Exhibit 99.1
Exhibit 99.1
CREDIT AGREEMENT
Dated as of October 20, 2011
Among
HUBBELL INCORPORATED,
HUBBELL CAYMAN LIMITED,
HUBBELL INVESTMENTS LIMITED,
THE LENDERS PARTY HERETO,
WELLS FARGO BANK, NATIONAL ASSOCIATION and
HSBC BANK USA, NATIONAL ASSOCIATION
as Syndication Agents
BANK OF AMERICA, N.A. and U.S. BANK NATIONAL ASSOCIATION
as Documentation Agents
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
J.P. MORGAN SECURITIES LLC, WELLS FARGO SECURITIES, LLC
and HSBC BANK USA, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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ARTICLE I Definitions and Accounting Terms |
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1 |
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SECTION 1.01. |
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Definitions |
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1 |
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SECTION 1.02. |
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Classification of Loans and Borrowings |
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16 |
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SECTION 1.03. |
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Terms Generally |
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16 |
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SECTION 1.04. |
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Accounting Terms; GAAP |
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16 |
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ARTICLE II The Credits |
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17 |
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SECTION 2.01. |
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Commitments |
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17 |
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SECTION 2.02. |
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Loans and Borrowings |
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17 |
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SECTION 2.03. |
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Requests for Revolving Borrowings |
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18 |
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SECTION 2.04. |
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Competitive Bid Procedure |
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19 |
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SECTION 2.05. |
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Swingline Loans |
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21 |
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SECTION 2.06. |
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Letters of Credit |
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22 |
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SECTION 2.07. |
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Funding of Borrowings |
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25 |
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SECTION 2.08. |
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Interest Elections |
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26 |
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SECTION 2.09. |
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Termination and Reduction of Commitments |
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27 |
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SECTION 2.10. |
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Repayment of Loans; Evidence of Debt |
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28 |
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SECTION 2.11. |
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Prepayment of Loans |
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29 |
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SECTION 2.12. |
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Fees |
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29 |
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SECTION 2.13. |
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Interest |
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30 |
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SECTION 2.14. |
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Alternate Rate of Interest |
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31 |
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SECTION 2.15. |
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Increased Costs |
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32 |
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SECTION 2.16. |
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Break Funding Payments |
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33 |
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SECTION 2.17. |
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Taxes |
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34 |
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SECTION 2.18. |
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Payments Generally; Pro Rata Treatment; Sharing of Setoffs |
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36 |
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SECTION 2.19. |
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Mitigation Obligations; Replacement of Lenders |
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38 |
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SECTION 2.20. |
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Increase in Commitments |
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39 |
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SECTION 2.21. |
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Determination of Dollar Amounts |
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40 |
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SECTION 2.22. |
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Defaulting Lenders |
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40 |
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ARTICLE III Conditions Precedent to Loans |
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41 |
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SECTION 3.01. |
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Effective Date |
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41 |
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SECTION 3.02. |
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Each Credit Event |
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43 |
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ARTICLE IV Representations and Warranties |
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44 |
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SECTION 4.01. |
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Organization and Good Standing |
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44 |
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SECTION 4.02. |
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Due Authorization |
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44 |
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SECTION 4.03. |
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No Conflicts |
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44 |
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SECTION 4.04. |
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Consents |
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44 |
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SECTION 4.05. |
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Enforceable Obligations |
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44 |
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SECTION 4.06. |
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Financial Condition |
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44 |
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SECTION 4.07. |
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No Default |
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45 |
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SECTION 4.08. |
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No Material Litigation |
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45 |
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SECTION 4.09. |
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Taxes |
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45 |
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SECTION 4.10. |
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Compliance with Law |
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45 |
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SECTION 4.11. |
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ERISA |
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45 |
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SECTION 4.12. |
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Investment Company |
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45 |
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SECTION 4.13. |
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Environmental Laws |
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45 |
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ARTICLE V Affirmative Covenants |
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45 |
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SECTION 5.01. |
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Information Covenants |
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46 |
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SECTION 5.02. |
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Books and Records; Communication with Accountants |
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47 |
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SECTION 5.03. |
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Compliance with Law |
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47 |
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SECTION 5.04. |
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Payment of Taxes |
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47 |
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SECTION 5.05. |
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Insurance |
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47 |
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SECTION 5.06. |
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ERISA |
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47 |
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SECTION 5.07. |
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Use of Proceeds |
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48 |
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ARTICLE VI Negative Covenants |
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48 |
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SECTION 6.01. |
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[Intentionally Omitted] |
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48 |
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SECTION 6.02. |
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Indebtedness |
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48 |
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SECTION 6.03. |
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Consolidation, Merger |
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49 |
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SECTION 6.04. |
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Transfer of Assets |
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49 |
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SECTION 6.05. |
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Transactions with Affiliates |
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49 |
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SECTION 6.06. |
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Liens |
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49 |
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SECTION 6.07. |
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Swap Agreements |
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50 |
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SECTION 6.08. |
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Subsidiary Borrower |
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50 |
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ARTICLE VII Events of Default |
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50 |
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SECTION 7.01. |
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Events of Default |
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50 |
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ARTICLE VIII The Administrative Agent |
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53 |
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ARTICLE IX Guarantee |
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55 |
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ARTICLE X Miscellaneous |
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56 |
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SECTION 10.01. |
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Notices |
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56 |
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SECTION 10.02. |
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Waivers; Amendments |
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57 |
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SECTION 10.03. |
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Expenses; Indemnity; Damage Waiver |
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58 |
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SECTION 10.04. |
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Successors and Assigns |
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59 |
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SECTION 10.05. |
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Survival |
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62 |
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SECTION 10.06. |
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Counterparts; Integration; Effectiveness |
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63 |
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SECTION 10.07. |
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Severability |
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63 |
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SECTION 10.08. |
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Right of Setoff |
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63 |
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SECTION 10.09. |
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Governing Law; Jurisdiction; Consent to Service of Process |
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63 |
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SECTION 10.10. |
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WAIVER OF JURY TRIAL |
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64 |
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SECTION 10.11. |
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Headings |
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64 |
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SECTION 10.12. |
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Confidentiality |
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65 |
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SECTION 10.13. |
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Interest Rate Limitation |
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65 |
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SECTION 10.14. |
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USA Patriot Act |
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65 |
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SECTION 10.15. |
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Judgment |
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65 |
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SECTION 10.16. |
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No Advisory or Fiduciary Responsibility |
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66 |
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EXHIBITS
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Exhibit A
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Form of Assignment and Assumption |
Exhibit B-1
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Form of Opinion of the Borrowers General Counsel |
Exhibit B-2
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Form of Opinion of the Borrowers Special U.S. Counsel Latham & Watkins LLP |
Exhibit B-3
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Form of Opinion of the Borrowers Special Cayman Counsel Charles Adams Ritchie & Duckworth |
Exhibit C
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Form of Financial Covenant Compliance Certificate |
Exhibit D
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Form of Responsible Party Certificate |
Exhibit E-1
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Form of Revolving Loan Promissory Note |
Exhibit E-2
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Form of Competitive Loan Promissory Note |
SCHEDULES
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Schedule 2.01
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Commitments |
Schedule 2.02
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Mandatory Cost |
Schedule 4.08
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Litigation |
Schedule 6.02
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Indebtedness |
iii
CREDIT AGREEMENT (the Agreement) dated as of October 20, 2011, among HUBBELL
INCORPORATED, HUBBELL CAYMAN LIMITED, HUBBELL INVESTMENTS LIMITED, the Lenders party hereto and
JPMORGAN CHASE BANK, N.A., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01. Definitions. As used herein, the following terms shall have the meanings herein specified unless
the context otherwise requires:
ABR, when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans
comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base
Rate.
Adjusted LIBO Rate means, 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 sum of (i) (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory
Reserve Rate plus, without duplication (ii) in the case of Loans by a Lender from its office or
branch in the United Kingdom or any Participating Member State, the Mandatory Cost.
Administrative Agent means JPMorgan Chase Bank, N.A. (including its branches and
affiliates), in its capacity as administrative agent for the Lenders hereunder.
Administrative Questionnaire means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under direct or indirect common Control with such Person.
Agreed Currencies means (i) Dollars, (ii) euro, (iii) Pounds Sterling, (iv) Canadian
Dollars, (v) Swiss Francs and (vi) any other Foreign Currency that is (x) a lawful currency (other
than Dollars) that is readily available and freely transferable and convertible into Dollars, (y)
available in the London interbank deposit market and (z) agreed to by the Administrative Agent and
each of the Lenders.
Alternate Base Rate means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% 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%, provided that, for
the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate appearing on
Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at approximately
11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the
Prime 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 Prime Rate, the Federal Funds Effective Rate or
the Adjusted LIBO Rate, respectively.
Applicable Facility Fee Rate means, for any day that percent per annum set forth
below opposite the Debt Ratings in effect on such day:
1
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Debt Ratings |
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(S&P/Fitch/Moodys) |
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Applicable Facility Fee Rate |
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Level 1
AA- or higher/AA- or higher/Aa3 or
higher |
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0.040 |
% |
Level 2
A+/A+/A1 |
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0.050 |
% |
Level 3
A/A/A2 |
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0.080 |
% |
Level 4
A-/A-/A3 |
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0.100 |
% |
Level 5
BBB+/BBB+/Baa1 |
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0.125 |
% |
Level 6
BBB or lower/BBB or lower/Baa2 or
lower |
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0.150 |
% |
Applicable LIBOR Interest Addition means, for any day that percent per annum set
forth below opposite the Debt Ratings in effect on such day:
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Debt Ratings |
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Applicable LIBOR |
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(S&P/Fitch/Moodys) |
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Interest Addition |
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Level 1
AA- or higher/AA- or higher/Aa3 or higher |
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0.460 |
% |
Level 2
A+/A+/A1 |
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0.575 |
% |
Level 3
A/A/A2 |
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0.670 |
% |
Level 4
A-/A-/A3 |
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0.775 |
% |
Level 5
BBB+/BBB+/Baa1 |
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0.875 |
% |
Level 6
BBB or lower/BBB or lower/Baa2 or lower |
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0.975 |
% |
Applicable Percentage means, with respect to any Lender, the percentage of the total
Commitments represented by such Lenders Commitment; provided that, in the case of Section
2.22 when a Defaulting Lender shall exist, Applicable Percentage shall mean the percentage of the
total Commitments (disregarding any Defaulting Lenders Commitment) represented by such Lenders
Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to any assignments and
to any Lenders status as a Defaulting Lender at the time of determination.
2
Approved Fund has the meaning assigned to such term in Section 10.04.
Assignment and Assumption means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 10.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
Availability Period means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.
Banking Services means each and any of the following bank services provided to the
Company or any Subsidiary by any Lender or any of its Affiliates: (a) credit cards for commercial
customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored
value cards and (c) treasury management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items, overdrafts and interstate
depository network services).
Bankruptcy Event means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.
Board means the Board of Governors of the Federal Reserve System of the United
States of America.
Borrowers means the Company and the Subsidiary Borrowers.
Borrowing means (a) Revolving Loans to the same Borrower of the same Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect, (b) a Competitive Loan or group of Competitive Loans to the
same Borrower of the same Type made on the same date and as to which a single Interest Period is in
effect or (c) a Swingline Loan.
Borrowing Request means a request by a Borrower for a Revolving Borrowing in
accordance with Section 2.03 and, if such request is in writing, in the form approved by the
Administrative Agent from time to time.
Business Day means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurocurrency Loan, the term Business
Day shall also exclude (i) with respect to any Eurocurrency Loans denominated in Dollars, any
day on which banks are not open for dealings in Dollar deposits in the London interbank market and
(ii) with respect to any Eurocurrency Loans denominated in a Foreign Currency, any day on which
banks are not open for dealings in such Foreign Currency in the principal financial center of the
country in which payment or purchase of such
Foreign Currency can be made (and, if the Borrowings or LC Disbursements which are the subject
of a borrowing, drawing, payment, reimbursement or rate selection are denominated in euro, the term
Business Day shall also exclude any day on which the TARGET2 payment system is not open for the
settlement of payments in euro).
3
Canadian Dollars means the lawful currency of Canada.
Capital Lease Obligations of any Person means 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 the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Change in Law means the occurrence, after the date of this Agreement (or with
respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority, or (c) the making or issuance of any request,
rules, guideline, requirement or directive (whether or not having the force of law) by any
Governmental Authority; provided however, that notwithstanding anything herein to the
contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines, requirements and directives thereunder, issued in connection therewith or in
implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of
the date enacted, adopted, issued or implemented.
Class, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Competitive Loans or Swingline Loans.
CLO has the meaning assigned to such term in Section 10.04.
Code means the Internal Revenue Code of 1986, as amended from time to time.
Commitment means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lenders Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant
to Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04.
The initial amount of each Lenders Commitment is set forth on Schedule 2.01, or in the Assignment
and Assumption or other documentation contemplated hereby pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial aggregate amount of the Lenders Commitments is
$500,000,000.
Company means Hubbell Incorporated, a Connecticut corporation.
Competitive Bid means an offer by a Lender to make a Competitive Loan in accordance
with Section 2.04.
Competitive Bid Rate means, with respect to any Competitive Bid, the Margin or the
Fixed Rate, as applicable, offered by the Lender making such Competitive Bid.
4
Competitive Bid Request means a request by any Borrower for Competitive Bids in
accordance with Section 2.04.
Competitive Loan means a Loan made pursuant to Section 2.04.
Computation Date is defined in Section 2.21.
Consistent Basis means, with regard to the application of accounting principles,
accounting principles consistent in all material respects with the accounting principles used and
applied in preparation of the audited financial statements previously delivered to the Lenders and
referred to in Section 4.06, except as to changes required or permitted by GAAP.
Continuing Directors means the directors of the Company on the Effective Date, and
each other director, if, in each case, such other directors nomination is recommended by at least
662/3% of the then Continuing Directors.
Control means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. The terms Controlling and Controlled have
meanings correlative thereto.
Controlled Group means (i) the controlled group of corporations as defined in
Section 414(b) of the Code and the applicable regulations thereunder, or (ii) the group of trades
or businesses under common control as defined in Section 414(c) of the Code and the applicable
regulations thereunder, of which the Company is a part or may become a part.
Credit Event means a Borrowing, the issuance of a Letter of Credit or an LC
Disbursement.
Credit Party means the Administrative Agent, the Issuing Bank, the Swingline Lender
or any other Lender.
Debt Ratings means, as of any date of determination, the rating as announced by
Standard & Poors Ratings Services, a Standard & Poors Financial Services LLC business
(S&P), Fitch Ratings (Fitch) and Moodys Investors Services, Inc.
(Moodys) of
(a) the Companys senior unsecured long-term indebtedness for borrowed money that is
not Guaranteed by any other Person or subject to any other credit enhancement; or
(b) if the applicable rating agency does not have a rating in effect with respect to
the Companys debt referred to in the foregoing clause (a), the credit facility provided for
herein or, if no such rating is in effect, the rating of the Companys other senior
unsecured debt securities;
provided that, if the applicable Debt Ratings announced by S&P, Fitch and Moodys fall
within different levels, the middle Debt Rating shall govern for the purposes of determining the
Applicable Facility Fee Rate and the Applicable LIBOR Interest Addition (provided that if two of
such Debt Ratings fall within the same level (the majority level), the majority level
shall govern for the purposes of determining the Applicable Facility Fee Rate and the Applicable
LIBOR Interest Addition. If any of Moodys, S&P or Fitch shall not have in effect a Debt Rating
(other than by reason of the circumstances described in the next succeeding sentence), then the
higher Debt Rating of the two remaining rating agencies which have a Debt Rating in effect shall
govern for purposes of determining the Applicable Facility Fee Rate and the Applicable LIBOR
Interest Addition unless the Debt Ratings are more than one level apart, in which case
the level one level lower than the higher Debt Rating shall govern for purposes of determining the
Applicable Facility Fee Rate and the Applicable LIBOR Interest Addition, and if only one of
Moodys, S&P or Fitch has in effect a Debt Rating (other than by reason of the circumstances
described in the next succeeding sentence), then the Debt Rating of the rating agency which has a
Debt Rating in effect shall govern for purposes of determining the Applicable Facility Fee Rate and
the
5
Applicable
LIBOR Interest Addition. If the rating system of Moodys, S&P or Fitch shall
materially change, or if each such rating agency shall cease to be in the business of rating
corporate debt obligations or shall not have in effect a Debt Rating, the Borrowers and the Lenders
shall negotiate in good faith to amend this definition to reflect such changed rating system or the
unavailability of Debt Ratings from such rating agencies, and, pending the effectiveness of any
such amendment, the Debt Ratings shall be determined by reference to the ratings most recently in
effect prior to such change or cessation; provided further that after 90 days, if
no such amendment becomes effective, the Applicable Facility Fee Rate shall be 0.100% per annum and
any Eurocurrency Loan then outstanding shall convert to an ABR Loan at the end of the applicable
Interest Period. Any change in the Debt Rating shall be effective as of the date on which it is
first announced by the applicable rating agency and notice of such change shall be provided by the
Company to the Administrative Agent no more than five Business Days after the date of such
announcement.
Default means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
Defaulting Lender means any Lender that (a) has failed, within two (2) Business Days
of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any
portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any
Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause
(i) above, such Lender notifies the Administrative Agent in writing that such failure is the result
of such Lenders good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied, (b) has notified
the Company or any Credit Party in writing, or has made a public statement to the effect, that it
does not intend or expect to comply with any of its funding obligations under this Agreement
(unless such writing or public statement indicates that such position is based on such Lenders
good faith determination that a condition precedent (specifically identified and including the
particular default, if any) to funding a loan under this Agreement cannot be satisfied) or
generally under other agreements in which it commits to extend credit, (c) has failed, within three
(3) Business Days after request by a Credit Party, acting in good faith, to provide a certification
in writing from an authorized officer of such Lender that it will comply with its obligations (and
is financially able to meet such obligations) to fund prospective Loans and participations in then
outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender
shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Partys receipt
of such certification in form and substance satisfactory to it and the Administrative Agent, or (d)
has become the subject of a Bankruptcy Event.
Documentation Agent means each of Bank of America, N.A. and U.S. Bank National
Association in its capacity as co-documentation agent for the credit facility evidenced by this
Agreement.
Dollar Amount of any currency at any date shall mean (i) the amount of such currency
if such currency is Dollars or (ii) the equivalent in such currency of Dollars if such currency is
a Foreign Currency, calculated on the basis of the Exchange Rate for such currency, on or as of the
most recent Computation Date provided for in Section 2.21.
Dollars and the symbol $ means dollars constituting legal tender for the
payment of public and private debts in the United States of America.
6
Effective Date means the date on which the conditions specified in Section 3.01 are
satisfied (or waived in accordance with Section 10.02).
Environmental Laws means any applicable federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license regulating, relating to, or
imposing liability or standards of conduct concerning, any environmental matters.
Equivalent Amount of any currency with respect to any amount of Dollars at any date
shall mean the equivalent in such currency of such amount of Dollars, calculated on the basis of
the Exchange Rate for such other currency at 11:00 a.m., London time, on the date on or as of which
such amount is to be determined.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and the rulings issued thereunder.
ERISA Affiliate means each person (as defined in Section 3(9) of ERISA) which,
together with the Company or any Subsidiary, would be deemed to be a member of the same Controlled
Group.
EU means the European Union.
euro and/or EUR means the single currency of the participating member
states of the EU.
Eurocurrency, when used in reference to a currency means an Agreed Currency and when
used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such
Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
Eurocurrency Payment Office of the Administrative Agent shall mean, for each Foreign
Currency, the office, branch, affiliate or correspondent bank of the Administrative Agent for such
currency as specified from time to time by the Administrative Agent to the Company and each Lender.
Event of Default has the meaning specified in Article VII.
Exchange Rate means, on any day, with respect to any Foreign Currency, the rate at
which such Foreign Currency may be exchanged into Dollars, as set forth at approximately 11:00
a.m., Local Time, on such date on the Reuters World Currency Page for such Foreign Currency. In
the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with
respect to such Foreign Currency shall be determined by reference to such other publicly available
service for displaying exchange rates as may be reasonably selected by the Administrative Agent or,
in the event no such service is selected, such Exchange Rate shall instead be calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the Person serving as
the Administrative Agent for such Foreign Currency on the London market at 11:00 a.m., Local Time,
on such date for the purchase of Dollars with such Foreign Currency, for delivery two (2) Business
Days later; provided, that if at the time of any such determination, for any reason, no
such spot rate is being quoted, the Administrative Agent, after consultation with the Company, may
use any reasonable method it deems appropriate to determine such rate, and such determination shall
be conclusive absent manifest error.
Existing Credit Agreement means that certain Credit Agreement, dated as of October
31, 2007, by and among Hubbell Incorporated, Hubbell Cayman Limited, Hubbell Investments Limited,
the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent thereunder,
as the same may have been amended, restated, supplemented or otherwise modified prior to the date
hereof.
7
Excluded Taxes means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) income or franchise Taxes imposed on (or measured by) its net income (or franchise
taxes in lieu of net income taxes) imposed by the United States of America (or any subdivision
thereof or therein), or by the jurisdiction (or any subdivision thereof or therein) under the laws
of which such recipient is organized or in which its principal office is located or, in the case of
any Lender, in which its applicable lending office is located, or in which it is subject to such
taxation as a result of a present or former connection between such Administrative Agent, Lender,
or other recipient and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any such connection
arising only as a result of the Administrative Agent, Lender, or other recipient having executed,
delivered or performed its obligations or received a payment under, or enforced, this Agreement),
(b) any branch profits Taxes imposed by the United States of America or any similar Tax imposed by
any other jurisdiction in which any Borrower is located, (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by any Borrower under Section 2.19(b)), any withholding tax
that is imposed on amounts payable to such Foreign Lender resulting from any law in effect on the
date such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lenders failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new lending office (or assignment), to receive additional amounts from the Borrowers with
respect to such withholding tax pursuant to Section 2.17(a) and (d) any U.S. federal Taxes imposed
under FATCA.
FATCA means Sections 1471 through 1474 of the Code, as of the date of this Agreement
(or any amended version that is substantially comparable and not materially more onerous to comply
with), and any regulations or official interpretations thereof.
Federal Funds Effective Rate means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Fixed Rate means, with respect to any Competitive Loan (other than a Eurocurrency
Competitive Loan), the fixed rate of interest per annum specified by the Lender making such
Competitive Loan in its related Competitive Bid.
Fixed Rate Loan means a Competitive Loan bearing interest at a Fixed Rate.
Foreign Currencies means Agreed Currencies other than Dollars.
Foreign Currency LC Exposure means, at any time, the sum of (a) the Dollar Amount of
the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at
such time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect of
Foreign Currency Letters of Credit that have not yet been reimbursed at such time.
Foreign Currency Letter of Credit means a Letter of Credit denominated in a Foreign
Currency.
8
Foreign Lender means, with respect to any Borrower, any Lender that is organized
under the laws of a jurisdiction other than that in which such Borrower is located. 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.
GAAP means generally accepted accounting principles in the United States of America.
Governmental Authority means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
Guarantee of or by any Person (the guarantor) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the primary
obligor) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) 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 or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
Indebtedness of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers acceptances, (k) all obligations of such Person in respect of Swap Agreements
and (l) all obligations of such Person to make lease payments or other payments under any
synthetic lease. The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Persons ownership interest in or other relationship
with such entity, except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
Indemnified Taxes means Taxes that are imposed on or with respect to any payment
made by or on account of any obligation of any Borrower hereunder other than Excluded Taxes and
Other Taxes.
