Exhibit 10.1
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$200,000,000
CREDIT AGREEMENT
dated as of July 28, 2004,
by and among
IKON OFFICE SOLUTIONS, INC.,
as US Borrower,
IKON OFFICE SOLUTIONS GROUP PLC,
as UK Borrower,
the Lenders referred to herein,
as Lenders,
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent,
PNC BANK NATIONAL ASSOCIATION,
as Syndication Agent,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agent,
THE ROYAL BANK OF SCOTLAND PLC,
as Documentation Agent,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
Collateral Agent,
Swingline Lender, Alternative Currency Lender and Issuing Lender
WACHOVIA CAPITAL MARKETS, LLC
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................1
SECTION 1.1 Definitions......................................................1
SECTION 1.2 Other Definitions and Provisions................................26
SECTION 1.3 Accounting Terms................................................27
SECTION 1.4 Rounding........................................................27
SECTION 1.5 References to Agreement and Laws................................27
SECTION 1.6 Times of Day....................................................27
ARTICLE II REVOLVING CREDIT FACILITY........................................27
SECTION 2.1 Revolving Credit Loans..........................................27
SECTION 2.2 Alternative Currency Loans......................................29
SECTION 2.3 Swingline Loans.................................................29
SECTION 2.4 Procedure for Advances of Revolving Credit Loans
and Swingline Loans.............................................31
SECTION 2.5 Repayment of Loans..............................................33
SECTION 2.6 Permanent Reduction of the Aggregate Commitment and
the Alternative Currency Commitment.............................35
SECTION 2.7 Termination of Credit Facility..................................37
SECTION 2.8 Nature of Obligations...........................................37
ARTICLE III LETTER OF CREDIT FACILITY........................................37
SECTION 3.1 L/C Commitment..................................................37
SECTION 3.2 Procedure for Issuance of Letters of Credit.....................38
SECTION 3.3 Commissions and Other Charges...................................38
SECTION 3.4 L/C Participations..............................................39
SECTION 3.5 Reimbursement Obligation of the US Borrower.....................40
SECTION 3.6 Obligations Absolute............................................40
SECTION 3.7 Effect of Application...........................................41
SECTION 3.8 Letter of Credit Amounts........................................41
ARTICLE IV GENERAL LOAN PROVISIONS..........................................41
SECTION 4.1 Interest........................................................41
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans........43
SECTION 4.3 Fees............................................................44
SECTION 4.4 Manner of Payment...............................................44
SECTION 4.6 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent..................46
SECTION 4.7 Redenomination of Alternative Currency Loans....................47
SECTION 4.8 Changed Circumstances...........................................47
SECTION 4.9 Indemnity.......................................................50
SECTION 4.10 Capital Requirements............................................50
SECTION 4.11 Taxes...........................................................51
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SECTION 4.12 Mitigation Obligations; Replacement of Lenders..................53
SECTION 4.13 Security........................................................54
SECTION 4.14 Evidence of Indebtedness........................................54
SECTION 4.15 Mandatory Cost Information......................................55
SECTION 4.16 US Borrower as Agent for UK Borrower............................55
SECTION 4.17 USA Patriot Act.................................................55
SECTION 4.18 Know Your Customer Checks.......................................55
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING......................56
SECTION 5.1 Closing.........................................................56
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit..........56
SECTION 5.3 Conditions to All Extensions of Credit..........................60
SECTION 5.4 Post-Closing Conditions.........................................60
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWERS..................62
SECTION 6.1 Representations and Warranties..................................62
SECTION 6.2 Survival of Representations and Warranties, Etc.................69
ARTICLE VII FINANCIAL INFORMATION AND NOTICES...............................70
SECTION 7.1 Financial Statements and Projections............................70
SECTION 7.3 Accountants' Certificate........................................71
SECTION 7.4 Other Reports...................................................71
SECTION 7.5 Notice of Litigation and Other Matters..........................71
SECTION 7.6 Accuracy of Information.........................................72
ARTICLE VIII AFFIRMATIVE COVENANTS..........................................72
SECTION 8.1 Preservation of Corporate Existence and Related Matters.........72
SECTION 8.2 Maintenance of Property.........................................73
SECTION 8.3 Insurance.......................................................73
SECTION 8.4 Accounting Methods and Financial Records........................73
SECTION 8.5 Payment and Performance of Obligations..........................73
SECTION 8.6 Compliance With Laws and Approvals..............................73
SECTION 8.7 Environmental Laws..............................................73
SECTION 8.8 Compliance with ERISA...........................................74
SECTION 8.10 Additional Subsidiaries.........................................74
SECTION 8.11 Use of Proceeds.................................................75
SECTION 8.12 Further Assurances..............................................76
ARTICLE IX FINANCIAL COVENANTS..............................................76
SECTION 9.1 Maximum Leverage Ratio..........................................76
SECTION 9.2 Maximum Senior Leverage Ratio...................................76
SECTION 9.3 Minimum Interest Coverage Ratio.................................76
SECTION 9.4 Maximum Capital Expenditures....................................77
SECTION 9.5 Asset Coverage Ratio............................................77
SECTION 9.6 Minimum Net Worth...............................................77
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ARTICLE X NEGATIVE COVENANTS................................................77
SECTION 10.1 Limitations on Indebtedness....................................77
SECTION 10.2 Limitations on Liens...........................................79
SECTION 10.3 Limitations on Loans, Advances, Investments and Acquisitions...80
SECTION 10.4 Limitations on Mergers and Liquidation.........................83
SECTION 10.5 Limitations on Sale of Assets..................................84
SECTION 10.6 Limitations on Dividends and Distributions.....................85
SECTION 10.7 Limitations on Exchange and Issuance of Capital Stock..........86
SECTION 10.8 Transactions with Affiliates...................................86
SECTION 10.9 Certain Accounting Changes; Organizational Documents...........86
SECTION 10.10 Amendments; Payments and Prepayments of Subordinated
Indebtedness...................................................87
SECTION 10.12 Nature of Business.............................................89
SECTION 10.13 Impairment of Security Interests...............................89
SECTION 10.14 Ratings Trigger Event..........................................89
SECTION 10.15 IKON Office Solutions Foundation, Inc..........................89
ARTICLE XI UNCONDITIONAL US BORROWER GUARANTY...............................89
SECTION 11.1 Guaranty of Obligations........................................89
SECTION 11.2 Nature of Guaranty.............................................90
SECTION 11.3 Demand by the Administrative Agent.............................91
SECTION 11.4 Waivers........................................................91
SECTION 11.5 Modification of Loan Documents etc.............................91
SECTION 11.6 Reinstatement..................................................92
SECTION 11.7 No Subrogation.................................................92
ARTICLE XIII DEFAULT AND REMEDIES...........................................93
SECTION 12.1 Events of Default..............................................93
SECTION 12.2 Remedies.......................................................96
SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc................96
SECTION 12.4 Crediting of Payments and Proceeds.............................97
SECTION 12.5 Administrative Agent May File Proofs of Claim..................97
SECTION 12.6 Judgment Currency..............................................98
ARTICLE XIII THE ADMINISTRATIVE AGENT.......................................99
SECTION 13.1 Appointment and Authority......................................99
SECTION 13.2 Rights as a Lender.............................................99
SECTION 13.3 Exculpatory Provisions.........................................99
SECTION 13.4 Reliance by the Administrative Agent..........................100
SECTION 13.5 Delegation of Duties..........................................101
SECTION 13.6 Resignation of Administrative Agent...........................101
SECTION 13.7 Non-Reliance on Administrative Agent and Other Lenders........102
SECTION 13.8 No Other Duties, etc..........................................102
SECTION 13.9 Collateral and Guaranty Matters...............................102
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ARTICLE XIV MISCELLANEOUS..................................................103
SECTION 14.1 Notices.......................................................103
SECTION 14.2 Expenses; Indemnity...........................................105
SECTION 14.3 Right of Set-off..............................................107
SECTION 14.4 Governing Law.................................................107
SECTION 14.5 Jurisdiction and Venue........................................108
SECTION 14.6 Waiver of Jury Trial..........................................108
SECTION 14.8 Injunctive Relief; Punitive Damages...........................109
SECTION 14.9 Accounting Matters............................................109
SECTION 14.10 Successors and Assigns; Participations........................109
SECTION 14.11 Amendments, Waivers and Consents..............................112
SECTION 14.12 Performance of Duties.........................................114
SECTION 14.14 Survival of Indemnities.......................................114
SECTION 14.15 Titles and Captions...........................................114
SECTION 14.16 Severability of Provisions....................................114
SECTION 14.17 Counterparts..................................................114
SECTION 14.18 Term of Agreement.............................................114
SECTION 14.19 Advice of Counsel.............................................115
SECTION 14.20 No Strict Construction........................................115
SECTION 14.21 Inconsistencies with Other Documents; Independent Effect
of Covenants..................................................115
SECTION 14.22 Integration...................................................115
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EXHIBITS AND SCHEDULES
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EXHIBITS
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Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swingline Note
Exhibit A-3 - Form of Alternative Currency Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of Guaranty Agreement
Exhibit I - Form of Collateral Agreement
SCHEDULES
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Schedule 1.1(a) - Lenders and Commitments
Schedule 1.1(b) - Mandatory Cost Formulae
Schedule 1.1(c) - Existing Letters of Credit
Schedule 5.4 - Lien Terminations and Amendments
Schedule 6.1(a) - Jurisdictions of Organization
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(o) - Additional Obligations
Schedule 6.1(t) - Litigation
Schedule 6.1(u) - Equal and Ratable Indebtedness
Schedule 10.1(c) - Existing Indebtedness and Guaranty
Obligations
Schedule 10.2 - Existing Liens
Schedule 10.3 - Existing Loans, Advances and Investments
Schedule 10.8 - Transactions with Affiliates
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CREDIT AGREEMENT, dated as of July 28, 2004, by and among IKON OFFICE
SOLUTIONS, INC., an Ohio corporation (the "US Borrower"), IKON OFFICE SOLUTIONS
GROUP PLC (Company number 2803484), a company organized under the laws of
England and Wales (the "UK Borrower"), the lenders who are or may become a party
to this Agreement, as Lenders, DEUTSCHE BANK SECURITIES INC., as Syndication
Agent, PNC BANK NATIONAL ASSOCIATION, as Syndication Agent, GENERAL ELECTRIC
CAPITAL CORPORATION, as Documentation Agent, THE ROYAL BANK OF SCOTLAND PLC, as
Documentation Agent and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as Administrative Agent for the Lenders and as Collateral Agent for
the Lenders.
Statement of Purpose
--------------------
The Borrowers have requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrowers on the terms and conditions of this
Agreement. The credit facilities extended hereunder shall replace the prior
credit facilities that were extended to the US Borrower and certain of its
Subsidiaries pursuant to that certain Credit Agreement dated May 24, 2002 by and
among the US Borrower, IKON Capital PLC, IOS Capital, LLC and IKON Capital,
Inc., as borrowers, the lenders party thereto, as lenders, ▇.▇. ▇▇▇▇▇▇ Bank
Canada, as Canadian administrative agent, and ▇▇ ▇▇▇▇▇▇ Chase Bank, as
administrative agent.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Administrative Agent" means Wachovia in its capacity as Administrative
Agent hereunder, and any successor thereto appointed pursuant to Section 13.6
(and, for the purposes of this Agreement, including, without limitation,
Articles XII, XIII and XIV, shall include Wachovia in its capacity as Collateral
Agent).
"Administrative Agent's Correspondent" means Wachovia Bank, National
Association, London Branch, or any other financial institution designated by the
Administrative Agent to act as its correspondent hereunder with respect to the
distribution and payment of Alternative Currency Loans.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
14.1(c).
"Administrative Questionnaire" means an administrative questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, any other Person (other
than the US Borrower or any Subsidiary thereof) which directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such first Person or any Subsidiary thereof. The term
"control" means the possession, directly or indirectly, of any other power to
direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or otherwise modified at
any time or from time to time pursuant to the terms hereof. On the Closing Date,
the Aggregate Commitment shall be Two Hundred Million Dollars ($200,000,000).
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Alternative Currency" means Pounds Sterling.
"Alternative Currency Amount" means with respect to each Loan made or
continued (or to be made or continued) in the Alternative Currency, the amount
of the Alternative Currency which is equivalent to the principal amount in
Dollars of such Loan at the most favorable spot exchange rate determined by the
Administrative Agent to be available to it for the purchase by the
Administrative Agent of the Alternative Currency with Dollars through its
principal foreign exchange trading office at approximately 11:00 a.m. two (2)
Business Days before such Loan is made or continued (or to be made or
continued). When used with respect to any other sum expressed in Dollars,
"Alternative Currency Amount" shall mean the amount of the Alternative Currency
which is equivalent to the amount so expressed in Dollars at the most favorable
spot exchange rate determined by the Administrative Agent to be available to it
for the purchase by the Administrative Agent of the Alternative Currency with
Dollars through its principal foreign exchange trading office at the relevant
time. With respect to any determination of the most favorable spot exchange
rate, if at the time of such determination no such spot exchange rate can
reasonably be determined, the Administrative Agent may use any reasonable method
as it deems applicable to determine such rate, any such determination to be
conclusive absent manifest error.
"Alternative Currency Commitment" means the lesser of (i) Twenty-Five
Million Dollars ($25,000,000) and (ii) the Aggregate Commitment, as such amount
may be reduced or modified at any time or from time to time pursuant to the
terms hereof.
"Alternative Currency Facility" means the alternative currency facility
established pursuant to Section 2.2.
"Alternative Currency Lender" means Wachovia, in its capacity as
alternative currency lender hereunder.
2
"Alternative Currency Loan" means any revolving credit loan denominated
in the Alternative Currency made by the Alternative Currency Lender to the UK
Borrower pursuant to Section 2.2, and all such Alternative Currency Loans
collectively as the context requires.
"Alternative Currency Note" means the Alternative Currency Note made by
the UK Borrower payable to the order of the Alternative Currency Lender,
substantially in the form of Exhibit A-3 hereto, evidencing the Alternative
Currency Loans, and any amendments, supplements and modifications thereto, any
substitutes therefor and any replacements, restatements, renewals or extensions
thereof, in whole or in part.
"Applicable Foreign Subsidiary Documents" shall have the meaning
assigned thereto in Section 6.1(x).
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"Applicable Margin" means the corresponding percentages per annum as
set forth below (provided that, with respect to a LIBOR Rate Loan made in the
Alternative Currency, the Applicable Margin shall include the Mandatory Cost, as
determined pursuant to the formula set forth on Schedule 1.1(b)):
------------ --------------------------------- -------------------- -------------------- --------------------
Pricing Leverage Ratio LIBOR Rate Loans Base Rate Loans Commitment Fee
Level
------------ --------------------------------- -------------------- -------------------- --------------------
1 Greater than or equal to 3.25 2.500% 1.500% 0.500%
to 1.00
------------ --------------------------------- -------------------- -------------------- --------------------
2 Greater than or equal to 2.25 1.750% 0.750% 0.500%
to 1.00, but less than 3.25 to
1.00
------------ --------------------------------- -------------------- -------------------- --------------------
3 Greater than or equal to 1.25 1.500% 0.500% 0.375%
to 1.00, but less than 2.25 to
1.00
------------ --------------------------------- -------------------- -------------------- --------------------
4 Less than 1.25 to 1.00 1.250% 0.250% 0.300%
------------ --------------------------------- -------------------- -------------------- --------------------
--------------------------------------------------------------------------------
The Applicable Margin shall be determined and adjusted quarterly on the date
(each a "Calculation Date") ten (10) Business Days after the date by which the
Borrowers are required to provide an Officer's Compliance Certificate pursuant
to Section 7.2 for the most recently ended fiscal quarter of the US Borrower;
provided, however, that (a) the Applicable Margin shall be based on Pricing
Level 2 until the first Calculation Date occurring after the fiscal quarter
ending September 30, 2004 and, thereafter the Pricing Level shall be determined
by
3
reference to the Leverage Ratio as of the last day of the most recently ended
fiscal quarter of the US Borrower preceding the applicable Calculation Date, and
(b) if the Borrowers fail to provide the Officer's Compliance Certificate as
required by Section 7.2 for the most recently ended fiscal quarter of the US
Borrower preceding the applicable Calculation Date, the Applicable Margin from
such Calculation Date shall be based on Pricing Level 1 until such time as an
appropriate Officer's Compliance Certificate is provided, at which time the
Pricing Level shall be determined by reference to the Leverage Ratio as of the
last day of the most recently ended fiscal quarter of the US Borrower preceding
such Calculation Date. The Applicable Margin shall be effective from one
Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Margin shall be applicable to all Extensions of Credit then existing
or subsequently made or issued.
"Application" means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Approved Fund" means any Person (other than a natural Person),
including, without limitation, any special purpose entity, that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business;
provided, that such Approved Fund must be administered by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Asset Coverage Ratio" means, as of any date of determination with
respect to the US Borrower and its Subsidiaries on a Consolidated basis, the
ratio of (a) the net book value of Domestic Accounts Receivable as of such date
to (b) Total Secured Indebtedness as of such date.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 14.10), and accepted by the Administrative Agent,
in substantially the form of Exhibit G or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared in accordance with GAAP, and (b) in
respect of any Synthetic Lease, the capitalized amount or principal amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared in accordance with GAAP if such lease were
accounted for as a Capital Lease.
"Audited Financial Statements" means the financial statements delivered
to the Administrative Agent pursuant to clause (A) of Section 5.2(e)(i).
"Available Commitment" means, as to any Lender at any time, an amount
equal to (a) such Lender's Commitment less (b) such Lender's Extensions of
Credit.
"Bankruptcy Event of Default" means any Event of Default pursuant to
Sections 12.1(i) or (j).
"Base Rate" means, at any time, the higher of (a) the Prime Rate and
(b) the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall
take effect simultaneously with the corresponding change or changes in the Prime
Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate plus the Applicable Margin as provided in Section 4.1(a).
4
"Borrowers" means, collectively, the US Borrower and the UK Borrower.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their domestic or international commercial banking business, as
applicable, and (b) with respect to all notices and determinations in connection
with, and payments of principal and interest on, any LIBOR Rate Loan, any day
(i) that is a Business Day described in clause (a) and that is also a day for
trading by and between banks in deposits for the applicable Permitted Currency
in the London interbank market and (ii) on which banks are open for the conduct
of their domestic and international banking business in the place where the
Administrative Agent or the Administrative Agent's Correspondent shall make
available Loans in such Permitted Currency.
"Calculation Date" shall have the meaning assigned thereto in the
definition of Applicable Margin.
"Capital Asset" means, with respect to the US Borrower and its
Subsidiaries, any asset that should be classified and accounted for as a capital
asset on a Consolidated balance sheet of the US Borrower and its Subsidiaries
prepared in accordance with GAAP.
"Capital Expenditures" means, with respect to the US Borrower and its
Subsidiaries for any period, the aggregate cost of all Capital Assets acquired
by the US Borrower and its Subsidiaries during such period, as determined in
accordance with GAAP.
"Capital Lease" means any lease of any property by the US Borrower or
any Subsidiary thereof, as lessee, that should be classified and accounted for
as a capital lease on a Consolidated balance sheet of the US Borrower and its
Subsidiaries prepared in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" shall have the meaning assigned thereto in Section
10.3(b).
"Change in Control" shall have the meaning assigned thereto in Section
12.1(h).
"Change in Law" means the occurrence, after the date of this Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
5
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 5.2 shall be satisfied or
waived in all respects in a manner acceptable to the Administrative Agent, in
its sole discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or modified from time to time.
"Collateral" means the collateral security for the Obligations pledged
or granted pursuant to the Security Documents.
"Collateral Agent" means Wachovia in its capacity as Collateral Agent,
security trustee or secured party, as applicable, under the Security Documents,
and any successor thereto appointed pursuant to Section 13.6.
"Collateral Agreement" means the collateral agreement of even date
executed by the US Borrower and the Guarantors in favor of the Collateral Agent,
for the benefit of itself and the other Secured Parties, substantially in the
form of Exhibit I, as amended, restated, supplemented or otherwise modified from
time to time.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans (including, without limitation, to participate in Alternative
Currency Loans and Swingline Loans) to and issue or participate in Letters of
Credit issued for the account of any Borrower hereunder, in an aggregate
principal or face amount at any time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule 1.1(a) hereto, as the same may be
reduced or modified at any time or from time to time pursuant to the terms
hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all of the Lenders.
"Consolidated" means, when used with reference to financial statements
or financial statement items of the US Borrower and its Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Corporate EBITDA" means, for any period, (a) EBITDA for such period
less (b) Finance EBITDA for such period.
"Credit Facility" means, collectively, the Revolving Credit Facility,
the Alternative Currency Facility, the Swingline Facility and the L/C Facility.
"Default" means any of the events specified in Section 12.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Credit Loans, participations in L/C Obligations,
participations in Alternative Currency Loans or participations in Swingline
Loans required to be funded by it hereunder within one Business Day of the date
required to be funded by it hereunder, (b) has otherwise failed to pay over to
the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within one
6
(1) Business Day of the date when due, unless such amount is the subject of a
good faith dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
"Disposition" means, with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Dollar Amount" means (a) with respect to each Loan made or continued
(or to be made or continued) in Dollars, the principal amount thereof and (b)
with respect to each Loan made or continued (or to be made or continued) in the
Alternative Currency, the amount of Dollars which is equivalent to the principal
amount of such Loan at the most favorable spot exchange rate determined by the
Administrative Agent to be available to it for the purchase by the
Administrative Agent of Dollars with the Alternative Currency through its
principal foreign exchange trading office at approximately 11:00 a.m. (the time
of the Administrative Agent's Correspondent) two (2) Business Days before such
Loan is made or continued (or to be made or continued). When used with respect
to any other sum expressed in the Alternative Currency, "Dollar Amount" shall
mean the amount of Dollars which is equivalent to the amount so expressed in the
Alternative Currency at the most favorable spot exchange rate determined by the
Administrative Agent to be available to it for the purchase by the
Administrative Agent of Dollars with the Alternative Currency through its
principal foreign exchange trading office at the relevant time. With respect to
any determination of the most favorable spot exchange rate, if at the time of
such determination no such spot exchange rate can reasonably be determined, the
Administrative Agent may use any reasonable method as it deems applicable to
determine such rate, any such determination to be conclusive absent manifest
error.
"Domestic Accounts Receivable" means, with respect to the US Borrower
and the Guarantors, all trade accounts receivable (excluding all lease
receivables) from account debtors located in the United States, as set forth on
the Consolidated balance sheet of the US Borrower and its Subsidiaries prepared
in accordance with GAAP.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
any political subdivision of the United States.
"EBITDA" means, for any period, the sum of the following determined on
a Consolidated basis, without duplication, for the US Borrower and its
Subsidiaries in accordance with GAAP: (a) Net Income for such period plus (b)
the sum of the following to the extent deducted in determining Net Income: (i)
income taxes for such period, (ii) Interest Expense for such period, (iii)
amortization, depreciation and other non-cash charges for such period, (iv) any
extraordinary or non-recurring non-cash expenses or losses for such period, (v)
cash expenses incurred during such period in an aggregate amount not to exceed
$12,125,000 in connection with the sale of
7
certain assets and liabilities of IOS Capital LLC under the GE Purchase
Agreements, (vi) cash expenses in connection with post-closing adjustments to be
recorded no later than September 30, 2004 with respect to the sale of certain
assets and liabilities of IOS Capital LLC and IKON Canada under the GE Purchase
Agreements and (vii) expenses incurred during such period in connection with the
extinguishment of Indebtedness less (c) any extraordinary or non-recurring
income or gains.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a Lender,
(c) an Approved Fund, and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, (ii) in the case of any assignment of
a Revolving Credit Commitment, the Alternative Currency Lender, the Swingline
Lender and the Issuing Lender, and (iii) unless a Default or Event of Default
has occurred and is continuing, the Borrowers (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrowers or any of the Affiliates or
Subsidiaries of the Borrowers.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the US
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
(6) years been maintained for the employees of the US Borrower or any current or
former ERISA Affiliate.
"English Security Documents" means security agreements, debentures,
pledge agreements, and other similar documents and agreements securing the
Obligations with Collateral located in England or Wales.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of business and
not in response to any third party action or request of any kind) or proceedings
relating in any way to any actual or alleged violation of or liability under any
Environmental Law or relating to any permit issued, or any approval given, under
any such Environmental Law, including, without limitation, any and all claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages, contribution, indemnification cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to human health or the environment.
"Environmental Laws" means any and all federal, foreign, state,
provincial and local laws, statutes, ordinances, rules, regulations, permits,
licenses, approvals, interpretations and orders of courts or Governmental
Authorities, relating to the protection of human health or the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
"Equal and Ratable Indebtedness" means Indebtedness of the US Borrower
or any Subsidiary thereof the governing documents for which prohibit the
creation of Liens on any
8
material portion of assets securing Indebtedness for borrowed money without such
Indebtedness being secured equally and ratably with such Indebtedness for
borrowed money.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with any Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day with respect to any
LIBOR Rate Loan denominated in Dollars, the percentage (expressed as a decimal
and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in
effect for such day as prescribed by the Federal Reserve Board (or any
successor) for determining the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves) in respect of
Eurocurrency liabilities or any similar category of liabilities for a member
bank of the Federal Reserve System in New York City.
"Event of Default" means any of the events specified in Section 12.1;
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation of any Borrower hereunder, (a) taxes imposed on
or measured by its net income (however denominated), and franchise taxes imposed
on it by the United States of America or the United Kingdom or by the
jurisdiction (or any political subdivision thereof) under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which such Lender is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrowers
under Section 4.12), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 4.11(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the applicable Borrower with
respect to such withholding tax pursuant to Section 4.11(a).
"Existing Letters of Credit" means all letters of credit identified on
Schedule 1.1(c).
"Extensions of Credit" means, as to any Lender at any time, (a) an
amount equal to the sum of (i) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding, (ii) such Lender's Commitment
Percentage of the L/C Obligations then outstanding, (iii) such Lender's
Commitment Percentage of the Alternative Currency Loans then outstanding and
(iv) such Lender's Commitment Percentage of the Swingline Loans then outstanding
or (b) the making of any Loan or participation in any Letter of Credit by such
Lender, as the context requires.
9
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. Rates for weekends or holidays shall be the same as the rate
for the most immediately preceding Business Day.
"Finance EBITDA" means, for any period, (a) Finance Income for such
period less (b) Finance Interest Expense for such period; provided that for the
fiscal quarters ended June 30, 2003, September 30, 2003, December 31, 2003 and
March 31, 2004, Finance EBITDA shall be deemed to be $48,052,000, $47,880,000,
$52,466,000 and $50,568,000, respectively.
"Finance Income" means, with respect to the US Borrower and its
Subsidiaries, for any period of determination, the finance income of the US
Borrower and its Subsidiaries for such period, determined on a Consolidated
basis in accordance with GAAP (and calculated in a manner consistent with the
calculation of finance income in the consolidated financial statements of the US
Borrower and its Subsidiaries contained in its Annual Report on Form 10-K for
the 2003 Fiscal Year).
"Finance Interest Expense" means, with respect to the Finance
Subsidiaries, for any period of determination, total cash Interest Expense for
such period with respect to all outstanding Indebtedness (including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under Hedging
Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP).
"Finance Subsidiary" means (i) each Subsidiary identified as a Finance
Subsidiary on Schedule 6.1(a) and (ii) each other Subsidiary created or acquired
after the Closing Date and identified on the most recently delivered Officer's
Compliance Certificate, in each case the primary business of which is the
leasing or other financing of products distributed by the US Borrower and its
Subsidiaries.
"Fiscal Year" means the fiscal year of US Borrower and its Subsidiaries
ending on September 30.
"Foreign Lender" means, with respect to any Borrower, any Lender that
is organized under the laws of a jurisdiction other than that in which such
Borrower is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
10
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for US Borrower and its Subsidiaries throughout the period indicated and
(subject to Section 14.9) consistent with the prior financial practice of US
Borrower and its Subsidiaries.
"GE Purchase Agreements" means (a) the Asset Purchase Agreement dated
December 10, 2003 by and among the US Borrower, General Electric Capital
Corporation and IOS Capital, LLC (as previously amended by that certain First
Amendment to the Asset Purchase Agreement dated March 31, 2004 by and among
General Electric Capital Corporation and the US Borrower in its own capacity and
as successor by merger to IOS Capital LLC) and (b) the Asset Purchase Agreement
dated March 31, 2004 by and among IKON Canada and ▇▇▇▇▇▇ Financial Canada, in
each case as such documents may be amended, restated, supplemented or otherwise
modified in any manner which could not reasonably be expected to materially
adversely affect the rights or interests of the Administrative Agent and the
Lenders.
"GE Program Agreements" means (a) the Program Agreement dated as of
March 31, 2004 by and among General Electric Capital Corporation, GE Capital
Information Technology Solutions, Inc. and the US Borrower and (b) the Canadian
Rider dated as of June 30, 2004 by and among GE VFS Canada Limited Partnership
and IKON Canada, in each case as such documents may be amended, restated,
supplemented or otherwise modified in any manner which could not reasonably be
expected to materially adversely affect the rights or interests of the
Administrative Agent and the Lenders
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Guarantors" means each Domestic Subsidiary of the US Borrower in
existence on the Closing Date (other than a Subsidiary SPC) or which becomes a
party to a Guaranty Agreement pursuant to Section 8.10.
"Guaranty Agreement" means the unconditional guaranty agreement of even
date executed by the Guarantors in favor of the Administrative Agent, for the
ratable benefit of itself and the Lenders, substantially in the form of Exhibit
H, as amended, restated, supplemented or otherwise modified from time to time.
