EXECUTION COPY
Exhibit 99.1
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$570,000,000
364-DAY CREDIT AGREEMENT
among
THERMO ELECTRON CORPORATION,
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
JPMorgan Chase Bank, N.A.,
as Administrative Agent,
Barclays Bank PLC,
as Syndication Agent,
and
ABN AMRO Bank N.V.,
as Documentation Agent
Dated as of May 9, 2005
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J.P. Morgan Securities Inc., as Sole Lead Arranger and Sole Bookrunner
Page
TABLE OF CONTENTS
SECTION 1. DEFINITIONS.....................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Definitional Provisions..................................................................16
1.3 Exchange Rates.................................................................................17
1.4 Status of Obligations..........................................................................17
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................................................17
2.1 Commitments....................................................................................17
2.2 Procedure for Borrowing........................................................................18
2.3 Fees...........................................................................................19
2.4 Termination or Reduction of Commitments........................................................19
2.5 Optional Prepayments...........................................................................19
2.6 Mandatory Prepayments..........................................................................20
2.7 Conversion and Continuation Options............................................................20
2.8 Limitations on Eurocurrency Tranches...........................................................21
2.9 Repayment of Loans.............................................................................21
2.10 Interest Rates and Payment Dates...............................................................21
2.11 Computation of Interest and Fees...............................................................21
2.12 Inability to Determine Interest Rate...........................................................22
2.13 Pro Rata Treatment and Payments................................................................23
2.14 Requirements of Law............................................................................24
2.15 Taxes..........................................................................................27
2.16 Indemnity......................................................................................28
2.17 Change of Lending Office.......................................................................29
2.18 Replacement of Lenders.........................................................................29
2.19 Judgment Currency..............................................................................29
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................................................30
3.1 Financial Condition............................................................................30
3.2 No Change......................................................................................30
3.3 Existence; Compliance with Law.................................................................31
3.4 Power; Authorization; Enforceable Obligations..................................................31
3.5 No Legal Bar...................................................................................31
3.6 Litigation.....................................................................................31
3.7 Ownership of Property; Liens...................................................................31
3.8 Taxes..........................................................................................32
3.9 Federal Regulations............................................................................32
3.10 ERISA..........................................................................................32
3.11 Investment Company Act; Other Regulations......................................................32
3.12 Use of Proceeds................................................................................33
3.13 Environmental Matters..........................................................................33
3.14 Accuracy of Information, etc...................................................................34
SECTION 4. CONDITIONS PRECEDENT...........................................................................34
4.1 Conditions to Initial Loans....................................................................34
4.2 Conditions to Each Loan........................................................................35
SECTION 5. AFFIRMATIVE COVENANTS..........................................................................35
5.1 Financial Statements...........................................................................35
5.2 Certificates; Other Information................................................................36
5.3 Payment of Obligations.........................................................................37
5.4 Maintenance of Existence; Compliance...........................................................37
5.5 Maintenance of Property; Insurance.............................................................37
5.6 Inspection of Property; Books and Records; Discussions.........................................37
5.7 Notices........................................................................................37
5.8 Environmental Laws.............................................................................38
SECTION 6. NEGATIVE COVENANTS.............................................................................38
6.1 Financial Condition Covenants..................................................................38
6.2 Standby and Performance Letters of Credit......................................................39
6.3 Indebtedness of Subsidiaries...................................................................39
6.4 Liens..........................................................................................40
6.5 Fundamental Changes............................................................................41
6.6 Disposition of Property........................................................................41
6.7 Investments....................................................................................42
6.8 Transactions with Affiliates...................................................................43
6.9 Changes in Fiscal Periods......................................................................43
6.10 Lines of Business..............................................................................43
6.11 Use of Proceeds................................................................................44
SECTION 7. EVENTS OF DEFAULT..............................................................................44
SECTION 8. THE AGENTS.....................................................................................46
8.1 Appointment....................................................................................46
8.2 Delegation of Duties...........................................................................46
8.3 Exculpatory Provisions.........................................................................46
8.4 Reliance by Administrative Agent...............................................................47
8.5 Notice of Default..............................................................................47
8.6 Non-Reliance on Agents and Other Lenders.......................................................48
8.7 Indemnification................................................................................48
8.8 Agent in Its Individual Capacity...............................................................49
8.9 Successor Administrative Agent.................................................................49
8.10 Syndication Agent and Documentation Agent......................................................49
SECTION 9. MISCELLANEOUS..................................................................................49
9.1 Amendments and Waivers.........................................................................49
9.2 Notices........................................................................................50
9.3 No Waiver; Cumulative Remedies.................................................................51
9.4 Survival of Representations and Warranties.....................................................51
9.5 Payment of Expenses and Taxes..................................................................51
9.6 Successors and Assigns; Participations and Assignments.........................................53
9.7 Adjustments; Set-off...........................................................................56
9.8 Counterparts...................................................................................56
9.9 Severability...................................................................................56
9.10 Integration....................................................................................57
9.11 GOVERNING LAW..................................................................................57
9.12 Submission To Jurisdiction; Waivers............................................................57
9.13 Acknowledgements...............................................................................57
9.14 Confidentiality................................................................................58
9.15 WAIVERS OF JURY TRIAL..........................................................................59
9.16 USA PATRIOT Act................................................................................59
SCHEDULES:
1.1 Commitments
6.3(b) Existing Indebtedness
6.4(f) Existing Liens
6.6 Certain Dispositions
EXHIBITS:
A Form of Compliance Certificate
B Form of Closing Certificate
C Form of Assignment and Assumption
D Form of Legal Opinion of Seth Hoogasian
E Form of Exemption Certificate
364-DAY CREDIT AGREEMENT, dated as of May 9, 2005 (this
"Agreement"), among THERMO ELECTRON CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities from
time to time parties to this Agreement (the "Lenders"), BARCLAYS BANK PLC, as
syndication agent (in such capacity, the "Syndication Agent"), ABN AMRO BANK
N.V., as documentation agent (in such capacity, the "Documentation Agent"), and
JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the
"Administrative Agent").
The Borrower intends to acquire or cause one or more
Subsidiaries (such term and each other capitalized term used but not otherwise
defined in this preamble having the meaning specified in Section 1) to acquire
(the "Acquisition") the Kendro Laboratory Products business unit (the "Acquired
Business") of SPX Corporation, a Delaware corporation (the "Seller"), pursuant
to the Purchase Agreement dated as of January 19, 2005, among the Seller, Kendro
GP II, LLC, SPX Europe GmbH, GSLE Development Corporation, General Signal
Ireland B.V., the Borrower and Thermo Electron (Oberhausen) GmbH (the "Purchase
Agreement"), for cash in the amount of $833,500,000, subject to adjustment.
The Borrower has requested the Lenders to extend credit to the
Borrower in the form of Loans in an aggregate Dollar and Dollar Equivalent
principal amount not in excess of $570,000,000. The proceeds of the Loans will
be used to finance the Acquisition and to pay related fees and expenses.
The Lenders are willing to extend such credit to the Borrower
on the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
listed in this Section 1.1 shall have the respective meanings set forth in this
Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean 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 (the
Prime Rate not being intended to be the lowest rate of interest charged by
JPMorgan Chase Bank, N.A. in connection with extensions of credit to debtors).
Any change in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Acquired Business": as defined in the preamble hereto.
"Acquired Indebtedness": Indebtedness of any Person
outstanding on the date (i) such Person is acquired by the Borrower or any of
its Subsidiaries or (ii) such Indebtedness is
assumed by the Borrower or any of its Subsidiaries in connection with the
acquisition of a business of such Person, in each case in a transaction
permitted by Section 6.7(f) or (h), provided that such Indebtedness was not
created in contemplation or in connection with such acquisition.
"Acquired Subsidiaries": Medical Equipment Maintenance
Company, Key Scientific, Inc., Cryonix, Inc., Kendro Laboratory Products GmbH,
Kendro Laboratory Products AG, Nippon Kendro KK, Kendro Laboratory Products
(GP), Kendro Laboratory Products, L.P., Kendro Laboratory Products plc, Kendro
Laboratory Products (H.K.) Limited, each Subsidiary of each of the foregoing and
any other Person acquired by the Borrower or any Subsidiary of the Borrower in
connection with the Acquisition.
"Acquisition": as defined in the preamble hereto.
"Acquisition Documents": the Purchase Agreement and the other
agreements to be entered into in connection with the Acquisition, and all
schedules, exhibits and annexes to each of the foregoing and all side letters
and agreements affecting the terms of the foregoing or entered into in
connection therewith.
"Act": as defined in Section 9.16.
"Adjusted LIBO Rate": with respect to any Eurocurrency Loan
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent": JPMorgan Chase Bank, N.A., as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 15% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent,
the Documentation Agent and the Administrative Agent.
"Agreement": as defined in the preamble hereto.
"Agreement Currency": as defined in Section 2.19(b).
"Applicable Creditor": as defined in Section 2.19(b).
"Approved Fund": as defined in Section 9.6(b).
"Assignee": as defined in Section 9.6(b).
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"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit C.
"Available Commitment": as to any Lender at any time, an
amount equal to the excess, if any, of (a) such Lender's Commitment then in
effect over (b) the sum of (i) such Lender's outstanding Dollar Loans and (ii)
the Dollar Equivalent of such Lender's outstanding Euro Loans.
"Benefited Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close; provided, that, when used in connection with a Eurocurrency Loan, the
term "Business Day" shall also exclude any day on which banks are not open for
international business (including dealings in Dollar deposits) in the London
interbank market; provided, further, that when used in connection with Euro
Loans, the term "Business Day" shall also exclude any day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer System
(TARGET) (or, if such clearing system ceases to be operative, such other
clearing system (if any) determined by the Administrative Agent to be a suitable
replacement) is not open for settlement of payment in Euros.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within three years from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or bank
deposits (including those maintained to facilitate payments, distributions and
collections) having maturities of eighteen months or less from the date of
acquisition issued by or with any Lender or by or with any commercial bank
organized under the laws of the United
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States or any state thereof or by any financial institution organized in any
foreign country recognized by the United States, in each case rated at least A-
by S&P, or A-3 by Moody's; (c) (i) commercial paper of an issuer rated at least
A-1 by S&P or P-1 by Moody's, or carrying an equivalent rating by a nationally
recognized rating agency, if both of the Rating Agencies cease publishing
ratings of commercial paper issuers generally, and maturing within six months
from the date of acquisition or (ii) commercial paper issued by Ford Motor
Company, Ford Motor Credit Company, DaimlerChrysler NA Holdings, John Deere
Capital Corp., John Deere Credit Inc., Deere & Co., Walt Disney Company, General
Motors Corp., or General Motors Acceptance Corp., which at the time of purchase
is rated at least A-2 by S&P, or P-2 by Moody's, and maturing within six months
from the date of acquisition; (d) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this definition,
having a term of not more than 30 days, with respect to securities issued or
fully guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A- by S&P or A-3 by Moody's;
(f) securities with maturities or put features of six months or less from the
date of acquisition backed by standby letters of credit issued by any Lender or
any commercial bank satisfying the requirements of clause (b) of this
definition; (g) asset-backed, mortgaged-backed or otherwise collateralized
securities rated at least AA or an equivalent rating by two of the following
rating agencies: S&P, Moody's and Fitch Investor Services, Inc., (h) corporate
bonds or notes with maturities of three years or less and rated at least BBB- by
S&P or Baa3 by Moody's, (i) money market mutual or similar funds that invest
primarily in assets satisfying the requirements of clauses (a) through (h) of
this definition; or (j) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended,
(ii) are rated AAA by S&P or Aaa by Moody's and (iii) have portfolio assets of
at least $5,000,000,000.
