AMENDED AND RESTATED
CREDIT AGREEMENT dated as of
September 30, 2013 (this “Agreement”),
is among DRESSER-RAND GROUP INC., a Delaware corporation (the
“Domestic
Borrower”), GRUPO
GUASCOR, S.L., a sociedad limitada organized under the laws of
Spain (the “Spanish
Borrower”), any
Additional Foreign Borrower (as hereinafter defined) that becomes a
Borrower (as hereinafter defined) pursuant to the terms thereof,
the LENDERS party hereto from time to time, JPMORGAN CHASE BANK,
N.A., as administrative agent (in such capacity, together with any
successor administrative agent appointed pursuant to the provisions
of Article VIII, the
“Administrative
Agent”) and as
collateral agent (in such capacity, together with any successor
collateral agent appointed pursuant to the provisions of
Article VIII, the
“Collateral
Agent”) for the
Lenders, J.P. MORGAN EUROPE LIMITED, as European administrative
agent (in such capacity, the “European
Administrative Agent”)
and BANK OF AMERICA, N.A., COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCH, DNB BANK ASA, NEW YORK BRANCH, SOVEREIGN BANK and WELLS FARGO BANK,
N.A., each as co-syndication agent (in such
capacity, the “Co-Syndication
Agents”).
W I T N E S S E T H:
WHEREAS, the Borrowers, the lenders
party thereto (the
“Existing
Lenders”),
the Administrative Agent, the Collateral Agent, the European
Administrative Agent and the Co-Syndication Agents are parties to
that certain Credit
Agreement, dated as of March 15, 2011, as amended by that certain
First Amendment to Credit Agreement dated as of May 11, 2011, that
certain Second Amendment to Credit Agreement dated as of June 21,
2012 and that certain Third Amendment to Credit Agreement dated as
of September 27, 2012 (the “Existing Credit
Agreement”), pursuant
to which the Existing Lenders provide certain loans to and
extensions of credit on behalf of the Borrowers;
and
WHEREAS, the Borrowers have requested that the Existing Credit Agreement be
amended, restated and extended on the terms and conditions set
forth herein.
NOW, THEREFORE, the Lenders are
willing to amend, restate and
extend the Existing Credit Agreement and to extend credit to the Borrowers on the terms and
subject to the conditions set forth herein. Accordingly,
the parties hereto agree as follows:
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Section 1.01 Defined
Terms. As used in
this Agreement, the following terms shall have the meanings
specified below:
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“2021
Senior Subordinated
Note Documents” shall
mean the 2021 Senior Subordinated Notes and the 2021 Senior
Subordinated Note Indenture.
“2021
Senior
Subordinated Note Indenture” shall mean the 6.5% Senior Subordinated Notes
Indenture Due 2021, dated as of March 22, 2011,
under which the 2021
Senior Subordinated Notes
were issued, among the Domestic Borrower and
Wilmington Trust
Company, as trustee, as
amended, restated, supplemented or otherwise modified from time to
time in accordance with the requirements thereof and of this
Agreement.
“2021
Senior Subordinated
Notes” shall
mean the Domestic
Borrower’s 6.5% Senior
Subordinated Notes due 2021 issued pursuant to the 2021 Senior
Subordinated Note Indenture and any notes issued by the Domestic
Borrower in exchange for, and as contemplated by, the 2021 Senior
Subordinated Notes and the related registration rights agreement
with substantially identical terms as the 2021 Senior Subordinated
Notes.
“ABR
Borrowing” shall mean a
Borrowing comprised of ABR Loans.
“ABR
Loan” shall mean any
Revolving Facility
Loan, Swingline Loan or Term Facility Loan bearing interest at a rate determined by
reference to the Alternate Base Rate.
“ABR
Borrowing” shall mean a
Borrowing comprised of ABR Loans.
“Additional Foreign
Borrower” shall mean
any direct or indirect wholly-owned Foreign Subsidiary of the
Domestic Borrower that shall become a party to this Agreement
pursuant to Section
2.23.
“Adjusted LIBO
Rate” shall mean, with
respect to any Eurocurrency Borrowing for any Interest Period, an
interest rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to the product of (a) the LIBO Rate in effect for
such Interest Period and (b) Statutory Reserves applicable to such
Eurocurrency Borrowing, if any.
“Administrative
Agent” shall have the
meaning assigned to such term in the introductory paragraph of this
Agreement.
“Administrative Agent
Fees” shall have the
meaning assigned to such term in Section 2.13(c).
“Administrative
Questionnaire” shall
mean an Administrative Questionnaire in the form of
Exhibit B.
“Affiliate”
shall mean, when used with respect to a specified Person, another
Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Agent
Parties” shall have the
meaning assigned to such term in Section 9.17(c).
“Agents”
shall mean the Administrative Agent and the Collateral
Agent.
“Agreed Security
Principles” shall mean
any grant of a Lien or provision of a guarantee by any Person that
could:
(a)result in any breach of corporate benefit,
financial assistance, capital preservation, fraudulent preference,
thin capitalization rules, retention of title claims and similar
laws or regulations (or analogous restrictions) of the jurisdiction
of organization of such Person;
(b)result in any risk to the officers of such
Person of contravention of their fiduciary duties and/or of civil
or criminal liability;
(c)result in costs (tax, administrative or
otherwise) that are materially disproportionate to the benefit
obtained by the beneficiaries of such Lien and/or guarantee;
(d)result in a breach of a material agreement
binding on such Person that may not be amended or otherwise
modified using commercially reasonable efforts to avoid such
breach; or
(e)result in a Lien being granted over assets, the
acquisition of which was financed from a subsidy or payments, the
terms of which prohibit any assets acquired with such
subsidy or payment being used
as Collateral.
“Agreement”
shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.
“Alternate Base
Rate”
shall
mean, for any day, a rate per
annum equal to the greatest of (a) the Base Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus ½ of 1.0% and (c)
the Adjusted LIBO Rate for a one month Interest Period on such day
(or if such day is not a Business Day, the immediately
preceding Business Day) plus
1.0%. Any
change in the Alternate Base Rate due to a change in the
Base Rate, the Federal Funds Effective Rate or the
Adjusted LIBO Rate shall be effective from and including the
effective date of such change in the Base Rate,
the Federal Funds Effective Rate or the Adjusted LIBO Rate,
respectively.
“Alternate LC
Currency” shall mean
(a) Brazilian Real, (b) Canadian Dollars, (c) Chinese Yuan, (d)
Colombian Pesos, (e) Indian Rupees, (f) Japanese Yen, (g) Mexican
Pesos, (h) Norwegian Krone, (i) Swedish Krona and (j) Trinidad and
Tobago Dollars.
“Applicable
Margin” shall mean for
any day with respect to any Eurocurrency Loan and any ABR Loan, the
applicable margin per annum set forth below under the caption
“Eurocurrency Spread,” and “ABR Spread,” as
applicable, based upon the Leverage Ratio as of the last date of
the most recent fiscal quarter of the Domestic Borrower.
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Leverage
Ratio:
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ABR
Spread
|
Eurocurrency
Spread
|
|
Category
1
Equal to or greater than 3.00 to
1.00
|
1.50%
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2.50%
|
|
Category 2
Less than 3.00 to 1.00 but equal to
or greater than 2.25 to 1.00
|
1.25%
|
2.25%
|
|
Category 3
Less than 2.25 to 1.00 but equal to
or greater than 1.50 to 1.00
|
1.00%
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2.00%
|
|
Category 4
Less than 1.50 to 1.00
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0.75%
|
1.75%
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For purposes of the foregoing, (1)
the Leverage Ratio shall be determined as of the end of each fiscal
quarter of the Domestic Borrower’s fiscal year based upon the
consolidated financial information of the Domestic Borrower and its
Subsidiaries delivered pursuant to Section 5.04(a) or (b) and
(2) each change in the Applicable Margin resulting from a change in
the Leverage Ratio shall be effective on the first Business Day
after the date of delivery to the Administrative Agent of such
consolidated financial information indicating such change and
ending on the date immediately preceding the effective date of the
next such change; provided that the Leverage Ratio shall be deemed to be in
Category 1 at the option of the Administrative Agent or the
Required Lenders, at any time during which the Domestic Borrower
fails to deliver the consolidated financial information when
required to be delivered pursuant to Section 5.04(a) or (b),
during the period from the expiration of the time for delivery
thereof until such consolidated financial information is
delivered.
“Approved
Fund” shall have the
meaning assigned to such term in Section 9.04(b).
“Asset
Acquisition” shall mean
any Permitted Business Acquisition, the aggregate
consideration for which
exceeds $5.0
million.
“Asset
Disposition” shall mean
any sale, transfer or other disposition by the Domestic Borrower or
any Subsidiary to any Person other than the Domestic Borrower or
any Subsidiary to the extent otherwise permitted hereunder of any
asset or group of related assets (other than inventory or other
assets sold, transferred or otherwise disposed of in the ordinary
course of business) in one or a series of related transactions, the
Net Proceeds from which exceed $5.0 million.
“Assignment and
Acceptance” shall mean
an assignment and acceptance entered into by a Lender and an
assignee, and accepted by the Administrative Agent and the
Borrowers (if required by such assignment and acceptance), in the
form of Exhibit A
or such other form as shall be
approved by the Administrative Agent.
“Base
Rate” shall mean
the rate of interest per annum
publicly announced from time to time by the Administrative Agent as
its prime rate in effect at its principal office in New York, New
York; each change in the Base Rate
shall be effective from and including the date such change is
publicly announced as being effective. Such rate is set
by the Administrative Agent as a general reference rate of
interest, taking into account such factors as the Administrative
Agent may deem appropriate; it being understood that many of the
Administrative Agent’s commercial or other loans are priced
in relation to such rate, that it is not necessarily the lowest or
best rate actually charged to any customer and that the
Administrative Agent may make various commercial or other loans at
rates of interest having no relationship to such rate.
“Board”
shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
“Borrowers”
shall mean, collectively, the Domestic Borrower and the Foreign
Borrowers.
“Borrowing”
shall mean a group of Loans of a single Type under a single
Facility and made on a single date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in
effect.
“Borrowing
Minimum” shall mean (a)
in the case of an ABR Borrowing, $1.0
million (or the Equivalent determined on the date of delivery of
the applicable Borrowing Request or notice of repayment in the
applicable Foreign Currency of $1.0
million), (b) in the case of a Eurocurrency Borrowing, $5.0 million (or the Equivalent determined on
the date of delivery of the applicable Borrowing Request or notice
of repayment in the applicable Foreign Currency of $5.0 million), and (c) and
(d) in the case of a Swingline Borrowing, $500,000 (or the Equivalent determined on the date of
delivery of the applicable Swingline Borrowing Request in the
applicable Foreign Currency of $500,000).
“Borrowing
Multiple” shall mean
(a) in the case of a Borrowing other than a Swingline
Borrowing,
$1.0 million (or the
Equivalent determined on the date of delivery of the applicable
Borrowing Request or notice of repayment in the applicable
Foreign Currency of $1.0
million) and
(b) in the case of a Swingline
Borrowing, $500,000 (or the Equivalent determined on the date of
delivery of the applicable Swingline Borrowing Request or notice of
repayment in the applicable Foreign Currency of
$500,000).
“Borrowing
Request” shall mean a
request by a Borrower in accordance with the terms of
Section 2.03 and substantially in the form of
Exhibit C-1.
“Business”
shall mean the business of, among other things, the design,
manufacture, sale, maintenance and repair of gas and steam
compression equipment (including centrifugal and reciprocating
compressors and steam and gas turbines), all as conducted by the
Borrowers and their Subsidiaries on the Closing Date.
“Business
Day” shall mean any day
that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain
closed; provided that when used in connection with a Eurocurrency
Loan, the term “Business
Day” shall also exclude
any day on which banks are not open for dealings in deposits in the
applicable currency in the London interbank market and in case of a
Loan denominated in Euros, the term Business Day shall also exclude
any day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is not open.
“Calculation
Period”
shall
mean, as of any date of
determination, the period of four consecutive fiscal quarters
ending on such date or, if such date is not the last day of a
fiscal quarter, ending on the last day of the fiscal quarter of the
Domestic Borrower most recently ended prior to such
date.
“Capital
Expenditures” shall
mean, for any Person in respect of any period, the aggregate of all
expenditures incurred by such Person during such period that, in
accordance with GAAP,
are or should be included in
“additions to property, plant or equipment” or similar
items reflected in the statement of cash flows of such
Person.
“Capital Lease
Obligations” of any
Person shall mean the obligations of such Person to pay rent or
other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person
under GAAP and, for purposes hereof, the amount of such obligations
at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
“Cash Interest
Expense” shall mean,
with respect to the Domestic Borrower and its Subsidiaries on a
consolidated basis for any period, Interest Expense for such
period, less the sum of (a) pay-in-kind Interest Expense or other
non-cash Interest Expense (including as a result of the effects of
purchase accounting), (b) to the extent included in Interest
Expense, the amortization of any financing fees paid by, or on
behalf of, the Domestic Borrower or any Subsidiary, including such
fees paid in connection with the Transactions, (c) the amortization
of debt discounts, if any, or fees in respect of Swap Agreements
and (d) cash interest income of the Domestic Borrower and its
Subsidiaries for such period; provided that Cash Interest Expense shall exclude any
one-time financing fees paid in connection with the Transactions or
any amendment of this Agreement or upon entering into a Permitted
Receivables Financing.
A “Change in
Control” shall be
deemed to occur if (a) at any time, a “Change in
Control” shall occur under the 2021 Senior Subordinated Note Indenture or under any
Permitted Senior Debt Securities or Permitted Subordinated Debt
Securities or (b) at any time, any Person or group (within the
meaning of Rule 13d-5 of
the Exchange Act as in effect on the Closing Date), shall acquire
ownership, of record or beneficially (within the meaning of Rule
13d-5 of the Exchange Act as in effect on the Closing Date),
directly or indirectly, in the aggregate Equity Interests
representing 35% or more of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the
Domestic Borrower.
“Change in
Law” shall mean (a) the
adoption of any law, rule or regulation after the Closing Date, (b)
any change in law, rule or regulation or in the
interpretation,
implementation, or
application thereof by any Governmental Authority after the Closing
Date or (c) compliance by any Lender or Issuing Bank (or, for
purposes of Section
2.16(b), by any lending
office of such Lender or by such Lender’s or Issuing
Bank’s holding company, if any) with any written request,
guideline or directive (whether or not having the force of law but
if not having the force of law, then being one with which the
relevant party would customarily comply) of any Governmental
Authority made or issued after the Closing Date; provided that notwithstanding anything herein to the
contrary, (i) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in
connection therewith and
(ii) all requests, rules,
guidelines or directives concerning capital adequacy promulgated by
the Bank for International Settlements, the Basel Committee on
Banking Regulations and Supervisory Practices (or any successor
similar authority) or the United States financial regulatory
authorities, in each case pursuant to Basel III shall be deemed to be a “Change in
“Law”, regardless of the date enacted,
adopted, implemented,
or issued.
“Charges”
shall have the meaning assigned to such term in Section 9.09.
“Closing”
shall mean the effectiveness of this Agreement.
“Closing
Date” shall mean
September 30,
2013.
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
“Collateral”
shall mean all the “Collateral” as defined in any
Security Document and shall also include the Mortgaged
Properties.
“Collateral
Agent” shall have the
meaning given such term in the introductory paragraph of this
Agreement.
“Collateral
Agreements” shall mean
the Domestic Collateral
Agreement and
the Foreign Collateral Agreements (if any).
“Collateral and
Guarantee Requirement”
shall mean the requirement that:
(a)on the Closing Date, the Collateral Agent shall
have received from the Domestic Borrower and each Domestic
Subsidiary Loan Party a counterpart of the Domestic Collateral
Agreement duly executed and delivered on behalf of such Person, and executed in blank stock transfer
forms;
(b)[Reserved];
(c)on the Closing Date, the Collateral Agent shall
have received or shall otherwise have received a pledge over all
the issued and outstanding Equity Interests of (i) each Subsidiary
Loan Party directly owned on the Closing Date by any Loan Party and
(ii) any other Material
Subsidiary directly owned on the Closing Date by any Loan Party,
except, in each case, to the extent that a pledge of such Equity
Interests is not permitted under Section 9.23; and the Collateral Agent shall have received
all certificates or other instruments (if any) representing such
Equity Interests, together with stock powers or other instruments
of transfer with respect thereto endorsed in blank;
(d)in the case of any Person that becomes a
Subsidiary Loan Party after the Closing Date, the Collateral Agent
shall have received (i) in the
case of a Domestic Subsidiary Loan Party, a supplement to the
Domestic Collateral Agreement, in the form specified therein, duly
executed and delivered on behalf of such Domestic Subsidiary Loan Party and
(ii) in the
case of any other Foreign Subsidiary Loan Party, a Foreign Guarantee and a Foreign
Collateral Agreement, duly
executed and delivered on behalf of such Foreign Subsidiary Loan
Party; provided, in each case, that any Foreign Subsidiary Loan
Party shall only guarantee or support Obligations or pledge assets
to the extent permitted under Section 9.23; provided
further,
in each case,
that if
any Subsidiary Loan Party owns Equity Interests of a
Material Subsidiary which is a Foreign Subsidiary, such Equity
Interests may
be pledged in
lieu of the foregoing pursuant to a foreign pledge agreement, duly
executed and delivered on behalf of such
Subsidiary Loan Party;
(e)after the Closing Date and within the time
period set forth in Section
5.10(c), all the outstanding
Equity Interests directly owned by a Loan Party of any
Person
that becomes (i) a Subsidiary Loan
Party or (ii) a Material Subsidiary after the Closing Date, shall
have been pledged pursuant to the applicable Collateral Agreement,
as applicable to the extent permitted under Section 9.23, and the Collateral Agent shall have received
all certificates or other instruments (if any) representing such
Equity Interests, together with stock powers or other instruments
of transfer with respect thereto endorsed in blank or shall have
otherwise received a pledge over such Equity Interests;
(f)[Reserved];
(g)all documents and instruments, including UCC
financing statements, required by law or reasonably requested by
the Collateral Agent to be filed, registered or recorded to create
the Liens intended to be created by the Security Documents (in each
case, including any supplements thereto) and perfect such Liens to
the extent required by, and with the priority required by, the
Security Documents, shall have been filed, registered or recorded
or delivered to the Collateral Agent for filing, registration or
the recording concurrently with, or promptly following, the
execution and delivery of each such Security Document;
(h)each Loan Party shall have obtained all consents
and approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents (or supplements
thereto) to which it is a party and the granting by it of the Liens
thereunder and the performance of its obligations
thereunder;
(i)on the Closing Date, the Collateral Agent shall have received from the applicable Loan
Parties amendments to the Mortgages delivered under the
Existing Credit Agreement, each of which shall be in form and substance
reasonably satisfactory to Collateral Agent;
(j)the
Collateral Agent shall receive from the applicable Loan Parties
documents and instruments relating to Material Real Property
located outside the United States that constitutes Collateral that
are customarily provided under the applicable law of the
jurisdiction in which such Material Real Property is located to
create a valid and perfected Lien on such Material Real Property
under the applicable law of the jurisdiction in which such Material
Real Property is located; provided that such Material Real Property
shall only be pledged to the extent permitted under
Section 9.23, and provided further that the Administrative
Agent may, in its good faith discretion, consent to a waiver of the
pledge of such Material Real Property. With respect to
Material Real Property located outside the United States that
constitutes Collateral, such documents and instruments shall be
provided within 90 days after the Closing Date and with respect to
each after-acquired Material Real Property located outside the
United States that constitutes Collateral, such documents and
instruments shall be provided within 90 days after the acquisition
of such Material Real Property.
(k)With respect to each of the items identified in
this definition of “Collateral and Guarantee
Requirement” that are required to be delivered on a date
after the Closing Date, the Administrative Agent, in each case, may
extend such date in its sole
discretion.
(l)Notwithstanding the foregoing, the Collateral
and Guarantee Requirements do not apply to the Spanish Borrower or
any of its Subsidiaries or any direct or indirect parent company of
the Spanish Borrower organized under the laws of Spain.
“Commitment
Fee” shall have the
meaning assigned to such term in Section 2.13(a).
“Commitments”
shall mean (a) with respect to any Lender, such
Lender’s Revolving
Facility Commitment and Euro
Revolving Facility
Commitment and (b) with
respect to any Swingline Lender, its Swingline
Commitment. Within each Facility, all Commitments and
loans shall be held ratably; provided, that any lender may elect to
have any portion of its Commitments or Loans attributable
to any Foreign Borrower held
through an
Affiliate.
“Communications”
shall have the meaning assigned to such term in Section 9.17.
“Consolidated
Debt” at any date shall
mean (without duplication) all Indebtedness consisting of Capital
Lease Obligations, Indebtedness for borrowed money (other than
letters of credit to the extent undrawn) and Indebtedness in
respect of the deferred purchase price of property or services of
the Domestic Borrower and its Subsidiaries determined on a
consolidated basis on such date plus any Receivables Net
Investment.
“Consolidated Net
Income” shall mean,
with respect to any Person for any period, the aggregate of the Net
Income of such Person and its subsidiaries for such period, on a consolidated
basis; provided, however, that
(a)any net after-tax extraordinary, unusual or
nonrecurring gains or losses (less all fees and expenses related
thereto) or income or expenses or charges (including, without
limitation any severance, relocation and other restructuring
expenses and fees, expenses or charges related to any offering of
Equity Interests of such Person, any Investment, acquisition or
Indebtedness permitted to be incurred hereunder (in each case,
whether or not successful), including all fees, expenses and
charges related to the Transactions), in each case, shall be
excluded; provided, that with respect to each nonrecurring item,
the Domestic Borrower shall have delivered to the Administrative
Agent an officers’ certificate specifying and quantifying
such item and stating that such item is a nonrecurring
item,
(b)any net after-tax income or loss from
discontinued operations and any net after-tax gain or loss on
disposal of discontinued operations shall be excluded,
(c)any net after-tax gain or loss (less all fees
and expenses or charges relating thereto) attributable to business
dispositions or asset dispositions other than in the ordinary
course of business (as determined in good faith by the Board of
Directors of the Domestic Borrower) shall be excluded,
(d)any net after-tax income or loss (less all fees
and expenses or charges relating thereto) attributable to the early
extinguishment of indebtedness (including obligations under Swap
Agreements) shall be excluded,
(e)(i) the Net
Income for such period of any Person that is not a
subsidiary
of such Person, or that is accounted for by the equity method of
accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments paid in cash (or to
the extent converted into cash) to the referent Person or a
subsidiary
thereof in respect of such period and (ii) the
Net Income for such period shall include any dividend, distribution
or other payment in respect of equity paid in cash by such Person
in excess of the amounts included in clause (i),
(f)the Net Income for such period of any
subsidiary
(that is not a Loan Party) of such Person shall be excluded to the
extent that the declaration or payment of dividends or similar
distributions by such subsidiary
of its Net Income is not at the date of determination permitted
without any prior governmental approval (which has not been
obtained) or, directly or indirectly, by the operation of the terms
of its charter or any agreement, instrument, judgment, decree,
order, statute, rule, or governmental regulation applicable to
that subsidiary
or its stockholders or members, unless such restriction with
respect to the payment of dividends or in similar distributions has
been legally waived (provided that the net loss of any such
subsidiary
shall be included to the extent funds are disbursed by such Person
or any other subsidiary
of such Person in respect of such loss and that Consolidated Net
Income of such Person shall be increased by the amount of dividends
or distributions or other payments that are actually paid in cash
(or to the extent converted into cash) by such subsidiary
to the Domestic Borrower or another Subsidiary in respect of such
period to the extent not already included therein),
(g)Consolidated Net Income for such period shall
not include the cumulative effect of a change in accounting
principles during such period,
(h)any non-cash charges from the application of the
purchase method of accounting in connection with any future
acquisition, to the extent such charges are deducted in computing
such Consolidated Net Income shall be excluded,
(i)accruals and reserves that are established
within twelve months after the Closing Date and that are so
required to be established in accordance with GAAP shall be
excluded,
(j)any non-cash impairment charges resulting from
the application of Statements of Financial Accounting Standards No.
142 and No. 144 and the amortization of intangibles pursuant to
Statement of Financial Accounting Standards No. 141 shall be
excluded, and
(k)any long-term incentive plan accruals and any
non-cash compensation expense realized from grants of stock
appreciation or similar rights, stock options or other rights to
officers, directors and employees of such Person or any of
its subsidiaries shall be excluded.
“Consolidated Total
Assets” shall mean, as
of any date, the total assets of the Domestic Borrower and the
consolidated Subsidiaries, determined in accordance with GAAP, in
each case as set forth on the consolidated balance sheet of the
Domestic Borrower as of such date.
“Control”
shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise, and “Controlling” and
“Controlled” shall have meanings correlative
thereto.
“Co-Syndication
Agent” shall have the
meaning assigned to such term in the introductory paragraph of this
Agreement.
“Credit Agreement
Supplement” has the
meaning specified in Section
2.23.
“Default”
shall mean any event or condition that upon notice, lapse of time
or both would constitute an Event of Default.
“Defaulting
Lender” shall mean any
Lender with respect to which a Lender Default is in
effect.
“Dollars”
or “$” shall mean lawful money of the United
States of America.
“Domestic
Borrower” shall have
the meaning assigned to such term in the introductory paragraph to
this Agreement.
“Domestic Collateral
Agreement” shall mean
the Amended and
Restated Guarantee and
Collateral Agreement, dated as of the date hereof,
substantially in the form of
Exhibit
E as amended, supplemented or
otherwise modified from time to time, among the Domestic Borrower,
each Domestic Subsidiary Loan Party and the Collateral
Agent.
“Domestic Loan
Parties” shall mean the
Domestic Borrower and each Domestic Subsidiary Loan
Party.
“Domestic
Subsidiary” shall mean
each Subsidiary that is not a Foreign Subsidiary.
“Domestic Subsidiary
Loan Party” shall mean
each Wholly Owned Subsidiary of the Domestic Borrower
that (a) is (i) a Domestic Subsidiary and (ii) a Material
Subsidiary, and (b) is not (i) a Special Purpose Receivables
Subsidiary, (ii) listed on Schedule
1.01(a),
or (iii) a Subsidiary whose guarantee of the Obligations is
prohibited under Section
9.23.
“EBITDA”
shall mean, with respect to the Domestic Borrower and its
Subsidiaries on a consolidated basis for any period, the
Consolidated Net Income of the Domestic Borrower and its
Subsidiaries for such period plus (a) the sum of (in each case without duplication
and to the extent the respective amounts described in subclauses
(i) through (viii) of this clause (a) reduced such Consolidated Net
Income for the respective period for which EBITDA is being
determined):
(i)provision for Taxes based on income, profits or
capital of the Domestic Borrower and its Subsidiaries for such
period to the extent that such provision for taxes was deducted in
calculating Consolidated Net Income,
(ii)Interest Expense of the Domestic Borrower and
its Subsidiaries for such period (net of interest income of the
Domestic Borrower and its Subsidiaries for such period),
(iii)depreciation, amortization (including
amortization of intangibles, deferred financing fees and any
amortization expense included in pension, OPEB or other employee
benefit expenses) and other non-cash expenses (including, without
limitation write-downs and impairment of property, plant, equipment
and intangibles and other long-lived assets and the impact of
purchase accounting on the Domestic Borrower and its Subsidiaries
for such period),
(iv)the amount of any restructuring charges (which,
for the avoidance of doubt, shall include retention, severance,
systems establishment cost or excess pension, other post-employment
benefits, curtailment or other excess charges); provided that with respect to each such restructuring
charge, the Domestic Borrower shall have delivered to the
Administrative Agent an officers’ certificate specifying and
quantifying such expense or charge and stating that such expense or
charge is a restructuring charge,
(v)equity earnings losses in Affiliates unless
funds have been disbursed to such Affiliates by the Domestic
Borrower or any Subsidiary of the Domestic Borrower,
(vi)other non-operating expenses,
(vii)the minority interest expense consisting of
subsidiary income attributable to minority equity interests of
third parties in any non-Wholly Owned Subsidiary in such period or
any prior period, except to the extent of dividends declared or
paid on Equity Interests held by third parties, and
(viii)accretion of asset retirement obligations in
accordance with SFAS No. 143, Accounting for Asset Retirement
Obligations, and any similar
accounting in prior periods;
minus
(b) the sum of (in each case without
duplication and to the extent the respective amounts described in
subclause (i) of this clause (b) increased such Consolidated Net
Income for the respective period for which EBITDA is being
determined):
(i)non-cash items increasing Consolidated Net
Income of the Domestic Borrower and its Subsidiaries for such
period (but excluding any such items which represent the reversal
in such period of any accrual of, or cash reserve for, anticipated
cash charges in any prior period where such accrual or reserve is
no longer required).
“EMU” shall mean the Economic and Monetary
Union as contemplated by the Treaty on European Union.
“Environment”
shall mean ambient and indoor air, surface water and groundwater
(including potable water, navigable water and wetlands), the land
surface or subsurface strata or sediment, natural resources such as
flora and fauna, the workplace or as otherwise defined in any
Environmental Law.
“Environmental
Claim” shall mean any
and all actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, notices of liability or
potential liability, investigations, proceedings, consent orders or
consent agreements relating in any way to any Environmental Law or
any Hazardous Material.
“Environmental
Law” shall mean,
collectively, all federal, state, local or foreign laws, including
common law, ordinances, regulations, rules, codes, orders,
judgments or other requirements or rules of law that relate to (a)
the prevention, abatement or elimination of pollution, or the
protection of the Environment, natural resources or human health,
or natural resource damages, and (b) the use, generation, handling,
treatment, storage, disposal, Release, transportation or regulation
of or exposure to Hazardous Materials, including the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C.
§§ 9601 et seq., the Endangered Species Act, 16 U.S.C.
§§ 1531 et seq., the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act, 42 U.S.C. §§
6901 et
seq., the Clean Air Act, 42
U.S.C. §§ 7401 et seq., the Clean Water Act, 33 U.S.C. §§
1251 et
seq., the Toxic Substances
Control Act, 15 U.S.C. §§ 2601 et seq., the Emergency Planning and Community Right to
Know Act, 42 U.S.C. §§ 11001 et seq., each as amended, and their foreign, state or
local counterparts or equivalents.
“Equity
Interests” of any
Person shall mean any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of
or interests in (however designated) equity of such Person,
including any preferred stock, any limited or general partnership
interest and any limited liability company membership
interest.
“Equivalent”
in Dollars of any Foreign Currency or Alternate LC Currency on any date shall mean the equivalent in Dollars
of such Foreign Currency or
Alternate LC Currency determined by using the quoted spot rate at
which the European Administrative Agent’s principal office in
London offers to exchange Dollars for such Foreign Currency
or Alternate LC Currency
in London prior to 4:00 p.m. (London
time) (unless otherwise indicated by the terms of this Agreement)
on such date as is required pursuant to the terms of this
Agreement, and the “Equivalent” in any Foreign Currency
of Dollars shall mean the equivalent in such Foreign Currency of
Dollars determined by using the quoted spot rate at which the
European Administrative Agent’s principal office in London
offers to exchange such Foreign Currency for Dollars in London
prior to 4:00 p.m. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to
the terms of this Agreement.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
“ERISA
Affiliate” shall mean
any trade or business (whether or not incorporated) that,
together with any Borrower or
any Subsidiary, is treated as a single employer under Section 414
of the Code.
“ERISA
Event” shall mean (a)
any Reportable Event; (b) the
failure of any Plan to satisfy the minimum funding standard
applicable to that Plan for a plan year under Section 430 of the
Code or Section 301 of ERISA;
(c) the filing pursuant to
Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the
minimum funding standard with respect to
any Plan, the failure to make by its
due date a required installment under Section 412(m) of the Code
with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan; (d) the incurrence by
any Borrower, Subsidiary
or ERISA Affiliate of any liability under Title IV of ERISA; (e)
the receipt by any Borrower, Subsidiary
or ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or to appoint
a trustee to administer any Plan under Section 4042 of ERISA, or
the occurrence of any event or condition which could be reasonably
be expected to constitute grounds under ERISA for the termination
of, or the appointment of a trustee to administer, any Plan; (f)
the incurrence by any Borrower, Subsidiary
or ERISA Affiliate of any liability with respect to the withdrawal
or partial withdrawal from any Plan or Multiemployer Plan; (g) the
receipt by any Borrower, Subsidiary
or ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from any
Borrower, Subsidiary
or ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within
the meaning of Title IV of ERISA; (h) the occurrence of a nonexempt
prohibited transaction (within the meaning of Section 4975 of the
Code or Section 406 of ERISA) which could reasonably be expected to
result in liability to any
Borrower, Subsidiary or ERISA
Affiliate; (i) the incurrence by any Borrower, Subsidiary
or ERISA Affiliate of a tax under Section 4980B of the Code; or (j)
the incurrence by any Borrower, Subsidiary
or ERISA Affiliate of any liability under Section 502 of
ERISA.
“EURIBO
Rate”
shall
mean, in relation to any Loan in
Euro:
(a)the applicable Screen Rate; or
(b)(if no Screen Rate is available for the Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Administrative
Agent by leading banks in the European interbank
market,
as of 11:00 am London time on the
Quotation Day for the offering of deposits in Euro for a period
comparable to the Interest Period of the relevant Loan.
“Euro Administrative
Agent Fees” shall have
the meaning assigned to such term in Section 2.13(e).
“Euro Revolving
Facility” shall mean
the Euro Revolving Facility Commitments and the extensions of
credit made hereunder by the Euro Revolving Facility Lenders.
“Euro Revolving
Facility Availability Period” shall mean the period from the
Closing Date to but excluding the earlier of the Maturity
Date and in the case of each of the Euro Revolving Facility Loans
and Euro Revolving Facility Borrowings, the date of termination of
the Euro Revolving Facility
Commitments.
“Euro Revolving
Facility Available Unused Commitment” shall mean, with respect to a Euro
Revolving Facility Lender, at any time of determination, an amount
equal to the amount by which (a) the Euro Revolving Facility
Commitment of such Euro Revolving Facility Lender at such time
exceeds (b) the Euro Revolving Facility Credit Exposure of such
Euro Revolving Facility
Lender at such time.
“Euro Revolving
Facility Borrowing”
shall mean a Borrowing comprised of Euro Revolving Facility Loans.
“Euro Revolving
Facility Commitment”
shall mean, with respect to each Euro Revolving Facility Lender,
the commitment of such Euro Revolving Facility Lender to make Euro
Revolving Facility Loans pursuant to Section 2.01(d) or a New Lender Supplement, expressed as a Euro
amount representing the maximum aggregate permitted amount of such
Euro Revolving Facility Lender’s Euro Revolving Facility
Credit Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender under
Section 9.04. The initial Euro amount of each
Euro Revolving Facility Lender’s Euro Revolving Facility
Commitment is set forth on Schedule
2.01
(as amended by any New Lender
Supplement), or in the Assignment and Acceptance pursuant to which
such Euro Revolving Facility Lender shall have assumed its Euro
Revolving Facility Commitment, as applicable. The
aggregate amount of the Euro Revolving Facility Commitments on
the Closing
Date is €50.0
million.
“Euro Revolving
Facility Credit Exposure” shall mean, at any time, the sum of the
aggregate principal amount of the Euro Revolving Facility Loans
outstanding at such time. The Euro Revolving Facility
Credit Exposure of any Euro Revolving Facility Lender at any time
shall be the sum of the aggregate principal amount of such Euro
Revolving Facility Lender’s Euro Revolving Facility
Loans outstanding at such
time.
“Euro Revolving
Facility Lender” shall
mean a Lender with a Euro Revolving Facility Commitment or with
outstanding Euro Revolving
Facility Loans.
“Euro Revolving
Facility Loan” shall
mean a Loan made by a Euro Revolving Facility Lender pursuant
to Section
2.01(d). Each Euro
Revolving Facility Loan shall
be a Eurocurrency Loan.
“Eurocurrency
Borrowing” shall mean a
Borrowing comprised of Eurocurrency Loans.
“Eurocurrency
Loan” shall mean any
Loan denominated in Dollars or a Foreign Currency bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
“European
Administrative
Agent” shall have the
meaning assigned to such term in the introductory paragraph of this
Agreement.
“Euros”
shall mean the single currency unit of the member states of the
European Community that adopt or have adopted that currency unit as
its lawful currency in accordance with legislation of the European
Community relating to Economic and Monetary Union.
“Event of
Default” shall have the
meaning assigned to such term in Section 7.01.
“Exchange
Act” shall mean the
Securities Exchange Act of 1934, as amended.
“Excluded
Taxes” shall mean, with
respect to any Agent, any Lender, any Issuing Bank or any other
recipient of any payment to be made by or on account of any
obligation of any Loan
Party hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income or net
profits by the United States of America or by the jurisdiction
under the laws of which such recipient is organized or in which its
principal office (or other fixed place of business) is located or,
in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits tax or any similar tax that is
imposed by any jurisdiction described in clause (a)
above, (c)
other than in the case of an
assignee pursuant to a request by such Loan Party under Section 2.20(b), any withholding tax imposed by the United
States or by the jurisdiction under the laws of which such Loan
Party is organized or in which its principal office (or other fixed
place of business) is located that is in effect and would apply to
amounts payable hereunder to such Lender or other recipient at the
time such Lender or other recipient becomes a party to any Loan
Document (or designates a new lending office), except to the extent
that such Lender or other recipient (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from a Loan Party with
respect to such withholding tax pursuant to Section 2.18(a) or Section
2.18(c), (d) any withholding
taxes attributable to such Lender’s or such other
recipient’s failure (other than as a result of a Change in
Law) to comply with Section
2.18(e) and (e) any United
States withholding tax that is imposed by FATCA; provided, however, that the term “Excluded
Taxes” shall not
include any taxes that are imposed or otherwise due as a result of
any action undertaken by one or more of such Agent, Lender or
Issuing Bank to collect funds due hereunder or under any other Loan
Document or enforce or exercise its rights or pursue any remedy
provided hereunder or under any other Loan Document.
“Existing Credit
Agreement” shall
have the meaning
assigned to such term in the recitals.
“Existing
Lenders”
shall have the meaning assigned to such term in the
recitals.
“Facility”
shall mean the respective facility and commitments utilized in
making Loans and credit extensions hereunder, it being understood
that as of the Closing
Date there are three Facilities: (1) the Revolving Facility,
(2) the Euro Revolving
Facility and (3) the Term Facility.
“FATCA”
shall mean
Sections 1471 through 1474 of the
Code (and any successor sections thereto) and any regulations or
official interpretations thereof.
“Federal Funds
Effective Rate” shall
mean, for any day, the weighted average (rounded upward, if
necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a
Business Day, the average (rounded upward, if necessary, to the
next 1/100 of 1%) of the quotations for the day of such
transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by
it.
“Fee
Letter” shall mean that
certain Fee Letter dated as
of the date hereof by and
among the Domestic Borrower, the Administrative Agent and the Lead
Arranger.
“Fees”
shall mean the Commitment Fees, the L/C Participation Fees, the
Issuing Bank Fees, the Administrative Agent Fees and the
Euro Administrative Agent
Fees.
"Financial
L/C" shall mean a financial or documentary Letter of
Credit.
“Financial
Officer” of any Person
shall mean the Chief Financial Officer, principal accounting
officer, Treasurer, Assistant Treasurer or Controller of such
Person.
“Foreign
Borrower” shall mean,
collectively, the Spanish Borrower and each Additional Foreign Borrower.