"Guaranty Obligation" means, with respect to US Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such
11
Person has directly or indirectly guaranteed any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of any
such Person (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement condition or otherwise) or (b) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, that the term Guaranty
Obligation shall not include
(i) endorsements for collection or deposit in the ordinary course of
business;
or
(ii) any indemnification rights, indemnification obligations,
reimbursement rights or reimbursement obligations of the US
Borrower and its Subsidiaries (other than those set forth in
subsection (g) of Section 10.1) under (A) the GE Program
Agreements, (B) the GE Purchase Agreements or (C) other similar
program and purchase agreements (1) which are executed in
connection with leasing or financing arrangements by third
parties of products distributed by the US Borrower and its
Subsidiaries and (2) which contain terms and provisions
(including, without limitation, indemnification obligations)
which are no broader in scope and obligation than the terms and
provisions contained in the GE Program Agreements and GE
Purchase Agreements, unless in each case the indemnification
obligations referred to in this clause (ii) would be accounted
for as indebtedness in accordance with GAAP or reflected on the
Consolidated balance sheet of the US Borrower and its
Subsidiaries.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release of
which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance or a
trespass which pose a health or safety hazard to Persons or neighboring
properties, (f) which consist of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to any Interest
Rate Contract, forward rate agreement, commodity swap, forward foreign exchange
agreement, currency swap agreement, cross-currency rate swap agreement, currency
option agreement or other agreement or arrangement designed to alter the risks
of any Person arising from fluctuations in interest
12
rates, currency values or commodity prices, all as amended, restated,
supplemented or otherwise modified from time to time.
"Hedging Obligations" means all existing or future payment and other
obligations owing by any Borrower or any Guarantor under any Hedging Agreement
(which such Hedging Agreement is permitted hereunder) with any Person that is a
Lender or an Affiliate of a Lender (or if such Person, or the Lender with whom
such Person is affiliated, ceases to be a Lender, then any Hedging Agreement
with that Person entered into prior to the date the applicable party ceased to
be a Lender).
"IKON Canada" means IKON Office Solutions, Inc., an Ontario
corporation.
"IKON Guaranteed Obligations" shall have the meaning set forth in
Section 11.1.
"Indebtedness" means, with respect to any Person at any date and
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(a) all liabilities, obligations and indebtedness for borrowed
money including, but not limited to, obligations evidenced by bonds,
debentures, notes or other similar instruments of any such Person;
(b) all obligations to pay the deferred purchase price of
property or services of any such Person (including, without limitation,
all obligations under non-competition, earn-out or similar agreements),
except trade payables arising in the ordinary course of business which
are (i) not more than ninety (90) days past due or (ii) being contested
in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP;
(c) the Attributable Indebtedness of such Person with respect
to such Person's obligations in respect of Capital Leases and Synthetic
Leases (regardless of whether accounted for as indebtedness under
GAAP);
(d) all Indebtedness of any other Person secured by a Lien on
any asset owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse;
(e) all Guaranty Obligations of any such Person;
(f) all obligations, contingent or otherwise, of any such
Person relative to the face amount of letters of credit, whether or not
drawn, including, without limitation, any Reimbursement Obligation, and
banker's acceptances issued for the account of any such Person;
13
(g) all obligations of any such Person to redeem, repurchase,
exchange, defease or otherwise make payments in respect of Capital
Stock of such Person;
(h) all net obligations incurred by any such Person pursuant
to Hedging Agreements; and
(i) the outstanding attributed principal amount under any
asset securitization program (including any Permitted Asset
Securitization).
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Hedging Agreement on any date shall be deemed to be the Termination Value
thereof as of such date.
"Indemnified Taxes" means Taxes and Other Taxes other than Excluded
Taxes.
"Insurance and Condemnation Proceeds" has the meaning assigned thereto
in Section 2.6(b)(iii).
"Interest Coverage Ratio" means, for any date of determination, the
ratio of (a) EBITDA for the period of twelve (12) consecutive calendar months
ending on or immediately prior to such date to (b) Interest Expense for the
period of twelve (12) consecutive calendar months ending on or immediately prior
to such date; provided, that notwithstanding anything contained herein to the
contrary, for purposes of calculating the Interest Coverage Ratio as of the
fiscal quarters ending on June 30, 2004, September 30, 2004 and December 31,
2004, EBITDA and Interest Expense shall be calculated as follows:
------------------------------------------------ -------------------------------------------------------------------
For the Fiscal Quarter Ending EBITDA and Interest Expense for such Period
------------------------------------------------ -------------------------------------------------------------------
June 30, 2004 EBITDA and Interest Expense, respectively, for such fiscal
quarter times four (4)
------------------------------------------------ -------------------------------------------------------------------
September 30, 2004 EBITDA and Interest Expense, respectively, for the prior two (2)
fiscal quarters times two (2)
------------------------------------------------ -------------------------------------------------------------------
December 31, 2004 EBITDA and Interest Expense, respectively, for the prior three
(3) fiscal quarters times four-thirds (4/3)
------------------------------------------------ -------------------------------------------------------------------
"Interest Expense" means, with respect to US Borrower and its
Subsidiaries for any period, the gross interest expense (including, without
limitation, Finance Interest Expense, interest expense attributable to Capital
Leases and all net payment obligations pursuant to Hedging Agreements) of the US
Borrower and its Subsidiaries, all determined for such period on a Consolidated
basis, without duplication, in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
14
"Interest Rate Contract" means any interest rate swap agreement,
interest rate cap agreement, interest rate floor agreement, interest rate collar
agreement, interest rate option or any other agreement regarding the hedging of
interest rate risk exposure executed in connection with hedging the interest
rate exposure of any Person and any confirming letter executed pursuant to such
agreement, all as amended, restated, supplemented or otherwise modified from
time to time.
"ISP 98" means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"Issuing Lender" means Wachovia, in its capacity as issuer of any
Letter of Credit, or any successor thereto.
"June 2008 Notes" means the senior notes of the US Borrower issued
pursuant to that certain Indenture dated as of June 30, 1995 (as supplemented by
the First Supplemental Indenture dated as of June 4, 1997, the Second
Supplemental Indenture dated as of June 12, 2001, the Third Supplemental
Indenture dated as of March 15, 2002, the Fourth Supplemental Indenture dated as
of June 16, 2003 and the Fifth Supplemental Indenture dated as of March 31,
2004) and due June, 2008.
"L/C Commitment" means the lesser of (a) Fifty Million Dollars
($50,000,000) and (b) the Aggregate Commitment.
"L/C Facility" means the letter of credit facility established pursuant
to Article III.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
other than the Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender
(including, without limitation, the Issuing Lender, the Alternative Currency
Lender and the Swingline Lender unless the context otherwise requires) set forth
on the signature pages hereto and each Person that hereafter becomes a party to
this Agreement as a Lender pursuant to Section 14.10.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Extensions of
Credit.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1 and shall include, without limitation, the Existing Letters of Credit.
"Leverage Ratio" means, for any date of determination, the ratio of (a)
Net Corporate Indebtedness on such date to (b) Corporate EBITDA for the period
of twelve (12) consecutive calendar months ending on or immediately prior to
such date.
15
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in the applicable Permitted Currency for a period equal to
the applicable Interest Period which appears on the Telerate Page 3750, or, if
such rate does not appear on Telerate Page 3750, the applicable Reuters Screen
Page, as determined by the Administrative Agent in its sole discretion, at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period (rounded upward, if necessary, to the
nearest 1/100th of 1%). If, for any reason, such rate does not appear on
Telerate Page 3750, or the applicable Reuters Screen Page, then "LIBOR" shall be
determined by the Administrative Agent to be the arithmetic average of the rate
per annum at which deposits in the Permitted Currency in which the applicable
Loan is denominated would be offered by first class banks in the London
interbank market to the Administrative Agent (or the Administrative Agent's
Correspondent) approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of the applicable Interest Period for a period equal to
such Interest Period. Each calculation by the Administrative Agent of LIBOR
shall be conclusive and binding for all purposes, absent manifest error.
"LIBOR Rate" means
(i) with respect to any LIBOR Rate Loan denominated in Dollars, a rate
per annum (rounded upwards, if necessary, to the next higher 1/100th of 1%)
determined by the Administrative Agent pursuant to the following formula:
LIBOR Rate = LIBOR
------------------------------------
1.00-Eurodollar Reserve Percentage
and
(ii) with respect to any LIBOR Rate Loan denominated in any Alternative
Currency, a rate per annum (rounded upwards, if necessary, to the next higher
1/100th of 1%) equal to LIBOR.
Each calculation by the Administrative Agent of the LIBOR Rate shall be
conclusive and binding for all purposes, absent manifest error.
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate plus the Applicable Margin as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, leasehold
mortgage, lien, pledge, charge, security interest, hypothecation or encumbrance
of any kind in respect of such asset. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset which it has acquired
or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, Capital Lease or other title retention agreement relating to
such asset.
"Liquidity Amount" means, as of any date of determination, the sum of
(a) the total amount of unrestricted cash on hand of the US Borrower and its
Subsidiaries as of such date plus
16
(b) the total amount of unrestricted Cash Equivalents of the US Borrower and its
Subsidiaries as of such date plus (c) the aggregate Available Commitments of all
the Lenders less (d) $100,000,000; provided that the amounts set forth in items
(a) and (b) above shall be determined in good faith by the US Borrower and
certified as accurate by a Responsible Officer of the US Borrower.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Applications, the Guaranty Agreement, the Security Documents, and any other
document, instrument, certificate and agreement executed and delivered by each
Borrower or any Subsidiary thereof in connection with this Agreement or
otherwise referred to herein or contemplated hereby (excluding any Hedging
Agreement), all as may be amended, restated, supplemented or otherwise modified
from time to time.
"Loans" means the collective reference to the Revolving Credit Loans,
the Alternative Currency Loans and the Swingline Loans and "Loan" means any of
such Loans.
"Mandatory Cost" means an addition to the interest rate on any
Revolving Credit Loan or any Alternative Currency Loan made by any Lender to
compensate such Lender for the cost imputed to such Lender resulting from the
imposition from time to time under or pursuant to the Bank of England Act 1998
and/or by the Bank of England and/or the Financial Services Authority (or other
Governmental Authorities of the United Kingdom) of a requirement to place
non-interest bearing cash ratio deposits or special deposits (whether interest
bearing or not) with the Bank of England and/or pay fees to the Financial
Services Authority (or, in either case, any other authority which replaces all
or any of its functions) calculated by reference to liabilities used to fund the
Revolving Credit Loans and the Alternative Currency Loans, expressed as a rate
per annum and determined pursuant to the formula set forth on Schedule 1.1(b)
hereto.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the business, assets, liabilities (actual or
contingent), operations or condition (financial or otherwise) of the US Borrower
and its Subsidiaries taken as a whole; (b) a material impairment of the ability
of the US Borrower and its Subsidiaries taken as a whole to perform their
obligations under any Loan Document; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against the US Borrower or
any Subsidiary thereof of any Loan Document to which it is a party.
"Material Contract" means (a) any contract or other agreement, written
or oral, of the US Borrower or any Subsidiary thereof involving monetary
liability of or to any such Person in an amount in excess of $25,000,000 per
annum, or (b) any other contract or agreement, written or oral, of the US
Borrower or any Subsidiary thereof the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
"May 2007 Notes" means the convertible senior subordinated notes of the
US Borrower issued pursuant to that certain Indenture dated May 13, 2002 (as
amended, restated, supplemented or modified) and due May, 2007.
17
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the US Borrower or any ERISA Affiliate is making,
or is accruing an obligation to make, or has accrued an obligation to make,
contributions within the preceding six (6) years.
"Net Cash Proceeds" means, as applicable, (a) with respect to any sale
or other disposition of assets, the gross cash proceeds received by the US
Borrower or any Subsidiary thereof from such sale less the sum of (i) all income
taxes and other taxes assessed by a Governmental Authority or otherwise payable
or reasonably anticipated by the US Borrower or any Subsidiary thereof to be
payable as a result of such sale or other disposition and any fees and expenses
incurred in connection therewith and (ii) the principal amount of, premium, if
any, and interest on any Indebtedness secured by a Lien on the asset (or a
portion thereof) sold, which Indebtedness is required to be repaid in connection
with such sale, (b) with respect to any issuance of Indebtedness, the gross cash
proceeds received by the US Borrower or any Subsidiary thereof from such
issuance less all legal, underwriting and other fees and expenses incurred in
connection therewith and (c) with respect to any payment under an insurance
policy or in connection with a condemnation proceeding, the amount of cash
proceeds received by the US Borrower or any Subsidiary thereof from an insurance
company or Governmental Authority, as applicable, net of all expenses of
collection.
"Net Corporate Indebtedness" means, as of any date of determination
with respect to the US Borrower and its Subsidiaries on a Consolidated basis
without duplication, (a) all Indebtedness of the US Borrower and its
Subsidiaries less (b) the aggregate principal amount of all Indebtedness of the
Finance Subsidiaries less (c) the aggregate amount of unrestricted cash of the
US Borrower and its Subsidiaries in excess of $100,000,000 as of the date of
determination less (d) Guaranty Obligations of the US Borrower or its
Subsidiaries less (e) all net obligations incurred by the US Borrower or its
Subsidiaries pursuant to Hedging Agreements less (f) the outstanding attributed
principal amount under any Permitted Lease Receivable Securitization so long as
such securitization is non-recourse to the US Borrower or any Subsidiary and (g)
an aggregate face amount of up to $50,000,000 of obligations, contingent or
otherwise, of US Borrower or its Subsidiaries relative to the face amount of
letters of credit, whether or not drawn, including, without limitation, any
Reimbursement Obligation, and banker's acceptances issued for the account of the
US Borrower and its Subsidiaries, in each case as set forth on the Consolidated
balance sheet of the US Borrower and its Subsidiaries prepared in accordance
with GAAP.
"Net Senior Corporate Indebtedness" means, as of any date of
determination with respect to the US Borrower and its Subsidiaries on a
Consolidated basis without duplication, (a) Net Corporate Indebtedness less (b)
all Subordinated Indebtedness (other than Subordinated Indebtedness of the
Finance Subsidiaries).
"Net Income" means, with respect to the US Borrower and its
Subsidiaries, for any period of determination, the net income (or loss) of the
US Borrower and its Subsidiaries for such period, determined on a Consolidated
basis in accordance with GAAP; provided that there shall be excluded from Net
Income (a) the net income (or loss) of any Person (other than a Subsidiary which
shall be subject to clause (b) below), in which the US Borrower or any
Subsidiary thereof has a joint interest with a third party, except to the extent
such net income is actually paid to the
18
US Borrower or any Subsidiary thereof by dividend or other distribution during
such period and (b) the net income (if positive) of any Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such
Subsidiary to the US Borrower or any Subsidiary thereof of such net income is
not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute rule or governmental
regulation applicable to such Subsidiary.
"Net Worth" means, with respect to the US Borrower and its
Subsidiaries, on any date of determination, the total shareholders' equity
(including capital stock, additional paid-in capital and retained earnings after
deducting the treasury stock) of the Borrower and its Subsidiaries as set forth
on a Consolidated balance sheet of the US Borrower and its Subsidiaries prepared
in accordance with GAAP (excluding on a cumulative basis (a) any adjustments for
foreign currency translation and (b) any adjustments resulting from the
application of SFAS 133).
"Notes" means the collective reference to the Revolving Credit Notes,
the Alternative Currency Note and the Swingline Note and "Note" means any of
such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.4(b).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.4(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.5(d).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) all Hedging Obligations and (d) all other fees and
commissions (including attorneys' fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by US Borrower or any Subsidiary thereof to the Lenders or the Administrative
Agent, in each case under or in respect of this Agreement, any Note, any Letter
of Credit or any of the other Loan Documents of every kind, nature and
description, direct or indirect, absolute or contingent, due or to become due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"Operating Lease" means, as to any Person as determined in accordance
with GAAP, any lease of property (whether real, personal or mixed) by such
Person as lessee which is not a Capital Lease.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made under this
19
Agreement or under any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan
Document.
"Payment Event of Default" means any Event of Default pursuant to
Sections 12.1(a) or (b).
"Participant" has the meaning assigned to such term in clause (d) of
Section 14.10.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for the employees of any
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
(6) years been maintained for the employees of any Borrower or any ERISA
Affiliate.
"Permitted Acquisition" means any acquisition permitted pursuant to
Section 10.3(c).
"Permitted Acquisition Consideration" means the aggregate amount of the
purchase price (including, but not limited to, any assumed debt, earn-outs
(valued at the maximum amount payable thereunder), deferred payments, or Capital
Stock of the US Borrower, net of the applicable acquired company's cash
(including Cash Equivalents) balance as shown on its most recent financial
statements delivered in connection with the applicable Permitted Acquisition) to
be paid on a singular basis in connection with any applicable Permitted
Acquisition as set forth in the applicable acquisition documents executed by the
US Borrower or any of its Subsidiaries in order to consummate the applicable
Permitted Acquisition.
"Permitted Asset Securitization" means each Permitted Lease Receivable
Securitization and each Permitted Trade Receivable Securitization.
"Permitted Currency" means Dollars or the Alternative Currency, or each
such currency, as the context requires.
"Permitted Lease Receivable Securitization" means, with respect to the
US Borrower and its Subsidiaries, any pledge, sale, transfer, contribution,
conveyance or other disposition of accounts, chattel paper or related rights
(each as defined in the UCC) and associated collateral, lockbox and other
collection accounts, records and/or proceeds relating to lease receivables of
the Finance Subsidiaries, directly or indirectly through a Subsidiary SPC, which
such sale, transfer, contribution, conveyance or other disposition is funded by
the recipient of such assets in whole or in part by borrowings or the issuance
of instruments or securities that are paid principally from the cash derived
from such assets or interests in such assets; provided that the aggregate amount
of gross proceeds available to the US Borrower or any Subsidiary in connection
with all such transactions shall not at any time exceed $150,000,000.
"Permitted Trade Receivable Securitization" means, with respect to the
US Borrower and its Subsidiaries, any pledge, sale, transfer, contribution,
conveyance or other disposition of accounts,
20
chattel paper or related rights (each as defined in the UCC) and associated
collateral, lockbox and other collection accounts, records and/or proceeds
relating to trade receivables of the US Borrower and its Subsidiaries, directly
or indirectly through a Subsidiary SPC, which such sale, transfer, contribution,
conveyance or other disposition is funded by the recipient of such assets in
whole or in part by borrowings or the issuance of instruments or securities that
are paid principally from the cash derived from such assets or interests in such
assets; provided that the aggregate amount of gross proceeds available to the US
Borrower or any Subsidiary in connection with all such transactions shall not at
any time exceed $100,000,000.
"Permitted Liens" means the Liens permitted pursuant to Section 10.2.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Pounds Sterling" and "(pound)" means, at any time of determination,
the then official currency of the United Kingdom of Great Britain and Northern
Ireland.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by Wachovia as its prime rate. Each change
in the Prime Rate shall be effective as of the opening of business on the day
such change in such prime rate occurs. The parties hereto acknowledge that the
rate announced publicly by Wachovia as its prime rate is an index or base rate
and shall not necessarily be its lowest or best rate charged to its customers or
other banks.
"Ratings Trigger Event" means, with respect to any debt instrument,
asset securitization, derivative transaction or other financial arrangement to
which the US Borrower or any Subsidiary thereof is a party, any term or
provision providing that the obligations thereunder shall become due prior to
its stated maturity as a consequence of a downgrade in any one or more of the
credit ratings of the US Borrower or any Subsidiary thereof; provided that any
Turbo Provision of any Permitted Asset Securitization shall not constitute a
Ratings Trigger Event.
"Register" shall have the meaning assigned thereto in Section 14.10(c).
"Reimbursement Obligation" means the obligation of the Borrowers to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the directors, officers, employees, agents and advisors of such
Person and of such Person's Affiliates.
"Rental Pool Capital Expenditures" means, with respect to the US
Borrower and its Subsidiaries for any period, all expenditures of such Persons
which are made in connection with the acquisition, replacement or repair of any
equipment that will be revenue producing and rented or leased to customers of
such Persons.
21
"Required Lenders" means, at any date, any combination of Lenders whose
Commitment Percentages aggregate more than fifty percent (50%) of the Aggregate
Commitment or, if the Credit Facility has been terminated pursuant to Section
12.2, any combination of Lenders holding amore than fifty percent (50%) of the
aggregate Extensions of Credit (with the aggregate amount of each Lender's risk
participation and funded participation in Alternative Currency Loans, Swingline
Loans and L/C Obligations being deemed "held" by such Lender for the purposes of
this definition).
"Responsible Officer" means any of the following: the vice
president-controller, vice president-treasurer, chief executive officer or chief
financial officer of US Borrower or any Subsidiary thereof, as applicable, or
any other officer of such Person reasonably acceptable to the Administrative
Agent.
"Restricted Indebtedness" means any Indebtedness for borrowed money of
the US Borrower or any Subsidiary thereof other than such Indebtedness of the US
Borrower to any Subsidiary and of any Subsidiary to the US Borrower or any other
Subsidiary.
"Revolving Credit Facility" means the revolving credit, alternative
currency and swingline facilities established pursuant to Article II.
"Revolving Credit Loans" means any revolving credit loan denominated in
Dollars made to the US Borrower pursuant to Section 2.1, and all such revolving
credit loans collectively as the context requires.
"Revolving Credit Maturity Date" means the earliest to occur of:
(a) March 1, 2008; provided, however, that such date shall be
accelerated to:
(i) November 15, 2006 unless (A) the US Borrower demonstrates,
to the reasonable satisfaction of the Administrative Agent, that the
Liquidity Amount exceeds the outstanding principal amount of the May
2007 Notes as of each of the last ten (10) consecutive Business Days of
October 2006 or (B) the May 2007 Notes have been repurchased or
converted into common stock of the US Borrower, in each case in
accordance with the terms thereof, prior to October 31, 2006;
(ii) if the Revolving Credit Maturity Date is not accelerated
pursuant to the preceding clause (i), January 15, 2007 unless (A) the US
Borrower demonstrates, to the reasonable satisfaction of the
Administrative Agent, that the Liquidity Amount exceeds the outstanding
principal amount of the May 2007 Notes as of each of the last ten
consecutive Business Days of December 2006 or (B) the May 2007 Notes
have been repurchased or converted into common stock of the US Borrower,
in each case in accordance with the terms thereof, prior to December 31,
2006; or
(iii) if the Revolving Credit Maturity Date is not accelerated
pursuant to the preceding clauses (i) or (ii), April 15, 2007 unless (A)
the US Borrower demonstrates, to the reasonable satisfaction of the
Administrative Agent, that the Liquidity Amount exceeds the
22
outstanding principal amount of the May 2007 Notes as of each of the
last ten consecutive Business Days of March 2007 or (B) the May 2007
Notes have been repurchased or converted into common stock of the US
Borrower, in each case in accordance with the terms thereof, prior to
March 31, 2007;
(b) the date of termination in full of the Commitments by the Borrowers
pursuant to Section 2.6(a); or
(c) the date of termination by the Administrative Agent on behalf of
the Lenders pursuant to Section 12.2(a).
"Revolving Credit Note" means a promissory note made by the US Borrower
in favor of a Lender evidencing Revolving Credit Loans made by such Lender,
substantially in the form of Exhibit A-1 hereto, and any amendments, supplements
and modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extensions thereof, in whole or in part; "Revolving
Credit Note" means any of such Revolving Credit Notes.
"Secured Parties" shall have the meaning assigned thereto in the
Collateral Agreement.
"Security Documents" means the collective reference to the Guaranty
Agreement, the Collateral Agreement, the English Security Documents and each
other agreement or writing pursuant to which the Borrowers or any Subsidiary
thereof purports to pledge or grant a security interest in any property or
assets securing the Obligations or any such Person purports to guaranty the
payment and/or performance of the Obligations, in each case, as amended,
restated, supplemented or otherwise modified from time to time.
"Senior Leverage Ratio" means, for any date of determination, the ratio
of (a) Net Senior Corporate Indebtedness on such date to (b) Corporate EBITDA
for the period of twelve (12) consecutive calendar months ending on or
immediately prior to such date.
"Solvent" means, (a) as to the US Borrower and its Subsidiaries (other
than the UK Borrower and any Subsidiary thereof organized under the laws of
England and Wales, Scotland or Northern Ireland) on a particular date, that any
such Person (i) has capital sufficient to carry on its business and transactions
and all business and transactions in which it is about to engage and is able to
pay its debts as they mature, (i) owns property having a value, both at fair
valuation and at present fair saleable value, greater than the amount required
to pay its probable liabilities (including contingencies), and (iii) does not
believe that it will incur debts or liabilities beyond its ability to pay such
debts or liabilities as they mature; and (b) as to the UK Borrower and each
Subsidiary thereof organized under the laws of England and Wales, on a
particular date, that such Person is able to pay its debts within the meaning of
Section 123 of the Insolvency ▇▇▇ ▇▇▇▇.
"Subordinated Indebtedness" means the collective reference to any
Indebtedness of the US Borrower or any Subsidiary subordinated in right and time
of payment to the Obligations and containing such other terms and conditions, in
each case as are reasonably satisfactory to the Administrative Agent.
23
"Subsidiary" means, as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding Capital Stock having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership, limited liability company or other entity is at the time owned by
or the management is otherwise controlled by such Person (irrespective of
whether, at the time, Capital Stock of any other class or classes of such
corporation, partnership, limited liability company or other entity shall have
or might have voting power by reason of the happening of any contingency).
Unless otherwise qualified references to "Subsidiary" or "Subsidiaries" herein
shall refer to those of the US Borrower.
"Subsidiary SPC" means each Finance Subsidiary and each other
Subsidiary organized as a special purpose entity solely (i) to acquire accounts,
chattel paper or related rights from the US Borrower or its Subsidiaries
pursuant to one or more Permitted Asset Securitizations, and (ii) to sell,
convey, pledge or otherwise transfer such assets, any interests therein and any
assets related thereto, to one or more trusts, partnerships, corporations or
other entities under such Permitted Asset Securitizations.
"Swingline Commitment" means the lesser of (a) Fifteen Million Dollars
($15,000,000) and (b) the Aggregate Commitment.
"Swingline Facility" means the swingline facility established pursuant
to Section 2.3.
"Swingline Lender" means Wachovia in its capacity as swingline lender
hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender
to the US Borrower pursuant to Section 2.3, and all such swingline loans
collectively as the context requires.
"Swingline Note" means a promissory made by the US Borrower in favor of
the Swingline Lender evidencing the Swingline Loans made by the Swingline
Lender, substantially in the form of Exhibit A-2 hereto, and any amendments,
supplements and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extensions thereof, in whole or in part.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease in accordance with GAAP.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Termination Event" means except for any such event or condition that
could not reasonably be expected to have a Material Adverse Effect: (a) a
"Reportable Event" described in Section 4043 of ERISA for which the notice
requirement has not been waived by the PBGC, or (b) the withdrawal of the US
Borrower or any ERISA Affiliate from a Pension Plan during a plan
24
year in which it was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA, or (c) the termination of a Pension Plan, the filing of a notice of
intent to terminate a Pension Plan or the treatment of a Pension Plan amendment
as a termination, under Section 4041 of ERISA, if the plan assets are not
sufficient to pay all plan liabilities, or (d) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension Plan by
the PBGC, or (e) any other event or condition which would constitute grounds
under Section 4042(a) of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan, or (f) the imposition of a Lien
pursuant to Section 412 of the Code or Section 302 of ERISA, or (g) the partial
or complete withdrawal of the US Borrower of any ERISA Affiliate from a
Multiemployer Plan if withdrawal liability is asserted by such plan, or (h) any
event or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any event or
condition which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by PBGC of proceedings to terminate a
Multiemployer Plan under Section 4042 of ERISA.
"Termination Value" means, in respect of any one or more Hedging
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Agreements, (a) for any date on or
after the date such Hedging Agreements have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a), the amount(s)
determined as the ▇▇▇▇-to-market value(s) for such Hedging Agreements, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Hedging Agreements (which
may include a Lender or any Affiliate of a Lender).
"Total Secured Indebtedness" means, as of any date of determination
with respect to the US Borrower and its Subsidiaries on a Consolidated basis
without duplication, the sum of all Indebtedness (other than Indebtedness
incurred in connection with a Permitted Asset Securitization) of the US Borrower
and its Subsidiaries secured by a Lien on any assets of the US Borrower or its
Domestic Subsidiaries.
"Turbo Provision" means a provision of an agreement with respect to a
Permitted Asset Securitization which requires, once such provision has been
triggered as a result of a downgrade in any one or more of the credit ratings of
the US Borrower or any Subsidiary thereof, that proceeds available from such
Permitted Asset Securitization from time to time in excess of amounts required
for scheduled debt service and other required payments under such Permitted
Asset Securitization be applied to prepay indebtedness under such Permitted
Asset Securitization rather than being made available to the US Borrower or such
Subsidiary, but does not otherwise require or permit the acceleration of such
remaining indebtedness.
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), effective January 1994 International
Chamber of Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York, as amended or modified from time to time.
25
"UK Borrower" shall have the meaning assigned thereto in the preamble.
"Unaudited Financial Statements" means the financial statements
delivered to the Administrative Agent pursuant to clauses (B), (C) and (D) of
Section 5.2(e)(i).
"United States" means the United States of America.
"US Borrower" shall have the meaning assigned thereto in the preamble.
"US Borrower Guaranty" means the unconditional guaranty of the payment
of the Obligations of the UK Borrower by the US Borrower under Article XI
hereof.
"Wachovia" means Wachovia Bank, National Association, a national
banking association, and its successors.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of Capital Stock of such Subsidiary are, directly or indirectly, owned or
controlled by the US Borrower and/or one or more of its Wholly-Owned
Subsidiaries (except for directors' qualifying shares or other shares required
by Applicable Law to be owned by a Person other than the US Borrower).
SECTION 1.2 Other Definitions and Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document: (a) the definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined, (b) whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms, (c) the words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation", (d) the word
"will" shall be construed to have the same meaning and effect as the word
"shall", (e) 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), (f) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (g) 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, (h) 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, (i) 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, (j) the term "documents" includes any and all
instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form, (k) in the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means "to
and including", and (l) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
26
SECTION 1.3 Accounting Terms.All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the audited
financial statements required by Section 7.1(b), except as otherwise
specifically prescribed herein.
SECTION 1.4 Rounding. Any financial ratios required to be maintained by
the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
SECTION 1.5 References to Agreement and Laws. Unless otherwise
expressly provided herein, (a) references to formation documents, governing
documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to any
Applicable Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such
Applicable Law.
