, directly or indirectly,
64
by the Company or any Subsidiary, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), or (iii) the execution, delivery or performance by the Company and
the Subsidiaries of the Loan Documents, or any actions or omissions of the
Company or any Subsidiary in connection therewith (and, in the case of any such
loss, liability, cost or expense arising out of any litigation, investigation or
other proceeding, regardless of whether such proceeding shall have been
commenced by the Company, any Subsidiary of the Company or any other Person or
whether any Indemnitee shall be a party thereto); provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
liabilities, costs or expenses are determined by a court of competent
jurisdiction by final and unappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee or from the breach of such
Indemnitee of its agreements hereunder.
(b) To the extent that the Company fails to pay any amount required to
be paid by it to any Agent or the Issuing Bank or any of their Related Parties
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to such Agent or the Issuing Bank, as the case may be, such Lender's pro rata
share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed loss, liability, cost or expense, as the case may be, was incurred
by or asserted against such Agent or the Issuing Bank (or such Related Party) in
its capacity as such. For purposes hereof, a Lender's "pro rata share" shall be
determined based upon its share of the sum (without duplication) of the total
Exposures and unused Commitments at the time.
(c) To the extent permitted by applicable law, no Borrower shall
assert, and each Borrower hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(d) All amounts due under this Section shall be payable within 15
Business Days after receipt by the Company of a reasonably detailed invoice
therefor.
Section 11.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Issuing Bank
and the
65
Lenders (including any Affiliate of the Issuing Bank that issues any Letter of
Credit)) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitments and the Loans or other amounts at the time owing to it);
provided that (i) except in the case of an assignment to a Lender the
Administrative Agent (and in the case of an assignment of all or a portion of a
US Tranche Commitment or any Lender's obligations in respect of its LC Exposure,
the Issuing Bank) and, except (A) in the case of an assignment to a Lender, an
Affiliate of a Lender or a Related Fund of any Lender or (B) if an Event of
Default shall have occurred and be continuing, the Company must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) unless an event of default has occurred and is continuing,
except in the case of an assignment to a Lender, an Affiliate of a Lender or a
Related Fund of any Lender or an assignment of the entire remaining amount of
the assigning Lender's Commitments and outstanding Loans, the amount of the
Commitments and outstanding Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $10,000,000 unless each of the Company and the Administrative Agent
otherwise consent, (iii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and (iv) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 11.03). At the time of any assignment, the assignee shall
provide to the Company the documentation described in Section 2.17(e). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
each Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for
66
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Company, the Issuing Bank and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower or the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that (A) such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement and (B) such Participant shall be bound by the
provisions of Section 11.12 as if such Participant were a Lender; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in clause (i), (ii), (iii) or (vi) of the first proviso to Section
11.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 11.08 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Company's
prior written consent. A Participant shall not be entitled to the benefits of
Section 2.17 unless the Company is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to
comply with Section 2.17(e) as though it were a Lender. A Participant shall
receive all information delivered under or in connection with this Agreement
directly from the Lender from which it shall have purchased its participation,
and the Borrowers shall not have any obligation to furnish any such information
directly to any Participant.
67
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank or, in the case of a Lender that is an investment fund, to
the trustee under the indenture to which such fund is a party, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
Section 11.05. Survival. All covenants, agreements, representations
and warranties made by the Loan Parties herein or in any other Loan Document or
in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto or thereto and shall survive
the execution and delivery of this Agreement and any other Loan Document and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that any Agent, the Issuing Bank or any Lender may have had notice or knowledge
of any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17,
11.03 and 11.12 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any other
Loan Document or any provision hereof or thereof. Provided, however, that the
provisions of Section 11.12 shall expire two years after the later of (i) the
repayment of the Loans and the expiration or termination of the Letters of
Credit and the Commitments and (ii) the termination of this Agreement.