“Foreign Collateral
Agreement” shall mean
with respect to any Person, such collateral agreements and other
agreements necessary under applicable foreign law to grant to the
Collateral Agent a security interest in such assets of such Person
of the type identified in the Domestic Collateral Agreement;
provided
that no security interest shall be
granted on all or any portion of such assets if the Domestic
Borrower demonstrates to the Collateral Agent and the Collateral
Agent determines (in its reasonable discretion) that the cost of
granting such security interest exceeds the value of the security
offered thereby.
“Foreign
Currency” shall mean
Euros and Sterling.
“Foreign Financed
Development Project”
shall mean development projects undertaken after the Closing Date
by Foreign Subsidiaries or joint ventures of Foreign Subsidiaries
and financed by one or more development banks, export credit
agencies or their Affiliates.
“Foreign
Guarantee” shall mean,
collectively, one or more guarantee agreements, as amended,
supplemented or otherwise modified from time to time, each
in a form reasonably satisfactory to the Collateral
Agent, among the applicable Foreign Subsidiary Loan Party and the
Collateral Agent.
“Foreign
Lender” shall mean any
Lender that is organized under the laws of a jurisdiction other
than the United States of America. For purposes of this
definition, the United States of America, each State thereof and
the District of Columbia shall be deemed to constitute a single
jurisdiction.
“Foreign Loan
Parties” shall mean
each Foreign Borrower and each Foreign Subsidiary Loan
Party.
“Foreign
Plan”
shall mean any pension scheme or foreign employee benefit plan or
program with respect to which any Borrower, Subsidiary
or ERISA Affiliate (i) is making or has an obligation to make
contributions or (ii) has or could incur liability.
“Foreign
Subsidiary” shall mean
any Subsidiary that is incorporated or organized under the laws of
any jurisdiction other than the United States of America, any State
thereof or the District of Columbia and any Subsidiary of a Foreign
Subsidiary.
“Foreign Subsidiary
Loan Party” shall mean,
collectively, with respect to
each Additional Foreign Borrower, each Wholly Owned Subsidiary of
such Additional Foreign Borrower that (a) is (i) a Foreign
Subsidiary, (ii) a Material Subsidiary and (iii) organized under
the same jurisdiction as such Additional Foreign Borrower and (b)
is not (i) a Special Purpose Receivables
Subsidiary, (ii) listed on
Schedule
1.01(a),
or (iii) a Subsidiary whose guarantee of the Obligations of such
Additional Foreign Borrower is prohibited under Section 9.23..
“GAAP”
shall mean generally accepted accounting principles in effect from
time to time in the United States, applied on a consistent basis,
subject to the provisions of Section 1.02.
“Governmental
Authority” shall mean
any federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory or legislative body,
including, without limitation, any agency of the European Union or
similar monetary or multinational authority.
“Guarantee”
of or by any Person (the “guarantor”)
shall mean (a) any obligation, contingent or otherwise, of the
guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the
“primary
obligor”) in any
manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (i) to purchase or
pay (or advance or supply funds for the purchase or payment of)
such Indebtedness (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods,
securities or services, to take or pay or otherwise) or to purchase
(or to advance or supply funds for the purchase of) any security
for the payment of such Indebtedness, (ii) to purchase or lease
property, securities or services for the purpose of assuring the
owner of such Indebtedness of the payment thereof, (iii) to
maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness, (iv) entered
into for the purpose of assuring in any other manner the holders of
such Indebtedness of the payment thereof or to protect such holders
against loss in respect thereof (in whole or in part) or (v) as an
account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness, or (b) any Lien on
any assets of the guarantor securing any Indebtedness (or any
existing right, contingent or otherwise, of the holder of
Indebtedness to be secured by such a Lien) of any other Person,
whether or not such Indebtedness is assumed by the
guarantor; provided, however, that the term “Guarantee”
shall not include endorsements for collection or deposit, in either
case in the ordinary course of business, or customary and
reasonable indemnity obligations in effect on the Closing Date or
entered into in connection with any acquisition or disposition of
assets permitted under this Agreement.
“Hazardous
Materials” shall mean
all pollutants, contaminants, wastes, chemicals, materials,
substances and constituents, including, without limitation,
explosive or radioactive substances or petroleum or petroleum
distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls or radon gas, of any nature, in each case
subject to regulation or which can give rise to liability under any
Environmental Law.
“Improvements”
shall have the meaning assigned to such term in the
Mortgages.
“Indebtedness”
of any Person shall mean, without duplication, (a) all obligations
of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional
sale or other title retention agreements relating to property or
assets purchased by such Person, (d) all obligations of such Person
issued or assumed as the deferred purchase price of property
or
services (other than trade
liabilities and intercompany liabilities incurred in the ordinary
course of business and maturing within 365 days after the
incurrence thereof), (e) all Guarantees by such Person of
Indebtedness of others, (f) all Capital Lease Obligations of such
Person, (g) all payments that such Person would have to make in the
event of an early termination, on the date Indebtedness of such
Person is being determined in respect of outstanding Swap
Agreements (such payments in respect of any Swap Agreement with a
counterparty being calculated net of amounts owing to such Person
by such counterparty in respect of other Swap Agreements), (h) the
principal component of all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit
(other than any letters of credit, bank guarantees or similar
instrument in respect of which a back-to-back letter of credit has
been issued under or permitted by this Credit Agreement) and (i)
the principal component of all obligations of such Person in
respect of bankers’ acceptances. The Indebtedness
of any Person shall include the Indebtedness of any partnership in
which such Person is a general partner, other than to the extent
that the instrument or agreement evidencing such Indebtedness
expressly limits the liability of such Person in respect
thereof. To the extent not otherwise included,
Indebtedness shall include the amount of any Permitted Receivables
Financing.
“Indemnified
Taxes” shall mean all
Taxes other than Excluded Taxes.
“Indemnitee”
shall have the meaning assigned to such term in Section 9.05(b).
“Interest Coverage
Ratio” shall
mean the ratio of (a) EBITDA to (b) Cash Interest
Expense for the period of four consecutive fiscal quarters of the
Domestic Borrower most recently ended as of such date, all
determined on a consolidated basis in accordance with GAAP;
provided
that to the extent any Asset
Disposition or any Asset Acquisition (or any similar transaction or
transactions for which a waiver or a consent of the Required
Lenders pursuant to Section
6.05 has been obtained) or
incurrence or repayment of Indebtedness (excluding normal
fluctuations in revolving Indebtedness incurred for working capital
purposes) has occurred during the relevant Test Period, the
Interest Coverage Ratio shall be determined for the respective Test
Period on a pro forma Basis for such occurrences.
“Interest
Expense” shall mean,
with respect to any Person for any period, the sum of (a) gross
interest expense of such Person for such period on a consolidated
basis, including (i) the amortization of debt discounts, (ii) the
amortization of all fees (including fees with respect to Swap
Agreements) payable in connection with the incurrence of
Indebtedness to the extent included in interest expense, (iii) the
portion of any payments or accruals with respect to Capital Lease
Obligations allocable to interest expense and (iv) commissions,
discounts, yield and other fees and charges incurred in connection
with any Permitted Receivables Financing which are payable to any
Person other than the Borrowers or a Subsidiary Loan Party, and (b)
capitalized interest of such Person. For purposes of the
foregoing, gross interest expense shall be determined after giving
effect to any net payments made or received and costs incurred by
the Domestic Borrower and its Subsidiaries with respect to Swap
Agreements.
“Interest Payment
Date” shall mean (a)
with respect to any Eurocurrency Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest
Period of more than three months’ duration, each day that
would have been an Interest Payment Date had successive Interest
Periods of three
months’ duration been
applicable to such Borrowing and, in addition, the date of any
refinancing or conversion of such Borrowing with or to a Borrowing
of a different Type, (b)
with respect to any ABR Loan, the last day of each calendar quarter and (c) with
respect to any Swingline Loan, the day that such Swingline Loan is
required to be repaid pursuant to Section 2.11.
“Interest
Period” shall mean, as
to any Eurocurrency Borrowing, the period commencing on the date of
such Borrowing or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as applicable, and
ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 months thereafter (or 12 months, if at
the time of the relevant Borrowing, all Lenders make interest
periods of such length available), as the applicable Borrower may
elect, or the date any Eurocurrency Borrowing is converted to an
ABR Borrowing in accordance with Section 2.07 or repaid or prepaid in accordance with Section 2.10, 2.11 or 2.12;
provided, unless the Administrative Agent shall
otherwise agree, that prior to the earlier of the 31st day after
the Closing Date and the date on which the Administrative Agent has
notified the Borrowers that the primary syndication of the
Facilities has been completed, the Borrowers shall only be
permitted to request Interest Periods of seven days (it being
understood that notwithstanding anything else in this Agreement to
the contrary, if on the last day of any such seven day Interest
Period the primary syndication of the Facilities shall not have
been completed, a new seven day Interest Period will begin on such
day with respect to each such Borrowing and no notice by any
Borrower shall be required with respect thereto);
provided
further,
however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business
Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such
Interest Period.
“Issuing
Bank” shall mean
JPMorgan, Wells Fargo Bank, N.A. and each other Issuing Bank designated pursuant
to Section
2.05(k), in each case in its
capacity as an issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in Section 2.05(i). An Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such Issuing Bank, in which case the term
“Issuing Bank” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
“Issuing Bank
Fees” shall have the
meaning assigned to such term in Section 2.13(b).
“JPMorgan”
shall mean JPMorgan Chase Bank, N.A. and its successors and
assigns.
“L/C
Commitment”
shall be equal to
the Revolving Facility
Commitment.
“L/C
Disbursement” shall
mean a payment or disbursement made by an Issuing Bank pursuant to
a Letter of Credit, including, for the avoidance of doubt, a
payment or disbursement made by an Issuing Bank pursuant to a
Letter of Credit upon or following the reinstatement of such Letter
of Credit.
“L/C
Exposure”
shall
mean, at any time, the sum of
(a) the aggregate undrawn amount of all outstanding Letters of
Credit at such time plus (b) the aggregate amount of all
L/C
Disbursements that have not yet been
reimbursed by or on behalf of the Domestic Borrower at such time. The L/C
Exposure of any Lender at any time shall be its Revolving Facility
Percentage of the total L/C Exposure at such time.
“L/C Participation
Fee” shall have the
meaning assigned such term in Section 2.13(b).
“Lead
Arranger” shall
mean J.P. Morgan
Securities LLC.
“Lender”
shall mean each financial institution listed on Schedule
2.01,
as well as any Person that becomes a “Lender” hereunder
pursuant to Section
9.04.
“Lender
Default” shall mean (i)
the refusal (which has not been retracted) of a Lender to make
available its portion of any Borrowing, to acquire participations in a Swingline Loan
pursuant to Section
2.04 or to fund its portion
of any unreimbursed payment under Section 2.05(e), unless
the subject of a good faith dispute, (ii) a Lender having notified in writing any
Borrower and/or the Administrative Agent that it does not intend to
comply with its obligations under Section 2.05 or 2.06 or
(iii) a Lender having
become the subject of a bankruptcy
or insolvency proceeding, or having had
a receiver, conservator, trustee or custodian appointed for it, or having a
parent company that has become the subject of a bankruptcy
or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for
it or, in the good faith determination of the
Administrative Agent, having taken any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any
such proceeding or appointment; provided that a
Lender Default shall not be deemed to be in effect
solely as the result of the acquisition or maintenance
of an ownership interest in a Lender or any Person controlling such
Lender or the exercise of control over such Lender or any Person
controlling such Lender by a Governmental Authority or an
instrumentality thereof.
“Letter of
Credit” shall mean any
letter of credit issued pursuant to Section 2.05, including any Letter of Credit issued and
outstanding under the Existing Credit Agreement immediately prior
to the Closing Date as set forth on Schedule
2.05.
“Leverage
Ratio” shall mean, on
any date, the ratio of (a) Consolidated Debt as of such date to (b)
EBITDA for the period of four consecutive fiscal quarters of the
Domestic Borrower most recently ended as of such date, all
determined on a consolidated basis in accordance with GAAP;
provided
that to the extent any Asset
Disposition or any Asset Acquisition (or any similar transaction or
transactions that require a waiver or a consent of the Required
Lenders pursuant to Section
6.04 or Section 6.05) or incurrence or repayment of Indebtedness
(excluding normal fluctuations in revolving Indebtedness incurred
for working capital purposes) has occurred during the relevant Test
Period, EBITDA shall be determined for the respective Test Period
on a Pro Forma Basis for such occurrences.
“LIBO
Rate”
shall
mean (i) in relation to any
Eurocurrency Borrowing denominated in Dollars or any Foreign
Currency (other than Euro):
(a)the applicable Screen Rate; or
(b)(if no Screen Rate is available for the currency
or Interest Period of that Eurocurrency Borrowing) the arithmetic
mean of the rates (rounded upwards to four
decimal places) as supplied to the
Administrative Agent to leading banks in the London interbank
market,
as of 11:00 am London time on the
Quotation Day for the offering of deposits in the currency of that
Eurocurrency Borrowing and for a period comparable to the Interest
Period for that Eurocurrency Borrowing and (ii) with respect to any
Eurocurrency Borrowing denominated in Euros, the EURIBO
Rate.
“Lien”
shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, hypothecation, pledge, encumbrance, charge or security
interest in or on such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities (other than securities
representing an interest in a joint venture that is not a
Subsidiary), any purchase option, call or similar right of a third
party with respect to such securities.
“Loan
Documents” shall mean
this Agreement, the Letters of Credit, the Security Documents, each
Credit Agreement Supplement entered into by an Additional Foreign
Borrower and any promissory note issued under Section 2.10(g) and any other instrument or agreement now or
hereafter executed and delivered in connection herewith or
therewith.
“Loan
Parties” shall mean
each Domestic Loan Party and each Foreign Loan Party.
“Loans”
shall mean the Revolving Facility Loans, the Euro Revolving
Facility Loans, the Swingline
Loans and the Term Facility
Loans.
“Local
Time” shall mean (i) in
the case of Loans and Letters of Credit denominated in Dollars, New
York City time and (ii) in the case of Loans and Letters of Credit
denominated in Euros or any other Foreign Currency, London
time.
“Majority
Lenders” of any
Facility shall mean, at any time, Lenders under such Facility
having Loans and unused Commitments representing more than 50% of
the sum of all Loans outstanding under such Facility and unused
Commitments under such Facility at such time, in each case
calculated on the Equivalent in Dollars at such
time. The Loans and Commitment of any Defaulting Lender
shall be disregarded in determining Majority Lenders at any
time.
“Margin
Stock” shall have the
meaning assigned to such term in Regulation U.
“Material Adverse
Effect” shall mean the
existence of events, conditions and/or contingencies that have had
or are reasonably likely to have (a) a materially adverse effect on
the business, operations, properties, assets or financial condition
of the Domestic
Borrower and its Subsidiaries, taken as a whole, or (b) a material
impairment of the validity or enforceability of, or a material
impairment of the material rights, remedies or benefits available
to the Lenders, any Issuing Bank, the Administrative Agent or the
Collateral Agent under, any Loan Document.
“Material
Indebtedness” shall
mean Indebtedness (other than Loans and Letters of Credit) of any
one or more of the Domestic Borrower or any Subsidiary in an
aggregate principal amount
exceeding $50.0
million.
“Material Real
Property” shall mean
any Real Property owned by a Loan Party on the Closing Date having
a fair market value exceeding $10.0
million and any
after-acquired Real Property owned by a Loan Party having a gross
purchase price exceeding $10.0
million at the time of
acquisition.
“Material
Subsidiary” shall mean
each Subsidiary of the Domestic Borrower now existing or hereafter
acquired or formed by the Domestic Borrower which, on a
consolidated basis for such Subsidiary and its Subsidiaries, (a)
for the applicable Calculation Period accounted for more than 1.5%
of the consolidated revenues of the Domestic Borrower and its
Subsidiaries or (b) as of the last day of such Calculation Period,
was the owner of more than 1.5% of the Consolidated Total Assets of
the Domestic Borrower and its Subsidiaries; provided that at no time shall the total assets of all
Subsidiaries that are not Material Subsidiaries exceed, for the
applicable Calculation Period, 5.0% of the Consolidated Total
Assets of the Domestic Borrower and its Subsidiaries.
“Maturity
Date” shall mean
September 30,
2018.
“Maximum
Rate” shall have the
meaning assigned to such term in Section 9.09.
“Moody’s”
shall mean Moody’s Investors Service, Inc.
“Mortgaged
Properties” shall mean
all Material Real Property which shall be subject to a Mortgage
that is delivered pursuant to
the terms of this Agreement.
“Mortgages”
shall mean the mortgages, deeds of trust, assignments of leases and
rents and other security documents delivered on or prior to the Closing Date pursuant to Section 4.02(e) of this Agreement or Section 4.02(e) of the
Existing Credit Agreement or
after the Closing Date pursuant to Section 5.10, as amended, supplemented or otherwise modified
from time to time, with respect to Mortgaged Properties, each
substantially in the form of Exhibit D,
with such changes thereto as shall be acceptable to the Collateral
Agent, including all such changes as may be required to account for
local law matters.
“Multiemployer
Plan” shall mean a
multiemployer plan as defined in Section 4001(a)(3) of ERISA with
respect to which any Borrower, Subsidiary
or ERISA Affiliate (a) is making or has an obligation to make
contributions, (b) has within any of the preceding six plan years
made or had an obligation to make contributions or (c)
otherwise has or
could incur liability.
“Net
Income” shall mean,
with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends.
“Net
Proceeds” shall
mean 100% of the cash proceeds actually received by
the Domestic Borrower or any Wholly-Owned Subsidiary (including any
cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise and including casualty insurance
settlements and condemnation awards, but only as and when received)
from any loss, damage, destruction or condemnation of, or any sale,
transfer or other disposition (including any sale and leaseback of
assets) to any Person of any asset or assets of the Domestic
Borrower or any Subsidiary (other
than those pursuant to
Section 6.05(a), (b),
(c), (e),
(f), (g),
(i), (j),
(k) or (l)), net
of (i) attorneys’ fees, accountants’ fees, investment
banking fees, sales commissions, survey costs, title insurance
premiums, and related search and recording charges, transfer taxes,
deed or mortgage recording taxes, required debt payments and
required payments of other obligations relating to the applicable
asset (other than pursuant hereto or pursuant to the
2021 Senior Subordinated
Notes or any Permitted Senior
Debt Securities or Permitted Subordinated Debt Securities) and any
cash reserve for adjustment in respect of the sale price of such
asset established in accordance with GAAP, including without
limitation, pension and post-employment benefit liabilities and
liabilities related to environmental matters or against any
indemnification obligations associated with such transaction, other
customary expenses and brokerage, consultant and other customary
fees actually incurred in connection therewith and (ii) Taxes paid
or payable as a result thereof.
For purposes of calculating the
amount of Net Proceeds, fees, commissions and other costs and
expenses payable to any Borrower or any Affiliate of any of them
shall be disregarded.
“Non-Consenting
Lender” shall have the
meaning assigned to such term in Section 2.20(c).
“Obligations”
shall mean all amounts owing to any of the Agents, any Lender or
any of their affiliates pursuant to the terms of this Agreement or
any other Loan Document.
“Other
Taxes” shall mean any
and all present or future stamp or documentary taxes or any other
excise or property, intangible or mortgage recording taxes, charges
or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with
respect to, the Loan Documents, and any and all interest and
penalties related thereto.
“Participant”
shall have the meaning assigned to such term in Section 9.04(c).
“PBGC”
shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
“Perfection
Certificate” shall mean
a certificate in the form of Annex I to the Domestic Collateral
Agreement or any other form approved by the Collateral
Agent.
"Performance L/C"
shall mean a
Letter of Credit supporting the performance of obligations by the
Domestic Borrower or one of its Subsidiaries.
“Permitted Business
Acquisition” shall mean
any acquisition of all or substantially all the assets of, or all
the Equity Interests (other than directors’ qualifying
shares) in, a Person or division or line of business of a Person
(or any subsequent investment made in a Person, division or line of
business previously acquired in a Permitted Business Acquisition)
if (a) such acquisition was not preceded by, or effected pursuant
to, an unsolicited or hostile offer and (b) immediately after
giving effect thereto: (i) no Event of Default shall
have occurred and be continuing or would result therefrom; (ii) all
transactions related thereto shall be consummated in accordance
with applicable laws; and (iii) (A) the Domestic Borrower and its
Subsidiaries shall be in compliance, on a Pro Forma Basis after
giving effect to such acquisition or formation, with the covenants
contained in Sections 6.11 and 6.12 recomputed as at the last day of the
most
recently ended fiscal quarter of the
Domestic Borrower and its Subsidiaries, and the Domestic Borrower
shall have delivered to the Administrative Agent a certificate of a
Responsible Officer of the Domestic Borrower to such effect,
together with all relevant financial information for such
Subsidiary or assets, and (B) any acquired or newly formed
Subsidiary shall not be liable for any Indebtedness (except for
Indebtedness permitted by Section 6.01).
“Permitted
Encumbrances” shall
mean (i) with respect to each Real Property, those Liens and other
encumbrances permitted by paragraphs (b),
(d), (h),
(m) and (o) of Section
6.02 and (ii) with respect to
each Real Property acquired after the Closing Date, those Liens and
other encumbrances permitted by paragraphs (b),
(d), (e),
(h), (k),
(m) and (o) of Section
6.02,
provided, however, that in the case of those Liens and other
encumbrances permitted by clause (o) of Section
6.02 and as described in
clauses (i) and (ii) of this definition, in the event any Loan
Party shall constitute the lessor under any such lease or sublease,
no Lien created or permitted to be incurred thereby shall be
permitted hereunder except to the extent such Lien would otherwise
constitute a Permitted Encumbrance.
“Permitted
Investments” shall
mean:
(a)direct
obligations of the United States of America or any agency thereof
or obligations guaranteed by the United States of America or any
agency thereof, in each case with maturities not exceeding two
years;
(b)time
deposit accounts, certificates of deposit and money market deposits
maturing within 180 days of the date of acquisition thereof issued
by a bank or trust company that is organized under the laws of the
United States of America, or any state thereof having capital,
surplus and undivided profits
in excess of $500.0 million
and whose long-term debt, or whose parent holding company’s
long-term debt, is rated A (or such similar equivalent rating or
higher) by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities
Act);
(c)repurchase obligations with a term of not more
than 180 days for underlying securities of the types described in
clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above;
(d)commercial paper, maturing not more than one
year after the date of acquisition, issued by a corporation (other
than an Affiliate of any Borrower) organized and in existence under
the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the
time as of which any investment therein is made of P-1 (or higher)
according to Moody’s, or A-1 (or higher) according to
S&P;
(e)securities with maturities of two years or less
from the date of acquisition issued or fully guaranteed by any
State, commonwealth or territory of the United States of America,
or by any political subdivision or taxing authority thereof, and
rated at least A by S&P or A-2 by Moody’s;
(f)shares of
mutual funds whose investment guidelines restrict 95% of such
funds’ investments to those satisfying the provisions of
clauses (a) through (e) above;
(g)money
market funds that (i) comply with the criteria set forth in Rule
2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P and Aaa by Moody’s and (iii) have portfolio assets
of at least $500.0 million; and
(h)time
deposit accounts, certificates of deposit and money market deposits
in an aggregate face amount not in excess of 1/2 of 1% of the total
assets of the Domestic Borrower and the Subsidiaries, on a
consolidated basis, as of the end of the Domestic Borrower’s
most recently completed fiscal year.
“Permitted Receivables
Documents” shall mean
all documents and agreements evidencing, relating to or otherwise
governing a Permitted Receivables Financing.
“Permitted Receivables
Financing” shall mean
one or more transactions pursuant to which (i) Receivables Assets
or interests therein are sold to or financed by one or more Special
Purpose Receivables Subsidiaries, and (ii) such Special Purpose
Receivables Subsidiaries finance their acquisition of such
Receivables Assets or interests therein, or the financing thereof,
by selling or borrowing against such Receivables Assets;
provided
that (A) recourse to the Domestic
Borrower or any Subsidiary (other than the Special Purpose
Receivables Subsidiaries) and any obligations or agreements of the
Domestic Borrower or any Subsidiary (other than the Special Purpose
Receivables Subsidiaries) in connection with such transactions
shall be limited to the extent customary for similar transactions
in the applicable jurisdictions (including, to the extent
applicable, in a manner consistent with the delivery of a
“true sale”/”absolute transfer” opinion
with respect to any transfer by the Domestic Borrower or any
Subsidiary (other than a Special Purpose Receivables Subsidiary),
(B) the aggregate Receivables Net Investment since the Closing Date
shall not exceed $75.0 million at any time, (C) the Board of
Directors of the Domestic Borrower shall have determined in good
faith that each such Permitted Receivables Financing (including
financing terms, covenants, termination events and other
provisions) is in the aggregate economically fair and reasonable to
the Domestic Borrower and the applicable Special Purpose
Receivables Subsidiary, (D) all sales of Receivables Assets or
interests therein to any Special Purpose Receivables Subsidiary are
made at fair market value (as determined in good faith by the
Domestic Borrower), and (E) the financing terms, covenants,
termination events and other provisions thereof will be market
terms (as determined in good faith by the Domestic Borrower) and
may include representations, warranties, covenants, indemnities and
guarantees of performance which the Domestic Borrower has
determined in good faith to be customary in a receivables financing
including, without limitation, those relating to the servicing of
the assets of a Special Purpose Receivables Subsidiary, it being
understood and agreed that any obligation of a seller of
receivables to repurchase receivables arising as a result of a
breach of a representation, warranty or covenant or otherwise,
including as a result of a receivable or portion thereof becoming
subject to any asserted defense, dispute, off-set or counterclaim
of any kind as a result of any action taken by, any failure to take
action by or by other event relating to the seller, shall be deemed
customary.
“Permitted Refinancing
Indebtedness” shall
mean any Indebtedness issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or
refund (collectively, to “Refinance”),
the Indebtedness being Refinanced (or previous refinancings thereof
constituting Permitted Refinancing Indebtedness);
provided
that (a) the principal amount (or
accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the
principal amount (or accreted value,
if applicable) of the Indebtedness so Refinanced (plus unpaid
accrued interest and premium thereon), (b) the average life to
maturity of such Permitted Refinancing Indebtedness is greater than
or equal to that of the Indebtedness being Refinanced, (c) if the
Indebtedness being Refinanced is subordinated in right of payment
to the Obligations under this Agreement, such Permitted Refinancing
Indebtedness shall be subordinated in right of payment to such
Obligations on terms at least as favorable to the Lenders as those
contained in the documentation governing the Indebtedness being
Refinanced, (d) no Permitted Refinancing Indebtedness shall have
different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being
Refinanced is secured by
any collateral
(whether equally and ratably with,
or junior to, the Secured Parties or otherwise), such Permitted
Refinancing Indebtedness may
be secured by such collateral (including in respect of Indebtedness of Foreign Subsidiaries otherwise
permitted under this
Agreement only, any collateral pursuant to after-acquired property
clauses to the extent any
such collateral
secured the Indebtedness being
Refinanced) on terms no less favorable to the Secured Parties than
those contained in the documentation governing the Indebtedness
being Refinanced.
“Permitted Senior Debt
Securities” shall mean
unsecured senior notes issued
by the Domestic Borrower with the following terms: (i)
the covenants (other than the Lien
covenant and the Subsidiary
debt covenant), events of default, Subsidiary
guarantees and other terms (other than interest rate and redemption
premiums), taken as a whole, are not more restrictive to the
Domestic Borrower and its Subsidiaries than those in the
2021
Senior Subordinated
Notes, (ii) the Lien
covenant and the Subsidiary
debt covenant are on market terms for similar issuers at the time
of issuance and (iii) no Subsidiary
of a Domestic Subsidiary (other than a Domestic
Subsidiary Loan Party) is an obligor under such notes that is not
an obligor under the 2021
Senior Subordinated
Notes.
“Permitted Subordinated
Debt Securities” shall
mean unsecured subordinated notes issued by the Domestic
Borrower with the following
terms: (i)
such notes do not provide for any scheduled repayment,
mandatory redemption or sinking fund obligation prior to the date
on which the final maturity of the 2021
Senior Subordinated
Notes occurs (as in effect on the Closing Date), (ii) the
covenants, events of default, Subsidiary guarantees and other terms
(other than interest rate and redemption premiums), taken as a
whole, are not more restrictive to the Domestic Borrower and its
Subsidiaries than those in the 2021
Senior Subordinated
Notes and (iii) no Subsidiary of a Domestic
Subsidiary (other than a Domestic Subsidiary Loan Party) is an
obligor under such notes that is not an obligor under the
2021
Senior Subordinated
Notes.
“Person”
shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership, limited liability
company or government, individual or family trusts, or any agency
or political subdivision thereof.
“Plan”
shall mean any employee pension benefit plan (other than a
Multiemployer Plan or Foreign
Plan) subject to the
provisions of Title IV of ERISA or Sections 412 or
430 of the Code or Section
302 of ERISA which is maintained or contributed to by any
Borrower, Subsidiary
or ERISA Affiliate or with
respect to which any Borrower, Subsidiary or ERISA
Affiliate has or could incur
liability (including under Section 4069 of ERISA).
“Platform”
shall have the meaning assigned to such term in Section 9.17(b).
“Pledged
Collateral” shall have
the meaning assigned to such term in the applicable Collateral
Agreement.
“primary
obligor” shall have the
meaning given such term in the definition of the term
“Guarantee.”
“Prior
Liens” shall mean Liens
which, pursuant to the provisions of any Security Document, are or
may be superior to the Lien of such Security Document.
“Pro Forma
Basis” shall mean, as
to any Person, for any events as described in clauses
(a) and (b) below
that occur subsequent to the commencement of a period for which the
financial effect of such events is being calculated, and giving
effect to the events for which such calculation is being made, such
calculation as will give pro forma effect to such events as if such events occurred
on the first day of the four consecutive fiscal quarter period
ended on or before the occurrence of such event (the
“Reference
Period”):
(a)in making
any determination of EBITDA, pro forma effect shall be given to any Asset Disposition
and to any Asset Acquisition (or any similar transaction or
transactions that require a waiver or consent of the Required
Lenders pursuant to Section
6.04 or 6.05), in
each case that occurred during the Reference Period (or, in the
case of determinations made pursuant to the definition of the term
“Asset Acquisition,” occurring during the Reference
Period or thereafter and through and including the date upon which
the respective Asset Acquisition is consummated); and
(b)in making
any determination on a Pro Forma Basis, (i) all
Indebtedness (including Indebtedness incurred or assumed and for
which the financial effect is being calculated, whether incurred
under this Agreement or otherwise, but excluding normal
fluctuations in revolving Indebtedness incurred for working capital
purposes and amounts outstanding under any Permitted Receivables
Financing, in each case, not to finance any acquisition) incurred
or permanently repaid during the Reference Period (or, in the case
of determinations made pursuant to the definition of the term
“Asset Acquisition,” occurring during the Reference
Period or thereafter and through and including the date upon which
the respective Asset Acquisition is consummated) shall be deemed to
have been incurred or repaid at the beginning of such period and
(ii) Interest Expense of such Person attributable
to interest on any Indebtedness, for which pro forma effect is being given as provided in preceding
clause (i), bearing floating interest rates shall be
computed on a pro forma basis as if the rates that would have been in
effect during the period for which pro forma effect is being given had been actually in
effect during such periods.
Pro forma calculations made pursuant to the definition of
the term “Pro Forma Basis” shall be determined in good
faith by a Responsible Officer of the Domestic Borrower and, for
any fiscal period ending on or prior to the first anniversary of an
Asset Acquisition or Asset Disposition (or any similar transaction
or transactions that require a waiver or consent of the Required
Lenders pursuant to Section
6.04 or 6.05), may
include adjustments to reflect operating expense reductions and
other operating improvements or synergies reasonably expected to
result from such Asset Acquisition, Asset Disposition or other
similar transaction, to the extent that the Domestic Borrower
delivers to the Administrative Agent (i) a certificate of a
Financial Officer of
the Domestic Borrower setting forth
such operating expense reductions and other operating improvements
or synergies and (ii) information and calculations supporting in
reasonable detail such estimated operating expense reductions and
other operating improvements or synergies.
“Projections”
shall mean the projections of the Domestic Borrower and its
Subsidiaries and any forward-looking statements (including
statements with respect to booked business) of such entities
furnished to the Lenders or the Administrative Agent by or on
behalf of the Borrowers or any of their Subsidiaries prior to the
Closing Date.
“Quotation
Day” shall
mean, in relation to any
period for which an interest rate is to be determined:
(a)(if the currency is Sterling) the first day of that period;
(b)(if the currency is Euro) two TARGET Days before
the first day of that period; or
(c)(for any other currency) two Business Days
before the first day of that period, unless market practice differs
in the Relevant Interbank Market for a currency, in which case the
Quotation Day for that currency will be determined by the
Administrative Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be
given by leading banks in the Relevant Interbank Market on more
than one day, the Quotation Day will be the last of these
days).
“Real
Property” shall mean,
collectively, all right, title and interest of any Borrower or any
other Subsidiary in and to any and all parcels of real property
owned or operated by any Borrower or any other Subsidiary together
with all Improvements and appurtenant fixtures, equipment, personal
property, easements and other property and rights incidental to the
ownership, lease or operation thereof.
“Receivables
Assets” shall mean
accounts receivable (including any bills of exchange) and related
assets and property from time to time originated, acquired or
otherwise owned by the Domestic Borrower or any
Subsidiary.
“Receivables Net
Investment” shall mean
the aggregate cash amount paid by the lenders or purchasers under
any Permitted Receivables Financing in connection with their
purchase of, or the making of loans secured by, Receivables Assets
or interests therein, as the same may be reduced from time to time
by collections with respect to such Receivables Assets or otherwise
in accordance with the terms of the Permitted Receivables
Documents; provided, however, that if all or any part of such Receivables
Net Investment shall have been reduced by application of any
distribution and thereafter such distribution is rescinded or must
otherwise be returned for any reason, such Receivables Net
Investment shall be increased by the amount of such distribution,
all as though such distribution had not been made.
“Reference
Period” shall have the
meaning assigned to such term in the definition of the term
“Pro Forma Basis.”
“Refinance”
shall have the meaning assigned to such term in the definition of
the term “Permitted Refinancing Indebtedness,” and
“Refinanced”
shall have a meaning correlative thereto.
“Register”
shall have the meaning assigned to such term in Section 9.04(b).
“Regulation
U” shall mean
Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or
thereof.
“Regulation
X” shall mean
Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or
thereof.
“Related
Parties” shall mean,
with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person’s
Affiliates.
“Release”
shall mean any placing, spilling, leaking, seepage, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, disposing or depositing in, into or onto the
Environment.
“Relevant Interbank
Market”
shall mean, in relation to the LIBO Rate, the principal
London offices of the
Administrative Agent and,
in relation to the EURIBO Rate, the principal office in New York
City of the Administrative
Agent or such other banks as
may be appointed by the Administrative Agent with the consent of
the Borrowers.
“Remaining Present
Value” shall mean, as
of any date with respect to any lease, the present value as of such
date of the scheduled future lease payments with respect to such
lease, determined with a discount rate equal to a market rate of
interest for such lease reasonably determined at the time such
lease was entered into.
“Reportable
Event” shall mean any
reportable event as defined in Section 4043(c) of ERISA or the
regulations issued thereunder, other than those events as to which
the 30-day notice period referred to in Section 4043(c) of ERISA
has been waived, with respect to a Plan.
“Required
Lenders” shall mean, at
any time, Lenders having (a) Loans (other than Swingline Loans)
outstanding (calculated in respect of Loans denominated in a
Foreign Currency on the Equivalent thereof in Dollars at such
time), (b) Revolving L/C Exposures, (c) Swingline Exposures, and
(d) Revolving Facility
Available Unused Commitments and Euro Revolving Facility Available Unused
Commitments (calculated on the Equivalent thereof in Dollars at such
time), that taken together,
represent more than 50% of the sum of (w) all Loans (other than
Swingline Loans) outstanding (calculated in respect of Loans
denominated in a Foreign Currency on the Equivalent thereof in
Dollars at such time), (x) Revolving L/C Exposures, (y) Swingline
Exposures, and (z) the total Revolving Facility Available Unused Commitments and
Euro Revolving Facility Available
Unused Commitments (calculated on the Equivalent thereof in Dollars
at such time) at such time. The Loans, Revolving L/C
Exposures, Swingline Exposures and Revolving
Facility Available Unused
Commitment and Euro Revolving
Facility Available Unused Commitments of any Defaulting Lender
shall be disregarded in determining Required Lenders at any
time.
“Responsible
Officer” of any Person
shall mean any executive officer or Financial Officer of such
Person and any other officer or similar official thereof
responsible for the administration of the obligations of such
Person in respect of this Agreement.
“Revolving
Facility” shall mean
the Revolving Facility Commitments and the extensions of credit
made hereunder by the Revolving Facility Lenders.
“Revolving
Facility Availability
Period” shall mean the
period from the Closing Date to but excluding the earlier of the
Maturity Date and in the case of each of the Revolving Facility
Loans, Revolving Facility Borrowings, and Letters of Credit, the
date of termination of the Revolving Facility
Commitments.
“Revolving
Facility Available Unused
Commitment” shall mean,
with respect to a Revolving Facility Lender, at any time of
determination, an amount equal to the amount by which (a) the
Revolving Facility Commitment of such Revolving Facility Lender at
such time exceeds (b) the Revolving Facility Credit Exposure of
such Revolving Facility Lender at such time (calculated in respect
of any portion of such Revolving Facility Lender’s Revolving
Facility Credit Exposure that is denominated in a Foreign Currency
on the Equivalent thereof in Dollars determined at such
time).
“Revolving Facility
Borrowing” shall mean a
Borrowing comprised of Revolving Facility Loans.
“Revolving Facility
Commitment” shall mean,
with respect to each Revolving Facility Lender, the commitment of
such Revolving Facility Lender to make Revolving Facility Loans
pursuant to Section
2.01(a) or a New Lender
Supplement, expressed as a
Dollar amount representing the maximum aggregate permitted amount
of such Revolving Facility Lender’s Revolving Facility Credit
Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section
2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender under
Section 9.04. The initial Dollar amount of each
Revolving Facility Lender’s Revolving Facility Commitment is
set forth on Schedule
2.01(as
amended by any New Lender Supplement), or in the Assignment and Acceptance pursuant to
which such Revolving Facility Lender shall have assumed its
Revolving Facility Commitment, as applicable. The
aggregate Dollar amount of the Revolving Facility Commitments on
the date hereof is $1,100,000,000.
“Revolving Facility
Credit Exposure” shall
mean, at any time, the sum of (a) the aggregate principal amount of
the Revolving Facility Loans outstanding at such time (calculated
in respect of Loans denominated in a Foreign Currency on the
Equivalent thereof in Dollars at such time), (b) the Swingline Exposure at such time
and (c) the
Revolving L/C Exposure at such time (calculated in respect of
Revolving L/C Exposure denominated in a Foreign Currency on the
Equivalent thereof in Dollars at such time). The
Revolving Facility Credit Exposure of any Revolving Facility Lender
at any time shall be the sum of (a) the aggregate principal amount
of such Revolving Facility Lender’s Revolving Facility Loans
outstanding at such time (calculated in respect of Loans
denominated in a Foreign Currency on the Equivalent thereof in
Dollars at such time) and (b) such Revolving Facility
Lender’s Revolving Facility Percentage of the
Swingline Exposure
and Revolving L/C Exposure at such time (calculated
in respect of
Revolving L/C Exposure denominated
in a Foreign Currency on the Equivalent thereof in Dollars at such
time).