SECTION 1.6 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
ARTICLE II
REVOLVING CREDIT FACILITY
-------------------------
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions
of this Agreement, and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make Revolving Credit Loans to the
US Borrower in Dollars from time to time from the Closing Date through, but not
including, the Revolving Credit Maturity Date as requested by the US Borrower in
accordance with the terms of Section 2.4; provided that, based upon the Dollar
Amount of all outstanding Loans and L/C Obligations, (a) the aggregate principal
amount of all outstanding Revolving Credit Loans (after giving effect to any
amount requested and any prepayments) shall not exceed the Aggregate Commitment
less the sum of all outstanding Alternative Currency Loans, Swingline Loans and
L/C Obligations and (b) the aggregate principal amount of all outstanding
Revolving Credit Loans from any Lender to the US Borrower shall not at any time
exceed such Lender's Commitment less such Lender's Commitment Percentage of the
aggregate principal amount of all outstanding Alternative Currency Loans,
Swingline Loans and L/C Obligations. Each Revolving Credit Loan by a Lender
shall be in a principal amount equal to such Lender's Commitment Percentage of
the aggregate principal amount of Revolving Credit Loans requested on such
occasion. Subject to
27
the terms and conditions hereof, the US Borrower may borrow, repay and reborrow
Revolving Credit Loans hereunder until the Revolving Credit Maturity Date.
SECTION 2.2 Alternative Currency Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties set forth
herein, the Alternative Currency Lender agrees to make Alternative Currency
Loans to the UK Borrower from time to time from the Closing Date through, but
not including, the Revolving Credit Maturity Date as requested by the US
Borrower, on behalf of the UK Borrower, in accordance with the terms of Section
2.4; provided, that, based upon the Dollar Amount of all outstanding Loans and
L/C Obligations, the aggregate principal amount of all outstanding Alternative
Currency Loans (after giving effect to any amount requested and any prepayments)
shall not exceed the lesser of (i) the Aggregate Commitment less the sum of the
aggregate principal amount of all outstanding Revolving Credit Loans, Swingline
Loans and L/C Obligations and (ii) the Alternative Currency Commitment.
Alternative Currency Loans shall be funded in an amount equal to the Alternative
Currency Amount of such Alternative Currency Loan. Subject to the terms and
conditions hereof, the UK Borrower may borrow, repay and reborrow Alternative
Currency Loans hereunder until the Revolving Credit Maturity Date.
(b) Refunding of Alternative Currency Loans.
(i) Upon the occurrence and during the continuance of an Event
of Default, each Alternative Currency Loan shall, at the discretion of the
Alternative Currency Lender, be repaid immediately through a Base Rate Loan
funded in Dollars by the Lenders to the US Borrower in an amount equal to the
Dollar Amount of such Alternative Currency Loan. Such Base Rate Loan shall
thereafter be reflected as a Revolving Credit Loan of the Lenders to the US
Borrower on the books and records of the Administrative Agent. Each Lender shall
fund its respective Commitment Percentage of such Revolving Credit Loan as
required to repay Alternative Currency Loans outstanding to the Alternative
Currency Lender upon such demand by the Alternative Currency Lender in no event
later than 1:00 p.m. on the next succeeding Business Day after such demand is
made. No Lender's obligation to fund its respective Commitment Percentage of any
Revolving Credit Loan required to repay such Alternative Currency Loan shall be
affected by any other Lender's failure to fund its Commitment Percentage of such
Revolving Credit Loan, nor shall any Lender's Commitment Percentage be increased
as a result of any such failure of any other Lender to fund its Commitment
Percentage of such Revolving Credit Loan.
(ii) The Borrowers shall pay to the Alternative Currency
Lender on demand the amount of such Alternative Currency Loans to the extent
amounts received from the Lenders are not sufficient to refund in full the
outstanding Alternative Currency Loans requested or required to be refunded upon
the occurrence and during the continuance of an Event of Default. In addition,
the Borrowers hereby authorize the Administrative Agent, upon the occurrence and
during the continuance of an Event of Default, to charge any account maintained
by the Borrowers with the Alternative Currency Lender (up to the amount
available therein) in order to immediately pay the Alternative Currency Lender
the amount of such Alternative Currency Loans to the extent amounts received
from the Lenders are not sufficient to repay in full the outstanding Alternative
Currency Loans requested or required to be refunded. If any portion of any such
amount paid to the
28
Alternative Currency Lender shall be recovered by or on behalf of the Borrowers
from the Alternative Currency Lender in bankruptcy or otherwise, the loss of the
amount so recovered shall be ratably shared among all the Lenders in accordance
with their respective Commitment Percentages (unless the amount so recovered by
or on behalf of the Borrowers pertains to an Alternative Currency Loan extended
after the occurrence and during the continuance of an Event of Default of which
the Alternative Currency Lender has received notice in the manner required
pursuant to Section 7.5 and which such Event of Default has not been waived by
the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation
to refund Alternative Currency Loans in accordance with the terms of this
Section 2.2 is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Article V. Further, each Lender agrees and acknowledges
that if prior to the refunding of any outstanding Alternative Currency Loans
pursuant to this Section 2.2, any Bankruptcy Event of Default shall have
occurred, each Lender will, on the date the applicable Revolving Credit Loan
would have been made, purchase an undivided participating interest in such
Alternative Currency Loans to be refunded in an amount equal to its Commitment
Percentage of the aggregate amount of such Alternative Currency Loans. Each
Lender will immediately transfer to the Administrative Agent, for the account of
the Alternative Currency Lender, in immediately available funds in the
Alternative Currency, the amount of its participation. Whenever, at any time
after the Alternative Currency Lender has received from any Lender such Lender's
participating interest in the refunded Alternative Currency Loans, the
Alternative Currency Lender receives any payment on account thereof, the
Alternative Currency Lender will distribute to such Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's participating
interest was outstanding and funded).
(iv) In the event that any Lender fails to make payment to the
Alternative Currency Lender of any amount due under this Section 2.2, the
Administrative Agent, on behalf of the Alternative Currency Lender, shall be
entitled to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the Alternative
Currency Lender receives such payment from such Lender or such obligation is
otherwise fully satisfied. In addition to the foregoing, if for any reason any
Lender fails to make payment to the Alternative Currency Lender of any amount
due under this Section 2.2, such Lender shall be deemed, at the option of the
Administrative Agent, to have unconditionally and irrevocably purchased from the
Alternative Currency Lender, without recourse or warranty, an undivided interest
and participation in the applicable Alternative Currency Loan, and such interest
and participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of demand and ending on the date such amount is received.
SECTION 2.3 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties set forth
herein, the Swingline Lender agrees to make Swingline Loans to the US Borrower
from time to time from the Closing Date through, but not
29
including, the Revolving Credit Maturity Date as requested by the US Borrower in
accordance with the terms of Section 2.4; provided that (i) all Swingline Loans
shall be denominated in Dollars and (ii) based upon the Dollar Amount of all
outstanding Loans and L/C Obligations, the aggregate principal amount of all
outstanding Swingline Loans (after giving effect to any amount requested), shall
not exceed the lesser of (A) the Aggregate Commitment less the sum of the
aggregate principal amount of all outstanding Revolving Credit Loans,
Alternative Currency Loans and L/C Obligations and (B) the Swingline Commitment.
Subject to the terms and conditions hereof, the US Borrower may borrow, repay
and reborrow Swingline Loans hereunder until the Revolving Credit Maturity Date.
(b) Refunding.
(i) Swingline Loans shall be refunded by the Lenders on demand
by the Swingline Lender. Such refundings shall be made by the Lenders in
accordance with their respective Commitment Percentages and shall thereafter be
reflected as Revolving Credit Loans of the Lenders on the books and records of
the Administrative Agent. Each Lender shall fund its respective Commitment
Percentage of Revolving Credit Loans as required to repay Swingline Loans
outstanding to the Swingline Lender upon demand by the Swingline Lender but in
no event later than 1:00 p.m. on the next succeeding Business Day after such
demand is made. No Lender's obligation to fund its respective Commitment
Percentage of a Swingline Loan shall be affected by any other Lender's failure
to fund its Commitment Percentage of a Swingline Loan, nor shall any Lender's
Commitment Percentage be increased as a result of any such failure of any other
Lender to fund its Commitment Percentage of a Swingline Loan.
(ii) The US Borrower shall pay to the Swingline Lender on
demand the amount of such Swingline Loans to the extent amounts received from
the Lenders are not sufficient to repay in full the outstanding Swingline Loans
requested or required to be refunded. In addition, the US Borrower hereby
authorizes the Administrative Agent to charge any account maintained by the US
Borrower with the Swingline Lender (up to the amount available therein) in order
to immediately pay the Swingline Lender the amount of such Swingline Loans to
the extent amounts received from the Lenders are not sufficient to repay in full
the outstanding Swingline Loans requested or required to be refunded. If any
portion of any such amount paid to the Swingline Lender shall be recovered by or
on behalf of the US Borrower from the Swingline Lender in bankruptcy or
otherwise, the loss of the amount so recovered shall be ratably shared among all
the Lenders in accordance with their respective Commitment Percentages (unless
the amounts so recovered by or on behalf of the US Borrower pertain to a
Swingline Loan extended after the occurrence and during the continuance of an
Event of Default of which the Administrative Agent has received notice in the
manner required pursuant to Section 7.5 and which such Event of Default has not
been waived by the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation
to refund Swingline Loans in accordance with the terms of this Section 2.3 is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the conditions
set forth in Article V. Further, each Lender hereby agrees and acknowledges that
if prior to the refunding of any outstanding Swingline Loans pursuant to this
Section 2.3, any Bankruptcy Event of Default shall have occurred, each Lender
will, on the date the applicable Revolving Credit
30
Loan would have been made, purchase an undivided participating interest in the
Swingline Loan to be refunded in an amount equal to its Commitment Percentage of
the aggregate amount of such Swingline Loan. Each Lender will immediately
transfer to the Swingline Lender, in immediately available funds, the amount of
its participation. Whenever, at any time after the Swingline Lender has received
from any Lender such Lender's participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded).
(iv) In the event that any Lender fails to make payment to the
Swingline Lender of any amount due under this Section 2.3, the Administrative
Agent, on behalf of the Swingline Lender, shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Swingline Lender receives such payment from
such Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the Swingline
Lender of any amount due under this Section 2.3, such Lender shall be deemed, at
the option of the Administrative Agent, to have unconditionally and irrevocably
purchased from the Swingline Lender, without recourse or warranty, an undivided
interest and participation in the applicable Swingline Loan, and such interest
and participation may be recovered from such Lender together with interest
thereon at the Federal Funds Rate for each day during the period commencing on
the date of demand and ending on the date such amount is received.
SECTION 2.4 Procedure for Advances of Revolving Credit Loans,
Alternative Currency Loans and Swingline Loans.
(a) Requests for Borrowing. The US Borrower, on behalf of itself or the
UK Borrower, shall give the Administrative Agent irrevocable prior written
notice substantially in the form attached hereto as Exhibit B (a "Notice of
Borrowing") not later than (i) 11:00 a.m. on the same Business Day as each Base
Rate Loan and each Swingline Loan, (ii) 11:00 a.m. at least three (3) Business
Days before each LIBOR Rate Loan denominated in Dollars, and (iii) 11:00 a.m. at
least four (4) Business Days before each LIBOR Rate Loan denominated in the
Alternative Currency, of its intention to borrow, specifying:
(A) if the applicable Borrower is the US Borrower or the UK
Borrower;
(B) the date of such borrowing, which shall be a Business Day;
(C) whether such Loan is to be a Revolving Credit Loan, an
Alternative Currency Loan or a Swingline Loan;
(D) if such Loan is a Revolving Credit Loan, whether such
Revolving Credit Loan shall be a LIBOR Rate Loan or a Base Rate Loan;
(E) the amount of such borrowing, which shall be in an amount
equal to the amount of the Aggregate Commitment, the Alternative
Currency Commitment or the
31
Swingline Commitment, as applicable, then available to the applicable
Borrower, or if less, (1) with respect to Base Rate Loans (other than
Swingline Loans), in an aggregate principal amount of $3,000,000 or a
whole multiple of $1,000,000 in excess thereof, (2) with respect to
LIBOR Rate Loans denominated in Dollars, in an aggregate principal
amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof
(or, with respect to Alternative Currency Loans, in an aggregate
principal amount of (pound)2,000,000 or a whole multiple of
(pound)1,000,000 in excess thereof), and (3) with respect to Swingline
Loans, in an aggregate principal amount of $100,000 or a whole multiple
of $100,000 in excess thereof, and
(F) in the case of a LIBOR Rate Loan, the duration of the
Interest Period applicable thereto.
A Notice of Borrowing received after the times set forth above shall be deemed
received on the next Business Day. The Administrative Agent shall promptly
notify the Lenders of each Notice of Borrowing.
(b) Disbursement of Revolving Credit Loans, Alternative Currency Loans
and Swingline Loans.
(i) Not later than 2:00 p.m. on the proposed borrowing date
for any Revolving Credit Loan, each Lender will make available to the
Administrative Agent, for the account of the US Borrower, at the office of the
Administrative Agent in Dollars in funds immediately available to the
Administrative Agent, such Lender's Commitment Percentage of the Revolving
Credit Loan to be made on such borrowing date.
(ii) Not later than 11:00 a.m. (the local time of the
Administrative Agent's Correspondent) on the proposed borrowing date for any
Alternative Currency Loan, the Alternative Currency Lender will make available
to the Administrative Agent, for the account of the UK Borrower, at the office
of the Administrative Agent's Correspondent in the Alternative Currency in funds
immediately available to the Administrative Agent, the Alternative Currency Loan
to be made on such borrowing date.
(iii) Not later than 2:00 p.m. on the proposed borrowing date
for any Swingline Loan, the Swingline Lender will make available to the
Administrative Agent, for the account of the US Borrower, at the office of the
Administrative Agent in Dollars in funds immediately available to the
Administrative Agent, the Swingline Loan to be made on such borrowing date.
(iv) The Borrowers hereby irrevocably authorize the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.4 in immediately available funds by crediting such
proceeds to the deposit account of the applicable Borrower at the Administrative
Agent identified in the most recent notice substantially in the form of Exhibit
C hereto (a "Notice of Account Designation") delivered by the US Borrower, on
behalf of itself and the UK Borrower, to the Administrative Agent or as may be
otherwise agreed upon by the US Borrower, on behalf of itself and the UK
Borrower, and the Administrative Agent from time to time. Subject to Section
4.6, the Administrative Agent shall not be obligated to disburse any
32
amount with respect to any Revolving Credit Loan or any Alternative Currency
Loan requested pursuant to this Section 2.4 to the extent that such amount has
not been made available by the applicable Lender to the Administrative Agent.
(v) Revolving Credit Loans to be made for the purpose of (A)
refunding Alternative Currency Loans shall be made by the Lenders as provided in
Section 2.2(b) and (B) refunding Swingline Loans shall be made by the Lenders as
provided in Section 2.3(b).
SECTION 2.5 Repayment of Loans.
(a) Repayment on the Revolving Credit Maturity Date. Subject to the
provisions of Section 2.7, the Borrowers shall repay the outstanding principal
amount of (i) all Revolving Credit Loans in full in Dollars on the Revolving
Credit Maturity Date, (ii) all Alternative Currency Loans in full in the
Alternative Currency on the Revolving Credit Maturity Date and (ii) all
Swingline Loans in accordance with Section 2.3(b) or, if earlier, on the
Revolving Credit Maturity Date, together, in each case, with all accrued but
unpaid interest thereon.
(b) Mandatory Repayment of Revolving Credit Loans.
(i) Aggregate Commitment. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount of
all outstanding Loans and L/C Obligations, (A) solely because of currency
fluctuation, the outstanding principal amount of all outstanding Extensions of
Credit exceeds one hundred and five percent (105%) of the Aggregate Commitment
or (B) for any other reason, the outstanding principal amount of all outstanding
Extensions of Credit exceeds the Aggregate Commitment, then, in each such case,
the Borrowers shall (1) first, if (and to the extent) necessary to eliminate
such excess, immediately repay outstanding Swingline Loans (and/or reduce any
pending request for such Loans on such day by the Dollar Amount of such excess),
(2) second, if (and to the extent) necessary to eliminate such excess,
immediately repay outstanding Revolving Credit Loans which are Base Rate Loans
by the Dollar Amount of such excess (and/or reduce any pending requests for a
borrowing or continuation or conversion of such Loans submitted in respect of
such Loans on such day) by the Dollar Amount of such excess, (3) third, if (and
to the extent) necessary to eliminate such excess, immediately repay Revolving
Credit Loans which are LIBOR Rate Loans and/or Alternative Currency Loans by the
Dollar Amount of such excess (and/or reduce any pending requests for a borrowing
or continuation or conversion of such Loans submitted in respect of such Loans
on such day by the Dollar Amount of such excess) and (4) fourth, with respect to
any Letters of Credit then outstanding, make a payment of cash collateral into a
cash collateral account opened by the Administrative Agent for the benefit of
the Lenders in an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit (such cash collateral to be applied in
accordance with Section 12.2(b)).
(ii) Alternative Currency Commitment. If at any time (as
determined by the Administrative Agent under Section 2.5(b)(v)), based upon the
Dollar Amount of all outstanding Loans and L/C Obligations, (A) solely because
of currency fluctuation, the outstanding principal amount of all Alternative
Currency Loans exceeds one hundred five percent (105%) of the Alternative
Currency Commitment or (B) for any other reason, the outstanding principal
amount
33
of all Alternative Currency Loans exceeds the Alternative Currency Commitment,
then, in each such case, such excess shall be immediately repaid, in the
Alternative Currency, by the UK Borrower to the Administrative Agent for the
account of the Alternative Currency Lender.
(iii) Swingline Commitment. If at any time (as determined by
the Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount
of all outstanding Loans and L/C Obligations, and for any reason, the
outstanding principal amount of all Swingline Loans exceeds the Swingline
Commitment, then, in each such case, such excess shall be immediately repaid, in
Dollars, by the US Borrower to the Administrative Agent for the account of the
Swingline Lender.
(iv) Excess L/C Obligations. If at any time (as determined by
the Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount
of all outstanding Loans and L/C Obligations, and for any reason, the
outstanding amount of all L/C Obligations exceeds the L/C Commitment, then, in
each such case, the US Borrower shall make a payment of cash collateral into a
cash collateral account opened by the Administrative Agent, for the benefit of
itself and the Lenders, in an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit (such cash collateral to be applied
in accordance with Section 12.2(b)).
(v) Compliance and Payments. The Borrowers' compliance with
this Section 2.5(b) shall be tested from time to time by the Administrative
Agent at its sole discretion, but in any event shall be tested on the date on
which (A) the US Borrower requests that the applicable Lenders make a Revolving
Credit Loan, (B) the UK Borrower requests that the Alternative Currency Lender
make an Alternative Currency Loan, (C) the US Borrower requests that the
Swingline Lender make a Swingline Loan or (D) the Issuing Lender issue a Letter
of Credit. Each such repayment pursuant to this Section 2.5(b) shall be
accompanied by any amount required to be paid pursuant to Section 4.9.
(c) Optional Repayments. The Borrowers may at any time and from time to
time repay the Loans, in whole or in part, (i) upon at least four (4) Business
Days' irrevocable notice to the Administrative Agent with respect to Alternative
Currency Loans, (ii) upon at least three (3) Business Days' irrevocable notice
to the Administrative Agent with respect to LIBOR Rate Loans denominated in
Dollars, (iii) upon one (1) Business Day irrevocable notice with respect to Base
Rate Loans (other than Swingline Loans), and (iv) by 11:00 a.m. (Chicago time)
on the same Business Day irrevocable notice with respect to Swingline Loans,
substantially in the form attached hereto as Exhibit D (a "Notice of
Prepayment"), specifying (A) the date of repayment, (B) the amount of repayment,
(C) whether the repayment is of Revolving Credit Loans, Alternative Currency
Loans, Swingline Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each and (D) whether the repayment is of LIBOR
Rate Loans denominated in the Alternative Currency, LIBOR Rate Loans denominated
in Dollars, Base Rate Loans, or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Lender. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
set forth in such notice. Partial repayments shall be in an aggregate amount of
(i) $3,000,000 or a whole multiple of $1,000,000 in excess thereof with respect
to Base Rate Loans (other than
34
Swingline Loans), (ii) $3,000,000 or a whole multiple of $1,000,000 in excess
thereof with respect to LIBOR Rate Loans denominated in Dollars, (iii)
(pound)2,000,000 or a whole multiple of (pound)1,000,000 in excess thereof) with
respect to LIBOR Rate Loans denominated in the Alternative Currency and (iv)
$100,000 or a whole multiple of $100,000 in excess thereof with respect to
Swingline Loans. Each such repayment shall be accompanied by any amount required
to be paid pursuant to Section 4.9.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrowers may not
repay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such repayment is accompanied by any amount
required to be paid pursuant to Section 4.9.
(e) Payment of Interest. Each repayment pursuant to this Section 2.5
shall be accompanied by accrued interest on the amount repaid.
(f) Hedging Agreements. No repayment or prepayment pursuant to this
Section 2.5 shall affect any obligations of any Borrower under any Hedging
Agreement.
SECTION 2.6 Permanent Reduction of the Aggregate Commitment and the
Alternative Currency Commitment.
(a) Voluntary Reduction. The Borrowers shall have the right at any time
and from time to time, upon at least five (5) Business Days prior written notice
to the Administrative Agent, to permanently reduce, without premium or penalty,
(i) the entire Aggregate Commitment at any time or (ii) portions of the
Aggregate Commitment, from time to time, in an aggregate principal amount not
less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof;
provided that (A) in no event shall the Aggregate Commitment be reduced to an
amount less than the face amount of all Letters of Credit then outstanding and
(B) to the extent that the Aggregate Commitment is reduced to an amount less
than the Alternative Currency Commitment, there shall be a corresponding
permanent reduction of the Alternative Currency Commitment to the amount of the
Aggregate Commitment as so reduced.
(b) Mandatory Commitment Reductions.
(i) Debt Proceeds. The Aggregate Commitment shall be
automatically and permanently reduced in an amount equal to one hundred percent
(100%) of the Dollar Amount of the aggregate Net Cash Proceeds received by the
US Borrower or any of its Subsidiaries arising from any incurrence of
Indebtedness by the US Borrower or any Subsidiary thereof that is not permitted
pursuant to Section 10.1 but is otherwise consented to by Required Lenders, such
reduction to occur on the third (3rd) Business Day following receipt of such Net
Cash Proceeds; provided that no commitment reduction shall be required under
this Section 2.6(b)(i) if (A) the Leverage Ratio (calculated on a pro forma
basis as of the date of the proposed incurrence of Indebtedness and after giving
effect thereto) shall be less than 3.00 to 1.00 and (B) no Default or Event of
Default shall have occurred or be continuing or would result from such
incurrence of Indebtedness. This provision shall not be deemed to permit any
incurrence of Indebtedness by the US Borrower or any of its Subsidiaries not
otherwise permitted hereunder.
35
(ii) Asset Sale Proceeds. The Aggregate Commitment shall be
automatically and permanently reduced in an amount equal to one hundred percent
(100%) of the Dollar Amount of the aggregate Net Cash Proceeds received by the
US Borrower or any of its Domestic Subsidiaries from the sale or other
disposition or series of related sales or other dispositions of assets by the US
Borrower or any of its Domestic Subsidiaries on the third (3rd) Business Day
following receipt of such Net Cash Proceeds; provided that, no commitment
reductions shall be required hereunder in connection with:
(A) Net Cash Proceeds received from sales or other dispositions of
assets permitted pursuant to Section 10.5 (other than Section 10.5(m)); or
(B) So long as no Event of Default has occurred and is continuing, Net
Cash Proceeds received from (1) sales or other dispositions permitted pursuant
to Section 10.5(m) or (2) sales or other dispositions not permitted pursuant to
Section 10.5 but otherwise consented to by the Required Lenders to the extent,
in each such case, that such Net Cash Proceeds are reinvested within three
hundred sixty (360) days after receipt thereof by the US Borrower or any of its
Domestic Subsidiaries in assets to be used in the business of the US Borrower or
any of its Domestic Subsidiaries.
This provision shall not be deemed to permit any sale or disposition of assets
by the US Borrower or any of its Subsidiaries not otherwise permitted hereunder.
(iii) Insurance and Condemnation Proceeds. The Aggregate
Commitment shall be automatically and permanently reduced in an amount equal to
one hundred percent (100%) of the Dollar Amount of the aggregate Net Cash
Proceeds received by the US Borrower or any of its Domestic Subsidiaries under
any of the insurance policies maintained pursuant to Section 8.3 or from any
condemnation proceeding (the "Insurance and Condemnation Proceeds") on the third
(3rd) Business Day following receipt of such Net Cash Proceeds; provided that,
so long as no Event of Default has occurred and is continuing, no commitment
reductions shall be required hereunder in connection with:
(A) up to $5,000,000 of the Dollar Amount of the aggregate
Insurance and Condemnation Proceeds in any Fiscal Year; or
(B) Insurance and Condemnation Proceeds (other than Insurance
and Condemnation Proceeds covered under clause (A) of this Section
2.6(b)(iii)) which are reinvested by the US Borrower or any of its
Domestic Subsidiaries in assets to be used in the business of the US
Borrower or any of its Domestic Subsidiaries within three hundred sixty
(360) days after receipt of such Insurance and Condemnation Proceeds.
(iv) Permitted Trade Receivable Securitization. The Aggregate
Commitment shall be automatically and permanently reduced in an amount equal to
one hundred percent (100%) of the Dollar Amount of the aggregate Net Cash
Proceeds received by the US Borrower or any of its Subsidiaries from any
Permitted Trade Receivable Securitization on the third (3rd) Business Day
following receipt of such Net Cash Proceeds. This provision shall not be deemed
to permit any
36
Permitted Asset Securitization by the US Borrower or any of its Subsidiaries not
otherwise permitted hereunder.
(c) Corresponding Payments. Each permanent reduction permitted or
required pursuant to this Section 2.6 shall be accompanied by a payment of
principal sufficient to reduce (i) the aggregate Dollar Amount of all
outstanding Revolving Credit Loans, Alternative Currency Loans, Swingline Loans
and L/C Obligations, as applicable, after such reduction to the Aggregate
Commitment as so reduced and (ii) to the extent that the Alternative Currency
Commitment is reduced, the aggregate Dollar Amount of all outstanding
Alternative Currency Loans to the Alternative Currency Commitment as so reduced.
If the Aggregate Commitment as so reduced is less than the aggregate amount of
all outstanding Letters of Credit, the Borrowers shall be required to deposit
cash collateral in a cash collateral account opened by the Administrative Agent
in an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Any reduction of the Aggregate Commitment to zero shall be
accompanied by payment of all outstanding Loans (and furnishing of cash
collateral satisfactory to the Administrative Agent for all L/C Obligations) and
shall result in the termination of the Commitments and the Credit Facility. Such
cash collateral shall be applied in accordance with Section 12.2(b). If the
reduction of the Aggregate Commitment or the Alternative Currency Commitment, as
applicable, requires the repayment of any LIBOR Rate Loan, such repayment shall
be accompanied by any amount required to be paid pursuant to Section 4.9.
SECTION 2.7 Termination of Credit Facility. The Credit Facility shall
terminate on the Revolving Credit Maturity Date.
SECTION 2.8 Nature of Obligations. The obligations of the US Borrower
hereunder and under the other Loan Documents shall be joint and several with the
Obligations of the UK Borrower. The obligations of the UK Borrower hereunder and
under the other Loan Documents shall not be joint and several.
ARTICLE III
LETTER OF CREDIT FACILITY
-------------------------
SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Lenders set forth
in Section 3.4(a), agrees to issue standby letters of credit ("Letters of
Credit") for the account of the US Borrower on any Business Day from the Closing
Date through but not including the Revolving Credit Maturity Date in such form
as may be approved from time to time by the Issuing Lender; provided, that the
Issuing Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, based upon the Dollar Amount of all outstanding
Loans and L/C Obligations, (a) the L/C Obligations would exceed the lesser of
(i) the L/C Commitment or (ii) the Aggregate Commitment less the aggregate
principal amount of all outstanding Loans or (b) the Available Commitment of any
Lender would be less than zero. Each Letter of Credit shall (i) be denominated
in Dollars in a minimum amount of $100,000 or a lesser amount acceptable to the
Issuing Lender, (ii) be a standby letter of credit issued to support obligations
of the US
37
Borrower or any Subsidiary thereof, contingent or otherwise, incurred in the
ordinary course of business, (iii) expire on a date no later than the earlier of
(A) one year after its date of issuance (unless renewed in accordance with the
terms thereof) or (B) five (5) Business Days prior to the Revolving Credit
Maturity Date and (iv) be subject to the Uniform Customs and/or ISP 98, as set
forth in the Application or as determined by the Issuing Lender, and, to the
extent not inconsistent therewith, the laws of the State of New York. The
Issuing Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause the Issuing Lender or
any L/C Participant to exceed any limits imposed by, any Applicable Law.
References herein to "issue" and derivations thereof with respect to Letters of
Credit shall also include extensions or modifications of any existing Letters of
Credit, unless the context otherwise requires. The Existing Letters of Credit
shall be deemed to be Letters of Credit issued and outstanding under this
Agreement on and after the Closing Date.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The US
Borrower may from time to time request that the Issuing Lender issue a Letter of
Credit by delivering to the Issuing Lender at the Administrative Agent's Office
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
shall process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall, subject to Section 3.1 and Article V hereof,
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three (3)
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the US Borrower. The Issuing
Lender shall promptly furnish to the US Borrower a copy of such Letter of Credit
and promptly notify each Lender of the issuance and upon request by any Lender,
furnish to such Lender a copy of such Letter of Credit and the amount of such
Lender's participation therein.
SECTION 3.3 Commissions and Other Charges.
