EXHIBIT 10.2
EXECUTION COPY
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U.S.$695,032,550
CREDIT AGREEMENT
Dated as of October 29, 2004
Among
D-R INTERHOLDING, LLC,
as Holdings,
DRESSER RAND GROUP INC.,
as Domestic Borrower,
D-R HOLDINGS (UK) LTD and D-R HOLDINGS (France) S.A.S.,
as Foreign Borrowers,
THE LENDERS PARTY HERETO,
CITICORP NORTH AMERICA, INC.,
as Administrative Agent,
MORGAN STANLEY SENIOR FUNDING, INC.
and
UBS SECURITIES LLC,
as Co-Syndication Agents
CITIGROUP GLOBAL MARKETS INC.
and
MORGAN STANLEY SENIOR FUNDING, INC.
and
UBS SECURITIES LLC,
as Joint Lead Arrangers and Joint Book Managers
and
BEAR STEARNS CORPORATE LENDING INC.
and
NATEXIS BANQUES POPULAIRES
as Co-Documentation Agents
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms............................................................................ 3
SECTION 1.02. Terms Generally.......................................................................... 52
SECTION 1.03. Effectuation of Transfers................................................................ 53
SECTION 1.04. Financial Assistance..................................................................... 53
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments.............................................................................. 53
SECTION 2.02. Loans and Borrowings..................................................................... 54
SECTION 2.03. Requests for Borrowings.................................................................. 55
SECTION 2.04. Swingline Loans.......................................................................... 55
SECTION 2.05. Letters of Credit........................................................................ 57
SECTION 2.06. Funding of Borrowings.................................................................... 62
SECTION 2.07. Interest Elections....................................................................... 63
SECTION 2.08. Termination and Reduction of Commitments................................................. 64
SECTION 2.09. Repayment of Loans; Evidence of Debt..................................................... 65
SECTION 2.10. Repayment of Term Loans and Revolving Facility Loans..................................... 66
SECTION 2.11. Prepayment of Loans...................................................................... 69
SECTION 2.12. Fees..................................................................................... 70
SECTION 2.13. Interest................................................................................. 71
SECTION 2.14. Alternate Rate of Interest............................................................... 72
SECTION 2.15. Increased Costs.......................................................................... 73
SECTION 2.16. Break Funding Payments................................................................... 74
SECTION 2.17. Taxes.................................................................................... 74
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.............................. 76
SECTION 2.19. Mitigation Obligations; Replacement of Lenders........................................... 78
SECTION 2.20. Additional Reserve Costs................................................................. 79
SECTION 2.21. Increase in Revolving Facility Commitments and/or Tranche B Term Loan Commitments........ 80
SECTION 2.22. Illegality............................................................................... 81
SECTION 2.23. Additional Borrowers..................................................................... 82
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers..................................................................... 82
SECTION 3.02. Authorization............................................................................ 82
SECTION 3.03. Enforceability........................................................................... 83
SECTION 3.04. Governmental Approvals................................................................... 83
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SECTION 3.05. Financial Statements..................................................................... 83
SECTION 3.06. No Material Adverse Effect............................................................... 84
SECTION 3.07. Title to Properties; Possession Under Leases............................................. 84
SECTION 3.08. Litigation; Compliance with Laws......................................................... 85
SECTION 3.09. Federal Reserve Regulations.............................................................. 86
SECTION 3.10. Investment Company Act; Public Utility Holding Company Act............................... 86
SECTION 3.11. Use of Proceeds.......................................................................... 86
SECTION 3.12. Tax Returns.............................................................................. 86
SECTION 3.13. No Material Misstatements................................................................ 87
SECTION 3.14. Employee Benefit Plans................................................................... 87
SECTION 3.15. Environmental Matters.................................................................... 88
SECTION 3.16. Mortgages................................................................................ 89
SECTION 3.17. Location of Real Property................................................................ 89
SECTION 3.18. Solvency................................................................................. 89