“Revolving Facility
Lender” shall mean a
Lender with a Revolving Facility Commitment or with outstanding
Revolving Facility Loans.
“Revolving Facility
Loan” shall mean a Loan
made by a Revolving Facility Lender pursuant to Section 2.01(a). Each Revolving Facility Revolving
Loan shall be a Eurocurrency Loan or an ABR Revolving
Loan.
“Revolving Facility
Percentage” shall mean,
with respect to any Revolving Facility Lender, the percentage of
the total Revolving Facility Commitments represented by such
Lender’s Revolving Facility Commitment. If the
Revolving Facility Commitments have terminated or expired, the
Revolving Facility Percentages shall be determined based upon the
Revolving Facility Commitments most recently in effect, giving
effect to any assignments pursuant to Section 9.04.
“Revolving L/C
Exposure” shall mean at
any time the sum of (a) the aggregate undrawn amount of all Letters
of Credit outstanding at such time (calculated in respect of
Letters of Credit denominated in a Foreign Currency on the
Equivalent thereof in Dollars at such time) and (b) the aggregate
principal amount of all L/C Disbursements that have not yet been
reimbursed at such time (calculated in respect of L/C Disbursements
denominated in a Foreign Currency on the Equivalent thereof in
Dollars at such time). The Revolving L/C Exposure of any
Revolving Facility Lender at any time shall mean its Revolving
Facility Percentage of the aggregate Revolving L/C Exposure at such
time.
“S&P”
shall mean Standard & Poor’s Ratings Group,
Inc.
“Sale and Lease-Back
Transaction” shall have
the meaning assigned to such term in Section 6.03.
“Sanctions”
shall mean the economic sanctions laws, regulations, embargoes or
restrictive measures with the force of law administered, enacted or
enforced by the Sanctions Authorities.
“Sanctions
Authorities” shall mean
(i) the United States government, (ii) the United Nations, (iii)
the European Union, (iv) the United Kingdom or (v) the respective
governmental institutions and agencies of any of the foregoing,
including, without limitation, OFAC, the United States Department
of State, and Her Majesty's Treasury.
“Screen
Rate”
shall
mean:
(a)in relation to the LIBO Rate, the British
Bankers’ Association Interest Settlement Rate for the
relevant currency and period; and
(b)in relation to the EURIBO Rate, the percentage
rate per annum determined by the Banking Federation of the European
Union for the relevant period,
displayed on the appropriate page of
the Reuters LIBO screen. If the agreed page is replaced
or service ceases to be available, the Administrative Agent may
specify another page or service displaying the appropriate rate
after consultation with the Foreign Borrowers and the
Lenders.
“SEC” shall mean the Securities and Exchange
Commission or any successor thereto.
“Secured
Parties” shall mean the
“Secured Parties” as defined in the Collateral
Agreements.
“Securities
Act” shall mean the
Securities Act of 1933, as amended.
“Security
Documents” shall mean
the Mortgages, the Collateral Agreements and each of the security
agreements and other instruments and documents executed and
delivered pursuant to any of the foregoing or pursuant to
Section 5.10.
“Spanish
Borrower” shall have
the meaning assigned to such term in the introductory paragraph of
this Agreement.
“Special Purpose
Receivables Subsidiary”
shall mean a direct or indirect Subsidiary of the Domestic Borrower
established in connection with a Permitted Receivables Financing
for the acquisition of Receivables Assets or interests therein, and
which is organized in a manner intended to reduce the likelihood
that it would be substantively consolidated with the Domestic
Borrower or any of the Subsidiaries (other than Special Purpose
Receivables Subsidiaries) in the event the Domestic Borrower or any
such Subsidiary becomes subject to a proceeding under the U.S.
Bankruptcy Code (or other insolvency law).
“Statutory
Reserves” shall mean,
with respect to any currency, any reserve, liquid asset or similar
requirements established by any Governmental Authority of the
United States of America or of the jurisdiction of such currency or
any jurisdiction in which Loans in such currency are made to which
banks in such jurisdiction are subject for any category of deposits
or liabilities customarily used to fund loans in such currency or
by reference to which interest rates applicable to Loans in such
currency are determined.
“Sterling”
shall mean the lawful currency of the United Kingdom of Great
Britain and Northern Ireland.
“Subordinated
Intercompany Debt”
shall have the meaning assigned to such term in Section 6.01(e).
“subsidiary”
shall mean, with respect to any Person (herein referred to as the
“parent”),
any corporation, partnership, association or other business entity
of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting
power or more than 50% of the general partnership interests are, at
the time any determination is being made, directly or indirectly,
owned, Controlled or held by such Person.
“Subsidiary”
shall mean a subsidiary; provided that unless the context otherwise requires,
“Subsidiary” shall mean a subsidiary of the Domestic
Borrower.
“Subsidiary Loan
Party” shall mean a
Domestic Subsidiary Loan Party or a Foreign Subsidiary Loan
Party.
“Swap
Agreement” shall mean
any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination
of these transactions, provided that no phantom stock or similar plan providing
for payments only on account of services provided by current or
former directors, officers, employees or consultants of the
Domestic Borrower or any of its Subsidiaries shall be a Swap
Agreement.
“Swingline
Borrowing” shall mean a
Borrowing comprised of Swingline Loans.
“Swingline Borrowing
Request” shall mean a
request by any Borrower substantially in the form of
Exhibit C-2.
“Swingline
Commitment” shall mean,
with respect to each Swingline Lender, the commitment of such
Swingline Lender to make Swingline Loans pursuant to
Section 2.04. The aggregate amount of the
Swingline Commitments on the
Closing Date is $30.0
million.
“Swingline
Exposure” shall mean at
any time the aggregate principal amount of all outstanding
Swingline Borrowings at such time. The Swingline
Exposure of any Revolving Facility Lender at any time shall mean
its Revolving Facility Percentage of the aggregate Swingline
Exposure at such time.
“Swingline
Lender” shall
mean JPMorgan Chase Bank,
N.A., in its capacity as a
lender of Swingline Loans, and/or any other Revolving Facility
Lender designated as such by the Domestic Borrower after the
Closing Date that is reasonably satisfactory to the Domestic
Borrower and the Administrative Agent and executes a counterpart to
this Agreement as a Swingline Lender.
“Swingline
Loans” shall mean the
swingline loans made to any Borrower pursuant to
Section 2.04.
“Taxes”
shall mean any and all present or future taxes, levies, imposts,
duties (including stamp duties), deductions, charges
(including ad valorem
charges) or withholdings imposed by
any Governmental Authority and any and all interest and penalties
related thereto.
“Term
Facility”
shall mean, collectively, the Tranche A Term Facility and the Tranche B Term Facility.
“Term
Facility
Lender” shall mean a
Lender with
outstanding Term
Facility Loans.
“Term
Facility
Loans” shall mean, collectively, the Tranche A Term
Facility Loans and
the Tranche B
Term Facility Loans.
“Test
Period” shall mean, on
any date of determination, the period of four consecutive fiscal
quarters of the Domestic Borrower then most recently ended (taken
as one accounting period).
“Title
Company” shall mean
Title Associates Inc., as agent for Stewart Title Insurance
Company, or such other nationally recognized title company as shall
be selected by the Administrative Agent.
“Tranche A
Term
Facility”
shall mean, collectively, the Loans made by the Tranche A Term Facility
Lenders.
“Tranche A
Term
Facility Credit
Exposure” shall mean,
at any time, the sum of the aggregate principal amount of the
Tranche A Term Facility Loans outstanding at such
time. The Tranche A Term Facility Credit Exposure of any
Tranche A Term Facility Lender at any time shall be the principal
amount of such Tranche A Term Facility Lender’s Tranche A
Term Facility Loan outstanding at such time.
“Tranche
A Term
Facility
Lender” shall mean a
Lender with outstanding Loans under the Tranche A Term
Facility.
“Tranche
A
Term
Facility
Loans”
shall mean the Loans
outstanding under the Tranche A Term
Facility.
“Tranche B
Term
Facility”
shall mean, collectively, the Loans made by the Tranche B Term Facility
Lenders.
“Tranche B
Term
Facility Credit
Exposure” shall mean,
at any time, the sum of the aggregate principal amount of the
Tranche B Term Facility Loans outstanding at such
time. The Tranche B Term Facility Credit Exposure of any
Tranche B Term Facility Lender at any time shall be the principal
amount of such Tranche B Term Facility Lender’s Tranche B
Term Facility Loan outstanding at such time.
“Tranche
B Term
Facility
Lender” shall mean a
Lender with outstanding Loans under the Tranche B Term
Facility.
“Tranche B
Term
Facility
Loans”
shall mean the Loans
outstanding under the Tranche B Term
Facility.
“Transactions”
shall mean, collectively, the transactions to occur on or prior to
the Closing Date pursuant to the Loan Documents, including (a) the
execution and delivery of the Loan Documents and
any borrowings hereunder, (b) the
amendment, restatement, extension and refinancing of the Existing
Credit Agreement and (c) the
payment of all fees and expenses owing in connection with the
foregoing.
“Treasury Management
Agreement” shall mean
any agreement governing the provision of treasury or cash
management services, including deposit accounts, funds transfer,
automated clearinghouse, auto-borrow, zero balance accounts,
returned check concentration, controlled
disbursement, lockbox, account
reconciliation and reporting and trade finance services provided by
a Treasury Management Counterparty for the benefit of the Borrower
or a Subsidiary.
“Treasury Management
Counterparty” shall
mean each Lender or Affiliate of a Lender that enters into a
Treasury Management Agreement; provided that if such Person at any time ceases to be a Lender
or an Affiliate of a Lender, as the case may be, such Person shall
no longer be a Treasury Management Counterparty.
“Type,”
when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes
hereof, the term “Rate” shall include the Adjusted LIBO
Rate and the Alternate Base Rate.
“UCC” shall mean (i) the Uniform Commercial
Code as in effect in the applicable state of jurisdiction and (ii)
certificate of title or other similar statutes relating to
“rolling stock” or barges as in effect in the
applicable jurisdiction.
“U.S. Bankruptcy
Code” shall mean Title
11 of the United States Code, as amended, or any similar federal or
state law for the relief of debtors.
“U.S. Patriot
Act” shall have the
meaning assigned to such term in Section 3.08(a).
“Wholly Owned
Subsidiary” of any
Person shall mean a subsidiary of such Person, all of the Equity
Interests of which (other than directors’ qualifying shares
or nominee or other similar shares required pursuant to applicable
law) are owned by such Person or another Wholly Owned Subsidiary of
such Person.
“Withdrawal
Liability” shall mean
liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
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Section 1.02 Terms
Generally. The
definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words
“include,” “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation.” All references
herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein,
any reference in this Agreement to any Loan Document shall mean
such document as amended, restated, supplemented or otherwise
modified from time to time. 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 Domestic Borrower notifies the
Administrative Agent that the Domestic Borrower requests an
amendment to any provision hereof to eliminate the effect of any
change occurring after the Closing Date in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Domestic Borrower that the
Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof,
then such provision
shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith.
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Section 2.01 Commitments
and
Loans. Subject to
the terms and conditions set forth herein,
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(a) each Revolving Facility Lender agrees to make
Revolving Facility Loans denominated in Dollars or in a Foreign
Currency to any Borrower (other than the Spanish Borrower), in each
case from time to time during the Revolving Facility Availability
Period in an aggregate principal amount that will not result in (i)
such Lender’s Revolving Facility Credit Exposure exceeding
such Lender’s Revolving Facility Commitment, (ii) the
Revolving Facility Credit Exposure exceeding the total Revolving
Facility Commitments, (iii) the Revolving Facility Credit Exposure denominated in Euros exceeding
the Equivalent in Dollars determined on the date of delivery of the
applicable Borrowing Request of $400.0
million and (iv) the
Revolving Facility
Credit Exposure denominated in
Sterling exceeding the Equivalent in Dollars determined on the date
of delivery of the applicable Borrowing Request of
$100.0 million. Within the foregoing
limits and subject to the terms and conditions set forth herein,
each Borrower (other than the Spanish Borrower) may borrow, prepay
and reborrow Revolving Facility Loans.
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(b) as of the
Closing Date, the Tranche A Term Facility Lenders have previously
extended Tranche A Term Facility Loans, and the Tranche A Term Facility Credit Exposure is set forth
on Schedule
2.01.
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(c) as of the Closing Date, the Tranche B Term Facility Lenders have previously
extended Tranche B Term Facility Loans, and the Tranche B Term Facility Credit Exposure is set forth
on Schedule
2.01.
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(d) each Euro
Revolving Facility Lender agrees to make Euro Revolving Facility
Loans denominated in Euros to the Spanish Borrower, from time to
time during the Euro Revolving Facility Availability Period in an
aggregate principal amount that will not result in (i) such
Lender’s Euro Revolving Facility Credit Exposure exceeding
such Lender’s Euro Revolving Facility Commitment or (ii) the
Euro Revolving Facility Credit Exposure exceeding the total Euro
Revolving Facility Commitments. Within the foregoing
limits and subject to the terms and conditions set forth herein,
the Spanish Borrower may borrow, prepay and reborrow Euro Revolving
Facility Loans.
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Section 2.02 Loans and
Borrowings.
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(a) Each Loan shall
be made as part of a Borrowing consisting of Loans under the same
Facility and of the same Type and in the same currency made by the
Lenders ratably in accordance with their respective Commitments
under the applicable Facility (or, in the case of Swingline Loans, in
accordance with their respective Swingline
Commitments).
The failure of any Lender to make
any Loan required to be made by it shall not relieve any other
Lender of its
obligations hereunder;
provided
that the Commitments of the Lenders
are several and no Lender shall be responsible for any other
Lender’s failure to make Loans as required.
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(b) Subject to Section 2.15, each Borrowing denominated in Dollars shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the
Domestic Borrower may request in accordance
herewith. Unless and until exchanged into the Equivalent
in Dollars thereof and converted into ABR Loans in accordance
with Section
2.07(e),
2.15
or 2.22,
each Revolving
Facility Borrowing
denominated in a Foreign Currency shall be comprised entirely of
Eurocurrency Loans. Each Lender at its option may make
any ABR Loan or Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not
affect the obligation of any Borrower to repay such Loan in
accordance with the terms of this Agreement and such Lender shall
not be entitled to any amounts payable under Section 2.16, 2.18 or 2.21 solely in respect of increased costs resulting
from such exercise and existing at the time of such
exercise; provided, further, that, notwithstanding anything set forth
herein to the contrary, no Lenders shall be required to make an ABR
Loan to any Foreign Borrower.
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(c) At the commencement of each Interest Period for
any Eurocurrency Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of the Borrowing Multiple and
not less than the Borrowing Minimum; provided that a Eurocurrency
Revolving Facility Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the Revolving Facility
Commitments or the Euro Revolving Facility Commitments, as
applicable, or that is required to finance the reimbursement of an
L/C Disbursement as contemplated by Section 2.05(e). At the time that each ABR Borrowing is made,
such Borrowing shall be in an aggregate amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing
Minimum; provided that an ABR Revolving Facility Borrowing may be
in an aggregate amount that is equal to the entire unused balance
of the Revolving Facility Commitments, or that is required to
finance the reimbursement of an L/C Disbursement as contemplated
by Section
2.05(e). Each Swingline Borrowing shall be in an amount
that is an integral multiple of the Borrowing Multiple and not less
than the Borrowing Minimum. Borrowings of more than one Type and under more
than one Facility may be outstanding at the same time;
provided
that there shall not at any time be
more than a total of twenty (20) Eurocurrency Borrowings
outstanding at any
time.
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(d) Notwithstanding any other provision of this
Agreement, no Borrower shall be entitled to request, or to elect to
convert or continue, any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
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Section 2.03 Requests for
Borrowings.
In order to request a Borrowing, the
relevant Borrower shall notify the Administrative Agent (and, in
the case of a Revolving Facility Borrowing or a Euro Revolving
Facility Borrowing, in either case, consisting of Loans denominated
in a Foreign Currency, simultaneously to the European
Administrative Agent) of such request in a written Borrowing
Request signed by the Borrower making such request (a) in the case
of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
four (4) Business Days before the date of the proposed Borrowing or
(b) in the case of an ABR Borrowing, not later than 12:00 noon,
Local Time, one (1) Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Revolving
Facility Borrowing to finance
the reimbursement of an L/C
Disbursement as contemplated by Section 2.05(e) may be given not later than 10:00 a.m., Local
Time, on the date of the proposed Borrowing. Each such
Borrowing Request shall specify the following information in
compliance with Section
2.02:
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(i)whether the requested Borrowing is to be
a Revolving Facility Borrowing
or a Euro Revolving Facility
Borrowing;
(ii)the aggregate amount of the requested Borrowing
(expressed in Dollars);
(iii)the date of such Borrowing, which shall be a
Business Day;
(iv)in the case of a Borrowing denominated in
Dollars, whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
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(i) in the case of a
Eurocurrency Borrowing, the currency and the initial Interest
Period to be applicable thereto; and
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(i) the location and number
of the Borrower’s account to which funds are to be
disbursed, which shall be an
account maintained with the Administrative Agent or the European
Administrative Agent.
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If no election as to the Type of
Revolving Facility Borrowing is specified, then the requested
Revolving Facility Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with
respect to any requested Eurocurrency Borrowing, then the Borrower
requesting such Eurocurrency Borrowing shall be deemed to have
selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount
of such Lender’s Loan to be made as part of the requested
Borrowing.
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Section 2.04 Swingline
Loans.
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(a) Subject to the
terms and conditions set forth herein, each Swingline Lender agrees
to make Swingline Loans to any of the Borrowers from time to time
during the Revolving
Facility Availability Period,
in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding the Swingline Commitment or (ii) the
Revolving Facility Credit Exposure exceeding the total Revolving
Facility Commitments; provided that no Swingline Lender shall be required to
make a Swingline Loan to refinance an outstanding Swingline
Borrowing. Interest on Swingline Loans denominated in
Foreign Currency will be calculated based on the overnight EURIBO
Rate. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow,
prepay and reborrow Swingline Loans.
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(b) To request a Swingline Borrowing, the applicable
Borrower shall notify the Administrative Agent and the Swingline
Lenders of such request in a
written Borrowing Request signed by the Borrower making such
request (x) in the case of a
Swingline Borrowing denominated in Euros or Sterling, not later
than 12:00 noon, Local Time, one (1) Business Day
before the date of the proposed
Swingline Borrowing or (y) in the case of a Swingline Borrowing
denominated in Dollars, not later than 12:00 noon, Local Time on
the day of the proposed Swingline Borrowing. Each such
Swingline Borrowing Request shall be irrevocable and shall specify
(i) the requested date (which shall be a Business Day), (ii) the
amount of the requested Swingline Borrowing (expressed in Dollars),
(iii) in the case of a Swingline Borrowing denominated in Euros or
Sterling, the currency requested, (iv) the term of such Swingline
Loan (which, in the case of a Swingline Borrowing denominated in
Euros or Sterling, shall not be more than 7 Business Days) and (v)
the location and number of the Borrower’s account to which
funds are to be disbursed. Each Swingline Lender shall
make each Swingline Loan to be made by it hereunder in accordance
with Section
2.02(a) on
the proposed date thereof by wire transfer of immediately available
funds by 3:00 p.m., Local Time, to the account of the applicable
Borrower (or, in the case of a Swingline Borrowing made to finance
the reimbursement of an L/C Disbursement as provided in
Section 2.05(e), by remittance to the applicable Issuing
Bank).
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(c) A Swingline
Lender may by written notice given to the Administrative Agent (and
to the other Swingline Lenders) not later than 10:00 a.m., Local
Time on any Business Day, require the Revolving Facility Lenders to
acquire participations on such Business Day in all or a portion of
the outstanding Swingline Loans made by it. Such notice
shall specify the aggregate amount of such Swingline Loans in which
the Revolving Facility Lenders will
participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each such Lender,
specifying in such notice such Lender’s Revolving Facility
Percentage of such Swingline Loan or Loans. Each
Revolving Facility Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent for the account of the applicable Swingline
Lender, such Revolving Facility Lender’s Revolving Facility
Percentage of such Swingline Loan or Loans. Each
Revolving Facility Lender acknowledges and agrees that its
respective obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination
of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction
whatsoever. Each Revolving Facility Lender shall comply
with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided
in Section 2.06
with respect to Loans made by such
Revolving Facility Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall
promptly pay to the applicable Swingline Lender the amounts so
received by it from the Revolving Facility Lenders. The
Administrative Agent shall notify the applicable Borrower of any
participations in any Swingline Loan acquired pursuant to this
paragraph (c), and
thereafter payments in respect of such Swingline Loan shall be made
to the Administrative Agent and not to the applicable Swingline
Lender. Any amounts received by a Swingline Lender from
the applicable Borrower (or other party on behalf of such Borrower)
in respect of a Swingline Loan after receipt by such Swingline
Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by
the Administrative Agent to the Revolving Facility Lenders that
shall have made their payments pursuant to this paragraph and to
such Swingline Lender, as their interests may appear;
provided
that any such payment so remitted
shall be repaid to such Swingline Lender or to the Administrative
Agent, as applicable, if and to the extent such payment is required
to be refunded to the applicable Borrower for any
reason. The purchase of
participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrowers of any
default in the payment thereof.
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Section 2.05 Letters of
Credit.
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(a) General. Subject
to the terms and conditions set forth herein, each Borrower may
request the issuance of Letters of Credit for its own account in a
form reasonably acceptable to the applicable Issuing Bank, at any
time and from time to time during the Revolving Facility Availability Period and prior to the date that
is five (5) Business Days prior to the Maturity Date.
Subject to the terms and conditions
set forth herein, the applicable Issuing Bank shall promptly issue the requested
Letter of Credit; provided that
the aggregate L/C Exposure shall not
exceed the lesser of (i) the L/C Commitment and (ii)
an amount equal to the total Revolving Facility
Commitments less then aggregate Revolving Facility Credit Exposures then
outstanding; and
provided
further, no
Issuing Bank shall be required to issue a Letter of Credit if the
aggregate face
amount of all Letters of Credit issued by
it shall exceed
$300 million. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement
submitted by any Borrower to, or entered into by such Borrower
with, an Issuing Bank relating to any Letter of Credit, the terms
and conditions of this
Agreement shall control.
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(b) Notice of Issuance,
Amendment, Renewal, Extension; Certain
Conditions. To
request the issuance of a Letter of Credit (or the amendment,
renewal (other than an automatic renewal in accordance with
paragraph (c)
of this Section) or extension of an
outstanding Letter of Credit), a Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank and the Administrative Agent (two (2)
Business Days in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) of
this Section), the amount of such Letter of Credit and the currency
(either in Dollars,
a Foreign
Currency, or an Alternate LC
Currency) in which it is
denominated, the name and address of the beneficiary thereof and
such other information as shall be necessary to issue, amend, renew
or extend such Letter of Credit. If requested by the
applicable Issuing Bank, a Borrower also shall submit a letter of
credit application on such Issuing Bank’s standard form in
connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only
if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the applicable Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension, (i) the Revolving L/C Exposure
shall not exceed $1,100,000,000, (ii) the Revolving Facility Credit Exposure
shall not exceed the total Revolving Facility Commitments,
and (iii) the Equivalent in Dollars
of the Revolving L/C Exposure denominated in a Foreign
Currency or an Alternate LC
Currency determined on the
date of such issuance, amendment, renewal or extension shall not
exceed (A) in the case such Foreign Currency is Euros, $350.0
million, (B) in the case such Foreign Currency is Sterling, $75.0 million, and (C) in the
case of all Alternate LC Currency, $75.0 million.
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(i) Each Letter of Credit
shall expire at or prior to the close of business on the earlier
of the date one (1) year
after the date of the issuance of such Letter of Credit (or, in the
case of any renewal or extension thereof, one year after such
renewal or extension) and
the date that is five (5) Business
Days prior to the Maturity Date; provided that any Letter of Credit with a one-year tenor
may provide for the automatic renewal thereof for additional
one-year periods (which, in no event, shall extend beyond the date
referred to in clause (B) of
this paragraph (c)).
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(ii) Notwithstanding the
foregoing, any Borrower may request the issuance of a Letter of
Credit that expires at or prior to the close of business on the
date that is five (5) Business Days prior to the Maturity
Date.
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(d) Participations. By
the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further
action on the part of the applicable Issuing Bank or the Revolving
Facility Lenders, such Issuing Bank hereby grants to each Revolving
Facility Lender, and each Revolving Facility Lender hereby acquires
from such Issuing Bank, a participation in such Letter of Credit
equal to such Revolving Facility Lender’s Revolving Facility
Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of
the foregoing, each Revolving Facility Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent
in Dollars, the Foreign
Currency in which such Letter
of Credit is denominated, or
the Equivalent in Dollars of any Alternate LC Currency in which
such Letter of Credit is denominated, as the case may be, for the account of the
applicable Issuing Bank, such Revolving Facility Lender’s
Revolving Facility Percentage of each L/C Disbursement made by such
Issuing Bank not reimbursed by the applicable Borrower on the date
due as provided in Section
2.05(e), or of any
reimbursement payment required to be refunded to the applicable
Borrower for any reason. Each Revolving Facility Lender
acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
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(e) Reimbursement. If
the applicable Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower for which such Letter
of Credit was issued shall reimburse such L/C Disbursement by
paying to the Administrative Agent an amount equal to such L/C
Disbursement in
Dollars, the Foreign Currency in
which such Letter of Credit is denominated, or the Equivalent in
Dollars of any Alternate LC Currency in which such Letter of Credit
is denominated, as the case may be, not later than 5:00 p.m., Local
Time, on the same Business Day such Borrower receives notice
under Section 2.05(g)
of such L/C Disbursement, provided
that such Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 or Section
2.04 that such payment be
financed with an ABR Revolving Facility Borrowing or a Swingline
Borrowing or an Eurocurrency Revolving Loan denominated in the
applicable Foreign Currency, as applicable, in an equivalent amount
and, to the extent so financed, such Borrower’s obligation to
make such payment shall be discharged
and replaced by the resulting ABR
Revolving Facility Borrowing or Swingline Borrowing or Eurocurrency
Revolving Loan. If any Borrower fails to reimburse any
L/C Disbursement when due, then the Administrative Agent shall
promptly notify the applicable Issuing Bank and each other
Revolving Facility Lender of the applicable L/C Disbursement, the
payment then due from such Borrower and, in the case of a Revolving
Facility Lender, such Lender’s Revolving Facility Percentage
thereof. Promptly following receipt of such notice, each
Revolving Facility Lender shall pay to the Administrative Agent in
Dollars, such Foreign Currency, or the Equivalent in Dollars of such Alternate
LC Currency, as the case may
be, its Revolving Facility Percentage of the payment then due from
such Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender
(and Section 2.06
shall apply, mutatis mutandis, to
the payment obligations of the Revolving Facility Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing
Bank in Dollars,
such Foreign Currency,
or the Equivalent in Dollars of such
Alternate LC Currency, as the
case may be, the amounts so received by it from the Revolving
Facility Lenders. Promptly following receipt by the
Administrative Agent of any payment from such Borrower pursuant to
this paragraph, the Administrative Agent shall distribute such
payment to the applicable Issuing Bank or, to the extent that
Revolving Facility Lenders have made payments pursuant to this
paragraph to reimburse such Issuing Bank, then to such Lenders and
such Issuing Bank as their interests may appear. Any
payment made by a Revolving Facility Lender pursuant to this
paragraph to reimburse an Issuing Bank for any L/C Disbursement
(other than the funding of an ABR Revolving Loan or a Swingline
Borrowing or an Eurocurrency Revolving Loan as contemplated above)
shall not constitute a Loan and shall not relieve any Borrower of
its obligation to reimburse such L/C
Disbursement.
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(f) Obligations
Absolute. The
obligation of each Borrower to reimburse L/C Disbursements as
provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the applicable Issuing Bank under a
Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit or
(iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions
of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, any Borrower’s obligations
hereunder; provided that, in each case, payment by the Issuing Bank
shall not have constituted gross negligence or willful
misconduct. Neither the Administrative Agent, the
Lenders nor any Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or
any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence),
or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required
to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the
control of such Issuing Bank; provided that the foregoing shall not be construed to
excuse the applicable Issuing Bank from liability to any Borrower
to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by each
Borrower to the extent permitted by applicable law) suffered by
such Borrower that are
determined by a court having
jurisdiction to have been caused by (i) such Issuing Bank’s
failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms
thereof or (ii) such Issuing Bank’s refusal to issue a Letter
of Credit in accordance with the terms of this
Agreement. The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part
of the applicable Issuing Bank, such Issuing Bank shall be deemed
to have exercised care in each such determination and each refusal
to issue a Letter of Credit. In furtherance of the
foregoing and without limiting the generality thereof, the parties
agree that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of a
Letter of Credit, the applicable Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
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(g) Disbursement
Procedures. The
applicable Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. Such Issuing Bank
shall promptly notify the Administrative Agent and the applicable
Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether such Issuing Bank has made or will make a L/C
Disbursement thereunder; provided that any failure to give or delay in giving such
notice shall not relieve any Borrower of its obligation to
reimburse such Issuing Bank and the Revolving Facility Lenders with
respect to any such L/C Disbursement.
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(h) Interim
Interest. If an
Issuing Bank shall make any L/C Disbursement, then, unless the
applicable Borrower shall reimburse such L/C Disbursement in full
on the date such L/C Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the
date such L/C Disbursement is made to but excluding the date that
such Borrower reimburses such L/C Disbursement, at the rate per
annum then applicable to ABR Revolving Loans or Eurocurrency
Revolving Loans denominated in the applicable Foreign Currency, as
applicable; provided that, if such L/C Disbursement is not
reimbursed by such Borrower when due pursuant to paragraph
(e) of this Section, then Section 2.14(c) shall apply; provided further that any L/C
Disbursement that is reimbursed after the date such L/C
Disbursement is required to be reimbursed under paragraph
(e) of this Section, (A) be payable in
Dollars, the Foreign Currency in
which such Letter of Credit is denominated, or the Equivalent in
Dollars of any Alternate LC Currency in which such
Letter of Credit is
denominated, as the case may
be, (B) bear interest at the rate per annum then applicable to ABR
Revolving Loans or Eurocurrency Revolving Loans denominated in the
applicable Foreign Currency, as applicable, and (C)
Section 2.14(c) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after
the date of payment by any Revolving Facility Lender pursuant to
paragraph (e)
of this Section to reimburse such
Issuing Bank shall be for the account of such Revolving Facility
Lender to the extent of such payment.
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(i) Replacement of an
Issuing Bank. An
Issuing Bank may be replaced at any time by written agreement among
the Borrowers, the Administrative Agent, the replaced Issuing Bank
and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of an Issuing
Bank. At the time any such replacement shall become
effective,
each Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant
to Section
2.13. From and
after the effective date of any such replacement, (i) the successor
Issuing Bank shall have all the rights and obligations of the
replaced Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the
term “Issuing Bank” shall be deemed to refer to such
successor or to any previous Issuing Bank, or to such successor and
all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of such
Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement but shall not be required to
issue additional Letters of Credit.
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(j) Cash
Collateralization. If any Event of Default shall occur
and be continuing, (i) in the case of an Event of Default described
in Section
7.01(h),
(i) or (l), on
the Business Day or (ii) in the case of any other Event of Default,
on the third Business Day, in each case, following the date on
which any Borrower receives notice from the Administrative Agent
(or, if the maturity of the Loans has been accelerated, Revolving
Facility Lenders with Revolving L/C Exposure representing greater
than 50% of the total Revolving L/C Exposure) demanding the deposit
of cash collateral pursuant to this paragraph, such Borrower shall
deposit in an account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Lenders, an
amount in Dollars in cash equal to the Revolving L/C Exposure as of
such date plus any accrued and unpaid interest thereon; provided
that, upon the occurrence of any Event of Default with respect to
any Borrower described in clause (h),
(i) or (l) of Section
7.01, the obligation to
deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable in
Dollars, such Foreign Currency, or the Equivalent in Dollars of such Alternate
LC Currency, without demand
or other notice of any kind. Each Borrower also shall
deposit cash collateral pursuant to this paragraph as and to the
extent required by Section
2.12(b). Each such
deposit pursuant to this paragraph or pursuant to
Section 2.12(b) shall be held by the Administrative Agent as
Collateral for the payment and performance of the obligations of
the applicable Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such
account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the
option and sole discretion of (i) for so long as an Event of
Default shall be continuing, the Administrative Agent and (ii) at
any other time, the applicable Borrower, in each case, in Permitted
Investments and at the risk and expense of such Borrower, such
deposits shall not bear interest. Interest or profits,
if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the
Administrative Agent to reimburse each Issuing Bank for L/C
Disbursements for which such Issuing Bank has not been reimbursed
and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the applicable
Borrower for the Revolving L/C Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the
consent of Revolving Facility Lenders with Revolving L/C Exposure
representing greater than 50% of the total Revolving L/C Exposure),
be applied to satisfy other obligations of such Borrower under this
Agreement. If any Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to such Borrower within three (3)
Business Days after all Events of Default have been cured or
waived. If any Borrower is required to provide an amount
of cash collateral hereunder pursuant to Section 2.12(b), such amount (to the
extent not applied as aforesaid)
shall be returned to such Borrower as and to the extent that, after
giving effect to such return, such Borrower would remain in
compliance with Section
2.12(b) and no Event of
Default shall have occurred and be continuing.
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(k) Additional Issuing
Banks. From time
to time, the Borrowers may by notice to the Administrative Agent
designate up to three Lenders (in addition to JPMorgan)
that agree (in their sole discretion) to act in such capacity and
are reasonably satisfactory to the Administrative Agent as Issuing
Banks. Each such additional Issuing Bank shall execute a
counterpart of this Agreement upon the approval of the
Administrative Agent (which approval shall not be unreasonably
withheld) and shall thereafter be an Issuing Bank hereunder for all
purposes.
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(l) Reporting. Unless
otherwise requested by the Administrative Agent, each Issuing Bank
shall (i) provide to the Administrative Agent copies of any notice
received from any Borrower pursuant to Section 2.05(b) no later than the next Business Day after
receipt thereof and (ii) report in writing to the Administrative
Agent (A) on or prior to each Business Day on which such Issuing
Bank expects to issue, amend, renew or extend any Letter of Credit,
the date of such issuance, amendment, renewal or extension, and the
aggregate face amount of the Letters of Credit to be issued,
amended, renewed or extended by it and outstanding after giving
effect to such issuance, amendment, renewal or extension occurred
(and whether the amount thereof changed), and the Issuing Bank
shall be permitted to issue, amend, renew or extend such Letter of
Credit if the Administrative Agent shall not have advised the
Issuing Bank that such issuance, amendment renewal or extension
would not be in conformity with the requirements of this Agreement,
(B) on each Business Day on which such Issuing Bank makes any L/C
Disbursement, the date of such L/C Disbursement and the amount of
such L/C Disbursement and (C) on any other Business Day, such other
information as the Administrative Agent shall reasonably request,
including but not limited to prompt verification of such
information as may be requested by the Administrative
Agent. If requested by any Lender, the Administrative
Agent shall provide copies to such Lender of the reports referred
to in clause (ii) of the preceding sentence and a summary of
such reports on a monthly
basis.
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Section 2.06 Funding of
Borrowings.
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(a) Each Lender
shall make each Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds, (i)
in the case of a Loan denominated in Dollars, in Dollars, by 12:00
noon, Local Time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the
Lenders, and (ii) in the case of a Loan denominated in a Foreign
Currency, in the applicable Foreign Currency, by 12:00 noon, Local
Time, to the account of the European Administrative Agent
most recently designated by the
Administrative Agent for such purpose by notice to the Lenders, as
the case may be;
provided that Swingline Loans shall be made as provided
in Section
2.04. The
Administrative Agent will make such Loans available to the
applicable Borrower by promptly crediting the amounts so received,
in like funds, to an account of such Borrower maintained with the
Administrative Agent in New York City or as otherwise agreed
between such Borrower and the Administrative Agent, and designated
by such Borrower in the Borrowing Request; provided that ABR Revolving Loans, Swingline Borrowings and Eurocurrency Revolving Loans made to finance
the reimbursement of a L/C Disbursement and
reimbursements
as provided in Section 2.05(e) shall be remitted by the Administrative Agent to
the applicable Issuing Bank.
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(b) Unless the Agent
shall have received notice from a Lender prior to the proposed date
of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing,
the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such
assumption, make available to the applicable Borrower a
corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the applicable
Borrower severally agree to pay to the Administrative Agent
forthwith on demand (without duplication) such corresponding amount
with interest thereon, for each day from and including the date
such amount is made available to such Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of
such Lender, (A) for Loans denominated in Dollars, the greater of
the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank
compensation and (B) for Loans denominated in a Foreign
Currency, the greatest of the Federal Funds Rate, the cost of funds
incurred by the Administrative Agent or European Administrative Agent
in respect of such amount and a rate
determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of
such Borrower, (A) for Loans denominated in Dollars, the interest
rate applicable to ABR Loans and (B) for Loans denominated in a
Foreign Currency, the greater of the interest rate applicable to
ABR Loans and the cost of funds incurred by the Administrative
Agent or European
Administrative Agent in
respect of such amount. If such Lender pays such amount
to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.
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Section 2.07 Interest
Elections.
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(a) Each Borrowing denominated in Dollars initially
shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing
Request. Thereafter, each Borrower may elect, in the
case of a Borrowing denominated in Dollars, to convert such
Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurocurrency Borrowing, may elect Interest Periods
therefor, all as provided in this Section. Each Borrower
may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising
such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to
Swingline
Borrowings, which may not be
converted or continued.
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(b) To make an election pursuant to this Section, a
Borrower shall notify the Administrative Agent of such
election by delivering a
written Interest Election Request, in a form approved by the
Administrative Agent and signed by such Borrower,
by the time that a Borrowing Request
would be required under Section 2.03 if such Borrower were requesting a Borrowing of
the Type resulting from such election to be made on the effective
date of such
election. Each such Interest Election Request shall be
irrevocable.
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(c) Each written Interest Election Request shall
specify the following information in compliance with
Section 2.02:
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(i) the Borrowing to which
such Interest Election Request applies and, if different options
are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to
clauses (iii)
and (iv) below
shall be specified for each resulting Borrowing);
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(ii) the effective date of
the election made pursuant to such Interest Election Request, which
shall be a Business Day;
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(iii) in the case of a Borrowing denominated in
Dollars, whether the resulting Borrowing is to be an ABR Borrowing
or a Eurocurrency Borrowing; and
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(iv) if the resulting Borrowing is a Eurocurrency
Borrowing, the Interest Period to be applicable thereto after
giving effect to such election.
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If any such Interest Election
Request made by any Borrower requests a Eurocurrency Borrowing but
does not specify an Interest Period, then such Borrower shall be
deemed to have selected an Interest Period of one month’s
duration.
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(d) Promptly following receipt of an Interest
Election Request, the Administrative Agent shall advise each Lender
to which such Interest Election Request relates of the details
thereof and of such Lender’s portion of each resulting
Borrowing.