"Closing Date": the date on which the conditions precedent
set forth in Section 4.1 shall have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Lender, the obligation of such Lender,
if any, to make Loans in an aggregate Dollar and Dollar Equivalent principal
amount initially not to exceed the amount set forth under the heading
"Commitment" opposite such Lender's name on Schedule 1.1 and thereafter the
amount set forth under the heading "Commitment" opposite such Lender's name in
the Register, as the same may be changed from time to time pursuant to the terms
hereof. The original amount of the Total Commitments is $570,000,000.
"Commitment Period": the period from and including the
Closing Date to the Termination Date.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is
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part of a group that includes the Borrower and that is treated as a single
employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit A.
"Conduit Lender": any special purpose corporation organized
and administered by any Lender for the purpose of making Loans otherwise
required to be made by such Lender and designated by such Lender in a written
instrument; provided, that the designation by any Lender of a Conduit Lender
shall not relieve the designating Lender of any of its obligations to fund a
Loan under this Agreement if, for any reason, its Conduit Lender fails to fund
any such Loan, and the designating Lender (and not the Conduit Lender) shall
have the sole right and responsibility to deliver all consents and waivers
required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be entitled to receive
any greater amount pursuant to Section 2.14, 2.15, 2.16 or 9.5 than the
designating Lender would have been entitled to receive in respect of the
extensions of credit made by such Conduit Lender or (b) be deemed to have any
Commitment.
"Consolidated EBITDA": for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or writeoff of
debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Indebtedness (including the Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles and organization
costs, (e) any extraordinary, unusual or non-recurring non-cash expenses or
losses (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, non-cash losses on
sales of assets outside of the ordinary course of business), (f) any
extraordinary, unusual or non-recurring cash expenses or losses to the extent
that they do not exceed, in the aggregate, $25,000,000 during such period, and
(g) stock-based compensation expense, minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (i)
interest income, (ii) any extraordinary, unusual or non-recurring non-cash
income or gains (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, non-cash
gains on the sales of assets outside of the ordinary course of business), (iii)
any extraordinary, unusual or non-recurring cash income or gains to the extent
they exceed, in the aggregate, $25,000,000 during such period, (iv) income tax
credits (to the extent not netted from income tax expense) and (v) any other
non-cash income.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense": for any period, total
interest expense (including that attributable to Capital Lease Obligations) of
the Borrower and its Subsidiaries for such period with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries (including all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance
with GAAP).
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"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth": at any date, all amounts that would,
in conformity with GAAP, be included on a consolidated balance sheet of the
Borrower and its Subsidiaries under stockholders' equity at such date.
"Consolidated Total Assets": at any date, the amount that
would, in conformity with GAAP, be included on a consolidated balance sheet of
the Borrower and its Subsidiaries as the total of all asset categories at such
date.
"Consolidated Total Capitalization": at any date, the sum of
(a) Consolidated Net Worth on such date and (b) Consolidated Total Debt on such
date.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries at
such date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt to Consolidated Total Capitalization
Ratio": on any date, the ratio of (a) Consolidated Total Debt on such date to
(b) Consolidated Total Capitalization on such date.
"Continuing Directors": the directors of the Borrower on the
Closing Date, and each other director whose election by the board of directors
of the Borrower, or whose nomination for election by the stockholders of the
Borrower, was approved by a vote of at least a majority of the directors who
were either directors on the Closing Date or whose election or nomination for
election was previously so approved.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Current Litigation": the litigation described in the first
paragraph of Item 13 of the Notes to Consolidated Financial Statements included
in the Borrower's Quarterly Report on Form 10-Q for the quarter ended October 2,
2004.
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Disposition": with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Documentation Agent": as defined in the preamble hereto.
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"Dollar Equivalent": at any time or during any period as to
any amount denominated in Euros, the amount of Dollars that may be purchased
with such amount of Euros at the applicable rate of exchange determined in
accordance with Section 1.3.
"Dollar Loans": as defined in Section 2.1.
"Dollars" and "$": dollars in lawful currency of the United
States.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Euro Loans": as defined in Section 2.1.
"Eurocurrency Applicable Margin": 0.40%.
"Eurocurrency Loans": Loans the rate of interest applicable to
which is based upon the Adjusted LIBO Rate.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurocurrency Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal, special and emergency reserves) under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurocurrency Tranche": the collective reference to
Eurocurrency Loans made by the Lenders to the Borrower, all of which are of the
same currency and the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not such
Eurocurrency Loans shall originally have been made on the same day).
"Euros" or "(euro)": the single currency of participating
member states of the European Monetary Union introduced in accordance with the
provisions of Article 109(1)4 of the Treaty of Rome of March 25, 1957 (as
amended by the Single European Act of 1986 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992 and came into force on November 1,
1993) as amended from time to time) and as referred to in legislative measures
of the European Union for the introduction of, changeover to or operating of the
Euro in one or more member states.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
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"Exchange Rate": on any day, with respect to any currency, the
rate at which such currency may be exchanged into any other currency, as set
forth at approximately 11:00 A.M., London time, on such date on the Reuters
World Currency Page for such currency. In the event that such rate does not
appear on any Reuters World Currency Page, the Exchange Rate shall be determined
by reference to such other publicly available service for displaying exchange
rates as may be selected by the Administrative Agent, or, in the event no such
service is selected, such Exchange Rate shall instead be the arithmetic average
of the spot rates of exchange of the Administrative Agent in the market where
its foreign currency exchange operations in respect of such currency are then
being conducted, at or about 10:00 A.M., local time, on such date for the
purchase of the relevant currency for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Administrative Agent, after consultation with the Borrower,
may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be presumed correct absent manifest error; provided,
further, that in any event, the Administrative Agent shall provide the Borrower
with reasonable details of the source for such rate.
"Excluded Indemnified Liabilities": as defined in Section
9.5.
"Existing Credit Agreement": the existing Five-Year Credit
Agreement, dated as of December 17, 2004, among the Borrower, the several
lenders from time to time parties thereto ABN AMRO Bank N.V., as syndication
agent, Bank of America, N.A., as co-documentation agent, JPMorgan Chase Bank,
N.A., as co-documentation agent, and Barclays Bank PLC, as administrative agent.
"Facility Fee": as defined in Section 2.3(a).
"Facility Fee Rate": 0.10%.
"Federal Funds Effective Rate": for any day, the weighted
average (rounded upwards, if necessary, to the next 1/16 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 1/16 of 1%) of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Fee Payment Date": (a) the third Business Day following the
last day of each March, June, September and December, (b) the Termination Date
and (c) the date the Commitments shall have been terminated and the principal of
the Loans shall have been paid in full.
"Funding Office": the office of the Administrative Agent
specified in Section 9.2 or such other office as may be specified from time to
time by the Administrative Agent as its funding office by written notice to the
Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 6.1,
GAAP shall be determined on
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the basis of such principles in effect on the date hereof and consistent with
those used in the preparation of the most recent audited financial statements
referred to in Section 3.1.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization.
"Group Members": the collective reference to the Borrower and
its Subsidiaries (or, in the case of Sections 7(e), (f) and (h) only, its
Significant Subsidiaries).
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing Person that guarantees or in effect guarantees,
or which is given to induce the creation of a separate obligation by another
Person (including any bank under any letter of credit) that guarantees or in
effect guarantees, any Indebtedness (the "primary obligations") of any other
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (A) for the purchase or payment of any such primary obligation or (B) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (excluding accounts payable and accrued expenses), (c) all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all Capital Lease Obligations of such Person, (f) all obligations
of such Person, contingent or otherwise, as an account party or applicant under
or in respect of bankers' acceptances, (g) all reimbursement obligations of such
9
Person in respect of drawings or payments made under letters of credit, surety
or performance bonds or other similar arrangements that are not satisfied within
three Business Days following the date of receipt by such Person of notice of
such drawing or payment, (h) the liquidation value of all mandatorily redeemable
preferred Capital Stock of such Person, (i) all Guarantee Obligations of such
Person in respect of obligations of the kind referred to in clauses (a) through
(f) and (h) above, (j) all obligations of the kind referred to in clauses (a)
through (i) above secured by any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, and (k) for the purposes of
Section 7(e) only, all obligations of such Person in respect of Swap Agreements.
It is understood that obligations in respect of a Permitted Receivables
Securitization shall not constitute Indebtedness. 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 Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.
"Indemnified Liabilities": as defined in Section 9.5.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to sue at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurocurrency
Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurocurrency Loan having an Interest Period
longer than three months, each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of such
Interest Period and (d) as to any Loan (other than any Loan that is an ABR
Loan), the date of any repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurocurrency Loan, (i) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurocurrency Loan and ending (A) two weeks, (B) one, two,
three or six months or (C) such other period agreed to by the Borrower and all
of the Lenders with respect to such Eurocurrency Loan thereafter, as selected by
the Borrower in its notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and (ii) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such
Eurocurrency Loan and ending (A) two weeks, (B) one, two, three or six months or
(C) such other period agreed to by the
10
Borrower and all of the Lenders with respect to such Eurocurrency Loan
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not later than 11:00 A.M., New York City time, in the case
of Dollar Loans, and 10:00 A.M., London time, in the case of Euro Loans, three
Business Days prior to the last day of the then current Interest Period with
respect thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period that would
extend beyond the Termination Date; and
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Investments": as defined in Section 6.7.
"Judgment Currency": as defined in Section 2.19(b).
"Lender": as defined in the preamble hereto; provided that
unless context otherwise requires each reference to the Lenders shall be deemed
to include any Conduit Lender.
"LIBO Rate": with respect to any Eurocurrency Loan for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or 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 dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in the currency
of such Loan 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 Loan for such Interest Period shall be
the rate at which deposits in the currency of such Loan in an amount equal to
the Administrative Agent's portion of such Loan 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 Business Days prior to the
commencement of such Interest Period.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
11
(including any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).
"Loan Documents": this Agreement, the Notes and any amendment,
waiver, supplement or other modification to any of the foregoing.
"Loan Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the Total
Commitments or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate Dollar and Dollar Equivalent
principal amount of such Lender's Loans then outstanding constitutes of the
aggregate Dollar and Dollar Equivalent principal amount of the Loans then
outstanding.
"Loans": as defined in Section 2.1.
"Margin Stock": as defined in Regulation U.
"Material Adverse Effect": a material adverse effect on (a)
the business, property, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the cash
proceeds received in respect of such event, including any cash received in
respect of any non-cash proceeds, but only as and when received, net of (b) the
sum of (i) all fees and out-of-pocket expenses (including underwriting discounts
and commissions) paid by the Borrower and the Subsidiaries to third parties
(other than Affiliates) in connection with such event, (ii) in the case of a
Disposition of an asset, the amount of all payments required to be made by the
Borrower and the Subsidiaries as a result of such event to repay Indebtedness
(other than Loans) secured by such asset or otherwise subject to mandatory
prepayment as a result of such event, and (iii) the amount of all taxes paid (or
estimated in good faith to be payable) by the Borrower and the Subsidiaries and
the amount of any reserves established by the Borrower and the Subsidiaries to
fund contingent liabilities estimated in good faith to be payable that are
directly attributable to such event (as determined reasonably and in good faith
by a Responsible Officer), provided that on the date on which such reserve is no
longer required to be maintained, the remaining amount of such reserve shall
then be deemed to be Net Proceeds.
"Non-Excluded Taxes": as defined in Section 2.15(a).
12
"Non-U.S. Lender": as defined in Section 2.15(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
"Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise.
"Other Taxes": 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 or any other
Loan Document.