Intellectual Property means all intellectual and similar property, including
inventions, designs, patents, patent registrations and applications, trademarks, trademark
registrations and
applications, trade dress, service marks, copyrights, copyright registrations and
applications, know-how and trade secrets.
9
Interest Election Request means a request by any Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.08.
Interest Payment Date means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December and the Maturity Date, (b) with
respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period
of more than three months duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months duration after the first day of such Interest Period and the
Maturity Date, (c) with respect to any Fixed Rate 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 Fixed Rate Borrowing
with an Interest Period of more than 90 days duration (unless otherwise specified in the
applicable Competitive Bid Request), each day prior to the last day of such Interest Period that
occurs at intervals of 90 days duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as Interest Payment Dates with
respect to such Borrowing and (d) with respect to any Swingline Loan, the day that such Loan is
required to be repaid and the Maturity Date.
Interest Period means (a) with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months (or, with the consent of each Lender, nine or
twelve months) thereafter, as the applicable Borrower may elect and (b) with respect to any Fixed
Rate Borrowing, the period (which shall not be less than seven days or more than 360 days)
commencing on the date of such Borrowing and ending on the date specified in the applicable
Competitive Bid Request; provided that (i) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that commences on
the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of
a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a
Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
Issuing Bank means JPMorgan Chase Bank, N.A., in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.06(i).
The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term Issuing Bank shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.
LC Collateral Account has the meaning assigned to such term in Section 2.06(j).
LC Disbursement means a payment made by the Issuing Bank pursuant to a Letter of
Credit.
LC Exposure means, at any time, the sum of (a) the aggregate undrawn Dollar Amount
of all outstanding Letters of Credit at such time plus (b) the aggregate Dollar Amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Company at such time. The
LC
Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.
10
Lenders means the Persons listed on Schedule 2.01 and any other Person that shall
have become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption. Unless the context otherwise requires, the term Lenders includes the Swingline
Lender.
Letter of Credit means any letter of credit issued pursuant to this Agreement.
LIBO Rate means, with respect to any Eurocurrency Borrowing for any Interest Period,
the rate appearing on, in the case of a Eurocurrency Borrowing denominated in Dollars, Reuters
Screen LIBOR01 Page and, in the case of any Eurocurrency Borrowing denominated in a Foreign
Currency, the appropriate page of such service which displays British Bankers Association Interest
Settlement Rates for deposits in such Foreign Currency (or, in each case, on any successor or
substitute page of such service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such service, as determined by
the Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to deposits in the relevant Agreed Currency in the London interbank market) at
approximately 11:00 a.m., London time, two (2) Business Days prior to (or, in the case of Loans
denominated in Pounds Sterling, on the day of) the commencement of such Interest Period, as the
rate for deposits in the relevant Agreed Currency with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any reason, then the
LIBO Rate with respect to such Eurocurrency Borrowing for such Interest Period shall be
the rate at which deposits in the relevant Agreed Currency in an Equivalent Amount of $5,000,000
and for a maturity comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two (2) Business Days prior to (or, in the case of Loans
denominated in Pounds Sterling, on the day of) the commencement of such Interest Period.
Lien means any interest in property securing any obligation owed to, or a claim by,
a Person other than the owner of the property, and including but not limited to the lien or
security interest arising from a mortgage, encumbrance, pledge or security agreement. For the
purposes of this Agreement, the Company and any Subsidiary shall be deemed to be the owner of any
property which it has acquired or holds subject to a conditional sale agreement, financing lease,
or other arrangement pursuant to which title to the property has been retained by or vested in some
other Person for security purposes.
Loan means a loan made by a Lender to a Borrower pursuant to this Agreement.
Loan Documents means this Agreement, any promissory notes issued pursuant to Section
2.10(e), any Letter of Credit applications and any and all other agreements, instruments, documents
and certificates identified in Section 3.01 executed and delivered to, or in favor of, the
Administrative Agent or any Lenders and including all other pledges, powers of attorney, consents,
assignments, contracts, notices, letter of credit agreements and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Borrower, or any employee of any
Borrower, and delivered to the Administrative Agent or any Lender in connection with this Agreement
or the transactions contemplated hereby. Any reference in this Agreement or any other Loan
Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all
amendments, restatements, supplements or other modifications thereto, and shall refer to this
Agreement or such Loan Document as the same may be in effect at any and all times such reference
becomes operative.
11
Local Time means (i) New York City time in the case of a Loan, Borrowing or LC
Disbursement denominated in Dollars and (ii) local time in the case of a Loan, Borrowing or LC
Disbursement denominated in a Foreign Currency (it being understood that such local time shall mean
London, England time unless otherwise notified by the Administrative Agent).
Mandatory Cost is described in Schedule 2.02.
Margin means, with respect to any Competitive Loan bearing interest at a rate based
on the LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted from the LIBO
Rate to determine the rate of interest applicable to such Loan, as specified by the Lender making
such Loan in its related Competitive Bid.
Material Adverse Effect means a material adverse effect on (i) the business, assets,
operations or financial condition of the Company and its Subsidiaries, taken as a whole, (ii) the
ability of a Borrower to perform its payment obligations under this Agreement or (iii) the validity
or enforceability of this Agreement, or the rights and remedies of the Lenders hereunder.
Maturity Date means October 20, 2016.
Multiemployer Plan means an employee pension benefit plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the Controlled Group is then making or accruing
an obligation to make contributions or has within the preceding three plan years made
contributions, including for these purposes any Person which ceased to be a member of the
Controlled Group during such three year period.
Net Worth means, at any date, stockholders equity of the Company at such time
determined in accordance with GAAP applied on a Consistent Basis.
Other Taxes means any and all present or future stamp or documentary Taxes or any
other excise or property Taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement
(other than any such Excluded Taxes imposed on assignments following the primary syndication or any
sale of participations).
Overnight Foreign Currency Rate means, for any amount payable in a Foreign Currency,
the rate of interest per annum as determined by the Administrative Agent at which overnight or
weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three
Business Days, then for such other period of time as the Administrative Agent may elect) for
delivery in immediately available and freely transferable funds would be offered by the Person
serving as the Administrative Agent to major banks in the interbank market upon request of such
major banks for the relevant currency as determined above and in an amount comparable to the unpaid
principal amount of the related Credit Event, plus any taxes, levies, imposts, duties, deductions,
charges or withholdings imposed upon, or charged to, the Administrative Agent by any relevant
correspondent bank in respect of such amount in such relevant currency.
Parent means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.
Participant has the meaning set forth in Section 10.04.
Participant Register has the meaning set forth in Section 10.04.
12
Participating Member State means any member state of the European Union that adopts
or has adopted the euro as its lawful currency in accordance with legislation of the European Union
relating to economic and monetary union.
PBGC means the Pension Benefit Guaranty Corporation established under ERISA, and any
successor thereto.
Permitted Encumbrances means:
(a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.04;
(b) carriers, warehousemens, mechanics, materialmens, repairmens and other like
Liens imposed by law, arising in the ordinary course of business;
(c) pledges and deposits made in the ordinary course of business in compliance with
workers compensation, unemployment insurance or other social security laws or regulations
(other than ERISA);
(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business; and
(e) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Company or any Subsidiary.
Person means any individual, partnership, joint venture, limited liability company,
firm, corporation, association, trust or other enterprise (whether or not incorporated), or any
Governmental Authority.
Plan means any multiemployer or single-employer plan as defined in Section 4001 of
ERISA, which is maintained, or at any time during the three calendar years preceding the date of
this Agreement was maintained, for employees of the Company, any Subsidiary or an ERISA Affiliate.
Pounds Sterling means the lawful currency of the United Kingdom.
Prime Rate means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
Principal Property means, in respect of any Lien: (a) any manufacturing facility of,
or other real property owned by, the Company or any of its Subsidiaries located in the United
States of America, (b) any accounts receivable, inventory or Intellectual Property of the Company
or any of its domestic Subsidiaries or (c) any shares of capital stock, other equity ownership
interests or intercompany indebtedness of any Subsidiary that owns any of the foregoing.
Register has the meaning set forth in Section 10.04.
13
Regulation D means Regulation D of the Board as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
Regulation T, U or X means Regulation T, U or X, as applicable, of the Board as from
time to time in effect and any successor to all or a portion thereof establishing margin
requirements.
Related Parties means, with respect to any specified Person, such Persons
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Persons Affiliates.
Required Lenders means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time; provided that, for purposes of declaring the Loans to
be due and payable pursuant to Article VII, and for all purposes after the Commitments expire or
terminate, the outstanding Competitive Loans of the Lenders shall be included in their respective
Revolving Credit Exposures in determining the Required Lenders.
Responsible Party means the chief executive officer, president or chief financial
officer of the Company.
Revolving Credit Exposure means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lenders Revolving Loans and its LC Exposure and Swingline
Exposure at such time.
Revolving Loan means a Loan made pursuant to Section 2.03.
Significant Subsidiary means, at any time, any Subsidiary that would be a
significant subsidiary within the meaning of Regulation S-X of the Securities and Exchange
Commission.
Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve, liquid asset, fees or similar requirements (including any marginal, special,
emergency or supplemental reserves or other requirements) established by any central bank, monetary
authority, the Board, the Financial Services Authority, the European Central Bank or other
Governmental Authority for any category of deposits or liabilities customarily used to fund loans
in the applicable currency, expressed in the case of each such requirement as a decimal. Such
reserve, liquid asset, fees or similar requirements shall, in the case of Dollar denominated Loans,
include those imposed pursuant to Regulation D of the Board. Eurocurrency Loans shall be deemed to
be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under
any applicable law, rule or regulation, including Regulation D of the Board. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any change in any reserve,
liquid asset or similar requirement.
Subsidiary means with respect to a Person, at any date, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation (irrespective of whether or not at the
time, any class or classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (ii) any partnership, association, joint venture or other entity in which
such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at any
time. Except as otherwise expressly provided, all references herein to Subsidiary shall mean a
Subsidiary of the Company.
14
Subsidiary Borrower means each of Hubbell Cayman Limited, a Cayman Islands
corporation and a wholly owned Subsidiary and Hubbell Investments Limited, a Cayman Islands
corporation and a wholly owned Subsidiary.
Subsidiary Obligations means (a) the obligation of each Subsidiary Borrower to pay
the principal of and premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans made to it and all LC Exposure in respect of
such Subsidiary Borrower, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise, and (b) all other monetary obligations, including fees,
costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Subsidiary Borrowers under this Agreement.
Swap Agreement means 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 Company or the Subsidiaries shall be a
Swap Agreement.
Swingline Exposure means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.
Swingline Lender means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.
Swingline Loan means a Loan made pursuant to Section 2.05.
Swiss Francs means the lawful currency of Switzerland.
Syndication Agent means each of Wells Fargo Securities, LLC and HSBC Bank USA,
National Association, each in its capacity as co-syndication agent for the credit facility
evidenced by this Agreement.
Tangible Net Worth means, at any date, the excess of total assets over total
liabilities of the Company and its Subsidiaries as of such date determined on a consolidated basis
in accordance with GAAP applied on Consistent Basis, excluding, however, from the determination of
total assets (i) goodwill, capitalized research and development expenses, Intellectual Property,
licenses and rights if any in respect thereof, and other similar intangibles and (ii) any items not
included in clause (i) above which are treated as intangibles in conformity with GAAP.
TARGET2 means the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other
payment system (if any) reasonably determined by the Administrative Agent to be a suitable
replacement) for the settlement of payments in euro.
15
Taxes means any and all present or future taxes, levies, imposts, duties,
deductions, fees, assessments, charges or withholdings imposed by any Governmental Authority
(including any interest, additions to tax or penalties applicable thereto).
Total Capitalization means, at any date, the sum of (a) total Indebtedness of the
Company and its Subsidiaries on a consolidated basis as of such date and (b) Net Worth as of such
date.
Type, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate, the Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the
LIBO Rate or a Fixed Rate.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a Revolving Loan) or by Type (e.g., a Eurocurrency Loan) or by Class and
Type (e.g., a Eurocurrency Revolving Loan). Borrowings also may be classified and
referred to by Class (e.g., a Revolving Borrowing) or by Type (e.g., a
Eurocurrency Borrowing) or by Class and Type (e.g., a Eurocurrency Revolving
Borrowing).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words include, includes and
including shall be deemed to be followed by the phrase without limitation. The word will
shall be construed to have the same meaning and effect as the word shall. The word law shall
be construed as referring to all statutes, rules, regulations, codes and other laws (including
official rulings and interpretations thereunder having the force of law or with which affected
Persons customarily comply), and all judgments, orders and decrees, of all Governmental
Authorities. Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, restatements, supplements or
modifications set forth herein), (b) any definition of or reference to any statute, rule or
regulation shall be construed as referring thereto as from time to time amended, supplemented or
otherwise modified (including by succession of comparable successor laws), (c) any reference herein
to any Person shall be construed to include such Persons successors and assigns (subject to any
restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any
other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the
words herein, hereof and hereunder, and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (e) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (f) the words asset and property
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Company that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such
16
notice
shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial
nature used herein shall be construed, and all computations of amounts and ratios referred to
herein shall be made (i) without giving effect to any election under Accounting Standards
Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting
Standard having a similar result or effect) to value any Indebtedness or other liabilities of the
Company or any Subsidiary at fair value, as defined therein and (ii) without giving effect to any
treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards
Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting
Standard having a similar result or effect) to value any such Indebtedness in a reduced or
bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the
full stated principal amount thereof.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each Lender agrees to make
Revolving Loans to the Company or the Subsidiary Borrowers in Agreed Currencies from time to time
during the Availability Period in an aggregate principal amount that will not result in (a) subject
to Sections 2.11(c) and 2.21, the Dollar Amount of such Lenders Revolving Credit Exposure
exceeding such Lenders Commitment, (b) subject to Sections 2.11(c) and 2.21, the sum of the Dollar
Amount of total Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the total Commitments or (c) subject to Sections 2.11(c) and 2.21, the
sum of the Dollar Amount of total Revolving Credit Exposures with respect to Revolving Loans and
Letters of Credit to the Subsidiary Borrowers plus the aggregate principal amount of outstanding
Competitive Loans to the Subsidiary Borrowers exceeding $50,000,000. Within the foregoing limits
and subject to the terms and conditions set forth herein, each Borrower may borrow, prepay and
reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan (other than a Swingline Loan) shall be made as part of a
Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. Each Competitive Loan shall be made in accordance with the procedures set
forth in Section 2.04. 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
and Competitive Bids of the Lenders are several and no Lender shall be responsible for any other
Lenders failure to make Loans as required. Any Swingline Loan shall be made in accordance with
the procedures set forth in Section 2.05.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be comprised entirely of ABR
Loans or Eurocurrency Loans as the applicable Borrower may request in accordance herewith; provided
that each ABR Loan shall only be made in Dollars, and (ii) each Competitive Borrowing shall be
comprised entirely of Eurocurrency Loans or Fixed Rate Loans, in each case in Dollars, as the
applicable Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR Loan.
Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14,
2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent as to such Lender);
provided that any exercise of such option shall not affect the obligation of the applicable
Borrower to repay such Loan in accordance with the terms of this Agreement.
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(c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 (or, if such
Borrowing is denominated in a Foreign Currency, 1,000,000 units of such currency) and not less than
$5,000,000 (or, if such Borrowing is denominated in a Foreign Currency, 5,000,000 units of such
currency). At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(e). Each Competitive Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000. Each
Swingline Loan shall be in an amount that is an integral multiple of $500,000 and not less than
$1,000,000. Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of 15 Eurocurrency Revolving
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, a Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing, the applicable Borrower shall notify the
Administrative Agent of such request (a) by written notice (via a written Borrowing Request signed
by the applicable Borrower promptly followed by telephonic confirmation of such request) in the
case of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time, three (3) Business Days
before the date of the proposed Borrowing or (b) by telephone in the case of an ABR Borrowing, not
later than 11:00 a.m., New York City time, on the date of the proposed Borrowing; provided
that any such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e) may be given not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such written Borrowing Request shall be
irrevocable, but may be conditional upon the occurrence of certain events, in which case such
notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date of such events) if such events occur. Each such telephonic Borrowing
Request shall be irrevocable, but may be conditional upon the occurrence of certain events, in
which case such notice may be revoked by the Company (by notice to the Administrative Agent on or
prior to the specified effective date of such events) if such events occur, and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request
signed by the applicable Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrower in respect of the requested Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(v) in the case of a Eurocurrency Borrowing, the Agreed Currency and the initial
Interest Period to be applicable thereto, which shall be a period contemplated by the
definition of the term Interest Period; and
(vi) the location and number of the applicable Borrowers account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.07.
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If no election as to the Type of Revolving Borrowing is specified, then, in the case of a Borrowing
denominated in Dollars, the requested Revolving Borrowing shall be an ABR Borrowing. If no
Interest
Period is specified with respect to any requested Eurocurrency Revolving Borrowing, then the
applicable Borrower shall be deemed to have selected an Interest Period of one months duration.
If no election as to the identity of the Borrower is specified, the requested Borrowing shall be
made to the Company. 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 Lenders Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms and conditions set forth herein, from time to time during
the Availability Period any Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans in Dollars; provided
that (i) the sum of the Dollar Amount of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed the total
Commitments and (ii) the sum of the Dollar Amount of the total Revolving Credit Exposures with
respect to Revolving Loans made to the Subsidiary Borrowers plus the aggregate principal amount of
outstanding Competitive Loans made to the Subsidiary Borrowers at any time shall not exceed
$50,000,000. To request Competitive Bids, the applicable Borrower shall notify the Administrative
Agent of such request by telephone, in the case of a Eurocurrency Borrowing, not later than 11:00
a.m., New York City time, four Business Days before the date of the proposed Borrowing and, in the
case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that the Borrowers may submit up to
(but not more than) two Competitive Bid Requests on the same day, but a Competitive Bid Request
shall not be made within five Business Days after the date of any previous Competitive Bid Request,
unless any and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in a form approved by the Administrative Agent and signed by the
applicable Borrower. Each such telephonic and written Competitive Bid Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing or a Fixed Rate
Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which shall be a period
contemplated by the definition of the term Interest Period;
(v) the location and number of the applicable Borrowers account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.07; and
(vi) the identity of the Borrower in respect of such Borrowing.
Promptly following receipt of a Competitive Bid Request in accordance with this Section, the
Administrative Agent shall notify the Lenders of the details thereof by telecopy, inviting the
Lenders to submit Competitive Bids.
19
(b) Each Lender may (but shall not have any obligation to) make one or more Competitive Bids
to the applicable Borrower in response to a Competitive Bid Request. Each Competitive Bid by a Lender must be in a form approved by the Administrative Agent and
must be received by the Administrative Agent by telecopy, in the case of a Eurocurrency Competitive
Borrowing,
not later than 9:30 a.m., New York City time, three Business Days before the proposed date of
such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30 a.m.,
New York City time, on the proposed date of such Competitive Borrowing. Competitive Bids that do
not conform substantially to the form approved by the Administrative Agent may be rejected by the
Administrative Agent, and the Administrative Agent shall notify the applicable Lender as promptly
as practicable. Each Competitive Bid shall specify (i) the principal amount (which shall be a
minimum of $5,000,000 and an integral multiple of $1,000,000 and which may equal the entire
principal amount of the Competitive Borrowing requested by the applicable Borrower) of the
Competitive Loan or Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at which the Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and (iii) the Interest
Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the applicable Borrower by telecopy of the
Competitive Bid Rate and the principal amount specified in each Competitive Bid and the identity of
the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the applicable Borrower may accept or
reject any Competitive Bid. Such Borrower shall notify the Administrative Agent by telephone, confirmed by telecopy in
a form approved by the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Competitive Borrowing, not later than
10:30 a.m., New York City time, three Business Days before the date of the proposed Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City
time, on the proposed date of the Competitive Borrowing; provided that (i) the failure of
such Borrower to give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
such Borrower shall not accept a Competitive Bid made at a particular Competitive Bid Rate if such
Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate amount
of the Competitive Bids accepted by such Borrower shall not exceed the aggregate amount of the
requested Competitive Borrowing specified in the related Competitive Bid Request, (iv) to the
extent necessary to comply with clause (iii) above, such Borrower may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of multiple Competitive Bids
at such Competitive Bid Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000; provided further that if a Competitive Loan
must be in an amount less than $5,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of $1,000,000 in a manner determined by such Borrower. A notice given by such Borrower
pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by telecopy whether or
not its Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so
accepted), and each successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its Competitive Bid has been
accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a
Lender, it shall submit such Competitive Bid directly to the applicable Borrower at least one
quarter of an hour earlier than the time by which the other Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this Section.
20
SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans in Dollars to the Company from time to time during the 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 $50,000,000 or (ii) the Dollar Amount of
the total Revolving Credit Exposures exceeding the total Commitments; provided that the
Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth
herein, the Company may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Company shall notify the Administrative Agent of such
request by telephone (confirmed by a written Borrowing Request), not later than 12:00 noon, New
York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be
a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly
advise the Swingline Lender of any such notice received from the Company. The Swingline Lender
shall make each Swingline Loan available to the Company by means of a credit to the general deposit
account of the Company with the Swingline Lender (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to
the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lenders Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Lenders Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph
is absolute and unconditional and shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans
made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the
Company of any participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and
not to the Swingline Lender. Any amounts received by the Swingline Lender from the Company (or
other party on behalf of the Company) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to
this paragraph and to the Swingline Lender, as their interests may appear; provided that
any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative
Agent, as applicable, if and to the extent such payment is required to be refunded to the Company
for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Company of any default in the payment thereof.
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SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and conditions set forth herein, the Issuing
Bank, in reliance on the agreements of the other Lenders set forth herein,
agrees to issue Letters of Credit for the account of any Borrower or any of its Subsidiaries
on any Business Day during the Availability Period in such form as may be approved from time to
time by the Issuing Bank. Subject to the terms and conditions set forth herein, each Borrower may
request the issuance of Letters of Credit denominated in Agreed Currencies for its own account, in
a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from
time to time during the Availability Period. 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 the relevant Borrower to, or entered into by the
relevant Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions
of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), a Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, 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, the Agreed Currency applicable thereto, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, a Borrower also shall submit a
letter of credit application on the Issuing Banks 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 relevant Borrower shall
be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal
or extension (i) subject to Sections 2.11(c) and 2.21, the Dollar Amount of the LC Exposure shall
not exceed $50,000,000 and (ii) subject to Sections 2.11(c) and 2.21, the sum of the Dollar Amount
of the total Revolving Credit Exposures shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of
(i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of
any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that
is five (5) Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the
amount thereof) and without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lenders Applicable Percentage of the
aggregate Dollar Amount available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Issuing Bank, such Lenders Applicable Percentage
of each LC Disbursement made by the Issuing Bank and not reimbursed by the applicable Borrower on
the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required
to be refunded to a Borrower for any reason. Each 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.