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(e) If any Borrower
fails to deliver a timely Interest Election Request with respect to
a Eurocurrency Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period, (i) if such
Borrowing is denominated in Dollars, such Borrower shall be deemed
to have converted such Borrowing to an ABR Borrowing, and (ii) if
such Borrowing is denominated in a Foreign Currency, such Borrower
shall be deemed to have selected a one month Interest Period for
such Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and
the Administrative Agent, at the written request (including a
request through electronic means) of the Required Lenders, so
notifies such Borrower, then, so long as an Event of Default is
continuing, (i) no outstanding Borrowing may be converted to or
continued as a Eurocurrency Borrowing, (ii) unless repaid, each
Eurocurrency Borrowing denominated in Dollars shall be converted to
an ABR Borrowing at the end of the Interest Period applicable
thereto and (iii) unless repaid, each Eurocurrency Borrowing
denominated in a Foreign Currency shall bear interest
calculated on the one-week
EURIBO Rate.
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Section 2.08 Termination
and Reduction of
Commitments.
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(a) Unless previously terminated, the Revolving
Facility Commitments and the Euro Revolving Facility Commitments
shall terminate on the Maturity Date.
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(d) Each Borrower may at any time terminate, or from
time to time reduce, the Commitments under any Facility;
provided
that (i) each reduction of the
Commitments under any Facility shall be in an amount that is an
integral multiple of $1.0 million and not less than $5.0 million
(or, if less, the remaining amount of the Commitments), (ii) no
Borrower shall terminate or reduce the Revolving Facility
Commitments if, after giving effect to any concurrent prepayment of
the Revolving Facility Loans in accordance with Section 2.12, the Revolving Facility Credit Exposure would
exceed the total Revolving Facility Commitments and (iii) no
Borrower shall terminate or reduce the Euro Revolving Facility
Commitments if the Euro Revolving Facility Credit Exposure would
exceed the total Euro Revolving Facility Commitments.
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(e) Each Borrower
shall notify the Administrative Agent of any election to terminate
or reduce the Commitments under paragraph (d) of
this Section at least three (3) Business Days prior to the
effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall
advise the applicable Lenders of the contents
thereof. Each
notice delivered by any Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving
Facility Commitments or Euro Revolving Facility Commitments
delivered by such Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by such Borrower (by notice
to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the
Commitments under any Facility shall be made ratably among the
Lenders in accordance with their respective Commitments under such
Facility.
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Section 2.09 Increase of
Commitments.
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(a) Each Borrower shall have the right to increase
the Commitments (other than the Euro Revolving Facility
Commitments) from time to time pursuant to this Section 2.09 (subject to the restrictions of
Section 2.09(d)) as long as no Default or Event of Default has
occurred and is continuing. In the event that any
Borrower wishes to increase the aggregate Commitments (other than
the Euro Revolving Facility Commitments) under any Facility (other
than the Euro Revolving Facility) at any time, it shall notify the
Administrative Agent in writing of the Facility or Facilities to be
increased and the amount (the “Offered Increase
Amount”) of such
proposed increase (such notice, a “Commitment Increase
Notice”); provided,
that the aggregate amount of any such increase in Commitments shall
be at least $25.0 million. Such Borrower may, at its election,
offer one or more of the Lenders the
opportunity to participate in all or a portion of the Offered
Increase Amount pursuant to Section 2.09(c) below
and/or with
the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), offer one or more additional
banks, financial institutions or other entities the opportunity to
participate in all or a portion of the Offered Increase Amount
pursuant to Section
2.09(b) below. Each Commitment Increase
Notice shall specify which Lenders and/or banks, financial
institutions or other entities such Borrower desires to participate
in such Commitment increase. Such Borrower or, if
requested by such Borrower, the Administrative Agent, will notify
such Lenders and/or banks, financial institutions or other entities
of such offer.
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(b) Any additional
bank, financial institution or other entity which such Borrower
selects to offer participation in the increased Commitments and
which elects to become a party to this Agreement and provide a
Commitment in an amount so offered and accepted by it pursuant
to Section 2.09(a)(ii)
shall execute a New Lender
Supplement (in the form specified by the Administrative Agent, each
a “New Lender
Supplement”) which such
Borrower and the Administrative Agent, whereupon such bank,
financial institution or other entity (herein called a
“New
Lender”) shall become a
Lender for all purposes and to the same extent as if originally a
party hereto and shall be bound by and entitled to the benefits of
this Agreement, and Schedule
2.01
shall be deemed to be amended to add
the name and Commitment of such New Lender, provided that the Commitment of any such new Lender shall
be in an amount not less than $5,000,000, provided further
that on the effective date of such
New Lender Supplement, there shall be no outstanding
Eurocurrency Loans hereunder under the Facility being increased
or, if any Eurocurrency Loans under the Facility being increased
would be outstanding on the
effective date of any such New Lender Supplement, such Borrower
shall either (x) convert such Eurocurrency Loans to ABR Loans, or (y) prepay, in
accordance with the provisions of Section 2.12, such Eurocurrency Loans immediately prior to such New Lender
Supplement becoming effective (subject, in either case, to the
payment provisions hereof).
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(c) Any Lender which
accepts an offer to it by either Borrower to increase its
Commitment pursuant to Section 2.09(a)(ii) shall, in each case, execute a Commitment
Increase Supplement (in the form specified by the Administrative
Agent, each a “Commitment Increase
Supplement”) with such
requesting Borrower and the Administrative Agent whereupon such
Lender shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of its Commitment as so
increased, and Schedule
2.01
shall be deemed to be amended to so
increase the Commitment of such Lender.
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(d) Notwithstanding
anything to the contrary in this Section 2.09 (i) in no event shall transactions effected
pursuant to this Section
2.09, taken in the aggregate,
cause the aggregate Commitments hereunder to increase
by an amount greater than
$150.0 million and (ii) no Lender shall have any
obligation to increase its Commitment unless it agrees to do so in
its sole discretion.
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Section 2.010 Repayment of Loans;
Evidence of Debt.
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(a) Each Borrower hereby unconditionally promises to
pay (i) to the Administrative Agent for the account of each
Revolving Facility Lender the then unpaid principal amount of each
Revolving Facility Loan to such Borrower on the Maturity Date, (ii)
to the European Administrative Agent for the account of each Euro
Revolving Facility Lender the then unpaid principal amount of each
Euro Revolving Facility Loan to such Borrower on the Maturity Date
and (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan made to such Borrower on
the earlier of the Maturity Date and the first date after such
Swingline Loan is made that is the 15th or last day of a calendar
month and is at least seven (7) Business Days after such Swingline
Loan is made; provided that on each date that a Revolving Facility
Borrowing (other than a Borrowing that is required to finance the
reimbursement of an L/C Disbursement as contemplated by
Section 2.05(e)) is made by the Domestic Borrower, the Domestic
Borrower shall repay all Swingline Loans then
outstanding.
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(b) The Domestic Borrower hereby unconditionally promises to pay
the Administrative Agent for the account of each
Tranche A Term Facility Lender holding Tranche A Term Facility Loans
(i) on each March 31, June 30, September 30 and December 31,
through the Maturity Date, $2,000,000 and (ii) the aggregate amount of unpaid
Tranche A Term Facility Loans on the Maturity Date.
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(c) The Domestic Borrower hereby unconditionally
promises to pay the Administrative Agent for the account of
each Tranche B
Term Facility Lender holding Tranche B Term Facility Loans (i)
on each March 31, June 30, September 30 and December 31, through
the Maturity Date, $3,000,000 and (ii) the aggregate amount of unpaid
Tranche B Term Facility Loans on the Maturity Date.
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(d) Each Lender
shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
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(e) The
Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Facility and
Type thereof and the Interest Period (if any) applicable thereto,
(ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder
and (iii) any amount received by such Administrative Agent
hereunder for the account of the Lenders and each Lender’s
share thereof.
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(f) The entries made
in the accounts maintained pursuant to Section 2.08(d) or (e) shall be prima facie evidence of the existence
and amounts of the obligations recorded therein;
provided
that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this
Agreement.
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(g) Any Lender may
request that Loans made by it to any Borrower be evidenced by a
promissory note substantially in the form of Exhibit
I, Exhibit J
or Exhibit
K, as may be applicable to
such Lender. In
such event, each such Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such
Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative
Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more promissory notes
in such form payable to the order of the payee named therein (or,
if such promissory note is a registered note, to such payee and its
registered assigns).
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Section 2.011 Repayment of Revolving
Facility Loans, Euro Revolving Facility Loans and
Term
Facility Loans. Prior to any repayment of any
Borrowing under any Facility hereunder, a Borrower shall select the
Borrowing or Borrowings under the applicable Facility to be repaid
and shall notify the Administrative Agent by telephone (confirmed
by telecopy) of such selection not later than 2:00 p.m., Local
Time, (i) in the case of an ABR Borrowing, one Business Day before
the scheduled date of such repayment and (ii) in the case of a
Eurocurrency Borrowing, three Business Days before the scheduled
date of such repayment. Each repayment
of a Borrowing under a Facility
shall be applied to the Loans under such Facility included in the
repaid Borrowing such that each Lender under such Facility receives
its ratable share of such repayment (based upon the respective
Revolving Facility Credit Exposures of the Revolving Facility
Lenders at the time of such repayment or upon the respective Euro
Revolving Facility Credit Exposures of the Euro Revolving Facility
Lenders at the time of such repayment, as applicable).
Notwithstanding anything to the contrary in the
immediately preceding sentence, prior to any repayment of a
Swingline Borrowing hereunder, the Domestic Borrower shall select
the Borrowing or Borrowings to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 1:00 p.m., Local Time, on the scheduled
date of such repayment. Repayments of Borrowings shall be accompanied by
accrued interest on the amount repaid.
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Section 2.012 Prepayment of
Loans.
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(a) Each Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part,
without premium or penalty (but subject to Section 2.17), in an aggregate principal amount that is an
integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum or, if less, the amount outstanding, subject to
prior notice in accordance
with Section 2.11. Any prepayment of the Tranche A Term
Facility or the
Tranche B Term Facility made under this Section 2.12(a) shall be applied to the remaining scheduled
payments under the Tranche
A Term Facility or
Tranche B Term Facility, respectively, in direct order of
maturity.
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(b) (i)If on
any date, the Administrative Agent notifies the Domestic Borrower
that, on the last day of any month, the sum of (i) the sum of
aggregate principal amount of all Revolving Facility Loans
denominated in Dollars plus the aggregate principal amount of all
Letters of Credit denominated in Dollars then outstanding plus (ii)
the Equivalent in Dollars (determined on the third Business Day
prior to such interest payment date) of the sum of the aggregate
principal amount of all Revolving Facility Loans denominated in
Foreign Currencies plus the aggregate principal amount of all
Letters of Credit denominated in Foreign Currencies or Alternate LC
Currencies then outstanding exceeds 105% of the aggregate Revolving
Facility Commitments of the Lenders on such date, the Domestic
Borrower and each other Borrower shall, as soon as practicable and
in any event within two Business Days following such date, prepay
the outstanding principal amount of any Revolving Facility Loans
owing by such Borrower in an aggregate amount (or deposit cash
collateral in an account with the Administrative Agent pursuant
to Section
2.05(j)) sufficient to reduce
such sum to an amount not to exceed 100% of the aggregate Revolving
Facility Commitments of the Lenders on such date together with any
interest accrued to the date of such prepayment on the aggregate
principal amount of Revolving Facility Loans
prepaid. The Administrative Agent shall give prompt
notice of any prepayment required under this Section 2.12(b)(i) to the Domestic Borrower and the
Lenders.
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(i) If on any date, the Administrative Agent
notifies the Domestic Borrower that, on the last day of any month,
the sum of (i) the aggregate principal amount of
the Tranche B Term Facility Loans denominated in Dollars then outstanding plus
(ii) the Equivalent in Dollars (determined on the third Business
Day prior to such interest payment date) of aggregate principal
amount of all Tranche B Term Facility
Loans denominated in Foreign Currencies then
outstanding exceeds $166,425,000, the Domestic Borrower and each other Borrower
shall, as soon as practicable and in any event within five Business
Days following such date, prepay the outstanding principal amount
of any Tranche B
Term Facility Loans
owing by such Borrower in an
aggregate amount sufficient to reduce such sum to an amount not to
exceed $240 million,
together with any interest accrued
to the date of such prepayment on the aggregate principal amount
of Tranche B
Term Facility Loans
prepaid. The
Administrative Agent shall give prompt notice of any prepayment
required under this Section
2.12(b)(ii) to the Domestic
Borrower and the Lenders.
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(c) On each date on
or after the Closing Date upon which either Borrower or any Subsidiary receives any cash
proceeds from any Asset Disposition, an amount equal to 100% of the
Net Proceeds therefrom shall be applied on such date as a mandatory
prepayment in accordance
with Section
2.12(d);
provided, however, that such Net Proceeds shall not be required
to be so applied on such date so long as no Event of Default then
exists and such Net Proceeds shall be used to purchase Property
(other than inventory) used or to be used in the businesses
permitted pursuant to Section
6.08 within one year following the date of such
Asset Disposition; provided that a binding commitment to purchase such property shall be
treated as a permanent application thereof pursuant to this
clause (c)
from the date of such commitment
until the earlier of (x) the date on which such expenditure is made
and (y) the 180th
day following the expiration of the
aforementioned one year period.
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(d) Each prepayment
of Borrowings pursuant to Section 2.12(c) shall be applied ratably to
the Tranche A Term Facility and the Tranche B Term Facility. Prepayments pursuant to
Section 2.12(c) shall be accompanied by accrued interest to the
extent required by Section 2.14. Each prepayment of Borrowings
pursuant to Section
2.12(c) shall be applied, first, to
any ABR Borrowings then outstanding, and, second, to any Eurocurrency Borrowings then outstanding, and if more than
one Eurocurrency
Borrowing is then outstanding, to
each such Eurocurrency
Borrowing in order of priority
beginning with the Eurocurrency Borrowing with the least number of days
remaining in the Interest Period applicable thereto and ending with
the Eurocurrency
Borrowing with the most number of
days remaining in the Interest Period applicable
thereto.
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(a) The Domestic
Borrower agrees to pay to each Lender, through the Administrative
Agent, 10 Business Days after the last day of March, June,
September and December in each year, and three Business Days after
the date on which the Revolving Facility Commitments of all the
Lenders shall be terminated as provided herein, a commitment fee (a
“Commitment
Fee”)
on the daily amount of the Revolving Facility Available Unused Commitment
of such Lender during the preceding quarter (or other period
commencing with the Closing Date and ending with the date on which
the last of the Commitments of such Lender shall be terminated) at the rate per annum set forth under the
caption “Commitment Fee” below based upon the Leverage
Ratio as of the most recent determination date.
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Leverage
Ratio
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Commitment Fee (in basis points)
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Category 1
Equal to or greater than 3.00 to
1.00
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50.0
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Category 2
Less than 3.00 to 1.00 but equal to
or greater than 2.25 to 1.00
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50.0
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Category 3
Less than 2.25 to 1.00 but equal to
or greater than 1.50 to 1.00
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37.5
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Category 4
Less than 1.50 to 1.00
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37.5
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All Commitment Fees shall be
computed on the basis of the actual number of days elapsed in a
year of 360 days. For
the purpose of calculating any Lender’s Commitment Fee, the
outstanding Swingline Loans during the period for which such
Lender’s Commitment Fee is calculated shall be deemed to be
zero. The Commitment
Fee due to each Lender shall begin to accrue on the Closing Date
and shall cease to accrue on the date on which the last of the
Commitments of such Lender shall be terminated as provided
herein.
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(b) The Domestic
Borrower from time to time agrees to pay to each Revolving Facility
Lender (other than any Defaulting Lender),
through the Administrative
Agent, 15 Business Days after
the last day of March, June, September and December of each year
and three Business Days after the date on which the Revolving
Facility Commitments of all the Lenders shall be terminated as
provided herein, a fee (an “L/C Participation
Fee”) on such
Lender’s Revolving Facility Percentage of the daily aggregate
Revolving L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Disbursements), during the preceding quarter
(or shorter period commencing with the Closing Date and ending with
the Maturity Date or the date on which the Revolving Facility
Commitments shall be terminated) at the rate per annum
set forth below based upon the
Leverage Ratio as of the most recent determination
date.
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Leverage
Ratio
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Performance L/C Fee Rate
(in basis points)
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Financial L/C Fee Rate
(in basis points)
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Category 1
Equal to or greater than 3.00 to
1.00
|
140.0
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250.0
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Category 2
Less than 3.00 to 1.00 but equal to
or greater than 2.25 to 1.00
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125.0
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225.0
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Category 3
Less than 2.25 to 1.00
but equal to or greater than 1.50 to 1.00
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110.0
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200.0
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Category 4
Less than 1.50 to 1.00
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95.0
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175.0
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Each
Borrower from time to time agrees to pay to each Issuing Bank, for
its own account, (i)
15 Business Days after the
last day of March, June, September and December of each year and
three Business Days after the date on which the Revolving Facility
Commitments of all the Lenders shall be terminated as provided
herein, a fronting fee in respect of each Letter of Credit issued
by such Issuing Bank at the request of such Borrower for the period
from and including the date of issuance of such Letter of Credit to
and including the termination of such Letter of Credit (computed at
a rate equal to 1/8 of 1% per annum of the daily average stated
amount of such Letter of Credit), plus (ii) in
connection with the issuance, amendment or transfer of any such
Letter of Credit or any L/C Disbursement thereunder, such Issuing
Bank’s customary documentary and processing charges
(collectively, “Issuing Bank
Fees”). All
L/C Participation Fees and Issuing Bank Fees that are payable on a
per annum basis shall be computed on the basis of the actual number
of days elapsed in a year of 360 days.
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(c) The Domestic
Borrower agrees to pay to the Administrative Agent, for the account
of the Administrative Agent, the fees set forth in the Fee Letter,
as amended, restated, supplemented or otherwise modified from time
to time, at the times specified therein (the
“Administrative Agent
Fees”).
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(d) The Domestic Borrower agrees to pay to each
Lender, through the European Administrative Agent, 10 Business Days
after the last day of March, June, September and December in each
year, and three Business Days after the date on which the Euro
Revolving Facility Commitments of all the Lenders shall be
terminated as provided herein, a commitment fee (a
“Euro Commitment
Fee”) on the daily
amount of the Euro Revolving Facility Available Unused Commitment
of such Lender during the preceding quarter (or other period
commencing with the Closing Date and ending with the date on which
the last of the Commitments of such Lender shall be terminated) at
the rate per annum set forth under the caption “Euro
Commitment Fee” below based upon the Leverage Ratio as of the
most recent determination date.
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Leverage
Ratio
|
Euro Commitment Fee
(in basis points)
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Category 1
Equal to or greater than 3.00 to
1.00
|
50.0
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Category 2
Less than 3.00 to 1.00 but equal to
or greater than 2.25 to 1.00
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50.0
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Category 3
Less than 2.25 to 1.00
but equal to or greater than 1.50 to 1.00
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37.5
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Category 4
Less than 1.50 to 1.00
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37.5
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(e) The Domestic
Borrower agrees to pay to the Administrative Agent, for the account
of the European Administrative Agent, the fees set forth in the Fee
Letter, as amended, restated, supplemented or otherwise modified
from time to time, at the times specified therein (the
“Euro Administrative
Agent Fees”).
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(f) All Fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for
distribution, if and as appropriate, among the Lenders, except that
Issuing Bank Fees shall be paid directly to the applicable Issuing
Banks. Once paid, none of the Fees shall be refundable
under any circumstances.
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(a) Each Borrower
shall pay interest on the unpaid principal amount of each ABR Loan
made to such Borrower at the Alternate Base Rate plus the
Applicable Margin.
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(b) Each Borrower shall pay interest on the unpaid
principal amount of each Eurocurrency Loan made to such Borrower at
the Adjusted LIBO Rate for the Interest Period in effect for such
Eurocurrency Loan plus the Applicable Margin.
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(c) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any
Fees or other amount payable by any Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or
otherwise, such Borrower shall pay interest on such overdue amount,
after as well as before judgment, at a rate per annum equal to (x)
in the case of overdue principal of any Loan, 2% plus the rate
otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (y) in the case of any other amount,
2% plus the rate applicable to ABR Loans as provided in
paragraph (a)
of this Section; provided that this paragraph (c) shall not apply to any Event of Default that has
been waived by the Lenders pursuant to Section 9.08.
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(d) Accrued interest on each Loan shall be payable
by the applicable Borrower in arrears on each Interest Payment Date
for such Loan and upon termination of the Revolving Facility Commitments and the
Euro Revolving Facility
Commitments; provided that
(i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an
ABR Revolving Loan prior to the end of the Revolving Facility
Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any
Eurocurrency Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
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(e) All interest hereunder shall be computed on the
basis of a year of 360 days, except that (i) all interest on Loans
denominated in Sterling shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and (ii) interest computed by
reference to the Alternate Base Rate at times when the Alternate
Base Rate is based on the Base Rate shall be computed on the basis
of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed
(including the first day but excluding the last
day). The applicable Alternate Base Rate, Adjusted LIBO
Rate, LIBO Rate or EURIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive
absent manifest error.
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Section 2.015 Alternate Rate of
Interest. If prior
to the commencement of any Interest Period for a Eurocurrency
Borrowing denominated in any currency:
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(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate, the LIBO Rate or the EURIBO Rate, as
applicable, for such Interest Period; or
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(b) the Administrative Agent is advised by the
Required Lenders or the Majority Lenders under any Facility that the Adjusted LIBO Rate, the LIBO
Rate or the EURIBO Rate, as applicable, for such Interest Period
will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in the Borrowings
under such Facility for such
Interest Period;
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then the Administrative Agent shall
give notice thereof to the Borrowers and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrowers and the Lenders that
the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurocurrency
Borrowing shall be ineffective and such Borrowing, if denominated
in Dollars, shall be converted to, and if denominated in Euros,
shall be exchanged into the Equivalent thereof in Dollars and
converted to, an ABR Borrowing, in each case on the last day of the
Interest Period applicable thereto, and (ii) if any Borrowing
Request requests a Eurocurrency Borrowing, such Borrowing shall be
made as an ABR Borrowing or shall be made as a Borrowing bearing
interest at such rate as the Required Lenders or the Majority Lenders under the relevant Facility shall agree adequately reflects the
costs to the Lenders under
such Facility of making the
Loans comprising such Borrowing.
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Section 2.016 Increased
Costs.
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(a) If any Change in
Law shall:
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(i) impose, modify or deem
applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate or those for which payment has
been requested
pursuant to Section 2.21) or Issuing Bank; or
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(ii) impose on any Lender or
Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurocurrency Loans made by such Lender
or any Letter of Credit or participation therein (except those for
which payment has been requested pursuant to Section 2.21);
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and the result of any of the
foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan (or of maintaining its obligation
to make any such Loan) to any Borrower or to increase the cost to
such Lender or Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or Issuing Bank hereunder
(whether of principal, interest or otherwise), then such Borrower
will pay to such Lender or Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lender or
Issuing Bank, as applicable, for such additional costs incurred or
reduction suffered.
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(b) If any Lender or
Issuing Bank determines that any Change in Law regarding
capital or liquidity
requirements has or would have the
effect of reducing the rate of return on such Lender’s or
Issuing Bank’s capital or on the capital of such
Lender’s or Issuing Bank’s holding company, if any, as
a consequence of this Agreement or any of the Loans made by, or
participations in Letters of Credit held by, such Lender, or the
Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such Issuing Bank or such Lender’s
or such Issuing Bank’s holding company could have achieved
but for such Change in Law (taking into consideration such
Lender’s or such Issuing Bank’s policies and the
policies of such Lender’s or such Issuing Bank’s
holding company with respect to capital adequacy
and liquidity), then from time to time each Borrower to which
such Loans were made or are to be made shall pay to such Lender or
such Issuing Bank, as applicable, such additional amount or amounts
as will compensate such Lender or such Issuing Bank or such
Lender’s or such Issuing Bank’s holding company for any
such reduction suffered.
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(c) A certificate of a Lender or an Issuing Bank
setting forth the amount or amounts necessary to compensate such
Lender or Issuing Bank or its holding company, as applicable, as
specified in paragraph (a) or (b) of
this Section shall be delivered to the applicable Borrower and
shall be conclusive absent manifest error. Each Borrower
shall pay such Lender or Issuing Bank, as applicable, the amount
shown as due on any such certificate within 10 days after receipt
thereof.
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(d) Promptly after any Lender or any Issuing Bank
has determined that it will make a request for increased
compensation pursuant to this Section 2.16, such Lender or Issuing Bank shall notify the
Borrowers thereof. Failure or delay on the part of any
Lender or Issuing Bank to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s or
Issuing Bank’s right to demand such compensation;
provided
that no Borrower shall be required
to compensate a Lender or an Issuing Bank pursuant to this Section
for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender or Issuing Bank, as applicable,
notifies such Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or Issuing
Bank’s intention to claim compensation therefor;
provided
further that, if the Change
in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect
thereof.
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Section 2.017 Break Funding
Payments. In the
event of (a) the payment of any principal of any Eurocurrency Loan
other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion
of any Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurocurrency Loan on the date specified in
any notice delivered pursuant hereto or (d) the assignment of any
Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by any
Borrower pursuant to
Section 2.20, then, in any such event, such Borrower shall
compensate each Lender for the loss, cost and expense attributable
to such event. In the case of a Eurocurrency Loan, such
loss, cost or expense to any Lender shall be deemed to be the
amount determined by such Lender to be the excess, if any, of (i)
the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted
LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then
current Interest Period
therefor (or, in the case of a
failure to borrow, convert or continue a Eurocurrency Loan, for the
period that would have been the Interest Period for such Loan),
over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such
period, for deposits in Dollars if such Loan is denominated in
Dollars or the applicable Foreign Currency if such Loan is
denominated in such Foreign Currency, as the case may be, of a
comparable amount and period from other banks in the
Eurocurrency market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to such
Borrower and shall be conclusive absent manifest
error. Such Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt
thereof.
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(a) Any and all
payments by or on account of any obligation of any Loan Party under
any Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes;
provided
that if a Loan Party shall be
required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) any
Agent, Lender or Issuing Bank, as applicable, receives an amount
equal to the sum it would have received had no such deductions for
Indemnified Taxes and Other Taxes been made, (ii) such Loan Party
shall make such deductions and (iii) such Loan Party shall timely
pay the full amount deducted to the relevant Governmental Authority
in accordance with applicable law.
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(b) In addition, each Loan Party shall pay any Other
Taxes payable on account of any obligation of such Loan Party to
the relevant Governmental Authority in accordance with applicable
law.
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(c) Each Loan Party
shall indemnify each Agent, each Lender and each Issuing Bank,
within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes (other than Indemnified
Taxes or Other Taxes resulting from gross negligence or willful
misconduct of such Agent, Lender or Issuing Bank and without
duplication of any amounts
indemnified under Section
2.18(a)) paid by such Agent,
Lender or Issuing Bank, as applicable, on or with respect to any
payment by or on account of any obligation of such Loan Party under
any Loan Document (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under
this Section) 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. A certificate as to the amount
of such payment or liability and setting forth in reasonable detail
the calculation for such payment or liability delivered to such
Loan Party by a Lender or an Issuing Bank, or by the Administrative
Agent on its own behalf, on behalf of another Agent or on behalf of
a Lender or an Issuing Bank, shall be conclusive absent manifest
error of the Lender, the Issuing Bank or the Administrative
Agent.
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(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by a Loan Party to a Governmental
Authority, such Loan Party 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.
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(e) Any Lender,
Agent or Issuing Bank that is entitled to an exemption from or
reduction of withholding Tax otherwise indemnified against by a
Loan Party pursuant to this Section 2.18 with respect to payments under any Loan Document
shall deliver to the relevant Borrower or the relevant Governmental
Authority (with a copy to the Administrative Agent), to the extent
such Lender, Agent or Issuing Bank is legally entitled to do so, at
the time or times prescribed by applicable law such properly
completed and executed documentation prescribed by applicable law
as may reasonably be requested by such Borrower to permit such
payments to be made without such withholding tax or at a reduced
rate; provided that no Lender shall have any obligation under
this paragraph (e)
with respect to any withholding Tax
imposed by any jurisdiction other than the United States or the
jurisdiction under the laws of which any Borrower is organized or
in which it is treated as a tax resident if in the reasonable
judgment of such Lender such compliance would subject such Lender
to any material cost or expense not reimbursed or indemnified by
the Loan Parties or would otherwise prejudice such Lender’s
interest in any material respect.
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(f) In the case of a Lender or Issuing Bank that
would be subject to withholding tax imposed by FATCA on payments
made under this Agreement or any other Loan Document if such Lender
or Issuing Bank fails to comply with the applicable reporting
requirements of FATCA (including those contained in Section 1471(b)
or 1472(b) of the Code, as applicable), such Lender or Issuing Bank
shall provide such documentation prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code)
and such additional documentation reasonably requested by either
Borrower or the Administrative Agent as may be necessary for such
Borrower or the Administrative Agent to comply with its obligations
under FATCA, to determine that such Lender or Issuing Bank has
complied with such Lender’s or Issuing Bank’s
obligations under FATCA, or to determine the amount to deduct and
withhold from any such payments.
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(g) If an Agent, Lender or Issuing Bank determines,
in good faith and in its sole discretion, that it has received a
refund of any taxes in respect of or calculated with reference to
Indemnified Taxes or Other Taxes as to which it has been
indemnified by a Loan Party or with respect to which a Loan Party
has paid additional amounts pursuant to this Section 2.18, it shall pay over such refund to such Loan
Party (but only to the extent of indemnity payments made, or
additional amounts paid, by such Loan Party under this
Section 2.18 with respect to the Indemnified Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket
expenses of such Agent, Lender or Issuing Bank (including any Taxes
imposed with respect to such refund) as is determined by the Agent,
Lender or Issuing Bank in good faith and in its sole discretion,
and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund);
provided
that such Loan Party, upon the
request of such Agent, Lender or Issuing Bank, agrees to repay as
soon as reasonably practicable the amount paid over to such Loan
Party (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to such Agent, Lender or Issuing
Bank in the event such Agent, Lender or Issuing Bank is required to
repay such refund to such Governmental Authority. This
Section shall not be construed to require any Agent, Lender or
Issuing Bank to
make available its tax returns (or
any other information relating to its Taxes which it deems
confidential) to the Loan Parties or any other Person.
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Section 2.019 Payments Generally;
Pro Rata Treatment; Sharing of Set-offs.
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(a) Unless otherwise specified, each Borrower shall
make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of L/C Disbursements, or
of amounts payable under Section 2.16, 2.17,
2.18, or 2.21, or
otherwise) prior to 2:00 p.m., Local Time, on the date when due, in
immediately available funds, without condition or deduction for any
defense, recoupment, set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion
of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the
Administrative Agent to the applicable account designated to the
Borrowers by the Administrative Agent, except payments to be made
directly to the applicable Issuing Bank or the applicable Swingline
Lender as expressly provided herein and except that payments
pursuant to Sections 2.16,
2.17, 2.18,
or 2.21 and 9.05 shall
be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such
extension. Except for Loans denominated in any Foreign
Currency (the principal of and interest on which hereunder shall be
paid in such Foreign Currency) and except for reimbursement
obligations with respect to any Letter of Credit denominated in any
Foreign Currency (which shall be paid in such Foreign Currency),
all payments hereunder of (i) principal or interest in respect of
any Loan, (ii) reimbursement obligations with respect to any Letter
of Credit or (iii) any other amount due hereunder or under any
other Loan Document shall be made in Dollars or the Equivalent in Dollars. Any payment required to be made by
the Administrative Agent hereunder shall be deemed to have been
made by the time required if such Administrative Agent shall, at or
before such time, have taken the necessary steps to make such
payment in accordance with the regulations or operating procedures
of the clearing or settlement system used by such Administrative
Agent to make such payment.
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(b) If at any time
insufficient funds are received by and available to the
Administrative Agent from any Borrower to pay fully all amounts of
principal, unreimbursed L/C Disbursements, interest and fees then
due from such Borrower hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due
from such Borrower hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then
due to such parties, and (ii) second, towards payment of principal and unreimbursed
L/C Disbursements then due from such Borrower hereunder, ratably
among the parties entitled thereto in accordance with the amounts
of principal and unreimbursed L/C Disbursements then due to such
parties.
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(c) If any Lender
shall, by exercising any right of set-off or counterclaim, through
the application of any proceeds of Collateral or otherwise, obtain
payment in respect of any principal of or interest on any of its
Loans or participations in L/C Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the
aggregate amount of its Loans and
participations in L/C Disbursements and Swingline Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value)
participations in the Loans and participations in L/C
Disbursements and Swingline
Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective
Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto
is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph
(c) shall not be construed to apply to any payment
made by any Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in
any of its Loans or participations in L/C Disbursements to any
assignee or participant, other than to such Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph (c) shall apply). Each Borrower consents
to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against such
Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of
such Borrower in the amount of such participation.
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(d) Unless the
Administrative Agent shall have received notice from the applicable
Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the
applicable Issuing Bank hereunder that such Borrower will not make
such payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the
Lenders or the applicable Issuing Bank, as applicable, the amount
due. In such event, if such Borrower has not in fact
made such payment, then each of the Lenders or the applicable
Issuing Bank, as applicable, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day
from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
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(e) If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e),
2.06(b)
or 2.19(d),
then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully
paid.
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(f) To the extent that the Administrative Agent
receives funds for application to the amounts owing by any Borrower
under or in respect of this Agreement in currencies other than the
currency or currencies required to enable the Administrative Agent
to distribute funds to the Lenders in accordance with the terms of
this Section
2.19, the Administrative
Agent shall be entitled to convert or exchange such funds into
Dollars,
a Foreign
Currency, or an Alternate LC
Currency or from Dollars to a
Foreign Currency or an
Alternate LC Currency or from
a Foreign
Currency or an Alternate LC Currency to Dollars, as the case may be, to the extent
necessary to enable the Agent to distribute such funds in
accordance with the terms of this Section 2.19; provided that each Borrower and each of the
Lenders hereby agree that the Administrative Agent shall not be
liable or responsible for any loss, cost or expense suffered by
such Borrower or such Lender as a result of any conversion or
exchange of currencies affected pursuant to this
Section 2.19(f) or as a result of the failure of the
Administrative Agent to effect any such conversion or exchange; and
provided further that each applicable Borrower agrees to indemnify
the Administrative Agent and each Lender, and hold the
Administrative Agent and each Lender harmless, for any and all
losses, costs and expenses incurred by the Administrative Agent or
any Lender for any conversion or exchange of currencies (or the
failure to convert or exchange any currencies) in accordance with
this Section
2.19(f).
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Section 2.020 Mitigation
Obligations; Replacement of Lenders.
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(a) If any Lender requests compensation under
Section 2.16 or 2.21, or
if any Loan Party is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender
pursuant to Section
2.18, 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 reasonable judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section
2.16,
2.18
or 2.21, as
applicable, in the future and (ii) would not subject such Lender to
any material unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender in any material
respect. The relevant Loan Party hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
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(b) If any Lender
requests compensation
under Section 2.16
or 2.21, or
if any Loan Party is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender
pursuant to Section
2.18, or is a Defaulting
Lender, then such Loan Party may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations
under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) such Loan Party shall have received the
prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of
its Loans and participations in L/C Disbursements
and Swingline
Loans, accrued interest
thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or such Loan Party (in the
case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under
Section 2.16 or 2.21 or
payments required to be made pursuant to Section 2.18, such assignment will result in a reduction in
such compensation or payments. Nothing in this
Section 2.20 shall be deemed to prejudice any rights that any
Loan Party may have against any Lender that is a Defaulting
Lender.
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(c) If any Lender
(such Lender, a “Non-Consenting
Lender”) has failed to
consent to a proposed amendment, waiver, discharge or termination
which pursuant to the terms
of Section 9.08 requires the consent of all of the Lenders
affected and with respect to which the Required Lenders
or the Majority Lenders, if
applicable, shall have
granted their consent, then provided no Event of Default then
exists, such Borrower shall have the right (unless such
Non-Consenting Lender grants such consent) to replace such
Non-Consenting Lender by requiring such Non-Consenting Lender to
assign its Loans, and its Commitments hereunder to one or more
assignees reasonably acceptable to the Administrative Agent,
provided
that: (i)
all Obligations of Borrowers owing to such Non-Consenting Lender
being replaced shall be paid in full to such Non-Consenting Lender
concurrently with such assignment, and (ii) the
replacement Lender shall purchase the foregoing by paying to such
Non-Consenting Lender a price equal to the principal amount thereof
plus accrued and unpaid interest thereon. In connection
with any such assignment each Borrower, Administrative Agent, such
Non-Consenting Lender and the replacement Lender shall otherwise
comply with Section
9.04.
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Section 2.021 Additional Reserve
Costs.
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(a) For so long as
any Lender is required to make special deposits with the Bank of
England or comply with reserve assets, liquidity, cash margin or
other requirements of the Bank of England, to maintain reserve
asset ratios or to pay fees, in each case in respect of such
Lender’s Eurocurrency Loans, each Borrower shall pay,
contemporaneously with each payment of interest on each of such
Loans made to such Borrower, additional interest on such Loan at a
rate per annum equal to the Mandatory Costs Rate calculated in
accordance with the formula and in the manner set forth in
Exhibit F
hereto.
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(b) Any additional interest owed pursuant to
paragraph (a)
above shall be determined by the
applicable Lender, which determination shall be conclusive absent
manifest error, and notified to the applicable Borrower (with a
copy to the Administrative Agent) at least five Business Days
before each date on which interest is payable for the applicable
Loan, and such additional interest so notified to such Borrower by
such Lender shall be payable to the Administrative Agent for the
account of such Lender on each date on which interest is payable
for such Loan.
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Section 2.022 Illegality. If
any Lender reasonably determines that any change in law has made it
unlawful, or that any Governmental Authority has asserted after the
Closing Date that it is unlawful, for any Lender or its applicable
lending office to make or maintain any Eurocurrency Loans in
Dollars or Euros or any other Foreign Currency, then, on notice
thereof by such Lender to any Borrower through the Administrative
Agent, any obligations of such Lender to make or continue
Eurocurrency Loans in Dollars or Euros or such other Foreign
Currency, or to convert ABR Borrowings to Eurocurrency Borrowings
denominated in Dollars, as the case may be, shall be suspended
until such Lender notifies the Administrative Agent and such
Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, such
Borrower shall upon demand from such Lender (with a copy to the
Administrative Agent), if such Eurocurrency Borrowings are
denominated in Dollars, convert all such Eurocurrency Borrowings of
such Lender made to such Borrower to ABR Borrowings, and if such
Eurocurrency Borrowings are denominated in a Foreign Currency,
exchange all such Eurocurrency Borrowings into the Equivalent
thereof in Dollars and convert such Borrowings to ABR Borrowings,
in each case either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Borrowings to such day, or
immediately, if such Lender may not
lawfully continue to maintain such Loans. Upon any such
prepayment or conversion, such Borrower shall also pay accrued
interest on the amount so prepaid or converted.
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Section 2.023 Additional
Borrowers. Upon
the execution and delivery by any Additional Foreign Borrower
acceptable to the Administrative Agent in its reasonable judgment
of a supplement to this Agreement, in substantially the form
of Exhibit H
hereto (a “Credit Agreement
Supplement”) with such
changes and modifications thereto as may be required by the laws of
any applicable foreign jurisdiction, (i) such Person shall be
referred to as a “Foreign Borrower” and shall be and
become a Foreign Borrower, and each reference in this Agreement to
a “Foreign Borrower” shall also mean and be a reference
to such Foreign Borrower and each reference in any other Loan
Document to a “Foreign Borrower” or a “Loan
Party” shall also mean and be a reference to such Foreign
Borrower, and (ii) such Person shall assume all of the Obligations
of a Foreign Borrower which is organized in the same jurisdiction
as such Additional Foreign Borrower; provided, however, that the Administrative Agent, the Lenders and
the Issuing Banks shall have received, at least five Business Days
prior to the making of Loans to or issuance of Letters of Credit
for the account of any such additional Foreign Borrower, all
documentation and other information relating to such Foreign
Borrower requested by them for purposes of ensuring compliance with
applicable “know your customer” and anti-money laundering rules and regulations,
including the U.S. Patriot Act.