"Participant": as defined in Section 9.6(c).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Receivables Securitization": any Receivables
Securitization Transaction, provided that the aggregate amount of the financing
represented by such transactions at any one time outstanding does not exceed
$200,000,000.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee benefit plan that
is covered by and subject to ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prepayment Event":
(a) any Disposition (including, by merger or
consolidation, and whether by operation of law or otherwise, but
excluding any sales of inventory, licensing of intellectual property and
sales of obsolete assets or assets that are no longer useful, in each
case in the ordinary course of business), resulting in aggregate Net
Proceeds, together with all other such Dispositions, in excess of
$25,000,000, of (i) any assets acquired by the Borrower in the
Acquisition (including, the Disposition of Capital Stock of any Acquired
Subsidiary,
13
whether by the Borrower or a Subsidiary) or (ii) any other assets of the
Borrower or any Subsidiary; provided that, solely with respect to this
clause (ii), such Disposition is required by or otherwise made in
connection with the Acquisition;
(b) the incurrence of any Indebtedness by the Borrower or
any Subsidiary, other than (i) Indebtedness incurred under the Existing
Credit Agreement, (ii) Indebtedness described in clauses (b), (d), (e),
(g) and (k) of the definition thereof (and Indebtedness arising under
clauses (i) and (j) with respect thereto) and (iii) up to an aggregate
principal amount of $25,000,000 of Indebtedness incurred by foreign
Subsidiaries that is incurred solely to meet the working capital
requirements of the foreign Subsidiary incurring such Indebtedness or to
permit such foreign Subsidiary to make capital expenditures; or
(c) the issuance of any Capital Stock in the Borrower or
any Subsidiary, other than (i) any such issuances to the Borrower or any
Subsidiary and (ii) any such issuances pursuant to and in accordance with
the stock option plans or other benefit plans or in connection with
incentive or compensation arrangements for current or former directors,
consultants, officers or employees of the Borrower or any Subsidiary.
"Properties": as defined in Section 3.13(a).
"Purchase Agreement": as defined in the preamble hereto.
"Rating Agencies": Moody's and S&P.
"Receivables": accounts receivable of the Borrower or any of
its Subsidiaries (including any thereof constituting or evidenced by chattel
paper, instruments or general intangibles), and all proceeds thereof and rights
(contractual and other) and collateral related thereto.
"Receivables Securitization Transaction": with respect to the
Borrower and/or any of its Subsidiaries, the transfer of Receivables by any such
Person to a trust, partnership, corporation or other entity in a transaction in
which (x) the transferred Receivables, after giving effect to such transaction,
are not, in accordance with GAAP, treated as assets on the books of the Borrower
and its Subsidiaries and (y) the liabilities of the transferee trust,
partnership, corporation or other entity, after giving effect to such
transaction, are not, in accordance with GAAP, treated as liabilities on the
books of the Borrower and its Subsidiaries.
"Register": as defined in Section 9.6(b).
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. ss. 4043.
14
"Required Lenders": at any time, the holders of more than 50%
of the Total Commitments then in effect or, if the Commitments have been
terminated, the then outstanding Loans.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president
or chief financial officer of the Borrower, but in any event, with respect to
financial matters, the chief financial officer of the Borrower.
"Restricted Margin Stock": Margin Stock owned by the Borrower
or any Subsidiary which represents not more than 25% of the aggregate value
(determined in accordance with Regulation U), on a consolidated basis, of the
property and assets of the Borrower and the Subsidiaries (including any Margin
Stock) that is subject to the provisions of Section 6 (including Section 6.4).
"SEC": the Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"SEC Filings": as defined in Section 3.1.
"Seller": as defined in the preamble hereto.
"Significant Subsidiary": any Subsidiary which is a
"Significant Subsidiary," as defined in Regulation S-X part 210.1-02 of the Code
of Federal Regulations.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but that is not a Multiemployer Plan.
"Specified Swap Agreement": any Swap Agreement entered into by
the Borrower and any Lender or affiliate thereof in respect of interest rates or
currency exchange rates.
"Statutory Reserve Rate": 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 Eurocurrency Reserve Requirements. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more
15
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower. Notwithstanding anything to the
contrary herein, the Subsidiaries of the Borrower shall be deemed to include the
Acquired Subsidiaries.
"Swap Agreement": 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 Borrower or any of its Subsidiaries shall be a "Swap
Agreement".
"S&P": Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc.
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": May 8, 2006.
"Total Commitments": at any time, the aggregate amount of the
Commitments of the Lenders then in effect.
"Total Loans": at any time, the sum of (a) the aggregate
amount of the Dollar Loans outstanding at such time and (b) the aggregate Dollar
Equivalent of the Euro Loans outstanding at such time.
"Transactions": (a) the Acquisition and (b) the execution,
delivery and performance by the Borrower of the Loan Documents to which it is a
party and each borrowing of Loans hereunder to finance the Acquisition.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a
Eurocurrency Loan.
"United States": the United States of America.
"Unrestricted Margin Stock": any Margin Stock owned by the
Borrower or any Subsidiary which is not Restricted Margin Stock.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly
Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
16
(b) As used herein and in the other Loan Documents, and
any certificate or other document made or delivered pursuant hereto or
thereto, (i) accounting terms relating to any Group Member not defined in
Section 1.1 shall have the respective meanings given to them under GAAP,
(ii) the words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation", (iii) the word "incur"
shall be construed to mean incur, create, issue, assume, become liable in
respect of or suffer to exist (and the words "incurred" and "incurrence"
shall have correlative meanings), (iv) 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, Capital Stock, securities, revenues, accounts, leasehold interests
and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to
refer to such agreements or Contractual Obligations as amended,
supplemented, restated or otherwise modified from time to time.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
1.3 Exchange Rates. For purposes of calculating (a) the
aggregate Dollar Equivalent of Euro Loans outstanding at any time during any
period and (b) the Dollar Equivalent of any Euro Loan at the time of the making
of such Loan pursuant to Section 2.1, the Administrative Agent will at least
once during each calendar month and at such other times as it in its sole
discretion decides to do so (including on or prior to the date of any borrowing
and the last day of any Interest Period), determine the respective rate of
exchange into Dollars of Euros (which rate of exchange shall be based upon the
Exchange Rate in effect on the date of such determination). Such rates of
exchange so determined on each such determination date shall, for purposes of
the calculations described in the preceding sentence, be deemed to remain
unchanged and in effect until the next such determination date.
1.4 Status of Obligations. The Obligations constitute "Senior
Indebtedness" (and any other similar term defining senior Indebtedness) under
each indenture or other agreement governing subordinated Indebtedness of the
Borrower.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. Subject to the terms and conditions hereof,
each Lender severally agrees to make revolving credit loans in Dollars ("Dollar
Loans") or in Euros ("Euro Loans", and together with Dollar Loans, the "Loans")
to the Borrower from time to time during the Commitment Period in an aggregate
Dollar and Dollar Equivalent principal amount at any one time outstanding which
does not exceed the amount of such Lender's Commitment. The Borrower shall not
request and no Lender shall be required to make any Loan if, after making such
Loan, the Total Loans shall exceed the Total Commitments then in effect. During
the Commitment Period the Borrower may use the Commitments by borrowing,
prepaying the Loans
17
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Dollar Loans may from time to time be Eurocurrency Loans
or ABR Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with Sections 2.2 and 2.7. All Euro Loans shall be
Eurocurrency Loans.
2.2 Procedure for Borrowing. (a) . The Borrower may borrow
Dollar Loans during the Commitment Period on any Business Day, provided that the
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent (a) prior to 10:00 A.M., New York
City time, three Business Days prior to the requested Borrowing Date, in the
case of Eurocurrency Loans or (b) prior to 11:00 A.M., New York City time, on
the requested Borrowing Date, in the case of ABR Loans), specifying (i) the
amount and Type of Loans to be borrowed, (ii) the requested Borrowing Date, and
(iii) in the case of Eurocurrency Loans, the length of the initial Interest
Period therefor. Any Dollar Loans made on the Closing Date shall initially be
ABR Loans. Each borrowing of Dollar Loans under the Commitments shall be in an
amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple
thereof (or, if the then aggregate Available Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurocurrency Loans,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account of
the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on
the Borrowing Date requested by the Borrower in funds immediately available to
the Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent crediting the account of the Borrower on
the books of such Office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
(b) The Borrower may borrow Euro Loans during the
Commitment Period on any Business Day, provided that the Borrower
shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 10:00 A.M.,
London time, three Business Days prior to the requested Borrowing Date),
specifying (i) the amounts of each Euro Loan, (ii) the requested
Borrowing Date and (iii) the length of the initial Interest Period
therefor. Each Euro Loan (other than a Euro Loan resulting from a
conversion of a Dollar Loan pursuant to Section 2.7(a)) under the
Commitments shall be in an amount equal to (euro)10,000,000 or a whole
multiple of (euro)1,000,000 in excess thereof. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify
each Lender thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office prior to 12:00
Noon, London time, in each case, on the Borrowing Date requested by the
Borrower in funds immediately available in Euros to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books
of such Funding Office with the aggregate of the amounts made available
to the Administrative Agent by the Lenders and in like funds as received
by the Administrative Agent or by wire transfer of such amounts to an
account designated in writing by the Borrower to the Administrative Agent
in connection with the relevant borrowing.
18
2.3 Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee (a "Facility Fee") for the
period from and including the date hereof to the date upon which the Commitments
shall have terminated and all Loans shall have been paid in full, computed at a
rate per annum equal to the Facility Fee Rate on the average daily amount of the
Commitment of such Lender (whether or not utilized) during the period for which
payment is made (or, if any Lender continues to have any Loans after its
Commitment terminates, on the average daily amount of such Lender's Loans from
and including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any Loans outstanding), payable in
arrears on each Fee Payment Date.
(b) The Borrower agrees to pay to the Administrative
Agent the fees in the amounts and on the dates as set forth in the Fee
Letter, dated as of January 19, 2005, among the Borrower, the
Administrative Agent and J.P. Morgan Securities Inc., and in any other
fee agreements between the Borrower and the Administrative executed after
the date of this Agreement, and to perform any other obligations
contained therein.
2.4 Termination or Reduction of Commitments. (a) The Borrower
shall have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments; provided that no such termination or
reduction of Commitments shall be permitted if, after giving effect thereto and
to any prepayments of the Loans, the Total Loans would exceed the Total
Commitments. Any such reduction shall be in an amount equal to $5,000,000, or an
integral multiple of $1,000,000 in excess thereof, and shall reduce permanently
the Commitments then in effect.
(b) The Commitments shall be automatically and
permanently reduced by 100% of the amount of any Net Proceeds that are
received by or on behalf of the Borrower or any Subsidiary in respect of
any Prepayment Event at the earlier to occur of (i) the Borrower's
prepayment of Loans pursuant to Section 2.6 and (ii) three Business Days
after such Net Proceeds are received.
2.5 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent (a) not
later than 10:00 A.M., New York City time, three Business Days prior to the date
of prepayment, in the case of Eurocurrency Loans denominated in Dollars, (b) not
later than 10:00 A.M., London time, three Business Days prior to the date of
prepayment, in the case of Euro Loans and (c) not later than 11:00 A.M., New
York City time, one Business Day prior to the date of prepayment, in the case of
ABR Loans, which notice shall specify the date and amount of prepayment, whether
the prepayment is of Eurocurrency Loans or ABR Loans and whether the prepayment
is of Dollar Loans or Euro Loans; provided, that if a Eurocurrency Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.16.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with
(except in the case of Loans that are ABR Loans) accrued interest to such date
on the amount prepaid. Partial prepayments of Dollar Loans shall be in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Partial
19
prepayments of Euro Loans shall be in an aggregate principal amount of
(euro)5,000,000 or a whole multiple of (euro)1,000,000 in excess thereof.