22
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the
relevant Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent in
Dollars the Dollar Amount equal to such LC Disbursement, calculated as of the date the Issuing Bank
made such LC Disbursement (or if the Issuing Bank shall so elect in its sole discretion by notice
to such Borrower, in such other Agreed Currency which was paid by the Issuing Bank pursuant to such
LC Disbursement in an amount equal to such LC Disbursement) not later than 12:00 noon, Local Time,
on the date that such LC Disbursement is made, if the applicable Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., Local Time, on such date, or, if such notice
has not been received by such Borrower prior to such time on such date, then not later than 12:00
noon, Local Time, on the Business Day immediately following the day that such Borrower receives
such notice, if such notice is not received prior to such time on the day of receipt;
provided that, if such LC Disbursement is not less than the Dollar Amount of $1,000,000, a
Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with
Section 2.03 or 2.05 that such payment be financed with an ABR Revolving Borrowing or, in the case
of the Company, a Swingline Loan, in each case in an equivalent Dollar Amount of such LC
Disbursement and, to the extent so financed, the relevant Borrowers obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or, in the case
of the Company, a Swingline Loan. If a Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then
due from the applicable Borrower in respect thereof and such Lenders Applicable Percentage
thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the relevant Borrower, in the same
manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07
shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any payment from a Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear. Any payment
made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve a Borrower of its obligation to reimburse such LC
Disbursement. If a Borrowers reimbursement of, or obligation to reimburse, any amounts in any
Foreign Currency would subject the Administrative Agent, the Issuing Bank or any Lender to any
stamp duty, ad valorem charge or similar tax that would not be payable if such reimbursement were
made or required to be made in Dollars, such Borrower shall, at its option, either (x) pay the
amount of any such tax requested by the Administrative Agent, the Issuing Bank or the relevant
Lender or (y) reimburse each LC Disbursement made in such Foreign Currency in Dollars, in an amount
equal to the Equivalent Amount, calculated using the applicable Exchange Rates, on the date such LC
Disbursement is made, of such LC Disbursement.
(f) Obligations Absolute. The Borrowers obligations to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any 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 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 Borrowers
23
obligations
hereunder. Neither the Administrative Agent, the Lenders nor the 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 the Issuing Bank; provided that
the foregoing shall not be construed to excuse the Issuing Bank from liability to a 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 caused by the Issuing Banks failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part
of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each such determination. In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with the terms of a Letter of
Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any notice or information
to the contrary, or refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall
promptly notify the Administrative Agent and the relevant Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving such notice
shall not relieve any Borrower of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then, unless the relevant Borrower
shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date such LC Disbursement
is made to but excluding the date that such Borrower reimburses such LC Disbursement, at the rate
per annum then applicable to ABR Revolving Loans (or in the case such LC Disbursement is
denominated in a Foreign Currency, at the Overnight Foreign Currency Rate for such Agreed Currency
plus the then effective Applicable LIBOR Interest Addition with respect to Eurocurrency
Revolving Loans); provided that, if a Borrower fails to reimburse such LC Disbursement when
due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to
reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of Issuing Bank. The Issuing Bank may be replaced at any time by written agreement among the Company, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At the time any such
replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the account
of the replaced Issuing Bank pursuant to Section 2.12(b). From and after the effective date of any
such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term Issuing Bank shall be deemed to refer to such successor or to
any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context
shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a
party hereto and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit then outstanding and issued by it prior to
such replacement, but shall not be required to issue additional Letters of Credit.
24
(j) Cash Collateralization. If any Event of Default shall occur and be continuing, and the Company receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure)
demanding cash collateral pursuant to this paragraph, the Company shall not later than 12:00 noon,
Local Time, on the date that notice is received, if the applicable Borrower shall have received
such notice prior to 10:00 a.m., Local Time, on such date, or, if such notice has not been received
by such Borrower prior to such time on such date, then not later than 12:00 noon, Local Time, on
the Business Day immediately following the day that such Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt, deposit cash collateral pursuant
to this paragraph, the Company shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders (the LC Collateral
Account), an amount in cash equal to 103% of the Dollar Amount of the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that (i) the portions of such
amount attributable to undrawn Foreign Currency Letters of Credit or LC Disbursements in a Foreign
Currency that the Borrowers are not late in reimbursing shall be deposited in the applicable
Foreign Currencies in the actual amounts of such undrawn Letters of Credit and LC Disbursements and
(ii) the obligation to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to a Borrower described in Section 7.01(d).
For the purposes of this paragraph, the Foreign Currency LC Exposure shall be calculated using the
applicable Exchange Rate on the date notice demanding cash collateralization is delivered to the
Company. The Company also shall deposit cash collateral pursuant to this paragraph as and to the
extent required by Section 2.11(c). Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of the Administrative Agent and
at the Companys risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such account shall be applied
by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrowers for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy other obligations
under this Agreement. If the Company is required to provide an amount of cash collateral hereunder
as a result of the occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Company within three (3) Business Days after all Events of
Default have been cured or waived.
SECTION 2.07. Funding of Borrowings. (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 Loans denominated
in Dollars, by 12:00 noon, New York City 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 each
Loan denominated in a Foreign Currency, by 12:00 noon, Local Time, in the city of the
Administrative Agents Eurocurrency Payment Office for such currency and such Borrower and at such
Eurocurrency Payment Office for such currency and such Borrower; provided that Swingline
Loans shall be made as provided in Section 2.05. The Administrative Agent
25
will make such Loans
available to the
applicable Borrower by promptly crediting the amounts so received, in like funds, to (x) an
account of such Borrower maintained with the Administrative Agent in New York City and designated
by such Borrower in the applicable Borrowing Request or Competitive Bid Request, in the case of
Loans denominated in Dollars and (y) an account of such Borrower maintained with the Administrative
Agent in the relevant jurisdiction and designated by such Borrower in the applicable Borrowing
Request, in the case of Loans denominated in a Foreign Currency; provided that ABR
Revolving Loans made (i) to finance the reimbursement of an LC Disbursement as provided in Section
2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank and (ii) to finance the
repayment of a Swingline Loan as provided in Section 2.05 shall be remitted by the Administrative
Agent to the Swingline Lender.
(b) Unless the Administrative 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 Lenders 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 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, 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 (including
without limitation the Overnight Foreign Currency Rate in the case of Loans denominated in a
Foreign Currency) or (ii) in the case of such Borrower, the interest rate applicable to ABR Loans.
If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lenders Loan included in such Borrowing.
SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurocurrency Revolving Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the applicable
Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurocurrency Revolving Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The applicable 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
Competitive Borrowings or Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the applicable Borrower shall notify the
Administrative Agent of such election (by telephone or irrevocable written notice in the case of a
Borrowing denominated in Dollars or by irrevocable written notice (via an Interest Election Request
in a form approved by the Administrative Agent and signed by such Borrower) in the case of a
Borrowing denominated in a Foreign Currency) by the time that a Borrowing Request would be required
under Section 2.03 if such Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the applicable Borrower. Notwithstanding any contrary provision
herein, this Section shall not be construed to permit any Borrower to (i) change the currency of
any Borrowing, (ii) elect an Interest Period for Eurocurrency Loans that does not comply with
Section 2.02(d) or (iii) convert any Borrowing to a Borrowing of a Type not available under such
Borrowing.
26
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period and
Agreed Currency to be applicable thereto after giving effect to such election, which
Interest Period shall be a period contemplated by the definition of the term Interest
Period.
If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an
Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period
of one months duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lenders portion of each resulting Borrowing.
(e) If the applicable Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Revolving 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) in the case of a Borrowing denominated in Dollars borrowed by the Company, such
Borrowing shall be converted to an ABR Borrowing and (ii) in the case of a Borrowing denominated in
a Foreign Currency (or in Dollars by a Subsidiary Borrower) in respect of which the applicable
Borrower shall have failed to deliver an Interest Election Request prior to the third (3rd)
Business Day preceding the end of such Interest Period, such Borrowing shall automatically continue
as a Eurocurrency Borrowing in the same Agreed Currency with an Interest Period of one month unless
such Eurocurrency Borrowing is or was repaid in accordance with Section 2.11. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and
is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Company, then, so long as an Event of Default is continuing (i) no outstanding Revolving Borrowing
borrowed by the Company may be converted to or continued as a Eurocurrency Borrowing, (ii) unless
repaid, each Eurocurrency Revolving Borrowing borrowed by the Company shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto and (iii) unless repaid, each
Eurocurrency Revolving Borrowing by a Subsidiary Borrower and each Eurocurrency Revolving Borrowing
in a Foreign Currency shall automatically be continued as a Eurocurrency Borrowing with an Interest
Period of one month.
SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is not less
than $1,000,000 or an integral multiple thereof and (ii) the Company shall not terminate or reduce
the
Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.11, the Dollar Amount of the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the total Commitments.
27
(c) The Company shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) 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 Lenders
of the contents thereof. Each notice delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered by the
Company may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan owed
by such Borrower on the Maturity Date in the currency of such Loan, (ii) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each Competitive Loan owed
by such Borrower on the last day of the Interest Period applicable to such Loan and (iii) in the
case of the Company, to the Swingline Lender the then unpaid principal amount of each Swingline
Loan 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 two (2) Business Days after such
Swingline Loan is made; provided that on each date that a Revolving Borrowing is made, the
Company shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Borrower thereof, the Class, Agreed Currency and Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and
each Lenders share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of any Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by (i) a Revolving Loan
promissory note substantially in the form of Exhibit E-1 (or such other form approved by
the applicable Borrower and the Administrative Agent, such approval not to be unreasonably
withheld) or (ii) a Competitive Loan promissory note substantially in the form of Exhibit
E-2 (or such other form approved by the applicable Borrower and the Administrative Agent, such
approval not to be unreasonably withheld). In such event, the applicable Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 10.04) 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).
28
SECTION 2.11. Prepayment of Loans. (a) Each Borrower shall have the right at any time and from time to time to prepay
any Borrowing in whole or in part, subject to prior notice in accordance with paragraph (b) of this
Section; provided that the Borrowers shall not have the right to prepay any Competitive
Loan without the prior consent of the Lender thereof.
(b) The applicable Borrower shall notify the Administrative Agent (and, in the case of
prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any
prepayment hereunder (i) in the case of prepayment of a Eurocurrency Revolving Borrowing, not later
than 11:00 a.m., Local Time, three (3) Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, on
the date of prepayment and (iii) in the case of prepayment of a Swingline Loan, not later than
12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable
and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof
to be prepaid; provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of
any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of
a Revolving Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Revolving
Borrowing shall be applied ratably to the Loans included in such prepaid Borrowing. Prepayments
shall be accompanied by (i) accrued interest to the extent required by Section 2.13 and (ii) break
funding payments pursuant to Section 2.16.
(c) If (i) at any time, other than as a result of fluctuations in currency exchange rates, the
sum of the aggregate principal Dollar Amount of all of the Revolving Credit Exposures (calculated,
with respect to those Credit Events denominated in Foreign Currencies, as of the most recent
Computation Date with respect to each such Credit Event) plus the aggregate principal amount of all
Competitive Loans exceeds the total Commitments and (ii) on any Computation Date, solely as a
result of fluctuations in currency exchange rates, the amount by which the sum of the aggregate
principal Dollar Amount of all of the outstanding Revolving Credit Exposures, as of the most recent
Computation Date with respect to each such Credit Event, plus the aggregate principal amount of all
Competitive Loans, exceeds the total Commitments is an amount greater than 5% of the total
Commitments, the Company shall, or shall cause the other Borrowers to, within five (5) Business
Days after notice thereof from the Administrative Agent, repay Borrowings in an aggregate principal
amount sufficient to cause the aggregate Dollar Amount of all Revolving Credit Exposures (so
calculated) plus the aggregate principal amount of all Competitive Loans to be less than or equal
to the total Commitments.
SECTION 2.12. Fees. (a) The Company agrees to pay to the Administrative Agent for the account of each
Lender a facility fee, which shall accrue at the Applicable Facility Fee Rate on the daily amount
of the Commitment of such Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates; provided
that, if such Lender continues to have any Revolving Credit Exposure after its Commitment
terminates, then such facility fee shall continue to accrue on the daily amount of such Lenders
Revolving Credit Exposure from and including the date on which its Commitment terminates to but
excluding the date on
which such Lender ceases to have any Revolving Credit Exposure. Accrued facility fees shall
be payable in arrears on the last day of March, June, September and December of each year and on
the date on which the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any facility fees accruing after the date on which the
Commitments terminate shall be payable on demand. All facility fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
29
(b) The Company agrees to pay (i) to the Administrative Agent for the account of each Lender a
participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable LIBOR Interest Addition used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the average daily Dollar Amount of such Lenders LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on which such Lenders
Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to
the Issuing Bank for its own account a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily Dollar Amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) attributable to Letters of Credit issued by
the Issuing Bank during the period from and including the Effective Date to but excluding the later
of the date of termination of the Commitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Banks standard fees and commissions with respect to the issuance,
amendment, cancellation, negotiation, transfer, presentment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Unless otherwise specified above, participation fees
and fronting fees accrued through and including the last day of March, June, September and December
of each year shall be payable on the third (3rd) Business Day following such last day, commencing
on the first such date to occur after the Effective Date; provided that all such fees shall
be payable on the date on which the Commitments terminate and any such fees accruing after the date
on which the Commitments terminate shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within ten (10) days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but excluding the last
day). Participation fees and fronting fees in respect of Letters of Credit denominated in Dollars
shall be paid in Dollars, and participation fees and fronting fees in respect of Letters of Credit
denominated in a Foreign Currency shall be paid in such Foreign Currency.
(c) The Company agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Company and the Administrative
Agent.
(d) All fees payable hereunder shall be paid on the dates due, in Dollars (except as otherwise
expressly provided in this Section 2.12) and immediately available funds, to the Administrative Agent (or to the Issuing Bank, in
the case of fees payable to it) for distribution, in the case of facility fees and participation
fees, to the Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall
bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest (i) in the case of a
Eurocurrency Revolving Loan, at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable LIBOR Interest Addition, or (ii) in the case of a Eurocurrency
Competitive Loan, at the LIBO Rate for the Interest Period in effect for such Borrowing plus (or
minus, as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate applicable to such Loan.
30
(d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by any Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (d) 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 Availability Period), accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurocurrency Revolving Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest (i) computed by reference to the Alternate Base Rate at times when the Alternate Base Rate
is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a
leap year) and (ii) for Borrowings denominated in Pounds Sterling shall be computed on the basis of
a year of 365 days, 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 or LIBO Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurocurrency Borrowing:
(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 or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, in the case of a
Eurocurrency Competitive Loan, the Lender that is required to make such Loan) that the Adjusted
LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the
Company 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 Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be ineffective and any
such Eurocurrency Borrowing shall be repaid on the last day of the then current Interest Period
applicable thereto, (ii) any Eurocurrency Borrowing by a Subsidiary Borrower that is requested to
be continued shall be repaid on the last day of the then current Interest Period applicable
thereto, (iii) if any Borrowing Request by the Company requests a Eurocurrency Revolving Borrowing
in Dollars, such Borrowing shall be made as an ABR Borrowing (and if a requested Eurocurrency
Revolving Borrowing is made by a Subsidiary Borrower or is denominated in a Foreign Currency, such
Borrowing Request shall be ineffective) and (iv) any request
by any Borrower for a Eurocurrency Competitive Borrowing shall be ineffective; provided
that if the circumstances giving rise to such notice do not affect all the Lenders, then requests
by a Borrower for Eurocurrency Competitive Borrowings may be made to Lenders that are not affected
thereby.
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SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank;
(ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans or Fixed Rate Loans made by such
Lender or any Letter of Credit or participation therein; or
(iii) subject the Administrative Agent or any Lender to any Taxes on its loans, loan
principal, letters of credit, commitments, or other obligations, or its deposits, reserves,
other liabilities or capital attributable thereto (other than (A) Indemnified Taxes, (B)
Excluded Taxes or (C) Other Taxes);
and the result of any of the foregoing shall be to increase the cost to such Person of making or
maintaining any Loan or of maintaining its obligation to make any such Loan (including, without
limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a
Borrowing denominated in any other Agreed Currency) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit (including, without
limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a
Borrowing denominated in any other Agreed Currency) or to reduce the amount of any sum received or
receivable by such Person hereunder, whether of principal, interest or otherwise (including,
without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency
into a Borrowing denominated in any other Agreed Currency), then the Company will pay to such
Person such additional amount or amounts as will compensate such Person for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lenders or the
Issuing Banks capital or on the capital of such Lenders or the Issuing Banks holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below
that which such Lender or the Issuing Bank or such Lenders or the Issuing Banks holding company
could have achieved but for such Change in Law (taking into consideration such Lenders or the
Issuing Banks policies and the policies of such Lenders or the Issuing Banks holding company
with respect to capital adequacy), then from time to time the Company will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lenders or the Issuing Banks holding company for any such
reduction suffered.
(c) If the cost to any Lender or the Issuing Bank of making or maintaining any Loan or
participating in, issuing or maintaining any Letter of Credit to any Subsidiary Borrower is
increased (or the amount of any sum received or receivable by any Lender (or its applicable lending
office) is reduced) by an amount deemed in good faith by such Lender or the Issuing Bank, as the
case may be, to be material, by reason of the fact that such Subsidiary Borrower is incorporated
in, or conducts business in, a jurisdiction outside the United States, such Subsidiary Borrower
will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will compensate such Lender for
such increased cost or reduction suffered.
32
(d) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be,
as specified in paragraph (a), (b) or (c) of this Section shall be delivered to the Company and
shall be conclusive absent manifest error. The Company or the applicable Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(e) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lenders or the Issuing Banks right
to demand such compensation; provided that the Company shall not be required to compensate a Lender
or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more
than 270 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies
the Company of the Change in Law giving rise to such increased costs or reductions and of such
Lenders or the Issuing Banks 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 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled
to compensation pursuant to this Section in respect of any Competitive Loan if the Change in Law
that would otherwise entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of any Eurocurrency Loan or Fixed
Rate Loan other than on the last day of an Interest Period applicable thereto (including as a
result of an Event of Default or as a result of any prepayment pursuant to Section 2.11), (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 or Fixed Rate
Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.11(b) and is revoked in accordance therewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to make such Loan, or
(e) the assignment of any Eurocurrency Loan or Fixed Rate Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the applicable Borrower pursuant to
Section 2.19, then, in any such event, the Company or the Company shall compensate each Lender for
the loss, cost and expense attributable to such event. Such loss, cost or expense to any Lender
shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest 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, 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 the relevant currency 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 the Company and shall be conclusive absent manifest error. The Company or the
applicable Borrower shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
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SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of any Borrower
hereunder shall be made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if any Borrower shall be required to deduct any Indemnified Taxes or
Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or Lender (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall
make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The relevant Borrower shall indemnify the Administrative Agent and each Lender, within 10
days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent or such Lender, as the case may be, on or with respect to any
payment by or on account of any obligation of such Borrower hereunder (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section, but
without duplication of any amounts paid or indemnified under Section 2.17(a)) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
any Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender
shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any
Borrower to a Governmental Authority, such Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable
withholding Tax with respect to any payments under any Loan Document shall deliver to the Borrower
and the Administrative Agent, at the time or times reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation reasonably requested by
the Borrower or the Administrative Agent as will permit such payments to be made without, or at a
reduced rate of, withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to any withholding
(including backup withholding) or information reporting requirements. Notwithstanding anything to
the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in Section 2.17(e)(ii)(A) through (E) below)
shall not be required if in the Lenders judgment such completion, execution or submission would
subject such Lender to any material unreimbursed cost or expense or would materially prejudice the
legal or commercial position of such Lender. Upon the reasonable request of the Borrower or the
Administrative Agent, any Lender shall update any form or certification previously delivered
pursuant to this Section 2.17(e). If any form or certification previously delivered pursuant to
this Section expires or becomes obsolete or inaccurate in any respect with respect to a Lender,
such Lender shall promptly (and in any event within 10 days after such expiration, obsolescence or
inaccuracy) notify the Borrower and the Administrative Agent in writing of such expiration,
obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so.
(ii) Without limiting the generality of the foregoing, any Lender shall, if it is
legally eligible to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies reasonably requested by the Borrower and the Administrative Agent) on or
prior to the date on which such Lender becomes a party hereto, duly completed and executed
copies of whichever of the following is applicable:
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(A) |
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in the case of a Lender that is a U.S. Person within the
meaning of Section 7701(a)(30) of the Code, IRS Form W-9 certifying that such
Lender is exempt from U.S. federal backup withholding tax; |
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(B) |
|
in the case of a Foreign Lender claiming the benefits of an
income tax treaty to which the United States is a party (1) with respect to
payments of interest under any Loan Document, IRS Form W-8BEN establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the
interest article of such tax treaty and (2) with respect to any other
applicable payments under any Loan Document, IRS Form W-8BEN establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the
business profits or other income article of such tax treaty; |
|
|
(C) |
|
in the case of a Foreign Lender for whom payments under any
Loan Document constitute income that is effectively connected with such
Lenders conduct of a trade or business in the United States, IRS Form W-8ECI; |
|
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(D) |
|
in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code both (1) IRS
Form W-8BEN and (2) a tax certificate substantially to the effect that such
Lender is not (a) a bank within the meaning of Section 881(c)(3)(A) of the
Code, (b) a 10 percent shareholder of the Company within the meaning of
Section 881(c)(3)(B) of the Code, (c) a controlled foreign corporation
described in Section 881(c)(3)(C) of the Code and (d) conducting a trade or
business in the United States with which the relevant interest payments are
effectively connected; |
|
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(E) |
|
in the case of a Foreign Lender that is not the beneficial
owner of payments made under this Agreement (including a partnership or a
participating Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the
relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this
paragraph (e)(ii) that would be required of each such beneficial owner or
partner of such partnership if such beneficial owner or partner were a Lender;
provided, however, that if the Lender is a partnership and one or more of its
partners are claiming the exemption for portfolio interest under Section 881(c)
of the Code, such Lender may provide a tax certificate, as described above, on
behalf of such partners; or |
|
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(F) |
|
any other form prescribed by law as a basis for claiming
exemption from, or a reduction of, U.S. federal withholding Tax together with
such supplementary documentation necessary to enable the Borrower or the
Administrative Agent to determine the amount of Tax (if any) required by law to
be withheld. |
(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by any Borrower
or with respect to which any Borrower has paid additional amounts pursuant to this Section 2.17, it
shall pay over such refund to such Borrower (but only to the extent of indemnity payments made, or
additional
amounts paid, by such Borrower under this Section 2.17 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that such Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to such Borrower
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to any Borrower or any other Person.
35
(g) Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the
case of any Indemnified Taxes or Other Taxes, only to the extent that the Borrowers have not
already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and without
limiting the obligation of the Borrowers to do so) attributable to such Lender that are paid or
payable by the Administrative Agent in connection with this Agreement and any reasonable expenses
arising therefrom or with respect thereto, whether or not such amounts were correctly or legally
imposed or asserted by the relevant Governmental Authority. The indemnity under this Section
2.17(g) shall be paid within 10 days after the Administrative Agent delivers to the applicable
Lender a certificate stating the amount so paid or payable by the Administrative Agent. Such
certificate shall be conclusive of the amount so paid or payable absent manifest error.
(h) If a payment made to a Lender under this Agreement would be subject to U.S. federal
withholding tax imposed by FATCA if such Lender (or its direct or indirect interest holders) were
to fail 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 shall deliver to the Company
and the Administrative Agent, at the time or times prescribed by law and at such time or times
reasonably requested by the Company or the Administrative Agent, 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 the Company or the Administrative Agent as may be
necessary for the Company and the Administrative Agent to comply with its obligations under FATCA,
to determine that such Lender has or has not complied with such Lenders obligations under FATCA
and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for
purposes of this Section 2.17(h), FATCA shall include any amendments made to FATCA after the date
of this Agreement and any successor provisions thereto.