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Section 2.01 Defaulting
Lenders. Notwithstanding any provision of
this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as
such Lender is a Defaulting Lender:
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(a) fees shall cease to accrue on the unfunded
portion of the Commitment of such Defaulting Lender pursuant
to Section
2.13(a);
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(b) the Commitment of such Defaulting Lender shall
not be included in determining whether all
Lenders, the Required
Lenders or the Majority
Lenders have taken or may take any action hereunder (including any
consent to any amendment or waiver pursuant to Section 9.08), provided that any
waiver, amendment or modification requiring the consent of each
affected Lender shall require the consent of such Defaulting
Lender.
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(c) if any
L/C Exposure exists at the time a Lender becomes a
Defaulting Lender then:
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(i) all or any part
of such L/C Exposure shall be reallocated among the
non-Defaulting Lenders in accordance with their respective
Revolving Facility
Percentages but only to the extent
(x) the sum of all non-Defaulting Lenders’ Revolving
Facility Credit Exposures plus such Defaulting
Lender’s L/C
Exposure does not exceed the total of all non-Defaulting
Lenders’ Revolving
Facility Commitments, (y) the Revolving Facility Credit Exposure of
any non-Defaulting Lender does not exceed such non-Defaulting
Lender’s Revolving Facility Commitment, and (z) the
conditions set forth in Section 4.01 are
satisfied at such time; and
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(ii) if the reallocation
described in clause (i) above
cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day
following notice by the Administrative Agent cash collateralize
such Defaulting Lender’s L/C
Exposure (after giving effect to any partial reallocation pursuant
to clause (i) above) in accordance with the procedures set
forth in Section
2.05(j) for
so long as such L/C
Exposure is outstanding;
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(iii) if the
applicable Borrower cash collateralizes any portion of such
Defaulting Lender’s LC Exposure pursuant to
this Section 2.24(c), the Borrower shall not be required to pay any
fees to such Defaulting Lender pursuant to Section 2.13(b) with
respect to such Defaulting Lender’s L/C
Exposure during the period such Defaulting Lender’s
L/C Exposure is cash collateralized;
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(iv) if the
L/C Exposure of the non-Defaulting Lenders is
reallocated pursuant to this Section 2.24(c), then the fees payable to the Lenders pursuant
to Section
2.13(a) and Section 2.13(a) shall be adjusted in accordance with such
non-Defaulting Lenders’ Revolving Facility Percentages; or
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(v) if any Defaulting
Lender’s L/C
Exposure is neither cash collateralized nor reallocated pursuant to
this Section
2.24(c),
then, without prejudice
to any rights or remedies of the Issuing Bank or any Lender hereunder, all
Commitment
Fees that otherwise would have been payable to
such Defaulting Lender (solely with respect to the portion of such
Defaulting Lender’s Commitment that was utilized by such
L/C Exposure) under Section 2.13(a) and
letter of credit fees payable
under Section
2.13(b) with
respect to such Defaulting Lender’s L/C
Exposure shall be payable to the Issuing Bank until such
L/C Exposure is cash collateralized
and/or reallocated.
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(d) If any
Swingline Exposure exists at
the time a Lender becomes a Defaulting Lender then:
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(i) all or any part of such Defaulting Lender’s
Swingline Exposure
shall be reallocated among the
non-Defaulting Lenders in
accordance with their respective Revolving Facility Percentages (calculated without regard to such
Defaulting Lender’s Commitment) but only to
the extent (x) the sum of all
non-Defaulting Lenders’
Revolving Facility
Credit Exposures plus such
Defaulting Lender’s L/C
Exposure does not exceed the total of all non-Defaulting Lenders’
Commitments, (y) the
Revolving Facility Credit Exposure of any non-Defaulting Lender
does not exceed such non-Defaulting Lender’s Revolving
Facility Commitment, and
(z) the conditions set forth in
Section 4.01 are
satisfied at such time;
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(ii) if the reallocation
described in clause (i) above
cannot, or can only partially, be effected, then the
Domestic Borrower shall within one (1) Business Day following notice by the
Administrative Agent cash collateralize such Defaulting Lender’s
Swingline Exposure (after
giving effect to any partial reallocation pursuant to clause
(i) above) in accordance with the procedures set
forth in Section
7.01 for so long as such Swingline Exposure is outstanding; or
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(iii) if the
Swingline Exposure of the non-Defaulting Lenders is reallocated pursuant to this
Section 2.24(d), then the fees payable to the Lenders pursuant
to
Section 2.13(a) and Section 2.13(b) shall be adjusted in accordance with such
non-Defaulting
Lenders’ Revolving
Facility Percentages
(calculated without regard to such Defaulting Lender’s
Commitment).
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(e) so long as any Lender is a Defaulting Lender,
the Issuing Bank shall not be required to issue, amend or increase
any Letter of Credit, unless it is satisfied that the related
exposure of such Defaulting Lender will be 100% covered by
the Revolving Facility
Commitments of the non-Defaulting
Lenders and/or cash collateral will be provided by the
Domestic Borrower in accordance
with Section
2.24(c),
and participating
interests in any such newly issued or increased Letter of Credit
shall be allocated among non-Defaulting Lenders in a manner
consistent with
Section
2.24(c)(i) (and
any Defaulting Lender shall not participate
therein). For the avoidance of doubt, the existence of a
Defaulting Lender shall not affect the obligation of the Issuing
Bank to issue Letters of Credit but shall only reduce the
L/C Commitment by the amount allocated to such
Defaulting Lender to the extent the Defaulting Lender’s obligations under
Section 2.05(d) are
not reallocated to other non-Defaulting Lenders or cash collateralized.
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In the event that the
Administrative Agent, the
Borrower, the Swingline
Lender and the Issuing Bank each agrees that a Defaulting Lender
has adequately remedied all matters that caused such Defaulting
Lender to be a Defaulting Lender, then the L/C
Exposure of the non-Defaulting Lenders shall be readjusted to
reflect the inclusion of such Defaulting Lender’s Commitment
and on such date such Defaulting Lender shall purchase at par such
of the Revolving Facility Loans of the other Lenders as the Administrative
Agent shall determine may be necessary in order for such Defaulting
Lender to hold such Revolving Facility Loans in accordance with its Revolving Facility Percentage.
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(f) So long as any Lender is a Defaulting Lender,
the Swingline Lender shall not be required to make any
Swingline Loan, unless it is
satisfied that the related exposure of such Defaulting Lender will
be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders and/or cash collateral
will be provided by the Borrower in accordance
with Section 2.24(d), and participating interests in any such newly made
Swingline Loan shall be
allocated among non-Defaulting Lenders in a manner consistent
with Section 2.04(c) (and
Defaulting Lenders shall not participate therein). For
the avoidance of doubt, the existence of a Defaulting Lender shall
not affect the obligation of
the Swingline Lender to make Swingline Loans but shall only reduce the Swingline limit set forth in Section 2.04(a) by
the amount allocated to such Defaulting Lender to the extent the
Defaulting Lender’s obligations under Section 2.04(c) are
not reallocated to other non-Defaulting Lenders or cash collateralized.
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ARTICLE III
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REPRESENTATIONS
AND WARRANTIES
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Each of the Borrowers represents and
warrants to each of the Lenders with respect to itself and each of
its respective Subsidiaries that:
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Section 3.01 Organization;
Powers. Except as
set forth on Schedule
3.01,
each of the Borrowers and each of their Subsidiaries (a) is duly organized, validly
existing and (if applicable) in good standing under the laws of the
jurisdiction of its organization except for such
failures to be in good standing
which could not reasonably be expected to have a Material Adverse
Effect, (b) has all requisite power and authority to own its
property and assets and to carry on its business as now conducted,
(c) is qualified to do business in each jurisdiction where such
qualification is required, except where the failure to so qualify
could not reasonably be expected to have a Material Adverse Effect,
and (d) has the power and authority to execute, deliver and perform
its obligations under each of the Loan Documents and each other
agreement or instrument contemplated thereby to which it is or will
be a party and, in the case of each Borrower, to borrow and
otherwise obtain credit hereunder.
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Section 3.02 Authorization. The
execution, delivery and performance by each Borrower and each of
their Subsidiaries of each of the Loan Documents to
which it is a party, and the borrowings hereunder and the
Transactions (a) have been duly authorized by all corporate,
stockholder, limited liability company or partnership action
required to be obtained by each Borrower and such Subsidiaries and
(b) will not (i) violate (A) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or
other constitutive documents or by-laws of any Borrower or any such
Subsidiary, (B) any applicable order of any court or any rule,
regulation or order of any Governmental Authority or (C) any
provision of any indenture, lease, agreement or other instrument to
which any Borrower or any such Subsidiary is a party or by which
any of them or any of their respective property is or may be bound,
(ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under,
give rise to a right of or result in any cancellation or
acceleration of any right or obligation (including any payment) or
to a loss of a material benefit under any such indenture, lease,
agreement or other instrument, where any such conflict, violation,
breach or default referred to in clause (i) or (ii) of this
Section 3.02, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, or
(iii) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired
by any Borrower or any such Subsidiary, other than the Liens
created by the Loan Documents.
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Section 3.03 Enforceability. This
Agreement has been duly executed and delivered by each Borrower and
constitutes, and each other Loan Document when executed and
delivered by each Loan Party that is party thereto will constitute,
a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with its
terms, subject to (a) the
effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting
creditors’ rights generally, (b) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and
(c) implied covenants of good faith and fair
dealing.
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Section 3.04 Governmental
Approvals. No
action, consent or approval of, registration or filing with or any
other action by any Governmental Authority is or will be required
in connection with the Transactions except for (a) the filing of
UCC financing statements, (b) filings with the United States Patent
and Trademark Office and the United States Copyright Office or,
with respect to Intellectual Property which is the subject of
registration or application outside the United States, such
applicable patent, trademark or copyright office or other
intellectual property authority, (c) recordation of the Mortgages,
(d) such consents, authorizations, filings or other actions that
have either (i) been made or obtained and are in full force and
effect or (ii) are listed on Schedule
3.04,
and (e) such actions, consents and approvals
the failure to be obtained or made
which could not reasonably be expected to have a Material Adverse
Effect.
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Section 3.05 Financial
Statements.
There has heretofore been furnished to the
Lenders: the
audited consolidated balance
sheet as of December
31, 2012 and the
related audited combined statements of income and cash flows for
the year ended December 31, 2012 of
the Domestic
Borrower, were prepared in
accordance with GAAP consistently applied during such periods and fairly present the consolidated financial
position of the Borrowers as
of the date thereof and its
consolidated results of operations and cash flows for the period then ended.
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Section 3.06 No Material Adverse
Effect. Since
December 31, 2012, there
has been no event or occurrence which has resulted in or would
reasonably be expected to result in, individually or in the
aggregate, any Material Adverse Effect.
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Section 3.07 Title to Properties;
Possession Under Leases.
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(a) Each of the Borrowers and their Subsidiaries has good and valid record fee
simple title to, all Mortgaged Properties, subject solely to
Permitted Encumbrances and except where the failure to have such
title could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. The Borrowers
and their Subsidiaries have maintained, in all material
respects and in accordance with normal industry practice, all of
the machinery, equipment, vehicles, facilities and other tangible
personal property now owned or leased by the Borrowers and the
other Subsidiaries that is necessary to conduct their business as
it is now conducted. All such Mortgaged Properties are
free and clear of Liens, other than Liens expressly permitted
by Section 6.02
or arising by operation of
law.
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(b) Each of the Borrowers and their Subsidiaries has complied with all obligations
under all leases to which it is a party, except where the failure
to comply would not have a Material Adverse Effect, and all such
leases are in full force and effect, except leases in respect of
which the failure to be in full force and effect could not
reasonably be expected to have a Material Adverse
Effect. Each of the Borrowers and their Subsidiaries enjoys peaceful and undisturbed
possession under all such leases, other than leases in respect of
which the failure to enjoy peaceful and undisturbed possession
could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
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(c) As of the Closing Date, the Borrowers and
their Subsidiaries have good title to or valid
leasehold interests in all real property set forth on
Schedule
3.17(a)
and Schedule
3.17(b),
subject solely to
Permitted Encumbrances and except where the failure to have such
title could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
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(d) Each of the Borrowers and their Subsidiaries owns or possesses, or could obtain
ownership or possession of, on terms not materially adverse to it,
all patents, trademarks, service marks, trade names, copyrights,
licenses and rights with respect thereto necessary for the present
conduct of its business, without any known conflict with the rights
of others, and free from any burdensome restrictions, except where
such conflicts and restrictions could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse
Effect.
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(e) As of the
Closing Date, none of the Borrowers and their Subsidiaries has
received any notice of any pending or contemplated condemnation
proceeding affecting any of the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnation that remains unresolved
as of the Closing Date, except as set forth on Schedule
3.07(e).
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(f) None of the Borrowers and their Subsidiaries is
obligated on the Closing Date under any right of first refusal,
option or other contractual right to sell, assign or otherwise
dispose of any Mortgaged Property or any interest therein, except
as permitted under Section
6.02 or 6.05.
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(g) Schedule
3.07(g)
sets forth as of the Closing Date
the name and jurisdiction of incorporation, formation or
organization of each Subsidiary of the Domestic Borrower and, as to
each such Subsidiary, the percentage of each class of Equity
Interests owned by the Domestic Borrower or by any such Subsidiary,
indicating the ownership thereof.
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(h) As of the
Closing Date, there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other
than stock options granted to employees or directors and
directors’ qualifying shares) of any nature relating to any
Equity Interests of the Domestic Borrower, or any of the
Subsidiaries, except rights of employees to purchase Equity
Interests of the Domestic Borrower in connection with the
Transactions or as set forth on Schedule
3.07(h).
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Section 3.08 Litigation; Compliance
with Laws.
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(a) Except as set
forth on Schedule
3.08(a),
there are no actions, suits, investigations or proceedings at law
or in equity or by or on behalf of any Governmental Authority or in
arbitration now pending against, or, to the knowledge of the
Borrowers, threatened in writing against or affecting, any Borrower
or any of their
Subsidiaries or any business,
property or rights of any such Person (i) as of the Closing Date,
that involve any Loan Document or the Transactions or (ii) which
individually could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected, individually
or in the aggregate, to materially adversely affect the
Transactions. Neither the Borrowers nor, to the
knowledge of any of the Loan Parties, any of its Affiliates is in
violation of any laws relating to terrorism or money laundering,
including Executive Order No. 13224 on Terrorist Financing,
effective September 23, 2001, and the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Public Law 107-56 (signed into law
on October 26, 2001) (the “U.S. Patriot
Act”).
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(b) Except as set
forth in Schedule
3.08(b),
none of the Borrowers, their Subsidiaries and their respective properties or
assets is in violation of (nor will the continued operation of
their material properties and assets as currently conducted
violate) any currently applicable law, rule or regulation
(including any zoning, building, Environmental Law, ordinance, code
or approval or any building permit) or any restriction of record or
agreement affecting any Mortgaged Property, or is in default with
respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
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Section 3.09 Federal Reserve
Regulations.
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(a) None of the Borrowers and their Subsidiaries is engaged principally, or as one
of its important activities, in the business of extending credit
for the purpose of purchasing or carrying Margin Stock.
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(b) No part of the proceeds of any Loan will be
used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, (i) to purchase or carry Margin Stock
or to extend credit to others for the purpose of purchasing or
carrying Margin Stock or to refund indebtedness originally incurred
for such purpose, or (ii) for any purpose that entails a violation
of, or that is inconsistent with, the provisions of the Regulations
of the Board, including Regulation U or Regulation X.
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Section 3.010 Investment Company
Act. None of the
Borrowers or their
Subsidiaries is an
“investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940, as
amended.
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Section 3.011 Use of
Proceeds.
The Borrowers will use the proceeds
of the Revolving Facility Loans, Euro Revolving Facility Loans and
Swingline Loans, and may request the issuance of Letters of Credit,
solely for general corporate purposes of the Borrowers and their
Subsidiaries in the ordinary course of business.
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Section 3.012 Tax
Returns. Except as
set forth on Schedule
3.12:
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(a) Each of the Borrowers and their Subsidiaries (i)
has timely filed or caused to be timely filed all federal, state,
local and non-U.S. Tax returns required to have been filed by it
that are material to such companies taken as a whole and each such
Tax return is true and correct in all material respects and (ii)
has timely paid or caused to be timely paid all material Taxes
shown thereon to be due and payable by it and all other material
Taxes or assessments, except Taxes or assessments that are being
contested in good faith by appropriate proceedings in accordance
with Section 5.03
and for which the Borrowers or any
of their Subsidiaries (as the case may be) has set aside on its
books adequate reserves;
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(b) Each of the Borrowers and their Subsidiaries has
paid in full or made adequate provision (in accordance with GAAP)
for the payment of all Taxes due with respect to all periods or
portions thereof ending on or before the Closing Date, which Taxes,
if not paid or adequately provided for, could individually or in
the aggregate reasonably be expected to have a Material Adverse
Effect; and
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(c) Other than as could not be, individually or in
the aggregate, reasonably expected to have a Material Adverse
Effect: as of the Closing Date, with respect to each of
the Borrowers and their Subsidiaries, (i) there are no claims being
asserted in writing with respect to any Taxes, (ii) no presently
effective waivers or extensions of statutes of limitation with
respect to Taxes have been given or requested and (iii) no Tax
returns are being examined by, and no written notification of
intention to examine has been received from, the Internal Revenue
Service or any other Taxing authority.
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Section 3.013 No Material
Misstatements.
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(a) All written information (other than the
Projections, estimates and information of a general economic
nature) (the “Information”)
concerning the Borrowers, their Subsidiaries, the Transactions and
any other transactions contemplated hereby furnished to the Administrative Agent or the
Lenders prior to the Closing Date in
connection with the Transactions or otherwise prepared by or on behalf of the
foregoing or their representatives and made available to any
Lenders or the Administrative Agent in connection with the
Transactions or the other transactions contemplated hereby, when
taken as a whole, were true and correct in all material respects,
as of the date such Information was furnished to the Lenders and as
of the Closing Date and did not contain any untrue statement of a
material fact as of any such date or omit to state a material fact
necessary in order to make the statements contained therein not
materially misleading in light of the circumstances under which
such statements were made.
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(b) The Projections and estimates and information of
a general economic nature prepared by or on behalf of the Borrowers
or any of their representatives and that have been made available
to any Lenders or the Administrative Agent in connection with the
Transactions or the other transactions contemplated hereby (i) have
been prepared in good faith based upon assumptions believed by the
Borrowers to be reasonable as of the date thereof, as of the date
such Projections and estimates were furnished to the Initial
Lenders and as of the Closing Date, and (ii) as of the Closing
Date, have not been modified in any material respect by any Borrower.
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Section 3.014 Employee Benefit
Plans.
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(a) Each of the Borrowers, the Subsidiaries and the
ERISA Affiliates is in compliance with the applicable provisions of
ERISA and the provisions of the Code relating to Plans (and the
regulations and published interpretations thereunder), except for
such noncompliance that could not reasonably be expected to have a
Material Adverse Effect. As of the Closing Date, the
excess of the present value of all benefit liabilities under each
Plan of the Borrowers, and each Subsidiary and the ERISA Affiliates
(based on those assumptions used to fund such Plan), as of the last
annual valuation date applicable thereto for which a valuation is
available, over the value of the assets of such Plan could not
reasonably be expected to have a Material Adverse Effect, and the
excess of the present value of all benefit liabilities of all
underfunded Plans (based on those assumptions used to fund each
such Plan) as of the last annual valuation dates applicable thereto
for which valuations are available, over the value of the assets of
all such underfunded Plans could not reasonably be expected to have
a Material Adverse Effect. No ERISA Event has occurred
or is reasonably expected to occur that, when taken together with
all other ERISA Events which have occurred or for which liability
is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse
Effect.
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(b) All Foreign Plans maintained or contributed to
by any Borrower, Subsidiary
or ERISA Affiliate and is
in compliance
with the requirements of applicable
foreign law, except where noncompliance, individually or in the aggregate,
could not reasonably be expected to
have a Material Adverse Effect.
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Section 3.015 Environmental
Matters. Except as
to matters that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect
no written notice, request for
information, order, complaint, Environmental Claim or penalty has
been received by any Borrower or any of their Subsidiaries, and there are no judicial,
administrative or other actions, suits or proceedings pending or
threatened against any Borrower or any of their Subsidiaries which allege a violation of or
liability under any Environmental Laws, in each case relating to
any Borrower or any of their Subsidiaries, each
of the Borrowers and the other Subsidiaries has all environmental,
health and safety permits necessary for its operations as currently
conducted to comply with all applicable Environmental Laws and is,
and has been, in compliance with the terms of such permits and with
all other applicable Environmental Laws except for non-compliances
which have been resolved and the costs of such resolution have been
paid, the
Borrowers and the other Subsidiaries have made available to the
Administrative Agent prior to the date hereof the most recent
environmental assessment with respect to the operations of each of
the Borrowers and their Subsidiaries, to
the knowledge of the Domestic Borrower and the Subsidiaries, no
Hazardous Material is located at any property currently owned,
operated or leased by any Borrower or any of their Subsidiaries that would reasonably be expected
to give rise to any liability or Environmental Claim of any
Borrower or any of its Subsidiaries under any Environmental Laws,
and no Hazardous Material has been generated, owned or controlled
by any Borrower or any of their Subsidiaries and transported to or Released at
any location in a manner that would reasonably be expected to give
rise to any liability or Environmental Claim of any Borrower or any
of its Subsidiaries under any Environmental Laws, to
the knowledge of the Domestic Borrower and the Subsidiaries, there
are no acquisition agreements pursuant to which any Borrower or any
of its Subsidiaries has expressly assumed or undertaken
responsibility for any liability or obligation of any other Person
arising under or relating to Environmental Laws, which in any such
case has not been made available to the Administrative Agent prior
to the date hereof, to
the knowledge of the Domestic Borrower and the Subsidiaries, there
are no landfills or disposal areas located at, on, in or under the
assets of the Domestic Borrower or any Subsidiary, and
to
the knowledge of the Domestic Borrower and the Subsidiaries, except
as listed on Schedule
3.15(g),
there are not currently and there have not been any underground
storage tanks “owned” or “operated” (as
defined by applicable Environmental Law) by any Domestic Borrower,
Borrower or any Subsidiary or present or located on the Domestic
Borrower’s, any Borrower’s or any of their Subsidiary’s Real Property.
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Section 3.016 Mortgages. The
Mortgages executed and delivered prior to, on or after the Closing Date pursuant to clause (i) of
the Collateral and Guarantee Requirement and Section 5.10 shall be effective to create in favor of the
Collateral Agent (for the benefit of the Secured Parties) a legal,
valid and enforceable security interest on all of the Loan
Parties’ right, title and interest in and to the Mortgaged
Property thereunder and the proceeds thereof, and when such
Mortgages are filed or recorded in the proper real estate filing or
recording offices, the Collateral Agent (for the benefit of the
Secured Parties) shall have a fully perfected first priority Lien
on, and security interest in, all right, title and interest of the
Loan Parties in such Mortgaged Property and, to the extent
applicable, subject to Section 9-315 of
the UCC, the proceeds thereof, in each case prior and superior in
right to any other Person, other than with respect to Permitted
Encumbrances.
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Section 3.017 Location of Real
Property.
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(a) Schedule
3.17(a)
lists completely and correctly as of
the Closing Date each Real Property owned by the Borrowers and the
Subsidiary Loan Parties, the address or location thereof and the
state in which such property is located.
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(b) Schedule
3.17(b)
lists completely and correctly as of
the Closing Date each Real Property leased by the Borrowers and the
Subsidiary Loan Parties, the address or location
thereof.
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(a) Immediately after giving effect to the
Transactions (i) the fair value of the assets of each Borrower
(individually) and the Domestic Borrower and its Subsidiaries on a
consolidated basis, at a fair valuation, will exceed the debts and
liabilities, direct, subordinated, contingent or otherwise, of such
Borrower (individually) and the Domestic Borrower and its
Subsidiaries on a consolidated basis, respectively; (ii) the
present fair saleable value of the property of each Borrower
(individually) and the Domestic Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be
required to pay the probable liability of such Borrower
(individually) and the Domestic Borrower and its Subsidiaries on a
consolidated basis, respectively, on their debts and other
liabilities, direct, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (iii) each
Borrower (individually) and the Domestic Borrower and its
Subsidiaries on a consolidated basis will be able to pay their
debts and liabilities, direct, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and
matured; and (iv) each Borrower (individually) and the Domestic
Borrower and its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are now conducted and are
proposed to be conducted following the Closing Date.
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(b) None of the Domestic Borrower or the Borrowers
intends to, or believes that it or any of its Subsidiaries will,
incur debts beyond its ability to pay such debts as they mature,
taking into account the timing and amounts of cash to be received
by it or any such Subsidiary
and the timing and amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such
Subsidiary.
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Section 3.019 Labor
Matters. There are
no strikes pending or threatened against any Borrower or any of its Subsidiaries that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse
Effect. The hours worked and payments made to employees
of the Borrowers and
their Subsidiaries have not been in violation in any material
respect of the Fair Labor Standards Act (if applicable) or any other applicable law dealing with such
matters. All material payments due from any Borrower or any of its
Subsidiaries or for which any claim may be made
against any Borrower or any
of its Subsidiaries, on account of wages and employee health and
welfare insurance and other benefits have been paid or accrued as a
liability on the books of such Borrower or such Subsidiary
to the extent required by GAAP. Except as set forth
on Schedule
3.19,
consummation of the Transactions will not give rise to a right of
termination or right of renegotiation on the part of any union
under any collective
bargaining agreement to which any
Borrower or any of its Subsidiaries (or any predecessor) is a party or by
which any Borrower or any of
its Subsidiaries (or any predecessor) is bound, other than
collective bargaining agreements that, individually or in the
aggregate, are not material to the Borrowers and
their Subsidiaries, taken as a whole.
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Section 3.020 Insurance.
Schedule
3.20
sets forth a true, complete and
correct description of all material insurance maintained by or on
behalf of the Borrowers or their Subsidiaries as of the Closing
Date. As of such date, such insurance is in full force
and effect. Each Borrower believes that the insurance
maintained by or on behalf of such Borrower and its Subsidiaries is
adequate.
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Section 3.021 Anti-Terrorism and US
Sanctions Laws.
Neither the Domestic Borrower nor
any of its direct or indirect
Subsidiaries (i) is a person
whose property or interest in property is blocked or subject to
blocking pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or
transactions prohibited by section 2 of
such executive order, or is otherwise associated
with any such person in any manner violative of such section 2,
(iii) is a person on the list of “Specially Designated
Nationals” and “Blocked Persons” or subject to
the limitations or prohibitions under any other U.S. Department of
Treasury’s Office of Foreign Assets Control
(“OFAC”) regulation or executive order, or (iv) will
deal with property in which there is any interest of any country or
any national of any country designated under regulations issued
pursuant to the United States Office of Foreign Assets Control
Regulations (31 C.F.R. § 500, et seq), Comprehensive Iran
Sanctions, Accountability, and Divestment Act of 2010,
International Emergency Economic Powers Act (50 USC § 1701, et
seq), or the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.),
as may be amended or modified from time to time,
except (i) in the case of Foreign Subsidiaries, to the
extent such laws or
regulations do not apply or (ii) as authorized by OFAC in
writing.
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ARTICLE IV
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CONDITIONS OF
LENDING
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The obligations of (a) the
Lenders (including the
Swingline Lenders) to make
Loans and (b) any Issuing Bank to issue Letters of Credit or
increase the stated amounts of Letters of Credit hereunder (each, a
“Credit
Event”) are subject to
the satisfaction of the following conditions:
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Section 4.01 All Credit
Events. On the
date of each Borrowing and on the date of each issuance, amendment,
extension or renewal of a Letter of Credit:
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(a) The Administrative Agent shall have received, in
the case of a Borrowing, a Borrowing Request as required by
Section 2.03 (or a Borrowing Request shall have been deemed
given in accordance with the last paragraph of Section 2.03) or, in the case of the issuance of a Letter of
Credit, the applicable Issuing Bank and the Administrative Agent
shall have received a notice requesting the issuance of such Letter
of Credit as required by Section 2.05(b).
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(b) The
representations and warranties set forth in
Article III
hereof shall be true and correct in
all material respects on and as of the date of such Borrowing or
issuance, amendment, extension or renewal of a Letter of Credit
(other than an amendment, extension or renewal of a Letter of
Credit without any increase in the stated amount of such Letter of
Credit), as applicable, with the same effect as though made on and
as of such date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date).
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(c) At the time of
and immediately after such Borrowing or issuance, amendment,
extension or renewal of a Letter of Credit (other than an
amendment, extension or renewal of a Letter of Credit without any
increase in the stated amount of such Letter of Credit), as
applicable, no Event of Default or Default shall have occurred and
be continuing.
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Each Borrowing and each issuance,
amendment, extension or renewal of a Letter of Credit (other than
an amendment, extension or renewal of a Letter of Credit without
any increase in the stated amount of such Letter of Credit) made by
any Borrower shall be deemed to constitute a representation and
warranty by such Borrower on the date of such Borrowing, issuance,
amendment, extension or renewal as applicable, as to the matters
specified in paragraphs (b) and (c) of
this Section
4.01.
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Section 4.02 First Credit
Event. On the
Closing Date:
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(a) The Administrative Agent (or its counsel) shall
have received from each party hereto either (i) a counterpart of
this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this
Agreement.
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(b) The
Administrative Agent shall have received, on behalf of itself, the
Collateral Agent, the Lenders and each Issuing Bank on the Closing
Date, favorable written opinions of Gibson, Dunn & Crutcher
LLP, counsel for the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent (and each Loan Party
hereby instructs its counsel to deliver such opinion) (A) dated the
Closing Date, (B) addressed to each Issuing Bank on the Closing
Date, the Administrative Agent, the Collateral Agent and the
Lenders and (C) in form and substance reasonably satisfactory to
the Administrative Agent and covering such other matters relating
to the Loan Documents as the Administrative Agent shall reasonably request.
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(c) All legal matters incident to this Agreement,
the borrowings and extensions of credit hereunder and the other
Loan Documents shall be reasonably satisfactory to the
Administrative Agent, to the Lenders and to each Issuing Bank on
the Closing Date.
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(d) The
Administrative Agent shall have received, in the
case of each Loan Party,
each of the items
referred to in clauses (i),
(ii), (iii) and (iv) below:
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(i) a copy of the certificate or articles of
incorporation, partnership agreement or limited liability
agreement, including all amendments thereto, or other relevant
constitutional documents under applicable law of each Loan Party,
(A) in the
case of a corporation, certified as
of a recent date by the Secretary of State (or other similar
official) or, with respect to any Foreign Subsidiary, an officer or
director and a certificate as to the good standing (to the extent
such concept or a similar concept exists under the laws of such
jurisdiction) of each such Loan Party as of a recent date from such
Secretary of State (or other similar official) or (B) in the case
of a partnership of or limited liability company, certified by the
Secretary or Assistant Secretary of each such Loan
Party;
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(ii) a certificate of the Secretary or Assistant
Secretary or similar officer of each Loan Party, in each
case dated the Closing Date and certifying:
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(A)
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that attached thereto is a true and
complete copy of the by-laws (or partnership agreement, memorandum
and articles of association, limited liability company agreement or
other equivalent governing documents) of such Loan Party as in
effect on the Closing Date and at all times since a date prior to
the date of the resolutions described in clause (B) below,
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(B)
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that
attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors (or equivalent governing body) of
such Loan Party (or its managing general partner or managing
member) authorizing the execution, delivery and performance of the
Loan Documents to which such Person is a party and, in the case of
a Borrower, the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force
and effect on the Closing Date,
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(C)
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that the certificate or articles of
incorporation, partnership agreement or limited liability agreement
of such Loan Party has not been amended since the date of the last
amendment thereto disclosed pursuant to clause (i) above,
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(D)
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as to the incumbency and specimen
signature of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of such Loan
Party, and
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(E)
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as to the absence of any pending
proceeding for the dissolution or liquidation of such Loan Party
or, to the knowledge of such Person, threatening the existence of
such Loan Party;
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(iii) a certificate of another officer or as to the
incumbency and specimen signature of the Secretary or Assistant
Secretary or director or similar officer executing the certificate
pursuant to clause (ii) above; and
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(iv) such other documents as the Administrative Agent
may reasonably request (including without limitation, tax
identification numbers and
addresses).
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(e) The Collateral
and Guarantee Requirement with respect to items to be completed as
of the Closing Date shall have been satisfied.
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(f) The Lenders shall have received the financial
statements referred to in Section 3.05.
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(g) After giving
effect to the Transactions to
be completed on the Closing Date, the
Borrowers and their Subsidiaries shall have no Indebtedness outstanding other than Indebtedness permitted
pursuant to Section
6.01.
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(h) The Lenders shall have received a solvency
certificate substantially in
the form of Exhibit G
and signed by the chief financial
officer or another Responsible Officer of the Domestic Borrower
confirming the solvency of each Borrower and its Subsidiaries on a
consolidated basis after giving effect to the
Transactions.
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(i) There has not
been any Material Adverse Effect, after giving effect to the
Transactions, taken as a whole, since December 31,
2012.
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(j) No
provision of any applicable law or regulation, and no judgment,
injunction, order or decree shall prohibit the consummation of the
Transactions, and all material actions by or in respect of or
material filings with any Governmental Authority required to permit
the consummation of the Transactions shall have been taken, made or
obtained, except for any such actions or filings the failure to
take, make or obtain would not be material to each Borrower and its
Subsidiaries, taken as a whole.
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(k) The Agents shall
have received all fees payable thereto or to any Lender on or prior
to the Closing Date and, to the extent invoiced, all other amounts
due and payable pursuant to the Loan Documents on or prior to the
Closing Date, including, to the extent invoiced, reimbursement or
payment of all reasonable out-of-pocket expenses (including
reasonable fees, charges and disbursements of Vinson & Elkins L.L.P.
and local counsel) required to be
reimbursed or paid by the Loan Parties hereunder or under any Loan
Document.
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(l) The Administrative Agent shall have received a
certificate signed by a Responsible Officer of the Domestic
Borrower as to the matters set forth in clauses (g),
(i), and (j) of
this Section
4.02.
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(m) The Administrative Agent shall have received a
report, dated as of the Closing Date, setting forth a list of all
letters of credit or bank guarantees issued pursuant to
Section 6.01(p), including (i) whether each such letter of credit
or bank guarantee is unsecured or secured and (ii) with respect to
any secured letters of credit or bank guarantees,
together with a detailed description
of the collateral with respect thereto.
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The
Administrative Agent shall notify the Borrower and the Lenders of
the Closing Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations
of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to
Section 12.02) at or prior to 2:00 p.m., New York City time,
on October
1, 2013 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such
time).
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Section 4.03 Conditions Precedent
to the Initial Borrowing of Each Additional
Borrower. The
obligation of any Lender to make an initial advance of any Loan to,
or any Issuing Bank to make an initial issuance of any Letter of
Credit for the account of, each Additional Foreign Borrower
following its designation as a Borrower hereunder pursuant to Section 2.23, is subject to the following:
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(a) The Administrative Agent (or its counsel) shall
have received a counterpart of the Credit Agreement Supplement
signed on behalf of such Borrower, in substantially the form
of Exhibit H
hereto.
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(b) The Administrative Agent shall have received, on
behalf of itself, the Collateral Agent, the Lenders and each
Issuing Bank, favorable legal opinions, dated as of the date of
such initial advance or issuance, relating to such Borrower and as
otherwise described in Section 4.02(b).
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(c) The Administrative Agent shall have received
each of the items referred to in clauses (i),
(ii), (iii) and (iv) of Section
4.02(d) with respect to such
Borrower, each certified and dated as of the date of such initial
advance or issuance.
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ARTICLE V
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AFFIRMATIVE COVENANTS
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Each of the Borrowers covenants and
agrees with each Lender that so long as this Agreement shall remain
in effect and until the commitments have been terminated and the
principal of and interest on each Loan, all Fees and all other
expenses or amounts payable under any Loan Document shall have been
paid in full and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in
full, unless the Required Lenders shall otherwise consent in
writing, each the Borrowers will, and will cause each of their
Subsidiaries to:
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Section 5.01 Existence; Businesses
and Properties.
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(a) Do or cause to
be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except as otherwise expressly
permitted under Section
6.05, and except for the
liquidation or dissolution of Subsidiaries if the assets of such
Subsidiaries to the extent they exceed estimated liabilities are
acquired by the Domestic Borrower or a Wholly Owned Subsidiary of
the Domestic Borrower in such liquidation or dissolution;
provided
that Subsidiaries that are Loan
Parties may not be liquidated into Subsidiaries that are not Loan
Parties.
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(b) Do or cause to
be done all things necessary to (i) obtain, preserve, renew, extend
and keep in full force and effect the permits, franchises,
authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary to
the normal conduct of its business, (ii) comply in all material
respects with all material applicable laws, rules, regulations
(including any zoning, building, ordinance, code or approval or any
building permits or any restrictions of record or agreements
affecting the Mortgaged Properties) and judgments, writs,
injunctions, decrees and orders of any Governmental Authority,
whether now in effect or hereafter enacted and (iii) at all
times
maintain and preserve all property
necessary to the normal conduct of its business and keep such
property in good repair, working order and condition and from time
to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection
therewith, if any, may be properly conducted at all times (in each
case except as expressly permitted by this Agreement); in each case
in this paragraph (b)
except where the failure would not
reasonably be expected to have a Material Adverse
Effect.
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(a) Keep its insurable properties insured at all
times by financially sound and reputable insurers in such amounts
as shall be customary for similar businesses and maintain such
other reasonable insurance (including, to the extent consistent
with past practices, self-insurance), of such types, to such extent
and against such risks, as is customary with companies in the same
or similar businesses and maintain such other insurance as may be
required by law or any other Loan Document.
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(b) Cause all such property and casualty insurance
policies with respect to the Mortgaged Properties located in the
United States to be endorsed or otherwise amended to include a
“standard” or “New York” lender’s
loss payable endorsement, in form and substance reasonably
satisfactory to the Administrative Agent and the Collateral Agent,
which endorsement shall provide that, from and after the Closing
Date, if the insurance carrier shall have received written notice
from the Administrative Agent or the Collateral Agent of the
occurrence of an Event of Default, the insurance carrier shall pay
all proceeds otherwise payable to any Borrower or the Loan Parties
under such policies directly to the Collateral Agent; cause all
such policies to provide that neither any Borrower, the
Administrative Agent, the Collateral Agent nor any other party
shall be a coinsurer thereunder and to contain a “Replacement
Cost Endorsement,” without any deduction for depreciation,
and such other provisions as the Administrative Agent or the
Collateral Agent may reasonably (in light of a Default or a
material development in respect of the insured Mortgaged Property)
require from time to time to protect their interests; deliver
original or certified copies of all such policies or a certificate
of an insurance broker to the Collateral Agent; cause each such
policy to provide that it shall not be canceled or not renewed upon
less than 30 days’ prior written notice thereof by the
insurer to the Administrative Agent and the Collateral Agent;
deliver to the Administrative Agent and the Collateral Agent, prior
to the cancellation or nonrenewal of any such policy of insurance,
a copy of a renewal or replacement policy (or other evidence of
renewal of a policy previously delivered to the Administrative
Agent and the Collateral Agent), or insurance certificate with
respect thereto, together with evidence satisfactory to the
Administrative Agent and the Collateral Agent of payment of the
premium therefor.