2.6 Mandatory Prepayments. In the event and on each occasion
that any Net Proceeds are received by or on behalf of the Borrower or any
Subsidiary in respect of any Prepayment Event, the Borrower shall, within three
Business Days after such Net Proceeds are received, prepay Loans in an aggregate
Dollar and Dollar Equivalent principal amount equal to 100% of such Net
Proceeds. Any amounts prepaid pursuant to this Section shall be accompanied by
interest accrued to the date of such prepayment on the principal so prepaid and
any amounts payable under Section 2.16 in connection therewith.
2.7 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurocurrency Loans denominated in Dollars to
ABR Loans by giving the Administrative Agent irrevocable notice of such election
not later than 11:00 A.M., New York City time, one Business Day prior to the
date of conversion, provided that any such conversion of Eurocurrency Loans may
only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert its ABR Loans to Eurocurrency
Loans denominated in Dollars by giving the Administrative Agent irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor) not later than 11:00 A.M., New York City time, three
Business Days prior to the date of conversion, provided that no ABR Loan may be
converted into a Eurocurrency Loan when any Event of Default has occurred and is
continuing and the Administrative Agent or the Required Lenders have determined
in its or their sole discretion not to permit such conversions. The Borrower may
elect from time to time to convert the currency of any Euro Loan to Dollars or
the currency of any Dollar Loan to Euros, in each case at the Exchange Rate
effective on the date of such conversion, by giving the Administrative Agent
irrevocable notice of such election not later than 10:00 A.M., London time,
three Business Days prior to the date of conversion, provided that any such
conversion of a Eurocurrency Loan may only be made on the last day of an
Interest Period with respect thereto. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof.
(b) Any Eurocurrency Loan may be continued as such upon
the expiration of the then current Interest Period with respect thereto
by the Borrower giving irrevocable notice to the Administrative Agent at
least three Business Days prior to the expiration of such Interest
Period, in accordance with the applicable provisions of the term
"Interest Period" set forth in Section 1.1, of the length of the next
Interest Period to be applicable to such Loans, provided that no
Eurocurrency Loan denominated in Dollars may be continued as such when
any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined in its
or their sole discretion not to permit such continuation, and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso any such Loans denominated in
Dollars shall be automatically converted to ABR Loans on the last day of
such then expiring Interest Period and, if the Borrower shall fail to
give such notice of continuation of a Euro Loan (or of its intent to
repay such Loan at the end of the current Interest Period) at least three
Business Days prior to the expiration of the applicable Interest Period,
such Euro Loan shall be
<
20
>
automatically continued for an Interest Period of one month. Upon receipt
of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.8 Limitations on Eurocurrency Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurocurrency Loans and all selections of Interest Periods shall
be in such amounts and be made pursuant to such elections so that no more than
ten Eurocurrency Tranches shall be outstanding at any one time.
2.9 Repayment of Loans. The Borrower hereby unconditionally
promises to pay to each Lender on the Termination Date (or such earlier date as
the Loans become due and payable pursuant to Section 2.6 or 7), the unpaid
principal amount of each Loan made by such Lender. The Borrower hereby further
agrees to pay interest in immediately available funds at the office of the
Administrative Agent on the unpaid principal amount of such Loans from time to
time from the date hereof until payment in full thereof at the rates per annum,
and on the dates, set forth in Section 2.10.
2.10 Interest Rates and Payment Dates. (a) Each Eurocurrency
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Adjusted LIBO Rate determined for such
day plus the Eurocurrency Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR.
(c) (i) If all or a portion of the principal amount of
any Loan shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum equal to the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this Section plus 2% and
(ii) if all or a portion of any interest payable on any Loan or any
facility fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum equal to the rate
then applicable to ABR Loans plus 2% (unless such overdue amount is
denominated in Euros, in which case such overdue amount shall bear
interest at a rate per annum equal to the rate most recently applicable
to such Eurocurrency Loan plus 2%), in each case, with respect to clauses
(i) and (ii) above, from the date of such non-payment until such
amount is paid in full (before as well as after judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c)
of this Section shall be payable from time to time on demand.
2.11 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of an Adjusted LIBO Rate.
<
21
>
Any change in the interest rate on a Loan resulting from a change in the ABR or
the Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the relevant Lenders in the
absence of manifest error. The Administrative Agent shall, at the request
of the Borrower, deliver to the Borrower a statement showing the
quotations used by the Administrative Agent in determining any interest
rate pursuant to Section 2.10(a).
2.12 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate for
such Interest Period,
(b) the Administrative Agent shall have received notice
from the Required Lenders that the Adjusted LIBO Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to the relevant Lenders (as conclusively certified by
such Lenders) of making or maintaining their affected Loans during such
Interest Period, or
(c) the Administrative Agent determines (which
determination shall be conclusive and binding upon the Borrower) that
deposits in Euros are not generally available, or cannot be obtained by
the relevant Lenders, in the applicable market,
then the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x) pursuant to clause (a) or (b) of this Section 2.12 in
respect of Eurocurrency Loans denominated in Dollars, then (i) any Eurocurrency
Loans denominated in Dollars requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (ii) any ABR Loans that were to have
been converted on the first day of such Interest Period to Eurocurrency Loans
denominated in Dollars shall be continued as ABR Loans, (iii) any outstanding
Eurocurrency Loans denominated in Dollars shall be converted, on the last day of
the then-current Interest Period, to ABR Loans, and (iv) until such relevant
notice has been withdrawn by the Administrative Agent, no further Eurocurrency
Loans denominated in Dollars shall be made or continued as such, nor shall the
Borrower have the right to convert ABR Loans to Eurocurrency Loans denominated
in Dollars, and (y) in respect of Euro Loans, then (i) any Euro Loans requested
to be made on the first day of such Interest Period shall not be made, (ii) any
outstanding Euro Loans shall be due and payable on the last day of the
then-current Interest Period, and (iii) until such notice has been withdrawn by
the Administrative Agent, no further Euro Loans shall be made or continued as
such.
22
2.13 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any facility fee and any reduction of the Commitments of the Lenders shall be
made pro rata according to the respective Loan Percentages of the Lenders.
(b) Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be
made pro rata according to the respective outstanding principal amounts
of the Loans then held by the Lenders.
(c) All payments (including prepayments) to be made by
the Borrower, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the relevant Lenders, at its
Funding Office, in immediately available funds. Except as otherwise
specified in this Agreement, amounts owing hereunder on account of
principal and interest on Loans shall be paid in the currency in which
such Loan was borrowed, and amounts owing hereunder on account of fees
shall be paid in Dollars. The Administrative Agent shall distribute such
payments to the relevant Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the
Eurocurrency Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurocurrency Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding
Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender
will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent
may assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount.
If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to
the Administrative Agent, on demand, (i) in the case of amounts
denominated in Dollars, such amount with interest thereon at a rate equal
to the greater of (x) the Federal Funds Effective Rate and (y) a rate
determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, for the period until such
Lender makes such amount immediately available to the Administrative
Agent or (ii) in the case of amounts denominated in Euros, such amount
with interest thereon at a rate determined by the Administrative Agent to
be the cost to it of funding such amount until such Lender makes such
amount immediately available to the Administrative Agent. A certificate
of the Administrative Agent submitted to any Lender with respect to any
amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three
Business Days after such
23
Borrowing Date, the Administrative Agent shall also be entitled to
recover (i) in the case of amounts denominated in Dollars, such amount
with interest thereon at the rate per annum applicable to ABR Loans, on
demand, from the Borrower or (ii) in the case of amounts denominated in
Euros, such amount with interest thereon at a rate determined by the
Administrative Agent to be the sum of (x) the cost to it of funding such
amount plus (y) the Eurocurrency Applicable Margin, on demand, from the
Borrower. The failure or refusal of any Lender to make available to the
Administrative Agent such Lender's share of such borrowing shall not
relieve any other Lender from its several obligation hereunder to make
available to the Administrative Agent the amount of such other Lender's
share of such borrowing. Nothing herein shall be deemed to limit the
rights of the Borrower against any Lender that has failed or refused to
make available such Lender's share of any borrowing.
(e) Unless the Administrative Agent shall have been
notified in writing by the Borrower prior to the date of any payment due
to be made by the Borrower hereunder that the Borrower will not make such
payment to the Administrative Agent, the Administrative Agent may assume
that the Borrower is making such payment, and the Administrative Agent
may, but shall not be required to, in reliance upon such assumption, make
available to the Lenders their respective pro rata shares of a
corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days after such due date, the
Administrative Agent shall be entitled to recover, on demand, from each
relevant Lender to which any amount which was made available pursuant to
the preceding sentence, (i) in the case of amounts denominated in
Dollars, such amount with interest thereon at the rate per annum equal to
the daily average Federal Funds Effective Rate and (ii) in the case of
amounts denominated in Euros, such amount with interest thereon at a rate
per annum determined by the Administrative Agent to be the cost to it of
funding such amount. Nothing herein shall be deemed to limit the rights
of the Administrative Agent or any Lender against the Borrower with
respect to such payment.
2.14 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof by any
Governmental Authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement or any Loan made by it, or change the
basis of taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by Section 2.15 and changes in the rate of
tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not otherwise
included in the determination of the Adjusted LIBO Rate; or
(iii) shall impose on such Lender any other condition relating
to funding of assets that would include the Eurocurrency Loans or the
income or earnings in
24
respect thereof (except for Non-Excluded Taxes covered by Section 2.15
and changes in the rate of tax on the overall net income of such Lender);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender reasonably deems to be material, of making,
converting into, continuing or maintaining Eurocurrency Loans, or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the
Borrower shall, promptly after its receipt of a notice with respect thereto in
accordance with Section 2.14(d), pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable.
(b) If any Lender shall have reasonably determined that
the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof by a
Governmental Authority charged with the interpretation or administration
thereof or compliance by such Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy (whether
or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate
of return on such Lender's or such corporation's capital as a consequence
of its obligations hereunder to a level below that which such Lender or
such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount reasonably deemed
by such Lender to be material, then from time to time, after such Lender
has provided written notice in accordance with Section 2.14(d) to the
Borrower requesting compensation for such reduction under this paragraph,
the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender or such corporation for such reduction.
(c) If any Governmental Authority of the European Union
(or any other jurisdiction in which the funding operations of any Lender
shall be conducted with respect to Euros) shall have in effect any
reserve, liquid asset or similar requirement with respect to any category
of deposits or liabilities customarily used to fund loans in Euros, or by
reference to which interest rates applicable to loans in Euros are
determined, and the result of such requirement shall be to increase the
cost to such Lender of making or maintaining any Euro Loan, and such
Lender shall deliver to the Borrower a written notice in accordance with
Section 2.14(d) requesting compensation for such additional cost under
this paragraph, then the Borrower will pay to such Lender on each
Interest Payment Date with respect to each affected Euro Loan an amount
that will compensate such Lender for such additional cost.