(i) For purposes of Section 2.17(e) and (f), the term Lender includes the Issuing Bank.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable
under Section 2.15, 2.16 or 2.17, or otherwise) prior to (i) in the case of payments denominated in
Dollars, 12:00 noon, New York City time and (ii) in the case of payments denominated in a Foreign
Currency, 12:00 noon, Local Time, in the city of the Administrative Agents Eurocurrency Payment
Office for such currency, in each case on the date when due, in immediately available funds,
without setoff 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 (i) in
the same currency in which the applicable Credit Event was made (or where such currency has been
converted to euro, in euro) and in all other cases Dollars and (ii) to the Administrative Agent at
its offices at 10 South Dearborn Street, Chicago, Illinois 60603 or, in the case of
a Credit Event denominated in a Foreign Currency, the Administrative Agents Eurocurrency
Payment Office for such currency, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 10.03 shall be made directly to the Persons entitled
36
thereto. The Administrative
Agent shall distribute any such payments denominated in the same currency 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. Notwithstanding the foregoing
provisions of this Section, if, after the making of any Credit Event in any Foreign Currency,
currency control or exchange regulations are imposed in the country which issues such currency with
the result that the type of currency in which the Credit Event was made (the Original
Currency) no longer exists or the applicable Borrower is not able to make payment to the
Administrative Agent for the account of the Lenders in such Original Currency, then all payments to
be made by such Borrower hereunder in such currency shall instead be made when due in Dollars in an
amount equal to the Dollar Amount (as of the date of repayment) of such payment due, it being the
intention of the parties hereto that such Borrower takes all risks of the imposition of any such
currency control or exchange regulations. The applicable Borrower shall indemnify and hold
harmless each Lender against any loss incurred by such Lender as a result of any such currency
control or exchange regulation and any such payment having been made in Dollars in lieu of the
original currency. The obligations of the Borrowers under this Section shall survive the
termination of the Commitments and the repayment of the Loans and all other obligations of the
Borrowers hereunder.
(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
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
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and participations in LC
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 Revolving Loans and participations in LC 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 Revolving Loans and participations in LC 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 shall not be construed to apply to any payment made by any Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements and Swingline Loans to any assignee or participant, other than
to the Company or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of setoff 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.
37
(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 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 Issuing Bank,
as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Lenders
or the Issuing Bank, as the case may be, 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 (including without limitation the Overnight Foreign Currency Rate in the case of Loans
denominated in a Foreign Currency).
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 10.03(c), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter
received by the Administrative Agent for the account of such Lender and for the benefit of the
Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lenders obligations
under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such
amounts in a segregated account as cash collateral for, and application to, any future funding
obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any
order as determined by the Administrative Agent in its discretion.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.15, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate
a different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.15, (ii) any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17, or (ii) any Lender
becomes a Defaulting Lender, then the Company may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in Section 10.04), all its
interests, rights and obligations under this Agreement (other than any outstanding Competitive
Loans held by it) to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company shall have
received the prior written consent of the Administrative Agent (and if a Commitment is being
assigned, the Issuing Bank), 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 (other
than Competitive Loans) and participations in LC 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 the applicable Borrower
or Borrowers (in the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant
to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Company to require such assignment and
delegation cease to apply.
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SECTION 2.20. Increase in Commitments. (a) The Company may, by written notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Lenders), request that the total Commitments be increased by
an amount not less than $25,000,000 for any such increase; provided that after giving
effect to any such increase the sum of the total Commitments shall not exceed $750,000,000 minus
any amount by which the Commitments shall have been reduced pursuant to Section 2.09. Such notice
shall set forth the amount of the requested increase in the total Commitments and the date on which
such increase is requested to become effective. Each Lender shall, by notice to the Company and
the Administrative Agent, either agree to increase its Commitment (each Lender so agreeing being an
Increasing Lender) or decline to increase its Commitment (and any Lender that does not
deliver such a notice shall be deemed to have declined to increase its Commitment). The Company
may also arrange for one or more banks or other financial institutions (any such bank or other
financial institution referred to in this clause (a) being called an Augmenting Lender),
which may include any Lender, to extend Commitments or increase their existing Commitments;
provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject
to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and
the Company and each Augmenting Lender shall execute all such documentation as the Administrative
Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder.
Any increase in the total Commitments may be made in an amount which is less than the increase
requested by the Company.
(b) On the effective date (the Increase Effective Date) of any increase in the total
Commitments pursuant to this Section 2.20 (the Commitment Increase), if any Revolving Loans are outstanding, the Borrowers
(i) shall prepay all Revolving Loans then outstanding (including all accrued but unpaid interest
thereon) and (ii) may, at their option, fund such prepayment by simultaneously borrowing Revolving
Loans of the Types and for the Interest Periods specified in one or more Borrowing Requests
delivered pursuant to Section 2.03, which Revolving Loans shall be made by the Lenders (including
the Increasing Lenders and the Augmenting Lenders, if any) ratably in accordance with their
respective Commitments (calculated after giving effect to the Commitment Increase). The payments
made pursuant to clause (i) above in respect of each Eurocurrency Loan shall be subject to
indemnification by the Borrowers pursuant to the provisions of Section 2.16 if the Increase
Effective Date occurs other than on the last day of the Interest Period relating thereto.
(c) Increases and new Commitments created pursuant to this Section 2.20 shall become effective on the date specified in the notice delivered by the Company
pursuant to the first sentence of paragraph (a) above; provided that the Company may, with
the consent of the Administrative Agent (such consent not to be unreasonably withheld), extend such
date by up to 30 days by delivering written notice to the Administrative Agent no less than three
Business Days prior to the date specified in the notice delivered by the Company pursuant to the
first sentence of paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment
of any Lender) or addition of an Augmenting Lender shall become effective under this Section
unless, (i) on the date of such increase, the conditions set forth in clauses (b) and (c) of
Section 3.02 shall be satisfied and the Administrative Agent shall have received a certificate to that
effect dated such date and executed by a Responsible Party of the Company, and (ii) if required by
the Administrative Agent, the Administrative Agent shall have received (with sufficient copies for
each of the Lenders) documents consistent with those delivered on the Effective Date under clauses
(b) and (c) of Section 3.01.
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SECTION 2.21. Determination of Dollar Amounts. The Administrative Agent will determine the Dollar Amount of:
(a) each Eurocurrency Borrowing as of the date two (2) Business Days prior to the date of such
Borrowing or, if applicable, the date of conversion/continuation of any Borrowing as a Eurocurrency
Borrowing;
(b) the LC Exposure as of the date of each request for the issuance, amendment, renewal or
extension of any Letter of Credit, and
(c) all outstanding Borrowings on and as of the last Business Day of each calendar quarter
and, during the continuation of an Event of Default, on any other Business Day elected by the
Administrative Agent in its discretion or upon instruction by the Required Lenders.
Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the
preceding clauses (a), (b) and (c) is herein described as a Computation Date with respect to each
Credit Event for which a Dollar Amount is determined on or as of such day.
SECTION 2.22. 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:
(a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section
2.12(a);
(b) the Commitment and Revolving Credit Exposure (including Competitive Loans) of such
Defaulting Lender shall not be included in determining whether the Required Lenders have taken or
may take any action hereunder (including any consent to any amendment, waiver or other modification
pursuant to Section 10.02); provided, that this clause (b) shall not apply to the vote of a
Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent
of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender
shall be reallocated among the non-Defaulting Lenders in accordance with their respective
Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders
Revolving Credit Exposures (including Competitive Loans) plus such Defaulting Lenders
Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders
Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Company shall within one (1) Business Day following notice by the
Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash
collateralize for the benefit of the Issuing Bank only the Borrowers obligations
corresponding to such Defaulting Lenders LC Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above) in accordance with the procedures set forth in
Section 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Lenders LC
Exposure pursuant to clause (ii) above, the Borrowers shall not be required to pay any fees
to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting
Lenders LC Exposure during the period such Defaulting Lenders LC Exposure is cash
collateralized;
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(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause
(i) above, then the fees payable to the Lenders pursuant to Section 2.12(b) shall be
adjusted in accordance with such non-Defaulting Lenders Applicable Percentages; and
(v) if all or any portion of such Defaulting Lenders LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without
prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all
facility fees that otherwise would have been payable to such Defaulting Lender (solely with
respect to the portion of such Defaulting Lenders Commitment that was utilized by such LC
Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such
Defaulting Lenders LC Exposure shall be payable to the Issuing Bank until and to the extent
that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required
to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase
any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lenders
then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders
and/or cash collateral will be provided by the Company in accordance with Section 2.22(c), and
participating interests in any such newly made Swingline Loan or any newly issued or increased
Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with
Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein).
If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the
Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations
under one or more other agreements in which such Lender commits to extend credit, the Swingline
Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required
to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank,
as the case may be, shall have entered into arrangements with the Company or such Lender,
satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk
to it in respect of such Lender hereunder.
In the event that the Administrative Agent, the Company, the Swingline Lender and the Issuing
Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall
be readjusted to reflect the inclusion of such Lenders Commitment and on such date such Lender
shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the
Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans
in accordance with its Applicable Percentage.
ARTICLE III
Conditions Precedent to Loans
SECTION 3.01. Effective Date. The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of
Credit hereunder shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.02):
(a) Executed Agreement. Receipt by the Administrative Agent of copies of this Agreement executed by the parties
hereto.
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(b) Opinions of Counsel. Receipt by the Administrative Agent of opinions, substantially in the form of Exhibits
B-1, B-2 and B-3 and satisfactory to the Lenders, addressed to the Lenders and
dated as of the Effective Date from Richard W. Davies, Esq., Vice President and General Counsel of
the Borrowers, from Latham & Watkins LLP, special U.S. counsel to the Borrowers, and from Charles
Adams Ritchie & Duckworth, special Cayman counsel to the Borrowers.
(c) Resolutions. Receipt by the Administrative Agent of copies of resolutions of the Board of Directors of
each Borrower approving and adopting this Agreement and the transactions contemplated herein and
authorizing the execution and delivery hereof, certified by a secretary or assistant secretary of
such Borrower as of the Effective Date to be true and correct and in force and effect as of such
date.
(d) Good Standing Certificate; Legal Existence Certificate. Receipt by the Administrative Agent of a certificate issued as of a recent date by the
Secretary of State or other appropriate Governmental Authority of each Borrowers jurisdiction of
incorporation as to the due existence and good standing (as applicable) of such Borrower therein.
(e) Incumbency Certificate. Receipt by the Administrative Agent of specimen signatures of officers or other appropriate
representatives executing this Agreement on behalf of each Borrower, certified by the secretary or
assistant secretary of such Borrower as of the Effective Date.
(f) Articles of Incorporation. Receipt by the Administrative Agent of the articles of incorporation (or analogous
document), as amended, of each Borrower, certified by the Secretary of State or other appropriate
Governmental Authority of such Borrowers jurisdiction.
(g) Bylaws. Receipt by the Administrative Agent of the bylaws (or analogous document) of each Borrower
certified as of the Effective Date as true and correct by the secretary or assistant secretary of
such Borrower.
(h) Financial Covenant Compliance Certificate. Receipt by the Administrative Agent of a certificate of the chief financial officer of the
Company dated the Effective Date demonstrating compliance with the financial covenant contained in
Section 6.02 as of the Effective Date, substantially in the form of Exhibit C.
(i) Responsible Party Certificate. Receipt by the Administrative Agent of a certificate of a Responsible Party dated the
Effective Date, confirming compliance with the conditions set forth in paragraphs (b) (excluding
for this purpose the parenthetical contained therein) and (c) of Section 3.02 and paragraph (l)
below, substantially in the form of Exhibit D.
(j) Payment of Fees and Expenses. Receipt by the Administrative Agent of all fees and other amounts due and payable on or
prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses and fees and disbursements of counsel.
(k) Repayments and Termination of Existing Credit Agreement. Receipt by the Administrative Agent of evidence that all notices required to be given to
effect on the Effective Date the repayment, if applicable, and termination of the Existing Credit
Agreement shall have been given and the Existing Credit Agreement shall be terminated.
(l) No Material Adverse Effect. Since December 31, 2010, there have occurred no changes or circumstances which have had or
are likely to have a Material Adverse Effect.
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The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such
notice shall be conclusive and binding.
SECTION 3.02. Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing, and
of the Issuing Bank to issue, and the willingness of the Issuing Bank to amend, renew or extend,
any Letter of Credit, is subject to the satisfaction of the following conditions:
(a) the Administrative Agent shall have received written notice of the applicable Borrowers
intent to borrow or request a Letter of Credit if required by Article II;
(b) the representations and warranties of the Company set forth in Article IV (other than the
representation set forth in Section 4.08 and the representation set forth in the last sentence of Section 4.06) shall be true and
correct on and as of the date of such Borrowing, or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, with the same effect as though such
representations and warranties had been made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier date;
(c) at the time of (and after giving effect to) such Borrowing or the issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be
continuing;
(d) immediately after giving effect to such Borrowing or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable:
(i) the Revolving Credit Exposure of each Lender shall not exceed such Lenders
Commitment;
(ii) the sum of the total Revolving Credit Exposures plus the aggregate principal
amount of outstanding Competitive Loans shall not exceed the total Commitments at such time;
and
(iii) the sum of the total Revolving Credit Exposures with respect to Revolving Loans
and Letters of Credit to the Subsidiary Borrowers plus the aggregate principal amount of
outstanding Competitive Loans to the Subsidiary Borrowers shall not exceed $50,000,000; and
(e) with respect to any Borrowing or Letter of Credit denominated in a Foreign Currency, at
the time of such Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, such Foreign Currency is readily available in the amount required and is
freely convertible into Dollars in the London interbank market.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit, as
applicable shall be deemed to constitute a representation and warranty by the Company and the
applicable Borrower on the date thereof as to the matters specified in paragraphs (b), (c) and (d)
of this Section.
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ARTICLE IV
Representations and Warranties
The Company hereby represents and warrants to the Administrative Agent and the Lenders that:
SECTION 4.01. Organization and Good Standing. Each of the Company and its Subsidiaries is a corporation duly incorporated,
validly existing and in good standing (as applicable) under the laws of the jurisdiction of its
incorporation, is duly qualified and in good standing as a foreign corporation authorized to do
business in every jurisdiction where the failure to so qualify would have a Material Adverse
Effect, and has the requisite corporate power and authority to own its properties and to carry on
its business as now conducted and as proposed to be conducted.
SECTION 4.02. Due Authorization. Each Borrower (i) has the corporate power and requisite authority to execute,
deliver and perform this Agreement and (ii) is duly authorized to, and has been authorized by all
necessary corporate action, to execute, deliver and perform this Agreement.
SECTION 4.03. No Conflicts. Neither the execution and delivery of this Agreement by any Borrowers, nor the
consummation of the transactions contemplated herein, nor performance by any Borrower of and
compliance with the terms and provisions hereof will (i) violate or conflict with any provision of
such Borrowers articles of incorporation or bylaws, (ii) violate, contravene or materially
conflict with any law, regulation (including Regulation U or Regulation X), order, writ, judgment,
injunction, decree or permit applicable to it, (iii) violate, contravene or materially conflict
with contractual provisions of, or cause an event of default under, any indenture, loan agreement,
mortgage, deed of trust, contract or other agreement or instrument to which such Borrower is a
party or by which such Borrower may be bound or (iv) result in or require the creation of any Lien
upon or with respect to such Borrowers properties, except to the extent that any such violation,
contravention, conflict or Lien referred to in the foregoing clauses (ii), (iii) or (iv) could not
reasonably be expected to have a Material Adverse Effect.
SECTION 4.04. Consents. No consent, approval, authorization or order of, or filing, registration or
qualification with, any Governmental Authority or third party is required in connection with the
execution, delivery or performance of this Agreement, except to the extent that the failure to
obtain such consents, approvals, authorization or orders, or to make any such filing, registration
or qualification, could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.05. Enforceable Obligations. This Agreement has been duly executed and delivered by each Borrower and
constitutes a legal, valid and binding obligation of such Borrower enforceable in accordance with
its terms, except as may be limited by bankruptcy or insolvency laws or similar laws affecting
creditors rights generally, general equitable principles (whether considered in a proceeding in
equity or at law) and any implied covenant of good faith and fair dealing.
SECTION 4.06. Financial Condition. The financial statements and financial information provided to the Lenders,
consisting of (a) an audited consolidated balance sheet of the Company and its Subsidiaries dated
as of December 31, 2010, together with related consolidated statements of income, stockholders
equity and changes in financial position or cash flow certified by PricewaterhouseCoopers LLP, the
Companys independent certified public accountants, and (b) a Company prepared unaudited
consolidated balance sheet of the Company and its Subsidiaries dated as of June 30, 2011, together
with related consolidated statements of income, stockholders equity and changes in financial
position or cash flow certified by the Companys chief financial
officer, fairly represent in all material respects the financial condition of the Company and its Subsidiaries as of such
respective dates and for such periods and such financial statements were prepared in accordance
with GAAP applied on a Consistent Basis, subject to normal year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in the foregoing clause (b). Since
December 31, 2010, there have occurred no changes or circumstances which have had or are likely to
have a Material Adverse Effect.
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SECTION 4.07. No Default. No Default presently exists.
SECTION 4.08. No Material Litigation. Except as disclosed in Schedule 4.08, there are no actions, suits or legal,
equitable, arbitration or administrative proceedings, pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect.
SECTION 4.09. Taxes. The Company has filed, or caused to be filed, all tax returns (federal, state,
local and foreign) required to be filed and paid all amounts of Taxes shown thereon to be due
(including interest and penalties) and has paid all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing (or necessary to preserve any Liens in favor of the Lenders), by it or its
Subsidiaries, except for such Taxes (i) which are not yet delinquent, (ii) which are being
contested in good faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP or (iii) which, if not paid, could not reasonably be expected to
have a Material Adverse Effect.
SECTION 4.10. Compliance with Law. The Company and each of its Subsidiaries is in compliance with all laws, rules,
regulations, orders and decrees (including Environmental Laws) applicable to it or to its
properties, except for such laws, rules, regulations, orders and decrees noncompliance with which
could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.11. ERISA. Except, in the case of any of the following, for matters which would not have a
Material Adverse Effect, (i) no Reportable Event (as defined in ERISA) has occurred and is
continuing with respect to any Plan; (ii) as of the end of the most recent Plan year, no Plan has
an unfunded current liability (determined under Section 412 of the Code) or an accumulated funding
deficiency; (iii) no proceedings have been instituted, or, to the knowledge of the Company,
planned, to terminate any Plan; (iv) neither the Company, any Subsidiary or any ERISA Affiliate,
nor any duly-appointed administrator of a Plan has instituted or intends to institute proceedings
to withdraw from any Multiemployer Plan; and (v) each Plan has been maintained and funded in all
material respects with its terms and with the provisions of ERISA applicable thereto.
SECTION 4.12. Investment Company. No Borrower is an investment company, as such term is defined in the Investment
Company Act of 1940.
SECTION 4.13. Environmental Laws. The Company and each Subsidiary is in compliance with all applicable Environmental
Laws, except to the extent that noncompliance therewith could not reasonably be expected to have a
Material Adverse Effect.
ARTICLE V
Affirmative Covenants
The Company hereby covenants and agrees that so long as the Commitments are in effect and
until the Loans, together with interest, fees and other obligations which are then due and payable
hereunder, have been paid in full and all Letters of Credit shall have expired or terminated
and all LC Disbursements shall have been reimbursed:
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SECTION 5.01. Information Covenants. The Company will furnish, or cause to be furnished, to the Administrative Agent and
each Lender:
(a) Annual Financial Statements. As soon as available and in any event within 90 days after the close of each fiscal
year of the Company, a consolidated balance sheet of the Company and its Subsidiaries as at the end
of such fiscal year together with related consolidated statements of income and retained earnings
and of cash flows for such fiscal year, setting forth in comparative form consolidated figures for
the preceding fiscal year examined by PricewaterhouseCoopers LLP, the Companys independent
certified public accountants, whose opinion shall be to the effect that such financial statements
have been prepared in accordance with GAAP applied on a Consistent Basis and shall not be qualified
as to the scope of the audit or as to the status of the Company or any of its Subsidiaries as a
going concern. The financial information required by this Section 5.01(a) may be delivered in the
form of an Annual Report on Form 10-K as filed with the Securities and Exchange Commission.
(b) Quarterly Financial Statements. As soon as available and in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such quarterly period together with related
consolidated statements of income and retained earnings and of cash flows for such quarterly period
and for the portion of the fiscal year ending with such period, in each case setting forth in
comparative form consolidated figures for the corresponding period of the preceding fiscal year and
accompanied by a certificate of the chief financial officer of the Company as having been prepared
in accordance with GAAP applied on a Consistent Basis, subject to normal year-end audit adjustments
and the absence of footnotes. The financial information required by this Section 5.01(b) may be
delivered in the form of a Quarterly Report on Form 10-Q as filed with the Securities and Exchange
Commission.
(c) Officers Certificates. At the time of delivery of the financial statements provided for in Sections
5.01(a) and (b) hereof, a certificate of the chief financial officer of the Company substantially
in the form of Exhibit C to the effect that the Company is in substantial compliance with
the terms of this Agreement and no Default exists, or if any Default does exist specifying the
nature and extent thereof and what action the Company proposes to take with respect thereto. Such
certificate shall set forth reasonably detailed calculations demonstrating compliance with Section
6.02.
(d) SEC Reports. Promptly upon transmission thereof, copies of all filings on Forms 10-K, 10-Q, 8-K
and registration statements filed by the Company with the Securities and Exchange Commission, or
any successor agency, and copies of all reports furnished by the Company to its stockholders.
(e) Notice of Default, Litigation, etc. Upon a Responsible Party of the Company
obtaining knowledge thereof, it will give written notice to the Administrative Agent and the
Lenders (i) immediately, of the occurrence of an event or condition consisting of a Default,
specifying the nature and existence thereof and what action the Company proposes to take with
respect thereto, and (ii) promptly, but in any event within five Business Days, of the occurrence
of any of the following with respect to the Company or any of its Subsidiaries: (A) the pendency
or commencement of any litigation, arbitral or governmental proceeding against the Company or any
of its Subsidiaries which is likely to have a Material Adverse Effect, (B) any levy of an
attachment, execution or other process against its assets which is likely to have a Material
Adverse Effect, (C) the occurrence of an event or condition which shall constitute a default or
event of default under any other agreement for borrowed money in excess of
$50,000,000 or (D) any development in its business or affairs which has resulted in, or which
the Company reasonably believes is likely to result in, a Material Adverse Effect.
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(f) Other Information. Promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Company or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.01 may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date on
which such documents are filed for public availability on the SECs Electronic Data Gathering and
Retrieval System; provided that the Company shall notify (which may be by facsimile or
electronic mail) the Administrative Agent of the filing of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Company shall be required to
provide copies of the certificates required by clause (c) of this Section 5.01 to the
Administrative Agent.
SECTION 5.02. Books and Records; Communication with Accountants. The Company will, and will cause each of its Subsidiaries to, keep complete and
accurate books and records of its transactions in accordance with good accounting practices. The
Company will, and will cause each of its Subsidiaries to, permit on reasonable notice officers or
designated representatives of the Administrative Agent or any Lender to visit and inspect its
properties, to examine its books and records, and to discuss the affairs, finances and accounts of
the Company and its Subsidiaries with, and be advised as to the same by, the Companys officers and
its independent certified public accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.03. Compliance with Law. The Company will, and will cause each of its Subsidiaries to, comply with all
applicable laws, rules, regulations and orders of, and all applicable restrictions imposed by all
applicable Governmental Authorities, except where any such noncompliance could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.04. Payment of Taxes. The Company will, and will cause each of its Subsidiaries to, pay and discharge all
Taxes, assessments and governmental charges or levies imposed upon it, or upon its income or
profits, or upon any of its properties, before they shall become delinquent, unless the same is
being contested in good faith by appropriate proceedings and adequate reserves therefor have been
established in accordance with GAAP or unless the failure to make such payments could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.05. Insurance. The Company will, and will cause each of its Subsidiaries to, at all times maintain
in full force and effect insurance in such amounts, covering such risks and liabilities and with
such deductibles or self-insurance retentions as are in accordance with normal industry practice.