(a) The US Borrower shall pay to the Administrative Agent, for the
account of the Issuing Lender and the L/C Participants, a letter of credit
commission with respect to each Letter of Credit in an amount equal to the face
amount of such Letter of Credit multiplied by the Applicable Margin with respect
to LIBOR Rate Loans (determined on a per annum basis). Such commission shall be
payable quarterly in arrears on the last Business Day of each calendar quarter
and on the Revolving Credit Maturity Date. The Administrative Agent shall,
promptly following its receipt thereof, distribute to the Issuing Lender and the
L/C Participants all commissions received pursuant to this Section 3.3(a) in
accordance with their respective Commitment Percentages.
(b) In addition to the foregoing commission, the US Borrower shall pay
to the Administrative Agent, for the account of the Issuing Lender, an issuance
fee with respect to each Letter of Credit in an amount equal to the face amount
of such Letter of Credit multiplied by one eighth of one percent (0.125%) per
annum. Such issuance fee shall be payable quarterly in
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arrears on the last Business Day of each calendar quarter commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
Revolving Credit Maturity Date and thereafter on demand of the Issuing Lender
(through the Administrative Agent).
(c) In addition to the foregoing fees and commissions, the US Borrower
shall pay or reimburse the Issuing Lender for such normal costs and expenses as
are incurred or charged by the Issuing Lender in issuing, transferring,
effecting payment under, amending or otherwise administering any Letter of
Credit.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Commitment Percentage in
the Issuing Lender's obligations and rights under and in respect of each Letter
of Credit issued hereunder and the amount of each draft paid by the Issuing
Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees
with the Issuing Lender that, if a draft is paid under any Letter of Credit for
which the Issuing Lender is not reimbursed in full by the US Borrower through a
Revolving Credit Loan or otherwise in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Commitment Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is due, such
L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily average Federal
Funds Rate as determined by the Administrative Agent during the period from and
including the date such payment is due to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Lender with respect to
any amounts owing under this Section 3.4(b) shall be conclusive in the absence
of manifest error. With respect to payment to the Issuing Lender of the
unreimbursed amounts described in this Section 3.4(b), if the L/C Participants
receive notice that any such payment is due (A) prior to 1:00 p.m. on any
Business Day, such payment shall be due that Business Day, and (B) after 1:00
p.m. on any Business Day, such payment shall be due on the following Business
Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Commitment Percentage of such
39
payment in accordance with this Section 3.4, the Issuing Lender receives any
payment related to such Letter of Credit (whether directly from the US Borrower
or otherwise), or any payment of interest on account thereof, the Issuing Lender
will distribute to such L/C Participant its pro rata share thereof; provided,
that in the event that any such payment received by the Issuing Lender shall be
required to be returned by the Issuing Lender, such L/C Participant shall return
to the Issuing Lender the portion thereof previously distributed by the Issuing
Lender to it.
SECTION 3.5 Reimbursement Obligation of the US Borrower. In the event
of any drawing under any Letter of Credit, the US Borrower agrees to reimburse
(either with the proceeds of a Revolving Credit Loan as provided for in this
Section 3.5 or with funds from other sources), in same day funds, the Issuing
Lender on each date on which the Issuing Lender notifies the US Borrower of the
date and amount of a draft paid under any Letter of Credit for the amount of (a)
such draft so paid and (b) any amounts referred to in Section 3.3(c) incurred by
the Issuing Lender in connection with such payment. Unless the US Borrower shall
immediately notify the Issuing Lender that the US Borrower intends to reimburse
the Issuing Lender for such drawing from other sources or funds, the US Borrower
shall be deemed to have timely given a Notice of Borrowing to the Administrative
Agent requesting that the Lenders make a Revolving Credit Loan bearing interest
at the Base Rate on such date in the amount of (a) such draft so paid and (b)
any amounts referred to in Section 3.3(c) incurred by the Issuing Lender in
connection with such payment, and the Lenders shall make a Revolving Credit Loan
bearing interest at the Base Rate in such amount, the proceeds of which shall be
applied to reimburse the Issuing Lender for the amount of the related drawing
and costs and expenses. Each Lender acknowledges and agrees that its obligation
to fund a Revolving Credit Loan in accordance with this Section 3.5 to reimburse
the Issuing Lender for any draft paid under a Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-satisfaction of the conditions set forth in
Section 2.4(a) or Article V. If the US Borrower has elected to pay the amount of
such drawing with funds from other sources and shall fail to reimburse the
Issuing Lender as provided above, the unreimbursed amount of such drawing shall
bear interest at the rate which would be payable on any outstanding Base Rate
Loans which were then overdue from the date such amounts become payable (whether
at stated maturity, by acceleration or otherwise) until payment in full.
SECTION 3.6 Obligations Absolute. The US Borrower's obligations under
this Article III (including, without limitation, the Reimbursement Obligation)
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the US
Borrower may have or have had against the Issuing Lender or any beneficiary of a
Letter of Credit or any other Person. The US Borrower also agrees that the
Issuing Lender and the L/C Participants shall not be responsible for, and the US
Borrower's Reimbursement Obligation under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the US Borrower
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or any claims whatsoever of the US Borrower
against any beneficiary of such Letter of Credit or any such transferee. The
Issuing Lender shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Lender's gross negligence or willful misconduct.
The
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US Borrower agrees that any action taken or omitted by the Issuing Lender under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence or willful misconduct, shall be
binding on the US Borrower and shall not result in any liability of the Issuing
Lender or any L/C Participant to the US Borrower. The responsibility of the
Issuing Lender to the US Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
SECTION 3.7 Effect of Application. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with the
provisions of this Article III, the provisions of this Article III shall apply.
SECTION 3.8 Letter of Credit Amounts. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Application therefor, whether or not such maximum face amount is in effect at
such time, less any permanent reductions thereof.
ARTICLE IV
GENERAL LOAN PROVISIONS
-----------------------
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
4.1, at the election of the US Borrower, on behalf of itself and the UK
Borrower:
(i) Revolving Credit Loans shall bear interest at (A) the Base
Rate plus the Applicable Margin or (B) the LIBOR Rate plus the
Applicable Margin,
(ii) Alternative Currency Loans shall bear interest at the
LIBOR Rate plus the Applicable Margin; and
(iii) Swingline Loans shall bear interest at the Base Rate
plus the Applicable Margin;
provided that the LIBOR Rate shall not be available until three (3) Business
Days after the Closing Date. The US Borrower, on behalf of itself and the UK
Borrower, shall select the rate of interest and Interest Period, if any,
applicable to any Loan at the time a Notice of Borrowing is given pursuant to
Section 2.4 or 3.5 or at the time a Notice of Conversion/Continuation is given
pursuant to Section 4.2. Any Revolving Credit Loan or any portion thereof as to
which the US Borrower has not duly specified an interest rate as provided herein
shall be deemed a Base Rate Loan denominated in Dollars. Any LIBOR Rate Loan or
any portion thereof as to which the US
41
Borrower, on behalf of itself or the UK Borrower, has not duly specified an
interest rate as provided herein shall be deemed a LIBOR Rate Loan with an
Interest Period of one (1) month and shall be made (i) with respect to any
Revolving Credit Loan, three (3) Business Days after receipt of such notice and
(ii) with respect to any Alternative Currency Loan, four (4) Business Days after
receipt of such notice.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the US
Borrower, on behalf of itself and the UK Borrower, by giving notice at the times
described in Section 4.1(a), shall elect an interest period (each, an "Interest
Period") to be applicable to such Loan, which Interest Period shall be a period
of one (1), two (2), three (3), or six (6) months with respect to each LIBOR
Rate Loan; provided that:
(i) the Interest Period shall commence on the date of advance
of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall
commence on the date on which the immediately preceding Interest Period
expires;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, that if any Interest Period
with respect to a LIBOR Rate Loan would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the immediately preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the relevant calendar month at the end of such Interest
Period;
(iv) no Interest Period shall extend beyond the Revolving
Credit Maturity Date; and
(v) there shall be no more than six (6) Interest Periods in
effect at any time.
(c) Default Rate. Subject to Section 12.3, upon the occurrence and
during the continuance of a Payment Event of Default or Bankruptcy Event of
Default, or, as directed by the Required Lenders upon the occurrence and during
the continuance of an Event of Default other than a Payment Event of Default or
Bankruptcy Event of Default, (i) the Borrowers shall no longer have the option
to request LIBOR Rate Loans (including, without limitation, Alternative Currency
Loans) or Swingline Loans, (ii) all outstanding LIBOR Rate Loans shall bear
interest at a rate per annum two percent (2%) in excess of the rate then
applicable to such LIBOR Rate Loans until the end of the applicable Interest
Period and thereafter at a rate equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans (provided that, at the end of the applicable
Interest Period, any outstanding Alternative Currency Loans shall (A) be repaid
in full or (B) to the extent not so repaid, be continued as LIBOR Rate Loans
with an Interest Period of one (1) month at a rate per annum two percent (2%) in
excess of the rate then
42
applicable to such Alternative Currency Loan), and (iii) all outstanding Base
Rate Loans and other Obligations arising hereunder or under any other Loan
Document shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to Base Rate Loans. Interest shall continue
to accrue on the Obligations after the filing by or against any Borrower of any
petition seeking any relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign.
(d) Interest Payment and Computation. Interest on each Base Rate Loan
shall be due and payable in arrears on the last Business Day of each calendar
quarter commencing September 30, 2004 and interest on each LIBOR Rate Loan shall
be due and payable on the last day of each Interest Period applicable thereto,
and if such Interest Period extends over three (3) months, at the end of each
three (3) month interval during such Interest Period. Interest on LIBOR Rate
Loans (except for Alternative Currency Loans denominated in Pounds Sterling
which shall be computed on the basis of a 365-day year) and all fees and
commissions payable hereunder shall be computed on the basis of a 360-day year
and assessed for the actual number of days elapsed and interest on Base Rate
Loans shall be computed on the basis of a 365/66-day year and assessed for the
actual number of days elapsed.
(e) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrowers any interest received by the
Lenders in excess of the maximum lawful rate or (ii) apply such excess to the
principal balance of the Obligations on a pro rata basis. It is the intent
hereof that the Borrowers not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by the Borrowers under Applicable Law.
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Default or Event of Default has occurred and is then
continuing, the US Borrower, on behalf of itself and the UK Borrower, shall have
the option to (a) convert at any time following the third Business Day after the
Closing Date all or any portion of any outstanding Base Rate Loans (other than
Swingline Loans) in a principal amount equal to $5,000,000 or any whole multiple
of $1,000,000 in excess thereof into one or more LIBOR Rate Loans denominated in
Dollars, (b) upon the expiration of any Interest Period, convert all or any part
of its outstanding LIBOR Rate Loans denominated in Dollars in a principal amount
equal to $3,000,000 or a whole multiple of $1,000,000 in excess thereof into
Base Rate Loans (other than Swingline Loans) or (c) upon the expiration of any
Interest Period, continue (i) any LIBOR Rate Loan denominated in Dollars in a
principal amount of $3,000,000 or any whole multiple of $1,000,000 in excess
thereof or (ii) any LIBOR Rate Loan denominated in the Alternative Currency in a
principal amount of (pound)2,000,000 or any whole multiple of (pound)1,000,000
in excess thereof, in each case as a LIBOR Rate Loan in Dollars or the
Alternative Currency, respectively. Whenever a Borrower desires to convert or
continue Loans as provided above, the US Borrower,
43
on behalf of itself and the UK Borrower, shall give the Administrative Agent
irrevocable prior written notice in the form attached as Exhibit E (a "Notice of
Conversion/Continuation") not later than 11:00 a.m. four (4) Business Days (with
respect to any Loan denominated in the Alternative Currency) and three (3)
Business Days (with respect to any Loan denominated in Dollars) before the day
on which a proposed conversion or continuation of such Loan is to be effective
specifying (A) if the applicable Borrower is the US Borrower or the UK Borrower,
(B) the Loans to be converted or continued, and, in the case of any LIBOR Rate
Loan to be converted or continued, the last day of the Interest Period therefor,
(C) the Permitted Currency in which such Loan is denominated, (D) the effective
date of such conversion or continuation (which shall be a Business Day), (E) the
principal amount of such Loans to be converted or continued, and (F) the
Interest Period to be applicable to such converted or continued LIBOR Rate Loan.
The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 4.3 Fees.
(a) Commitment Fee. Commencing on the Closing Date, the Borrowers shall
pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee at a rate per annum equal to the Applicable Margin
on the average daily unused portion of the Aggregate Commitment; provided that
the amount of outstanding Alternative Currency Loans and Swingline Loans shall
not be considered usage of the Aggregate Commitment for the purpose of
calculating such commitment fee. The commitment fee shall be payable in arrears
on the last Business Day of each calendar quarter during the term of this
Agreement commencing on September 30, 2004, and on the Revolving Credit Maturity
Date. Such commitment fee shall be distributed by the Administrative Agent to
the Lenders pro rata in accordance with the Lenders' respective Commitment
Percentages.
(b) Administrative Agent's and Other Fees. In order to compensate the
Administrative Agent for structuring and syndicating the Loans and for its
obligations hereunder, the Borrowers agree to pay to the Administrative Agent,
for its account, the fees set forth in the separate fee letter agreement
executed by the Borrowers and the Administrative Agent dated June 9, 2004.
SECTION 4.4 Manner of Payment.
(a) Loans Denominated in Dollars. Each payment by the US Borrower on
account of the principal of or interest on any Loan denominated in Dollars or of
any fee, commission or other amounts (including the Reimbursement Obligation)
payable to the Lenders under this Agreement or any Note (except as set forth in
Section 4.4(b)) shall be made in Dollars not later than 1:00 p.m. on the date
specified for payment under this Agreement to the Administrative Agent at the
Administrative Agent's Office for the account of the Lenders (other than as set
forth below) pro rata in accordance with their respective Commitment Percentages
(except as specified below) in immediately available funds and shall be made
without any set-off, counterclaim or deduction whatsoever. Any payment received
after such time but before 5:00 p.m. on such day shall be deemed a payment on
such date for the purposes of Section 12.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. Any
44
payment received after 5:00 p.m. shall be deemed to have been made on the next
succeeding Business Day for all purposes.
(b) Alternative Currency Loans. Each payment by the Borrowers on
account of the principal of or interest on the Alternative Currency Loans shall
be made in such Alternative Currency not later than 11:00 a.m. (the local time
of the Administrative Agent's Correspondent) on the date specified for payment
under this Agreement to the Administrative Agent's account with the
Administrative Agent's Correspondent for the account of the Alternative Currency
Lender (other than as set forth below) in immediately available funds, and shall
be made without any set-off, counterclaim or deduction whatsoever. Any payment
received after such time but before 5:00 p.m. (the local time of the
Administrative Agent's Correspondent) on such day shall be deemed a payment on
such date for the purposes of Section 12.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. Any payment
received after 5:00 p.m. (the local time of the Administrative Agent's
Correspondent) shall be deemed to have been made on the next succeeding Business
Day for all purposes.
(c) Pro Rata Treatment. Upon receipt by the Administrative Agent of
each such payment, the Administrative Agent shall distribute to each Lender at
its address for notices set forth herein its pro rata share of such payment in
accordance with such Lender's Commitment Percentage (except as specified below)
and shall wire advice of the amount of such credit to each Lender. Each payment
to the Administrative Agent of the Issuing Lender's fees or L/C Participants'
commissions shall be made in like manner, but for the account of the Issuing
Lender or the L/C Participants, as the case may be. Each payment to the
Administrative Agent of Administrative Agent's fees or expenses shall be made
for the account of the Administrative Agent. Each payment to the Administrative
Agent with respect to the Alternative Currency Note (including, without
limitation, the Alternative Currency Lender's fees or expenses) shall be made
for the account of the Alternative Currency Lender. Each payment to the
Administrative Agent with respect to the Swingline Note (including, without
limitation, the Swingline Lender's fees or expenses) shall be made for the
account of the Swingline Lender. Any amount payable to any Lender under Sections
4.8, 4.9, 4.10, 4.11 or 14.2 shall be paid to the Administrative Agent for the
account of the applicable Lender. Subject to Section 4.1(b)(ii), if any payment
under this Agreement or any Note shall be specified to be made upon a day which
is not a Business Day, it shall be made on the next succeeding day which is a
Business Day and such extension of time shall in such case be included in
computing any interest if payable along with such payment.
SECTION 4.5 Adjustments. If any Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or other obligations hereunder
resulting in such Lender's receiving payment of a proportion of the aggregate
amount of its Loans and accrued interest thereon or other such obligations
(other than pursuant to Sections 4.7, 4.8, 4.9 or 14.2 hereof) greater than its
pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Loans and such other
obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them;
provided that
45
(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 (x) any payment made by the Borrowers pursuant to and in accordance
with the express terms of this Agreement or (y) 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 Alternative Currency Loans, Swingline Loans and
Letters of Credit to any assignee or participant, other than to the Borrowers or
any Subsidiary thereof (as to which the provisions of this paragraph shall
apply).
Each Borrower and each Guarantor 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 each
Borrower and each Guarantor rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of each
Borrower and each Guarantor in the amount of such participation.
SECTION 4.6 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.4(b) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrowers on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to (a) with respect
to any Loan denominated in Dollars, the product of (i) the amount not made
available by such Lender in accordance with the terms hereof, times (ii) the
daily average Federal Funds Rate during such period as determined by the
Administrative Agent, times (iii) a fraction the numerator of which is the
number of days that elapse from and including such borrowing date to the date on
which such amount not made available by such Lender in accordance with the terms
hereof shall have become immediately available to the Administrative Agent and
the denominator of which is 360 and (b) with respect to any Loan denominated in
the Alternative Currency, the amount not made available by such Lender in
accordance with the terms hereof and interest thereon at a rate per annum equal
to the Administrative Agent's aggregate marginal cost (including the cost of
maintaining any required reserves or deposit insurance and of any fees,
penalties, overdraft charges or other costs or expenses incurred by the
Administrative Agent as a result of the failure to deliver funds hereunder) of
carrying such amount. A certificate of the Administrative Agent with respect to
any amounts owing under this Section 4.6 shall be conclusive, absent manifest
error. If such Lender's Commitment Percentage of such borrowing is not made
available to the Administrative Agent by such Lender within three (3) Business
Days after such borrowing date, the Administrative Agent shall be entitled to
recover such amount made available by the
46
Administrative Agent with interest thereon at the rate per annum applicable to
Base Rate Loans hereunder, on demand, from the Borrowers. The failure of any
Lender to make available its Commitment Percentage of any Loan requested by the
Borrowers shall not relieve it or any other Lender of its obligation, if any,
hereunder to make its Commitment Percentage of such Loan available on the
borrowing date, but no Lender shall be responsible for the failure of any other
Lender to make its Commitment Percentage of such Loan available on the borrowing
date. Notwithstanding anything set forth herein to the contrary, any Lender that
fails to make available its Commitment Percentage of any Loan shall not (a) have
any voting or consent rights under or with respect to any Loan Document (except
that the Commitment of such Lender may not be increased or extended without the
consent of such Lender) or (b) constitute a "Lender" (or be included in the
calculation of Required Lenders hereunder) for any voting or consent rights
under or with respect to any Loan Document.
SECTION 4.7 Redenomination of Alternative Currency Loans. If any
Alternative Currency Loan is required to bear interest based at the Base Rate
rather than the LIBOR Rate pursuant to any applicable provision hereof, such
Loan shall be funded in Dollars in an amount equal to the Dollar Amount of such
Alternative Currency Loan, all subject to the provisions of Section 2.4(b). The
Borrowers shall reimburse the Lenders upon any such conversion for any amounts
required to be paid under Section 4.9.
SECTION 4.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate and Alternative Currency
Availability. If, with respect to any Interest Period for any LIBOR Rate Loan,
the Administrative Agent, the Alternative Currency Lender or any Lender (after
consultation with the Administrative Agent) shall determine that (i) by reason
of circumstances affecting the foreign exchange and interbank markets generally,
deposits in Eurodollars or the Alternative Currency in the applicable amounts
are not being quoted via Telerate Page 3750 or the applicable Reuters Screen
Page or offered to the Administrative Agent or such Lender for such Interest
Period, (ii) a fundamental change has occurred in the foreign exchange or
interbank markets with respect to any Alternative Currency (including, without
limitation, changes in national or international financial, political or
economic conditions or currency exchange rates or exchange controls) or (iii) it
has become otherwise materially impractical for the Alternative Currency Lender
to make any Alternative Currency Loan, then the Administrative Agent shall
forthwith give notice thereof to the Borrowers. Thereafter, until the
Administrative Agent notifies the Borrowers that such circumstances no longer
exist, the obligation of the Lenders or the Alternative Currency Lender as
applicable, to make LIBOR Rate Loans or Alternative Currency Loans, as
applicable, and the right of the Borrowers to convert any Loan to or continue
any Loan as a LIBOR Rate Loan or an Alternative Currency Loan, as applicable,
shall be suspended, and (i) the Borrowers shall repay in full (or cause to be
repaid in full) the then outstanding principal amount of each such LIBOR Rate
Loan or Alternative Currency Loan, as applicable, together with accrued interest
thereon, on the last day of the then current Interest Period applicable to such
LIBOR Rate Loan or Alternative Currency Loan, as applicable, or (ii) solely with
respect to Revolving Credit Loans which are LIBOR Rate Loans, convert the then
outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan in
Dollars as of the last day of such Interest Period; provided that if the
Borrowers elect to make such conversion, the Borrowers shall pay to the
47
Administrative Agent and the Lenders any and all costs, fees and other expenses
incurred by the Administrative Agent and the Lenders in effecting such
conversion.
(b) Laws Affecting LIBOR Rate and Alternative Currency Availability.
If, after the date hereof, the introduction of, or any change in, any Applicable
Law or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any of the Lenders
(or any of their respective Lending Offices) with any request or directive
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, shall make it unlawful or impossible for any
of the Lenders (or any of their respective Lending Offices) to honor its
obligations hereunder to make or maintain any LIBOR Rate Loan or any Alternative
Currency Loan, such Lender shall promptly give notice thereof to the
Administrative Agent and the Administrative Agent shall promptly give notice to
the Borrowers and the other Lenders. Thereafter, until the Administrative Agent
notifies the Borrowers that such circumstances no longer exist, (i) the
obligations of the Lenders or the Alternative Currency Lender, as applicable, to
make LIBOR Rate Loans or Alternative Currency Loans, as applicable, and the
right of the Borrowers to convert any Loan or continue any Loan as a LIBOR Rate
Loan or the Alternative Currency Loan, as applicable, shall be suspended and
thereafter the Borrowers may select only Revolving Credit Loans which are Base
Rate Loans hereunder, and (ii) if any of the Lenders or the Alternative Currency
Lender, as applicable, may not lawfully continue to maintain a LIBOR Rate Loan
or the Alternative Currency Loan, as applicable, to the end of the then current
Interest Period applicable thereto as a LIBOR Rate Loan or Alternative Currency
Loan, as applicable, then (A) with respect to any Revolving Credit Loans which
are LIBOR Rate Loans, such LIBOR Rate Loans shall immediately be converted to a
Base Rate Loan in Dollars for the remainder of such Interest Period and (B) with
respect to any Alternative Currency Loans, such Alternative Currency Loans shall
be repaid in full, together with accrued interest thereon; provided that the
Borrowers shall pay to the Administrative Agent and the Lenders any and all
costs, fees and other expenses incurred by the Administrative Agent and the
Lenders in effecting such conversion or repayment, including, without
limitation, any amounts required to be paid under Section 4.9.
(c) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or advances, loans or other credit
extended or participated in by, any Lender (except any reserve requirement
reflected in the LIBOR Rate), the Alternative Currency Lender or the Issuing
Lender (or any of their respective Lending Offices);
(ii) subject any Lender, the Alternative Currency Lender or
the Issuing Lender (or any of their respective Lending Offices) to any tax of
any kind whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any LIBOR Rate Loan or Alternative
Currency Loan made by it, or change the basis of taxation of payments to such
Lender, the Alternative Currency Lender or the Issuing Lender (or any of their
respective Lending Offices) in respect thereof (except for Indemnified Taxes or
Other Taxes covered by Section 4.9(e)); or
48
(iii) impose on any Lender, the Alternative Currency Lender or
the Issuing Lender (or any of their respective Lending Offices) or the London
interbank market any other condition, cost or expense affecting this Agreement
or LIBOR Rate Loans or Alternative Currency Loans made by such Lender or the
Alternative Currency Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender or the Alternative Currency Lender of making, converting into or
maintaining any LIBOR Rate Loan or Alternative Currency Loan (or of maintaining
its obligation to make any such Loan), or to increase the cost to such Lender,
the Alternative Currency Lender or the Issuing Lender of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation to
participate in or to issue any Letter of Credit), or to reduce the amount of any
sum received or receivable by such Lender, the Alternative Currency Lender or
the Issuing Lender hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender, the Alternative Currency Lender or
the Issuing Lender, the Borrowers shall promptly pay to any such Lender, the
Alternative Currency Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender, the Alternative
Currency Lender or the Issuing Lender, as the case may be, for such additional
costs incurred or reduction suffered.
(d) Certificates for Reimbursement. A certificate of a Lender, the
Alternative Currency Lender or the Issuing Lender setting forth the amount or
amounts necessary to compensate such Lender, the Alternative Currency Lender or
the Issuing Lender or its holding company, as the case may be, as specified in
paragraph (c) of this Section 4.8 and delivered to the Borrowers shall be
conclusive absent manifest error. The Borrowers shall pay such Lender, the
Alternative Currency Lender or the Issuing Lender, as the case may be, the
amount shown as due on any such certificate within ten (10) days after receipt
thereof.
(e) Delay in Requests. Failure or delay on the part of any Lender, the
Alternative Currency Lender or the Issuing Lender to demand compensation
pursuant to this Section 4.8 shall not constitute a waiver of such Lender's, the
Alternative Currency Lender's or the Issuing Lender's right to demand such
compensation; provided that the Borrowers shall not be required to compensate a
Lender, the Alternative Currency Lender or the Issuing Lender pursuant to this
Section 4.8 for any increased costs incurred or reductions suffered more than
nine months prior to the date that such Lender, the Alternative Currency Lender
or the Issuing Lender, as the case may be, notifies the Borrowers of the Change
in Law giving rise to such increased costs or reductions and of such Lender's,
the Alternative Currency Lender's or the Issuing Lender's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
(f) Exchange Indemnification and Increased Costs. The Borrowers shall,
upon demand from the Administrative Agent, pay to the Administrative Agent or
any applicable Lender (including the Alternative Currency Lender), the amount of
(i) any loss or cost or increased cost incurred by the Administrative Agent or
any applicable Lender (including the Alternative Currency Lender), (ii) any
reduction in any amount payable to or in the effective return on the capital to
the Administrative Agent or any applicable Lender (including the
49
Alternative Currency Lender), or (iii) any currency exchange loss, that
Administrative Agent or any Lender (including the Alternative Currency Lender)
sustains as a result of any payment being made by any Borrower in a currency
other than that originally extended to such Borrower or as a result of any other
currency exchange loss incurred by the Administrative Agent or any applicable
Lender (including the Alternative Currency Lender) under this Agreement. A
certificate of the Administrative Agent setting forth the basis for determining
such additional amount or amounts necessary to compensate the Administrative
Agent or the applicable Lender (including the Alternative Currency Lender) shall
be conclusively presumed to be correct save for manifest error.
SECTION 4.9 Indemnity. The Borrowers hereby indemnify each of the
Lenders against any loss or expense (including, without limitation, any foreign
exchange costs) which may arise or be attributable to each Lender's obtaining,
liquidating or employing deposits or other funds acquired to effect, fund or
maintain any Loan (a) as a consequence of any failure by the Borrowers to make
any payment when due of any amount due hereunder in connection with a LIBOR Rate
Loan or the Alternative Currency Loan, (b) due to any failure of the Borrowers
to borrow, continue or convert on a date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation or (c) due to any payment,
prepayment or conversion of any LIBOR Rate Loan or any Alternative Currency Loan
on a date other than the last day of the Interest Period therefor. The amount of
such loss or expense shall be determined by the applicable Lender based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for determining such amount
or amounts necessary to compensate such Lender shall be forwarded to the
Borrowers through the Administrative Agent and shall be conclusively presumed to
be correct save for manifest error.
SECTION 4.10 Capital Requirements. If any Lender or the Issuing Lender
determines that any Change in Law affecting such Lender or the Issuing Lender or
any Lending Office of such Lender or such Lender's or the Issuing Lender's
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or the Issuing Lender's
capital or on the capital of such Lender's or the Issuing Lender's holding
company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by the Issuing Lender, to a level
below that which such Lender or the Issuing Lender or such Lender's or the
Issuing Lender's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Lender's policies and
the policies of such Lender's or the Issuing Lender's holding company with
respect to capital adequacy), then from time to time the Borrowers shall
promptly pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender or such Lender's or the Issuing Lender's holding company for any such
reduction suffered. A certificate of a Lender or the Issuing Lender setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Lender or its holding company, as the case may be, as specified in this Section
4.10 and delivered to the Borrowers shall be conclusive absent manifest error.
The Borrowers shall pay such Lender or the Issuing Lender, as the case may be,
the amount shown as due on any such certificate within ten (10) days
50
after receipt thereof. Failure or delay on the part of any Lender or the Issuing
Lender to demand compensation pursuant to this Section 4.10 shall not constitute
a waiver of such Lender's or the Issuing Lender's right to demand such
compensation; provided that the Borrowers shall not be required to compensate a
Lender or the Issuing Lender pursuant to this Section 4.10 for any increased
costs incurred or reductions suffered more than nine months prior to the date
that such Lender or the Issuing Lender, as the case may be, notifies the
Borrowers of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or the Issuing Lender's intention to claim compensation
therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the nine-month period referred to above shall
be extended to include the period of retroactive effect thereof).
SECTION 4.11 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrowers hereunder or under any other Loan Document shall
be made free and clear of and without reduction or withholding for any
Indemnified Taxes; provided that if any Borrower shall be required by Applicable
Law to deduct any Indemnified Taxes (including any Other Taxes) from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 4.11) the Administrative Agent, Lender or
Issuing Lender, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Borrower shall make
such deductions and (iii) such Borrower shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with Applicable
Law.