(d) If any Lender becomes entitled to claim any
additional amounts, compensation or additional costs pursuant to this
Section, it shall deliver a written notice in accordance with this
paragraph to the Borrower (with a copy to the Administrative Agent)
requesting such additional amounts, compensation or additional costs and
notifying the Borrower of the event by reason of which it has become so
entitled. Such Lender agrees to use reasonable efforts to deliver such
notice promptly following the time at which it becomes aware of the event
giving rise to such additional amounts, compensation or additional cost
payable (provided that, except as provided below, the failure by such
Lender
25
to give such notice promptly shall not adversely affect any of its
rights hereunder). A certificate as to any additional amounts,
compensation or additional costs payable to any Lender pursuant to this
Section 2.14 submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest
error. Notwithstanding anything to the contrary contained in paragraphs
(a), (b) and (c) above, the Borrower shall not be required to compensate
a Lender pursuant to such paragraphs for any amounts incurred more than
three months prior to the date that such Lender notifies the Borrower of
such Lender's intention to claim compensation therefor; and provided
further that, if the circumstances giving rise to such
claim have a retroactive effect, then such three-month period shall be
extended to include the period of such retroactive effect. The
obligations of the Borrower pursuant to this Section 2.14 shall survive
the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(e) Notwithstanding any other provision of this
Agreement, if (x) the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof by a Governmental
Authority charged with the interpretation or administration thereof or
compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof shall make it unlawful for
any Lender to make or maintain any Euro Loan or to give effect to its
obligations as contemplated hereby with respect to any Euro Loan, or (y)
there shall have occurred any change in national or international
financial, political or economic conditions (including the imposition of
or any change in exchange controls, but excluding conditions otherwise
covered by this Section 2.14) which would make it impracticable for any
Lender to make or maintain Euro Loans after the date hereof to, or for
the account of, the Borrower, then, by written notice to the Borrower and
to the Administrative Agent:
(i) such Lender may declare that Euro Loans will not
thereafter (for the duration of such unlawfulness or change in
conditions) be made by such Lender or Lenders hereunder (or be continued
for additional Interest Periods), whereupon any request for a Euro Loan
or to continue a Euro Loan, as the case may be, for an additional
Interest Period) shall, as to such Lender only, be of no force and
effect, unless such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Euro
Loans made by it be converted to ABR Loans or Eurocurrency Loans
denominated in Dollars, as the case may be (unless repaid by the
Borrower), in which event (A) all such Euro Loans shall be converted to
ABR Loans or Eurocurrency Loans denominated in Dollars, as the case may
be, as of the effective date of such notice as provided in paragraph (f)
below and at the Exchange Rate on the date of such conversion or, at the
option of the Borrower, repaid on the last day of the then current
Interest Period with respect thereto and (B) the Borrower shall pay all
amounts payable under Section 2.16 in connection with all such
transactions.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal made thereafter that would otherwise have
been applied to repay the converted Euro Loans of such Lender shall instead be
applied to repay the ABR Loans or
26
Eurocurrency Loans denominated in Dollars, as the case may be, made by such
Lender resulting from such conversion.
(f) For purposes of Section 2.14(e), a notice to the
Borrower by any Lender shall be effective as to each Euro Loan made by
such Lender, if lawful, on the last day of the Interest Period currently
applicable to such Euro Loan; in all other cases such notice shall be
effective on the date of receipt thereof by the Borrower.
2.15 Taxes.
(a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender 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 solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) of this Section or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time such
Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower
shall send to the Administrative Agent for its own account or for the
account of the relevant Lender, as the case may be, a certified copy of
an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other
Taxes when due to the appropriate taxing authority or fails to remit to
the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties
that
27
may become payable by the Administrative Agent or any Lender as a result
of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S.
Person" as defined in Section 7701(a)(30) of the Code (a "Non-U.S.
Lender") shall deliver to the Borrower and the Administrative Agent (or,
in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a statement substantially in the form of Exhibit E
and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from U.S. federal withholding tax on all
payments by the Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (and, in the case of
any Participant, on or before the date such Participant purchases the
related participation). In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender, to the extent such Non-U.S.
Lender is legally able to deliver such replacement forms. Each Non-U.S.
Lender shall promptly notify the Borrower at any time it determines that
it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted
by the U.S. taxing authorities for such purpose).
(e) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
2.16 Indemnity. The Borrower agrees to indemnify each Lender
for, and to hold each Lender harmless from, any loss or expense that such Lender
may sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurocurrency Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurocurrency Loans after the Borrower has given
a notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurocurrency Loans on a day that is not the last day
of an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank Eurocurrency market. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any Lender
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
28
2.17 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.14 or
2.15(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal, regulatory
or other disadvantage, and provided, further, that nothing in this Section shall
affect or postpone any of the obligations of the Borrower or the rights of any
Lender pursuant to Section 2.14 or 2.15(a).
2.18 Replacement of Lenders. The Borrower shall be permitted
to replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.14 or 2.15(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.17 so as to eliminate the continued need for payment of any
amounts owing pursuant to Section 2.14 or 2.15(a), (iv) the replacement
financial institution shall purchase, at par (unless the Lender being replaced
otherwise agrees to accept a lesser payment in its discretion), all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.16 if any Eurocurrency Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall (A)
be reasonably satisfactory to the Administrative Agent and (B) deliver to the
Administrative Agent an administrative questionnaire, (vii) (A) in the event of
a replacement of a Lender pursuant to clause (a) above, the Borrower shall
deliver to the Administrative Agent a processing and recordation fee of $3,500
in accordance with Section 9.6 or (B) in the event of a replacement of a Lender
pursuant to clause (b) above, the replaced Lender shall deliver to the
Administrative Agent a processing and recordation fee of $3,500 in accordance
with Section 9.6, (viii) until such time as such replacement shall be
consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 2.14 or 2.15(a), as the case may be, and (ix) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender. In the event of a replacement of a Lender pursuant to this Section 2.18,
such replaced Lender and the replacement financial institution shall promptly
execute and deliver to the Administrative Agent and the Borrower an Assignment
and Assumption, and shall comply with the provisions of Section 9.6(b)(iii),
(iv) and (v) (other than the requirements included in such clause (v) with
respect to the delivery of consents and the processing and recordation fee,
which are covered above in this Section).
2.19 Judgment Currency. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one
currency into another currency, each party hereto agrees, to the fullest extent
that it may effectively do so, that the rate of exchange used shall be that at
which, in accordance with normal banking procedures in the relevant
jurisdiction, the first currency could be purchased with such other currency on
the Business Day immediately preceding the day on which final judgment is given.
29
(b) The obligations of the Borrower in respect of any sum
due to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrower as a separate
obligation and notwithstanding any such judgment, agrees to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this Section shall survive the termination of this Agreement and the payment
of all other amounts owing hereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender, as of the date of this
Agreement (except as to the representations and warranties made as of a date
certain, which shall be true and correct as of such date) and as of the date
such representations and warranties are deemed to be made under Section 4.2(a),
that:
3.1 Financial Condition. The audited consolidated balance
sheets of the Borrower and its consolidated Subsidiaries as at December 29,
2002, December 31, 2003 and December 31, 2004 and the related consolidated
statements of income and of cash flows for the fiscal years ended on such dates,
reported on by and accompanied by an unqualified report from Pricewaterhouse
Coopers LLP, present fairly the consolidated financial condition of the Borrower
and its consolidated Subsidiaries as at such dates, and the consolidated results
of its operations and its consolidated cash flows for the respective fiscal
years then ended. All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). As of the date of
this Agreement, no Group Member has any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, other than those that (i) are not material to the Borrower and its
Subsidiaries taken as a whole or (ii) are reflected in the most recent financial
statements referred to in this paragraph or in the Borrower's most recent report
on Form 10-K and any subsequent reports on Forms 10-Q or 8-K filed with the SEC
prior to the date of this Agreement (such filings made prior to the date of this
Agreement, the "SEC Filings"). During the period from December 31, 2004 to and
including the date of this Agreement there has been no Disposition by any Group
Member of any part of its business or property material to the Borrower and its
Subsidiaries taken as a whole except as set forth in the most recent financial
statements referred to in this paragraph or in the Borrower's SEC Filings.
3.2 No Change. Since December 31, 2004, there has been no
development or event that has had or would reasonably be expected to have a
Material Adverse Effect, except
30
that no representation and warranty is made in this Section 3.2 with respect to
the Current Litigation.
3.3 Existence; Compliance with Law. Each Group Member (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the legal
right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification and (d) is in compliance with all
Requirements of Law except to the extent that the failure to conform to the
requirements of clauses (a) through (d) could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. The
Borrower has the power and authority, and the legal right, to consummate the
Transactions. The Borrower has taken all necessary organizational action to
authorize the Transactions and to authorize the extensions of credit on the
terms and conditions of this Agreement. No consent or authorization of, filing
with (other than any SEC filing by the Borrower in compliance with the SEC
disclosure obligations), notice to or other act by or in respect of, any
Governmental Authority or any other Person is required of any Group Member in
connection with (i) the borrowings by the Borrower hereunder, (ii) the
execution, delivery and performance by the Borrower, or the validity or
enforceability against the Borrower, of this Agreement or any of the Loan
Documents or (iii) the consummation of the other Transactions, except, with
respect to this clause (iii), for consents, authorizations, filings, notices and
other acts that (x) have been obtained or made and are in full force and effect
or (y) as to which the failure to have been obtained or made or be in full force
and effect has not had and would not reasonably be expected to have, in the
aggregate, a Material Adverse Effect. This Agreement has been duly executed and
delivered on behalf of the Borrower. This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, the Transactions will
not violate any Requirement of Law or any Contractual Obligation of any Group
Member and will not result in, or require, the creation or imposition of any
Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation, except as permitted by
Section 6.4.
3.6 Litigation. It is not probable that the Current Litigation
will have a Material Adverse Effect, and no other litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against any Group Member or
against any of their respective properties or revenues that would reasonably be
expected to have a Material Adverse Effect.
3.7 Ownership of Property; Liens. Except as, in the aggregate,
could not
31
reasonably be expected to have a Material Adverse Effect, each Group
Member has title in fee simple to, or a valid leasehold interest in, all its
real property, and good title to, or a valid leasehold interest in, all its
other property, and none of such property is subject to any Lien except as
permitted by Section 6.4.
3.8 Taxes. Except as, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect, each Group Member has filed or
caused to be filed all Federal, state and other material tax returns that are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the relevant Group Member).
3.9 Federal Regulations. No part of the proceeds of any Loans
will be used for any purpose that violates the provisions of Regulation U or any
of the other Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in
Regulation U.
3.10 ERISA. Except as, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect, neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single Employer Plan has
occurred that could reasonably be expected to have a Material Adverse Effect,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by an amount that is material in relation to Consolidated
Net Worth. Except as in the aggregate could not reasonably be expected to have a
Material Adverse Effect, neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA that, in the aggregate, could reasonably be expected
to result in a Material Adverse Effect if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which this representation
is made or deemed made. No such Multiemployer Plan is in Reorganization or
Insolvent under circumstances that could reasonably be expected to result in a
Material Adverse Effect.
3.11 Investment Company Act; Other Regulations. The Borrower
is not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Requirement of Law (other
than Regulation X of the Board) that limits its ability to incur Indebtedness.
32
3.12 Use of Proceeds. The proceeds of the Loans shall be used
by the Borrower and its Subsidiaries to finance the Acquisition, whether paid
directly through
the Borrower or through Subsidiaries to whom the Borrower has made intercompany
loans, and to pay related fees and expenses.
3.13 Environmental Matters. Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse
Effect:
(a) the facilities and properties owned, leased or
operated by any Group Member (the "Properties") do not contain, and have
not previously contained, any Materials of Environmental Concern in
amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could give rise to liability under, any
Environmental Law;
(b) no Group Member has received or is aware of any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the business
operated by any Group Member (the "Business"), nor does the Borrower have
knowledge or reason to believe that any such notice will be received or
is being threatened;
(c) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location that could give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the Borrower,
threatened, under any Environmental Law to which any Group Member is or
will be named as a party with respect to the Properties or the Business,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business;
(e) there has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or arising
from or related to the operations of any Group Member in connection with
the Properties or otherwise in connection with the Business, in violation
of or in amounts or in a manner that could give rise to liability under
Environmental Laws;
(f) the Properties and all operations at the Properties
are in compliance, and have in the last five years been in compliance,
with all applicable Environmental Laws, and there is no contamination at,
under or about the Properties or violation of any Environmental Law with
respect to the Properties or the Business; and
(g) no Group Member has assumed any liability of any
other Person under Environmental Laws.