SECTION 5.06. ERISA. The Company will, and will cause each of its Subsidiaries to, (a) at all times,
make prompt payment of all contributions required from the Company and each Subsidiary under all
Plans and required of the Company and each Subsidiary to meet the minimum funding standard set
forth in ERISA with respect to all Plans if the failure to make any such payment would likely have
a Material Adverse Effect; and (b) notify the Administrative Agent immediately of any fact,
including any Reportable Event (as defined in ERISA) arising in connection with any of its Plans,
which would reasonably be expected to constitute grounds for termination thereof by the PBGC or for
the appointment by the appropriate United States District Court of a trustee to administer such
Plan,
involving a Plan, the termination of which would reasonably be expected to have a Material
Adverse Effect, together with a statement, if requested by the Lenders, as to the reason therefor
and the action, if any, proposed to be taken with respect thereof. The Company will not, nor will
it permit any of its Subsidiaries or ERISA Affiliates to, (i) terminate a Plan if any such
termination would give rise to or result in any liability, or (ii) cause or permit to exist any
event or condition which presents a material risk of termination at the request of the PBGC, where
in either (i) or (ii) that liability would reasonably be expected to have a Material Adverse
Effect.
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SECTION 5.07. Use of Proceeds. The proceeds of the Loans hereunder will be used by each Borrower for working
capital, capital expenditures, and other lawful general corporate purposes, including support of
the Companys commercial paper program. None of the proceeds will be used for the purpose of
purchasing or carrying any margin stock (as such term is defined in Regulation U) or for the
purpose of reducing or retiring any Indebtedness which was originally incurred to purchase or carry
margin stock in violation of the requirements of Regulation U.
ARTICLE VI
Negative Covenants
The Company hereby covenants and agrees that so long as the Commitments are in effect and
until the Loans, together with interest, fees and other obligations which are then due and payable
hereunder, have been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed:
SECTION 6.01. [Intentionally Omitted].
SECTION 6.02. Indebtedness. (a) The Company will not permit total Indebtedness of the Company and its
Subsidiaries on a consolidated basis at any time outstanding to exceed 55% of Total Capitalization
at such time.
(b) Without limiting paragraph (a) above, the Company will not permit any of its Subsidiaries
to create, incur, assume, suffer to exist any Indebtedness (including any Guarantee of any
Indebtedness), except:
(i) Indebtedness hereunder;
(ii) Indebtedness of any such Subsidiary owed to the Company or to a Subsidiary of the
Company;
(iii) Indebtedness of any such Subsidiary existing on the Effective Date (all
Indebtedness of the Subsidiaries in an amount of $1,000,000 or greater existing on the
Effective Date is described on Schedule 6.02) and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount thereof or
result in an earlier maturity date;
(iv) endorsements of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business;
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(v) Indebtedness incurred in respect of (A) workers compensation claims,
self-insurance obligations, bankers acceptances, performance, surety and similar bonds and
completion guarantees provided by the Company or a Subsidiary in the ordinary course of
business, (B) performance bonds or similar obligations of the Company or any of its
Subsidiaries for or in connection with pledges, deposits or payments made or given in the
ordinary course of business, and not for money borrowed, in connection with or to secure
statutory, regulatory or similar obligations, including obligations under health, safety or
environmental obligations, and (C) Guarantees to suppliers, lessors, licensees, contractors,
franchises or customers of obligations incurred in the ordinary course of business and not
for money borrowed;
(vi) Indebtedness incurred by any Subsidiary constituting reimbursement obligations
with respect to letters of credit issued in the ordinary course of business;
(vii) Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business, provided,
however, that such Indebtedness is extinguished within five Business Days of
incurrence; and
(viii) Indebtedness of Subsidiaries not otherwise permitted by the foregoing clauses of
this Section; provided that the aggregate principal amount of such additional
Indebtedness of all such Subsidiaries at any one time outstanding permitted under this
clause (viii) does not exceed $50,000,000.
SECTION 6.03. Consolidation, Merger. The Company will not, and will not permit any Subsidiary Borrower to, dissolve,
liquidate, or wind up its affairs, or enter into any transaction of merger or consolidation unless
(i) the Company or such Subsidiary Borrower (as applicable) is the surviving corporation of such
merger or consolidation or (ii) the surviving corporation in such merger or consolidation shall be
a corporation existing under the laws of the United States of America, any state thereof or the
District of Columbia (the Successor Corporation), the Successor Corporation shall
expressly assume, by amendment to this Agreement executed by the applicable Borrower, the Successor
Corporation and the Administrative Agent, the due and punctual payment of the principal of and
interest on the Loans to the applicable Borrower and all other amounts payable by such Borrower
under this Agreement and the payment and performance of every covenant hereof on the part of the
applicable Borrower and its Subsidiaries to be performed or observed, and no Default shall have
occurred or be continuing at the time of such merger or consolidation or would result from such
merger or consolidation.
SECTION 6.04. Transfer of Assets. The Company will not sell, lease, transfer or otherwise dispose of all or
substantially all of its property or assets, except to a wholly-owned Subsidiary of the Company.
SECTION 6.05. Transactions with Affiliates. The Company will not, nor will it permit any Subsidiary to, other than in the
ordinary course of business, enter into any transaction or series of transactions, with any
Affiliate of the Company, other than on terms and conditions at least as favorable to the Company
or such Subsidiary as would be obtainable by it in a comparable arms-length transaction with a
Person other than an Affiliate.
SECTION 6.06. Liens. The Company will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Lien on any Principal Property now owned or hereafter acquired by it to
secure Indebtedness of the Company or any Subsidiary, except:
(a) Permitted Encumbrances;
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(b) any Lien on any property or asset of the Company or any Subsidiary existing on the date
hereof; provided that (i) such Lien shall not cover any other property or asset of the
Company or any
Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the date
hereof and extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof (except in respect of any fees and expenses incurred in connection with
any such extension, renewal or replacement);
(c) any Lien existing on any property or asset prior to the acquisition thereof by the Company
or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (ii) such Lien shall not cover any other property or
assets of the Company or any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as
the case may be, and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (except in respect of any fees and expenses incurred in
connection with any such extension, renewal or replacement);
(d) Liens on fixed or capital assets acquired, constructed or improved by the Company or any
Subsidiary; provided that (i) such Liens and the Indebtedness secured thereby are incurred
prior to or within 180 days after such acquisition or the completion of such construction or
improvement, and (ii) such Liens shall not cover any other property or assets of the Company or any
Subsidiary or secure any Indebtedness other than the Indebtedness incurred to finance the
acquisition, construction or improvement of such fixed or capital assets; and
(e) Liens not otherwise permitted hereunder; provided that, at the time of the
creation, incurrence or assumption of any Indebtedness secured by any Lien and after giving effect
thereto, the aggregate principal amount of the Indebtedness of the Company and the Subsidiaries
secured by Liens permitted under this clause (e) does not exceed an amount equal to 10% of Tangible
Net Worth at such time.
SECTION 6.07. Swap Agreements. The Company will not and will not permit any of its Subsidiaries to, enter into any
Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate risks to which the
Company or any Subsidiary has actual exposure (other than those in respect of shares of capital
stock or other equity ownership interests of the Company or any of its Subsidiaries), and (b) 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 Company or any Subsidiary.
SECTION 6.08. Subsidiary Borrower. The Company will not permit any Subsidiary Borrower to cease to be a wholly-owned
Subsidiary of the Company.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. Upon the occurrence of any of the following specified events (each an Event of
Default):
(a) Payment. Any Borrower shall (i) default in the payment when due of any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement, or (ii) default, and such
default shall continue for five or more days, in the payment when due of any interest on any Loan,
or of any fees or other amounts owing hereunder or in connection herewith; or
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(b) Representations. Any representation, warranty or statement made or deemed to be made by the Company
herein or in connection with this Agreement or in any statement or certificate delivered or
required to be delivered pursuant hereto shall prove untrue in any material respect on the date as
of which it was deemed to have been made; or
(c) Covenants. Any Borrower shall (i) default in the due performance or observance of any term,
covenant or agreement contained in Section 5.07 or Article VI, or (ii) default in the due
performance or observance by it of any term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 7.01) contained in this Agreement and such default
shall continue unremedied for a period of at least 30 days after notice thereof by the
Administrative Agent or any Lender to the Company; or if without the written consent of the
Lenders, this Agreement shall be disaffirmed or shall terminate, be terminable or be terminated or
become void or unenforceable for any reason whatsoever (other than as expressly provided for
hereunder); or
(d) Bankruptcy, etc. (i) Any Borrower or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate
it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its assets, or any Borrower or any of its Significant Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Borrower or any of its Significant Subsidiaries any case, proceeding or other action of
a nature referred to in clause (i) above which (x) results in the entry of an order for relief or
any such adjudication or appointment or (y) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against any Borrower or any of its Significant
Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Borrower or
any of its Significant Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or
(e) Defaults under Other Agreements. Any Borrower or any of its Subsidiaries shall (A) default in any payment with
respect to any Indebtedness (other than the Loans hereunder) in excess of $50,000,000, individually
or in the aggregate for the Company and its Subsidiaries collectively, or (B) default in the
observance or performance of any agreement or condition relating to any such Indebtedness (other
than Loans hereunder) in excess of $50,000,000 or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event or condition shall occur or condition
exist, the effect of which default or other event or condition is to (i) cause such Indebtedness to
become due prior to its stated maturity or (ii) enable or permit (with or without the giving of
notice, the lapse of time or both) the holder or holders of such Indebtedness or any trustee or
agent on its or their behalf to cause such Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or
(f) Judgments. One or more judgments or decrees shall be entered against any Borrower or any of
its Subsidiaries involving a liability of $50,000,000 or more in any instance or in the aggregate
for all such judgments and decrees for the Company and its Subsidiaries collectively (not paid or
fully covered by insurance provided by a carrier who has acknowledged coverage or covered by an
indemnification provided by a credit-worthy indemnitor) and any such judgments or decrees shall not
have been vacated, discharged or stayed or bonded pending appeal within 60 days from the entry
thereof; or
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(g) ERISA. The Company, any Subsidiary or any ERISA Affiliate shall fail to pay when due an
amount or amounts aggregating in excess of $50,000,000 which it shall have become liable to pay
under ERISA; or notice of intent to terminate a Plan or Plans which in the aggregate have unfunded
liabilities in excess of $50,000,000 (individually and collectively, a Material Plan)
shall be filed under ERISA by the Company, any Subsidiary or any ERISA Affiliate, any plan
administrator or any combination of the foregoing; or the PBGC shall institute proceedings under
ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the Controlled Group to incur a
current payment obligation in excess of $50,000,000, and the liability that, individually or in the
aggregate, would reasonably be expected to occur would result in a Material Adverse Effect; or
(h) Change in Control. (i) Any person or group (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date
hereof) (other than either of the two trusts (the Roche Trust and the Hubbell
Trust) which, as of the Effective Date, each own more that 5% of the Class A Common Stock of
the Company and the beneficiaries of which are the issue of Harvey Hubbell and, in the case of the
Roche Trust, their spouses, or any future trust established for any of the same beneficiaries)
either (A) becomes the beneficial owner (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date
hereof), directly or indirectly, of voting securities of the Company (or securities convertible
into or exchangeable for such voting securities) representing 40% or more of the combined voting
power of all voting securities of the Company (on a fully diluted basis) or (B) otherwise has the
ability, directly or indirectly, to elect a majority of the board of directors of the Company; or
(ii) during any period of up to 12 consecutive months, commencing on the Effective Date, Continuing
Directors shall cease for any reason (other than the death, disability or retirement of a director)
to constitute a majority of the board of directors of the Company;
then, in any such event, and at any time thereafter, the Administrative Agent, upon the direction
of the Required Lenders, shall, by written notice to the Company take any of the following actions
without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims
against the Borrowers, except as otherwise specifically provided for herein:
(i) Termination. Declare the Commitments of each Lender terminated, whereupon
the Commitment of each Lender hereunder shall terminate immediately;
(ii) Acceleration. Declare the unpaid principal of and any accrued interest in
respect of all the outstanding Loans, together with all fees and other obligations of the
Borrowers accrued hereunder, to be due whereupon the same shall be immediately due and
payable without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers; and
(iii) Enforcement of Rights. Enforce any and all rights and remedies of the
Administrative Agent or the Lenders in respect of the Loans, including without limitation
all rights of setoff; provided however that, notwithstanding the foregoing,
if an Event of Default
specified in Section 7.01(d) with respect to any Borrower shall occur, then the
Commitments of the Lenders hereunder shall automatically terminate and the Loans, together
with accrued interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall immediately become due and payable without the giving of any notice or
other action by the Administrative Agent or any Lender.
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ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Company or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof
is given to the Administrative Agent by a Borrower or a Lender, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article
III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered
to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for any
Borrower),
independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.
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The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facility provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Company, to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall
be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Company to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Company and such successor. After the Administrative Agents resignation hereunder, the provisions
of this Article and Section 10.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
Each party hereto agrees and acknowledges that (i) the Syndication Agents and the
Documentation Agents do not have any duties or responsibilities in their capacities as Syndication
Agents or Documentation Agents, respectively, hereunder and shall not have, or become subject to,
any liability hereunder in such capacities and (ii) the exculpation provisions contained herein
relating to the Administrative Agent shall be equally applicable to the Syndication Agents and the
Documentation Agents, and the Syndication Agents and the Documentation Agents shall each receive
the full benefit thereof.
The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right
on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after
the date such principal or interest has become due and payable pursuant to the terms of this
Agreement.
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ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit to the Subsidiary Borrowers hereunder, the
Company hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a
surety, the Subsidiary Obligations. The Company further agrees that the due and punctual payment
of the Subsidiary Obligations may be extended or renewed, in whole or in part, without notice to or
further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding
any such extension or renewal of any Subsidiary Obligation.
The Company waives presentment to, demand of payment from and protest to any Subsidiary
Borrower of any of the Subsidiary Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment. The obligations of the Company hereunder shall
not be affected by (a) the failure of any Lender to assert any claim or demand or to enforce any
right or remedy against any Subsidiary Borrower under the provisions of this Agreement or
otherwise; (b) any extension or renewal of any of the Subsidiary Obligations; (c) any rescission,
waiver, amendment or modification of, or release from, any of the terms or provisions of this
Agreement or any other agreement; (d) the failure or delay of any Lender to exercise any right or
remedy against any other guarantor of the Subsidiary Obligations; (e) the failure of any Lender to
assert any claim or demand or to enforce any remedy under any other agreement or instrument; (f)
any default, failure or delay, willful or otherwise, in the performance of the Subsidiary
Obligations; (g) any law, regulation, decree or order of any jurisdiction, or any other event,
affecting any term of the Subsidiary Obligations or Lenders rights with respect thereto,
including, without limitation: (i) the application of any such law, regulation, decree or order,
including any prior approval, which would prevent the exchange of a currency other than Dollars for
Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in
any legal exchange market in such jurisdiction in accordance with normal commercial practice; or
(ii) a declaration of banking moratorium or any suspension of payments by banks in such
jurisdiction or the imposition by such jurisdiction or any governmental authority thereof of any
moratorium on, the required rescheduling or restructuring of, or required approval of payments on,
any indebtedness in such jurisdiction; or (iii) any expropriation, confiscation, nationalization or
requisition by such country or any governmental authority that directly or indirectly deprives any
Subsidiary Borrower of any assets or their use or of the ability to operate its business or a
material part thereof; or (iv) any war (whether or not declared), insurrection, revolution, hostile
act, civil strife or similar events occurring in such jurisdiction which has the same effect as the
events described in clause (i), (ii) or (iii) above (in each of the cases contemplated in clauses
(i) through (iv) above, to the extent occurring or existing on or at any time after the date of
this Agreement; or (h) any other act, omission or delay to do any other act which may or might in
any manner or to any extent vary the risk of the Company or otherwise operate as a discharge of the
Company as a matter of law or equity or which would impair or eliminate any right of the Company to
subrogation, in each case, other than payment in full of the Subsidiary Obligations after
termination of the Commitments.
The Company further agrees that its guarantee hereunder constitutes a promise of payment when
due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or
collection of any of the Subsidiary Obligations or operated as a discharge thereof) and not merely
of collection, and waives any right to require that any resort be had by any Lender to any balance
of any deposit account or credit on the books of any Lender in favor of the Company or any
Subsidiary or any other Person.
The obligations of the Company hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Subsidiary Obligations, any impossibility in the performance of the
Subsidiary Obligations or otherwise, in each case, other than the defense of payment in full of the
Subsidiary Obligations.
55
The Company further agrees that its obligations hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any Subsidiary
Obligation is rescinded or must otherwise be restored by any Lender upon the bankruptcy or
reorganization of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Lender may
have at law or in equity against the Company by virtue hereof, upon the failure of any Subsidiary
Borrower to pay any Subsidiary Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, the Company hereby promises to
and will, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be
paid, to the Administrative Agent for distribution to the Lenders in cash an amount equal the
unpaid principal amount of such Subsidiary Obligation. The Company further agrees that if payment
in respect of any Subsidiary Obligation shall be due at a place of payment other than New York and
if, by reason of any legal prohibition, disruption of currency or foreign exchange markets, war or
civil disturbance or other event, payment of such Subsidiary Obligation at such place of payment
shall be impossible or, in the reasonable judgment of any Lender, not consistent with the
protection of its rights or interests, then, at the election of such Lender, the Company shall make
payment of such Subsidiary Obligation in New York, and shall indemnify such Lender against any
losses or expenses (including losses or expenses resulting from fluctuations in exchange rates)
that it shall sustain as a result of such alternative payment.
Upon payment in full by the Company of any Subsidiary Obligation of any Subsidiary Borrowers,
each Lender shall, in a reasonable manner, assign to the Company the amount of such Subsidiary
Obligation owed to such Lender and so paid, such assignment to be pro tanto to the extent to which
the Subsidiary Obligation in question was discharged by the Company, or make such disposition
thereof as the Company shall direct (all without recourse to any Lender and without any
representation or warranty by any Lender). Upon payment by the Company of any sums as provided
above, all rights of the Company against the applicable Subsidiary Borrower arising as a result
thereof by way of right of subrogation or otherwise shall in all respects be subordinated and
junior in right of payment to the prior indefeasible payment in full of all the Subsidiary
Obligations owed by such Subsidiary Borrower to the Lenders (it being understood that, after the
discharge of all the Subsidiary Obligations due and payable from such Subsidiary Borrower, such
rights may be exercised by the Company notwithstanding that such Subsidiary Borrower may remain
contingently liable for indemnity or other Subsidiary Obligations).
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. (a) Except in the case of notices and other communications expressly permitted to
be given by telephone (and subject to paragraph (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Company, to it at 40 Waterview Drive, Shelton, Connecticut 06484,
Attention of James H. Biggart (Telecopy No. (203) 882-6631), with a copy to Richard W.
Davies, Vice President and General Counsel (Telecopy No.(203) 882-3743);
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(ii) if to a Subsidiary Borrower, to it in care of the Company as provided in clause
(i) above;
(iii) if to the Administrative Agent, to (A) in the case of Borrowings Dollars,
JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 10 S. Dearborn Street, Chicago,
IL 60603, Attention of April Yebd (Telecopy No. (888) 292-9533) and (B) in the case of
Borrowings denominated in Foreign Currencies, to J.P. Morgan Europe Limited, 125 London
Wall, London EC2Y 5AJ, Attention of Manager Loan Agency (Telecopy No. 44 207 777 2360), and
in each case with a copy to JPMorgan Chase Bank, N.A., Two Corporate Drive, Suite 730,
Shelton, CT 06484, Attention of Scott Farquhar (Telecopy No.(203) 944-8495);
(iv) if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., 10 S. Dearborn Street,
Chicago, IL 60603, Attention of April Yebd (Telecopy No. (888) 292-9533);
(v) if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A., 10 S. Dearborn
Street, Chicago, IL 60603, Attention of April Yebd (Telecopy No. (888) 292-9533); and
(vi) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(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. The Administrative Agent or any Borrower may, in its discretion, agree to accept notices
and other communications to it hereunder by electronic communications pursuant to procedures
approved by it (including in respect of notices pursuant to Article II); provided that
approval of such procedures may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by the Administrative Agent, the Issuing Bank or any
Lender in exercising any right or power hereunder 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 Administrative Agent, the
Issuing Bank and the Lenders hereunder 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 consent
to any departure by any Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of such Default at the time.
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(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required
Lenders or by the Borrowers and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender directly affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of each Lender directly
affected thereby, (iv) change Section 2.18(b) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender directly and adversely
affected thereby, (v) change any of the provisions of this Section or the definition of Required
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 written consent of each Lender or (vi) release the Company from its
Guarantee under Article IX (except as expressly provided in Article IX) or limit its liability in
respect of such Guarantee, without the written consent of each Lender; provided further
that no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written
consent of the Administrative Agent, the Issuing Bank or the Swingline Lender, as applicable.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Company shall pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the syndication and
distribution (including, without limitation, via the internet or through a service such as
IntraLinks) of the credit facility provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Company shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
Indemnitee) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement
or instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit), (iii) any
Environmental Liability related in any way to the Company or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Company or any of its Subsidiaries, and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
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(c) To the extent that the Company fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lenders Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount
(it being understood that the Companys failure to pay any such amount shall not relieve the
Company of any default in the payment thereof); provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline Lender in its
capacity as such.
(d) To the extent permitted by applicable law, none of the Borrowers shall assert, and each
Borrower hereby waives, any claim against any Indemnitee (i) for any damages arising from the use
by others of information or other materials obtained through telecommunications, electronic or
other information transmission systems (including the Internet) except to the extent that such
damages are determined by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Indemnitee, or (ii) on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable not later than five days after written
demand therefor.
(f) The Companys indemnity obligation under Sections 10.03(a) and (b) hereof shall not apply
with respect to Taxes other than Taxes that represent losses, damages, claims, liabilities or
related expenses arising from any non-Tax claim.
SECTION 10.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (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 the 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 Administrative Agent, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees (other than an Affiliate of the Company) 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:
(A) the Company (provided that the Company shall be deemed to have consented to
any such assignment unless it shall object thereto by written notice to the
Administrative Agent within five (5) Business Days after having received notice
thereof); provided that no consent of the Company shall be required for an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined
below) or, if an Event of Default under clause (a) or (d) of Article VII has
occurred and is continuing, any other assignee;
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(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment to an Affiliate of a Lender
or for an assignment to an assignee that is a Lender immediately prior to giving
effect to such assignment; and
(C) the Issuing Bank.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lenders Commitment or Loans of any Class, the amount of the Commitment or Loans of
the assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the Company
and the Administrative Agent otherwise consent; provided that no such
consent of the Company shall be required if an Event of Default under clause (a) or
(d) of Article VII has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lenders rights and obligations under this Agreement;
provided that this clause shall not apply to rights in respect of
outstanding Competitive Loans or be construed to prohibit the assignment of a
proportionate part of all the assigning Lenders rights and obligations in respect
of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500, such fee to be paid by either the assigning Lender or the
assignee Lender or shared between such Lenders;
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Company and its
affiliates and their Related Parties or their respective securities) will be made
available and who may receive such information in accordance with the assignees
compliance procedures and applicable laws, including Federal and state securities
laws; and
(E) in the case of an assignment to a CLO (as defined below), the assigning
Lender shall retain the sole right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that the Assignment and
Assumption between such Lender and such CLO may provide that such Lender will not,
without the consent of such CLO, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such CLO.