SECTION 3.19. Labor Matters............................................................................ 89
SECTION 3.20. Insurance................................................................................ 90
SECTION 3.21. Representations and Warranties in Acquisition Agreement.................................. 90
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. All Credit Events........................................................................ 90
SECTION 4.02. First Credit Event....................................................................... 91
SECTION 4.03. Conditions Precedent to the Initial Borrowing of Each Additional Borrower................ 95
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties..................................................... 96
SECTION 5.02. Insurance................................................................................ 96
SECTION 5.03. Taxes.................................................................................... 98
SECTION 5.04. Financial Statements, Reports, etc....................................................... 98
SECTION 5.05. Litigation and Other Notices............................................................. 100
SECTION 5.06. Compliance with Laws..................................................................... 100
SECTION 5.07. Maintaining Records; Access to Properties and Inspections................................ 101
SECTION 5.08. Use of Proceeds.......................................................................... 101
SECTION 5.09. Compliance with Environmental Laws....................................................... 101
SECTION 5.10. Further Assurances....................................................................... 101
SECTION 5.11. Fiscal Year.............................................................................. 104
SECTION 5.12. Interest Rate Protection Agreements...................................................... 104
SECTION 5.13. Proceeds of Certain Dispositions......................................................... 105
SECTION 5.14. Post-Closing Transactions................................................................ 105
SECTION 5.15. Post-Closing Matters..................................................................... 105
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ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness............................................................................. 105
SECTION 6.02. Liens.................................................................................... 108
SECTION 6.03. Sale and Lease-Back Transactions......................................................... 111
SECTION 6.04. Investments, Loans and Advances.......................................................... 112
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions................................ 114
SECTION 6.06. Dividends and Distributions.............................................................. 116
SECTION 6.07. Transactions with Affiliates............................................................. 118
SECTION 6.08. Business of Holdings and the Subsidiaries................................................ 120
SECTION 6.09. Limitation on Modifications of Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements; etc....................... 120
SECTION 6.10. Capital Expenditures..................................................................... 121
SECTION 6.11. Interest Coverage Ratio.................................................................. 122
SECTION 6.12. Leverage Ratio........................................................................... 123
SECTION 6.13. Swap Agreements.......................................................................... 123
SECTION 6.14. Designated Senior Debt................................................................... 123
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default........................................................................ 124
SECTION 7.02. Exclusion of Immaterial Subsidiaries..................................................... 127
SECTION 7.03. Holdings' Right to Cure.................................................................. 127
ARTICLE VIII
THE AGENTS
SECTION 8.01. Appointment.............................................................................. 128
SECTION 8.02. Nature of Duties......................................................................... 129
SECTION 8.03. Resignation by the Agents................................................................ 129
SECTION 8.04. Each Agent in Its Individual Capacity.................................................... 129
SECTION 8.05. Indemnification.......................................................................... 130
SECTION 8.06. Lack of Reliance on Agents............................................................... 130
SECTION 8.07. Sub-Agent................................................................................ 130
SECTION 8.08. Appointment of Supplemental Collateral Agents............................................ 130
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.................................................................................. 131
SECTION 9.02. Survival of Agreement.................................................................... 132
SECTION 9.03. Binding Effect........................................................................... 133
SECTION 9.04. Successors and Assigns................................................................... 133