33
3.14 Accuracy of Information, etc. No statement or information
contained in this Agreement or any other document, certificate or statement
furnished by or on behalf of the Borrower to the Administrative Agent or the
Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, contained as of the
date such statement, information, document or certificate was so furnished when
taken together with the SEC Filings, any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements contained
herein or therein not misleading. The projections and pro forma financial
information contained in the materials referenced above are based upon good
faith estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of each Lender
to make the initial Loans requested to be made by it is subject to the
satisfaction, prior to or concurrently with the making of such Loans, of the
following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by the Administrative
Agent, the Documentation Agent, the Syndication Agent, the Borrower and
each Person listed on Schedule 1.1.
(b) Fees. The Lenders and the Administrative Agent shall
have received all fees required to be paid, and all expenses for which
invoices have been presented (including the reasonable fees and expenses
of legal counsel), on or before the Closing Date. All such amounts will
be paid by wire transfer on the Closing Date.
(c) Closing Certificate; Certified Certificate of
Incorporation. The Administrative Agent shall have received a certificate
of the Borrower, dated the Closing Date, substantially in the form of
Exhibit B, with appropriate insertions and attachments, including the
certificate of incorporation of the Borrower.
(d) Legal Opinions. The Administrative Agent shall have
received the legal opinion of Seth Hoogasian, General Counsel of the
Borrower and its Subsidiaries, substantially in the form of Exhibit D.
Such legal opinion shall cover such other matters incident to the
Transactions as the Administrative Agent may reasonably require.
(e) Approvals; Consummation of Acquisition. All
governmental and third-party approvals and consents required in
connection with the Transactions shall have been obtained and be in full
force and effect (other than any such approvals or consents as to which
the failure to be obtained or be in full force and effect has not had and
would not reasonably be expected to have, in the aggregate, a Material
Adverse Effect), all applicable waiting or appeal periods with respect to
the effectiveness of such approvals shall have expired, and there shall
be no litigation or governmental, administrative or judicial action,
whether actual or threatened, that would reasonably be expected to
restrain, prevent or
34
impose burdensome conditions on the Transactions. The Acquisition
Documents shall be in full force and effect. The Acquisition shall have
been, or substantially simultaneously with the funding of the initial
Loans shall be, consummated in accordance with the Acquisition Documents
and applicable law, without any amendment to or waiver of any material
terms or conditions of the Acquisition Documents not approved by the
Administrative Agent. The Administrative Agent shall have received, for
delivery to the Lenders, a copy of the Acquisition Documents and all
certificates, opinions and other documents delivered thereunder,
certified on behalf of the Borrower as complete and correct.
(f) Consents and Waivers. All consents, waivers and
amendments that are necessary to ensure that none of the Transactions or
any related transaction will contravene or constitute a default under any
Contractual Obligation of the Borrower or any Subsidiary shall have been
obtained and shall be in full force and effect except where the failure
of such consents, waivers and amendments to be obtained or be in full
force and effect, in the aggregate, would not reasonably be expected to
have a Material Adverse Effect.
4.2 Conditions to Each Loan. The agreement of each Lender to
make any Loan requested to be made by it on any date (including its initial
Loan) is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to the
Loan Documents (other than the representation and warranty set forth in
Section 3.2) shall be true and correct in all material respects on and as
of such date as if made on and as of such date (other than
representations and warranties made as of a specified earlier date, which
shall be true and correct as of such earlier date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such borrowing that the conditions
contained in this Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, the Borrower shall and (except in the case of
Sections 5.1, 5.2, 5.4(a)(i) and 5.7) shall cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to the Administrative Agent
(which shall promptly make a copy thereof available to each Lender, including by
posting on a secure website):
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the
35
Borrower and its consolidated Subsidiaries as at the end of such year and
the related audited consolidated statements of income and of cash flows
for such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of
the audit, by PricewaterhouseCoopers LLP or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of income
and of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
(subject to the absence of footnotes with respect to unaudited quarterly
statements) applied (except as approved by such accountants or officer, as the
case may be, and disclosed in reasonable detail therein) consistently throughout
the periods reflected therein and with prior periods. Notwithstanding anything
to the contrary contained in this Section 5.1, the Borrower shall not be
required to deliver any financial statements to the Administrative Agent with
respect to any period for which it has timely filed its Form 10-K or Form 10-Q,
as the case may be, with the SEC (provided that such Form 10-K or Form 10-Q, as
the case may be, is publicly available on the SEC's website (or a similar
website) within the time periods required by this Section).
5.2 Certificates; Other Information. Furnish to the
Administrative Agent (which shall promptly make a copy thereof available to each
Lender, including by posting on a secure website):
(a) within the time period in which the Borrower is
required to deliver any financial statements pursuant to Section 5.1, (i)
a certificate of a Responsible Officer stating that, to the best of such
Responsible Officer's knowledge, the Borrower during the period covered
by such financial statements has observed or performed all of its
covenants and other agreements, and satisfied every condition contained
in this Agreement and the other Loan Documents to which it is a party to
be observed, performed or satisfied by it, and that such Responsible
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) a Compliance Certificate
containing all information and calculations necessary for determining
compliance by the Borrower with the provisions of this Agreement referred
to therein as of the last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be;
(b) unless publicly available at such time on the SEC's
website (or a similar website), within five days after the same are sent,
copies of all financial statements and reports that the Borrower sends to
the holders of any class of its debt securities or public equity
securities and, within five days after the same are filed, copies of all
financial
36
statements and reports that the Borrower may make to, or file with, the
SEC; and
(c) promptly, such additional financial and other
information as any Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature that, if not paid, could reasonably
be expected to result in a Material Adverse Effect, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the relevant Group Member.
5.4 Maintenance of Existence; Compliance. (a)(i) Preserve,
renew and keep in full force and effect the Borrower's organizational existence
and (ii) take all reasonable action to maintain all rights, privileges and
franchises of each such Group Member necessary or desirable in the normal
conduct of its business, except, in each case, as otherwise permitted by Section
6.5 and except, in the case of clause (ii) above, to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect; and
(b) except to the extent that, in the aggregate, non-compliance could not
reasonably be expected to have a Material Adverse Effect, comply with all
Contractual Obligations and Requirements of Law.
5.5 Maintenance of Property; Insurance. Except to the extent
that, in the aggregate, non-compliance could not reasonably be expected to have
a Material Adverse Effect, (a) keep all property useful and necessary in its
business in good working order and condition, ordinary wear and tear excepted
and (b) maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such
risks (but including in any event public liability, product liability and
business interruption) as are usually insured against in the same general area
by companies engaged in the same or a similar business.
5.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions material to the Borrower and its Subsidiaries, taken
as a whole, in relation to its business and activities and (b) permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Group Members
with officers and employees of the Group Members and with their independent
certified public accountants.
5.7 Notices. Promptly after the Borrower becomes aware
thereof, give notice to the Administrative Agent (which shall promptly make a
copy thereof available to each Lender, including by posting on a secure
website):
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of any Group Member or (ii) litigation,
investigation or proceeding that may exist at any time
37
between any Group Member and any Governmental Authority, that in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Group
Member (i) in which the amount involved is $50,000,000 or more and not
covered by insurance or (ii) which relates to any Loan Document;
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to any
Plan which could reasonably be expected to have a Material Adverse
Effect, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan, (ii) the institution of proceedings or the taking of
any other action by the PBGC with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan, or (iii) the
institution of proceedings or the taking of any other action by the
Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan which, in the case of this clause (iii), could
reasonably be expected to have a Material Adverse Effect; and
(e) any development or event that has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the relevant Group Member proposes to take with respect
thereto.
5.8 Environmental Laws. Comply in all material respects with
all applicable Environmental Laws, and obtain and comply in all material
respects with and maintain any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws, except to
the extent that the failure to comply, or obtain and comply, therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, the Borrower shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly:
6.1 Financial Condition Covenants.
(a) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower to be less than 3.25:1.00.
(b) Consolidated Total Debt to Consolidated Total
Capitalization Ratio.
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Permit the Consolidated Total Debt to Consolidated Total Capitalization
Ratio at the end of any fiscal quarter of the Borrower to be greater than
0.50:1.00.
6.2 Standby and Performance Letters of Credit. Permit at any
one time outstanding the sum of (a) the aggregate then undrawn face amount of
surety and performance bonds, bank guarantees and standby and performance
letters of credit as to which the Borrower and/or any Subsidiary is or are the
account party and which do not secure or otherwise assure the payment of
Indebtedness and (b) the aggregate then unreimbursed amount of all amounts paid
in respect of drawings under such surety and performance bonds, bank guarantees
and letters of credit to exceed 10% of Consolidated Total Assets as of the end
of the immediately prior fiscal quarter of the Borrower for which financial
statements shall have been delivered to the Lenders.
6.3 Indebtedness of Subsidiaries. In the case of any Subsidiary, create, issue,
incur, assume, become liable in respect of or suffer to exist any Indebtedness
of such Subsidiary, except:
(a) Indebtedness of such Subsidiary to the Borrower or
any other Subsidiary and Guarantee Obligations of any Subsidiary with
respect to Indebtedness of the Borrower or any other Subsidiary;
(b) (i) Indebtedness outstanding on the date hereof and
described on Schedule 6.3(b), and additional Indebtedness incurred after
the date hereof under the revolving credit arrangements described on
Schedule 6.3(b) in an aggregate principal amount at any one time
outstanding not to exceed the commitments or limits existing with respect
thereto on the date hereof and described on such Schedule, and (ii)
Indebtedness under any replacements, refinancings, refundings, renewals
or extensions of the Indebtedness described in clause (i) (without
increasing the principal amount above the commitments or limits, or
shortening the maturity thereof to a date earlier than the maturity,
respectively, thereof described on Schedule 6.3(b));
(c) Indebtedness (including, without limitation, Capital
Lease Obligations) secured by Liens permitted by Section 6.4(g) in an
aggregate principal amount at any one time outstanding not to exceed the
greater of (i) $50,000,000 and (ii) 2.5% of Consolidated Total Assets of
the Borrower as of the end of the immediately prior fiscal quarter of the
Borrower for which financial statements shall have been delivered to the
Lenders; and
(d) additional Indebtedness in an aggregate principal
amount at any one time outstanding for all Subsidiaries (on a
consolidated basis) not to exceed the greater of (i) $150,000,000 and
(ii) 10% of Consolidated Total Assets of the Borrower as of the end of
the immediately prior fiscal quarter of the Borrower for which financial
statements shall have been delivered to the Lenders;
provided, however, that no Subsidiary shall create, issue, incur, assume, become
liable in respect of or suffer to exist any Guarantee Obligations with respect
to Indebtedness under the Existing Agreement unless it shall also have
guaranteed the Obligations on terms not less favorable to the Lenders.