For purposes of this Section 10.04(b), the terms Approved Fund and CLO have the
following meanings:
Approved Fund means (a) a CLO and (b) 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 of its business and that is administered
or managed by (i) a Lender,
(ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
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CLO means any entity (whether a corporation, partnership, trust or otherwise)
that is engaged in making, purchasing, holding or otherwise investing in bank loans and
similar extensions of credit in the ordinary course of its business and is administered or
managed by a Lender to an Affiliate of such Lender.
(iii) 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 Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lenders
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.03).
Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 10.04 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.
(iv) 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 Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender
and the Issuing Bank pursuant to the terms hereof from time to time (the
Register). The entries in the Register shall be conclusive, and the Borrowers,
the Administrative Agent, the Issuing Bank and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignees 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 Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b),
2.18(d) or 10.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register unless and
until such payment shall have been made in full, together with all accrued interest thereon.
No assignment shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of any Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a
Participant), other than to an Affiliate of the Company, in all or a portion of such
Lenders rights and obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (A) such Lenders 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 Administrative Agent, the Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lenders
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rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the first proviso to
Section 10.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this Section, each
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and
2.17 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 10.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(d) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section
2.15 or 2.17 than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Companys prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Sections 2.17(e) and
2.17(h) as though it were a Lender (it being understood that the documentation required
under Section 2.17(e) shall be delivered by each participant to the participating Lender).
Each Lender that sells a participation shall, acting solely for this purpose as an agent of
the Borrowers, maintain a register on which it enters the name and address of each
Participant and the principal amounts (and stated interest) of each Participants interest
in the obligations under this Agreement (the Participant Register); provided that
no Lender shall have any obligation to disclose all or any portion of the Participant
Register to any Person (including the identity of any Participant or any information
relating to a Participants interest in the obligations under this Agreement) except to the
extent that such disclosure is necessary to establish that such interest is in registered
form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in
the Participant Register shall be conclusive absent manifest error, and such Lender shall
treat each person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(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.
SECTION 10.05. Survival. All covenants, agreements, representations and warranties made by any Borrower
herein and in the certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans and issuance of
any Letters of Credit, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement
is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17 and 10.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any provision hereof.
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SECTION 10.06. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement and any separate letter agreements
with respect to fees payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 3.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by facsimile or other electronic imaging shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each
of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final and in whatever currency denominated) at any time held and other obligations
at any time owing by such Lender or Affiliate to or for the credit or the account of any Borrower
against any of and all the obligations of such Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Borrower or its properties in the courts of any
jurisdiction.
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(c) Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 10.01. Each Subsidiary Borrower irrevocably designates and appoints the Company, as its
authorized agent, to accept and acknowledge on its behalf, service of any and all process which may
be served in any suit, action or proceeding of the nature referred to in Section 10.09(b) in any
federal or New York State court sitting in New York City. The Company hereby represents, warrants
and confirms that the Company has agreed to accept such appointment. Said designation and
appointment shall be irrevocable by each such Subsidiary Borrower until all Loans, all
reimbursement obligations, interest thereon and all other amounts payable by such Subsidiary
Borrower hereunder and under the other Loan Documents shall have been paid in full in accordance
with the provisions hereof and thereof. Each Subsidiary Borrower hereby consents to process being
served in any suit, action or proceeding of the nature referred to in Section 10.09(b) in any
federal or New York State court sitting in New York City by service of process upon the Company as
provided in this Section 10.09(d); provided that, to the extent lawful and possible, notice
of said service upon such agent shall be mailed by registered or certified air mail, postage
prepaid, return receipt requested, to the Company. Each Subsidiary Borrower irrevocably waives, to
the fullest extent permitted by law, all claim of error by reason of any such service in such
manner and agrees that such service shall be deemed in every respect effective service of process
upon such Subsidiary Borrower in any such suit, action or proceeding and shall, to the fullest
extent permitted by law, be taken and held to be valid and personal service upon and personal
delivery to such Subsidiary Borrower. To the extent any Subsidiary Borrower has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process (whether from service
or notice, attachment prior to judgment, attachment in aid of execution of a judgment, execution or
otherwise), each Subsidiary Borrower hereby irrevocably waives such immunity in respect of its
obligations under the Loan Documents. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not affect the construction
of, or be taken into consideration in interpreting, this Agreement.
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SECTION 10.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority or self-regulatory authority, (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to any Borrower and its obligations, (g)
with the consent of the Company, (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to the Administrative
Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other than any
Borrower or (i) on a confidential basis to any rating agency in connection with rating the Company
or its Subsidiaries or the credit facility evidenced by this Agreement. For the purposes of this
Section, Information means all information received from any Borrower relating to any Borrower or
its business, other than any such information that is available to the Administrative Agent, the
Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by a Borrower;
provided that, in the case of information received from any Borrower after the date hereof,
such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the Charges), shall exceed the
maximum lawful rate (the Maximum Rate) which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of
interest payable in respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor)
until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.
SECTION 10.14. USA Patriot Act. Each Lender hereby notifies each Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), (the Act), it
is required to obtain, verify and record information that identifies such Borrower, which
information includes the name and address of such Borrower and other information that will allow
such Lender to identify such Borrower in accordance with the Act.
SECTION 10.15. Judgment. (a) If, for the purpose of obtaining judgment in any court, it is necessary to
convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent could purchase the
specified currency with such other currency at the Administrative Agents main New York City office
on the Business Day immediately preceding the day on which final, non-appealable judgment is given.
65
(b) The obligations of each Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the Applicable Creditor) shall,
notwithstanding any judgment in a currency (the Judgment Currency) other than the
currency in which such sum is stated to be due hereunder (the Agreement Currency), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal, reasonable banking procedures in the relevant jurisdiction purchase the
Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased
is less than the sum originally due to the Applicable Creditor in the Agreement Currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss. The obligations of the Borrowers contained in this Section 10.15 shall survive the
termination of this Agreement and the payment of all other amounts owing hereunder.
SECTION 10.16. 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),
each Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding this
Agreement provided by the Lenders are arms-length commercial transactions between such Borrower
and its Affiliates, on the one hand, and the Lenders, on the other hand, (B) such Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) such Borrower is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; (ii) (A) each of the 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 such Borrower or any of its Affiliates, or any other Person
and (B) no Lender has any obligation to such Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) each of the Lenders and their respective Affiliates may be engaged
in a broad range of transactions that involve interests that differ from those of such Borrower and
its Affiliates, and no Lender has any obligation to disclose any of such interests to the Borrower
or its Affiliates. To the fullest extent permitted by law, each Borrower hereby waives and
releases any claims that it may have against each of the Lenders with respect to any breach or
alleged breach of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.
[Signature Pages Follow]
66
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
|
|
|
|
|
|
HUBBELL INCORPORATED, as the Company
|
|
|
By: |
/s/ James H. Biggart, Jr.
|
|
|
|
Name: |
James H. Biggart, Jr. |
|
|
|
Title: |
Vice President and Treasurer |
|
|
|
HUBBELL CAYMAN LIMITED, as a Subsidiary Borrower
|
|
|
By: |
/s/ James H. Biggart, Jr.
|
|
|
|
Name: |
James H. Biggart, Jr. |
|
|
|
Title: |
Director |
|
|
|
HUBBELL INVESTMENTS LIMITED, as a Subsidiary Borrower
|
|
|
By: |
/s/ James H. Biggart, Jr.
|
|
|
|
Name: |
James H. Biggart, Jr. |
|
|
|
Title: |
Director |
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A., individually as a Lender;
as the Swingline Lender, as the Issuing Bank and as
Administrative Agent
|
|
|
By: |
/s/ D. Scott Farquhar
|
|
|
|
Name: |
D. Scott Farquhar |
|
|
|
Title: |
Senior Vice President |
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, individually
as a Lender and as a Syndication Agent
|
|
|
By: |
/s/ Tony Sood
|
|
|
|
Name: |
Tony Sood |
|
|
|
Title: |
Director |
|
|
|
HSBC BANK USA, NATIONAL ASSOCIATION, individually as
a Lender and as a Syndication Agent
|
|
|
By: |
/s/ Randolph E. Cates
|
|
|
|
Name: |
Randolph E. Cates |
|
|
|
Title: |
Senior Relationship Manager |
|
|
|
BANK OF AMERICA, N.A., individually as a Lender and
as a Documentation Agent
|
|
|
By: |
/s/ Christopher T. Phelan
|
|
|
|
Name: |
Christopher T. Phelan |
|
|
|
Title: |
SVP |
|
|
|
US BANK NATIONAL ASSOCIATION, individually as a
Lender and as a Documentation Agent
|
|
|
By: |
/s/ Michael P. Dickman
|
|
|
|
Name: |
Michael P. Dickman |
|
|
|
Title: |
Vice President |
|
|
|
THE BANK OF NEW YORK MELLON, as a Lender
|
|
|
By: |
/s/ Kenneth P. Sneider, Jr.
|
|
|
|
Name: |
Kenneth P. Sneider, Jr. |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
|
MORGAN STANLEY BANK, N.A., as a Lender
|
|
|
By: |
/s/ Sherrese Clarke
|
|
|
|
Name: |
Sherrese Clarke |
|
|
|
Title: |
Authorized Signatory |
|
|
|
THE NORTHERN TRUST COMPANY, as a Lender
|
|
|
By: |
/s/ Clifford Hoppe
|
|
|
|
Name: |
Clifford Hoppe |
|
|
|
Title: |
Second Vice President |
|
|
|
CITIBANK, N.A., as a Lender
|
|
|
By: |
/s/ Janice DArco
|
|
|
|
Name: |
Janice DArco |
|
|
|
Title: |
Vice President |
|
|
|
TD BANK, N.A., as a Lender
|
|
|
By: |
/s/ Wade C. Jacobson
|
|
|
|
Name: |
Wade C. Jacobson |
|
|
|
Title: |
Senior Vice President |
|
SCHEDULE 2.01
COMMITMENTS
|
|
|
|
|
LENDER |
|
COMMITMENT |
|
JPMORGAN CHASE BANK, N.A. |
|
$ |
75,000,000 |
|
WELLS FARGO BANK, NATIONAL ASSOCIATION |
|
$ |
75,000,000 |
|
HSBC BANK USA, NATIONAL ASSOCIATION |
|
$ |
75,000,000 |
|
BANK OF AMERICA, N.A. |
|
$ |
50,000,000 |
|
U.S. BANK NATIONAL ASSOCIATION |
|
$ |
50,000,000 |
|
THE BANK OF NEW YORK MELLON |
|
$ |
35,000,000 |
|
MORGAN STANLEY BANK, N.A. |
|
$ |
35,000,000 |
|
THE NORTHERN TRUST COMPANY |
|
$ |
35,000,000 |
|
CITIBANK, N.A. |
|
$ |
35,000,000 |
|
TD BANK, N.A. |
|
$ |
35,000,000 |
|
TOTAL COMMITMENTS |
|
$ |
500,000,000 |
|
SCHEDULE 2.02
MANDATORY COST
1. |
|
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank. |
|
2. |
|
On the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the Associated Costs
Rate) for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of the Lenders
Associated Costs Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum. |
|
3. |
|
The Associated Costs Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by that Lender in its notice to the Administrative Agent to be
its reasonable determination of the cost (expressed as a percentage of that Lenders
participation in all Loans made from that Facility Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans made from that Facility
Office. |
|
4. |
|
The Associated Costs Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Administrative Agent as follows: |
|
(a) |
|
in relation to a Loan in Pounds Sterling: |
|
|
|
|
|
|
|
|
|
AB + C (B
D) + E x 0.01 |
|
per cent. per annum |
|
|
|
|
100 (A + C)
|
|
|
|
|
(b) |
|
in relation to a Loan in any currency other than Pounds Sterling: |
|
|
|
|
|
|
|
|
|
|
|
E x 0.01
|
|
per cent. per annum. |
|
|
|
|
|
300 |
|
|
|
|
|
|
A |
|
is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements. |
|
|
B |
|
is the percentage rate of interest (excluding the Applicable LIBOR Interest
Addition and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate
of interest specified in Section 2.13(c)) payable for the relevant Interest Period on
the Loan. |
|
|
C |
|
is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England. |
|
|
D |
|
is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits. |
|
E |
|
is designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Administrative Agent as being the average of the most recent rates
of charge supplied by the Reference Banks to the Administrative Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000. |
5. |
|
For the purposes of this Schedule: |
|
(a) |
|
Eligible Liabilities and Special Deposits have the meanings given to them
from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England; |
|
|
(b) |
|
Facility Office means the office or offices notified by a Lender to the
Administrative Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days written notice) as the office
or offices through which it will perform its obligations under this Agreement. |
|
|
(c) |
|
Fees Rules means the rules on periodic fees contained in the Financial
Services Authority Fees Manual or such other law or regulation as may be in force from
time to time in respect of the payment of fees for the acceptance of deposits; |
|
|
(d) |
|
Fee Tariffs means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate); |
|
|
(e) |
|
Reference Banks means, in relation to Mandatory Cost, the principal London
offices of JPMorgan Chase Bank, N.A. |
|
|
(f) |
|
Tariff Base has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules. |
|
|
(g) |
|
Unpaid Sum means any sum due and payable but unpaid by any Borrower under the
Loan Documents. |
6. |
|
In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places. |
|
7. |
|
If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent, the
rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of that Reference Bank. |
|
8. |
|
Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Associated Costs Rate. In particular, but without limitation, each Lender
shall supply the following information on or prior to the date on which it becomes a Lender: |
|
(a) |
|
the jurisdiction of its Facility Office; and |
|
(b) |
|
any other information that the Administrative Agent may reasonably require for
such purpose. |
Each Lender shall promptly notify the Administrative Agent of any change to the information
provided by it pursuant to this paragraph.
9. |
|
The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Administrative Agent
based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Administrative Agent to the contrary, each
Lenders obligations in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a Facility Office in the
same jurisdiction as its Facility Office. |
|
10. |
|
The Administrative Agent shall have no liability to any person if such determination results
in an Associated Costs Rate which over or under compensates any Lender and shall be entitled
to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs
3, 7 and 8 above is true and correct in all respects. |
|
11. |
|
The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Associated Costs Rate for each Lender based
on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7
and 8 above. |
|
12. |
|
Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Associated Costs Rate or any amount payable to a Lender shall,
in the absence of manifest error, be conclusive and binding on all parties hereto. |
|
13. |
|
The Administrative Agent may from time to time, after consultation with the Company and the
relevant Lenders, determine and notify to all parties in writing hereto any amendments which
are required to be made to this Schedule 2.02 in order to comply with any change in law,
regulation or any requirements from time to time imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all parties hereto. |
SCHEDULE 4.08
LITIGATION
None
Schedule 6.02
|
|
|
|
|
|
|
|
|
|
|
Maturity |
|
|
Outstanding Value |
|
Letters of Credit |
|
|
|
|
|
|
|
|
HUBBELL INCORPORATED |
|
|
|
|
|
|
|
|
Standby Letters of Credit |
|
|
|
|
|
|
|
|
LIBERTY MUTUAL INSURANCE COMPANY |
|
|
10/31/2011 |
|
|
$ |
15,898,229 |
|
ACE AMERICAN INSURANCE COMPANY |
|
|
10/05/2012 |
|
|
$ |
1,931,347 |
|
|
|
|
|
|
|
|
|
|
PROGRESS LIGHTING INC. |
|
|
|
|
|
|
|
|
Documentary Letters of Credit |
|
|
|
|
|
|
|
|
D AND J INDUSTRIAL CO., LTD. |
|
|
01/15/2012 |
|
|
$ |
1,871,291 |
|
|
|
|
|
|
|
|
|
|
Short Term Debt |
|
|
|
|
|
|
|
|
FABRICAS DE PECAS ELECTRICAS DELMAR LTDA. |
|
|
|
|
|
|
|
|
Revolving line of credit with HSBC Bank Brasil |
|
|
02/01/2012 |
|
|
$ |
2,280,312 |
|
|
|
|
|
|
|
|
|
|
Long Term Debt |
|
|
|
|
|
|
|
|
HUBBELL INCORPORATED |
|
|
|
|
|
|
|
|
Sr. Unsecured Notes $300,000,000 3.625% 10/15/22 |
|
|
11/15/2022 |
|
|
$ |
300,000,000 |
|
Sr. Unsecured Notes $300,000,000 5.95% 06/01/18 |
|
|
06/01/2018 |
|
|
$ |
300,000,000 |
|
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
Assignor) and [Insert name of Assignee] (the Assignee). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as it may be amended, restated, supplemented or otherwise modified from time to time, the
Credit Agreement), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignors
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit and
swingline loans to the extent included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the Assigned Interest). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
|
|
|
|
|
1.
|
|
Assignor: |
|
|
|
|
|
|
|
|
|
|
|
|
2.
|
|
Assignee: |
|
|
|
|
|
|
|
|
|
|
|
[and is an Affiliate/Approved Fund of [identify Lender]1] |
|
|
|
|
|
3.
|
|
Borrower(s):
|
|
Hubbell Incorporated and the
Subsidiary Borrowers party
thereto |
|
|
|
|
|
|
|
|
|
|
4.
|
|
Administrative Agent:
|
|
JPMorgan Chase Bank, N.A., as the
administrative agent under the
Credit Agreement |
|
|
|
|
|
5.
|
|
Credit Agreement:
|
|
The Credit Agreement dated as of
October 20, 2011 among Hubbell
Incorporated, the Subsidiary
Borrowers party thereto, the
Lenders party thereto, and
JPMorgan Chase Bank, N.A., as
Administrative Agent |
|
|
|
|
|
6.
|
|
Assigned Interest: |
|
|
|
|
|
|
|
|
|
|
|
Aggregate Amount of |
|
Amount of |
|
|
Percentage Assigned |
|
Commitment/Loans for all |
|
Commitment/ |
|
|
of |
|
Lenders |
|
Loans Assigned |
|
|
Commitment/Loans2 |
|
$ |
|
$ |
|
|
|
|
|
% |
$ |
|
$ |
|
|
|
|
|
% |
$ |
|
$ |
|
|
|
|
|
% |
Effective Date:
_____
, 20_____
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
|
|
|
|
|
|
ASSIGNOR
[NAME OF ASSIGNOR]
|
|
|
By: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
ASSIGNEE
[NAME OF ASSIGNEE]
|
|
|
By: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
Consented to and Accepted: |
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and Issuing Bank |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
[Consented to:]3 |
|
|
|
|
|
|
|
HUBBELL INCORPORATED |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
2 |
|
Set forth, so at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder. |
|
3 |
|
To be added only if the consent of the Company is
required by the terms of the Credit Agreement. |
ANNEX I
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim created by the Assignor and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound as a Lender by the provisions of
the Credit Agreement and, to the extent of the Assigned Interest, shall have the obligations of a
Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements referred to in Section 4.06 thereof or delivered pursuant to
Section 5.01 thereof, as applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent, the Assignor or any
other Lender, and (v) if it is a Foreign Lender, attached to the Assignment and Assumption is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
EXHIBIT B-1
FORM OF OPINION OF BORROWERS GENERAL COUNSEL
[HUBBELL INCORPORATED LETTERHEAD]
October 20, 2011
JPMorgan Chase Bank, N.A.
as Administrative Agent under
the Credit Agreement, as defined below,
and the Lenders listed on Schedule I hereto
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Re: |
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Credit Agreement, dated as of October 20, 2011 (the Credit
Agreement), among the Company (as defined below), Hubbell Cayman Limited, Hubbell
Investments Limited (together with Hubbell Cayman Limited, the Subsidiary
Borrowers and each, a Subsidiary Borrower), the Lenders party thereto,
and JPMorgan Chase Bank, N.A., as administrative agent (the Administrative
Agent) |
Ladies and Gentlemen:
I am Vice President and General Counsel for Hubbell Incorporated (the Company). This
opinion is rendered to you pursuant to Section 3.01(b) of the Credit Agreement. All terms used but
not defined in this opinion which are defined in the Credit Agreement shall have the respective
meanings provided therein.
As such counsel, I have examined such matters of fact and questions of law as I have considered
appropriate for purposes of this letter. I have examined, among other things, the Credit Agreement
dated the date hereof, executed by the Company, the Subsidiary Borrowers, the Administrative Agent
and the Lenders. In my examination, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, and the conformity to authentic
original documents of all documents submitted to me as copies. Except as otherwise stated herein,
as to facts material to the opinions, statements and assumptions, I have, with your consent, relied
upon the foregoing, and upon oral and written statements and representations of officers and other
representatives of the Company and others. I have not independently verified such factual matters.
In addition, I have obtained and relied upon such certificates and assurances from public
officials as I have deemed necessary.
I am opining herein as to the effect on the subject transaction only of the internal laws of the
State of Connecticut, and I express no opinion with respect to the applicability thereto, or the
effect thereon, of the laws of any other jurisdiction or as to any matters of municipal law or the
laws of any local agencies within such state.
Except as otherwise stated herein, the opinions and confirmations are based upon my consideration
of only those statutes, rules and regulations which, in my experience, are normally applicable to
borrowers in unsecured loan transactions. I express no opinion as to any state or federal laws or
regulations applicable to the subject transaction because of the legal or regulatory status of any
parties to the Credit Agreement or the legal or regulatory status of any of their affiliates.
Various issues concerning the federal laws of the United States and the internal laws of the State
of New York are addressed in the
opinion of Latham & Watkins LLP, which has separately been provided to you, and I express no
opinion with respect to those matters.
Subject to the foregoing and the other matters set forth herein, it is my opinion that, as of the
date hereof:
(1) The Company is a corporation under the laws of the State of Connecticut. With your consent,
based solely on certificates from public officials of the State of Connecticut, we confirm that the
Borrower is validly existing under the laws of the State of Connecticut;
(2) The Company has the corporate power and authority to own its properties and assets and to
conduct its business as now being conducted and to enter into the Credit Agreement and to perform
its obligations thereunder;
(3) The execution and delivery of the Credit Agreement by the Company have been duly authorized by
all necessary corporate action of the Company, and the Credit Agreement has been duly executed and
delivered by the Company;
(4) The execution and delivery of the Credit Agreement by the Company and each Subsidiary Borrower
and the performance of the obligations of the Company and each Subsidiary Borrower under the Credit
Agreement do not on the date hereof (i) violate the provisions of the articles of incorporation or
by-laws of the Company; (ii) violate any Connecticut statute, rule or regulation applicable to the
Company; (iii) result in a breach of or a default under any material indenture, mortgage, written
contract or agreement or other undertaking or instrument to which the Company is a party or by
which the Company or any of its properties or assets may be bound (the Material
Agreements); or (iv) result in the creation of any lien, charge or encumbrance upon or with
respect to the properties of the Company, except to the extent that any such violation, conflict or
lien, charge or encumbrance in clause (ii), (iii) or (iv) could not reasonably be expected to have
a Material Adverse Effect; and
(5) No consent, approval or authorization or order of, or filing, registration or qualification by
the Company under any Connecticut statute, rule or regulation applicable to the Company is required
in connection with the execution and delivery of the Credit Agreement or the performance of the
obligations of the Company under the Credit Agreement on the date hereof, except to the extent that
the failure to obtain such consents, approvals, authorizations or orders, or to make any such
filing, registration or qualification could not reasonably be expected to have a Material Adverse
Effect.
No opinion is expressed in paragraphs 4(ii) and 5 above as to the application of comparable
provisions under Connecticut law to Sections 547 and 548 of the federal Bankruptcy Code, or under
other laws customarily excluded from such opinions, including any antifraud laws, securities laws,
tax laws, usury laws, antitrust or trade regulation laws, insolvency or fraudulent transfer laws,
margin regulations and FINRA rules or stock exchange rules.