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(c) If at any time the area in which the Premises
(as defined in the Mortgages) are located is designated a
“flood hazard area” in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such reasonable total
amount as the Administrative Agent or the Collateral Agent may from
time to time reasonably require, and otherwise to ensure compliance
with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as it may be amended from time to
time.
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(d) With respect to each Mortgaged Property located
in the United States, carry and maintain comprehensive general
liability insurance including the “broad form CGL
endorsement” (or equivalent coverage) and coverage on an
occurrence basis against claims made for personal injury (including
bodily injury, death and property damage) and umbrella liability
insurance against any and all claims, in each case in amounts and
against such risks as are customarily maintained by companies
engaged in the same or similar industry operating in the same or
similar locations naming the Collateral Agent as an additional
insured, on forms reasonably satisfactory to the Collateral
Agent.
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(e) Notify the Administrative Agent and the
Collateral Agent promptly whenever any separate insurance
concurrent in form or contributing in the event of loss with that
required to be maintained under this Section 5.02 is taken out by any Borrower or any of its
Subsidiaries; and promptly deliver to the Administrative Agent and
the Collateral Agent a duplicate original copy of such policy or
policies, or an insurance certificate with respect
thereto.
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(f) In connection with the covenants set forth in
this Section
5.02, it is understood and
agreed that:
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(i) none of the Agents, the
Lenders, the Issuing Bank and their respective agents or employees
shall be liable for any loss or damage insured by the insurance
policies required to be maintained under this Section 5.02, it being understood that (A) each Borrower and
the other Loan Parties shall look solely to their insurance
companies or any parties other than the aforesaid parties for the
recovery of such loss or damage and (B) such insurance companies
shall have no rights of subrogation against the Agents, the
Lenders, any Issuing Bank or their agents or
employees. If, however, the insurance policies do not
provide waiver of subrogation rights against such parties, as
required above, then each of the Borrowers hereby agree, to the
extent permitted by law, to waive, and to cause each of their
Subsidiaries to waive, its right of recovery, if any, against the
Agents, the Lenders, any Issuing Bank and their agents and
employees; and
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(ii) the designation of any
form, type or amount of insurance coverage by the Administrative
Agent, the Collateral Agent under this Section 5.02 shall in no event be deemed a representation,
warranty or advice by the Administrative Agent, the Collateral
Agent or the Lenders that such insurance is adequate for the
purposes of the business of the Borrowers and their Subsidiaries or
the protection of their properties.
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Section 5.03 Taxes. Pay
and discharge promptly when due all material Taxes, assessments and
governmental charges or levies imposed upon it or upon its income
or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part
thereof; provided, however, that such payment and discharge shall not be
required with respect to any such Tax, assessment, charge, levy or
claim so long as (a) the validity or amount thereof shall be
contested in good faith by appropriate proceedings, and the
affected Borrower or the affected Subsidiary, as applicable, shall
have set aside on its books reserves in accordance with GAAP with
respect thereto or (b) the aggregate amount of such Taxes,
assessments, charges, levies or claims does not exceed
$5.0 million.
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Section 5.04 Financial Statements,
Reports, etc. Furnish
to the Administrative Agent (which will promptly furnish such
information to the Lenders):
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(a) within 90 days
(or such shorter period as the SEC shall specify for the
filing of Annual Reports on
Form 10-K) after the end of
each fiscal year, a consolidated balance sheet and related
statements of operations, cash flows and owners’ equity
showing the financial position of Domestic Borrower and its
Subsidiaries as of the close of such fiscal year and the
consolidated results of their operations during such year and
setting forth in comparative form the corresponding figures for the
prior fiscal year, all audited by independent public accountants of
recognized national standing reasonably acceptable to the
Administrative Agent and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect)
to the effect that such consolidated financial statements fairly
present, in all material respects, the financial position and
results of operations of Domestic Borrower and its Subsidiaries on
a consolidated basis in accordance with GAAP (it being understood
that the delivery by Domestic Borrower of Annual Reports on Form
10-K of Domestic Borrower and its consolidated
Subsidiaries shall satisfy the requirements of this
Section 5.04(a) to
the extent such Annual Reports include the information specified
herein).
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(b) within 45 days
(or such shorter period as the SEC shall specify for the
filing of Quarterly Reports
on Form 10-Q) after the end
of each of the first three fiscal quarters of each fiscal year, a
consolidated balance sheet and related statements of operations and
cash flows showing the financial position of Domestic Borrower and
its Subsidiaries as of the close of such fiscal quarter and the
consolidated results of their operations during such fiscal quarter
and the then-elapsed portion of the fiscal year and setting forth
in comparative form the corresponding figures for the corresponding
periods of the prior fiscal year, all certified by a Financial
Officer of Domestic Borrower, on behalf of Domestic Borrower, as
fairly presenting, in all material respects, the financial position
and results of operations of Domestic Borrower and its Subsidiaries
on a consolidated basis in accordance with GAAP (subject to normal
year-end audit adjustments and the absence of footnotes) (it being
understood that the delivery by Domestic Borrower
of Quarterly Reports on Form
10-Q of Domestic Borrower and
its consolidated Subsidiaries shall satisfy the requirements of
this Section 5.04(b)
to the extent such Quarterly Reports
include the information specified herein);
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(c) (i)
concurrently with any delivery of financial statements under (a) or
(b) above, a certificate of a Financial Officer of Domestic
Borrower (A)
certifying that no Event of Default or Default has occurred or, if
such an Event of Default or Default has occurred, specifying the
nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto and (B) setting
forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.06(e), 6.11 and 6.12 and
(ii) concurrently with any delivery of financial
statements under (a) above, a certificate of the accounting firm
opining on or certifying such statements stating whether they
obtained knowledge during the course of their examination of such
statements of any Default or Event of Default (which certificate
may be limited to accounting matters and disclaims responsibility
for legal interpretations);
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(d) promptly after the same become publicly
available, copies of all periodic and other publicly available
reports, proxy statements and, to the extent requested by
the
Administrative Agent, other
materials filed by any Borrower or any of the Subsidiaries with the
SEC or distributed to its stockholders generally, as
applicable;
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(e) if, as a result of any change in accounting
principles and policies from those as in effect on the Closing
Date, the consolidated financial statements of Domestic Borrower
and its Subsidiaries delivered pursuant to paragraphs
(a) or (b) above
will differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such clauses
had no such change in accounting principles and policies been made,
then, together with the first delivery of financial statements
pursuant to paragraph (a) and (b) above following such change, a schedule prepared
by a Financial Officer on behalf of Domestic Borrower reconciling
such changes to what the financial statements would have been
without such changes;
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(f) within 90 days after the beginning of each
fiscal year, an operating and capital expenditure budget, in form
satisfactory to the Administrative Agent prepared by the Domestic
Borrower for each of the four fiscal quarters of such fiscal year
prepared in reasonable detail, of the Domestic Borrower and the
Subsidiaries, accompanied by the statement of a Financial Officer
of the Domestic Borrower to the effect that, to the best of his
knowledge, the budget is a reasonable estimate for the period
covered thereby;
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(g) annually, upon
the reasonable request of the Administrative Agent, Perfection
Certificates (or, to the extent such request relates to specified
information contained in the Perfection Certificates, such
information) reflecting all changes since the date of the
information most recently received pursuant to this
paragraph (g)
or Section 5.10(d);
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(h) promptly, a copy of all reports submitted to the
Board of Directors (or any committee thereof) of any Borrower or
any Subsidiary in connection with any material interim or special
audit made by independent accountants of the books of any Borrower
or any Subsidiary;
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(i) promptly, from time to time, such other
information regarding the operations, business affairs and
financial condition of any Borrower or any of the Subsidiaries, or
compliance with the terms of any Loan Document, or such
consolidating financial statements, as in each case the
Administrative Agent may reasonably request (for itself or on
behalf of any Lender);
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(j) promptly upon request by the Administrative
Agent, copies of: (i) each Schedule B
(Actuarial Information) to the
annual report (Form 5500 Series) filed with the Internal Revenue
Service with respect to a Plan; (ii) the most recent actuarial
valuation report for any Plan; (iii) all notices received from a
Multiemployer Plan sponsor or a Plan sponsor or any governmental
agency concerning an ERISA Event; and (iv) such other documents or
governmental reports or filings relating to any Plan or
Multiemployer Plan as the Administrative Agent shall reasonably request; and
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(k) concurrently with any delivery of financial
statements under (a) above, a
report, dated as of
the close of such fiscal
year, setting forth a list
of all letters of credit or bank guarantees issued pursuant
to Section
6.01(p),
including (i) whether
each such letter of credit or
bank guarantee is unsecured or
secured and (ii) with respect to any secured letters of credit or
bank guarantees, a detailed description of the collateral with
respect thereto.
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Section 5.05 Litigation and Other
Notices. Furnish
to the Administrative Agent written notice of the following
promptly after any Responsible Officer of any Borrower obtains
actual knowledge thereof:
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(a) any Event of
Default or Default, specifying the nature and extent thereof and
the corrective action (if any) proposed to be taken with respect
thereto;
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(b) the filing or commencement of, or any written
threat or written notice of intention of any Person to file or
commence, any action, suit or proceeding, whether at law or in
equity or by or before any Governmental Authority or in
arbitration, against any Borrower or any of the Subsidiaries as to
which an adverse determination is reasonably probable and which, if
adversely determined, could reasonably be expected to have a
Material Adverse Effect;
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(c) any other development specific to any
Borrower,
Subsidiary
or ERISA Affiliate that is
not a matter of general public knowledge and that has had, or could
reasonably be expected to have, a Material Adverse Effect;
and
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(d) the occurrence of any ERISA Event,
that, together with all other ERISA Events that have
occurred could reasonably be expected to have a Material Adverse
Effect.
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Section 5.06 Compliance with
Laws.
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(a) Comply with all laws,
rules, regulations and orders of any Governmental Authority
applicable to it or its property (owned or leased), except where
the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse
Effect; provided that this Section 5.06(a) shall
not apply to Environmental Laws, which are the subject of
Section 5.09, or to laws related to Taxes, which are the
subject of Section
5.03.
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(b) Maintain in effect and enforce policies and
procedures designed to ensure compliance in all material respects
by the Borrower, its Subsidiaries and their respective directors,
officers, employees and agents with (i) the Foreign Corrupt
Practices Act of 1977, as amended, (15 U.S.C. §§ 78dd-1,
et seq.) and (ii) any Sanctions, except (x) in the case of Foreign
Subsidiaries, to the extent such laws or regulations do not apply
or (y) as authorized by a Sanctions Authority in
writing.
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Section 5.07 Maintaining Records;
Access to Properties and Inspections. Maintain all financial records in
accordance with GAAP and permit any Persons designated by the
Administrative Agent or, upon the occurrence and during the
continuance of an Event of Default, any Lender to visit and inspect
the financial records and the properties of any Borrower or any of
the Subsidiaries at reasonable times, upon reasonable prior notice
to such Borrower, and as often as reasonably requested and to make
extracts from and copies of such financial records, and permit any
Persons designated by the Agents or, upon the occurrence and during
the continuance of an Event of Default, any Lender upon reasonable
prior notice to such Borrower to discuss the affairs, finances and
condition of such Borrower or any of the Subsidiaries with the
officers
thereof and independent accountants
therefor (subject to reasonable requirements of confidentiality,
including requirements imposed by law or by contract).
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Section 5.08 Use of
Proceeds. Use the
proceeds of the Loans and the issuance of Letters of Credit solely
for the purposes described in Section 3.11.
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Section 5.09 Compliance with
Environmental Laws. Comply, and make commercially
reasonable efforts to cause all lessees and other Persons occupying
its properties to comply, with all Environmental Laws applicable to
its operations and properties; and obtain and renew all material
authorizations and permits required pursuant to Environmental Law
for its operations and properties, in each case in accordance with
Environmental Laws, except, in each case with respect to
this Section
5.09, to the extent the
failure to do so could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse
Effect.
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Section 5.010 Further
Assurances.
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(a) Execute any and all further documents, financing
statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing
statements, fixture filings, Mortgages and other documents and
recordings of Liens in stock registries), that may be required
under any applicable law, or that the Administrative Agent may
reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the
applicable Loan Parties and provide to the Administrative Agent,
from time to time upon reasonable request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the
Security Documents.
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(b) In the case of
the Domestic Borrower, grant and cause each of the Domestic
Subsidiary Loan Parties to grant to the Collateral Agent security
interests and Mortgages in such Material Real Property located in
the United States of the Domestic Borrower or such Domestic
Subsidiary Loan Party as are acquired after the Closing Date and
satisfy the requirements of clause (i) of the definition of
Collateral and Guarantee Requirement (other than clause (iii)) with
respect to such Material Real Properties within ninety (90) days
after the date such Material Real Property is
acquired. In the case
of any Foreign Borrower (other than the Spanish Borrower), grant
and cause each of its respective Foreign Subsidiary Loan Parties to
grant to the Collateral Agent security interests and Mortgages in
such Material Real Property of such Foreign Borrower or such
Foreign Subsidiary Loan Party as are acquired after the Closing
Date to the extent and in the manner set forth in clause (j) of the
definition of Collateral and Guarantee Requirement with respect to
such Material Real Properties within ninety (90) days after the
date such Material Real Property is acquired. With respect to each of the items
identified in this clause (b) that
are required to be delivered within ninety (90) days after the date
the applicable Material Real Property is acquired, the
Administrative Agent, in each case, may (in its sole discretion)
extend such date.
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(c) If any
additional direct or indirect Subsidiary of the Domestic Borrower
becomes a Material Subsidiary or a Subsidiary Loan Party after the
Closing Date within five Business Days after the date such
Subsidiary becomes a Material Subsidiary or a Subsidiary Loan
Party, notify the Administrative Agent and the Lenders thereof and,
within sixty (60)
Business Days after the date such
Subsidiary becomes a Material Subsidiary or a Subsidiary Loan
Party, cause the Collateral and Guarantee Requirement to be
satisfied with respect to such Subsidiary and with respect to any
Equity Interest in or Indebtedness of such Subsidiary owned by or
on behalf of any Loan Party.
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(d) In the case of
any Loan Party, (i) furnish to the Collateral Agent prompt written
notice of any change (A) in such Loan Party’s corporate or
organization name, (B) in such Loan Party’s identity or
organizational structure or (C) in such Loan Party’s
organizational identification number; provided that no Loan Party shall effect or permit any
such change unless all filings have been made, or will have been
made within any statutory period, under the UCC or otherwise that
are required in order for the Collateral Agent to continue at all
times following such change to have a valid, legal and perfected
security interest in all the Collateral for the benefit of the
Secured Parties and (ii) promptly notify the Administrative Agent
if any material portion of the Collateral is damaged or
destroyed.
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(e) The Collateral and Guarantee Requirement and the
other provisions of this Section 5.10 need
not be satisfied if such action would violate Section 9.23. In addition, the Collateral and
Guarantee Requirement and the other provisions of this
Section 5.10 need not be satisfied with respect to (i) any
Equity Interests acquired after the Closing Date in accordance with
this Agreement if, and to the extent that, and for so long as (A)
doing so would violate applicable law or a contractual obligation
binding on such Equity Interests, (B) such law or obligation
existed at the time of the acquisition thereof and was not created
or made binding on such Equity Interests in contemplation of or in
connection with the acquisition of such Subsidiary
(provided that the foregoing clause (B) shall not apply in
the case of a joint venture, including a joint venture that is a
Subsidiary) and (C) such violation of a contractual obligation is
not rendered invalid by the relevant provisions of the UCC
or for which a waiver has been
obtained, (ii) any assets
acquired after the Closing Date, to the extent that, and for so
long as, taking such actions would violate a contractual obligation
binding on such assets that existed at the time of the acquisition
thereof and was not created or made binding on such assets in
contemplation or in connection with the acquisition of such assets
(except in the case of assets acquired with Indebtedness permitted
pursuant to Section
6.01(i) that is secured by a
Lien permitted pursuant to Section 6.02(i)) or (iii) any Equity Interests in or any asset
of a Foreign Subsidiary if the Domestic Borrower demonstrates to
the Collateral Agent and the Collateral Agent determines (in its
reasonable discretion) that the cost of the satisfaction of the
Collateral and Guarantee Requirement of this Section 5.10 with respect thereto exceeds the value of the
security offered thereby; provided that, upon the reasonable request of the
Collateral Agent, the Domestic Borrower shall, and shall cause any
applicable Subsidiary to, use commercially reasonable efforts to
have waived or eliminated any contractual obligation of the types
described in clauses (i) and (ii) above, other than those set forth
in a joint venture agreement to which the Domestic Borrower or any
Subsidiary is a party.
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Section 5.011 Fiscal
Year. In the case
of the Domestic Borrower and the Subsidiaries, cause their fiscal
year to end on December 31.
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Section 5.012 Proceeds of Certain
Dispositions. If,
as a result of the receipt of any cash proceeds by any Borrower or
any Subsidiary in connection with any sale, transfer, lease or
other disposition of any asset, including any Equity Interest, the
Domestic Borrower would be required
by the terms of the
2021
Senior Subordinated
Note Indenture to
make an offer to purchase any 2021
Senior Subordinated
Notes, then, in the case of a
Borrower or a Subsidiary, prior to the first day on which the
Domestic Borrower would be required to commence such an offer to
purchase, (i) prepay Loans in
accordance with Section
2.12 or (ii) acquire assets,
Equity Interests or other securities in a manner that is permitted
by Section 6.04
or Section 6.05, in each case in a manner that will eliminate
any such requirement to make such an offer to purchase.
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ARTICLE VI
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NEGATIVE
COVENANTS
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Each of the Borrowers covenants and
agrees with each Lender that, so long as this Agreement shall
remain in effect and until the Commitments have been terminated and
the principal of and interest on each Loan, all Fees and all other
expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in
full, unless the Required Lenders shall otherwise consent in
writing, none of the Borrowers will, or will cause or permit any of
their Subsidiaries to:
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Section 6.01 Indebtedness. Incur,
create, assume or permit to exist any Indebtedness,
except:
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(a) Indebtedness
existing on the Closing Date and set forth on Schedule
6.01
and any Permitted Refinancing
Indebtedness incurred to Refinance such Indebtedness (other than
intercompany Indebtedness Refinanced with Indebtedness owed to a
Person not affiliated with the Domestic Borrower or any
Subsidiary);
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(b) Indebtedness created hereunder and under the
other Loan Documents;
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(c) Indebtedness of the Domestic Borrower and the
Subsidiaries pursuant to Swap Agreements permitted by
Section 6.13;
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(d) Indebtedness owed to (including obligations in
respect of letters of credit or bank guarantees or similar
instruments for the benefit of) any Person providing workers’
compensation, health, disability or other employee benefits or
property, casualty or liability insurance to the Domestic Borrower
or any Subsidiary, pursuant to reimbursement or indemnification
obligations to such Person, provided that upon the incurrence of Indebtedness with
respect to reimbursement obligations regarding workers’
compensation claims, such obligations are reimbursed not later than
30 days following such incurrence;
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(e) Indebtedness of
any Borrower or any Subsidiary to the extent permitted by
Section 6.04, provided that Indebtedness of any Loan Party to any
Subsidiary that is not a Loan Party (the “Subordinated
Intercompany Debt”)
shall be subordinated to the Obligations on terms reasonably
satisfactory to the
Administrative Agent;
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(f) Indebtedness in
respect of performance bonds, warranty bonds, bid bonds, appeal
bonds, surety bonds and completion or performance guarantees and
similar obligations, in each case provided in the ordinary course
of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business and
Indebtedness arising
out of advances on exports, advances
on imports, advances on trade receivables, customer prepayments and
similar transactions in the ordinary course of business and
consistent with past practice;
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(g) Indebtedness arising from the honoring by a bank
or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course
of business or other cash management services in the ordinary
course of business, provided that (i) such
Indebtedness (other than credit or purchase cards) is extinguished
within three Business Days of its incurrence and
(ii) such Indebtedness in respect of credit or
purchase cards is extinguished within 60 days from its
incurrence;
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(h) (i) Indebtedness
of a Subsidiary acquired after the Closing Date or a Person merged
into or consolidated with a Borrower or any Subsidiary after the
Closing Date and Indebtedness assumed in connection with the
acquisition of assets, which Indebtedness in each case, exists at
the time of such acquisition, merger or consolidation and is not
created in contemplation of such event and where such acquisition,
merger or consolidation is permitted by this Agreement and (ii) any
Permitted Refinancing Indebtedness incurred to Refinance such
Indebtedness, provided that the aggregate principal amount of such
Indebtedness at the time of, and after giving effect to, such
acquisition, merger or consolidation, such assumption or such
incurrence, as applicable (together with Indebtedness outstanding
pursuant to this paragraph (h),
paragraph (i) of
this Section 6.01
and the Remaining Present Value of
outstanding leases permitted under Section 6.03), would not exceed 5.00% of
Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such acquisition, merger or
consolidation, such assumption or such incurrence, as applicable,
for which financial statements have been delivered pursuant
to Section
5.04;
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(i) Capital Lease
Obligations, mortgage financings and purchase money Indebtedness
incurred by the Domestic Borrower or any Subsidiary prior to or
within 270 days after the acquisition, lease or improvement of the
respective asset permitted under this Agreement in order to finance
such acquisition or improvement, and any Permitted Refinancing
Indebtedness in respect thereof, in an aggregate principal amount
that at the time of, and after giving effect to, the incurrence
thereof (together with Indebtedness outstanding pursuant to
paragraph (h)
of this Section 6.01, this paragraph (i) and
the Remaining Present Value of leases permitted under
Section 6.03) would not exceed 5.00% of
Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such incurrence for which
financial statements have been delivered pursuant to
Section 5.04;
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(j) Capital Lease Obligations incurred by the
Domestic Borrower or any Subsidiary in respect of any Sale and
Lease-Back Transaction that is permitted under Section 6.03;
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(k) other
Indebtedness, in an aggregate principal amount at any time
outstanding pursuant to this paragraph (k) not in
excess of $100.0
million;
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(l) Indebtedness of
the Domestic Borrower
pursuant to the 2021 Senior
Subordinated Notes and any Permitted Refinancing
Indebtedness incurred to
Refinance such Indebtedness
in the form of Permitted Subordinated Debt
Securities;
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(m) Guarantees (i)
by the Loan Parties of the Indebtedness of the Domestic Borrower
described in paragraph (l), (ii)
by any Loan Party of any Indebtedness of any Borrower or any Loan
Party expressly permitted to be incurred under this Agreement,
(iii) by any Borrower or any Subsidiary of Indebtedness otherwise
expressly permitted hereunder of any Borrower or any Subsidiary
that is not a Loan Party to the extent permitted by
Section 6.04, (iv) by any Subsidiary that is not a Loan
Party of Indebtedness of another Subsidiary that is not a Loan
Party; provided that all Foreign Subsidiaries may guarantee
obligations of other Foreign Subsidiaries under ordinary course
cash management obligations, and (v) by any Borrower of
Indebtedness of Foreign Subsidiaries so long as such Indebtedness
is permitted to be incurred under Section 6.01(a), (k) or (s);
provided that Guarantees by any Loan Party under
this Section 6.01(m)
of any other Indebtedness of a
Person that is subordinated to other Indebtedness of such Person
shall be expressly subordinated to the Obligations on terms
consistent with those used, or to be used, for Subordinated
Intercompany Debt;
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(n) Indebtedness arising from agreements of the
Domestic Borrower or any Subsidiary providing for indemnification,
adjustment of purchase price, earn outs or similar obligations, in
each case, incurred or assumed in connection with the disposition
of any business, assets or a Subsidiary, other than Guarantees of
Indebtedness incurred by any Person acquiring all or any portion of
such business, assets or a Subsidiary for the purpose of financing
such acquisition;
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(o) Indebtedness in
connection with Permitted Receivables Financings;
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(p) Indebtedness in
respect of letters of credit
or bank guarantees (other than Letters of Credit
issued pursuant to
Section 2.05) having an aggregate face amount not in excess
of $400.0 million;
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(q) Indebtedness supported by a Letter of Credit, in
a principal amount not in excess of the stated amount of such
Letter of Credit;
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(r) Indebtedness of
Foreign Subsidiaries that are
not Foreign Loan Parties (including letters of credit or bank guarantees
(other than Letters of Credit issued pursuant to
Section 2.05)),
in an aggregate amount
not to exceed the
greater
of $250 million and 7.5% of
Consolidated Total Assets outstanding at any
time;
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(t) all premium (if any), interest (including
post-petition interest), fees, expenses, charges and additional or
contingent interest on obligations described in paragraphs
(a) through (s) above;
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(u) other unsecured Indebtedness of
the Domestic Borrower
or any Domestic Subsidiary Loan Party; provided that after
giving pro forma effect to the incurrence of such Indebtedness and
the concurrent repayment of any Indebtedness with the proceeds thereof, the Domestic Borrower would be in compliance with Section 6.11 and 6.12;
and
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(v) Indebtedness assumed in connection with the acquisition of the
Spanish Borrower in an
aggregate principal amount not to exceed $275.0 million
and any Permitted Refinancing
Indebtedness incurred to Refinance such
Indebtedness.
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Section 6.02 Liens. Create,
incur, assume or permit to exist any Lien on any property or assets
(including stock or other securities of any Person, including any
Subsidiary) at the time owned by it or on any income or revenues or
rights in respect of any thereof, except:
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(a) Liens on
property or assets of the Domestic Borrower and the Subsidiaries
existing on the Closing Date and set forth on Schedule
6.02(a);
provided that such Liens shall secure only those
obligations that they secure on the Closing Date (and extensions,
renewals and refinancings of such obligations permitted by
Section 6.01(a)) and shall not subsequently apply to any other
property or assets of the Domestic Borrower or any
Subsidiary;
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(b) any Lien created
under the Loan Documents or permitted in respect of any Mortgaged
Property by the terms of the applicable Mortgage;
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(c) any Lien on any property or asset of the
Domestic Borrower or any Subsidiary securing Indebtedness or
Permitted Refinancing Indebtedness permitted by Section 6.01(h), provided that (i) such Lien does not apply to any other
property or assets of the Domestic Borrower or any of the
Subsidiaries not securing such Indebtedness at the date of the
acquisition of such property or asset (other than after-acquired
property subjected to a Lien securing Indebtedness and other
obligations incurred prior to such date and which Indebtedness and
other obligations are permitted hereunder that require a pledge of
after-acquired property, it being understood that such requirement
shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition), (ii)
such Lien is not created in contemplation of or in connection with
such acquisition and (iii) in the case of a Lien securing Permitted
Refinancing Indebtedness, such Lien is permitted in accordance with
clause (e) of the definition of the term “Permitted
Refinancing Indebtedness”;
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(d) Liens for Taxes,
assessments or other governmental charges or levies not yet
delinquent or that are being contested in compliance with
Section 5.03;
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(e) Liens imposed by
law (including, without limitation, Liens in favor of customers for
equipment under order or in respect of advances paid in connection
therewith) such as landlord’s, carriers’,
warehousemen’s, mechanics’, materialmen’s,
repairmen’s, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not
overdue by more than 60 days or that are being contested in good
faith by appropriate proceedings and in respect of which, if
applicable, the Domestic Borrower or any Subsidiary shall have set
aside on its books reserves in accordance with GAAP;
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(f) (i) pledges and
deposits made in the ordinary course of business in compliance with
the Federal Employers Liability Act or any other workers’
compensation, unemployment insurance and other social security laws
or regulations and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements in respect
of such obligations and (ii) pledges and deposits securing
liability for reimbursement or indemnification obligations of
(including obligations in respect of letters of credit or bank
guarantees for the
benefit of) insurance carriers
providing property, casualty or liability insurance to the Domestic
Borrower or any Subsidiary;
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(g) deposits to
secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance and
return of money bonds, warranty bonds, bids, leases, government
contracts, trade contracts, completion or performance guarantees
and other obligations of a like nature incurred in the ordinary
course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of
business;
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(h) zoning
restrictions, easements, trackage rights, leases (other than
Capital Lease Obligations), licenses, special assessments,
rights-of-way, restrictions on use of real property and other
similar encumbrances incurred in the ordinary course of business
that do not render title unmarketable and that, in the aggregate,
do not interfere in any material respect with the ordinary conduct
of the business of the Domestic Borrower or any Subsidiary or would
result in a Material Adverse Effect;
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(i) purchase money
security interests in equipment or other property or improvements
thereto hereafter acquired (or, in the case of improvements,
constructed) by the Domestic Borrower or any Subsidiary (including
the interests of vendors and lessors under conditional sale and
title retention agreements); provided that (i) such security interests secure
Indebtedness permitted by Section 6.01(i) (including any Permitted Refinancing
Indebtedness in respect thereof), (ii) such security interests are
incurred, and the Indebtedness secured thereby is created, within
270 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of
such equipment or other property or improvements at the time of
such acquisition (or construction), including transaction costs
incurred by the Domestic Borrower or any Subsidiary in connection
with such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of the
Domestic Borrower or any Subsidiary (other than to accessions to
such equipment or other property or improvements);
provided
further that individual
financings of equipment provided by a single lender may be
cross-collateralized to other financings of equipment provided
solely by such lender;
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(j) Liens arising out of capitalized lease
transactions permitted under Section 6.03, so long as such Liens attach only to the
property sold and being leased in such transaction and any
accessions thereto or proceeds thereof and related
property;
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(k) Liens securing
judgments that do not constitute an Event of Default under
Section 7.01(j);
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(l) other Liens with respect to property or assets
of the Domestic Borrower or any Subsidiary not constituting
Collateral for the Obligations with an aggregate fair market value
(valued at the time of creation thereof) of not more than $40.0
million at any time;
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(m) Liens disclosed
by the title insurance policies and any replacement, extension or
renewal of any such Lien; provided that such replacement, extension or renewal Lien
shall not cover any property other than the property that was
subject to such Lien prior to
such replacement, extension or
renewal; provided further
that the Indebtedness and other
obligations secured by such replacement, extension or renewal Lien
are permitted by this Agreement;
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(n) Liens in respect of Permitted Receivables
Financings;
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(o) any interest or
title of, or Liens created by, a lessor under any leases or
subleases entered into by the Domestic Borrower or any Subsidiary,
as tenant, in the ordinary course of business;
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(p) Liens that are contractual rights of set-off (i)
relating to the establishment of depository relations with banks
not given in connection with the issuance of Indebtedness, (ii)
relating to pooled deposit or sweep accounts of the Domestic
Borrower or any Subsidiary to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of
the Domestic Borrower and the Subsidiaries or (iii) relating to
purchase orders and other agreements entered into with customers of
the Domestic Borrower or any Subsidiary in the ordinary course of
business;
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(q) Liens arising
solely by virtue of any statutory or common law provision relating
to banker’s liens, rights of set-off or similar
rights;
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(r) Liens securing obligations in respect of
trade-related letters of credit permitted under Section 6.01(f) or (p) and
covering the goods (or the documents of title in respect of such
goods) financed by such letters of credit and the proceeds and
products thereof;
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(s) licenses of intellectual property granted in the
ordinary course of business;
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(t) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods;
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(u) Liens on the assets of a Foreign Subsidiary that
do not constitute Collateral and which secure Indebtedness of such
Foreign Subsidiary that is not otherwise secured by a Lien on the
Collateral under the Loan Documents and that is permitted to be
incurred under Section
6.01(a) or
(k);
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(v) Liens upon specific items of inventory or other
goods and proceeds of the Domestic Borrower or any of the
Subsidiaries securing such Person’s obligations in respect of
bankers’ acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage
of such inventory or other
goods;
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(w) Liens solely on any cash earnest money deposits
made by the Domestic Borrower or any of the Subsidiaries in
connection with any letter of intent or purchase agreement
permitted hereunder;
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(x) Liens arising from precautionary Uniform
Commercial Code financing statement filings regarding operating
leases entered into by the Domestic Borrower or any of the
Subsidiaries in the ordinary course of business;
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(y) Liens securing insurance premium financing
arrangements in an aggregate principal amount not to exceed 1% of
Consolidated Total Assets, provided that such Lien is limited to the applicable
insurance contracts;
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(z) Liens on the
assets of a Foreign Subsidiary which secure Indebtedness of such
Foreign Subsidiary that is permitted to be incurred under
Section 6.01(p), (r) or (v);
provided, however, that if such Liens are on assets that
constitute Collateral, such Liens may be pari passu with, but not prior to, the Liens granted in
favor of the Collateral Agent under the Collateral Agreements
unless such Liens secure letters of credit or bank guarantees and
such assets constitute the rights of such Foreign Subsidiary under
the contracts and agreements in respect of which such Indebtedness
was incurred; and
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(aa) Liens on inventory in favor of customers up to
the amount of such customer's progress payments that are netted in
determining the net inventory balance in accordance with
GAAP.
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Notwithstanding the foregoing, no
Liens shall be permitted to exist, directly or indirectly, on (1)
Pledged Collateral, other than Liens in favor of the Collateral
Agent and Liens permitted by Section 6.02(d), (e),
(q) or (z), or
(2) Mortgaged Property, in each case, other than Liens in favor of
the Collateral Agent, Prior Liens and Permitted
Encumbrances.
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Section 6.03 Sale and Lease-Back
Transactions. Enter into any arrangement,
directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter
rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property
being sold or transferred (a “Sale and Lease-Back
Transaction”),
provided
that a Sale and Lease-Back
Transaction shall be permitted so long as at the time the lease in
connection therewith is entered into, and after giving effect to
the entering into of such Lease, the Remaining Present Value of
such lease (together with Indebtedness outstanding pursuant to
paragraphs (h)
and (i) of Section
6.01 and the Remaining Present Value of outstanding
leases previously entered into under this Section 6.03) would not exceed 5.00% of
Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date such lease is entered into for which
financial statements have been delivered pursuant to
Section 5.04.
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Section 6.04 Investments, Loans and
Advances. Purchase, hold or acquire
(including pursuant to any merger with a Person that is not a
Wholly Owned Subsidiary immediately prior to such merger) any
Equity Interests, evidences of Indebtedness or other securities of,
make or permit to exist any loans or advances (other than
intercompany current liabilities incurred in the ordinary course of
business in connection with the cash management operations of the
Domestic Borrower and the Subsidiaries) to or Guarantees of the
obligations of, or make or permit to exist any investment or any
other interest in (each, an “Investment”),
in any other Person, except:
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(a) Investments other than those disclosed on
Schedule
6.04 (including,
but not limited to, Investments in Equity Interests, intercompany
loans, and Guarantees of Indebtedness otherwise expressly permitted
hereunder) after the Closing Date by Loan Parties in
Subsidiaries that are not Loan Parties in an aggregate amount
(valued at the time of the making thereof and without giving effect
to any write-downs or write-offs thereof) not to
exceed
an amount equal to
the greater of $250 million and 7.5% of
Consolidated Total Assets (plus any return of capital actually received by the
respective investors in respect of investments previously made by
them pursuant to this paragraph (a)(i)), Domestic Loan Parties in Foreign Loan
Parties in an aggregate
amount (valued at the time of the making thereof and without giving
effect to any write downs or write offs thereof) not to exceed
$150.0 million (plus any return of capital actually received by the
respective investors in respect of investments previously made by
them pursuant to this paragraph (a)(ii)),
Domestic Loan Parties in other Domestic Loan
Parties, Foreign Loan Parties in other Foreign Loan
Parties, Subsidiaries that are not Loan Parties in Loan
Parties and Domestic Loan Parties and the Spanish Borrower or their respective
Subsidiaries in Dresser-Rand International, B.V. not to exceed $40
million (plus any return of capital actually received by the
respective investors in respect of investments previously made by
them pursuant to this paragraph (a)(vi));
provided, however that any return of capital received by Domestic
Loan Parties directly or indirectly from the Spanish Borrower after
the Closing
Date shall increase the dollar
limitation in the foregoing clause (a)(ii);
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(b) Permitted Investments and investments that were
Permitted Investments when made;
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(c) Investments arising out of the receipt by the
Domestic Borrower or any Subsidiary of non-cash consideration for
the sale of assets permitted under Section 6.05;
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(d) (i) loans and advances to employees of the
Domestic Borrower or any Subsidiary in the ordinary course of
business not to exceed $2.5 million in the aggregate at any time
outstanding (calculated without regard to write-downs or write-offs
thereof) and (ii) advances of payroll payments and expenses to
employees in the ordinary course of business;
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(e) accounts receivable arising and trade credit
granted in the ordinary course of business and any securities
received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss and any prepayments and
other credits to suppliers made in the ordinary course of
business;
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(f) Swap Agreements permitted pursuant to
Section 6.13 and Capital Expenditures;
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(g) Investments existing on the Closing Date and set
forth on Part I of Schedule
6.04
and Investments set forth on Part II
of Schedule
6.04;
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(h) Investments resulting from pledges and deposits
referred to in Sections 6.02(f) and (g);
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(i) other
Investments by the Domestic Borrower or any Subsidiary in an
aggregate amount (valued at the time of the making thereof, and
without giving effect to any write-downs or write-offs thereof) not
to exceed $25.0 million (plus any returns of capital actually
received by the respective investor in respect of investments
theretofore made by it pursuant to this paragraph
(i));
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(j) Investments constituting Permitted Business
Acquisitions;
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(k) additional Investments may be made from time to
time to the extent made with proceeds of Equity Interests of the
Domestic Borrower, which proceeds or Investments in turn are
contributed (as common equity) to any Loan Party;
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(l) Investments (including, but not limited to,
Investments in Equity Interests, intercompany loans, and Guarantees
of Indebtedness otherwise expressly permitted hereunder) after the
Closing Date by Subsidiaries that are not Loan Parties in
any Loan Party or other
Subsidiary;
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(m) Investments arising as a result of Permitted
Receivables Financings;
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(o) Investments received in connection with the
bankruptcy or reorganization of, or settlement of delinquent
accounts and disputes with or judgments against, customers and
suppliers, in each case in the ordinary course of
business;
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(p) Investments of a Subsidiary acquired after the
Closing Date or of a corporation merged into any Borrower or merged
into or consolidated with a Subsidiary in accordance with
Section 6.05 after the Closing Date to the extent that such
Investments were not made in contemplation of or in connection with
such acquisition, merger or consolidation and were in existence on
the date of such acquisition,
merger or consolidation;
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(q) Guarantees by the Domestic Borrower or any
Subsidiary of operating leases (other than Capital Lease
Obligations) or of other obligations that do not constitute
Indebtedness, in each case entered into by any Subsidiary in the
ordinary course of business; and
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(r) Investments in joint ventures after the Closing Date not to
exceed $350
million, other than those
investments disclosed in writing on Schedule
6.04.