(b) Payment of Other Taxes by the Borrowers. Without limiting the
provisions of paragraph (a) above, the applicable Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with Applicable
Law.
(c) Indemnification by the Borrowers. The applicable Borrower shall
indemnify the Administrative Agent, each Lender and the Issuing Lender, within
thirty (30) days after demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section 4.11) paid by
the Administrative Agent, such Lender or the Issuing Lender, as the case may be,
and any 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. Notwithstanding the
foregoing, a Borrower shall not be obligated to make payment to the
Administrative Agent, each Lender and the Issuing Lender, as applicable, with
respect to penalties, interest and expenses if (i) written demand therefor was
not made within ninety (90) days from the date on which such Administrative
Agent, Lender or Issuing Lender, as applicable, received written notice of the
imposition of Indemnified Taxes or Other Taxes or (ii) such amounts arose or
accrued after such Borrower's satisfaction of the indemnification obligations
for which the applicable written demand was made pursuant to clause (i) above. A
certificate as to the amount of such payment or liability delivered to the US
Borrower by a Lender or the Issuing Lender (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Lender, shall be conclusive absent manifest error.
51
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the applicable Borrower to a Governmental
Authority, the applicable 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) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdictions in which the Borrowers are resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments hereunder
or under any other Loan Document shall deliver to the applicable Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by
Applicable Law or reasonably requested by the applicable Borrower or the
Administrative Agent, such properly completed and executed documentation
prescribed by Applicable Law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by the applicable Borrower or the Administrative Agent, shall deliver
such other documentation prescribed by Applicable Law or reasonably requested by
the applicable Borrower or the Administrative Agent as will enable the
applicable Borrower or the Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
applicable Borrower is a resident for tax purposes in the United States, any
Foreign Lender shall deliver to the applicable Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the applicable
Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form
W-8BEN (or successor form) claiming eligibility for benefits of an income tax
treaty to which the United States is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI (or successor form),
(iii) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank" within
the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder"
of the applicable Borrower within the meaning of section 881(c)(3)(B) of the
Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN (or successor form), or
(iv) any other form prescribed by Applicable Law as a basis
for claiming exemption from or a reduction in United States Federal withholding
tax duly completed together with such supplementary documentation as may be
prescribed by Applicable Law to permit the US Borrower to determine the
withholding or deduction required to be made.
52
(f) Treatment of Certain Refunds. If the Administrative Agent, a Lender
or the Issuing Lender determines, in its reasonable discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrowers or with respect to which the Borrowers have paid
additional amounts pursuant to this Section 4.11, it shall pay to the applicable
Borrower an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrowers under this Section
4.11 with respect to the Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent, such Lender or the
Issuing Lender, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided that the Borrowers, upon the request of the Administrative
Agent, such Lender or the Issuing Lender, agree to repay the amount paid over to
the applicable Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent, such Lender
or the Issuing Lender in the event the Administrative Agent, such Lender or the
Issuing Lender is required to repay such refund to such Governmental Authority.
This paragraph shall not be construed to require the Administrative Agent, any
Lender or the Issuing Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrowers
or any other Person.
(g) Survival. Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 4.11 shall survive the payment in full of the
Obligations and the termination of the Commitments.
SECTION 4.12 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 4.8 or Section 4.10, or requires the Borrowers to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 4.11, 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 4.8, Section 4.10 or Section 4.11, 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
Borrowers hereby agree to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 4.8 or Section 4.10, or if the Borrowers are required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 4.11, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrowers may, at their sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 14.9), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that
53
(i) the Borrowers shall have paid to the Administrative Agent
the assignment fee specified in Section 14.10,
(ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Revolving Credit Loans and
participations in Alternative Currency Loans, Swingline Loans and Letters of
Credit, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under
Section 4.9) from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrowers (in the case of all other amounts),
(iii) in the case of any such assignment resulting from a
claim for compensation under Section 4.8 or Section 4.10 or payments required to
be made pursuant to Section 4.11, such assignment will result in a reduction in
such compensation or payments thereafter, and
(iv) such assignment does not conflict with Applicable Law.
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrowers to require such assignment and delegation
cease to apply.
SECTION 4.13 Security. The Obligations shall be secured as provided in
the Security Documents.
SECTION 4.14 Evidence of Indebtedness.
(a) Extensions of Credit. The Extensions of Credit made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Extensions of Credit made
by the Lenders to the Borrowers and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrowers hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender made through the Administrative Agent, the Borrowers
shall execute and deliver to such Lender (through the Administrative Agent) a
Revolving Credit Note, and/or Alternative Currency Note, and/or Swingline Note,
as applicable, which shall evidence such Lender's Loans in addition to such
accounts or records. Each Lender may attach schedules to its Notes and endorse
thereon the date, amount and maturity of its Loans and payments with respect
thereto.
(b) Participations. In addition to the accounts and records referred to
in subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit, Alternative
Currency Loans and Swingline Loans. In the event of any
54
conflict between the accounts and records maintained by the Administrative Agent
and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error.
SECTION 4.15 Mandatory Cost Information. Each Lender shall supply the
Administrative Agent with any information required by the Administrative Agent
in order to calculate the Mandatory Cost in accordance with Schedule 1.1(b).
SECTION 4.16 US Borrower as Agent for UK Borrower. The UK Borrower
hereby irrevocably appoints and authorizes the US Borrower (a) to provide the
Administrative Agent with all notices with respect to Extensions of Credit
obtained for the benefit of either Borrower and all other notices and
instructions under this Agreement, (b) to take such action on behalf of the
Borrowers as the US Borrower deems appropriate on its behalf to obtain
Extensions of Credit and to exercise such other powers as are reasonably
incidental thereto to carry out the purposes of this Agreement and (c) to act as
its agent for service of process and notices required to be delivered under this
Agreement or the other Loan Documents, it being understood and agreed that
receipt by the US Borrower of any summons, notice or other similar item shall be
deemed effective receipt by the Borrowers and their Subsidiaries.
SECTION 4.17 USA Patriot Act. The Administrative Agent and ach Lender
hereby notifies the Borrowers that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrowers and Guarantors, which information includes the name and
address of each Borrower and Guarantor and other information that will allow
such Lender to identify such Borrower or Guarantor in accordance with the Act.
SECTION 4.18 Know Your Customer Checks.
(a) If:
(i) the introduction of or any change in (or in the
interpretation, administration or application of) any Applicable Law made after
the date of this Agreement;
(ii) any change in the status of the US Borrower or any
Subsidiary thereof or any Guarantor after the date of this Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of
its rights and obligations under this Agreement to a party that is not a Lender
prior to such assignment or transfer;
obliges the Administrative Agent or any Lender (or, in the case of paragraph
(iii) above, any prospective new Lender) to comply with "know your customer" or
similar identification procedures in circumstances where the necessary
information is not already available to it, such relevant parties shall promptly
upon the request of the Administrative Agent or any Lender supply, or procure
the supply of, such documentation and other evidence as is reasonably requested
by the Administrative Agent (for itself or on behalf of any Lender) or any
Lender (for itself or, in the case of the event described in paragraph (iii)
above, on behalf of any prospective
55
new Lender) in order for the Administrative Agent, such Lender or, in the case
of the event described in paragraph (iii) above, any prospective new Lender to
carry out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all Applicable Laws pursuant to the
transactions contemplated in the Loan Documents.
(b) Each Lender shall promptly upon the request of the Administrative
Agent supply, or procure the supply of, such documentation and other evidence as
is reasonably requested by the Administrative Agent (for itself) in order for
the Administrative Agent to carry out and be satisfied it has complied with all
necessary "know your customer" or other similar checks under all Applicable Laws
pursuant to the transactions contemplated in the Loan Documents.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
--------------------------------------------
SECTION 5.1 Closing. The closing shall take place at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. at 10:00 a.m. on July 28, 2004, or
on such other date and time as the parties hereto shall mutually agree.
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue or participate in the initial Letter of Credit, if any, is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. This Agreement, a Revolving Credit Note in
favor of each Lender requesting a Revolving Credit Note, a Swingline Note in
favor of the Swingline Lender (if requested thereby), an Alternative Currency
Note in favor of the Alternative Currency Lender (if requested thereby), the
Security Documents, together with any other applicable Loan Documents, shall
have been duly authorized, executed and delivered to the Administrative Agent by
the parties thereto, shall be in full force and effect and no Default or Event
of Default shall exist hereunder or thereunder.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the US Borrower. The
Administrative Agent shall have received a certificate from a Responsible
Officer of the US Borrower, in form and substance satisfactory to the
Administrative Agent, to the effect that all representations and warranties of
the Borrowers and the Guarantors contained in this Agreement and the other Loan
Documents are true, correct and complete in all material respects as of the
Closing Date, except for any representation and warranty made as of an earlier
date, which representation and warranty shall remain true and correct as of such
earlier date; provided that any representation and warranty that is qualified by
materiality or by reference to Material Adverse Effect shall be true, correct
and complete in all respects as of the Closing Date; that the Borrowers are not
in violation of any of the covenants contained in this Agreement and the other
Loan Documents; that, after giving effect to the transactions contemplated by
this Agreement, no Default or Event of Default has occurred and is continuing;
and that the Borrowers have satisfied each of the
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closing conditions to be satisfied by the Borrowers (other than those conditions
which are subject to the approval of the Administrative Agent).
(ii) Certificate of Secretary of the Borrowers. The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of each Borrower and each Guarantor certifying as to the
incumbency and genuineness of the signature of each officer of such Borrower or
Guarantor executing Loan Documents to which it is a party and certifying that
attached thereto is a true, correct and complete copy of (A) the articles of
incorporation (or equivalent document) of such Person and all amendments
thereto, certified as of a recent date by the appropriate Governmental Authority
in its jurisdiction of incorporation, (B) the bylaws (or equivalent document) of
such Person as in effect on the date of such certifications, (C) resolutions
duly adopted by the Board of Directors or equivalent governing body of such
Person authorizing the borrowings contemplated hereunder and the execution,
delivery and performance of this Agreement and the other Loan Documents to which
it is a party, and (D) each certificate required to be delivered pursuant to
Section 5.2(b)(iii).
(iii) Certificates of Good Standing. The Administrative Agent
shall have received certificates as of a recent date of the good standing of
each Borrower and each Guarantor under the laws of its jurisdiction of
organization and, to the extent requested by the Administrative Agent, each
other jurisdiction where such Person is qualified to do business and a
certificate of the relevant taxing authorities of such jurisdictions certifying
that such Person has filed required tax returns and owes no delinquent taxes.
(iv) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of counsel to the Borrowers addressed to the
Administrative Agent and the Lenders with respect to the Borrowers and the
Guarantors, the Loan Documents and such other matters as the Lenders shall
request, including favorable opinions of foreign counsel to the Borrowers, the
Guarantors and their Subsidiaries with respect to any Foreign Subsidiary whose
ownership interests are pledged pursuant to Section 5.2(c)(iii).
(c) Collateral.
(i) Filings and Recordings. All filings and recordations that
are necessary to perfect the security interests of the Lenders in the collateral
described in the Security Documents shall have been received by the
Administrative Agent and the Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that upon such filings and recordations
such security interests will constitute valid and perfected first priority Liens
therein (subject to Permitted Liens).
(ii) Pledged Collateral. The Administrative Agent shall have
received (A) original stock certificates or other certificates evidencing the
Capital Stock pledged pursuant to the Collateral Agreement, together with an
undated stock power for each such certificate duly executed in blank by the
registered owner thereof and (B) each original promissory note pledged pursuant
to the Collateral Agreement, together with an undated endorsement for each such
promissory note duly executed in blank by the holder thereof.
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(iii) Foreign Security Interests and Filings. Notwithstanding
the provisions of the foregoing subsections (c)(i) and (ii), with regard to any
Foreign Subsidiary whose share capital or other ownership interests are to be
pledged hereunder (it being acknowledged that for the purposes of this Section
5.2 such Foreign Subsidiaries shall be limited to the first-tier Foreign
Subsidiaries of the US Borrower or any Domestic Subsidiary which are organized
under the laws of Canada or the United Kingdom), the Borrowers may evidence
compliance with such subsections by providing a perfected first priority
security interest (or the equivalent thereof pursuant to the Applicable Laws and
practices of any relevant foreign jurisdiction) in the relevant indicia of
ownership of such Foreign Subsidiary; provided, however, that the Borrowers
shall cause to be provided an opinion of counsel in form and substance
satisfactory to the Administrative Agent as to the perfection, validity and
binding nature of the security interests so obtained.
(iv) Lien Search. The Administrative Agent shall have received
the results of a Lien search made against the US Borrower and each Guarantor
under the Uniform Commercial Code as in effect in any state reasonably
designated by the Administrative Agent in which any of its assets are located,
indicating among other things that its assets are free and clear of any Lien
except for (A) Permitted Liens or (B) Liens which are to be amended or
terminated pursuant to Section 5.4(d).
(v) Hazard and Liability Insurance. The Administrative Agent
shall have received certificates of insurance in the form required under the
Security Documents and otherwise in form and substance reasonably satisfactory
to the Administrative Agent.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Borrowers
shall have obtained all necessary approvals, authorizations and consents of any
Person and of all Governmental Authorities and courts having jurisdiction with
respect to the transactions contemplated by this Agreement and the other Loan
Documents.
(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Administrative Agent's good
faith judgment, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(iii) No Event of Default. No Default or Event of Default
shall have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the following financial statements of the US Borrower and its
Subsidiaries, all in form and substance
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reasonably satisfactory to the Administrative Agent and prepared in accordance
with GAAP (and, with respect to all audited financial statements, to be audited
by PricewaterhouseCoopers LLC or another independent certified public accounting
firm of recognized national standing):
(A) the audited consolidated financial statements of
the US Borrower and its Subsidiaries for the Fiscal Year ended
September 30, 2003 and the Fiscal Year ended September 30, 2002;
(B) the unaudited consolidated financial statements
of the US Borrower and its Subsidiaries for the Fiscal Year ended
September 30, 2003 (prepared on a pro forma basis after giving effect
to the divestiture of IOS Capital, LLC);
(C) the unaudited consolidated financial statements
of the US Borrower and its Subsidiaries for each interim quarterly
period ended at least forty-five (45) days prior to the Closing Date;
and
(D) the unaudited consolidated balance sheet of the
US Borrower and its Subsidiaries as of March 31, 2004 (determined on a
pro forma basis after giving effect to the transactions contemplated by
this Agreement and setting forth the capital structure of the US
Borrower and its Subsidiaries).
(ii) Financial Projections. The Administrative Agent shall
have received financial projections with respect to the US Borrower and its
Subsidiaries prepared by a Responsible Officer of the US Borrower, in form
reasonably satisfactory to the Administrative Agent, of balance sheets, income
statements and cash flow statements on a quarterly basis for the first year
following the Closing Date and an annual basis for the next three years
thereafter.
(iii) Financial Condition Certificate. The Borrowers shall
have delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent, and certified as accurate by a
Responsible Officer of the US Borrower, that (A) attached thereto are
calculations evidencing compliance on a pro forma basis with the covenants
contained in Article IX hereof, (B) the financial projections previously
delivered to the Administrative Agent represent the good faith estimates
(utilizing reasonable assumptions) of the financial condition and operations of
the US Borrower and its Subsidiaries, (C) attached thereto is a calculation of
the Leverage Ratio, determined on a pro forma basis as of the twelve (12)
consecutive calendar month period ending March 31, 2004, demonstrating to the
reasonable satisfaction of the Administrative Agent that the Leverage Ratio is
less than 3.10 to 1.00 and (D) attached thereto is a calculation of Corporate
EBITDA of the US Borrower and its Subsidiaries, determined on a pro forma basis
for the twelve (12) consecutive calendar month period ending March 31, 2004 and
after giving effect to the transactions contemplated hereby, demonstrating to
the reasonable satisfaction of the Administrative Agent that Corporate EBITDA
(as determined in such manner) is greater than $143,000,000.
(iv) Payment at Closing; Fee Letters. The Borrowers shall have
paid to the Administrative Agent and the Lenders the fees set forth or
referenced in Section 4.3 and any other accrued and unpaid fees or commissions
due hereunder (including, without limitation, legal
59
fees and expenses) and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing, as applicable, from the applicable Borrower in
accordance with Section 2.4(a), and a Notice of Account Designation specifying
the account or accounts to which the proceeds of any Loans made after the
Closing Date are to be disbursed.
(ii) Due Diligence. The Administrative Agent shall have
completed, to its reasonable satisfaction, all legal, environmental and other
due diligence with respect to the business, assets, liabilities, operations and
condition (financial or otherwise) of the Borrowers and the Guarantors and the
transactions contemplated hereby in scope and determination reasonably
satisfactory to the Administrative Agent.
(iii) Other Documents. All opinions, certificates and other
instruments and all proceedings in connection with the transactions contemplated
by this Agreement shall be reasonably satisfactory in form and substance to the
Administrative Agent. The Administrative Agent shall have received copies of all
other documents, certificates and instruments reasonably requested thereby with
respect to the transactions contemplated by this Agreement.
SECTION 5.3 Conditions to All Extensions of Credit. The obligations of
the Lenders to make any Extensions of Credit (including the initial Extension of
Credit, but excluding (i) any conversion or continuation of an existing Loan
that does not increase the aggregate amount of the outstanding Extensions of
Credit or (ii) any Revolving Credit Loan required to be made by the Lenders to
the US Borrower pursuant to Section 2.2 in order to refund or repay an
Alternative Currency Loan) any Loan and/or the Issuing Lender to issue or extend
any Letter of Credit are subject to the satisfaction of the following conditions
precedent on the relevant borrowing, conversion, continuation, issuance or
extension date:
(a) Continuation of Representations and Warranties. The representations
and warranties contained in Article VI shall be true and correct in all material
respects on and as of such borrowing, issuance or extension date with the same
effect as if made on and as of such date, except for any representation and
warranty made as of an earlier date, which representation and warranty shall
remain true and correct as of such earlier date; provided that any
representation or warranty that is qualified by materiality or by reference to
Material Adverse Effect shall be true and correct in all respects on and as of
such borrowing, issuance or extension date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing (i) on the borrowing, conversion or continuation date
with respect to such Loan or after giving effect to the Loans to be made,
converted or continued on such date or (ii) on the
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issue date with respect to such Letter of Credit or after giving effect to the
issuance or extension of such Letter of Credit on such date.
(c) Notices. The Administrative Agent shall have received a Notice of
Borrowing from the applicable Borrower in accordance with Section 2.4(a).
(d) Additional Documents. The Administrative Agent shall have received
each additional document, instrument, legal opinion or other item reasonably
requested by it.
SECTION 5.4 Post-Closing Conditions.
(a) Foreign Security Documents. Prior to August 11, 2004, as such date
may be extended by the Administrative Agent in its sole discretion, the
Administrative Agent shall have received a duly executed copy of a foreign
pledge agreement with respect to the share capital or other ownership interest
of any first tier Foreign Subsidiary of the US Borrower or any Domestic
Subsidiary thereof that is organized under the laws of Canada or the laws of
England and Wales, in each case in form and substance satisfactory to the
Administrative Agent, together with the delivery of any certificates,
authorizing board minutes, stock transfer forms, resolutions permitting free
transfer of the charged shares and such other documents reasonably required by
the Administrative Agent to perfect the security interest created under such
foreign pledge agreement (including, without limitation, an opinion of counsel
in form and substance satisfactory to the Administrative Agent as to the
perfection, validity and binding nature of the security interests so obtained).
(b) Corporate Documentation. Prior to August 28, 2004, as such date may
be extended by the Administrative Agent in its sole discretion, the
Administrative Agent shall have received a certificate as of a recent date of
the good standing of Upshur Coals Corporation in its jurisdiction of
organization, in each case in form and substance satisfactory to the
Administrative Agent.
(c) Deposit Account Control Agreements. Prior to August 28, 2004, as
such date may be extended by the Administrative Agent in its sole discretion,
the Administrative Agent shall have received all control agreements required to
be delivered by the Administrative Agent pursuant to Section 4.6 of the
Collateral Agreement, in each case in form and substance satisfactory to the
Administrative Agent.
(d) Lien Terminations. Prior to August 28, 2004, as such date may be
extended by the Administrative Agent in its sole discretion, deliver
documentation satisfactory to the Administrative Agent, evidencing the amendment
or termination of the financing statements set forth on Schedule 5.4, in each
case in form and substance satisfactory to the Administrative Agent.
(e) Material Contracts. Prior to August 11, 2004, as such date may be
extended by the Administrative Agent in its sole discretion, the Administrative
Agent shall have received a complete list of each Material Contract as of such
date.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
-----------------------------------------------
SECTION 6.1 Representations and Warranties. To induce the
Administrative Agent and the Lenders to enter into this Agreement and to induce
the Lenders to make Extensions of Credit, each Borrower hereby represents and
warrants to the Administrative Agent and Lenders both before and after giving
effect to the transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the US Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification and authorization except
where the failure to be qualified or authorized, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
The jurisdictions in which the US Borrower and its Subsidiaries are organized as
of the Closing Date are described on Schedule 6.1(a).
(b) Ownership. Each Subsidiary of the US Borrower as of the Closing
Date is listed on Schedule 6.1(b) (and each Finance Subsidiary and Subsidiary
SPC as of the Closing Date is designated as such on Schedule 6.1(b)). As of the
Closing Date, the capitalization of each Domestic Subsidiary and each Foreign
Subsidiary that is a first-tier Subsidiary of the US Borrower or any Domestic
Subsidiary consists of the number of shares, authorized, issued and outstanding,
of such classes and series, with or without par value, described on Schedule
6.1(b). All outstanding shares have been duly authorized and validly issued and
are fully paid and nonassessable, with no personal liability attaching to the
ownership thereof, and not subject to any preemptive or similar rights. The
shareholders of each Domestic Subsidiary and each Foreign Subsidiary that is a
first-tier Subsidiary of the US Borrower or any Domestic Subsidiary and the
number of shares owned by each as of the Closing Date are described on Schedule
6.1(b). As of the Closing Date, there are no outstanding stock purchase
warrants, subscriptions, options, securities, instruments or other rights of any
type or nature whatsoever, which are convertible into, exchangeable for or
otherwise provide for or permit the issuance of Capital Stock of each Domestic
Subsidiary and each Foreign Subsidiary that is a first-tier Subsidiary of the US
Borrower or any Domestic Subsidiary, except as described on Schedule 6.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
the US Borrower and its Subsidiaries has the right, power and authority and has
taken all necessary corporate and other action to authorize the execution,
delivery and performance of this Agreement and each of the other Loan Documents
to which it is a party in accordance with their respective terms. This Agreement
and each of the other Loan Documents have been duly executed and delivered by
the duly authorized officers of the US Borrower and each Subsidiary thereof
party thereto, and each such document constitutes the legal, valid and binding
obligation of the US Borrower or its Subsidiary party thereto, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization,
62
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by the US Borrower and its
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the Extensions of Credit hereunder and
the transactions provided for herein do not and will not, by the passage of
time, the giving of notice or otherwise, (i) require any Governmental Approval
or violate any Applicable Law relating to the US Borrower or any Subsidiary
thereof, (ii) conflict with, result in a breach of or constitute a default under
the articles of incorporation, bylaws or other organizational documents of the
US Borrower or any Subsidiary thereof or any indenture, agreement or other
instrument to which such Person is a party or by which any of its properties may
be bound or any Governmental Approval relating to such Person, (iii) result in
or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Person other than Liens arising
under the Loan Documents and under any Equal and Ratable Indebtedness or (iv)
require any consent or authorization of, filing with, or other act in respect
of, an arbitrator or Governmental Authority (except for (A) filings of financing
statements under the Uniform Commercial Code or (B) filings with respect to the
pledge of the ownership interests of any Foreign Subsidiary) and no consent of
any other Person is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.
(e) Compliance with Law; Governmental Approvals. Each of the US
Borrower and its Subsidiaries (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
(ii) is in compliance with each Governmental Approval applicable to it and in
compliance with all other Applicable Laws relating to it or any of its
respective properties, except where the failure to comply, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect, and (iii) has timely filed all material reports, documents and other
materials required to be filed by it under all Applicable Laws with any
Governmental Authority and has retained all material records and documents
required to be retained by it under Applicable Law, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(f) Tax Returns and Payments. Each of the US Borrower and its
Subsidiaries has duly filed or caused to be filed all federal, state, local and
other material tax returns required by Applicable Law to be filed, and has paid,
or made adequate provision for the payment of, all federal, state, local and
other material taxes, assessments and governmental charges or levies upon it and
its property, income, profits and assets which are due and payable (other than
(i) any amount the validity of which is currently being contested in good faith
by appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided for on the books of the US Borrower and its Subsidiaries
or (ii) to the extent that the failure to file such tax returns or pay or make
adequate provision for such taxes could not reasonably be expected to have a
Material Adverse Effect). Such returns accurately reflect in all material
63
respects all liability for taxes of the US Borrower and its Subsidiaries for the
periods covered thereby. There is to the knowledge of the Borrowers no ongoing
audit or examination or other investigation by any Governmental Authority of the
tax liability of the US Borrower and its Subsidiaries in each case, except as
could not reasonably be expected to have a Material Adverse Effect. No
Governmental Authority has asserted any Lien or other claim against the US
Borrower or any Subsidiary thereof with respect to unpaid taxes which has not
been discharged or resolved (other than (i) any amount the validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided for on the
books of the US Borrower and its Subsidiaries or (ii) Liens which could not
reasonably be expected to have a Material Adverse Effect). The charges, accruals
and reserves on the books of the US Borrower and its Subsidiaries in respect of
federal, state, local and other material taxes for all Fiscal Years and portions
thereof since the organization of the US Borrower and its Subsidiaries are in
the judgment of the Borrowers adequate, and the Borrowers do not anticipate any
material amount of additional taxes or assessments for any of such years.
(g) Intellectual Property Matters. Each of the US Borrower and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, service marks, service ▇▇▇▇ rights,
trade names, trade name rights, copyrights and rights with respect to the
foregoing which are required to conduct its business, except as could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. No event has occurred which permits, or after notice or lapse of
time or both would permit, the revocation or termination of any such rights, and
neither the US Borrower nor any Subsidiary thereof is liable to any Person for
infringement under Applicable Law with respect to any such rights as a result of
its business operations, except any such revocation termination or liability as
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(h) Environmental Matters.
(i) The properties owned, leased or operated by the US
Borrower and its Subsidiaries now or in the past do not contain, and to their
knowledge have not previously contained, any Hazardous Materials in amounts or
concentrations which (A) constitute or constituted a violation of applicable
Environmental Laws or (B) could give rise to liability under applicable
Environmental Laws, except where such violation or liability could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect;
(ii) The US Borrower, each Subsidiary and such properties and
all operations conducted in connection therewith are in compliance, and have
been in compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties or such operations which could
interfere with the continued operation of such properties or impair the fair
saleable value thereof, except for any such noncompliance or contamination that
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect;
(iii) Neither the US Borrower nor any Subsidiary thereof has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding
64
environmental matters, Hazardous Materials, or compliance with Environmental
Laws, nor does the US Borrower or any Subsidiary thereof have knowledge or
reason to believe that any such notice will be received or is being threatened,
except where such violation, alleged violation, non-compliance, liability or
potential liability which is the subject of such notice could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect;
(iv) Hazardous Materials have not been transported or disposed
of to or from the properties owned, leased or operated by the US Borrower and
its Subsidiaries in violation of, or in a manner or to a location which could
give rise to liability under, Environmental Laws, nor have any Hazardous
Materials been generated, treated, stored or disposed of at, on or under any of
such properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Laws, except where such violation
or liability could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrowers, threatened, under any
Environmental Law to which the US Borrower or any Subsidiary thereof is or will
be named as a potentially responsible party with respect to such properties or
operations conducted in connection therewith, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to US Borrower, any Subsidiary or such properties
or such operations, except where such proceeding, action, decree, order or other
requirement could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; and
(vi) There has been no release, or to the best of the
knowledge of the Borrowers, threat of release, of Hazardous Materials at or from
properties owned, leased or operated by the US Borrower or any Subsidiary, now
or in the past, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws, except where such violation or
liability could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(i) ERISA.
(i) The US Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit Plans
except for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired and except where a
failure to so comply could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. No liability has been incurred by
the US Borrower or any ERISA Affiliate which remains unsatisfied for any taxes
or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan
except for a liability that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect;
(ii) As of the Closing Date, no accumulated funding deficiency
(as defined in Section 412 of the Code) been incurred since October 1, 2000
(without regard to any waiver
65
granted under Section 412 of the Code), nor has any funding waiver from the
Internal Revenue Service been received or requested with respect to any Pension
Plan, nor has the US Borrower or any ERISA Affiliate failed to make any
contributions or to pay any amounts due and owing as required by Section 412 of
the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due
dates of such contributions under Section 412 of the Code or Section 302 of
ERISA, nor has there been any event requiring any disclosure under Section
4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;
(iii) Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect,
neither the US Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt
prohibited transaction described in Section 406 of the ERISA or Section 4975 of
the Code, (B) incurred any liability to the PBGC which remains outstanding other
than the payment of premiums and there are no premium payments which are due and
unpaid or (C) failed to make a required contribution or payment to a
Multiemployer Plan;
(iv) No Termination Event has occurred or is reasonably
expected to occur; and
(v) Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected to have a Material Adverse Effect, no proceeding, claim (other than a
benefits claim in the ordinary course of business), lawsuit and/or investigation
is existing or, to the best knowledge of the US Borrower after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) currently maintained or contributed to by the
US Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock. Neither the US Borrower nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used, directly or indirectly, in Regulation U of the
Board of Governors of the Federal Reserve System). No part of the proceeds of
any of the Loans or Letters of Credit will be used for purchasing or carrying
margin stock or for any purpose which violates, or which would be inconsistent
with, the provisions of Regulation T, U or X of such Board of Governors.
(k) Government Regulation. Neither the US Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company" (as each such term is defined or used in the Investment Company Act of
1940, as amended) and neither the US Borrower nor any Subsidiary thereof is, or
after giving effect to any Extension of Credit will be, subject to regulation
under the Public Utility Holding Company Act of 1935 or the Interstate Commerce
Act, each as amended, or any other Applicable Law which limits its ability to
incur or consummate the transactions contemplated hereby.