SECTION 9.05. Expenses; Indemnity...................................................................... 136
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SECTION 9.06. Right of Set-off......................................................................... 138
SECTION 9.07. Applicable Law........................................................................... 138
SECTION 9.08. Waivers; Amendment....................................................................... 138
SECTION 9.09. Interest Rate Limitation................................................................. 141
SECTION 9.10. Entire Agreement......................................................................... 141
SECTION 9.11. WAIVER OF JURY TRIAL..................................................................... 141
SECTION 9.12. Severability............................................................................. 142
SECTION 9.13. Counterparts............................................................................. 142
SECTION 9.14. Headings................................................................................. 142
SECTION 9.15. Jurisdiction; Consent to Service of Process.............................................. 142
SECTION 9.16. Confidentiality.......................................................................... 143
SECTION 9.17. Citigroup Direct Website Communications.................................................. 144
SECTION 9.18. Release of Liens and Guarantees.......................................................... 145
SECTION 9.19. U.S. Patriot Act......................................................................... 145
SECTION 9.20. Judgment................................................................................. 145
SECTION 9.21. Substitution of Currency................................................................. 145
SECTION 9.22. Termination or Release................................................................... 146
SECTION 9.23. Pledge and Guarantee Restrictions........................................................ 146
SECTION 9.24. Matters Pertaining to the French Borrower and to any Additional Foreign Borrower
organized under the laws of France.................................... 147
Exhibits, Annexes and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Administrative Questionnaire
Exhibit C-1 Form of Borrowing Request
Exhibit C-2 Form of Swingline Borrowing Request
Exhibit D Form of Mortgage
Exhibit E-1 Form of Domestic Collateral Agreement
Exhibit E-2A Form of UK Debenture
Exhibit E-2B Form of UK Share Charge
Exhibit E-3A Form of French Debt Pledge Agreement
Exhibit E-3B Form of French Equity Pledge Agreement
Exhibit E-4 Form of Foreign Guaranty
Exhibit F Reserve Costs for Mandatory Costs Rate
Exhibit G Form of Solvency Certificate of Dresser-Rand Group Inc.
Exhibit H Form of Solvency Certificate of D-R Interholding, LLC
Exhibit I Form of Credit Agreement Supplement
Exhibit J Form of IR Letter of Credit
Exhibit K Form of TEG Letter
Exhibit L-1 Form of Revolving Note
Exhibit L-2 Form of Term Note
Annex A Description of Closing Date Intercompany Transactions
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Schedule 1.01(a) Certain Subsidiaries
Schedule 1.01(b) Pro Forma Adjusted EBITDA
Schedule 1.01(c) Excluded Acquisition Agreement Payments
Schedule 1.01(d) Certain Material Subsidiaries
Schedule 2.01 Commitments
Schedule 3.01 Organization and Good Standing
Schedule 3.04 Governmental Approvals
Schedule 3.07(e) Condemnation Proceedings
Schedule 3.07(g) Subsidiaries
Schedule 3.07(h) Subscriptions
Schedule 3.08(a) Litigation
Schedule 3.08(b) Violations
Schedule 3.12 Taxes
Schedule 3.15 Environmental Matters
Schedule 3.17(a) Owned Real Property
Schedule 3.17(b) Leased Real Property
Schedule 3.19 Labor Matters
Schedule 3.20 Insurance
Schedule 4.02(k) Governmental Approvals
Schedule 6.01 Indebtedness
Schedule 6.02(a) Liens
Schedule 6.04 Investments
Schedule 6.07 Transactions with Affiliates
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CREDIT AGREEMENT dated as of October 29, 2004 (this "Agreement"),
among D-R INTERHOLDING, LLC, a Delaware limited liability company ("Holdings"),
DRESSER-RAND GROUP INC., a Delaware corporation ("Acquisition Corp." or the
"Domestic Borrower"), D-R HOLDINGS (UK) LTD, a corporation organized under the
laws of England and Wales (the "UK Borrower") and D-R HOLDINGS (France) S.A.S.,
a corporation organized under the laws of France (the "French Borrower" and,
together with the UK Borrower, the "Initial Foreign Borrowers"), any Additional
Foreign Borrower (as hereinafter defined) that becomes a Borrower (as
hereinafter defined) pursuant to the terms thereof, the LENDERS party hereto
from time to time, CITICORP NORTH AMERICA, INC., as administrative agent (in
such capacity, together with any successor administrative agent appointed
pursuant to the provisions of Article VIII, the "Administrative Agent") and as
collateral agent (in such capacity, together with any successor collateral agent
appointed pursuant to the provisions of Article VIII, the "Collateral Agent")
for the Lenders, MORGAN STANLEY SENIOR FUNDING, INC. ("MS") and UBS SECURITIES
LLC, each as co-syndication agent (in such capacity, a "Co-Syndication Agent"),
CITIGROUP GLOBAL MARKETS INC., MS and UBS SECURITIES LLC, as joint lead
arrangers and joint book managers (in such capacity, the "Joint Lead Arrangers")
and BEAR STEARNS CORPORATE LENDING INC. and NATEXIS BANQUES POPULAIRES, as
co-documentation agents, (in such capacity, the "Co-Documentation Agents").