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Section 6.05 Mergers,
Consolidations, Sales of Assets and Acquisitions. 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) all or any
part of its assets (whether now owned or hereafter acquired), or
issue, sell, transfer or otherwise dispose of any Equity Interests
of any Borrower or any Subsidiary or preferred equity interests of
the Domestic Borrower, or purchase, lease or otherwise acquire (in
one transaction or a series of transactions) all or any substantial
part of the assets of any other Person, except that this Section
shall not prohibit:
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(a) the sale of inventory,
supplies, materials and equipment and the purchase and sale of
contract rights or licenses or leases of intellectual property, in
each case in the ordinary course of business by the Domestic
Borrower or any Subsidiary, the sale of any other asset in the ordinary
course of business by the Domestic Borrower or any
Subsidiary, the sale of
surplus, obsolete or worn out equipment or other property in the
ordinary course of business by the Domestic Borrower or any
Subsidiary;
the sale of Permitted Investments in
the ordinary course of business; the
Spanish Borrower may merge or consolidate into, or transfer all of
its assets to, a direct or indirect parent company of the Spanish
Borrower incorporated under the laws of Spain, provided that such
entity assumes all of the obligations of
the Spanish Borrower under the Loan
Documents pursuant to documentation reasonably satisfactory to the
European Administrative Agent, and upon such assumption, such
entity shall be the “Spanish Borrower” for all purposes
under the Loan Documents.
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(b) if at the time
thereof and immediately after giving effect thereto no Event of
Default shall have occurred and be continuing, the merger of
any Subsidiary into any Borrower in a transaction in which such
Borrower is the surviving corporation, the merger or
consolidation of any Subsidiary into or with any Loan Party in a
transaction in which the surviving or resulting entity is a Loan
Party and, in the case of each of clauses (i) and (ii), no
Person other than such Borrower or a Loan Party receives any
consideration, the merger or
consolidation of any Subsidiary that is not a Loan Party into or
with any other Subsidiary that is not a Loan Party
or the liquidation or
dissolution (other than the Borrowers) or change in form of entity
of the Domestic Borrower or any Subsidiary if the Domestic Borrower
determines in good faith that such liquidation or dissolution is in
the best interests of the Domestic Borrower and is not materially
disadvantageous to the Lenders;
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(c) sales,
transfers, leases or other dispositions to the Domestic Borrower or
a Subsidiary (upon voluntary liquidation or otherwise);
provided
that any sales, transfers, leases or
other dispositions by a Loan Party to a Subsidiary that is not a
Loan Party shall be made in compliance with Section 6.07; provided further
that the aggregate gross proceeds of
any sales, transfers, leases or other dispositions by a Loan Party
to a Subsidiary that is not a Loan Party in reliance upon this
paragraph (c)
and the aggregate gross proceeds of
any or all assets sold, transferred or leased in reliance upon
paragraph (h) below shall not exceed the amounts permitted to be invested in such
entities pursuant to Section
6.04;
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(d) Sale and
Lease-Back Transactions permitted by Section 6.03;
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(e) Investments
permitted by Section
6.04, Liens permitted
by Section 6.02
and dividends permitted by Section 6.06;
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(f) the purchase and
sale or other transfer (including by capital contribution) of
Receivables Assets pursuant to Permitted Receivables
Financings;
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(g) the sale of
defaulted receivables in the ordinary course of business and not as
part of an accounts receivables financing transaction;
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(h) sales,
transfers, leases or other dispositions of assets not otherwise
permitted by this Section
6.05;
provided that the aggregate gross proceeds (including
non-cash proceeds) of any or all assets sold, transferred, leased
or otherwise disposed of in reliance upon this paragraph
(h) and
in reliance upon the second proviso to paragraph
(c) above shall not exceed, in any fiscal year of
the Domestic Borrower, 5.00% of
Consolidated Total Assets as of the end of the immediately
preceding fiscal year;
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(i) any merger or
consolidation in connection with a Permitted Business
Acquisition, provided that following any such merger or consolidation
(i) involving any Borrower, such Borrower is the surviving
corporation, (ii) involving a domestic Subsidiary, the surviving or
resulting entity shall be a domestic Loan Party that is a Wholly
Owned Subsidiary
and (iii) involving a Foreign
Subsidiary, the surviving or resulting entity shall be a Foreign
Subsidiary Loan Party that is a Wholly Owned Subsidiary;
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(j) licensing and
cross-licensing arrangements involving any technology or other
intellectual property of any Borrower or any Subsidiary in
the ordinary course of
business;
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(k) sales, leases or other dispositions of inventory
of the Domestic Borrower and its Subsidiaries determined by the
management of any Borrower to be no longer useful or necessary in
the operation of the business of the Domestic Borrower or any of
the Subsidiaries;
and
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(l) sales, transfers
or other dispositions of Foreign Financed Development
Projects.
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Notwithstanding anything to the
contrary contained in Section
6.05 above,
the Domestic Borrower shall at all
times own, directly or indirectly, at least 85% of the Equity
Interests of each other Borrower, in each case, free and clear of
any Liens other than the Liens created by the Security
Documents, no sale, transfer or other disposition of assets
shall be permitted by this Section 6.05 (other than sales, transfers, leases or other
dispositions to Loan Parties pursuant to paragraph
(c) hereof and purchases, sales or transfers
pursuant to paragraph (f) hereof) unless such disposition is for fair
market value, no sale, transfer or other disposition of assets
shall be permitted by paragraph (a),
(d), (f) or (k) of
this Section 6.05
unless such disposition is for at
least 75% cash consideration and (vii) no sale, transfer or other
disposition of assets in excess of $10.0 million shall be permitted
by paragraph (h) of
this Section 6.05
unless such disposition is for at
least 75% cash consideration; provided that for purposes of clauses (ii) and (iii), the
amount of any secured Indebtedness or other Indebtedness of a
Subsidiary that is not a Loan Party (as shown on the Domestic
Borrower’s or such Subsidiary’s most recent balance
sheet or in the notes thereto) of the Domestic Borrower or any
Subsidiary of the Domestic Borrower that is assumed by the
transferee of any such assets shall be deemed cash.
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Section 6.06 Dividends and
Distributions. Declare or pay, directly or
indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, with respect to any of its
Equity Interests (other than dividends and distributions on Equity
Interests payable solely by the issuance of additional shares of
Equity Interests of the Person paying such dividends or
distributions) or directly or indirectly redeem, purchase, retire
or otherwise acquire for value (or permit any Subsidiary to
purchase or acquire) any shares of any class of its Equity
Interests or set aside any amount for any such purpose;
provided, however, that:
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(a) any Subsidiary of the Domestic Borrower may
declare and pay dividends to, repurchase its Equity Interests from
or make other distributions to, the Domestic Borrower or to any
Wholly Owned Subsidiary of the Domestic Borrower (or, in the case
of non-Wholly Owned Subsidiaries, to the Domestic Borrower or
any Subsidiary
that is a direct or indirect parent of such Subsidiary
and to each other owner of Equity Interests of such
Subsidiary on a pro rata basis (or more favorable basis from the
perspective of the Domestic Borrower or such Subsidiary) based on their relative ownership
interests);
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(b) the Domestic
Borrower and each Subsidiary may repurchase, redeem or otherwise
acquire or retire for value any Equity Interests of the Domestic
Borrower or any Subsidiary held by any current or former officer,
director, consultant or employee of the Domestic Borrower or any
Subsidiary pursuant to any equity subscription agreement, stock
option agreement, shareholders’ or members’ agreement
or similar agreement, plan or arrangement or any Plan and
Subsidiaries may declare and pay dividends to the Domestic Borrower
or any other Subsidiary the proceeds of which are used for such
purposes, provided that the aggregate amount of such purchases or
redemptions under this paragraph (b) shall
not exceed
$15.0 million (plus the amount of net proceeds
(i) received by the Domestic Borrower during such
calendar year from sales of Equity Interests of the Domestic
Borrower to directors, consultants, officers or employees of the
Domestic Borrower or any Subsidiary in connection with permitted
employee compensation and incentive arrangements and
(ii) of any key-man life insurance policies
recorded during such calendar year) which, if not used in any year,
may be carried forward to any subsequent calendar
year;
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(c) non-cash repurchases of Equity Interests deemed
to occur upon exercise of stock options if such Equity Interests
represent a portion of the exercise price of such
options;
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(e) the Domestic
Borrower may pay cash
dividends and/or repurchase,
redeem or otherwise acquire or retire for value any Equity
Interests of the Domestic Borrower, provided that either (i) the aggregate amount of such dividends, repurchases or redemptions do not
exceed the sum of (A) $200.0
million and (B)
fifty percent
(50%) of the Net Income of the Domestic Borrower for
the period commencing January
1, 2010 and ending on the last day of the most recently ended
fiscal quarter prior to the
declaration of such dividend, repurchase or redemption
for which financial statements have
been delivered pursuant to Section 5.04(a) or (b) or
(ii) as of the date of declaration of such dividend, repurchase or redemption, the
Leverage Ratio is less than 3.25 to 1.00, calculated on a
pro forma
basis as of the last day of the most
recently ended fiscal quarter in respect of which financial
statements have been delivered pursuant to Section 5.04(a) or (b);
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(f) the Domestic Borrower may make distributions to
its members of management that hold Equity Interests of the
Domestic Borrower in respect of such Equity Interests in an
aggregate amount not to exceed in any fiscal year, together with
such amounts permitted under Section 6.06(e) for
such fiscal year, $3.0
million; and
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(g) the Domestic Borrower may repurchase, redeem or
otherwise acquire or retire for value any Equity Interests of the
Domestic Borrower up to $130.0 million in respect of a share
repurchase program.
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Section 6.07 Transactions with
Affiliates.
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(a) Sell or transfer
any property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transaction with, any
of its Affiliates, unless such transaction is otherwise permitted (or required) under this
Agreement (including in connection with any Permitted Receivables
Financing) or upon terms no less favorable to
the Domestic Borrower or such
Subsidiary, as applicable, than would be obtained in a comparable
arm’s-length transaction with a Person that is not an
Affiliate; provided that this clause (ii) shall
not apply to the indemnification of directors of the Domestic
Borrower and the Subsidiaries in accordance with customary
practice.
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(b) The foregoing paragraph (a) shall
not prohibit, to the extent otherwise permitted under this
Agreement,
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(i) any issuance of
securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment
arrangements, stock options, stock ownership plans and the granting
and performance of registration rights approved by the Board of
Directors of the Domestic Borrower,
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(ii) transactions among the
Borrowers and the Loan Parties and transactions among the non-Loan
Parties otherwise permitted by this Agreement,
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(iii) any indemnification
agreement or any similar arrangement entered into with directors,
officers, consultants and employees of the Domestic Borrower and
the Subsidiaries in the ordinary course of business and the payment
of fees and indemnities to directors, officers, consultants and
employees of the Domestic Borrower and the Subsidiaries in the
ordinary course of business,
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(iv) transactions pursuant to
permitted agreements in existence on the Closing Date and set forth
on Schedule
6.07
or any amendment thereto to the
extent such amendment is not adverse to the Lenders in any material
respect,
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(v) any employment agreement
or employee benefit plan entered into by the Domestic Borrower or
any of the Subsidiaries in the ordinary course of business or
consistent with past practice and payments pursuant
thereto,
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(vi) transactions otherwise
permitted under Section
6.04 and Section 6.06,
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(vii) any contribution by the
Domestic Borrower to, or purchase by the Domestic Borrower of, the
equity capital of any Borrower; provided that any Equity Interests of any Borrower
purchased by the Domestic Borrower shall be pledged to the
Collateral Agent on behalf of the Lenders pursuant to the
applicable Collateral Agreement,
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(ix) transactions with any
Affiliate for the purchase or sale of goods, products, parts and
services entered into in the ordinary course of business in a
manner consistent with past practice,
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(x) any transaction in
respect of which the Domestic Borrower delivers to the
Administrative Agent (for delivery to the Lenders) a letter
addressed to the Board of Directors of the Domestic Borrower from
an accounting, appraisal or
investment banking firm, in each
case of nationally recognized standing that is (A) in the good
faith determination of the Domestic Borrower qualified to render
such letter and (B) reasonably satisfactory to the Administrative
Agent, which letter states that such transaction is on terms that
are no less favorable to the Domestic Borrower or such Subsidiary,
as applicable, than would be obtained in a comparable
arm’s-length transaction with a Person that is not an
Affiliate,
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(xi) transactions pursuant to
any Permitted Receivables Financing,
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(xiii) so long as not
otherwise prohibited under this Agreement, guarantees of
performance by the Domestic Borrower or any Subsidiary of any other
Subsidiary or the Domestic Borrower that are not a Loan Party in
the ordinary course of business, except for guarantees of
Indebtedness in respect of borrowed money; and
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(xiv) if such transaction is
with a Person in its capacity as a holder (A) of Indebtedness of
the Domestic Borrower or any Subsidiary where such Person is
treated no more favorably than the other holders of Indebtedness of
the Domestic Borrower or any Subsidiary or (B) of Equity Interests
of the Domestic Borrower or any Subsidiary where such Person is
treated no more favorably than the other holders of Equity
Interests of the Domestic
Borrower or any Subsidiary.
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Section 6.08 Business of the
Domestic Borrower and the Subsidiaries. Notwithstanding any other
provisions hereof, engage at any time in any business or business
activity other than any business or business activity conducted by
it on the Closing Date and any business or business activities
incidental or related thereto, or any business or activity that is
reasonably similar thereto or a reasonable extension, development
or expansion thereof or ancillary thereto.
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Section 6.09 Limitation on
Prepayment
or Modifications
of Senior
Subordinated Indebtedness.
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(a) Make, or agree or offer to pay or make, directly
or indirectly, any optional payment in
respect of principal or redeem the 2021
Senior Subordinated Notes or
any Permitted Subordinated Debt Securities, or make any
payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition,
cancellation or termination of the 2021 Senior Subordinated Notes
or any Permitted Subordinated Debt Securities
except for Refinancings permitted by Section 6.01(l)), payments made solely with the proceeds from the
issuance of Equity Interests
and so long as no Default or Event of Default has
occurred and is continuing or would result therefrom, purchases and
redemptions of the
2021 Senior Subordinated Notes or
any Permitted Subordinated Debt Securities, provided that, after giving effect to any such purchases
and redemptions pursuant to
this clause (C), the
Leverage Ratio shall be less
than 4.0 to 1.00, calculated
on a pro
forma basis as of the last
day of the most recently ended fiscal quarter in respect of which
financial statements have been delivered pursuant to
Section 5.04; or
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(i) Amend or modify, or
permit the amendment or modification of, any provision of
any 2021
Senior Subordinated
Note or any Permitted Senior Debt
Securities or Permitted Subordinated
Debt Securities, any Permitted Receivables Document or any
agreement (including any 2021 Senior Subordinated Notes Document or any
document relating to any Permitted Senior Debt Securities or
Permitted Subordinated Debt Securities) relating thereto,
other than (A)
in respect of the
2021 Second Supplemental Indenture and (B)
amendments or modifications that are
not in any manner materially adverse to Lenders and that do not
affect the subordination provisions thereof (if any) in a manner
adverse to the Lenders.
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(b) Permit any Subsidiary to enter into any
agreement or instrument that by its terms restricts (1) the payment
of dividends or distributions or the making of cash advances by
such Subsidiary to the Domestic Borrower or any Subsidiary that is
a direct or indirect parent of such Subsidiary or (2) the granting
of Liens by such Subsidiary pursuant to the Security Documents, in
each case other than those arising under any Loan Document, except,
in each case, restrictions existing by reason of:
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(A)
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restrictions imposed by applicable
law;
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(B)
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restrictions contained in any
Permitted Receivables Document with respect to any Special Purpose
Receivables Subsidiary;
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(C)
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contractual encumbrances or
restrictions in effect on the Closing Date under (1) any
2021 Senior Subordinated Note Document or (2) any
agreements related to any permitted renewal, extension or
refinancing of any Indebtedness existing on the Closing Date that
does not expand the scope of any such encumbrance or
restriction;
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(D)
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restrictions imposed by any
Permitted Senior Debt Securities that are substantially similar to
restrictions set forth in the Credit Agreement;
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(E)
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any restriction on a Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Equity Interests or
assets of a Subsidiary pending the closing of such sale or
disposition;
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(F)
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customary provisions in joint
venture agreements and other similar agreements applicable to joint
ventures entered into in the ordinary course of
business;
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(G)
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any restrictions imposed by any
agreement relating to secured Indebtedness permitted by this
Agreement to the extent that such restrictions apply only to the
property or assets securing such Indebtedness;
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(H)
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customary provisions contained in
leases or licenses of intellectual property and other similar
agreements entered into in the ordinary course of
business;
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(I)
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customary provisions restricting
subletting or assignment of any lease governing a leasehold
interest;
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(J)
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customary provisions restricting
assignment of any agreement entered into in the ordinary course of
business;
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(K)
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customary restrictions and
conditions contained in any agreement relating to the sale of any
asset permitted under Section
6.05 pending the consummation
of such sale; or
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(L)
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any agreement in effect at the time
such Subsidiary becomes a Subsidiary, so long as such agreement was
not entered into in contemplation of such Person becoming a
Subsidiary.
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Section 6.010 [Reserved].
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Section 6.011 Interest Coverage
Ratio. Permit
the Interest Coverage
Ratio on the last day of any fiscal quarter ending
after the Closing Date, to be
less than 3:00 to 1:00.
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Section 6.012 Leverage
Ratio. Permit the
Leverage Ratio on the last day of any fiscal quarter ending after
the Closing Date, to be in excess of 4.00 to
1.00.
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Section 6.013 Swap
Agreements. Enter
into any Swap Agreement, other than (a) any Permitted Receivables
Financing, (b) Swap Agreements entered into in the ordinary course
of business to hedge or mitigate risks to which the Domestic
Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities, and (c) Swap
Agreements entered into in order to effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect
to any interest-bearing liability or investment of the Domestic
Borrower or any Subsidiary.
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Section 6.014 Designated Senior
Debt. Designate
any Indebtedness of any Borrower or any of the Subsidiaries other
than (a) the Obligations hereunder and
(b) Permitted Senior Debt Securities as
“Designated Senior Indebtedness” under, and as defined
in, the 2021
Senior Subordinated
Notes Indenture.
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ARTICLE VII
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EVENTS OF DEFAULT
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Section 7.01 Events of
Default. In case
of the happening of any of the following events
(“Events of
Default”):
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(a) any
representation or warranty made or deemed made by any Borrower or
any other Loan Party in any Loan Document, or any representation,
warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made,
deemed made or furnished by any Borrower or any other Loan
Party;
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(b) default shall be
made in the payment of any principal of any Loan or the
reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
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(c) default shall be
made in the payment of any interest on any Loan or on any L/C
Disbursement or in the payment of any Fee or any other amount
(other than an amount referred to in (b) above) due under any Loan
Document, when and as the same shall become due and payable, and
such default shall continue unremedied for a period of five (5)
Business Days;
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(d) default shall be
made in the due observance or performance by any Borrower or any of
the Subsidiaries of any covenant, condition or agreement contained
in Section
5.01(a) (with respect to any Borrower),
5.05(a), 5.08,
5.10(c)
or in Article VI;
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(e) default shall be made in the due observance or
performance by any Borrower or any of the Subsidiaries of any
covenant, condition or agreement contained in any Loan Document
(other than those specified in paragraphs (b),
(c) and (d) above)
and such default shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent or any Lender to
any Borrower;
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(f) (i) any event or
condition occurs that (A) results in any Material Indebtedness
becoming due prior to its scheduled maturity or (B) enables or
permits (with all applicable grace periods having expired) the
holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity or (ii) any
Borrower or any of the Subsidiaries shall fail to pay the principal
of any Material Indebtedness at the stated final maturity
thereof; 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 if such sale or transfer is permitted hereunder
and under the documents providing for such Indebtedness;
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(g) there shall have occurred a Change in
Control;
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(h) an involuntary
proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in
respect of any Borrower or any of the Subsidiaries (other than a
Borrower or Subsidiary incorporated in France), or of a substantial
part of the property or assets of any Borrower or any Subsidiary
(other than a Borrower or Subsidiary incorporated in France), under
Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for any Borrower or any of the Subsidiaries (other than a
Borrower or Subsidiary incorporated in France) or for a substantial
part of the property or assets of any Borrower or any of the
Subsidiaries (other than a Borrower or Subsidiary incorporated in
France) or (iii) the winding-up or liquidation of any Borrower or
any Subsidiary (other than a Borrower or Subsidiary incorporated in
France) (except, in the case of any Subsidiary (other than the
Borrowers), in a transaction permitted by Section 6.05); and such
proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
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(i) any Borrower or
any Subsidiary (other than a Borrower or Subsidiary incorporated in
France) shall (i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other federal,
state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any
petition described in paragraph (h) above,
(iii) apply for, request or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for any Borrower or any of the Subsidiaries (other than a
Borrower or Subsidiary incorporated in France) or for a substantial
part of the property or assets of any Borrower or any Subsidiary
(other than a Borrower or Subsidiary incorporated in France), (iv)
file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) become unable,
admit in writing its inability or fail generally to pay its debts
as they become due;
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(j) the failure by
any Borrower or any Subsidiary to pay one or more final judgments
aggregating in excess of $50.0
million (net of any amounts which are covered by insurance or
bonded), which judgments are not discharged or effectively waived
or stayed for a period of 30 consecutive days, or any action shall
be legally taken by a judgment creditor to levy upon assets or
properties of any Borrower or any Subsidiary to enforce any such
judgment;
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(k) one or more ERISA Events or events with respect to one or more Foreign
Plans (“Foreign
Events”)
shall have occurred
or are reasonably expected to
occur that, when taken
together with all other ERISA Events and Foreign Events that have occurred or are reasonably expected to
occur, could reasonably be
expected to result in a Material Adverse Effect;
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(l) any Borrower or
any Subsidiary incorporated in France (i) stops or suspends or
announces an intention to stop or suspend payment of its debts or
shall admit its inability to pay its debts as they fall due or
shall for the purpose of any applicable law be or be deemed to be
unable to pay its debts or shall otherwise be or be deemed to be
insolvent for the purpose of any insolvency law or to be in a state
of cessation de
paiements, (ii) applies for
the appointment of a mandataire ad
hoc,
administrateur
judiciaire,
administrateur
provisoire or
liquidateur
judiciaire, (iii) applies for
or is subject to the appointment of a conciliateur
for a procédure de
conciliation pursuant to
Articles L. 611-4 et seq. of the French Code de
Commerce, (iv) is the
subject of a judgment for sauvegarde (including sauvegarde financière
accélérée), redressement
judiciaire,
cession totale
or partielle de
l’entreprise or
liquidation
judiciaire pursuant to
Articles L. 620-1 et seq. of the French Code de Commerce
or (v) is the subject, in any
jurisdiction other than France, of any procedure or step analogous
to those set out as items (ii), (iii) and (iv)
above;
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(m) any Borrower or any Subsidiary incorporated in
Spain (i) stops or suspends or announces an intention to stop or
suspend payment of its debts or shall admit its inability to pay
its debts as they fall due or shall for the purpose of any
applicable law be or be deemed to be unable to pay its debts or
shall otherwise be or be deemed to be insolvent for the
purpose of Act 22/2003 on Insolvency
(as amended or replaced from time to time) (for the purposes of
this paragraph, the “Insolvency
Law”), (ii) files for
insolvency proceeding (whenever voluntary or mandatory), (iii)
files in court for the petition regulated according to article
5.bis of the Insolvency Law asserting that negotiations are being
pursued with creditors in order to achieve a refinancing agreement
or a to obtain the necessary creditor support to file a pre-pack or
advance composition proposal within the court and
(iv) is
the subject, in any jurisdiction other than Spain, of any procedure
or step analogous to those set out as items (ii), (iii) and (iii)
above;
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(n) (i) any Loan Document shall for any reason be
asserted in writing by any Borrower or any Subsidiary not to be a
legal, valid and binding obligation of any party thereto, (ii) any
security interest purported to be created by any Security Document
and to extend to Collateral that is not immaterial to any Borrower
and its Subsidiaries on a consolidated basis shall cease to be, or
shall be asserted in writing by any Borrower or any other Loan
Party not to be, a valid and perfected security interest (having
the priority required by this Agreement or the relevant Security
Document) in the securities, assets or properties covered thereby,
except to the extent that (A) any
such loss of perfection or priority results from the failure of the
Collateral Agent to maintain possession of certificates actually
delivered to it representing securities pledged under the
Collateral Agreements or to file UCC continuation statements,
(B) such loss is covered by a lender’s title
insurance policy and the Administrative Agent shall be reasonably
satisfied with the credit of such insurer or (C) any
such loss of validity, perfection or priority is the result of any
failure by the Collateral Agent or the Administrative Agent to take
any action necessary to secure the validity, perfection or priority
of the liens, or (iii) the Guarantees pursuant to the Security
Documents by the Domestic Borrower or the Subsidiary Loan Parties
of any of the Obligations shall cease to be in full force and
effect (other than in accordance with the terms thereof), or shall
be asserted in writing by any Borrower or any Subsidiary Loan Party
not to be in effect or not to be legal, valid and binding
obligations;
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then, and in every such event (other
than an event with respect to any Borrower described in
paragraph (h),
(i) or (l) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request
of the Required Lenders, shall, by notice to the Borrowers, take
any or all of the following actions, at the same or different
times: (i) terminate forthwith the Commitments, (ii)
declare the Loans then outstanding to be forthwith due and payable
in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of
the Borrowers accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrowers, anything contained herein
or in any other Loan Document to the contrary notwithstanding and
(iii) demand cash collateral
pursuant to Section 2.05(j); and in any event with respect to the Borrowers
described in paragraph (h),
(i) or (l) above,
the Commitments shall automatically terminate, the principal of the
Loans then outstanding, together with accrued interest thereon and
any unpaid accrued Fees and all other liabilities of the Borrowers
accrued hereunder and under any other Loan Document, shall
automatically become due and payable and the Administrative Agent
shall be deemed to have made a demand for cash collateral to the
full extent permitted under Section 2.05(j), without presentment, demand, protest or any
other notice of any kind, all of which are hereby
expressly waived by the Borrowers,
anything contained herein or in any other Loan Document to the
contrary notwithstanding.
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Section 7.02 Exclusion of
Immaterial Subsidiaries. Solely for the purposes of
determining whether an Event of Default has occurred under
clause (h), (i) or (l) of Section
7.01, any reference in any
such clause to any Subsidiary shall be deemed not to include any
Subsidiary affected by any event or circumstance referred to in any
such clause that did not, as of the last day of the fiscal quarter
of the Domestic Borrower most recently ended, have assets with a
value in excess of 2.5% of the Consolidated Total Assets or 2.5% of
total revenues of the Domestic Borrower and its Subsidiaries as of
such date; provided that if it is necessary to exclude more than one
Subsidiary from clause (h),
(i) or (l) of Section
7.01 pursuant to this
Section 7.02 in order to avoid an Event of Default
thereunder, all excluded Subsidiaries shall be considered to be a
single consolidated Subsidiary for purposes of determining whether
the condition specified above is satisfied.
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Section 8.01 Appointment.
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(a) In order to expedite the transactions
contemplated by this Agreement, (i) JPMorgan is hereby appointed to act as Administrative
Agent and Collateral Agent, (ii)
each of Bank
of America, N.A., Commerzbank AG, New York and Grand Cayman
Branch, DNB Bank ASA,
New York Branch,
Sovereign Bank and Wells Fargo Bank, N.A. is hereby appointed to act as a Co-Syndication
Agent. Each of the Lenders and each assignee of any such
Lender hereby irrevocably authorizes the Administrative Agent to
take such actions on behalf of such Lender or assignee and to
exercise such powers as are specifically delegated to the
Administrative Agent by the terms and provisions hereof and of the
other Loan Documents, together with such actions and powers as are
reasonably incidental thereto. The Administrative Agent
is hereby expressly authorized by the Lenders and each Issuing
Bank, without hereby limiting any implied authority,
(A) to receive on behalf of the Lenders and such
Issuing Bank all payments of principal of and interest on the
Loans, all payments in respect of L/C Disbursements and all other
amounts due to the Lenders and such Issuing Bank hereunder, and
promptly to distribute to each Lender or such Issuing Bank its
proper share of each payment so received; (B) to
give notice on behalf of each of the Lenders of any Event of
Default specified in this Agreement of which the Administrative
Agent has actual knowledge acquired in connection with the
performance of its duties as Administrative Agent hereunder; and
(C) to distribute to each Lender copies of all
notices, financial statements and other materials delivered by any
Borrower pursuant to this Agreement as received by the
Administrative Agent. Without limiting the generality of
the foregoing, the Collateral Agent is hereby expressly authorized
to execute any and all documents (including releases) with respect
to the Collateral and the rights of the Secured Parties with
respect thereto, as contemplated by and in accordance with the
provisions of this Agreement and the Security Documents, and all
rights and remedies in respect of such Collateral shall be
controlled by the Collateral Agent.
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(b) Neither the Agents nor any of their respective
directors, officers, employees or agents shall be liable as such
for any action taken or omitted by any of them except
for its or his own gross negligence
or willful misconduct, or be responsible for any statement,
warranty or representation herein or the contents of any document
delivered in connection herewith, or be required to ascertain or to
make any inquiry concerning the performance or observance by the
Borrowers or any other Loan Party of any of the terms, conditions,
covenants or agreements contained in any Loan
Document. The Agents shall not be responsible to the
Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Loan
Documents or other instruments or agreements. The Agents
shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant
thereto shall be binding on all the Lenders. Each Agent
shall, in the absence of knowledge to the contrary, be entitled to
rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the
proper Person. Neither the Agents nor any of their
respective directors, officers, employees or agents shall have any
responsibility to any Borrower or any other Loan Party or any other
party hereto or to any Loan Document on account of the failure,
delay in performance or breach by, or as a result of information
provided by, any Lender or Issuing Bank of any of its obligations
hereunder or to any Lender or Issuing Bank on account of the
failure of or delay in performance or breach by any other Lender or
Issuing Bank or any Borrower or any other Loan Party of any of
their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. Each
Agent may execute any and all duties hereunder by or through
agents, employees or any sub-agent appointed by it and shall be
entitled to rely upon the advice of legal counsel selected by it
with respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
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Section 8.02 Nature of
Duties. The
Lenders hereby acknowledge that no Agent shall be under any duty to
take any discretionary action permitted to be taken by it pursuant
to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders. The Lenders
further acknowledge and agree that so long as an Agent shall make
any determination to be made by it hereunder or under any other
Loan Document in good faith, such Agent shall have no liability in
respect of such determination to any
Person. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into the Loan Documents or otherwise
exist against the Administrative Agent. Each Lender
recognizes and agrees that the Joint Lead Arrangers shall have no
duties or responsibilities under this Agreement or any other Loan
Document, or any fiduciary relationship with any Lender, and shall
have no functions, responsibilities, duties, obligations or
liabilities for acting as such hereunder.
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Section 8.03 Resignation by the
Agents. Subject to
the appointment and acceptance of a successor Agent as provided
below, any Agent may resign at any time by notifying the Lenders
and the Borrowers. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor with
the consent of the Borrowers (not to be unreasonably withheld or
delayed). If no successor shall have been so appointed
by the Required Lenders and approved by the Borrowers and shall
have accepted such appointment within 45 days after the retiring
Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders with the
consent of the Borrowers (not to be
unreasonably withheld or delayed), appoint a successor Agent which
shall be a bank with an office in New York, New York and an office
in London, England (or a bank having an Affiliate with such an
office) having a combined capital and surplus that is not less than
$500.0 million or an Affiliate of any such bank. Upon
the acceptance of any appointment as Agent hereunder by a successor
bank, such successor shall succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent and
the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent’s
resignation hereunder, the provisions of this Article and
Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
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Section 8.04 Each Agent in Its
Individual Capacity. With respect to the Loans made by
it hereunder, each Agent in its individual capacity and not as
Agent shall have the same rights and powers as any other Lender and
may exercise the same as though it were not an Agent, and the
Agents and their Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with any Borrower or
any of the Subsidiaries or other Affiliates thereof as if it were
not an Agent.
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Section 8.05 Indemnification. Each
Lender agrees (a) to reimburse the Agents, on demand, in the amount
of its pro
rata share (based on its
Commitments hereunder (or if such Commitments shall have expired or
been terminated, in accordance with the respective principal
amounts of its applicable outstanding Loans or participations in
L/C Disbursements, as applicable)) of any reasonable expenses
incurred for the benefit of the Lenders by the Agents, including
reasonable counsel fees and compensation of agents and employees
paid for services rendered on behalf of the Lenders, which shall
not have been reimbursed by the Borrowers and
(b) to indemnify and hold harmless each Agent and
any of its directors, officers, employees or agents, on demand, in
the amount of such pro rata share, from and against any and all liabilities,
Taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against
it in its capacity as Agent or any of them in any way relating to
or arising out of this Agreement or any other Loan Document or any
action taken or omitted by it or any of them under this Agreement
or any other Loan Document, to the extent the same shall not have
been reimbursed by the Borrowers, provided that no Lender shall be liable to an Agent for
any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful
misconduct of such Agent or any of its directors, officers,
employees or agents.
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Section 8.06 Lack of Reliance on
Agents. Each
Lender acknowledges that it has, independently and without reliance
upon the Agents and any Lender and based on such documents and
information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without
reliance upon the Agents, any other Lender and based on such
documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement or any other Loan
Document, any related agreement or any document furnished hereunder
or thereunder.
The Agents shall not be
required to keep themselves informed as to the performance or
observance by the Borrowers or any
of their Subsidiaries of this Agreement, the Loan
Documents or any other document
referred to or provided for herein
or to inspect the Properties or books of the
Borrowers or their Subsidiaries. Except for notices,
reports and other documents and information expressly required to
be furnished to the Lenders by the Administrative Agent hereunder,
no Agent or the Arrangers shall have any duty or responsibility to
provide any Lender with any credit or other information concerning
the affairs, financial condition or business of the
Borrowers (or any of their Affiliates) which may come into the possession
of such Agent or any of its Affiliates. In this regard,
each Lender acknowledges that
Vinson & Elkins LLP is
acting in this transaction as special counsel to the Administrative
Agent only, except to the extent otherwise expressly stated in any
legal opinion or any Loan Document. Each other party
hereto will consult with its own legal counsel to the extent that
it deems necessary in connection with the Loan Documents and the
matters contemplated therein.
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Section 8.07 European
Administrative Agent. The European Administrative Agent
has been designated under this
Agreement to carry out duties of the Administrative
Agent. The European Administrative Agent
shall be subject to each of the
obligations in this Agreement to be performed by the
European Administrative
Agent, and each of the
Borrowers and the Lenders agrees that the European Administrative Agent
shall be entitled to exercise each
of the rights and shall be entitled to each of the benefits of the
Administrative Agent under this Agreement as related to the
performance of its obligations hereunder.
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Section 8.08 Appointment of
Supplemental Collateral
Agents.
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(a) It is the purpose of this Agreement and the
other Loan Documents that there shall be no violation of any law of
any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or
trustee in such jurisdiction. It is recognized that in
case of litigation under this Agreement or any of the other Loan
Documents, and in particular in case of the enforcement of any of
the Loan Documents, or in case the Administrative Agent deems that
by reason of any present or future law of any jurisdiction it may
not exercise any of the rights, powers or remedies granted herein
or in any of the other Loan Documents or take any other action
which may be desirable or necessary in connection therewith, it may
be necessary that the Administrative Agent appoint an additional
individual or institution as a separate trustee, co-trustee,
collateral agent, collateral sub-agent or collateral co-agent (any
such additional individual or institution being referred to herein
individually as a “Supplemental
Collateral Agent” and
collectively as “Supplemental
Collateral Agents”).
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(b) In the event that the Administrative Agent
appoints a Supplemental Collateral Agent with respect to any
Collateral, (i) each and every right, power, privilege or duty
expressed or intended by this Agreement or any of the other Loan
Documents to be exercised by or vested in or conveyed to the
Administrative Agent with respect to such Collateral shall be
exercisable by and vest in such Supplemental Collateral Agent to
the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and
privileges with respect to such Collateral and to perform such
duties with respect to such Collateral, and every covenant and
obligation contained in the Loan Documents and necessary to the
exercise or performance thereof by such Supplemental Collateral
Agent shall run to and be enforceable by either the Administrative
Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Article and of Section 9.05 that refer to the Administrative Agent
shall
inure to the benefit of such
Supplemental Collateral Agent and all references therein to the
Administrative Agent shall be deemed to be references to the
Administrative Agent and/or such Supplemental Collateral Agent, as
the context may require.
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(c) Should any instrument in writing from any Loan
Party be required by any Supplemental Collateral Agent so appointed
by the Administrative Agent for more fully and certainly vesting in
and confirming to it such rights, powers, privileges and duties,
such Loan Party shall execute, acknowledge and deliver any and all
such instruments promptly upon request by the Administrative
Agent. In case any Supplemental Collateral Agent, or a
successor thereto, shall die, become incapable of acting, resign or
be removed, all the rights, powers, privileges and duties of such
Supplemental Collateral Agent, to the extent permitted by law,
shall vest in and be exercised by the Administrative Agent until
the appointment of a new Supplemental Collateral Agent.
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(a) Notices and
other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as
follows:
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(i) if to the Domestic
Borrower, to it at Dresser-Rand Group Inc., 1200 W. Sam Houston
Parkway N.,
Houston, TX 77043,
Attention:
Robert Saltarelli
(telecopy: 713.935.3880) (e-mail: rsaltarelli@dresser-rand.com);
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(ii) if to the Spanish
Borrower, to it at Grupo Guascor, S.L. c/o Dresser-Rand Group Inc., 1200 W. Sam Houston
Parkway N., Houston, TX 77043, Attention: Robert Saltarelli
(telecopy: 713.935.3880) (e-mail:
rsaltarelli@dresser-rand.com);
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(iii) if to the
Administrative Agent, to JPMorgan Chase Bank, N.A., 10 South
Dearborn, 7th
Floor, Chicago, IL, 60603,
Attention: Sherese Cork (telecopy: 888.303.9732)
(e-mail: jpm.agency.servicing.1@jpmchase.com);
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(iv) if to the European
Administrative Agent, to J.P. Morgan Europe Limited,
25 Bank Street, Canary Wharf, London
E14 5JP, Attention: Manager (telecopy: 44.207.777.2360) (email:
loan_and_agency_london@jpmorgan.com);
and
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(v) if to an Issuing Bank, to
it at the address or telecopy number set forth separately in
writing.
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(b) Notices and
other communications to the Lenders hereunder may be delivered or
furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable
Lender. Each of the Administrative Agent, the Collateral
Agent and the Borrowers may, in its discretion, agree
to accept notices and other
communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided further
that approval of such procedures may
be limited to particular notices or communications.
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(c) All notices and other communications given to
any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of receipt
if delivered by hand or overnight courier service, sent by telecopy
or (to the extent permitted by paragraph (b) above)
electronic means or on the date five Business Days after dispatch
by certified or registered mail if mailed, in each case delivered,
sent or mailed (properly addressed) to such party as provided in
this Section 9.01
or in accordance with the latest
unrevoked direction from such party given in accordance with
this Section
9.01.
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(d) Any party hereto may change its address or
telecopy number for notices and other communications hereunder by
notice to the other parties hereto.
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Section 9.02 Survival of
Agreement. All
covenants, agreements, representations and warranties made by the
Borrowers and the Loan Parties herein, in the other Loan Documents
and in the certificates or other instruments prepared or delivered
in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the
Lenders and each Issuing Bank and shall survive the making by the
Lenders of the Loans, the execution and delivery of the Loan
Documents and the issuance of the Letters of Credit, regardless of
any investigation made by such Persons or on their behalf, and
shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or L/C Disbursement or any Fee
or any other amount payable under this Agreement or any other Loan
Document is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not been
terminated. Without prejudice to the survival of any
other agreements contained herein, indemnification and
reimbursement obligations contained herein (including pursuant to Sections 2.16,
2.18
and 9.05)
shall survive the payment in full of the principal and interest
hereunder, the expiration of the Letters of Credit and the
termination of the Commitments or this Agreement.