(l) Material Contracts. As of the Closing Date, each Material Contract
is, and after giving effect to the consummation of the transactions contemplated
by the Loan Documents will be, in full force and effect in accordance with the
terms thereof. Neither the US Borrower nor any
66
Subsidiary (nor, to the knowledge of the Borrowers, any other party thereto) is,
as of the Closing Date, in breach of or in default under any Material Contract
in any material respect.
(m) Employee Relations. Each of the US Borrower and its Subsidiaries
has a stable work force in place and is not, as of the Closing Date, party to
any collective bargaining agreement nor has any labor union been recognized as
the representative of its employees except as set forth on Schedule 6.1(m). The
Borrowers know of no pending, threatened or contemplated strikes, work stoppage
or other collective labor disputes involving its employees or those of its
Subsidiaries that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
(n) Burdensome Provisions. No Subsidiary is party to any agreement or
instrument or otherwise subject to any restriction or encumbrance that restricts
or limits its ability to make dividend payments or other distributions in
respect of its Capital Stock to the US Borrower or any Subsidiary or to transfer
any of its assets or properties to the US Borrower or any other Subsidiary in
each case other than as permitted by Section 10.11.
(o) Financial Statements. The Audited Financial Statements and the
Unaudited Financial Statements, copies of which have been furnished to the
Administrative Agent and each Lender, are complete and correct and fairly
present, in all material respects, on a Consolidated basis the assets,
liabilities and financial position of the US Borrower and its Subsidiaries as at
such dates, and the results of the operations and changes of financial position
for the periods then ended (other than customary, year end adjustments for the
Unaudited Financial Statements). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP,
except, in the case of the Unaudited Financial Statements, for the absence of
footnote disclosure. As of the Closing Date, the US Borrower and its
Subsidiaries have no Indebtedness, obligation or other unusual forward or
long-term commitment which is not fairly reflected in the foregoing financial
statements or in the notes thereto, except for obligations incurred since the
date of the most recent of such financial statements (i) in the ordinary course
of business as permitted by Section 10.1 or (ii) as otherwise set forth on
Schedule 6.1(o).
(p) No Material Adverse Change. Except as disclosed prior to the
Closing Date in publicly available filings made by the US Borrower with the
United States Securities and Exchange Commission, since September 30, 2003,
there has been no material adverse change in the properties, business,
operations, or condition (financial or otherwise) of the US Borrower and its
Subsidiaries, taken as a whole, and no event has occurred or condition arisen
that would reasonably be likely to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the US Borrower and each Subsidiary thereof
will be Solvent.
(r) Titles to Properties. Each of the US Borrower and each Subsidiary
thereof has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title or in
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leasehold interests as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(s) Liens. None of the properties and assets of the US Borrower or any
Subsidiary thereof is subject to any Lien, except Permitted Liens. No financing
statement under the Uniform Commercial Code of any state which names the US
Borrower or any Subsidiary thereof or any of their respective trade names or
divisions as debtor and which has not been terminated, has been filed in any
state or other jurisdiction and neither the US Borrower nor any Subsidiary
thereof has signed any such financing statement or any security agreement
authorizing any secured party thereunder to file any such financing statement,
except to perfect Permitted Liens.
(t) Litigation. Except for matters existing on the Closing Date and set
forth on Schedule 6.1(t), there are no actions, suits or proceedings pending
nor, to the knowledge of the Borrowers, threatened against or in any other way
relating adversely to or affecting the US Borrower or any Subsidiary thereof or
any of their respective properties in any court or before any arbitrator of any
kind or before or by any Governmental Authority that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions
provided for herein or therein, or (b) either individually or in the aggregate,
if determined adversely, could reasonably be expected to have a Material Adverse
Effect.
(u) Equal and Ratable Indebtedness/Ratings Trigger Events. As of the
date hereof, attached hereto as Schedule 6.1(u) is a true and complete list of
all Equal and Ratable Indebtedness. As of the date hereof, neither the US
Borrower nor any Subsidiary thereof is party to any agreement or other
arrangement which contains Ratings Trigger Events.
(v) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the US Borrower or
any Subsidiary thereof (other than financial projections, which shall be subject
to the standard set forth in subsection (x) below) and furnished to the Lenders
were, at the time the same were so furnished, true and correct in all material
respects as of the date so furnished to the Lenders.
(w) Disclosure. The Borrowers have disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which any of the Credit Parties are subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No financial statement,
material report, material certificate or other material information, taken as a
whole, furnished (whether in writing or orally) by or on behalf of the US
Borrower or any Subsidiary thereof to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, pro forma financial
information, estimated financial information and other projected or estimated
information, the Borrowers represent only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
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(x) Foreign Subsidiary Representations. As of the Closing Date, (i)
each Foreign Subsidiary is subject to civil and commercial Laws with respect to
its obligations under this Agreement and the other Loan Documents to which it is
a party (collectively as to such Foreign Subsidiary, the "Applicable Foreign
Subsidiary Documents"), and the execution, delivery and performance by such
Foreign Subsidiary of the Applicable Foreign Subsidiary Documents constitute and
will constitute private and commercial acts and not public or governmental acts;
(ii) neither such Foreign Subsidiary nor any of its property has any immunity
from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) under the laws of the jurisdiction in which such Foreign
Subsidiary is organized and existing in respect of its obligations under the
Applicable Foreign Subsidiary Documents; (iii) the Applicable Foreign Subsidiary
Documents are in proper legal form under the Applicable Laws of the jurisdiction
in which such Foreign Subsidiary is organized and existing for the enforcement
thereof against such Foreign Subsidiary under the Applicable Laws of such
jurisdiction, and to ensure the legality, validity, enforceability, priority or
admissibility in evidence of the Applicable Foreign Subsidiary Documents; (iv)
it is not necessary to ensure the legality, validity, enforceability, priority
or admissibility in evidence of the Applicable Foreign Subsidiary Documents that
the Applicable Foreign Subsidiary Documents be filed, registered or recorded
with, or executed or notarized before, any court or other authority in the
jurisdiction in which such Foreign Subsidiary is organized and existing or that
any registration charge or stamp or similar tax be paid on or in respect of the
Applicable Foreign Subsidiary Documents or any other document, except for (A)
any such filing, registration, recording, execution or notarization as has been
made or is not required to be made until the Applicable Foreign Subsidiary
Document or any other document is sought to be enforced and (B) any charge or
tax as has been timely paid; (v) there is no tax, levy, impost, duty, fee,
assessment or other governmental charge, or any deduction or withholding,
imposed by any Governmental Authority in or of the jurisdiction in which such
Foreign Subsidiary is organized and existing either (A) on or by virtue of the
execution or delivery of the Applicable Foreign Subsidiary Documents or (B) on
any payment to be made by such Foreign Subsidiary pursuant to the Applicable
Foreign Subsidiary Documents, except as has been disclosed to the Administrative
Agent; (vi) the execution, delivery and performance of the Applicable Foreign
Subsidiary Documents executed by such Foreign Subsidiary are, under applicable
foreign exchange control regulations of the jurisdiction in which such Foreign
Subsidiary is organized and existing, not subject to any notification or
authorization except (A) such as have been made or obtained or (B) such as
cannot be made or obtained until a later date (provided that any notification or
authorization described in clause (B) shall be made or obtained as soon as is
reasonably practicable).
SECTION 6.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date (except those that are expressly made as of a specific date), shall
survive the Closing Date and shall not be waived by the execution and delivery
of this Agreement, any investigation made by or on behalf of the Lenders or any
borrowing hereunder.
69
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
---------------------------------
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 14.11, the Borrowers will furnish or cause to be furnished to the
Administrative Agent at the Administrative Agent's Office at the address set
forth in Section 14.1 and to the Lenders at their respective addresses as set
forth on Schedule 1.1(a), or such other office as may be designated by the
Administrative Agent and Lenders from time to time:
SECTION 7.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days after each fiscal quarter of each Fiscal Year
(or if earlier, the date of any required public filing thereof), an unaudited
Consolidated balance sheet of the US Borrower and its Subsidiaries as of the
close of such fiscal quarter and unaudited Consolidated statements of income and
cash flows for the fiscal quarter then ended and that portion of the Fiscal Year
then ended, including the notes thereto, all in reasonable detail setting forth
in comparative form the corresponding figures as of the end of and for the
corresponding period in the preceding Fiscal Year and prepared by the US
Borrower in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the period, and
certified by the chief financial officer of the US Borrower to present fairly in
all material respects the financial condition of the US Borrower and its
Subsidiaries on a Consolidated basis as of their respective dates and the
results of operations of the US Borrower and its Subsidiaries for the respective
periods then ended, subject to normal year end adjustments, including the
absence of notes (other than as required in by any rules or regulations of the
United States Securities and Exchange Commission).
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year (or if earlier,
the date of any required public filing thereof), an audited Consolidated balance
sheet of the US Borrower and its Subsidiaries as of the close of such Fiscal
Year and audited Consolidated statements of income, retained earnings and cash
flows for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures as
of the end of and for the preceding Fiscal Year and prepared by audited by
PricewaterhouseCoopers LLP or another independent certified public accounting
firm of recognized national standing in accordance with GAAP and, if applicable,
containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and
practices during the year, and accompanied by a report thereon by such certified
public accountants that is not qualified with respect to scope limitations
imposed by the US Borrower or any Subsidiary thereof or with respect to
accounting principles followed by the US Borrower or any Subsidiary thereof not
in accordance with GAAP.
70
(c) Information required to be delivered pursuant to this Section 7.1
shall be deemed to have been delivered if such information, or one or more
annual, quarterly or other reports containing such information, shall have been
posted on the US Borrower's website on the internet at ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇ or by
the Administrative Agent on an IntraLinks or similar site to which the Lenders
have been granted access or shall be available on the website of the Securities
and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇; provided that the US Borrower
shall deliver paper copies of such information to the Administrative Agent or
any Lender that requests such delivery; and provided further that such
information shall only be deemed to have been delivered when posted on any such
website upon notification by the US Borrower to the Administrative Agent and the
Lenders of such posting.
SECTION 7.2 Officer's Compliance Certificate. As soon as practicable
and in any event within fifteen (15) days after the date that financial
statements are required to be delivered pursuant to Sections 7.1(a) or (b), a
certificate of the chief financial officer or the treasurer of the US Borrower
in the form of Exhibit F attached hereto (an "Officer's Compliance
Certificate").
SECTION 7.3 Accountants' Certificate. At each time financial statements
are delivered pursuant to Section 7.1(b), a certificate of the independent
public accountants certifying such financial statements that in connection with
their audit, nothing came to their attention that caused them to believe that
the US Borrower and its Subsidiaries failed to comply with the terms, covenants,
provisions or conditions of Articles IX and X, insofar as they relate to
financial and accounting matters or, if such is not the case, specifying such
non-compliance and its nature and period of existence.
SECTION 7.4 Other Reports.
(a) Promptly after becoming available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the US Borrower generally, and copies of all annual, regular,
periodic and special reports and registration statements which the US Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto; and
(b) Such other information regarding the operations, business affairs
and financial condition of the US Borrower or any Subsidiary thereof as the
Administrative Agent or any Lender may reasonably request.
SECTION 7.5 Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after obtaining knowledge thereof) telephonic and
written notice of:
(a) any Default or Event of Default;
(b) any matter, including, without limitation, (i) breach or
non-performance of, or any default under, any Material Contract of the US
Borrower or any Subsidiary thereof, (ii) any
71
dispute, litigation, investigation, proceeding or suspension between the US
Borrower or any Subsidiary thereof and any Governmental Authority, or (iii) the
filing or commencement of, or any material development in, any litigation,
proceeding or investigation affecting the US Borrower or any Subsidiary thereof,
including pursuant to any applicable Environmental Laws, that has resulted or
could reasonably be expected to result in a Material Adverse Effect;
(c) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by the
US Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by the US Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition of withdrawal liability pursuant to
Section 4202 of ERISA and (iv) the US Borrower obtaining knowledge or reason to
know that the US Borrower or any ERISA Affiliate has filed or intends to file a
notice of intent to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA; and
(d) any material change in accounting policies or financial reporting
practices by the US Borrower or any Subsidiary thereof.
Each notice pursuant to this Section 7.5 shall be accompanied by a statement of
a Responsible Officer of the US Borrower setting forth details of the occurrence
referred to therein and stating what action the US Borrower or any Subsidiary
thereof, as applicable, has taken and proposes to take with respect thereto.
Each notice pursuant to Section 7.5(a) shall describe with particularity any and
all provisions of this Agreement and any other Loan Document that have been
breached.
SECTION 7.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the US
Borrower to the Administrative Agent or any Lender whether pursuant to this
Article VII or any other provision of this Agreement or any of the Security
Documents, shall, at the time the same is so furnished, comply with the
representations and warranties set forth in Section 6.1(v) and (w).
ARTICLE VIII
AFFIRMATIVE COVENANTS
---------------------
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 14.11, the Borrowers will, and will cause each
Subsidiary thereof to:
SECTION 8.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 10.4, preserve and maintain its separate
corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business, and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction
72
where the nature and scope of its activities require it to so qualify under
Applicable Law, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 8.2 Maintenance of Property. In addition to the requirements of
any of the Security Documents, protect and preserve all properties necessary and
material to its business, including copyrights, patents, trade names, service
marks and trademarks; maintain in good working order and condition all
buildings, equipment and other tangible real and personal property; and from
time to time make or cause to be made all renewals, replacements and additions
to such property necessary for the conduct of its business, so that the business
carried on in connection therewith may be conducted in a commercially reasonable
manner, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
SECTION 8.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law and as are required by any Security Documents (including, without
limitation, hazard and business interruption insurance), and on the Closing Date
and from time to time thereafter deliver to the Administrative Agent upon its
request a detailed list of the insurance then in effect, stating the names of
the insurance companies, the amounts and limits of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
SECTION 8.4 Accounting Methods and Financial Records. Maintain a system
of accounting, and keep such books, records and accounts (which shall be true
and complete in all material respects) as may be required or as may be necessary
to permit the preparation of financial statements in accordance with GAAP and in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties, except where the failure to
comply could not reasonably be expected to have a Material Adverse Effect.
SECTION 8.5 Payment and Performance of Obligations. Pay and perform (a)
all material taxes, assessments and other governmental charges levied or
assessed upon it or any of its property, and (b) all material lawful claims
which, if unpaid, would by law become a Lien upon its property, unless the same
are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves are maintained with respect thereto in
accordance with GAAP.
SECTION 8.6 Compliance With Laws and Approvals. Observe and remain in
compliance in all material respects with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable to the
conduct of its business, except where the failure to so comply or maintain such
Governmental Approval could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
SECTION 8.7 Environmental Laws. In addition to and without limiting the
generality of Section 8.6, (a) comply with, and use commercially reasonable
efforts to ensure such compliance by all tenants and subtenants, if any, with
all applicable Environmental Laws
73
and obtain and comply with and maintain, and use commercially reasonable efforts
to ensure that all tenants and subtenants, if any, obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except where the failure to do
so could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, (b) conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws except where the failure
to conduct or complete such actions, or comply with such orders or directions,
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, and, and (c) defend, indemnify and hold harmless the
Administrative Agent and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the presence
of Hazardous Materials, or the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of the US Borrower or
any such Subsidiary, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent that any of the
foregoing directly result from the gross negligence or willful misconduct of the
party seeking indemnification therefor.
SECTION 8.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 8.6, (a) except where the failure to so comply could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, comply with all material applicable provisions of ERISA and the
Code with respect to all Employee Benefit Plans and (b) furnish to the
Administrative Agent upon the Administrative Agent's request such additional
information about any Employee Benefit Plan as may be reasonably requested by
the Administrative Agent.
SECTION 8.9 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time upon reasonable prior
notice and during normal business hours, to visit and inspect its properties;
inspect, copy and make extracts from its books, records and files, including,
but not limited to, management letters prepared by independent accountants; and
discuss with its principal officers, and its independent accountants, its
business, assets, liabilities, financial condition, results of operations and
business prospects (provided such Person shall be provided with the opportunity
to participate in any discussions with its independent accountants). Upon the
occurrence and during the continuance of any Event of Default, the
Administrative Agent or any Lender may do any of the foregoing at any time
during normal business hours without notice.
SECTION 8.10 Additional Subsidiaries.
(a) Additional Domestic Subsidiaries. Except with respect to any newly
created or acquired Subsidiary SPC, notify the Administrative Agent of the
creation or acquisition of any
74
Domestic Subsidiary and promptly thereafter (and in any event within thirty (30)
days), cause such Person to (i) become a Guarantor by delivering to the
Administrative Agent a duly executed supplement to the Guaranty Agreement or
such other document as the Administrative Agent shall deem appropriate for such
purpose, (ii) pledge a security interest in all Collateral owned by such
Domestic Subsidiary by delivering to the Administrative Agent a duly executed
supplement to each Security Document or such other document as the
Administrative Agent shall deem appropriate for such purpose and comply with the
terms of each Security Document, (iii) deliver to the Administrative Agent such
documents and certificates referred to in Section 5.2 as may be reasonably
requested by the Administrative Agent, (iv) deliver to the Administrative Agent
such Capital Stock or other certificates and stock or other transfer powers
evidencing the Capital Stock of such Person, (v) deliver to the Administrative
Agent such updated Schedules to the Loan Documents as requested by the
Administrative Agent with respect to such Person and (vi) deliver to the
Administrative Agent such other documents (including, without limitation,
favorable legal opinions) as may be reasonably requested by the Administrative
Agent, all in form, content and scope reasonably satisfactory to the
Administrative Agent.
(b) Additional Foreign Subsidiaries. Except with respect to any newly
created or acquired Subsidiary SPC, notify the Administrative Agent at the time
that any Person becomes a first tier Foreign Subsidiary of US Borrower or any
Domestic Subsidiary, and promptly thereafter (and in any event within forty-five
(45) days after notification), cause (i) the US Borrower or the applicable
Domestic Subsidiary to deliver to the Administrative Agent Security Documents
pledging sixty-five percent (65%) of the total outstanding voting Capital Stock
of such new Foreign Subsidiary, one hundred percent (100%) of the total
outstanding non-voting Capital Stock and a consent thereto executed by such new
Foreign Subsidiary (including, without limitation, if applicable, original stock
certificates or other certificates (or the equivalent thereof pursuant to the
Applicable Laws and practices of any relevant foreign jurisdiction) evidencing
the capital stock or other ownership interests of such new Foreign Subsidiary,
together with an appropriate undated stock power for each certificate duly
executed in blank by the registered owner thereof), (ii) such Person to deliver
to the Administrative Agent such documents and certificates referred to in
Section 5.2 as may be reasonably requested by the Administrative Agent, (iii)
deliver to the Administrative Agent such updated Schedules to the Loan Documents
as requested by the Administrative Agent with respect to such Person and (iv)
such Person to deliver to the Administrative Agent such other documents
(including, without limitation, favorable legal opinions) as may be reasonably
requested by the Administrative Agent, all in form, content and scope reasonably
satisfactory to the Administrative Agent.
(c) Existing Foreign Subsidiaries. Promptly upon the request of the
Administrative Agent (and in any event within forty-five (45) days after such
request) cause the US Borrower or the applicable Domestic Subsidiary to deliver
each of the documents referred to in subsection (b) above with respect to any
first-tier Foreign Subsidiary of the US Borrower or a Domestic Subsidiary which
exists as of the Closing Date but whose ownership interests have not been
previously pledged to the Administrative Agent and the Lenders.
SECTION 8.11 Use of Proceeds. The Borrowers shall use the proceeds of
the Extensions of Credit (a) to finance the acquisition of Capital Assets by the
US
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Borrower and its Subsidiaries and (b) for working capital and other general
corporate purposes of the US Borrower and its Subsidiaries, including the
payment of certain fees and expenses incurred in connection with the
transactions contemplated hereby.
SECTION 8.12 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent the Required Lenders (through the Administrative Agent) may reasonably
require to document and consummate the transactions contemplated hereby and to
vest completely in and insure the Administrative Agent and the Lenders their
respective rights under this Agreement, the Notes, the Letters of Credit and the
other Loan Documents.
ARTICLE IX
FINANCIAL COVENANTS
-------------------
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11, the US Borrower and its Subsidiaries on a Consolidated
basis will not:
SECTION 9.1 Maximum Leverage Ratio: As of any fiscal quarter end,
permit the Leverage Ratio to be greater than the corresponding ratio set forth
below:
Period Ratio
------------------------------------------------ -------------------------------
Closing Date through March 30, 2005 3.75 to 1.00
March 31, 2005 through September 29, 2005 3.50 to 1.00
September 30, 2005 through September 29, 2006 3.25 to 1.00
Thereafter 3.00 to 1.00
SECTION 9.2 Maximum Senior Leverage Ratio: As of any fiscal quarter
end, permit the Senior Leverage Ratio to be greater than the corresponding ratio
set forth below:
Period Ratio
------------------------------------------------- ------------------------------
Closing Date through September 29, 2005 2.25 to 1.00
September 30, 2005 through September 29, 2006 2.00 to 1.00
Thereafter 1.75 to 1.00
SECTION 9.3 Minimum Interest Coverage Ratio: As of any fiscal quarter
end, permit the Interest Coverage Ratio to be less than the corresponding ratio
set forth below:
Period Ratio
------------------------------------------------ -------------------------------
Closing Date through September 29, 2006 2.00 to 1.00
Thereafter 2.50 to 1.00
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SECTION 9.4 Maximum Capital Expenditures. Permit the aggregate amount
of Capital Expenditures (other than Rental Pool Capital Expenditures) made
during any Fiscal Year to exceed $50,000,000 (such amount, the "baseline
amount"); provided that, notwithstanding the foregoing, so long as no Default or
Event of Default has occurred and is continuing or would result from any such
Capital Expenditure, commencing with the fiscal year ending September 30, 2005,
the maximum amount of such Capital Expenditures permitted during any Fiscal Year
may be increased by an amount equal to the amount by which the baseline amount
for the prior Fiscal Year exceeds the amount of such Capital Expenditures made
during the prior Fiscal Year.
SECTION 9.5 Asset Coverage Ratio. As of any fiscal quarter end, permit
the Asset Coverage Ratio, to be less than 1.50 to 1.00.
SECTION 9.6 Minimum Net Worth. As of any fiscal quarter end, permit Net
Worth to be less than the sum of (a) $1,390,000,000 plus (b) an aggregate amount
equal to the sums of fifty percent (50%) of the Net Income earned in each full
fiscal year ending after September 30, 2003 (with no deduction for a net loss in
any such fiscal year).
ARTICLE X
NEGATIVE COVENANTS
------------------
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11, the Borrowers have not and will not permit any
Subsidiary thereof to:
SECTION 10.1 Limitations on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant
to Section 10.1(b));
(b) Indebtedness in connection with Hedging Agreements which are
non-speculative;
(c) Indebtedness existing on the Closing Date and not otherwise
permitted under this Section 10.1, as set forth on Schedule 10.1(c), and the
renewal, refinancing, extension and replacement (but not the increase in the
aggregate principal amount) thereof;
(d) purchase money Indebtedness and Indebtedness incurred in connection
with Capital Leases in an aggregate amount not to exceed $25,000,000 on any date
of determination;
(e) Guaranty Obligations with respect to Indebtedness permitted
pursuant to subsections (a) through (d) of this Section 10.1;
(f) Guaranty Obligations with respect to Operating Lease payments;
(g) Guaranty Obligations arising in connection with:
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(i) the GE Program Agreements; or
(ii) other similar program agreements (A) which are executed
in connection with leasing or financing arrangements by third parties
of products distributed by the US Borrower and its Subsidiaries (which
leasing or financing arrangements, in the absence of such Guaranty
Obligations, do not meet the leasing, financing or other applicable
criteria of the applicable third party lessor or financier contained in
the applicable program agreement) and (B) which contain terms and
provisions (including, without limitation, Guaranty Obligations) which
are no broader in scope and obligation than the terms and provisions
contained in the GE Program Agreements;
in an aggregate amount not to exceed $50,000,000 at any time;
(h) Indebtedness of the US Borrower or its Subsidiaries relating to
Rental Pool Capital Expenditures in an aggregate amount not to exceed
$125,000,000 at any time;
(i) Indebtedness owed (i) by the US Borrower to any Guarantor, (ii) by
any Guarantor to the US Borrower, (iii) by any Guarantor to any other Guarantor
or (iv) by any Subsidiary that is not a Guarantor to any other Subsidiary that
is not a Guarantor;
(j) Indebtedness of any Finance Subsidiary or Subsidiary SPC to a third
Person; provided that such Indebtedness shall be non-recourse to, and shall not
otherwise be guaranteed by (other than performance guarantees not involving a
monetary obligation with respect to collection, servicing or similar functions
in connection with such Indebtedness), the US Borrower or any Domestic
Subsidiary thereof;
(k) Indebtedness of any Foreign Subsidiary to a third Person; provided
that such Indebtedness shall be non-recourse to, and shall not otherwise be
guaranteed by (other than performance guarantees not involving a monetary
obligation in connection with such Indebtedness), the US Borrower or any
Domestic Subsidiary thereof;
(l) Indebtedness incurred by the US Borrower or any Subsidiary thereof
arising from agreements providing for indemnification, adjustment of purchase
price or similar obligations incurred or assumed in connection with any
Permitted Acquisition;
(m) Indebtedness of any Person that becomes a Subsidiary of the US
Borrower after the Closing Date in connection with any Permitted Acquisition and
the refinancing, refunding, renewal and extension (but not the increase in the
aggregate principal amount) thereof; provided that (i) such Indebtedness exists
at the time such Person becomes a Subsidiary and is not created in contemplation
of, or in connection with, such Person becoming a Subsidiary and (ii)
notwithstanding anything to the contrary contained in this Agreement, neither
the US Borrower nor any other Subsidiary thereof (other than such Person) shall
have any liability or other obligation with respect to such Indebtedness;
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(n) Indebtedness of any Subsidiary of the US Borrower to the US
Borrower or to any other Subsidiary of the US Borrower where the loan, advance
or extension of credit to such Subsidiary is permitted pursuant to Section 10.3;
(o) Indebtedness incurred in connection with a Permitted Asset
Securitization; and
(p) Indebtedness of the US Borrower or any Guarantor thereof not
otherwise permitted pursuant to this Section 10.1 in an aggregate amount not to
exceed $200,000,000.
SECTION 10.2 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including, without limitation, shares of Capital Stock), real or personal,
whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies not yet due or as to which the period of grace, if any, related thereto
has not expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
(b) Liens of materialmen, mechanics, carriers, warehousemen,
processors, repairmen or landlords in the ordinary course of business, (i) which
are not overdue for a period of more than thirty (30) days, (ii) which are being
contested in good faith and by appropriate proceedings or (iii) for which a
sufficient bond has been posted in lieu of such Lien;
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, materially detract from the value of such property or materially
impair the use thereof in the ordinary conduct of business;
(e) deposits to secure the performance of bids, tenders, trade
contracts, liability to insurance carriers and leases (other than Indebtedness),
statutory obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds, contractual or warranty obligations and other
obligations of a like nature incurred in the ordinary course of business;
(f) Liens of a collecting bank arising in the ordinary course of
business under Section 4-208 of the Uniform Commercial Code in effect in the
relevant jurisdiction;
(g) Liens of the Collateral Agent for the benefit of the Collateral
Agent and the Secured Parties;
(h) Liens not otherwise permitted by this Section 10.2 and in existence
on the Closing Date and described on Schedule 10.2 and any renewals or
extensions thereof, provided that the
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property covered thereby is not increased and any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 10.1(c);
(i) Liens securing Indebtedness permitted under Section 10.1; provided
that the aggregate principal amount of all Indebtedness secured by such Liens
shall at no time exceed $50,000,000;
(j) Liens on property or assets of any Subsidiary acquired pursuant to
a Permitted Acquisition, or on property or assets of any Subsidiary which are in
existence at the time that such Subsidiary is acquired pursuant to a Permitted
Acquisition (provided that such Liens (i) are not incurred in connection with,
or in anticipation of, such Permitted Acquisition and (ii) do not attach to any
other property or assets of the US Borrower and its Subsidiaries);
(k) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 12.1(m) or securing appeal or other surety
bonds related to such judgments;
(l) Liens on trade receivables of the US Borrower or assets of Finance
Subsidiaries or Subsidiary SPCs arising pursuant to a Permitted Asset
Securitization (which Liens shall be limited to accounts, including lease
receivables, and chattel paper therein);
(m) Liens securing Indebtedness permitted under Sections 10.1(d) and
(h); provided that (i) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness and (ii) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed one hundred
percent (100%) of the original purchase price or lease payment amount of such
property at the time it was acquired;
(n) Liens granted to GE Capital Information Technology Solutions, Inc.
or any of its Affiliates by the US Borrower or to GE VFS Canada Limited
Partnership or any of its Affiliates by IKON Canada pursuant to and in
accordance with the GE Program Agreements; provided that such Liens do not at
any time encumber any property other than the equipment, contracts and payment
rights subject to the GE Program Agreements; and
(o) Liens on the assets of Foreign Subsidiaries in connection with
securitizations permitted pursuant to Section 10.1(k).