39
6.4 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property (other than any Lien on Margin Stock created, incurred
or assumed at a time when such Margin Stock constitutes Unrestricted Margin
Stock), whether now owned or hereafter acquired, except:
(a) Liens for taxes not yet due or that are being
contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business that, in
the aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof and described
on Schedule 6.4(f) securing Indebtedness described on such Schedule, or
Liens on the assets that are subject to such existing Liens securing any
replacement or refinancing of such Indebtedness; provided that (i) no
Lien permitted by this Section 6.4(f) is spread to cover any additional
property after the Closing Date and (ii) the amount of Indebtedness
secured thereby is not increased beyond the commitments or limits
described on Schedule 6.4(f);
(g) Liens securing Indebtedness incurred (in the case of
any Subsidiary, pursuant to Section 6.3(c) or (d)) to finance the
acquisition of fixed or capital assets or Liens on such fixed or capital
assets securing any refinancing of such Indebtedness, provided that (i)
such Liens (other than those securing any such refinancing Indebtedness)
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time encumber
any property other than the property financed by such Indebtedness and
(iii) (in the case of any Subsidiary) the amount of Indebtedness secured
thereby is not increased;
(h) any interest or title of a lessor under any lease
entered into by the Borrower or any other Subsidiary in the ordinary
course of its business and covering only the assets so leased;
(i) other incidental Liens that (i) are not, in the
aggregate, material to the
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Borrower and its Subsidiaries taken as a whole, (ii) do not secure
Indebtedness and (iii) do not cover at any time assets having an
aggregate fair market value in excess of $10,000,000;
(j) Liens incurred pursuant to a Permitted Receivables
Securitization on the Receivables that are subject thereto;
(k) Liens on assets of a Subsidiary securing Acquired
Indebtedness permitted by Section 6.3(d) in an aggregate principal amount
for all such Subsidiaries not to exceed $100,000,000 at any one time
outstanding; provided that such Liens are not spread (i) in any case
where such Liens attach to certain specified assets, to other assets or
(ii) in any case where such Liens attach to certain types of assets, to
other types of assets of such Subsidiary following the consummation of
the applicable acquisition; and
(l) Liens securing Indebtedness in an aggregate principal
amount not to exceed $25,000,000 at any one time outstanding;
provided, however, that no Subsidiary shall create, incur, assume or suffer to
exist any Lien upon any of its property to secure the payment of any
Indebtedness under the Existing Agreement unless it shall also have granted such
Lien to secure the payment of the Obligations on terms not less favorable to the
Lenders.
6.5 Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall
be the continuing or surviving corporation) or any other Subsidiary;
(b) any Subsidiary of the Borrower may Dispose of any or
all of its assets (i) to the Borrower or any other Subsidiary (upon
voluntary liquidation or otherwise) or (ii) pursuant to a Disposition
permitted by Section 6.6;
(c) any Investment expressly permitted by Section 6.7 may
be structured as a merger, consolidation or amalgamation; and
(d) any Subsidiary may be liquidated, wound up or
dissolved, as deemed appropriate by the Borrower.
6.6 Disposition of Property. Dispose of any of the property
(other than any property which, at the time of any Disposition thereof,
constitutes Unrestricted Margin Stock), whether now owned or hereafter acquired,
or Capital Stock of any Subsidiary, except:
(a) the Disposition of obsolete or worn out property in
the ordinary course of business;
(b) the sale of inventory in the ordinary course of
business;
41
(c) Dispositions permitted by clause (i) of Section
6.5(b);
(d) the sale or issuance of any Subsidiary's Capital
Stock to the Borrower or any other Subsidiary;
(e) Dispositions by any Group Member to the Borrower or
any of its Subsidiaries;
(f) the Disposition during any period of four consecutive
fiscal quarters of the Borrower, commencing with the four-quarter period
ending on or about December 31, 2005, of other property having an
aggregate book value not to exceed $200,000,000 (determined in each case
at the time of Disposition), provided that the Borrower shall deliver to
the Administrative Agent written notice ten Business Days in advance of
any Disposition in excess of $50,000,000;
(g) Dispositions of Receivables pursuant to a Permitted
Receivables Securitization;
(h) Dispositions of Investments permitted by Section
6.7(b);
(i) Dispositions listed on Schedule 6.6; and
(j) any other Disposition of property or Capital Stock of
any Subsidiary, provided that (i) immediately before and after giving
effect to such Disposition no Default or Event of Default shall have
occurred and be continuing and (ii) such Disposition is made pursuant to
an arm's-length transaction the consideration received for which is at
least equal to the fair market value of the property or Capital Stock
that is the subject of such Disposition.
6.7 Investments. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting a business unit of, or make any other investment in, any
other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) obligations in respect of letters of credit, surety
and performance bonds and bank guarantees permitted by Section 6.2, and
Guarantee Obligations permitted by Section 6.3;
(d) loans and advances to employees of any Group Member
in the ordinary course of business (including for travel, entertainment
and relocation expenses) in an aggregate amount for all Group Members not
to exceed $5,000,000 at any one time outstanding;
(e) intercompany Investments by any Group Member in the
Borrower or any
42
Subsidiary;
(f) acquisitions of businesses or the acquisition
(through merger or otherwise) of or Investments in Persons if (i) in the
case of the acquisition of the Capital Stock of any Person (whether by
merger or otherwise), such Person has become a Subsidiary of the Borrower
as a result of thereof and (ii) after giving pro forma effect to such
acquisition or Investment, there is no Default or Event of Default (it
being understood and agreed that in determining pro forma compliance with
Section 6.1, such covenants shall be recomputed as of the most recent
fiscal-quarter-end date for which financial statements shall have been
delivered pursuant to Section 5.1, adjusted (x) in the case of Section
6.1(a), to recompute Consolidated EBITDA to give effect to such
acquisition or Investment as if it had occurred on the first day of the
applicable four-quarter period and to recompute Consolidated Interest
Expense for such period to include the additional interest that would
have accrued during such period in respect of Indebtedness acquired or
assumed in connection with such acquisition or Investment if such
acquisition or Investment had occurred on the first day of such period
and in respect of any Indebtedness incurred to finance such acquisition
or Investment if such Indebtedness had been incurred on such day (and had
borne interest throughout such period at the rate per annum applicable
thereto on the date it was incurred) and (y) in the case of Section
6.1(b), to recompute Consolidated Total Debt to include therein all
Indebtedness acquired, assumed or incurred by the Borrower and its
Subsidiaries in connection with and to finance such acquisition or
Investment and to recompute Consolidated Net Worth to give effect to such
acquisition or Investment);
(g) Investments consisting of promissory notes and
Capital Stock received as proceeds of Dispositions permitted by Section
6.6; and
(h) in addition to Investments otherwise expressly
permitted by this Section, Investments by the Borrower and its
Subsidiaries in an aggregate amount (valued at cost) not to exceed
$200,000,000 during any period of four consecutive fiscal quarters of the
Borrower.
6.8 Transactions with Affiliates. Enter into any transaction,
including any purchase, sale, lease or exchange of property, the rendering of
any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than the Borrower or any other Group Member) unless such
transaction (a) is (i) otherwise permitted under this Agreement and (ii) upon
fair and reasonable terms no less favorable to the relevant Group Member than it
would obtain in a comparable arm's length transaction with a Person that is not
an Affiliate or (b) involves, when taken together with all other transactions
covered by this clause (b) entered into during any fiscal year, $1,000,000 or
less.
6.9 Changes in Fiscal Periods. Change the Borrower's method of
determining fiscal years and quarters without prior written notice to the
Administrative Agent.
6.10 Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Borrower and its Subsidiaries are engaged on the date of this Agreement or that
are reasonably related thereto.
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6.11 Use of Proceeds. Use the proceeds of the Loans for any
purpose other than as described in Section 3.12.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any
Loan when due in accordance with the terms hereof; or the Borrower shall
fail to pay any interest on any Loan, or any other amount payable
hereunder or under any other Loan Document, within five days after any
such interest or other amount becomes due in accordance with the terms
hereof; or
(b) any representation or warranty made or deemed made by
the Borrower herein or in any other Loan Document or that is contained in
any certificate, document or financial or other statement furnished by it
at any time under or in connection with this Agreement or any such other
Loan Document shall prove to have been inaccurate in any material respect
on or as of the date made or deemed made; or
(c) the Borrower shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section
5.4(a) (with respect to the Borrower only), Section 5.7(a) or Section 6
of this Agreement; or
(d) the Borrower shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through (c)
of this Section), and such default shall continue unremedied for a period
of 30 days after written notice to the Borrower from the Administrative
Agent or the Required Lenders; or
(e) any Group Member shall (i) default in making any
payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding the Loans) on the scheduled or original due
date with respect thereto; or (ii) default in making any payment of any
interest on any such Indebtedness beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder
or beneficiary of such Indebtedness (or a trustee or agent on behalf of
such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or
(in the case of any such Indebtedness constituting a Guarantee
Obligation) to become payable (other than any such default, event or
condition arising solely out of the violation by the Borrower or any
Subsidiary of any covenant in any way restricting the Borrower's, or any
such Subsidiary's, right or ability to sell, pledge or otherwise dispose
of Unrestricted Margin Stock); provided, that a default, event or
condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the
type described in clauses (i), (ii) and
44
(iii) of this paragraph (e) shall have occurred and be continuing with
respect to Indebtedness the outstanding principal amount of which exceeds
in the aggregate $35,000,000; or
(f) (i) any Group Member 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 a 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, conservator or other similar official for it or for
all or any substantial part of its assets, or any Group Member shall make
a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against any Group Member any case, proceeding or other
action of a nature referred to in clause (i) above that (A) results in
the entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against any Group Member 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 that results in the entry of an order for
any such relief that shall not have been vacated, discharged, or stayed
or bonded pending appeal within 60 days from the entry thereof; or (iv)
any Group Member 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 (v) any Group Member shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall
arise on the assets of any Group Member or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) any Group Member or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered
against any Group Member involving in the aggregate a liability (not paid
or fully covered by insurance as to which the relevant insurance company
has acknowledged coverage) of $10,000,000 or more, and all such judgments
or decrees shall not have been vacated, discharged, satisfied, stayed or
bonded pending appeal within 30 days from the entry thereof; or
45
(i) (i) any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) shall become, or obtain rights (whether by
means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of more than 40% of the outstanding common stock
of the Borrower; or (ii) the board of directors of the Borrower shall
cease to consist of a majority of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents to be
due and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived by
the Borrower.
SECTION 8. THE AGENTS
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable to any
46
Lender for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan Document (except to
the extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or such
Person's own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agents under
or in connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or for any failure of any Loan Party a
party thereto to perform its obligations hereunder or thereunder. The Agents
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.
8.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
47
8.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
8.7 Indemnification. The Lenders agree to indemnify each Agent
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Loan Percentages in effect on the date on which indemnification
is sought under this Section (or, if indemnification is sought after the date
upon which the Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with such Loan Percentages immediately prior
to such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including reasonable fees and expenses of
counsel), regardless of whether or not the same results from any claim,
litigation, investigation or proceeding brought by or on behalf of any Lender,
any of its Affiliates, or any of their respective officers, directors,
employees, advisors, agents and controlling persons, that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
48
8.8 Agent in Its Individual Capacity. Each Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent were not an Agent.
With respect to its Loans made or renewed by it, each Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 7(a) or Section
7(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 8 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
8.10 Syndication Agent and Documentation Agent. Neither the
Syndication Agent nor the Documentation Agent shall have any duties or
responsibilities hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 9.1. The
Required Lenders and the Borrower may, or, with the written consent of the
Required Lenders, the Administrative Agent and the Borrower may, from time to
time, (a) enter into written amendments, supplements or modifications hereto and
to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or the Borrower hereunder or thereunder or (b) waive, on such terms
and conditions as the Required Lenders or the Administrative Agent, as the case
may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, reduce the stated rate of any
interest or fee payable
49
hereunder (except in connection with the waiver of applicability of any
post-default increase in interest rates (which waiver shall be effective with
the consent of the Required Lenders)) or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the written consent of each Lender
directly affected thereby; (ii) eliminate or reduce the voting rights of any
Lender under this Section 9.1 without the written consent of such Lender; (iii)
reduce any percentage specified in the definition of Required Lenders or consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, in each case
without the written consent of all Lenders; or (iv) amend, modify or waive any
provision of Section 8 without the written consent of the Administrative Agent.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy) and shall not be effective until received, provided that any notice
given by the Administrative Agent pursuant to the final paragraph of Section 7
shall be deemed to have been duly given or made when delivered, or three
Business Days after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when received. All such notices, requests and demands
shall be addressed as follows, in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
Borrower: Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
Attention: Treasurer
Telecopy: 781-622-1181
Telephone: 781-622-1000
With a copy to:
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
Attention: General Counsel
Telecopy: 781-622-1283
Telephone: 781-622-1000
Administrative Agent: JPMorgan Chase Bank, N.A.