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Section 9.03 Binding
Effect. This
Agreement shall become effective when it shall have been executed
by the Borrowers and the Agents and when the Administrative Agent
shall have received copies hereof which, when taken together, bear
the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the Borrowers,
each Issuing Bank, the Agents and each Lender and their respective
permitted successors and assigns.
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Section 9.04 Successors and
Assigns.
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(a) The provisions
of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that
issues any Letter of Credit), except that (i) other than pursuant
to a merger permitted by Section 6.05(b) or 6.05(i),
no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by any Borrower
without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or
obligations hereunder except in
accordance with this Section. 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 (including any Affiliate of any Issuing
Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Agents, each Issuing Bank and the
Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
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(b) Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it) with the prior written consent (such
consent not to be unreasonably withheld or delayed) of:
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(A)
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the Borrowers; provided, that no consent
of any Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of Default
has occurred and is continuing, any other assignee
(provided that any liability of the Borrowers to an
assignee that is an Approved Fund or Affiliate of the assigning
Lender under Section 2.16,
2.18
or 2.21 shall
be limited to the amount, if any, that would have been payable
hereunder by the Borrowers in the absence of such
assignment);
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(B)
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the Administrative Agent
and the Swingline
Lenders;
provided that no consent of the Administrative
Agent or the Swingline
Lenders, as applicable, shall
be required for an assignment of a Revolving Facility
Commitment to
an assignee that is a Lender immediately prior to
giving effect to such
assignment; and
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(C)
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any such assignment shall be made
ratably among the Revolving Facility, the Euro Revolving Facility and
the Term Facility.
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(vi) Assignments shall be subject to the following
additional conditions:
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(A)
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except in the case of an assignment
to a Lender, an Affiliate of a Lender or an Approved Fund, an
assignment of the entire remaining amount of the assigning
Lender’s Commitment or contemporaneous assignments to related
Approved Funds that equal at least $5.0 million in the aggregate,
the amount of the commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5.0 million, unless
each of the Borrowers and the Administrative Agent otherwise
consent; provided that no such consent of the Borrowers shall be
required if an Event of Default has occurred and is
continuing;
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(B)
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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;
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(C)
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the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of
$3,500.00; provided that no such recordation fee shall be due in
connection with an assignment to an existing Lender or Affiliate of
a Lender or an Approved Fund of such Lender or an assignment by the
Administrative Agent and provided further
that only one such fee shall be
payable in connection with contemporaneous
assignments to related
Approved Funds;
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(D)
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the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire;
and
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(E)
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no such assignment shall be made to
the Domestic Borrower
or any of its Subsidiaries.
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For purposes of this
Section 9.04(b), the term “Approved
Fund” shall have the
following meaning:
“Approved
Fund” shall mean any
Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is
administered or managed by a Lender, an Affiliate of a Lender or an
entity or an Affiliate of an entity that administers or manages a
Lender.
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(vii) Subject to acceptance
and recording thereof pursuant to paragraph (b)(iv) of
this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender hereunder
shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.16,
2.17, 2.18 and 9.05). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
comply with this Section
9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
paragraph (c)
of this Section.
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(viii) The Administrative Agent, acting for this
purpose as an agent of the Borrowers, shall maintain at one of its
offices a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and principal amount of the
Loans and L/C Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and each Borrower, the
Agents, each Issuing Bank and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all
purposes of this Agreement,
notwithstanding notice to the contrary. The Register
shall be available for inspection by any Borrower, any Issuing Bank
and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
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(ix) Upon its receipt of a
duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee’s completed
Administrative Questionnaire (unless the assignee shall already be
a Lender hereunder), the processing and recordation fee referred to
in paragraph (b)
of this Section and any written
consent to such assignment required by paragraph
(b) of
this Section, the Administrative Agent shall accept such Assignment
and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
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(c) Any Lender may, without the consent of the
Borrowers, the Administrative
Agent, any Issuing
Bank or any Swingline
Lender, sell participations
to one or more banks or other entities (a
“Participant”)
in all or a portion of such Lender’s rights and obligations
under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain
solely responsible to the other parties hereto for the performance
of such obligations and (C) the Borrowers, the Agents, each Issuing
Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any
agreement or instrument (oral or written) pursuant to which a
Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and the other
Loan Documents and to approve any amendment, modification or waiver
of any provision of this Agreement and the other Loan
Documents; provided that (1) such
agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment,
modification or waiver described in Section 9.04(a)(i) or clauses (i),
(ii), (iii),
(iv), (v) or (vi) of
the first proviso to Section
9.08(b) that affects such
Participant and (2) no
other agreement (oral or written) with respect to such Participant
may exist between such Lender and such
Participant. Subject to paragraph (c)(ii) of
this Section, the Borrowers agree that each Participant shall be
entitled to the benefits of
Sections 2.16,
2.17
and 2.18 to
the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of
Section 9.06 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.19(c) as though it were a Lender.
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(i) A Participant shall not be entitled to receive
any greater payment under Section 2.16,
2.17
or 2.18 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 (which shall not be
unreasonably withheld). A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.18 to
the extent such Participant fails to comply with
Section 2.18(e) as though it were a Lender.
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(d) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
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(e) For the purposes of Article 1278 of the French
Civil Code, it is expressly agreed that upon any assignment of the
rights and obligations of a Lender, the security created or
evidenced by any collateral agreement or instrument governed by
French law and/or with a French law party shall be preserved for
the benefit of the new Lender and each other Secured
Party.
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(f) A copy of the instrument evidencing the
assignment of the rights of a Lender in respect of any Loan to
any Additional Foreign Borrower
organized under the laws of France (if any) shall be notified through a French bailiff
(huissier) to such Borrower in accordance with Article
1690 of the French Civil Code. The new Lender will be
responsible for the fees of the French bailiff (huissier) for so notifying such Additional Foreign
Borrower.
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(g) For the purposes of Article 1528 of the Spanish
Civil Code, each party to this Agreement agrees that upon any
assignment in accordance with this Section 9.04, any and all ancillary rights of a Lender, such
as guarantees, security interests and privileges created under this
Agreement and other Loan Documents shall be preserved for the
benefit of the new lender. Nevertheless, each new lender shall be
entitled to pursue all actions necessary to maintain the
effectiveness of all ancillary rights.
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Section 9.05 Expenses;
Indemnity.
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(a) The Domestic
Borrower agrees to pay all reasonable and documented out-of-pocket
expenses (including Other Taxes) incurred by the Agents in
connection with the preparation of this Agreement and the other
Loan Documents, or by the Agents in connection with the syndication
of the Commitments or the administration of this Agreement
(including expenses incurred in connection with due diligence and
initial and ongoing Collateral examination to the extent incurred
with the reasonable prior approval of the Domestic Borrower and the
reasonable fees, disbursements and the charges for no more
than one primary counsel
and one
counsel in each jurisdiction
where Collateral is located)
or in connection with any amendments, modifications or waivers of
the provisions hereof or thereof (whether or not the Transactions
hereby contemplated shall be consummated) or incurred by the Agents
or any Lender in connection with the enforcement or protection of
their rights in connection with this Agreement and the other Loan
Documents, in connection with the Loans made or the Letters of
Credit issued hereunder, including the reasonable fees, charges and
disbursements of Vinson &
Elkins LLP, counsel for the
Agents and the Joint Lead Arrangers, and, in connection with any
such enforcement or protection, the reasonable fees, charges and
disbursements of any other counsel) (including the reasonable and
documented allocated costs of internal counsel for the Agents, the
Joint Lead Arrangers, any Issuing Bank or any Lender (but no more
than one such counsel for any Lender)).
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(b) The Domestic Borrower agrees to indemnify the
Agents, the Joint Lead Arrangers, each Issuing Bank, each Lender
and each of their respective Related Parties (each such Person being called an
“Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses,
including reasonable and documented counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i)
the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto and thereto of their
respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated hereby, (ii)
the use of the proceeds of the Loans or the use of any Letter of
Credit or (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not 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 result primarily from the
gross negligence or willful misconduct of such Indemnitee
(treating, for this purpose only, any Agent, any Joint Lead
Arranger, any Issuing Bank, any Lender and any of their respective
Related Parties as a single Indemnitee) as determined by a court of competent jurisdiction
in a final and non-appealable judgment. Subject to and without limiting the
generality of the foregoing sentence, the Domestic Borrower agrees
to indemnify each Indemnitee against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable and documented counsel or
consultant fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in any way connected with,
or as a result of (A) any Environmental Claim related in any way to
any Borrower or any of their Subsidiaries, or (B) any actual or
alleged presence, Release or threatened Release of Hazardous
Materials at, under, on or from any Property, any property owned,
leased or operated by any predecessor of any Borrower or any of
their Subsidiaries, or any property at which any Borrower or any of
their Subsidiaries has sent Hazardous Wastes for treatment, storage
or disposal, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses result from the gross
negligence or willful misconduct of such Indemnitee or any of its
Related Parties as determined
by a court of competent jurisdiction in a final and non-appealable
judgment. The
provisions of this Section
9.05 shall remain operative
and in full force and effect regardless of the expiration of the
term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the
invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by
or on behalf of any Agent, any Issuing Bank or any
Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor
accompanied by reasonable documentation with respect to any
reimbursement, indemnification or other amount requested.
In the case of an investigation, litigation or
proceeding to which the indemnity in this Section 9.05(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is
brought by a
Borrower, any of such Borrower’s equity holders or creditors, an
Indemnitee or any other person or entity, whether or not an
Indemnitee is otherwise a party thereto
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(c) Unless an Event of Default shall have occurred
and be continuing, the Domestic Borrower shall be entitled to
assume the defense of any action for which indemnification is
sought hereunder with counsel of their choice at its expense (in
which case the Domestic Borrower shall not thereafter be
responsible for the fees and expenses of any separate
counsel retained by an Indemnitee
except as set forth below); provided, however, that such counsel shall be reasonably
satisfactory to each such Indemnitee. Notwithstanding
the Domestic Borrower’s election to assume the defense of
such action, each Indemnitee shall have the right to employ
separate counsel and to participate in the defense of such action,
and the Domestic Borrower shall bear the reasonable fees, costs and
expenses of such separate counsel, if (i) the use of counsel chosen
by the Domestic Borrower to represent such Indemnitee would present
such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include
both a Borrower and such Indemnitee and such Indemnitee shall have
reasonably concluded that there may be legal defenses available to
it that are different from or additional to those available to the
Borrowers (in which case the Domestic Borrower shall not have the
right to assume the defense or such action on behalf of such
Indemnitee); (iii) the Domestic Borrower shall not have employed
counsel reasonably satisfactory to such Indemnitee to represent it
within a reasonable time after notice of the institution of such
action; or (iv) the Domestic Borrower shall authorize in writing
such Indemnitee to employ separate counsel at the Domestic
Borrower’s expense. The Domestic Borrower will not
be liable under this Agreement for any amount paid by an Indemnitee
to settle any claims or actions if the settlement is entered into
without the Domestic Borrower’s consent, which consent may
not be withheld or delayed unless such settlement is unreasonable
in light of such claims or actions against, and defenses available
to, such Indemnitee.
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(d) Except as expressly provided in
Section 9.05(a) with
respect to Other Taxes, which shall not be duplicative with any
amounts paid pursuant to Section 2.16, this Section 9.05 shall not apply to Taxes.
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Section 9.06 Right of
Set-off. Subject
to Section
9.23, if an Event of Default
shall have occurred and be continuing, each Lender and each Issuing
Bank is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such
Lender or such Issuing Bank to or for the credit or the account of
(a) any Domestic Loan Party or any other Domestic Subsidiary,
against any and all obligations of the Domestic Loan Parties or
(b) any Foreign Loan Party or any of
its Foreign Subsidiaries, against any and all of the obligations of such
Foreign Loan Party, in each case, now or hereafter existing under
this Agreement or any other Loan Document held by such Lender or
such Issuing Bank, irrespective of whether or not such Lender or
such Issuing Bank shall have made any demand under this Agreement
or such other Loan Document and although the obligations may be
unmatured. The rights of each Lender and each Issuing
Bank under this Section
9.06 are in addition to other
rights and remedies (including other rights of set-off) that such
Lender or such Issuing Bank may have.
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Section 9.07 Applicable
Law. THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF
CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK.
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Section 9.08 Waivers;
Amendment.
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(a) No failure or delay of the Agents, any Issuing
Bank or any Lender in exercising any right or power hereunder or
under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and
remedies of the Agents, each Issuing Bank and the Lenders hereunder
and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of this Agreement or
any other Loan Document or consent to any departure by any Borrower
or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which
given. No notice or demand on any Borrower or any other
Loan Party in any case shall entitle such Person to any other or
further notice or demand in similar or other
circumstances.
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(b) Neither this
Agreement nor any other Loan Document nor any provision hereof or
thereof may be waived, amended or modified except (x) in the case
of this Agreement, pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Lenders and
(y) in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by each party
thereto and the Collateral Agent and consented to by the Required
Lenders; provided, however, that no such agreement shall
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(i) decrease or forgive the principal amount of, or
extend the final maturity of, or decrease the rate of interest on,
any Loan or any L/C Disbursement, without the prior written consent
of each Lender directly affected thereby; provided that any amendment to the financial covenant
definitions in this Agreement shall not constitute a reduction in
the rate of interest for purposes of this clause
(i),
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(ii) increase or extend the Commitment of any Lender
or decrease the Commitment Fees or L/C Participation Fees or other
fees of any Lender without the prior written consent of such Lender
(it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the aggregate Commitments shall not
constitute an increase of the Commitments of any
Lender),
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(iii) amend or modify the provisions of Section 2.19(b) or (c) in a
manner that would by its terms alter the pro rata sharing of payments required thereby, without
the prior written consent of each Lender adversely affected
thereby,
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(iv) amend or modify the provisions of this Section
or the definition of the terms “Required Lenders,”
“Majority Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the prior written consent of
each Lender adversely affected thereby (it being understood that,
with the consent of the Required Lenders, additional extensions of
credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same
basis as the Loans and Commitments are included on the Closing
Date),
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(v) release all or substantially all the Collateral
or release any Subsidiary Loan Party from its Guarantee under a
Collateral Agreement, unless, in the case of a Subsidiary Loan
Party, all or substantially all the Equity Interests of such
Subsidiary Loan Party is sold or otherwise disposed of in a
transaction permitted by this Agreement, without the prior written
consent of each Lender, or
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(vi) effect any waiver, amendment or modification
that by its terms adversely affects the rights in respect of payments or
Collateral of Lenders
participating in any Facility differently from those of Lenders
participating in other Facilities, without the consent of the
Majority Lenders participating in the adversely affected Facility
(it being agreed that the Majority Lenders under the Revolving Facility may waive, in whole or in part, any prepayment
or Commitment reduction of
the Revolving Facility required by Section 2.12 so long as the application of any prepayment or
Commitment reduction of the
Revolving Facility still
required to be made is not changed);
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provided
further that no such
agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or an Issuing Bank hereunder
without the prior written consent of the Administrative Agent or
such Issuing Bank acting as such at the effective date of such
agreement, as applicable. Each Lender shall be bound by
any waiver, amendment or modification authorized by this
Section 9.08 and any consent by any Lender pursuant to
this Section 9.08
shall bind any assignee of such
Lender.
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(c) Without the consent of any Co-Syndication Agent,
Joint Lead Arranger or Lender, the Loan Parties and the
Administrative Agent and/or Collateral Agent may (in their
respective sole discretion, or shall, to the extent required by any
Loan Document) enter into any amendment, modification or waiver of
any Loan Document, or enter into any new agreement or instrument,
to effect the granting, perfection, protection, expansion or
enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the
Secured Parties, or as required by local law to give effect to, or
protect any security interest for the benefit of the Secured
Parties, in any property or so that the security interests therein
comply with applicable law.
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(d) Notwithstanding the foregoing, this Agreement
may be amended (or amended and restated) with the written consent
of the Required Lenders, the Administrative Agent, and the
Borrowers (i) to add
one or more additional credit facilities to this Agreement and to
permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement and the other Loan
Documents with the
Loans and the accrued interest and
fees in respect thereof and (ii) to
include appropriately the Lenders holding such credit facilities in
any determination of the Required Lenders.
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Section 9.09 Interest Rate
Limitation. Notwithstanding anything herein to
the contrary, if at any time the applicable interest rate, together
with all fees and charges that are treated as interest under
applicable law (collectively, the “Charges”),
as provided for herein or in any other document executed in
connection herewith, or otherwise contracted for, charged,
received, taken or reserved by any Lender or any Issuing Bank,
shall exceed the maximum lawful rate (the
“Maximum
Rate”) that may be
contracted for, charged, taken, received or reserved by
such
Lender in accordance with applicable
law, the rate of interest payable hereunder, together with all
Charges payable to such Lender or such Issuing Bank, shall be
limited to the Maximum Rate, provided that such excess amount shall be paid to such
Lender or such Issuing Bank on subsequent payment dates to the
extent not exceeding the legal limitation.
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Section 9.010 Entire
Agreement. This
Agreement, the other Loan Documents and the agreements regarding
certain Fees referred to herein constitute the entire contract
between the parties relative to the subject matter
hereof. Any previous agreement among or representations
from the parties or their Affiliates with respect to the subject
matter hereof is superseded by this Agreement and the other Loan
Documents. Notwithstanding the foregoing, the Fee Letter
and the Fee Letter shall survive the execution and delivery of this
Agreement and remain in full force and effect.
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Section 9.011 WAIVER
OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
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Section 9.012 Severability. In
the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes
as close as possible to that of the invalid, illegal or
unenforceable provisions.
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Section 9.013 Counterparts. This
Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which, when taken
together, shall constitute but one contract, and shall become
effective as provided in Section 9.03. Delivery of an executed counterpart
to this Agreement by facsimile transmission shall be as effective
as delivery of a manually signed original.
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Section 9.014 Headings. Article
and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and
are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
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Section 9.015 Jurisdiction; Consent
to Service of Process.
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(a) Each of the Borrowers hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal
court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the
extent permitted by law, in such federal court. Each
Borrower further irrevocably consents to the service of process in
any action or proceeding in such courts by the mailing thereof by
any parties thereto by registered or certified mail, postage
prepaid, to such Borrower at the address specified for the Loan
Parties in Section
9.01(a). Each
Foreign Borrower hereby further agrees that service of process in
any such action or proceeding brought in any such New York state
court or in any such federal court may be made upon the Domestic
Borrower at its address specified in Section 9.01(a), and each Foreign Borrower hereby irrevocably
appoints the Domestic Borrower as its authorized agent to accept
such service of process, and hereby irrevocably agrees that the
failure of the Domestic Borrower to give any notice of such service
to such Borrower shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding
based thereon. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any Lender or any Issuing
Bank may otherwise have to bring any action or proceeding relating
to this Agreement or the other Loan Documents against any Borrower
or any Loan Party or their properties in the courts of any
jurisdiction.
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(b) Each of the Borrowers hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the other Loan Documents in
any New York State or federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
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Section 9.016 Confidentiality. Each
of the Lenders, each Issuing Bank and each of the Agents agrees
that it shall maintain in confidence any information relating to
the Borrowers and the other Loan Parties furnished to it by or on
behalf of the Borrowers or the other Loan Parties (other than
information that (a) has become generally available to the public
other than as a result of a disclosure by such party, (b) has been
independently developed by such Lender, such Issuing Bank or such
Agent without violating this Section 9.16 or (c) was available to such Lender, such
Issuing Bank or such Agent from a third party having, to such
Person’s knowledge, no obligations of confidentiality to any
Borrower or any other Loan Party) and shall not reveal the same
other than to its directors, trustees, officers, employees and
advisors with a need to know or to any Person that approves or
administers the Loans on behalf of such Lender (so long as each
such Person shall have been instructed to keep the same
confidential in accordance with this Section 9.16), except: (i) to the
extent necessary to comply with law or any legal process or the
requirements of any Governmental Authority, the National
Association of Insurance Commissioners or of any securities
exchange on which securities of the disclosing party or any
Affiliate of the disclosing party are listed or traded,
(ii) as part of normal reporting or review
procedures to Governmental Authorities or the National Association
of Insurance
Commissioners, (iii) to
its parent companies, Affiliates or auditors (so long as each such
Person shall have been instructed to keep the same confidential in
accordance with this Section
9.16), (iv) in
order to enforce its rights under any Loan Document in a legal
proceeding, (v) to any
prospective assignee of, or prospective Participant in, any of its
rights under this Agreement (so long as such Person shall have been
instructed to keep the same confidential in accordance with
this Section
9.16) and
(vi) to any direct or indirect contractual
counterparty in Swap Agreements or such contractual
counterparty’s professional advisor (so long as such
contractual counterparty or professional advisor to such
contractual counterparty agrees to be bound by the provisions of
this Section).
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Section 9.017 Direct Website
Communications.
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(i) Each Loan Party hereby
agrees that it will use all reasonable efforts to provide to the
Administrative Agent all information, documents and other materials
that it is obligated to furnish to the Administrative Agent
pursuant to this Agreement and any other Loan Document, including,
without limitation, all notices, requests, financial statements,
financial and other reports, certificates and other information
materials, but excluding any such communication that (A) relates to
a request for a new, or a conversion of an existing, borrowing or
other extension of credit (including any election of an interest
rate or interest period relating thereto), (B) relates to the
payment of any principal or other amount due under this Agreement
prior to the scheduled date therefor, (C) provides notice of any
Default or Event of Default under this Agreement or (D) is required
to be delivered to satisfy any condition precedent to the
effectiveness of this Agreement and/or any borrowing or other
extension of credit hereunder (all such non-excluded communications
collectively, the “Communications”),
by transmitting the Communications in an electronic/soft medium in
a format reasonably acceptable to the Administrative Agent
to Intralinks. Nothing in this Section 9.17 shall prejudice the right of the Agents, the
Co-Syndication Agents, the Joint Lead Arrangers or any Lender or
any Loan Party to give any notice or other communication pursuant
to this Agreement or any other Loan Document in any other manner
specified in this Agreement or any other Loan Document.
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(ii) The Administrative Agent
agrees that receipt of the Communications by the Administrative
Agent at its e mail address set forth above shall constitute
effective delivery of the Communications to the Administrative
Agent for purposes of the Loan Documents. Each Lender
agrees that notice to it (as provided in the next sentence)
specifying that the Communications have been posted to the Platform
(as defined below) shall constitute effective delivery of the
Communications to such Lender for purposes of the Loan
Documents. Each Lender agrees (A) to notify the
Administrative Agent in writing (including by electronic
communication) from time to time of such Lender’s e mail
address to which the foregoing notice may be sent by electronic
transmission and (B) that the foregoing notice may be sent to such
e mail address.
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(b) Posting. Each
Loan Party further agrees that the Administrative Agent may make
the Communications available to the Lenders by posting the
Communications on Intralinks or a substantially similar electronic
transmission system (the “Platform”).
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(c) Disclaimers.
The Platform is provided “as is” and
“as available.” The Agent Parties (as
defined below) do not warrant the accuracy or completeness of the
Communications, or the adequacy of the Platform and expressly
disclaim liability for errors or omissions in the
communications. No warranty of any kind, express,
implied or statutory, including, without limitation, any warranty
of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or
other code defects, is made by any Agent Party in connection with
the Communications or the Platform. In no event shall
the Administrative Agent or any of its affiliates or any of their
respective officers, directors, employees, agents advisors or
representatives (collectively, “Agent
Parties”) have any
liability to the Loan Parties, any Lender or any other Person or
entity for damages of any kind, including, without limitation,
direct or indirect, special, incidental or consequential damages,
losses or expenses (whether in tort, contract or otherwise) arising
out of any Loan Party’s or the Administrative Agent’s
transmission of communications through the internet, except to the
extent the liability of any Agent Party is found in a final
non-appealable judgment by a court of competent jurisdiction to
have resulted primarily from such Agent Party’s gross
negligence or willful misconduct.
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Section 9.018 Release of Liens and
Guarantees.
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(a) In the event that any
Loan Party conveys, sells, leases, assigns, transfers or otherwise
disposes of all or any portion of any of the Equity Interests or
assets of any Subsidiary Loan Party (other than the Equity
Interests of a Borrower) to a Person that is not (and is not
required to become) a Loan Party in a transaction not prohibited
by Section
6.05, the Administrative
Agent and the Collateral Agent shall promptly (and the Lenders
hereby authorize the Administrative Agent and the Collateral Agent
to) take such action and execute any such documents as may be
reasonably requested by the Borrowers and at the Borrowers’
expense to release any Liens created by any Loan Document in
respect of such Equity Interests, and, in the case of a disposition
of the Equity Interests of any Subsidiary Loan Party that is not a
Borrower in a transaction permitted by Section 6.05 and as a result of which such Subsidiary Loan
Party would cease to be a Subsidiary, terminate such Subsidiary
Loan Party’s obligations under its Guarantee. In
addition, the Administrative Agent and the Collateral Agent agree
to take such actions as are reasonably requested by the Borrowers
and at the Borrowers’ expense to terminate the Liens and
security interests created by the Loan Documents when all the
Obligations are paid in full and all Letters of Credit and
Commitments are terminated. Any representation, warranty
or covenant contained in any Loan Document relating to any such
Equity Interests, asset or Subsidiary
of the Domestic Borrower shall no longer be deemed to be made once
such Equity Interests or asset is so conveyed, sold, leased,
assigned, transferred or disposed of.
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(b) The Lenders hereby
authorize the Administrative Agent and the Collateral Agent to take
such action and execute any such documents as may be reasonably
requested by the Borrowers and at the Borrowers’ expense to
effectuate the release of the French Loan Parties (as defined in
the Existing Credit Agreement) from their obligations under the
Existing Credit Agreement, including (i) the release of any Liens created by any French Collateral Documents
and (ii) the termination of any any French Subsidiary Loan Party’s
obligation under its Guarantee.
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Section 9.019 U.S. Patriot
Act. Each Lender
hereby notifies each Loan Party that pursuant to the requirements
of the U.S. Patriot Act, it is required to obtain, verify and
record information that identifies Loan Parties, which information
includes the name and address of each Loan Party and other
information that will allow the Lenders to identify such Loan Party
in accordance with the U.S. Patriot Act.
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(a) If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase Dollars with
such other currency at JPMorgan’s principal office in London at 11:00
a.m. (London time) on the Business Day preceding that on which
final judgment is given.
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(b) If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder in a Foreign
Currency into Dollars, the parties agree to the fullest extent that
they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the
Administrative Agent could purchase such Foreign Currency with
Dollars at JPMorgan’s principal office in London at 11:00
a.m. (London time) on the Business Day preceding that on which
final judgment is given.
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(c) The obligation of each Borrower in respect of
any sum due from it in any currency (the “Primary
Currency”) to any
Lender or the Administrative Agent hereunder shall, notwithstanding
any judgment in any other currency, be discharged only to the
extent that on the Business Day following receipt by such Lender or
the Administrative Agent (as the case may be), of any sum adjudged
to be so due in such other currency, such Lender or the
Administrative Agent (as the case may be) may in accordance with
normal banking procedures purchase the applicable Primary Currency
with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender or
the Administrative Agent (as the case may be) in the applicable
Primary Currency, each Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify such Lender or
the Administrative Agent (as the case may be) against such loss,
and if the amount of the applicable Primary Currency so purchased
exceeds such sum originally due to any Lender or the Administrative
Agent (as the case may be) in the applicable Primary Currency, such
Lender or the Administrative Agent (as the case may be) agrees to
remit to such Borrower such excess.
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Section 9.021 Substitution of
Currency. If a
change in any Foreign Currency occurs pursuant to any applicable
law, rule or regulation of any governmental, monetary or
multi-national authority, this Agreement (including, without
limitation, the definition of Adjusted LIBO Rate) will be amended
to the extent determined by the Administrative Agent (acting
reasonably and in consultation with the Borrowers) to be necessary
to reflect the change in currency and to put the Lenders and the
Borrowers in the same position, so far as possible, that they would
have been in if no change in such Foreign Currency had
occurred.
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Section 9.022 Termination or
Release. The
Security Documents, the guarantees made therein, the Security
Interest (as defined therein) and all other security interests
granted thereby shall terminate, and a Subsidiary Loan Party shall
automatically be released from its obligations thereunder and the
security interests in the Collateral granted by any Loan Party
shall be automatically released, in each case in accordance with
Section 7.14 of the Domestic Collateral Agreement or the comparable
provisions of the other Collateral Agreements.
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Section 9.023 Pledge and Guarantee
Restrictions. Notwithstanding any provision of
this Agreement or any other Loan Document to the contrary
(including any provision that would otherwise apply notwithstanding
other provisions or that is the beneficiary of other overriding
language):
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(a) no more than 65% of the issued and outstanding
Equity Interests of (A) any
Foreign Borrower or any Foreign Subsidiary or (B) any
Domestic Subsidiary substantially all of whose assets consist of
the Equity Interests in “controlled foreign
corporations” under Section 957 of the Code shall be pledged
or similarly hypothecated to guarantee, secure or support any
Obligation of any Domestic Loan Party;
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(i) no Foreign Subsidiary or
any Domestic Subsidiary substantially all of whose assets consist
of the Equity Interests in “controlled foreign
corporations” under Section 957 of the Code shall guarantee
or support any Obligation of any Domestic Loan Party;
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(ii) no security or similar
interest shall be granted in the assets of any Foreign Subsidiary
or any Domestic Subsidiary substantially all of whose assets
consist of the Equity Interests in “controlled foreign
corporations under Section 957 of the Code (including indirectly by
way of an offset or otherwise) which security or similar interests
guarantees or supports any Obligation of any Domestic Loan Party;
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(b) no Subsidiary shall guarantee or support any
Obligation of any Loan Party if such guarantee or support would
contravene the Agreed Security Principles;
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(c) no Foreign Subsidiary shall guarantee or support
any Obligation of any Foreign Loan Party unless such Foreign
Subsidiary directly owns or is owned directly by such Foreign Loan
Party and is organized under the same jurisdiction as such Foreign
Loan Party;
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(i) no security or similar
interest shall be granted in the assets of any Foreign Subsidiary
(including indirectly by way of an offset or otherwise) which
security or similar interest guarantees or supports any Obligation
of any Foreign Loan Party unless such Foreign Subsidiary directly
owns or is owned directly by such Foreign Loan Party and is
organized under the same jurisdiction as such Foreign Loan Party.
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The parties hereto agree that any
pledge, guaranty or security or similar interest made or granted in
contravention of this Section
9.23 shall be void
ab
initio.
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Section 9.024 Matters Pertaining to
Foreign Borrowers and Any Additional Foreign Borrower Organized
Under the Laws of France or Spain.
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(a) The Lenders as of the Closing
Date participating in any
loan to any Additional
Foreign Borrower organized under the laws of France (if any)
represent and warrant (i) that they are duly authorized to carry
out credit transaction in France pursuant to applicable laws and
regulations of France or the European Union and (ii) that
participations in loans to
any Additional Foreign Borrower
organized under the laws of France (if any) and commitments to lend
to any Additional Foreign Borrower organized under the laws of
France (if any) under this Agreement shall only be assigned or
transferred to institutions that are duly authorized to carry out
credit transactions in France, or which may legally acquire rights
under loans to a French borrower under applicable laws and
regulations of France.
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(b) To comply with the provisions of articles
L.313-4 of the French Monetary and Financial Code and articles L.
313-1 and L. 313-2 of the French Code de la
consommation,
any Additional Foreign
Borrower organized under the laws of France (if
any) shall acknowledge, in the applicable Credit Agreement Supplement
for such Additional Foreign Borrower, that the effective global rate
(taux
effectif global or
“TEG”) for the Revolving Facility Loans cannot
be calculated for the total duration of this agreement, primarily
because of the floating rate of interest applicable to such Loans
and the ability of such
Additional Foreign Borrower to select the duration of each Interest
Period. An example
of calculation of the effective global rate, based upon certain
assumptions and in particular
the initial levels of the rate of interest and of
charges,
shall be
provided to such Additional Foreign Borrower
by way of delivery of a TEG letter
by the Administrative Agent in a form reasonably acceptable to such Additional Foreign
Borrower. Any TEG
letter delivered pursuant to this Section 9.24 shall form
an integral part of this Agreement.
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(c) The Spanish
Borrower shall not be a party to, or guarantee obligations that
include or extend to amounts utilized to fund, the acquisition of
the shares in the Spanish Borrower and/or the acquisition of the
shares of its controlling corporation or any company of the group
of the Spanish Borrower which would cause an infringement of the
financial assistance prohibition provided in article 143.2 of
the Spanish Royal Legislative Decree 1/2010, of 2 July,
approving the Companies Act (as it may be amended or replaced from
time to time). Given that the Spanish Borrower is
incorporated as a limited liability company
(“Sociedad de Responsabilidad
Limitada”), the Spanish
Borrower shall not provide funds or guarantee any obligations which
could reasonably be expected to result in a breach of
article 402 of the Spanish Companies Act, meaning that the Spanish Borrower cannot
issue, or guarantee the issuance of, notes or other securities or
grant security interest securing any such issuance, and the Spanish
Borrower is prohibited from borrowing, guaranteeing, or securing
any amounts under the Tranche
B Term
Facility. Any
Additional Foreign Borrower organized under the laws of Spain as a
corporation (“Sociedad
Anónima”) shall
not be a party to, and shall not guarantee obligations that include
or extend to amounts utilized to fund, the acquisition of the
shares in the Spanish Borrower and/or the acquisition of the shares
of its controlling corporation by a third party which would cause
an infringement of the financial assistance prohibition provided in
article 150.1 of the Companies Act (as it may be amended or
replaced from time to time).
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(d) Upon request of the Administrative Agent, the
Spanish Borrower and any Additional Foreign Borrower organized
under the laws of Spain (if any) shall grant this Agreement by
means of a Spanish notarial document (“escritura
pública” or
“póliza
intervenida” or
“acta
notarial”) and/or any
other document of this transaction which carries any
Obligation
for the Spanish Borrower or to any
Additional Foreign Borrower organized under the laws of Spain (if
any). The Spanish Borrower and any Additional Foreign Borrower
organized under the laws of Spain also undertake to grant any
supplemental public or private document required by the
Administrative Agent for the purposes of or in relation to such
notarial document.
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(e) The Spanish Borrower and any Additional Foreign
Borrower organized under the laws of Spain (if any) undertake that
the notarial document(s) shall:
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(i) expressly state that any Lender
is entitled to claim (subject to the terms of this Agreement)
amounts outstanding under the Loan Documents following any
non‑payment of
principal or interest under this Agreement. This does not prejudice
the exercise of any other right and remedy of the Administrative
Agent or any Lender; and
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(ii) state any conditions that the Administrative
Agent considers necessary or convenient in respect of the
enforceability of the Loan Documents referred to above, including
those referred to in article 517 et seq and 571 et seq or any other provision of the Spanish Civil
Procedure Act (as it may be amended or replaced from time to
time).
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(f) For the purpose
of Art. 571 et seq. of the Civil Procedural Act, the Loan Parties
hereby agree that:
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(i) the amount liquid, due and payable under the
Loan Documents by the Spanish Borrower or any Additional Foreign
Borrower organized under the laws of Spain (if any) that may be
claimed in any executive proceedings (“procedimiento
ejecutivo”) will be
contained in a certificate setting out the relevant calculations
and determinations supplied by the Administrative Agent or a Lender
and will be based on the accounts maintained by the Administrative
Agent or the Lender in connection with this Agreement as stated in
clauses 2.10(d),
2.10(e)
and 2.10(f),
reflecting the Indebtedness of the Spanish Borrower and/or any
Additional Foreign Borrower organized under the laws of Spain (if
any);
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(ii) the Administrative Agent and/or each Lender may (at
the cost of the Spanish
Borrower or any Additional Foreign Borrower organized under the
laws of Spain) have the
certificate notarised evidencing that the calculations and
determinations have been effected; and
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(iii) the Administrative Agent and/or the Lenders may
claim the total amount of the principal and interest due if there
is a default in the repayment of any installment of principal or
interest, subject to the
terms of this Agreement.
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(g) The Administrative Agent and/or the Lenders may
start executive proceedings (“procedimiento
ejecutivo”)
in Spain by presenting to the
relevant court the documents
specified in Article 573 of the Spanish Civil Procedural Act,
namely:
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(i) an original notarial copy of this
Agreement;
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(ii) a notarial document (acta
notarial) incorporating the
certificate of the Administrative Agent and/or the Lenders referred
to in sub‑clause 9.24(f) (i) for purposes of Article 572 of the Spanish
Civil Procedure Act. Such notarial document shall attest
to and certify that the calculations and determinations shown in
the aforementioned certificate have been effected in accordance
with the terms agreed under the Agreement; and
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(iii) evidence that the Spanish Borrower or any
Additional Foreign Borrower organized under the laws of Spain (if
any) has been notified of the details of the claim resulting from
the certificate at least 10 days before the start of the
executive proceedings.
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Section 9.025 Amendment and
Restatement;
Reaffirmation.
This Agreement represents a full and
complete amendment and restatement of the Existing Credit
Agreement, and the Existing Credit Agreement is replaced
in its entirety as of the effectiveness of this
Agreement. The Obligations outstanding under the Existing Credit Agreement continue
under this
Agreement,
and the execution of this Agreement
does not indicate a payment, satisfaction, novation, or discharge
thereof. All Liens, security and support for the Obligations outstanding under the Existing Credit Agreement continue
to secure and support the
Obligations hereunder. The Borrowers hereby reaffirm the validity
of the Obligations
outstanding under the Existing Credit Agreement, as amended,
restated and extended pursuant to the terms of this Agreement,
including their obligations
(including but not limited to any obligations under the Domestic
Collateral Agreement or the Foreign Guarantee) under all Letters of
Credit issued, amended, renewed or extended under the Existing
Credit Agreement and outstanding on the Closing Date.
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Section 9.026 No Advisory or
Fiduciary Responsibility. In connection with all aspects of
each transaction contemplated hereby (including in connection with
any amendment, waiver or other modification hereof or of any other
Loan Document), the
Domestic
Borrower and each
other Loan Party acknowledges and agrees and acknowledges its
Affiliates' understanding that that: (a)(i) the services
regarding this Agreement provided by the Administrative Agent
and/or Lenders are arm’s-length commercial transactions
between the Domestic Borrower
and each other Loan Party and
their respective Affiliates, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, (ii) each
of the Domestic
Borrower and the other Loan
Parties have consulted their own legal, accounting, regulatory and
tax advisors to the extent they have deemed appropriate, and
(iii) the Domestic
Borrower and each other Loan
Party is capable of evaluating and understanding, and understands
and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (b)(i) each of
the Administrative Agent and Lenders is and has been
acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not
be acting as an advisor, agent or fiduciary, for
the Domestic Borrower, any other
Loan Party, any
of their respective
Affiliates or any other
Person and (ii) neither the Administrative Agent nor any Lender has
any obligation to the
Domestic Borrower, any other
Loan Party or any of their
Affiliates with respect to
the transaction contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (c)
the Administrative Agent, the Lenders and their respective
Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Domestic Borrower, the other Loan Parties and their respective
Affiliates, and each of the Administrative Agent and Lenders has no
obligation to
disclose any of such interests
to the Domestic
Borrower, any other Loan
Party of any of their respective Affiliates. To the
fullest extent permitted by law, each of the Domestic Borrower and the other Loan Parties hereby waive and
release any claims that it may have against the Administrative
Agent and each Lender with respect to any breach or alleged breach
of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.
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