SECTION 10.3 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any Capital Stock, interests in any partnership or joint venture
(including, without limitation, the creation or capitalization of any
Subsidiary), evidence of Indebtedness or other obligation or security,
substantially all or a portion of the business or assets of any other Person or
any other investment or interest whatsoever in any other Person, or make or
permit to exist, directly or indirectly, any loans, advances or extensions of
credit to, or any investment in cash or by delivery of property in, any Person
except:
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(a) (i) investments or interests existing on the Closing Date in
Subsidiaries, (ii) the other loans, advances and investments existing on the
Closing Date which are described on Schedule 10.3 and (iii) investments or
interests in Subsidiaries formed after the Closing Date and made in accordance
with the terms and conditions of this Agreement (including this Section 10.3);
(b) investments in the following (such investments, "Cash
Equivalents"):
(i) marketable direct obligations issued or unconditionally
guaranteed by the United States of America or any agency thereof
maturing within one (1) year from the date of acquisition thereof,
(ii) commercial paper maturing no more than two hundred
seventy (270) days from the date of creation thereof and currently
having the highest rating obtainable from either Standard & Poor's
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or
▇▇▇▇▇'▇ Investors Service, Inc.,
(iii) domestic and eurodollar certificates of deposit maturing
no more than one hundred eighty (180) days from the date of creation
thereof issued by commercial banks incorporated under the laws of the
United States of America, the United Kingdom or Canada, each having
combined capital, surplus and undivided profits (less any undivided
losses) of not less than $500,000,000 and having a rating of "A" or
better by a nationally recognized rating agency; provided, that the
aggregate amount invested in such certificates of deposit shall not at
any time exceed $5,000,000 for any one such certificate of deposit and
$10,000,000 for any one such bank,
(iv) time deposits maturing no more than thirty (30) days from
the date of creation thereof with (A) commercial banks or savings banks
or savings and loan associations organized under the laws of the United
States or any State thereof each having membership either in the FDIC
or the deposits of which are insured by the FDIC and in amounts not
exceeding the maximum amounts of insurance thereunder or (B) commercial
banks organized under the laws of the United Kingdom or Canada
satisfying the criteria described in clause (iii) above,
(v) money market funds that (A) comply with the criteria set
forth in the United States Securities and Exchange Commission Rule 2a-7
under the Investment Company Act of 1940, (B) are rated AAA by Standard
& Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. and Aaa by ▇▇▇▇▇'▇ Investors Service, Inc. and (C) have portfolio
assets of at least $1,000,000,000,
(vi) fully collateralized repurchase agreements with a term of
not more than thirty (30) days for securities described in clause (i)
above and entered into with a financial institution satisfying the
criteria described in clause (iii) above; and
(vii) tax-free variable rate demand notes which are fully
supported by letters of credit with a financial institution satisfying
the criteria described in clause (iii) above;
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(c) investments by the US Borrower or any Subsidiary thereof in the
form of acquisitions of all or substantially all of the business or a line of
business (whether by the acquisition of Capital Stock, assets or any combination
thereof) of any other domestic Person if each such acquisition meets all of the
following requirements (such acquisitions being, "Permitted Acquisitions"):
(i) the Person to be acquired shall be engaged in a business,
or the assets to be acquired shall be used in a business, permitted pursuant to
Section 10.12;
(ii) the US Borrower or any Subsidiary (including any entity
being acquired that becomes a Subsidiary) shall be the surviving Person and no
Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any
material pending litigation which could reasonably be expected to have a
Material Adverse Effect;
(iv) the US Borrower shall have delivered written notice of
such proposed acquisition to the Administrative Agent and the Lenders, which
notice shall include the proposed closing date of such proposed acquisition and
a description of the acquisition in the form customarily prepared by the US
Borrower, not less than five (5) Business Days prior to such proposed closing
date;
(v) such acquisition is approved by the board of directors (or
a majority of the holders of the Capital Stock of such Person) of the Person
whose assets or Capital Stock are being acquired pursuant to such acquisition;
(vi) no Default or Event of Default shall have occurred and be
continuing both before and after giving effect to such proposed acquisition;
(vii) the US Borrower shall have demonstrated to the
Administrative Agent pro forma compliance (as of the date of the proposed
acquisition and after giving effect thereto and any Extensions of Credit made or
to be made in connection therewith) with each covenant contained in, and in the
manner set forth in, Article IX (provided that, with respect to Section 9.1, the
US Borrower shall have demonstrated to the Administrative Agent that the
Leverage Ratio is at least 0.25 below the applicable ratio set forth therein);
(viii) the US Borrower shall have delivered to the
Administrative Agent such documents reasonably requested by the Administrative
Agent or the Required Lenders (through the Administrative Agent) pursuant to
Section 8.10 to be delivered at the time required pursuant to Section 8.10; and
(ix) the US Borrower shall have obtained the prior written
consent of the Administrative Agent and the Required Lenders prior to the
consummation of such proposed acquisition if the aggregate amount of Permitted
Acquisition Consideration payable in cash with respect to such proposed
acquisition or series of related acquisitions, together with the aggregate
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amount of Permitted Acquisition Consideration paid in cash with respect to all
acquisitions or series of related acquisitions consummated since the Closing
Date, exceeds $300,000,000.
(d) Hedging Agreements permitted pursuant to Section 10.1;
(e) purchases of assets in the ordinary course of business;
(f) investments in the form of loans and advances to employees in the
ordinary course of business (including for travel, entertainment and relocation
expenses), which, in the aggregate, do not exceed at any time $10,000,000.
(g) intercompany loans and advances permitted pursuant to Section
10.1(i);
(h) equity investments (i) by the US Borrower in any Guarantor, (ii) by
any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Guarantor or
(iv) by any Subsidiary that is not a Guarantor in any other Subsidiary that is
not a Guarantor;
(i) equity investments in, and loans and advances to, Subsidiaries that
are not Guarantors in the ordinary course of business in an aggregate amount not
to exceed $150,000,000 at any time;
(j) investments by Finance Subsidiaries in any Subsidiary SPC used to
effect a Permitted Asset Securitization;
(k) intercompany investments, loans and advances arising in connection
with pooled cash management activities of the US Borrower and its Subsidiaries;
(l) investments accepted by the US Borrower or any Subsidiary in the
ordinary course of business in satisfaction of unpaid obligations owed to it,
and other de minimis investments acquired in the ordinary course of business;
and
(m) other additional investments not otherwise permitted pursuant to
this Section 10.3 not exceeding $10,000,000 in the aggregate at any time.
SECTION 10.4 Limitations on Mergers and Liquidation. Merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) assets (including the Capital Stock
of Subsidiaries) constituting all or substantially all of the assets of the US
Borrower and its Subsidiaries, taken as a whole (whether now owned or hereafter
acquired), or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default or Event of Default shall
have occurred and be continuing (i) any Person may merge into the US Borrower in
a transaction in which the US Borrower is the surviving corporation, (ii) any
Person may merge into any Guarantor in a transaction in which the surviving
entity is a Guarantor, (iii) any Person (other than the US Borrower or a
Guarantor) may merge into a Subsidiary that is not a Guarantor in a transaction
in which the surviving entity is a Subsidiary, (iv) asset transfers permitted by
Section 10.5 may be effected by means of
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mergers and (v) any Subsidiary may liquidate or dissolve if the US Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the US Borrower and is not materially disadvantageous to the
Lenders; provided that any such merger involving a Person that is not a
Wholly-Owned Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 10.3.
SECTION 10.5 Limitations on Sale of Assets. Dispose of any of its
property, business or assets (including, without limitation, the sale of any
receivables and leasehold interests and any sale-leaseback or similar
transaction), whether now owned or hereafter acquired except:
(a) the sale and leasing of inventory in the ordinary course of
business;
(b) the Disposition of damaged, obsolete, unusable, worn out or surplus
assets no longer used or usable in the business of the US Borrower or any
Subsidiary thereof;
(c) the Disposition of property by the US Borrower or any Subsidiary
thereof to the US Borrower or any Guarantor;
(d) the Disposition of property by any Subsidiary that is not a
Guarantor to any other Subsidiary that is not a Guarantor;
(e) other Dispositions of property by the US Borrower or any Guarantor
to any Subsidiary that is not a Guarantor, but only to the extent permitted by
Section 10.4;
(f) investments, loans, advances and acquisitions permitted by Section
10.3 and restricted payments permitted by Section 10.6;
(g) the transfer of equipment and related agreements to Finance
Subsidiaries for sale or leasing to customers in the ordinary course of
business;
(h) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;
(i) the Disposition of any Hedging Agreement;
(j) sales of accounts, chattel paper or related rights pursuant to (i)
a Permitted Asset Securitization or (ii) an asset securitization permitted
pursuant to Section 10.1(k);
(k) dispositions of Cash Equivalents;
(l) sales or assignments of contracts or payment rights thereunder (and
related equipment) relating to the lease or rental of equipment to customers in
the ordinary course of business pursuant to the GE Program Agreements or other
similar program agreements which are executed in connection with leasing or
financing arrangements by third parties of products distributed by the US
Borrower and its Subsidiaries and which contain terms and provisions
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which are no broader in scope and obligation than the terms and provisions
contained in the GE Program Agreements; and
(m) dispositions of property (including sale-leasebacks of assets) not
otherwise permitted by this Section 10.5 having a fair market value not to
exceed $25,000,000 in the aggregate during any Fiscal Year.
SECTION 10.6 Limitations on Dividends and Distributions. Declare or pay
any dividends upon any of its Capital Stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its Capital Stock, or
make any distribution of cash, property or assets among the holders of shares of
its Capital Stock, or make any change in its capital structure which such change
in its capital structure could reasonably be expected to have a Material Adverse
Effect; provided that:
(a) the US Borrower or any Subsidiary may pay dividends in shares of
its own Capital Stock;
(b) so long as no Default or Event of Default shall have occurred and
be continuing both before and after giving effect to such payment of cash
dividends, the US Borrower may pay cash dividends; provided that each payment of
cash dividends must be made in compliance with the following criteria:
(i) during the period from the Closing Date through September
30, 2005, the aggregate amount of such payments of cash dividends may not exceed
$35,000,000; and
(ii) for any Fiscal Year after September 30, 2005, the
aggregate amount of such payments of cash dividends may not exceed an amount
equal to fifty percent (50%) of Net Income of the US Borrower and its
Subsidiaries for such Fiscal Year less any share repurchases made during such
Fiscal Year as permitted per subsection (c) of this Section 10.6;
(c) so long as no Default or Event of Default shall have occurred and
be continuing both before and after giving effect to such share repurchase, the
US Borrower may repurchase shares of its common stock in an amount not to exceed
$250,000,000 during the term of this Agreement; provided that each share
repurchase must be made in compliance with the following criteria:
(i) during the period from the Closing Date through September
30, 2005, the aggregate amount of such share repurchases may not exceed
$150,000,000; and
(ii) for any Fiscal Year after September 30, 2005, the
aggregate amount of such share repurchases may not exceed an amount equal to
fifty percent (50%) of Net Income of the US Borrower and its Subsidiaries for
such Fiscal Year less any cash dividends made during such Fiscal Year as
permitted per subsection (b) of this Section 10.6;
provided that to the extent that, during any Fiscal Year after
September 30, 2005, the basket set forth in this clause (ii) is fully utilized,
the US Borrower may repurchase shares of
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its common stock in an amount not to exceed the difference between the amount of
share repurchases permitted pursuant to clause (i) above and the amount of share
repurchases actually made pursuant to clause (i) (whether by virtue of (1) share
repurchases made during the period from the Closing Date through September 30,
2005 or (2) additional share repurchases pursuant to this proviso in any
subsequent Fiscal Year);
(d) the US Borrower may repurchase (i) the June 2008 Notes and (ii) to
the extent that the May 2007 Notes are not converted to common stock of the US
Borrower, the May 2007 Notes, in each case so long as no Default or Event of
Default shall have occurred and be continuing both before and after giving
effect to such repurchase;
(e) any Subsidiary may pay dividends to the US Borrower or a Guarantor;
(f) any Subsidiary that is not a Guarantor may pay dividends to any
other Subsidiary that is not a Guarantor; and
(g) any Subsidiary may pay dividends to third party owners of its
Capital Stock in connection with the dividends paid pursuant to subsections (e)
and (f) of this Section 10.6 in an amount equal to such third party's ratable
percentage of such dividends.
SECTION 10.7 Limitations on Exchange and Issuance of Capital Stock.
Issue, sell or otherwise dispose of any class or series of Capital Stock that,
by its terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Indebtedness prior to September 1, 2008 or
(b) required to be redeemed or repurchased, including at the option of the
holder, in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due prior to
September 1, 2008.
SECTION 10.8 Transactions with Affiliates. Except for Permitted Asset
Securitizations, transactions permitted by Sections 10.3, 10.6, 10.7 and those
transactions existing on the Closing Date and identified on Schedule 10.8
directly or indirectly (a) make any loan or advance to, or purchase or assume
any note or other obligation to or from, any of its officers, directors,
shareholders or other Affiliates, or to or from any member of the immediate
family of any of its officers, directors, shareholders or other Affiliates, or
subcontract any operations to any of its Affiliates or (b) enter into, or be a
party to, any other transaction not described in clause (a) above with any of
its Affiliates, except pursuant to the reasonable requirements of its business
and upon fair and reasonable terms that are no less favorable to it than it
would obtain in a comparable arm's length transaction with a Person not its
Affiliate.
SECTION 10.9 Certain Accounting Changes; Organizational Documents.
(a) Permit the US Borrower or any Domestic Subsidiary to change its
Fiscal Year end, or make any change in its accounting treatment and reporting
practices except as required by GAAP; or
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(b) Amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational documents) or amend, modify or change
its bylaws (or other similar documents) in any manner adverse in any respect to
the rights or interests of the Lenders.
SECTION 10.10 Amendments; Payments and Prepayments of Subordinated
Indebtedness.
(a) Amend or modify (or permit the modification or amendment of) any of
the terms or provisions of any Subordinated Indebtedness in any manner adverse
in any material respect to the rights and interests of the Lenders, or cancel or
forgive, make any voluntary or optional payment or prepayment on, or redeem or
acquire for value (including, without limitation, by way of depositing with any
trustee with respect thereto money or securities before due for the purpose of
paying when due) any Subordinated Indebtedness (other than repurchases of the
May 2007 Notes pursuant to Sections 10.3 and 10.6).
(b) Make any voluntary or optional prepayment on, or redeem or acquire
for value (including, without limitation, by way of depositing with any trustee
with respect thereto money or securities before due for the purpose of paying
when due) any Restricted Indebtedness (other than the May 2007 Notes to the
extent a repurchase of the May 2007 Notes would be permitted under Section
10.6(d)); provided that, so long as no Default or Event of Default shall have
occurred and be continuing at the time of or after giving effect to such
transactions:
(i) the US Borrower or any Subsidiary thereof may make any
such prepayment of Restricted Indebtedness that matures prior to March 1, 2008;
(ii) the US Borrower or any Subsidiary thereof may make any
such prepayment of Indebtedness under any revolving credit facility, revolving
line of credit or similar arrangement;
(iii) the US Borrower or any Subsidiary thereof may make any
such prepayment of Restricted Indebtedness with excess cash not required for
working capital or for the satisfaction of mandatory payment obligations
(provided that (A) neither the US Borrower nor any Subsidiary thereof shall
incur additional Indebtedness (including under this Agreement) to make any such
voluntary or optional prepayment of such Restricted Indebtedness and (B) there
shall be no outstanding Extensions of Credit under this Agreement at the time of
such prepayment); and
(iv) the US Borrower or any Subsidiary thereof may make any
such prepayment of Restricted Indebtedness with the proceeds of Indebtedness
incurred to refinance such Restricted Indebtedness ("Refinancing Indebtedness")
so long as such Refinancing Indebtedness (A) either (1) matures after March 1,
2008 or (2) has a weighted average life to maturity not less than that of the
Indebtedness being refinanced and (B) contains terms and conditions in respect
of mandatory prepayment or redemption events and events of default and priority
ranking which are not less favorable to the Lenders than the Indebtedness being
refinanced.
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SECTION 10.11 Restrictive Agreements.
(a) Enter into any Indebtedness (i) which contains any negative pledge
more restrictive than the provisions of Section 10.2 hereof, or (ii) which
restricts, limits or otherwise encumbers its ability to incur Liens on or with
respect to any of its assets or properties other than the assets or properties
securing such Indebtedness or (b) enter into or permit to exist any agreement or
instrument which by its terms impairs, restricts, limits or otherwise encumbers
(by covenant or otherwise) the ability of any Subsidiary of the US Borrower to
make any payment to the US Borrower or any Subsidiary thereof (in the form of
dividends, distributions or intercompany loans or advances) for the purpose of
enabling the Borrowers to pay the Obligations; provided that:
(A) the foregoing shall not apply to restrictions and
conditions imposed by law or by the Loan Documents;
(B) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 10.11
(but shall apply to any amendment or modification expanding the scope
of any such restriction or condition);
(C) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a
Subsidiary or of any assets pending such sale (provided that such
restrictions and conditions apply only to the Subsidiary or assets, as
the case may be, to be sold and such sale is permitted hereunder);
(D) clause (a)(ii) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such
Indebtedness;
(E) clause (a)(ii) of the foregoing shall not apply to
customary provisions in leases and other contracts restricting the
assignment thereof,
(F) the foregoing will not prohibit customary restrictions and
conditions imposed by any agreement relating to any Permitted Asset
Securitization or securitizations by Foreign Subsidiaries permitted by
Section 10.1(k), including restrictions on the transfer or encumbrance
of the assets subject to any such transaction or on dividends,
distributions or other transfers by any trust, partnership, corporation
or other entity used to facilitate any such transaction; and
(G) the foregoing shall not prohibit the incurrence of Equal
and Ratable Indebtedness, so long as at the time of such incurrence and
after giving pro forma effect thereto, the US Borrower and its
Subsidiaries are in compliance with Section 9.5 and the Administrative
Agent has received an Officer's Compliance Certificate certifying as to
such compliance.
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SECTION 10.12 Nature of Business. Engage to any material extent in any
business other than businesses of the type conducted by the US Borrower and its
Subsidiaries on the Closing Date and businesses reasonably related thereto.
SECTION 10.13 Impairment of Security Interests. Take or omit to take
any action, which might or would have the result of materially impairing the
security interests in favor of the Collateral Agent with respect to the
Collateral or grant to any Person (other than the Collateral Agent for the
benefit of itself and the Secured Parties pursuant to the Security Documents)
any interest whatsoever in the Collateral, except for Permitted Liens and asset
transfers permitted under Section 10.5.
SECTION 10.14 Ratings Trigger Event. Enter into, incur or permit to
exist any agreement or other arrangement which contains Ratings Trigger Events.
SECTION 10.15 IKON Office Solutions Foundation, Inc.
(a) Permit IKON Office Solutions Foundation, Inc. to engage in any
business, operations or activities other than as a charitable foundation in
accordance with the requirements of Section 501(c)(3) of the Code.
(b) (i) Make any investment in IKON Office Solutions Foundation, Inc.,
(ii) make or permit to exist, directly or indirectly, any loans, advances or
extensions of credit to, or any investment in cash in, or by delivery of
property to, IKON Office Solutions Foundation, Inc. or (iii) incur any
Indebtedness (including any Guaranty Obligations) with respect to any
Indebtedness of IKON Office Solutions Foundation, Inc.; provided that the US
Borrower may make capital contributions to IKON Office Solutions Foundation,
Inc. during any Fiscal Year in an amount not to exceed one percent (1%) of the
Net Income of the US Borrower and its Subsidiaries for the prior Fiscal Year, so
long as no Default or Event of Default shall have occurred and be continuing
both before and after giving effect to any such capital contribution.
ARTICLE XI
UNCONDITIONAL US BORROWER GUARANTY
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SECTION 11.1 Guaranty of Obligations. The US Borrower hereby
unconditionally guarantees to the Administrative Agent for the ratable benefit
of the Administrative Agent and the Lenders, and their respective successors,
endorsees, transferees and assigns, the prompt payment of all Obligations of the
UK Borrower, whether primary or secondary (whether by way of endorsement or
otherwise), whether now existing or hereafter arising, whether or not from time
to time reduced or extinguished (except by payment thereof) or hereafter
increased or incurred, whether or not recovery may be or hereafter become barred
by the statute of limitations, whether enforceable or unenforceable as against
the UK Borrower, whether or not discharged, stayed or otherwise affected by any
bankruptcy, insolvency or other similar law or proceeding, whether created
directly with the Administrative Agent or any Lender or acquired by the
Administrative Agent or any Lender through assignment, endorsement or
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otherwise, whether matured or unmatured, whether joint or several, as and when
the same become due and payable (whether at maturity or earlier, by reason of
acceleration, mandatory repayment or otherwise), in accordance with the terms of
any such instruments evidencing any such obligations, including all renewals,
extensions or modifications thereof (all Obligations of the UK Borrower to the
Administrative Agent and the Lenders, including all of the foregoing, being
hereinafter collectively referred to as the "IKON Guaranteed Obligations").
SECTION 11.2 Nature of Guaranty. The US Borrower agrees that this US
Borrower Guaranty is a continuing, unconditional guaranty of payment and not of
collection, and that its obligations under this US Borrower Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by (a) the
genuineness, validity, regularity, enforceability or any future amendment of, or
change in, this Agreement or any other Loan Document or any other agreement,
document or instrument to which the UK Borrower is or may become a party, (b)
the absence of any action to enforce this US Borrower Guaranty, this Agreement
or any other Loan Document or the waiver or consent by the Administrative Agent
or any Lender with respect to any of the provisions of this US Borrower
Guaranty, this Agreement or any other Loan Document, (c) the existence, value or
condition of, or failure to perfect a Lien, if any, against, any security for or
other guaranty of the IKON Guaranteed Obligations or any action, or the absence
of any action, by the Administrative Agent or any Lender in respect of such
security or guaranty (including, without limitation, the release of any such
security or guaranty), (d) any structural change in, restructuring of or other
similar change of the UK Borrower or any of its Subsidiaries or (e) any other
action or circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; it being agreed by the US
Borrower that its obligations under this US Borrower Guaranty shall not be
discharged until the final and indefeasible payment, in full, of the IKON
Guaranteed Obligations and the termination of the Commitments. To the extent
permitted by law, the US Borrower expressly waives all rights it may now or in
the future have under any statute (including, without limitation, North Carolina
General Statutes Section 26-7, et seq. or similar law), or at law or in equity,
or otherwise, to compel the Administrative Agent or any Lender to proceed in
respect of the IKON Guaranteed Obligations against the UK Borrower, any other
guarantor or any other party or against any security for or other guaranty of
the payment of the IKON Guaranteed Obligations before proceeding against, or as
a condition to proceeding against, the US Borrower. To the extent permitted by
law, the US Borrower further expressly waives and agrees not to assert or take
advantage of any defense based upon the failure of the Administrative Agent or
any Lender to commence an action in respect of the IKON Guaranteed Obligations
against the UK Borrower, the US Borrower, any other guarantor or any other party
or any security for the payment of the IKON Guaranteed Obligations. The US
Borrower agrees that any notice or directive given at any time to the
Administrative Agent or any Lender which is inconsistent with the waivers in the
preceding two sentences shall be null and void and may be ignored by the
Administrative Agent or such Lender, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this US Borrower Guaranty
for the reason that such pleading or introduction would be at variance with the
written terms of this US Borrower Guaranty, unless the Administrative Agent and
the Required Lenders have specifically agreed otherwise in writing. The
foregoing waivers are of the essence of the transaction contemplated by the Loan
Documents and, but for this US Borrower Guaranty and such waivers, the
Administrative Agent and the Lenders would decline to enter into this Agreement.
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SECTION 11.3 Demand by the Administrative Agent. In addition to the
terms set forth in Section 11.2, and in no manner imposing any limitation on
such terms, if all or any portion of the then outstanding IKON Guaranteed
Obligations under this Agreement are declared to be immediately due and payable
in accordance with the terms of this Agreement, then the US Borrower shall, upon
demand in writing therefor by the Administrative Agent to the US Borrower, pay
all or such portion of the outstanding IKON Guaranteed Obligations then declared
due and payable. Payment by the US Borrower shall be made to the Administrative
Agent, to be credited and applied upon the IKON Guaranteed Obligations, in
immediately available funds to an account designated by the Administrative Agent
or at the Administrative Agent's Office or at any other address that may be
specified in writing from time to time by the Administrative Agent.
SECTION 11.4 Waivers. In addition to the waivers contained in Section
11.2, the US Borrower waives, and agrees that it shall not at any time insist
upon, plead or in any manner whatever claim or take the benefit or advantage of,
any appraisal, valuation, stay, extension, marshalling of assets or redemption
laws, or exemption, whether now or at any time hereafter in force, which may
delay, prevent or otherwise affect the performance by the US Borrower of its
obligations under, or the enforcement by the Administrative Agent or the Lenders
of, this US Borrower Guaranty. The US Borrower further hereby waives diligence,
presentment, demand, protest and notice of whatever kind or nature with respect
to any of the IKON Guaranteed Obligations and waives the benefit of all
provisions of law which are or might be in conflict with the terms of this US
Borrower Guaranty. The US Borrower represents, warrants and agrees that its
obligations under this US Borrower Guaranty are not and shall not be subject to
any counterclaims, offsets or defenses of any kind against the Administrative
Agent, the Lenders or the UK Borrower whether now existing or which may arise in
the future.
SECTION 11.5 Modification of Loan Documents etc. If the Administrative
Agent or the Lenders shall at any time or from time to time, with or without the
consent of, or notice to, the US Borrower (a) change or extend the manner, place
or terms of payment of, or renew or alter all or any portion of, the IKON
Guaranteed Obligations, (b) take any action under or in respect of the Loan
Documents in the exercise of any remedy, power or privilege contained therein or
available to it at law, in equity or otherwise, or waive or refrain from
exercising any such remedies, powers or privileges, (c) amend or modify, in any
manner whatsoever, the Loan Documents, (d) extend or waive the time for
performance by the US Borrower, any other guarantor, the UK Borrower or any
other Person of, or compliance with, any term, covenant or agreement on its part
to be performed or observed under a Loan Document (other than this US Borrower
Guaranty), or waive such performance or compliance or consent to a failure of,
or departure from, such performance or compliance, (e) take and hold security or
collateral for the payment of the IKON Guaranteed Obligations or sell, exchange,
release, dispose of, or otherwise deal with, any property pledged, mortgaged or
conveyed, or in which the Administrative Agent or any Lender has been granted a
Lien, to secure any Indebtedness of the US Borrower, any other guarantor or the
UK Borrower to the Administrative Agent or any Lender, (f) release anyone who
may be liable in any manner for the payment of any amounts owed by the US
Borrower, any other guarantor or the UK Borrower to the Administrative Agent or
any Lender, (g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to
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which claims of other creditors of the US Borrower, any other guarantor or the
UK Borrower are subordinated to the claims of the Administrative Agent or any
Lender or (h) apply any sums by whomever paid or however realized to any IKON
Guaranteed Obligations owing by the US Borrower, any other guarantor or the UK
Borrower to the Administrative Agent or any Lender in such manner as the
Administrative Agent or any Lender shall determine in its reasonable discretion;
then neither the Administrative Agent nor any Lender shall incur any liability
to the US Borrower as a result thereof, and no such action shall impair or
release the obligations of the US Borrower under this US Borrower Guaranty.
SECTION 11.6 Reinstatement. The US Borrower agrees that, if any payment
made by the UK Borrower or any other Person applied to the Obligations is at any
time annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid, or the proceeds of
any collateral are required to be returned by the Administrative Agent or any
Lender to the UK Borrower, its estate, trustee, receiver, liquidator,
administrator or any other party, including, without limitation, the US
Borrower, under any Applicable Law or equitable cause, then, to the extent of
such payment or repayment, the US Borrower's liability hereunder shall be and
remain in full force and effect, as fully as if such payment had never been
made, and, if prior thereto, this US Borrower Guaranty shall have been canceled
or surrendered, this US Borrower Guaranty shall be reinstated in full force and
effect, and such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of the US Borrower in
respect of the amount of such payment.
SECTION 11.7 No Subrogation. Notwithstanding any payment or payments by
the US Borrower hereunder, or any set-off or application of funds of the US
Borrower by the Administrative Agent or any Lender, or the receipt of any
amounts by the Administrative Agent or any Lender with respect to any of the
IKON Guaranteed Obligations, the US Borrower shall not be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the UK Borrower or any other guarantor or against any collateral
security held by the Administrative Agent or any Lender for the payment of the
IKON Guaranteed Obligations nor shall the US Borrower seek any reimbursement
from the UK Borrower or any of the other guarantors in respect of payments made
by the US Borrower in connection with the IKON Guaranteed Obligations, until all
amounts owing to the Administrative Agent and the Lenders on account of the IKON
Guaranteed Obligations are paid in full and the Aggregate Commitment is
terminated. If any amount shall be paid to the US Borrower on account of such
subrogation rights at any time when all of the IKON Guaranteed Obligations shall
not have been paid in full, such amount shall be held by the US Borrower in
trust for the Administrative Agent, segregated from other funds of the US
Borrower, and shall, forthwith upon receipt by the US Borrower, be turned over
to the Administrative Agent in the exact form received by the US Borrower (duly
endorsed by the US Borrower to the Administrative Agent, if required) to be
applied against the IKON Guaranteed Obligations, whether matured or unmatured,
in such order as set forth herein.
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ARTICLE XII
DEFAULT AND REMEDIES
--------------------
SECTION 12.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrowers shall default in any payment of principal of any
Loan, Note or Reimbursement Obligation when and as due (whether at maturity, by
reason of acceleration or otherwise).
(b) Other Payment Default. The Borrowers shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue for a period of three (3)
Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by the Borrowers or any Subsidiary thereof under this Agreement, any
other Loan Document or any amendment hereto or thereto, shall at any time prove
to have been incorrect or misleading in any material respect when made or deemed
made.
(d) Default in Performance of Certain Covenants. The Borrowers shall
(i) default in the performance or observance of any covenant or agreement
contained in Sections 5.4, 7.2 or 7.5(a) or Articles IX or X of this Agreement
or (ii) default in the performance or observance of any of the covenants or
agreements contained in Section 7.1 and such default shall continue for a period
of fifteen (15) days.
(e) Default in Performance of Other Covenants and Conditions. The
Borrowers or any Subsidiary thereof shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
12.1) or any other Loan Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to the US Borrower
by the Administrative Agent.