In rendering the opinions expressed in paragraph 4 insofar as they require interpretation of the
Material Agreements: (i) I have assumed with your permission that all courts of competent
jurisdiction would enforce such agreements as written but would apply the internal laws of
Connecticut without giving effect to any choice of law provisions contained therein or any choice
of law principles which would result in application of the internal laws of any other state; (ii)
to the extent that any questions of legality or legal construction have arisen in connection with
my review, I have applied the laws of Connecticut in resolving such questions; (iii) I express no
opinion with respect to the effect of any action or inaction by the Company under the Credit
Agreement or the Material Agreements which may result in a breach or default under any Material
Agreement; and (iv) I express no opinion with respect to any matters which require me to perform a
mathematical calculation or make a financial or accounting determination. I
advise you that certain of the Material Agreements may be governed by other laws, that such laws
may vary substantially from the law assumed to govern for purposes of this opinion, and that this
opinion may not be relied upon as to whether or not a breach or default would occur under the law
actually governing such Material Agreements.
To the extent that the obligations of the Company may be dependent upon such matters, I assume for
purposes of this opinion that: all parties to the Credit Agreement other than the Company are duly
organized, validly existing and in good standing under the laws of their respective jurisdictions
of organization; all parties to the Credit Agreement other than the Company have the requisite
organizational power and authority to execute and deliver the Credit Agreement and to perform their
respective obligations thereunder; all parties to the Credit Agreement other than the Company have
duly authorized, executed and delivered the Credit Agreement; and the Credit Agreement constitutes
a legally valid and binding obligation of each party thereto, enforceable against such party in
accordance with its terms.
This opinion is rendered only to you and is solely for your benefit in connection with the
transactions covered hereby. This opinion may not be relied upon by you for any other purpose, or
furnished to, quoted to or relied upon by any other person, firm or corporation for any purpose,
without my prior written consent. At your request, (a) I hereby consent to reliance hereon by any
future assignee of your interest in the loans under the Credit Agreement pursuant to an assignment
that is made and consented to in accordance with the express provisions of Section 10.04 of the
Credit Agreement, on the condition and understanding that (i) this letter speaks only as date
hereof, (ii) I have no responsibility or obligation to update this letter, to consider its
applicability or correctness to any person, firm or entity other than its addressee(s), or to take
into account changes in law, facts or any other developments of which we may later become aware,
and (iii) and such reliance by a future assignee must be actual and reasonable under the
circumstances existing at the time of assignment, including any changes in law, facts or any other
developments known to or reasonably knowable by the assignee at such time and (b) I hereby consent
to disclosure of this letter as may be required by applicable law, provided that no such person,
firm or entity to whom this letter is disclosed pursuant to this clause (b) shall be entitled to
rely on this letter.
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Very truly yours,
HUBBELL INCORPORATED
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By: |
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Richard W. Davies |
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Vice President, General Counsel |
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EXHIBIT B-2
FORM OF OPINION OF BORROWERS SPECIAL U.S. COUNSEL
October 20, 2011
JPMorgan Chase Bank, N.A.
as Administrative Agent under
the Credit Agreement, as defined below,
and the lenders listed on Schedule I hereto
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Re: |
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Credit Agreement, dated as of October 20, 2011 (the Credit
Agreement), among the Company (as defined below), Hubbell Cayman Limited, Hubbell
Investments Limited (together with Hubbell Cayman Limited, the Subsidiary
Borrowers and each, a Subsidiary Borrower), the lenders party thereto
(the Lenders), and JPMorgan Chase Bank, N.A., as administrative agent (the
Administrative Agent) |
Ladies and Gentlemen:
We have acted as special counsel to Hubbell Incorporated, a Connecticut corporation (the
Company), in connection with the referenced Credit Agreement. This letter is furnished
pursuant to Section 3.01(b) of the Credit Agreement.
As such counsel, we have examined such matters of fact and questions of law as we have considered
appropriate for purposes of this letter. We have examined, among other things, the Credit
Agreement dated the date hereof, executed by the Company, the Subsidiary Borrowers, the
Administrative Agent and the Lenders. Except as otherwise stated herein, as to factual matters we
have, with your consent, relied upon the foregoing, and upon oral and written statements and
representations of officers and other representatives of the Company and the Subsidiariy Borrowers
and others, including representations and warranties of the Company and the Subsidiary Borrowers in
the Credit Agreement. We have not independently verified such factual matters. Whenever a
statement herein is qualified by to the best of our knowledge or a similar phrase, it is intended
to indicate that those attorneys in this firm who have rendered legal services in connection with
the transaction contemplated by the Credit Agreement do not have current actual knowledge of the
inaccuracy of any such statement. However, except as otherwise expressly indicated, we have not
undertaken any independent inquiry to determine the accuracy of any such statement.
We are opining as to the effect on the subject transaction only of the federal laws of the United
States and the internal laws of the State of New York, and we express no opinion with respect to
the applicability to the opinions expressed herein, or the effect thereon, of the laws of any other
jurisdiction or as to any matters of municipal law or the laws of any local agencies within any
state.
Except as otherwise stated herein, our opinions herein are based upon our consideration of only
those statutes, rules and regulations which, in our experience, are normally applicable to
borrowers in unsecured loan transactions. We express no opinion as to any state or federal laws or
regulations applicable to the subject transaction because of the legal or regulatory status of any
parties to the Credit Agreement or the legal or regulatory status of any of their affiliates.
Various issues pertaining to the internal laws of the State of Connecticut are addressed in the
opinion of Richard W. Davies, Esq., separately provided to you, and we express no opinion with
respect to those matters herein. Various issues concerning the internal laws of the Cayman Islands
are addressed in the opinion of Charles Adams Ritchie & Duckworth, separately provided to you, and
we express no opinion with respect to those matters herein.
Subject to the foregoing and the other matters set forth herein, we express the following opinions
as of the date hereof:
1. The Credit Agreement, assuming its due authorization, execution and delivery by the Company
and each Subsidiary Borrower, constitutes a legally valid and binding obligation of the Company and
each Subsidiary Borrower enforceable against the Company and each Subsidiary Borrower in accordance
with its terms.
2. The execution and delivery of the Credit Agreement by the Company and each Subsidiary
Borrower and the performance of the obligations of the Company and each Subsidiary Borrower
thereunder on the date hereof do not:
(i) violate any federal or New York State statute, rule or regulation applicable to the
Company; or
(ii) require any consents, approvals or authorizations to be obtained by the Company or any
Subsidiary Borrower from, or any registrations, declarations or filings to be made by the Company
or any Subsidiary Borrower with, any governmental authority under any federal or New York State
statute, rule or regulation applicable to the Company or any Subsidiary Borrower that have not been
obtained or made.
No opinion is expressed in this paragraph 2 as to the application of Section 547 and 548 of the
federal Bankruptcy Code and comparable provisions of state law, or under other laws customarily
excluded from such opinions, including any antifraud laws, securities laws, tax laws, usury laws,
antitrust or trade regulation laws, insolvency or fraudulent transfer laws, margin regulations and
FINRA rules or stock exchange rules.
3. The Company is not required to be registered as an investment company within the meaning
of the Investment Company Act of 1940, as amended.
Our opinions above are further subject to the following limitations, qualifications and exceptions:
(a) the effect of bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
other similar laws relating to or affecting the rights or remedies of creditors;
(b) the effect of general principles of equity, whether considered in a proceeding in equity
or at law (including the possible unavailability of specific performance or
injunctive relief), concepts of materiality, reasonableness, good faith, fair dealing and the
discretion of the court before which a proceeding is brought;
(c) we express no opinion with respect to consents to, or restrictions upon, jurisdiction,
venue, service of process, choice of law, arbitration, economic remedies or judicial relief;
advance waivers of claims, defenses, rights granted by law or notice, opportunity for hearing,
evidentiary requirements, statutes of limitation, jury trial or other procedural rights; waivers of
broadly or vaguely stated rights; exclusivity, election or cumulation of rights or remedies;
non-written modifications and waivers; conclusive or discretionary determinations; grants of setoff
rights; provisions to the effect that a guarantor is liable as a primary obligor, and not as a
surety and provisions purporting to waive modifications of any guaranteed obligation to the extent
such modification constitutes a novation; provisions for the payment of attorneys fees where such
payment is contrary to law or public policy; provisions prohibiting, restricting, or requiring
consent to assignment or transfer of any right or property; or provisions for liquidated damages,
default interest, late charges, monetary penalties, prepayment or make-whole premiums or other
economic remedies to the extent such provisions are deemed to constitute a penalty; the
severability, if invalid, of provisions to the foregoing effect; and
(d) the unenforceability under certain circumstances under law or court decisions of
provisions for indemnification or exculpation of, or contribution to, a party with respect to a
liability where such indemnification, exculpation or contribution is contrary to public policy.
We call to your attention that enforcement of a claim denominated in a foreign currency may be
limited by requirements that the claim (or a judgment in respect of the claim) be converted into
United States dollars, and we express no opinion as to the enforceability of any indemnity for
losses associated with the exchange of the judgment currency into any other currency.
With your consent, we have assumed that (a) the Credit Agreement has been duly authorized, executed
and delivered by the parties thereto, (b) the Credit Agreement constitutes a legally valid and
binding obligation of each party thereto (other than the Company and the Subsidiary Borrowers),
enforceable against such party in accordance with its terms and (c) the status of the Credit
Agreement as a legally valid and binding obligation of the parties thereto is not affected by any
(i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules,
regulations or court or governmental orders, or (iii) failures to obtain required consents,
approvals or authorizations from, or make required registrations, declarations or filings with,
governmental authorities, provided that we make no such assumption to the extent we have opined as
to such matters with respect to the Company or any Subsidiary Borrower herein.
This letter is furnished only to you and is solely for your benefit in connection with the
transactions referenced herein. This letter may not be relied upon by you for any other purpose,
or furnished to, assigned to, quoted to or relied upon by any other person, firm or entity for any
purpose, without our prior written consent, which may be granted or withheld in our discretion. At
your request, (a) we hereby consent to reliance hereon by any future assignee of your interest in
the loans under the Credit Agreement pursuant to an assignment that is made and consented to in
accordance with the express provisions of Section 10.04 of the Credit Agreement, on the condition
and understanding that (i) this letter speaks only as date hereof, (ii) we have no responsibility
or obligation to update this letter, to consider its applicability or correctness to any person,
firm or entity other than its addressee(s), or to take into account
changes in law, facts or any
other developments of which we may later become aware, and
(iii) and such reliance by a future assignee must be actual and reasonable under the circumstances existing at the time of
assignment, including any changes in law, facts or any other developments known to or reasonably
knowable by the assignee at such time and (b) we hereby consent to disclosure of this letter as may
be required by applicable law, provided that no such person, firm or entity to whom this letter is
disclosed pursuant to this clause (b) shall be entitled to rely on this letter.
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Very truly yours,
Latham & Watkins LLP
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SCHEDULE I
JPMorgan Chase Bank, N.A.
Wells Fargo Bank, National Association
HSBC Bank USA, National Association
Bank of America, N.A.
U.S. Bank National Association
The Bank of New York Mellon
Morgan Stanley Bank, N.A.
The Northern Trust Company
Citibank, N.A.
TD Bank, N.A.
EXHIBIT B-3
FORM OF OPINION OF BORROWERS SPECIAL CAYMAN COUNSEL
20 October 2011
JPMorgan Chase Bank, N.A.
as Administrative Agent to the Lenders
and the Lenders referred to below
(as defined in the Agreement referred to below)
c/o JPMorgan Chase Bank, N.A.
270 Park Avenue
New York, NY 10017
Dear Sirs,
Re: Hubbell Cayman Limited (the Company)
We have acted as special counsel in the Cayman Islands to the Company for the purpose of providing
this legal opinion in connection with a Credit Agreement dated 20 October 2011 among, inter alios,
Hubbell Incorporated, Hubbell Cayman Limited and Hubbell Investments Limited (as borrowers), the
Lenders (as defined therein) and JPMorgan Chase Bank, N.A. as Administrative Agent (the
Agreement).
We provide registered office facilities in the Cayman Islands to the Company. However, we have not
acted in any way as legal adviser to the Company, we are not familiar with its operations or
financial affairs and we have not acted in regard to this transaction save for the purpose of
giving this opinion.
For the purpose of this opinion, we have examined and relied upon the originals and copies,
certified or otherwise, of the following documents:-
(i) |
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Certificate of Incorporation of the Company; |
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(ii) |
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Memorandum and Articles of Association of the Company (the Memorandum and Articles); |
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(iii) |
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Register of Officers and Directors, Register of Members and Register of Charges of the
Company (the Registers); |
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(iv) |
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Executed Agreement; |
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(v) |
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The written resolutions of the Directors of the Company dated 20 October 2011 having the
effect of approving the execution and delivery of the Agreement (the Resolutions); |
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(vi) |
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Certificate signed by a Director of the Company (the Directors Certificate); and |
(vii) |
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Certificate of Good Standing issued by the Registrar of Companies in and for the Cayman
Islands dated 6 October 2011 in respect of the Company (a copy of which is attached hereto). |
We are attorneys-at-law in the Cayman Islands and this opinion is confined to and given on the
basis of the laws of the Cayman Islands in force and currently applied by the courts of the Cayman
Islands as at the date hereof. We have made no investigation and express no opinion as to the law
of any jurisdiction other than the Cayman Islands.
This opinion is given only as to circumstances existing and known to us at the date hereof and, in
giving this opinion, we have relied upon the completeness and accuracy (and assumed the continuing
completeness and accuracy) of the Directors Certificate and have assumed without enquiry:-
(a) |
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the Agreement has been or will be authorised and duly executed and unconditionally delivered
by or on behalf of all relevant parties in accordance with all relevant laws (other than, with
respect to the Company, the laws of the Cayman Islands); |
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(b) |
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The Agreement is, or will be, legal, valid, binding and enforceable against all relevant
parties in accordance with its terms under the laws of the State of New York and all other
relevant laws (other than, with respect to the Company, the laws of the Cayman Islands); |
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(c) |
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the genuineness of all signatures and seals, the authenticity and completeness of all
documents submitted to us as originals or copies, and the conformity to original documents of
all copies examined by us (whether or not certified); |
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(d) |
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that where a document has been examined by us in draft form, it will or has been executed in
the form of that draft, and where a number of drafts of a document have been examined by us,
all changes thereto have been marked or otherwise drawn to our attention; |
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(e) |
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the capacity, power and authority of the parties under all relevant laws and regulations
(other than, in respect of the Company, the laws of the Cayman Islands) to enter into, execute
and perform their respective obligations under the Agreement; |
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(f) |
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that there is no contractual or other prohibition (other than any arising under the laws of
the Cayman Islands) binding on the Company prohibiting it from entering into and performing
its obligations under the Agreement; |
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(g) |
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that the Directors, when passing the Resolutions, acted in good faith and, having regard to
all relevant matters, reasonably and honestly believed that the obligations to be assumed by
the Company under the Agreement would be in its best commercial interest; |
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(h) |
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that the members of the Company have not passed any resolution restricting the powers of the
Directors; |
(i) |
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the choice of the laws of New York (the Governing Laws) to govern the Agreement and the
submission to the non-exclusive jurisdiction of the courts of New York has been made for bona
fide purposes and will be regarded as a valid and binding choice and submission which will be
upheld by such courts, as a matter of the Governing Laws and all other relevant laws (other
than the laws of the Cayman Islands); |
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(j) |
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the Company will, by any test, remain solvent and able to pay its debts when due in the
ordinary course of business notwithstanding its obligations under the Agreement; and |
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(k) |
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that there is no provision of the laws of any jurisdiction (other than the Cayman Islands)
which would or might have any implication in relation to the opinions expressed herein; and |
Based upon and subject to the foregoing and subject to the reservations and qualifications
mentioned below and to any matters not disclosed to us, we are of the opinion that:-
1. |
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The Company has been duly incorporated as a limited liability exempted company and is validly
existing and in good standing pursuant to the provisions of the Companies Law (2010 Revision)
(good standing meaning solely that the Company has not failed to make any filing with, or
pay any fee to, the Cayman Islands government that would render it liable to be struck off the
register of companies). |
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2. |
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The Company has corporate power and authority to own its assets and conduct its business in
accordance with its Memorandum and Articles, including the necessary corporate power and
authority to enter into the Agreement and perform its obligations thereunder. |
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3. |
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The Company has taken all corporate action necessary to authorise the execution and delivery
of the Agreement to which it is a party and the performance of its obligations thereunder. |
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4. |
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The Agreement has been duly authorised by and on behalf of the Company and will constitute
legal, valid and binding obligations of the Company enforceable in accordance with its terms
except and insofar as such enforcement may be limited as noted below. |
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5. |
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No licences, filings, authorisations, consents or approvals are required from any
governmental authorities or agencies or other official bodies in the Cayman Islands in
connection with the execution or delivery of the Agreement or the performance by the parties
thereto of their respective obligations thereunder or with the validity and enforceability of
the Agreement. |
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6. |
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The Agreement is in proper legal form for enforcement in the courts of the Cayman Islands,
assuming the Agreement is in proper legal form for enforcement under the Governing Laws and
all other relevant laws (other than the laws of the Cayman Islands); |
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7. |
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It is not necessary under the laws of the Cayman Islands in order to enable the parties to
enforce their rights under the Agreement, or by reason of the execution, delivery or
performance of the Agreement to which they are parties, that the parties to the Agreement
should be licensed, qualified or otherwise entitled to do business in the Cayman Islands. |
8. |
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No parties to the Agreement will be treated as resident, domiciled or carrying on business or
subject to taxation in the Cayman Islands or in violation of any law thereof solely by reason
of the negotiation, preparation or execution of the Agreement or the exercise of their rights
or the performance of their obligations thereunder. |
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9. |
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The execution and delivery of the Agreement and the performance by the Company of its
obligations thereunder will not violate or conflict with, or result in any breach of, or
require any consent under the Memorandum and Articles nor any applicable law, regulation,
order or decree of any governmental authority or agency or any other official body in the
Cayman Islands. |
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10. |
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The Agreement will not be subject to ad valorem stamp duty in the Cayman Islands (assuming
the Agreement does not create any charge over property situated in the Cayman Islands) and no
registration, documentary, recording, transfer or other similar tax, fee or charge is payable
in the Cayman Islands in connection with the execution, delivery or performance of the
Agreement. Subject as aforesaid, the Agreement will be subject to nominal stamp duty if it is
executed in or brought into the Cayman Islands after execution. |
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11. |
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No withholding tax or similar tax or deduction is payable under the laws of the Cayman
Islands on or in respect of any amounts payable by the Company under the Agreement. |
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12. |
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The Company is not entitled to sovereign immunity under the laws of the Cayman Islands from
any legal proceedings in respect of any obligation arising under the Agreement, including
immunity from service, immunity from jurisdiction of any court or tribunal or immunity of any
of its property from attachment prior to entry of judgment or from attachment in aid of
execution upon a judgment in respect of itself or its property. |
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13. |
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Although there is generally no statutory enforcement in the Cayman Islands of judgments
obtained elsewhere, the courts of the Cayman Islands will recognise and enforce a judgment of
a foreign court of competent jurisdiction (based on the principle that such a judgment imposes
upon a judgment debtor an obligation to pay the sum for which the judgment has been given)
provided such judgment is final and conclusive in personam, is for a liquidated sum which is
not in respect of taxes, fines, penalties or punitive damages, was not obtained by fraud or in
a manner, and is not of a kind the enforcement of which is, contrary to the public policy of
the Cayman Islands and was not obtained in proceedings which were contrary to the rules of
natural justice. |
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14. |
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The choice of the Governing Laws as the governing law of the Agreement will be recognised and
given effect to in any action brought before a court of competent jurisdiction in the Cayman
Islands (except for those laws (i) which such court considers to be procedural in nature, (ii)
which are revenue or penal in nature or (iii) the application of which would be inconsistent
with public policy, as such term is interpreted under the laws of the Cayman Islands) provided
such choice of laws was made for bona fide purposes and is effective as a matter of the
Governing Laws, and such choice of laws will be applied by such courts provided evidence of
such laws is pleaded. |
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15. |
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The submission to the exclusive jurisdiction of the courts of New York by the Company,
provided such submission was made for bona fide reasons, will be a legal, valid and binding
obligation of the Company. |
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16. |
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Based solely of our search of the Register of Writs and other Originating Process at 11 a.m.
on 14 October 2011 (which would exclude any matters that had been filed but not actually
entered in such Register at the time and date of our search) no actions were pending against
the Company
and no petitions to wind up the Company had been filed in the Grand Court of the Cayman
Islands as at the time and date of our search. |
Our opinions are subject to the following reservations and qualifications:
A. |
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The term enforceable as used above means that the obligations assumed by the Company under
the Agreement are of a type that the courts of the Cayman Islands will enforce. It does not
mean that those obligations will necessarily be enforced in all circumstances in accordance
with their terms. In particular: |
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(i) |
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enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganisation and other laws of general application relating to or affecting the
rights of creditors; |
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(ii) |
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enforcement may be limited by general principles of equity for example,
equitable remedies such as specific performance may not be available, inter alia, where
damages are considered to be an adequate remedy; |
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(iii) |
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enforcement may be limited by the principle of forum non conveniens or
analogous principles notwithstanding any purported waiver of such principles by any of
the parties; |
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(iv) |
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claims may become barred under the statutes of limitation or may be or become
subject to defences or set-off or counterclaim; |
|
|
(v) |
|
where obligations are to be performed in a jurisdiction outside the Cayman
Islands, they may not be enforceable in the Cayman Islands to the extent that
performance would be illegal under the laws of the Cayman Islands; |
|
|
(vi) |
|
we reserve our opinion as to the enforceability of the relevant provisions of
the Agreement to the extent that it purports to grant exclusive jurisdiction to the
courts of a particular jurisdiction as there may be circumstances in which the courts
of the Cayman Islands would accept jurisdiction notwithstanding such provisions; and |
|
|
(vii) |
|
obligations to make payments following a default or breach that may be
regarded as penalties will not be enforceable to the extent that they are penal and not
a reasonable pre-estimate of liquidated damages. |
B. |
|
Under the laws of the Cayman Islands a person who is not a party to any agreement is, in
general, unable to enforce it. |
C. |
|
A Cayman Islands court has inherent discretion to stay proceedings if concurrent proceedings
are being brought elsewhere. |
|
D. |
|
We express no opinion as to the enforceability of any provision of the Agreement which
provides for the payment of a specified rate of interest on the amount of a judgment after the
date of judgment or which purports to fetter the statutory powers of the Company. |
|
E. |
|
A certificate, determination, calculation or designation of any party to the Agreement as to
any matter provided therein might be held by a Cayman Islands court not to be conclusive,
final and binding if, for example, it could be shown to have an unreasonable or arbitrary
basis, or in the event of manifest error. |
F. |
|
The litigation search of the Court Register would not reveal, amongst other things, an
Originating Process filed with the Grand Court which, pursuant to the Grand Court Rules or
best practice of the Clerk of the Courts office, should have been entered in the Court
Register but was not in fact entered in the Court Register (properly or at all). |
|
G. |
|
In order to continue in good standing under the laws of the Cayman Islands, the Company is
required, inter alia, to pay annual fees to and file annual returns with the Registrar of
Companies. |
|
H. |
|
The obligations of the Company under the Agreement may be subject to restrictions pursuant to
any sanctions of the United Nations that may from time to time be in force in the Cayman
Islands. |
|
I. |
|
We express no opinion on the dating of the Agreement as of a date prior to the date on
which it was created. |
|
J. |
|
We reserve our opinion as to the extent to which the courts of the Cayman Islands would, in
the event of any relevant illegality, sever the offending provisions and enforce the remainder
of the transaction of which such provisions form a part, notwithstanding any express
provisions in this regard. |
This opinion is issued on the basis that it will be governed by and construed in accordance with
the laws of the Cayman Islands and that it will not give rise to any action in any other
jurisdiction. We express no opinion as to matters involving the laws of the State of New York or
any other jurisdiction (other than the Cayman Islands).