Loan and Agency Services Group
1111 Fannin, Floor 10
50
Houston, TX 77002
Attention: Sheila King
Telecopy: 713-750-2782
Telephone: 713-750-2242
With a copy to:
JPMorgan Chase Bank, N.A.
270 Park Avenue
New York, NY 10017
Attention: Dawn LeeLum
Telecopy: 212-270-3279
Telephone: 212-270-2472
With a copy to:
J.P. Morgan Europe Limited 125
London Wall London EC2Y 5AJ
Attention: Belinda Lucas
Telecopy: 0044-207-777-2360
Telephone: 0044-207-777-0976
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 Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment,
51
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including the reasonable fees and disbursements of counsel to the
Administrative Agent, with statements with respect to the foregoing to be
submitted to the Borrower prior to the Closing Date (in the case of amounts to
be paid on the Closing Date) and from time to time thereafter on a quarterly
basis or such other periodic basis as the Administrative Agent shall deem
appropriate, (b) after the occurrence and during the continuance of an Event of
Default, to pay or reimburse each Lender and the Administrative Agent for all
its reasonable out-of-pocket costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents, including the fees and disbursements of
counsel to each Lender and of counsel to the Administrative Agent and (c) to
pay, indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, agents and controlling
persons (each, an "Indemnitee") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including
reasonable fees and expenses of counsel), regardless of whether or not the same
results from any claim, litigation, investigation or proceeding brought by or on
behalf of the Borrower, any of its Affiliates, or any of their respective
officers, directors, employees, advisors, agents and controlling persons, with
respect to such Lender or Administrative Agent being a party to this Agreement
or any other Loan Document, or the enforcement or performance of this Agreement,
the other Loan Documents and any such other documents, including any of the
foregoing relating to the use of proceeds of the Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of any Group Member or any of the Properties (all the foregoing in
this clause (c), collectively, the "Indemnified Liabilities"), provided, that
(i) the Borrower shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified Liabilities
are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnitee or the breach by such Indemnitee of its obligations under this
Agreement (such Indemnified Liabilities, "Excluded Indemnified Liabilities") and
(ii) the Borrower shall have no obligation hereunder to pay costs and expenses
(including reasonable fees and expenses of counsel) of any Indemnitee with
respect to any actions or suits to the extent such actions or suits relate to
Indemnified Liabilities that are purported by the Borrower to be Excluded
Indemnified Liabilities until such Indemnified Liabilities are found by a
decision of a court of competent jurisdiction not to be Excluded Indemnified
Liabilities. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries to waive,
all rights for contribution or any other rights of recovery with respect to all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee. All
amounts due under this Section 9.5 shall be payable not later than 10 days after
written demand therefor. Statements payable by the Borrower pursuant to this
Section 9.5 shall be submitted to Office of the General Counsel (Telephone No.
(781) 622-1000) (Telecopy No. (781) 622-1283), at the address of the Borrower
set forth in Section 9.2, or to such other Person or address as may be hereafter
designated by the Borrower in a written notice to the Administrative Agent. The
agreements in this Section 9.5 shall survive
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repayment of the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(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, except that (i) the Borrower may not 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 the 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.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees (each, an
"Assignee") all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it) with the prior written consent (such consent not to
be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the
Borrower shall be required for an assignment to an assignee that
is a Lender immediately prior to giving effect to such assignment,
or, if an Event of Default has occurred and is continuing, any
other Person; and
(B) the Administrative Agent, provided that no
consent of the Administrative Agent shall be required for an
assignment to an assignee that is a Lender immediately prior to
giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions: (A) except in the case of an assignment to a Lender, an
affiliate of a Lender or an Approved Fund or an assignment of the entire
remaining amount of the assigning Lender's Commitments or Loans, the
amount of the Commitments 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 (or the Dollar
Equivalent thereof) unless each of the Borrower and the Administrative
Agent otherwise consent, provided that (1) no such consent of the
Borrower shall be required if an Event of Default has occurred
and is continuing and (2) such amounts shall be aggregated in respect of
each Lender and its affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and
deliver to the Borrower and the Administrative Agent an Assignment
and Assumption, and at such time deliver to the Administrative
Agent a processing and recordation fee of $3,500; and
(C) the Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an administrative
questionnaire.
53
For the purposes of this Section 9.6, the term "Approved Fund"
has the following meaning:
"Approved Fund" means 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 (a) a Lender, (b) an Affiliate of
a Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, 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
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.15, 2.16 and 9.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.6
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 Borrower, 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 Commitments of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive, and
the Borrower, the Administrative Agent, and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an Assignee, the Assignee's
completed administrative questionnaire (unless the Assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b)(ii)(B) of this Section and any written consent to such assignment required
by paragraph (b)(i) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it);
54
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement 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 may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver that (1) requires the consent of each Lender
directly affected thereby pursuant to the proviso to the second sentence of
Section 9.1 and (2) directly affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.7(b) as though it were a
Lender, provided such Participant shall be subject to Section 9.7(a) as though
it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.14 or 2.15 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 Borrower's prior written consent. Any Participant that is a Non-U.S.
Lender shall not be entitled to the benefits of Section 2.15 unless such
Participant complies with Section 2.15(d).
(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.
(e) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Lender may assign
its rights and obligations to a Conduit Lender organized and administered
by such Lender, provided that such assignment shall be subject to all the
requirements of the definition of the term "Conduit Lender" in
Section 1.1. Notwithstanding the foregoing, any Conduit Lender may assign
any or all of the Loans it may have funded hereunder to its designating
Lender without the consent of the Borrower or the Administrative Agent
and without regard to the limitations set forth in Section 9.6(b). Each
of the Borrower, each Lender and the Administrative Agent hereby confirms
that it will not institute against a Conduit Lender or join any other
Person in instituting against a Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under
any state
55
bankruptcy or similar law, for one year and one day after the payment in
full of the latest maturing commercial paper note issued by such Conduit
Lender; provided, however, that each Lender designating any Conduit
Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its
inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.
9.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular
Lender, if any Lender (a "Benefited Lender") shall receive any payment of all or
part of the Obligations owing to it (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section
7(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of the Obligations
owing to such other Lender, such Benefited Lender shall purchase for cash from
the other Lenders a participating interest in such portion of the Obligations
owing to each such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefited
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right after the occurrence
and during the continuation of an Event of Default, without prior notice
to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, upon any amount becoming due
and payable by the Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), to set off and appropriate and apply against
such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held
or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower, as the case may be. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after
any such setoff and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of
such setoff and application.
9.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
9.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
56
9.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Borrower, the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 9.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary, punitive
or consequential damages.
9.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has
any fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents, and
the relationship between Administrative Agent and Lenders, on one hand,
and the Borrower, on the other hand, in
57
connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
9.14 Confidentiality. Each of the Administrative Agent and
each Lender agrees on its own behalf and on behalf of each Affiliate thereof to
keep confidential all non-public information provided to it by any Group Member,
the Administrative Agent or any Lender pursuant to or in connection with this
Agreement that is designated by the provider thereof as confidential; provided
that nothing herein shall prevent the Administrative Agent or any Lender from
disclosing any such information (a) to the Administrative Agent, any other
Lender or any affiliate thereof solely for the purposes of, or otherwise in
connection with, this Agreement, (b) subject to an express agreement to maintain
the confidentiality of such information in compliance with the provisions of
this Section (which may be a standing agreement between such Lender and such
Transferee), to any actual or prospective Transferee or any direct or indirect
counterparty to any Swap Agreement (or any professional advisor to such
counterparty), (c) to its employees, directors, agents, attorneys, accountants
and other professional advisors or those of any of its affiliates, in each case
who have a need to know such information in accordance with customary business
practices (it being understood that the Person to whom such disclosure is made
will be informed of the confidential nature of such information and instructed
to keep such information confidential), (d) upon the request or demand of any
Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if required to do so in connection with any litigation
or similar proceeding, (g) that has been publicly disclosed, other than as a
result of a disclosure by the Administrative Agent or a Lender, or any of their
respective employees, directors, agents, attorneys, accountants and other
professional advisors or those of any of their respective affiliates, in
violation of this Section 9.14 (provided that neither the Administrative Agent
nor any Lender shall be deemed to have violated this Section if it, or any of
its employees, directors, agents, attorneys, accountants or other professional
advisors or any of their respective affiliates (each Lender (or, as the case may
be, the Administrative Agent), together with each such other Person employed by
it, a "Subject Group"), shall publicly disclose any confidential information
which has previously been publicly disclosed, without the knowledge of the
Person making such subsequent disclosure, by a Person which is a member of
another Subject Group), (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender, (i) in connection
with the exercise of any remedy hereunder or under any other Loan Document, (j)
already in its possession prior to its disclosure pursuant to or in connection
with this Agreement or received from a third party after such disclosure, in
each case under circumstances not requiring confidentiality or (k) to the extent
that the Borrower has consented to such disclosure. Unless specifically
prohibited by applicable law or court order, the Administrative Agent and each
Lender shall, prior to any disclosure under clause (d), (e) or (f) above to (x)
any Governmental Authority that does not have supervisory, regulatory or other
similar authority with respect to the Administrative Agent or such Lender, as
the case may be, and that is seeking such disclosure solely in connection with
an investigation, litigation or other proceeding that does not otherwise involve
the Administrative Agent or such Lender, as the case
58
may be, or (y) any other Person that is not a Governmental Authority, notify the
Borrower of any request for the disclosure of any such non-public information so
as to provide the Borrower with the reasonable opportunity to obtain a
protective order or other comparable relief. 9.15 WAIVERS OF JURY TRIAL. THE
BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.16 USA PATRIOT Act. Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act") hereby notifies the Borrower that pursuant to
the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Act. The Borrower shall promptly,
following a request by the Administrative Agent or any Lender, provide all
documentation and other information that the Administrative Agent or such Lender
reasonably requests in order to comply with its ongoing obligations under
applicable "know your customer" and anti-money laundering rules and regulations,
including the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
THERMO ELECTRON CORPORATION
By: -----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a
Lender
/s/ Dawn Lee Lum
By: ------------------------------------
Name: Dawn Lee Lum
Title: Vice President
BARCLAYS BANK PLC, as Syndication
Agent and as a Lender
/s/ David Barton
By: ------------------------------------
Name: David Barton
Title: Associate Director
ABN AMRO BANK N.V., as Documentation
Agent and as a Lender
/s/ Eric Oppenheimer
By: ----------------------------------
Name: Eric Oppenheimer
Title: Director
/s/ Christopher M. Plumb
By: ----------------------------------
Name: Christopher M. Plumb
Title: Vice President