(f) Indebtedness Cross-Default. The Borrowers or any Subsidiary thereof
shall (i) default in the payment of any Indebtedness (other than the Loans or
Notes or any Reimbursement Obligation) the aggregate outstanding amount of which
Indebtedness is in excess of $15,000,000 beyond the period of grace if any,
provided in the instrument or agreement under which such Indebtedness was
created, or (ii) default in the observance or performance of any other agreement
or condition relating to any Indebtedness (other than the Loans or Notes or any
Reimbursement Obligation) the aggregate outstanding amount of which Indebtedness
is in excess of $15,000,000 or contained in any instrument or agreement
evidencing, securing or relating thereto or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders
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of such Indebtedness (or a trustee or agent on behalf of such holder or holders)
to cause, with the giving of notice if required, any such Indebtedness to become
due or to require the prepayment, repurchase, redemption or defeasance thereof
prior to its stated maturity (any applicable grace period having expired);
provided that this clause (f) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness.
(g) Other Cross-Defaults. The Borrowers or any Subsidiary thereof shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any Material Contract unless such default would not
be reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect.
(h) Change in Control. (i) Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended),
other than any pension or other benefit plan for officers, employees or
directors of the US Borrower and its Subsidiaries, shall obtain ownership or
control in one or more series of transactions of more than thirty percent (30%)
of the common stock or thirty percent (30%) of the voting power of the US
Borrower entitled to vote in the election of members of the board of directors
of the US Borrower or (ii) the occupation of a majority of the seats (other than
vacant seats) on the board of directors of the US Borrower by Persons who were
neither (A) nominated by the board of directors of the US Borrower nor (B)
appointed by directors so nominated (each such event, a "Change in Control").
(i) Voluntary Bankruptcy Proceeding. The US Borrower or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts), (ii) file a
petition, make an application or take any step (including convening a meeting)
seeking to take advantage of any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up, composition, assignment or
arrangement for adjustment of debts, (iii) consent to or fail to contest in a
timely and appropriate manner any petition filed or application made against it
in an involuntary case under such bankruptcy laws or other laws, (iv) apply for
or consent to, or fail to contest in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
administrator, administrative receiver, manager or liquidator of itself or of a
substantial part of its property, domestic or foreign, (v) admit in writing its
inability to pay its debts as they become due, (vi) make a general assignment
for the benefit of creditors, or (vii) take any corporate action for the purpose
of authorizing any of the foregoing.
(j) Involuntary Bankruptcy Proceeding.
(i) a case or other proceeding shall be commenced against the
US Borrower or any Subsidiary thereof in any court of competent jurisdiction
seeking (A) relief under the federal bankruptcy laws (as now or hereafter in
effect) or under any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or adjustment of debts, or (b) the
appointment of a trustee, receiver, custodian, liquidator, administrator,
administrative receiver, manager or the like for the US Borrower or any
Subsidiary thereof or for all or any substantial part of their respective
assets, domestic or foreign, and such case (save in the case of
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the appointment of an administrator) or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days, or an order
granting the relief requested in such case or proceeding (including, but not
limited to, an order for relief under such federal bankruptcy laws) shall be
entered;
(ii) any Subsidiary organized under the laws of England and
Wales or Scotland is deemed unable to pay its debts within the meaning of
Section 123 of the Insolvency ▇▇▇ ▇▇▇▇ or becomes unable to pay its debts as
they become due or otherwise becomes insolvent; or
(iii) any order is made or any resolution passed for the
winding-up or administration of any Subsidiary except for the purposes of a
solvent amalgamation or reconstruction previously approved by the Required
Lenders in writing.
(k) Failure of Agreements. Any provision of this Agreement or any
provision of any other Loan Document shall for any reason cease to be valid and
binding on the US Borrower or Subsidiary party thereto or any such Person shall
so state in writing, or this Agreement or any other Loan Document shall for any
reason cease to create a valid and perfected first priority Lien on, or security
interest in, any of the collateral purported to be covered thereby, in each case
other than in accordance with the express terms hereof or thereof.
(l) Termination Event. The occurrence of any of the following events:
(i) the US Borrower or any ERISA Affiliate fails to make full payment when due
of all amounts which, under the provisions of any Pension Plan or Section 412 of
the Code, the US Borrower or any ERISA Affiliate is required to pay as
contributions thereto and the failure to pay such amount could reasonably be
expected to have a Material Adverse Effect, (ii) an accumulated funding
deficiency in excess of $15,000,000 occurs or exists, whether or not waived,
with respect to any Pension Plan, (iii) a Termination Event or (iv) the US
Borrower or any ERISA Affiliate as employers under one or more Multiemployer
Plans makes a complete or partial withdrawal from any such Multiemployer Plan
and the plan sponsor of such Multiemployer Plans notifies such withdrawing
employer that such employer has incurred a withdrawal liability requiring
payments in an amount exceeding $15,000,000.
(m) Judgment. One or more judgments or orders for the payment of money
in an aggregate amount in excess of $15,000,000 shall be rendered against the US
Borrower or any Subsidiary thereof and the same shall remain undischarged for a
period of thirty (30) consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to attach or levy upon any assets of the US Borrower or any Subsidiary to
enforce any such judgment.
(n) Environmental. Any one or more Environmental Claims shall have been
asserted against the US Borrower or any Subsidiary thereof; the US Borrower and
its Subsidiaries would be reasonable likely to incur liability as a result
thereof; and such liability would be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect.
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SECTION 12.2 Remedies. Upon the occurrence of an Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the US Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(including, without limitation, all L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented or
shall be entitled to present the documents required thereunder) and all other
Obligations (other than Hedging Obligations), to be forthwith due and payable,
whereupon the same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or the other Loan Documents to the contrary
notwithstanding, and terminate the Credit Facility and any right of the
Borrowers to request borrowings or Letters of Credit thereunder; provided, that
upon the occurrence of a Bankruptcy Event of Default, the Credit Facility shall
be automatically terminated and all Obligations (other than Hedging Obligations)
shall automatically become due and payable without presentment, demand, protest
or other notice of any kind, all of which are expressly waived, anything in this
Agreement or in any other Loan Document to the contrary notwithstanding.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, require the Borrowers at such
time to, and the Borrowers shall, deposit in a cash collateral account opened by
the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay the other Obligations on a pro rata basis. After all
such Letters of Credit shall have expired or been fully drawn upon, the
Reimbursement Obligation shall have been satisfied and all other Obligations
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrowers.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrowers' Obligations.
SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist
at law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege
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preclude any other or further exercise thereof or the exercise of any other
right, power or privilege or shall be construed to be a waiver of any Event of
Default. No course of dealing between the Borrowers, the Administrative Agent
and the Lenders or their respective agents or employees shall be effective to
change, modify or discharge any provision of this Agreement or any of the other
Loan Documents or to constitute a waiver of any Event of Default.
SECTION 12.4 Crediting of Payments and Proceeds. In the event that the
Borrowers shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 12.2, all payments received by the
Lenders upon the Obligations and all net proceeds from the enforcement of the
Obligations shall be applied:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts, including attorney fees, payable to the
Administrative Agent in its capacity as such and the Issuing Lender in its
capacity as such (ratably among the Administrative Agent and the Issuing Lender
in proportion to the respective amounts described in this clause First payable
to them);
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders, including attorney fees (ratably among the Lenders in proportion
to the respective amounts described in this clause Second payable to them);
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and Reimbursement Obligations and any
Hedging Obligations (including any termination payments and any accrued and
unpaid interest thereon) (ratably among the Lenders in proportion to the
respective amounts described in this clause Third payable to them);
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and Reimbursement Obligations (ratably among the
Lenders in proportion to the respective amounts described in this clause Fourth
held by them);
Fifth, to the Administrative Agent for the account of the Issuing
Lender, to cash collateralize any L/C Obligations then outstanding; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrowers or as otherwise required by Law.
SECTION 12.5 Administrative Agent May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the US Borrower or any Subsidiary thereof, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrowers) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
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(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, the L/C Obligations and all
other Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 3.3, 4.3 and 14.3) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 4.3 and 14.3.
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
SECTION 12.6 Judgment Currency.
(a) The obligation of the Borrowers to make payments of the principal
of and interest on the Notes and the obligation of any such Person to make
payments of any other amounts payable hereunder or pursuant to any other Loan
Document in the currency specified for such payment shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment, which is
expressed in or converted into any other currency, except to the extent that
such tender or recovery shall result in the actual receipt by each of the
Administrative Agent and Lenders of the full amount of the particular Permitted
Currency expressed to be payable pursuant to the applicable Loan Document. The
Administrative Agent shall, using all amounts obtained or received from the
Borrowers pursuant to any such tender or recovery in payment of principal of and
interest on the Obligations, promptly purchase the applicable currency at the
most favorable spot exchange rate determined by the Administrative Agent to be
available to it. The obligation of the Borrowers to make payments in the
applicable currency shall be enforceable as an alternative or additional cause
of action solely for the purpose of recovering in the applicable currency the
amount, if any, by which such actual receipt shall fall short of the full amount
of the currency expressed to be payable pursuant to the applicable Loan
Document.
(b) Without limiting Section 12.6(a), the Borrowers shall indemnify and
hold harmless the Administrative Agent, the Lenders and the Issuing Lender, as
applicable, against any loss incurred by the Administrative Agent, any Lender or
the Issuing Lender as a result of any payment or recovery described in Section
12.6(a) and as a result of any variation having
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occurred in rates of exchange between the date of any such amount becoming due
under this Agreement or any other Loan Document and the date of actual payment
thereof. The foregoing indemnity shall constitute a separate and independent
obligation of the Borrowers and shall continue in full force and effect
notwithstanding any such payment or recovery.
ARTICLE XIII
THE ADMINISTRATIVE AGENT
------------------------
SECTION 13.1 Appointment and Authority.
(a) Each of the Lenders and the Issuing Lender hereby irrevocably
appoints Wachovia to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers and trusts as are reasonably incidental thereto. The provisions of
this Article are solely for the benefit of the Administrative Agent, the Lenders
and the Issuing Lender, and neither the Borrowers nor any Subsidiary thereof
shall have rights as a third party beneficiary of any of such provisions.
(b) For the avoidance of doubt, as set forth in the definition of
Administrative Agent, (i) each reference thereto in this Agreement, including,
without limitation, Articles XII, XIII and XIV, shall include Wachovia in its
capacity Collateral Agent and (ii) the appointment and authorization set forth
in subsection (a) above shall include the appointment of Wachovia to act as the
Collateral Agent under this Agreement and the other Loan Documents (including,
without limitation, the Security Documents) and the authorization for the
Collateral Agent to take such actions on behalf of the Lenders and to exercise
such powers and trusts and perform such duties as are delegated to the
Collateral Agent by the terms hereof or thereof, together with such actions and
powers as are reasonably incidental thereto.
SECTION 13.2 Rights as a Lender. The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrowers or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.
SECTION 13.3 Exculpatory Provisions. The Administrative Agent shall not
have any duties or obligations except those expressly set forth herein, in the
other Loan Documents (including its duties, solely in its capacity as security
trustee, under the English Security Documents) . Without limiting the generality
of the foregoing, the Administrative Agent:
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(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing (other than its
duties, solely in its capacity as security trustee, under the English Security
Documents);
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except (i) to the extent required to be
taken, solely in its capacity as security trustee, under the English Security
Documents and (ii) discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan
Document or Applicable Law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrowers or any of their
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Section 14.11 and Section 12.2) or (ii) in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
notice describing such Default is given to the Administrative Agent by the
Borrowers, a Lender or the Issuing Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
SECTION 13.4 Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and
to have been signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a
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Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled
to the satisfaction of a Lender or the Issuing Lender, the Administrative Agent
may presume that such condition is satisfactory to such Lender or the Issuing
Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender or the Issuing Lender prior to the making of such Loan
or the issuance of such Letter of Credit. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrowers), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
SECTION 13.5 Delegation of Duties. The Administrative Agent may perform
any and all of its duties and exercise its rights, powers and trusts hereunder
or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights, powers
and trusts by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
SECTION 13.6 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its
resignation to the Lenders, the Issuing Lender and the Borrowers. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrowers, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders and the Issuing
Lender, appoint a successor Administrative Agent meeting the qualifications set
forth above provided that if the Administrative Agent shall notify the Borrowers
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that
in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the Issuing Lender under any of the Loan Documents, the
retiring Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the Issuing Lender directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this paragraph. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
trusts, privileges and duties of the retiring (or retired) Administrative Agent,
and the retiring Administrative Agent shall be discharged from all of its duties
and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable by
the Borrowers to a successor Administrative Agent shall be the
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same as those payable to its predecessor unless otherwise agreed between the
Borrowers and such successor. After the retiring Administrative Agent's
resignation hereunder and under the other Loan Documents, the provisions of this
Article and Section 14.2 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
(b) Any resignation by Wachovia as Administrative Agent pursuant to
this Section 13.6 shall also constitute its resignation as Issuing Lender,
Alternative Currency Lender and Swingline Lender. Upon the acceptance of a
successor's appointment as Administrative Agent hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, trusts,
privileges and duties of the retiring Issuing Lender, Alternative Currency and
Swingline Lender, (b) the retiring Issuing Lender, Alternative Currency Lender
and Swingline Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor
Issuing Lender shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangement satisfactory to the retiring Issuing Lender to effectively assume
the obligations of the retiring Issuing Lender with respect to such Letters of
Credit.
SECTION 13.7 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and the Issuing Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the Issuing Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
SECTION 13.8 No Other Duties, etc. Anything herein to the contrary
notwithstanding, none of the syndication agents, documentation agents,
co-agents, book manager, lead manager, arranger, lead arranger or co-arranger
listed on the cover page or signature pages hereof shall have any powers, duties
or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent (including,
without limitation, in its capacity as the Collateral Agent), a Lender or the
Issuing Lender hereunder.
SECTION 13.9 Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion:
(a) to release any Lien on any Collateral granted to or held by the
Administrative Agent, for the ratable benefit of itself and the Lenders, under
any Loan Document (i) upon repayment of the outstanding principal of and all
accrued interest on the Loans, payment of all outstanding fees and expenses
hereunder, the termination of the Lenders' Commitments and the expiration or
termination of all Letters of Credit, (ii) that is sold or to be sold as part of
or in
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connection with any sale permitted hereunder or under any other Loan Document,
or (iii) subject to Section 14.11, if approved, authorized or ratified in
writing by the Required Lenders;
(b) to subordinate any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
Collateral that is permitted by Section 10.2(m);
(c) to release any Guarantor from its obligations under the Guaranty
Agreement if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder; and
(d) in the event that the US Borrower enters into a Permitted Asset
Securitization and notifies the Administrative Agent of such transaction and the
need for an intercreditor agreement or similar arrangement, to negotiate in good
faith with the US Borrower, and the US Borrower agrees to negotiate in good
faith with the Administrative Agent, mutually satisfactory intercreditor
agreements and other arrangements solely with respect to any control agreements
relating to deposit accounts to which the US Borrower and the Administrative
Agent are parties and to execute and deliver release documents, in each case to
the extent necessary to provide for the identification and segregation of the
proceeds of any sold receivables that are the subject of such Permitted Asset
Securitization and the transfer thereof, free and clear of any Liens in favor of
the Administrative Agent, to the purchasers thereof.
Upon request by the Administrative Agent at any time, the Lenders will confirm
in writing the Administrative Agent's authority to release or subordinate its
interest in particular types or items of property, to enter into intercreditor
agreements or to release any Guarantor from its obligations under the Guaranty
Agreement pursuant to this Section 13.9.
ARTICLE XIV
MISCELLANEOUS
-------------
SECTION 14.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term "writing" shall include information in electronic
format such as electronic mail and internet web pages), or by telephone
subsequently confirmed in writing. Any notice shall be effective if delivered by
hand delivery or sent via electronic mail, posting on an internet web page,
telecopy, recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto (i) on the
date of delivery if delivered by hand or sent by electronic mail, posting on an
internet web page, telecopy, (ii) on the next Business Day if sent by recognized
overnight courier service and (iii) on the third Business Day following the date
sent by certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
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(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to the US Borrower on
behalf of itself and the
UK Borrower: IKON Office Solutions, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President and Treasurer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Cravath, Swaine & ▇▇▇▇▇ LLP
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza, CP-8
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Will ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Wachovia as Wachovia Bank, National Association, London
Branch
Administrative Agent's ▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone No.: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Telecopy No.: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
If to any Lender: To the address set forth on Schedule 1.1(a)
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(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
US Borrower, on behalf of itself and the UK Borrower, and Lenders, as the
Administrative Agent's Office referred to herein, to which payments due are to
be made and at which Loans will be disbursed and Letters of Credit issued,
except for Alternative Currency Loans, to which payments due are to be made at
the office of the Administrative Agent's Correspondent. Notwithstanding the
foregoing, the Administrative Agent shall be entitled to perform its obligations
and duties hereunder and other the other Loan Documents from any of its
respective offices. In addition to the foregoing, the Administrative Agent shall
provide the US Borrower with reasonable notice of any redesignation of its
Administrative Agent's Correspondent from Wachovia Bank, National Association,
London Branch.
SECTION 14.2 Expenses; Indemnity.
(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Lender in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
Issuing Lender (including the reasonable fees, charges and disbursements of any
counsel for the Administrative Agent, any Lender or the Issuing Lender) in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section 14.2, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) Indemnification by the Borrowers. The Borrowers shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the Issuing
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by any Borrower or any Subsidiary thereof arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing
Lender to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or
105
Release of Hazardous Materials on or from any property owned or operated by the
Borrowers or any of their Subsidiaries, or any Environmental Liability related
in any way to the Borrowers or any of their Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by any Borrower or any Guarantor, and regardless of
whether any Indemnitee is a party thereto, provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee or (y) result from
a claim brought by any Borrower or any Guarantor against an Indemnitee for
breach in bad faith of such Indemnitee's obligations hereunder or under any
other Loan Document, if such Borrower or such Guarantor has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrowers for any
reason fail to indefeasibly pay any amount required under paragraph (a) or (b)
of this Section 14.2 to be paid by it to the Administrative Agent (or any
sub-agent thereof), the Issuing Lender or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the Issuing Lender or such Related Party, as the case may
be, such Lender's Commitment Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent (or any such sub-agent) or the Issuing
Lender in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or Issuing
Lender in connection with such capacity. The obligations of the Lenders under
this paragraph (c) are subject to the provisions of Section 4.6.
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by Applicable Law, the Borrowers shall not assert, and hereby waive,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section 14.2 shall be payable
after demand therefor.
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SECTION 14.3 Right of Set-off.
(a) If an Event of Default shall have occurred and be continuing, each
Lender, the Alternative Currency Lender, the Issuing Lender, the Swingline
Lender and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by Applicable Law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the Issuing
Lender, the Alternative Currency Lender, the Swingline Lender or any such
Affiliate to or for the credit or the account of any Borrower or any Guarantor
against any and all of the obligations of such Borrower or such Guarantor now or
hereafter existing under this Agreement or any other Loan Document to such
Lender, the Issuing Lender, the Alternative Currency Lender or the Swingline
Lender, irrespective of whether or not such Lender, the Issuing Lender, the
Alternative Currency Lender or the Swingline Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations of
such Borrower or such Guarantor may be contingent or unmatured or are owed to a
branch or office of such Lender, the Issuing Lender, the Alternative Currency
Lender or the Swingline Lender different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender, the
Issuing Lender, the Alternative Currency Lender, the Swingline Lender and their
respective Affiliates under this Section 14.3 are in addition to other rights
and remedies (including other rights of setoff) that such Lender, the Issuing
Lender, the Alternative Currency Lender, the Swingline Lender or their
respective Affiliates may have. Each Lender, the Issuing Lender, the Alternative
Currency Lender and the Swingline Lender agrees to notify the Borrowers and the
Administrative Agent promptly after any such setoff and application; provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
(b) Any amount to be set-off pursuant to Section 14.3(a) shall be
denominated in Dollars and any amount denominated in the Alternative Currency
shall be in an amount equal to the Dollar Amount of such amount at the most
favorable spot exchange rate determined by the Administrative Agent to be
available to it; provided that if at the time of any such determination no such
spot exchange rate can reasonably be determined, the Administrative Agent may
use any reasonable method as it deems applicable to determine such rate, any
such determination to be conclusive absent manifest error.
(c) Each Lender and any assignee or participant of such Lender in
accordance with Section 14.9 are hereby authorized by the Borrowers to combine
currencies, as deemed necessary by such Person, in order to effect any set-off
pursuant to Section 14.3(a).
SECTION 14.4 Governing Law. This Agreement and the other Loan
Documents, unless otherwise expressly set forth therein, shall be governed by,
construed and enforced in accordance with the laws of the State of New York
(including Section 5-1401 and Section 5-1402 of the General Obligations Law of
the State of New York), without reference to any other conflicts of law
principles thereof.
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SECTION 14.5 Jurisdiction and Venue.
(a) Jurisdiction. The Borrowers hereby irrevocably consent to the
personal jurisdiction of the state and federal courts located in New York, New
York (and any courts from which an appeal from any of such courts must or may be
taken), in any action, claim or other proceeding arising out of any dispute in
connection with this Agreement, the Notes and the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations. The Borrowers hereby irrevocably consent to the service of a
summons and complaint and other process in any action, claim or proceeding
brought by the Administrative Agent or any Lender in connection with this
Agreement, the Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in Section 14.1.
Nothing in this Section 14.5 shall affect the right of the Administrative Agent
or any Lender to serve legal process in any other manner permitted by Applicable
Law or affect the right of the Administrative Agent or any Lender to bring any
action or proceeding against the Borrowers or their properties in the courts of
any other jurisdictions.
(b) Venue. The Borrowers hereby irrevocably waive any objection either
of them may have now or in the future to the laying of venue in the aforesaid
jurisdiction in any action, claim or other proceeding arising out of or in
connection with this Agreement, any other Loan Document or the rights and
obligations of the parties hereunder or thereunder. The Borrowers irrevocably
waive, in connection with such action, claim or proceeding, any plea or claim
that the action, claim or other proceeding has been brought in an inconvenient
forum.
SECTION 14.6 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 14.6.
SECTION 14.7 Reversal of Payments. To the extent the Borrowers make a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be
108
revived and continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
SECTION 14.8 Injunctive Relief; Punitive Damages.
(a) The Borrowers recognize that, in the event the Borrowers fail to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrowers agree that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrowers (on behalf
of themselves and their Subsidiaries) hereby agree that no such Person shall
have a remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any dispute, whether such dispute is resolved through
arbitration or judicially.
SECTION 14.9 Accounting Matters. 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
Borrowers notify the Administrative Agent that the Borrowers request 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
Borrowers 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 therewith.
SECTION 14.10 Successors and Assigns; Participations.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither Borrower
nor any Guarantor may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of paragraph (b) of this Section 14.10, (ii) by way of
participation in accordance with the provisions of paragraph (d) of this Section
14.10 or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of paragraph (f) of this Section 14.10 (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in paragraph (d) of this
Section 14.10 and, to the extent expressly contemplated hereby,
109
the Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that
(i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or, if
the applicable Commitment is not then in effect, the principal outstanding
balance of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date) shall not be
less than $1,000,000, unless each of the Administrative Agent and, so long as no
Default or Event of Default has occurred and is continuing, the Borrowers
otherwise consent (each such consent not to be unreasonably withheld or
delayed);
(ii) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the Alternative Currency Lender, the Swingline Lender and
the Issuing Lender unless the Person that is the proposed assignee is itself a
Lender with a Commitment (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee) (each such approval not to be unreasonably
withheld or delayed); and
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500, and the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section 14.10, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 4.7, 4.8, 4.9, 4.10, 4.11 or 14.2
with respect to facts and circumstances occurring prior to the effective date of
such assignment. 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
110
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section 14.10.
(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrowers, shall maintain at one of its offices in Charlotte,
North Carolina, a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of,
or notice to, the Borrowers or the Administrative Agent, sell participations to
any Person (other than a natural person or the Borrowers or any of the
Borrowers' Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver or modification described in the
Section 14.11 that directly affects such Participant and that could not be
effected by a vote of the Required Lenders. Subject to paragraph (e) of this
Section 14.10, the Borrowers agree that each Participant shall be entitled to
the benefits of Sections 4.7, 4.8, 4.9, 4.10, 4.11 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section 14.10. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 14.3 as though it were a Lender,
provided such Participant agrees to be subject to Section 4.5 as though it were
a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Sections 4.9, 4.10, 4.11 and 4.12
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 Borrowers prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 4.11 unless the Borrowers are notified of
the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 4.11(e) as though it were a
Lender.
111
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Confidentiality. Each of the Administrative Agent, the Lenders and
the Issuing Lender agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates
and to its and its Affiliates' respective partners, directors, officers,
employees, agents, advisors and other representatives (it being understood that
the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by Applicable Laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section 14.10, to
(i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrowers and their obligations, (g) with
the consent of the Borrowers or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section 14.10 or
(y) becomes available to the Administrative Agent, any Lender, the Issuing
Lender or any of their respective Affiliates on a nonconfidential basis from a
source other than the Borrowers. For purposes of this Section 14.10,
"Information" means all information received from the Borrowers or any of their
Subsidiaries relating to the Borrowers or any of their Subsidiaries or any of
their respective businesses, other than any such information that is available
to the Administrative Agent, any Lender or the Issuing Lender on a
nonconfidential basis prior to disclosure by the Borrowers or any of their
Subsidiaries, provided that, in the case of information received from the
Borrowers or any of their Subsidiaries after the date hereof, such information
is clearly identified at the time of delivery as confidential or is of a nature
that the recipient should reasonably believe to be confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section 14.10 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 14.11 Amendments, Waivers and Consents. Except as set forth
below or as specifically provided in any Loan Document, any term, covenant,
agreement or condition of this Agreement or any of the other Loan Documents may
be amended or waived by the Lenders, and any consent given by the Lenders, if,
but only if, such amendment, waiver or consent is in writing signed by the
Required Lenders (or by the Administrative Agent with the consent of the
Required Lenders) and delivered to the Administrative Agent and, in the case of
an amendment, signed by the Borrowers; provided, that no amendment, waiver or
consent shall:
112
(a) waive any condition set forth in Section 5.2 without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 12.2) or the amount of Loans of any
Lender without the written consent of each Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Lenders (or any of them) or any scheduled or mandatory reduction of the
Revolving Credit Commitments hereunder or under any other Loan Document without
the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or Reimbursement Obligation, or (subject to clause (iv) of the
second proviso to this Section 14.11) any fees or other amounts payable
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby; provided that only the consent of the Required
Lenders shall be necessary (i) to waive any obligation of the Borrowers to pay
interest at the rate set forth in Section 4.1(c) during the continuance of an
Event of Default, or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to
reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee
payable hereunder;
(e) change Section 4.4 or Section 12.4 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section 14.11 or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender;
(g) release all of the Guarantors or release Guarantors comprising
substantially all of the credit support for the Obligations, in either case,
from the Guaranty Agreement (other than as authorized in Section 13.9), without
the written consent of each Lender; or
(h) release all or a material portion of the Collateral or release any
Security Document (other than as authorized in Section 13.9 or as otherwise
specifically permitted or contemplated in this Agreement or the applicable
Security Document) without the written consent of each Lender;
provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Lenders required
above, affect the rights or duties of the Issuing Lender under this Agreement or
any Application relating to any Letter of Credit issued or to be issued by it;
(ii) no amendment, waiver or consent
113
shall, unless in writing and signed by the Alternative Currency Lender in
addition to the Lenders required above, affect the rights or duties of the
Alternative Currency Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Swingline Lender in addition
to the Lenders required above, affect the rights or duties of the Swingline
Lender under this Agreement; (iv) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (v) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.
SECTION 14.12 Performance of Duties. The Borrowers' obligations under
this Agreement and each of the other Loan Documents shall be performed by the
Borrowers at their sole cost and expense.
SECTION 14.13 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied, any of the Commitments remain in
effect or the Credit Facility has not been terminated.
SECTION 14.14 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIV and any other
provision of this Agreement and the other Loan Documents shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
SECTION 14.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 14.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 14.17 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 14.18 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
arising hereunder or under any other Loan Document shall have been indefeasibly
and irrevocably paid and satisfied
114
in full and all Commitments have been terminated. No termination of this
Agreement shall affect the rights and obligations of the parties hereto arising
prior to such termination or in respect of any provision of this Agreement which
survives such termination.
SECTION 14.19 Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Agreement with its counsel.
SECTION 14.20 No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
SECTION 14.21 Inconsistencies with Other Documents; Independent Effect
of Covenants.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control; provided, that any provision of the Security Documents which imposes
additional burdens on the Borrowers or their Subsidiaries or further restricts
the rights of the Borrowers or their Subsidiaries or gives the Administrative
Agent or Lenders additional rights shall not be deemed to be in conflict or
inconsistent with this Agreement and shall be given full force and effect.
(b) The Borrowers expressly acknowledge and agrees that each covenant
contained in Articles VIII, IX, or X hereof shall be given independent effect.
Accordingly, the Borrowers shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX, or X if,
before or after giving effect to such transaction or act, the Borrowers shall or
would be in breach of any other covenant contained in Articles VIII, IX, or X.
SECTION 14.22 Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
[Signature pages to follow]
115
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
US BORROWER:
IKON OFFICE SOLUTIONS, INC.,
as US Borrower
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Treasurer
UK BORROWER:
IKON OFFICE SOLUTIONS GROUP, PLC,
as UK Borrower
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
[Signature pages continue]
ADMINISTRATIVE AGENT, COLLATERAL AGENT AND LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
[Signature pages continue]
▇▇▇▇▇ FARGO FOOTHILL, LLC, as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[Signature pages continue]
The Royal Bank of Scotland plc, as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
[Signature pages continue]
PNC BANK NATIONAL ASSOCIATION,
as Co-Syndication Agent and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[Signature pages continue]
LASALLE BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
[Signature pages continue]
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agent and Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
[Signature pages continue]
DEUTSCHE BANK AG NEW YORK BRANCH,
as Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
DEUTSCHE BANK SECURITIES INC.
as Syndication Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
[Signature pages continue]
SCOTIABANC INC., as Lender
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
[Signature pages continue]
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
[Signature pages continue]
FIFTH BANK, as Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[Signature pages continue]
THE BANK OF NEW YORK, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
[Signature pages continue]
RZB FINANCE LLC, as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ Christoph Hoedi
-----------------------
Name: Christoph Hoedi
Title: Vice President
[Signature pages continue]
ISRAEL DISCOUNT BANK OF NEW YORK,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President