This opinion is issued to you pursuant to subsection 3.01(b) of the Agreement and may not be relied
upon by any other person, firm or entity, and without limitation, may not without our prior written
consent be:
(1) |
|
disclosed, except as required by law or to your legal advisers or your other professional
advisers or to persons who in the ordinary course of your business have general access to your
papers and records; or |
|
(2) |
|
except as required by law or the rules of any governmental agency or stock or other exchange,
filed with a governmental agency, stock or other exchange or quoted or referred to in a public
document. |
Yours faithfully
Charles Adams Ritchie & Duckworth
20 October 2011
JPMorgan Chase Bank, N.A.
as Administrative Agent to the Lenders
and the Lenders referred to below
(as defined in the Agreement referred to below)
c/o JPMorgan Chase Bank, N.A.
270 Park Avenue
New York, NY 10017
Dear Sirs,
Re: Hubbell Investments Limited (the Company)
We have acted as special counsel in the Cayman Islands to the Company for the purpose of providing
this legal opinion in connection with a Credit Agreement dated 20 October 2011 among, inter alios,
Hubbell Incorporated, Hubbell Cayman Limited and Hubbell Investments Limited (as borrowers), the
Lenders (as defined therein) and JPMorgan Chase Bank, N.A. as Administrative Agent (the
Agreement).
We provide registered office facilities in the Cayman Islands to the Company. However, we have not
acted in any way as legal adviser to the Company, we are not familiar with its operations or
financial affairs and we have not acted in regard to this transaction save for the purpose of
giving this opinion.
For the purpose of this opinion, we have examined and relied upon the originals and copies,
certified or otherwise, of the following documents:-
(i) |
|
Certificate of Incorporation of the Company; |
|
(ii) |
|
Memorandum and Articles of Association of the Company (the Memorandum and Articles); |
|
(iii) |
|
Register of Officers and Directors, Register of Members and Register of Charges of the
Company (the Registers); |
|
(iv) |
|
Executed Agreement; |
|
(v) |
|
The written resolutions of the Directors of the Company dated 20 October 2011 having the
effect of approving the execution and delivery of the Agreement (the Resolutions); |
|
(vi) |
|
Certificate signed by a Director of the Company (the Directors Certificate); and |
|
(vii) |
|
Certificate of Good Standing issued by the Registrar of Companies in and for the Cayman
Islands dated 6 October 2011 in respect of the Company (a copy of which is attached hereto). |
We are attorneys-at-law in the Cayman Islands and this opinion is confined to and given on the
basis of the laws of the Cayman Islands in force and currently applied by the courts of the Cayman
Islands as at
the date hereof. We have made no investigation and express no opinion as to the law of any
jurisdiction other than the Cayman Islands.
This opinion is given only as to circumstances existing and known to us at the date hereof and, in
giving this opinion, we have relied upon the completeness and accuracy (and assumed the continuing
completeness and accuracy) of the Directors Certificate and have assumed without enquiry:-
(a) the Agreement has been or will be authorised and duly executed and unconditionally
delivered by or on behalf of all relevant parties in accordance with all relevant laws
(other than, with respect to the Company, the laws of the Cayman Islands);
(b) The Agreement is, or will be, legal, valid, binding and enforceable against all relevant
parties in accordance with its terms under the laws of the State of New York and all other
relevant laws (other than, with respect to the Company, the laws of the Cayman Islands);
(c) the genuineness of all signatures and seals, the authenticity and completeness of all
documents submitted to us as originals or copies, and the conformity to original documents
of all copies examined by us (whether or not certified);
(d) that where a document has been examined by us in draft form, it will or has been
executed in the form of that draft, and where a number of drafts of a document have been
examined by us, all changes thereto have been marked or otherwise drawn to our attention;
(e) the capacity, power and authority of the parties under all relevant laws and regulations
(other than, in respect of the Company, the laws of the Cayman Islands) to enter into,
execute and perform their respective obligations under the Agreement;
(f) that there is no contractual or other prohibition (other than any arising under the laws
of the Cayman Islands) binding on the Company prohibiting it from entering into and
performing its obligations under the Agreement;
(g) that the Directors, when passing the Resolutions, acted in good faith and, having regard
to all relevant matters, reasonably and honestly believed that the obligations to be assumed
by the Company under the Agreement would be in its best commercial interest;
(h) that the members of the Company have not passed any resolution restricting the powers of
the Directors;
(i) the choice of the laws of New York (the Governing Laws) to govern the Agreement and
the submission to the non-exclusive jurisdiction of the courts of New York has been made for
bona fide purposes and will be regarded as a valid and binding choice and submission which
will be upheld by such courts, as a matter of the Governing Laws and all other relevant laws
(other than the laws of the Cayman Islands);
(j) the Company will, by any test, remain solvent and able to pay its debts when due in the
ordinary course of business notwithstanding its obligations under the Agreement; and
(k) that there is no provision of the laws of any jurisdiction (other than the Cayman
Islands) which would or might have any implication in relation to the opinions expressed
herein; and
Based upon and subject to the foregoing and subject to the reservations and qualifications
mentioned below and to any matters not disclosed to us, we are of the opinion that:-
1. |
|
The Company has been duly incorporated as a limited liability exempted company and is validly
existing and in good standing pursuant to the provisions of the Companies Law (2010 Revision)
(good standing meaning solely that the Company has not failed to make any filing with, or
pay any fee to, the Cayman Islands government that would render it liable to be struck off the
register of companies). |
|
2. |
|
The Company has corporate power and authority to own its assets and conduct its business in
accordance with its Memorandum and Articles, including the necessary corporate power and
authority to enter into the Agreement and perform its obligations thereunder. |
|
3. |
|
The Company has taken all corporate action necessary to authorise the execution and delivery
of the Agreement to which it is a party and the performance of its obligations thereunder. |
|
4. |
|
The Agreement has been duly authorised by and on behalf of the Company and will constitute
legal, valid and binding obligations of the Company enforceable in accordance with its terms
except and insofar as such enforcement may be limited as noted below. |
|
5. |
|
No licences, filings, authorisations, consents or approvals are required from any
governmental authorities or agencies or other official bodies in the Cayman Islands in
connection with the execution or delivery of the Agreement or the performance by the parties
thereto of their respective obligations thereunder or with the validity and enforceability of
the Agreement. |
|
6. |
|
The Agreement is in proper legal form for enforcement in the courts of the Cayman Islands,
assuming the Agreement is in proper legal form for enforcement under the Governing Laws and
all other relevant laws (other than the laws of the Cayman Islands); |
|
7. |
|
It is not necessary under the laws of the Cayman Islands in order to enable the parties to
enforce their rights under the Agreement, or by reason of the execution, delivery or
performance of the Agreement to which they are parties, that the parties to the Agreement
should be licensed, qualified or otherwise entitled to do business in the Cayman Islands. |
|
8. |
|
No parties to the Agreement will be treated as resident, domiciled or carrying on business or
subject to taxation in the Cayman Islands or in violation of any law thereof solely by reason
of the negotiation, preparation or execution of the Agreement or the exercise of their rights
or the performance of their obligations thereunder. |
|
9. |
|
The execution and delivery of the Agreement and the performance by the Company of its
obligations thereunder will not violate or conflict with, or result in any breach of, or
require any
consent under the Memorandum and Articles nor any applicable law, regulation, order or
decree of any governmental authority or agency or any other official body in the Cayman
Islands. |
10. |
|
The Agreement will not be subject to ad valorem stamp duty in the Cayman Islands (assuming
the Agreement does not create any charge over property situated in the Cayman Islands) and no
registration, documentary, recording, transfer or other similar tax, fee or charge is payable
in the Cayman Islands in connection with the execution, delivery or performance of the
Agreement. Subject as aforesaid, the Agreement will be subject to nominal stamp duty if it is
executed in or brought into the Cayman Islands after execution. |
|
11. |
|
No withholding tax or similar tax or deduction is payable under the laws of the Cayman
Islands on or in respect of any amounts payable by the Company under the Agreement. |
|
12. |
|
The Company is not entitled to sovereign immunity under the laws of the Cayman Islands from
any legal proceedings in respect of any obligation arising under the Agreement, including
immunity from service, immunity from jurisdiction of any court or tribunal or immunity of any
of its property from attachment prior to entry of judgment or from attachment in aid of
execution upon a judgment in respect of itself or its property. |
|
13. |
|
Although there is generally no statutory enforcement in the Cayman Islands of judgments
obtained elsewhere, the courts of the Cayman Islands will recognise and enforce a judgment of
a foreign court of competent jurisdiction (based on the principle that such a judgment imposes
upon a judgment debtor an obligation to pay the sum for which the judgment has been given)
provided such judgment is final and conclusive in personam, is for a liquidated sum which is
not in respect of taxes, fines, penalties or punitive damages, was not obtained by fraud or in
a manner, and is not of a kind the enforcement of which is, contrary to the public policy of
the Cayman Islands and was not obtained in proceedings which were contrary to the rules of
natural justice. |
|
14. |
|
The choice of the Governing Laws as the governing law of the Agreement will be recognised and
given effect to in any action brought before a court of competent jurisdiction in the Cayman
Islands (except for those laws (i) which such court considers to be procedural in nature, (ii)
which are revenue or penal in nature or (iii) the application of which would be inconsistent
with public policy, as such term is interpreted under the laws of the Cayman Islands) provided
such choice of laws was made for bona fide purposes and is effective as a matter of the
Governing Laws, and such choice of laws will be applied by such courts provided evidence of
such laws is pleaded. |
|
15. |
|
The submission to the exclusive jurisdiction of the courts of New York by the Company,
provided such submission was made for bona fide reasons, will be a legal, valid and binding
obligation of the Company. |
|
16. |
|
Based solely of our search of the Register of Writs and other Originating Process at 11 a.m.
on 14 October 2011 (which would exclude any matters that had been filed but not actually
entered in such Register at the time and date of our search) no actions were pending against
the Company and no petitions to wind up the Company had been filed in the Grand Court of the
Cayman Islands as at the time and date of our search. |
Our opinions are subject to the following reservations and qualifications:
A. The term enforceable as used above means that the obligations assumed by the Company under the
Agreement are of a type that the courts of the Cayman Islands will enforce. It does not mean
that those obligations will necessarily be enforced in all circumstances in accordance with their
terms. In particular:
(i) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation and
other laws of general application relating to or affecting the rights of creditors;
(ii) enforcement may be limited by general principles of equity for example, equitable
remedies such as specific performance may not be available, inter alia, where damages are
considered to be an adequate remedy;
(iii) enforcement may be limited by the principle of forum non conveniens or analogous
principles notwithstanding any purported waiver of such principles by any of the parties;
(iv) claims may become barred under the statutes of limitation or may be or become subject to
defences or set-off or counterclaim;
(v) where obligations are to be performed in a jurisdiction outside the Cayman Islands, they
may not be enforceable in the Cayman Islands to the extent that performance would be illegal under
the laws of the Cayman Islands;
(vi) we reserve our opinion as to the enforceability of the relevant provisions of the
Agreement to the extent that it purports to grant exclusive jurisdiction to the courts of a
particular jurisdiction as there may be circumstances in which the courts of the Cayman Islands
would accept jurisdiction notwithstanding such provisions; and
(vii) obligations to make payments following a default or breach that may be regarded as
penalties will not be enforceable to the extent that they are penal and not a reasonable
pre-estimate of liquidated damages.
B. |
|
Under the laws of the Cayman Islands a person who is not a party to any agreement is, in
general, unable to enforce it. |
|
C. |
|
A Cayman Islands court has inherent discretion to stay proceedings if concurrent proceedings
are being brought elsewhere. |
|
D. |
|
We express no opinion as to the enforceability of any provision of the Agreement which
provides for the payment of a specified rate of interest on the amount of a judgment after the
date of judgment or which purports to fetter the statutory powers of the Company. |
|
E. |
|
A certificate, determination, calculation or designation of any party to the Agreement as to
any matter provided therein might be held by a Cayman Islands court not to be conclusive,
final and binding if, for example, it could be shown to have an unreasonable or arbitrary
basis, or in the event of manifest error. |
|
F. |
|
The litigation search of the Court Register would not reveal, amongst other things, an
Originating Process filed with the Grand Court which, pursuant to the Grand Court Rules or
best practice of the Clerk of the Courts office, should have been entered in the Court
Register but was not in fact entered in the Court Register (properly or at all). |
|
G. |
|
In order to continue in good standing under the laws of the Cayman Islands, the Company is
required, inter alia, to pay annual fees to and file annual returns with the Registrar of
Companies. |
H. |
|
The obligations of the Company under the Agreement may be subject to restrictions pursuant to
any sanctions of the United Nations that may from time to time be in force in the Cayman
Islands. |
|
I. |
|
We express no opinion on the dating of the Agreement as of a date prior to the date on
which it was created. |
|
J. |
|
We reserve our opinion as to the extent to which the courts of the Cayman Islands would, in
the event of any relevant illegality, sever the offending provisions and enforce the remainder
of the transaction of which such provisions form a part, notwithstanding any express
provisions in this regard. |
This opinion is issued on the basis that it will be governed by and construed in accordance with
the laws of the Cayman Islands and that it will not give rise to any action in any other
jurisdiction. We express no opinion as to matters involving the laws of the State of New York or
any other jurisdiction (other than the Cayman Islands).
This opinion is issued to you pursuant to subsection 3.01(b) of the Agreement and may not be relied
upon by any other person, firm or entity, and without limitation, may not without our prior written
consent be:
(1) |
|
disclosed, except as required by law or to your legal advisers or your other professional
advisers or to persons who in the ordinary course of your business have general access to your
papers and records; or |
|
(2) |
|
except as required by law or the rules of any governmental agency or stock or other exchange,
filed with a governmental agency, stock or other exchange or quoted or referred to in a public
document. |
Yours faithfully
Charles Adams Ritchie & Duckworth
EXHIBIT C
FORM OF FINANCIAL COVENANT COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
I, David G. Nord, chief financial officer of Hubbell Incorporated (the Company),
hereby certify that, to the best of my knowledge with respect to that certain Credit Agreement,
dated as of October 20, 2011 (as amended, restated, supplemented and otherwise modified and in
effect from time to time, the Credit Agreement), among the Company, the Subsidiary
Borrowers party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative
Agent:
|
1 |
|
[Intentionally omitted]. |
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|
2 |
|
Compliance with Section 6.02(a) Indebtedness. |
|
|
|
|
The Company and its Subsidiaries are in compliance with Section 6.02(a) as of the
date hereof. |
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|
|
Required: The total Indebtedness of the Company and its Subsidiaries on a
consolidated basis at any time outstanding to not exceed 55% of Total Capitalization
at such time. |
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3 |
|
Compliance with Section 6.02(b) Subsidiary Indebtedness. |
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|
|
The Company is in compliance with Section 6.02(b) Subsidiary Indebtedness. |
|
|
|
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Required: The Company to not permit any Subsidiaries to create, incur, assume,
suffer to exist any Indebtedness (including any Guarantee of any Indebtedness),
except: |
|
(i) |
|
Indebtedness under the Credit Agreement; |
|
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(ii) |
|
Indebtedness of any such Subsidiary owed to the
Company or to a Subsidiary of the Company; |
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(iii) |
|
Indebtedness of any such Subsidiary existing
on the Effective Date (all Indebtedness of the Subsidiaries in an
amount of $1,000,000 or greater existing on the Effective Date is
described on Schedule 6.02 to the Credit Agreement) and extensions,
renewals and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof or result in an earlier
maturity date; |
|
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(iv) |
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endorsements of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of
business; |
|
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(v) |
|
Indebtedness incurred in respect of (A)
workers compensation claims, self-insurance obligations, bankers
acceptances, performance, surety and similar bonds and completion
guarantees provided by the Company or a Subsidiary in the ordinary
course of business, (B) performance bonds or similar obligations of the
Company or any of its Subsidiaries for or in connection with pledges,
deposits or payments made or given in the ordinary course of business, and not for money borrowed, in
connection with or to secure statutory, regulatory or similar
obligations, including obligations under health, safety or
environmental obligations, and (C) Guarantees to suppliers, lessors,
licensees, contractors, franchises or customers of obligations
incurred in the ordinary course of business and not for money
borrowed; |
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(vi) |
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Indebtedness incurred by any Subsidiary
constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business; |
|
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(vii) |
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Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar
instrument (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business, provided,
however, that such Indebtedness is extinguished within five Business
Days of incurrence; and |
|
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(viii) |
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Indebtedness of Subsidiaries not otherwise permitted by Section 6.02
of the Credit Agreement, provided that the aggregate principal amount
of such additional Indebtedness of all such Subsidiaries at any one
time outstanding does not exceed $50,000,000. |
|
4 |
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Defaults. |
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No Default exists as of the date hereof, of if any Default does exist the following
is a description of the nature and extent thereof and what action the Company
proposes to take with respect thereto. |
Capitalized terms used but not defined herein shall have the meanings assigned thereto in the
Credit Agreement.
On this day of 20_____.
EXHIBIT D
FORM OF RESPONSIBLE PARTY CERTIFICATE
RESPONSIBLE PARTY CERTIFICATE
Pursuant to Section 3.01(i) of that certain Credit Agreement, dated as of October 20, 2011
(the Credit Agreement), among the Company, the Subsidiary Borrowers party thereto, the
Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent, the undersigned
Responsible Party does hereby certify as follows:
1. The representations and warranties of the Company set forth in Article IV of the Credit
Agreement are true and correct on and as of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date, in which case such
representations and warranties were true and correct as of such earlier date.
2. As of the date hereof and immediately after giving effect to any Borrowing on the date
hereof, no Default has occurred or is continuing.
3. Since December 31, 2010, there have occurred no changes or circumstances which have had or
are likely to have a Material Adverse Effect.
Capitalized terms used but not defined herein shall have the meanings assigned thereto in the
Credit Agreement.
On the [ ] of October, 2011.
EXHIBIT E-1
FORM OF REVOLVING LOAN PROMISSORY NOTE
REVOLVING LOAN PROMISSORY NOTE
New York, New York
[ ]
FOR VALUE RECEIVED, [BORROWER], a [ ] (the Borrower), hereby promises to
pay to the order of [LENDER] or its registered assigns (the Lender), in lawful money of
the United States of America in immediately available funds at the office of JPMorgan Chase Bank,
N.A. (the Administrative Agent) at 270 Park Avenue, New York, New York 10017, at the
times and in the amounts and currency set forth in the Credit Agreement (as defined below), the
lesser of the principal sum of $[ ] and (ii) the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to the Credit Agreement (as defined
below). Capitalized terms used but not defined herein shall have the meanings assigned thereto in
the Credit Agreement.
The Borrower promises to pay interest on any unpaid principal hereof in like money at said
office until paid at the rates and the times set forth in the Credit Agreement.
This Note is one of the Revolving Loan promissory notes referred to in the Credit Agreement,
dated as of October 20, 2011 (as amended, restated, supplemented and otherwise modified and in
effect from time to time, the Credit Agreement), among Hubbell Incorporated, Hubbell
Cayman Limited, Hubbell Investments Limited, the Lenders party thereto and the Administrative
Agent. This Note is subject to the terms of the Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal of and accrued
interest on this Note may become or be declared to be due and payable in the manner and with the
effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any kind in connection
with this Note.
This Note and the Revolving Loans evidenced hereby may be transferred in whole or in part only
by registration of such transfer on the Register maintained for such purpose by or on behalf of the
undersigned as provided in Section 10.04(b) of the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed hereto and made a
part hereof or on continuations thereof that shall be attached hereto and made a part hereof the
date, the Type and the amount of each Revolving Loan made pursuant to the Credit Agreement and the
date and amount of each payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of Eurocurrency Loans, the
length of each Interest Period with respect thereto; provided that the failure to make any
such endorsement or any error in such endorsement shall not affect the obligations of the Borrower
in respect of any Revolving Loan.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
[BORROWER],
Schedule A to Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
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Amount of ABR |
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Amount of |
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Loans |
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Unpaid |
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Amount |
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Principal of |
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Converted to |
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Principal |
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Amount of ABR |
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Converted to |
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ABR Loans |
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Eurocurrency |
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Balance of ABR |
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Notation Made |
Date |
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Loans |
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ABR Loans |
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Repaid |
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Loans |
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Loans |
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By |
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Schedule B to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EUROCURRENCY LOANS
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Interest |
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Period and |
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Amount of |
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Unpaid |
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Amount |
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Adjusted |
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Amount of |
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Eurocurrency |
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Principal |
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Amount of |
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Converted to |
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LIBOR with |
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Principal of |
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Loans |
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Balance of |
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Eurocurrency |
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Eurocurrency |
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Respect |
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Eurocurrency |
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Converted to |
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Eurocurrency |
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Notation |
Date |
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Loans |
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Loans |
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Thereto |
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Loans Repaid |
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ABR Loans |
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Loans |
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Made By |
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EXHIBIT E-2
FORM OF COMPETITIVE LOAN PROMISSORY NOTE
COMPETITIVE LOAN PROMISSORY NOTE
[ ]
New York, New York
FOR VALUE RECEIVED, [BORROWER] (the Borrower), hereby promises to pay to [LENDER]
(the Lender), for account of its respective lending office for Competitive Loans of such
Type provided for by the Credit Agreement referred to below, at the office of JPMorgan Chase Bank,
N.A. at 270 Park Avenue, New York, New York 10017, the aggregate unpaid principal amount of all
Competitive Loans made by the Lender to the Borrower under the Credit Agreement (as such term is
defined below), in lawful money of the United States of America and in immediately available funds,
on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such Competitive Loan, at such office, in like money and funds,
for the period commencing on the date of such Competitive Loan until such Competitive Loan shall be
paid in full, at the rates per annum and on the dates determined pursuant to the Credit Agreement.
Capitalized terms used but not defined herein shall have the meanings assigned thereto in the
Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period of each Competitive Loan
made by the Lender to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by the Lender on its books and, prior to any transfer of this Note, endorsed by
the Lender on the schedule attached hereto, provided that the failure of the Lender to make
any such recordation or endorsement shall not affect the obligations of the Borrower to make a
payment when due of any amount owing under the Credit Agreement or hereunder in respect of the
Competitive Loans made by the Lender.
This Note is one of the Competitive Loan promissory notes referred to in the Credit Agreement
dated as of October 20, 2011 (as amended, restated, supplemented and otherwise modified and in
effect from time to time, the Credit Agreement) among Hubbell Incorporated, Hubbell
Cayman Limited, Hubbell Investments Limited, the Lenders party thereto and JPMorgan Chase Bank,
N.A., as Administrative Agent. This Note is subject to the terms of the Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal of and accrued
interest on this Note may become or be declared to be due and payable in the manner and with the
effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any kind in connection
with this Note.
This Note and the Competitive Loans evidenced hereby may be transferred in whole or in part
only by registration of such transfer on the Register maintained for such purpose by or on behalf
of the undersigned as provided in Section 10.04(b) of the Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
[BORROWER],
SCHEDULE OF LOANS
This Note evidences Competitive Loans made under the within-described Credit Agreement to the
Borrower, on the dates, in the principal amounts, of the Types, bearing interest at the rates and
having Interest Periods (if applicable) of the durations set forth below, subject to the payments,
and prepayments of principal set forth below:
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