Section 11.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
68
Section 11.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 11.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final and in whatever currency denominated) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of any Borrower against any of and all the
obligations of such Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
Section 11.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against any Borrower or its
properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
69
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
Section 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
Section 11.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 11.12. Confidentiality. Each Agent, the Issuing Bank and each
Lender agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors, to Related Funds' directors and officers and to any direct
or indirect contractual counterparty in swap agreements (it being understood
that each Person to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) to the
extent required or advisable in the judgment of counsel in connection with any
suit, action or proceeding relating to the enforcement of rights of the Agents
or the Lenders against any of the Borrowers under this Agreement or any other
Loan Document, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Company or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section of which such Agent or Lender is aware or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Company other than as a
result of a breach of this Section of which such Agent or Lender is aware. For
the purposes of this Section, "Information" means all information received from
the Company relating to the Company or its
70
business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Company other than as a result of a breach of this
Section of which such Agent or Lender is aware. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Section 11.13. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of each Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction 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 Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 11.13 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
Section 11.14. Release of Subsidiary Guarantors. Notwithstanding any
contrary provision herein or in any other Loan Document, if the Company shall
request the release under the Subsidiary Guarantee Agreement of any Subsidiary
to be sold or otherwise disposed of (including through the sale or disposition
of any Subsidiary owning any such Subsidiary) to a Person other than the Company
or a Subsidiary in a transaction permitted under the terms of this Agreement and
shall deliver to the Administrative Agent a certificate to the effect that such
sale or other disposition will comply with the terms of this Agreement, the
Administrative Agent, if satisfied that the applicable certificate is correct,
shall, without the consent of any Lender, execute and deliver all such
instruments, releases or other agreements, and take all such further actions, as
shall be necessary to effectuate the release of such Subsidiary at the time of
or at any time after the completion of such sale or other disposition.
▇▇▇▇▇▇▇ ▇▇.▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. Each Lender hereby notifies the
Borrowers that pursuant to the requirements of the USA Patriot Act, it is
required to obtain, verify and record information that identifies the Borrowers,
which information
71
includes the name and address of each Borrower and other information that will
allow such Lender to identify each Borrower in accordance with the USA Patriot
Act.
[signatures follow]
SIGNATURE PAGE
TO THE WATERS CORPORATION
CREDIT AGREEMENT
DATED AS OF JANUARY 11, 2007
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
WATERS CORPORATION,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Finance and
Administration and Chief
Financial Officer
Present when the common seal of WATERS
TECHNOLOGIES IRELAND LIMITED was
affixed hereto:
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
73
JPMORGAN CHASE BANK, NA., individually and
as Administrative Agent, Issuing Bank and
Swingline Lender,
by /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED, as London Agent,
by /s/ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇. ▇▇▇▇▇▇
Title: Associate
ABN AMRO BANK N.V.,
by /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
by /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
LENDER: Allied Irish Banks Plc.
by: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Manager
by: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Manager
74
LENDER: Bank of America, N.A.
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
LENDER: The Governor and Company of the
Bank of Ireland
by: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Manager
by: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
LENDER: The Bank of New York
by: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
LENDER: Bank of Tokyo-Mitsubishi UFJ
Trust Company
by: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President
LENDER: Barclays Bank Plc.
by: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
75
LENDER: ▇▇▇▇▇ ▇▇▇ Commercial Bank, Ltd.,
New York Branch
by: /s/ ▇▇▇ ▇. ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇. ▇▇▇▇
Title: VP & General Manager
LENDER: Citizens Bank of Massachusetts
by: /s/ Li-▇▇▇ ▇▇▇▇
-------------------------------
Name: Li-▇▇▇ ▇▇▇▇
Title: Vice President
LENDER: Deutsche Bank AG New York Branch
by: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
by: /s/ ▇▇▇▇ ▇. ▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Vice President
LENDER: Fortis Capital Corp.
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
by: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
LENDER: HSBC Bank USA, National Association
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: SVP, Commercial
Executive
76
LENDER: KBC Bank N.V.
by: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Vice President
by: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
LENDER: Key Bank N.A.
by: /s/ ▇.▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: Senior Vice President
LENDER: Mizuho Corporate Bank, USA
by: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
LENDER: PNC Bank, National Association
by: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
LENDER: SunTrust Bank
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
LENDER: UBS Loan Finance LLC
by: /s/ ▇▇▇▇▇▇▇ ▇. Tawow
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Tawow
Title: Director Banking
Products Services, US
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Associate Director
Banking Products
Services, US