W I T N E S S E T H :
WHEREAS, First Reserve Fund IX L.P., First Reserve Fund X L.P. and
certain of their respective Affiliates (as hereinafter defined) (collectively,
the "Funds") have formed Dresser-Rand Holdings LLC, a Delaware limited liability
company ("FRC") f/k/a FRC Acquisition, LLC, FRC has formed Holdings, and
Holdings has formed the Domestic Borrower;
WHEREAS, the Domestic Borrower has formed Dresser-Rand Holdings
(Canada), a company organized under the laws of Canada ("Canada HoldCo"),
Dresser-Rand Central Services GmbH & Co. KG, a limited partnership organized
under the laws of Germany ("Germany KG"), D-R Holdings Norway AS, a company
organized under the laws of Norway ("Norway HoldCo"), the UK Borrower and the
French Borrower, the Domestic Borrower has formed D-R Holdings (Netherlands)
B.V., a company organized under the laws of the Netherlands ("Dutch Holdco") and
capitalized it with a contribution of the equity interests of Norway Holdco; and
Germany KG has formed Dresser-Rand Holdings (Germany) GmbH, a company organized
under the laws of Germany ("Germany HoldCo");
WHEREAS, pursuant to that Equity Purchase Agreement, dated August
25, 2004 (as amended by the Closing Agreement, the "Acquisition Agreement")
among FRC, the Domestic Borrower (as assignee of certain obligations of FRC) and
Ingersoll-Rand Company Limited, a company organized under the laws of Bermuda
(the "Seller"), (i) the Domestic Borrower will acquire, directly or indirectly,
all of the issued and outstanding equity interests of each of Dresser-Rand LLC,
a Delaware limited liability company ("DR"), Dresser-Rand Company, a New York
general partnership ("Dresser-Rand Company"), Dresser-Rand Holding LLC, a
Delaware limited liability company ("Dresser-Rand Holding") and Dresser-Rand
Power LLC, a Delaware limited liability company ("Dresser-Rand Power"), (ii)
Canada HoldCo will acquire all of the issued and outstanding equity interests of
Dresser-Rand Canada, Inc., a
company organized under the laws of Canada ("Dresser-Rand Canada"), (iv) the
French Borrower will acquire all of the issued and outstanding equity interests
of Dresser-Rand S.A., a company organized under the laws of France
("Dresser-Rand France"), (v) Germany HoldCo will acquire all of the issued and
outstanding equity interests of Dresser-Rand GmbH, a company organized under the
laws of Germany ("Dresser-Rand Germany"), (vi) Norway HoldCo will acquire all of
the issued and outstanding equity interests of Dresser-Rand A/S Norway, a
company organized under the laws of Norway ("Dresser-Rand Norway"), and (vii)
the UK Borrower will acquire all of the issued and outstanding equity interests
of Dresser-Rand Company Limited, a company organized under the laws of England
and Wales ("Dresser-Rand UKI") and Dresser-Rand (UK) Limited, a company
organized under the laws of England and Wales ("Dresser-Rand UKII" and, together
with DR, Dresser-Rand Company, Dresser-Rand Holding, Dresser-Rand Power,
Dresser-Rand Canada, Dresser-Rand France, Dresser-Rand Germany, Dresser-Rand
Norway and Dresser-Rand UKI and their respective interests in each of their
direct and indirect subsidiaries, the "Acquired Business");
WHEREAS, in connection with the consummation of the Acquisition, the
Funds and their Affiliates will contribute cash common equity to FRC in an
aggregate amount of not less than U.S.$430.0 million (the "Equity Financing") on
the terms and conditions set forth in the Equity Commitment Letters (as
hereinafter defined);
WHEREAS, the aggregate amount of the Equity Financing will be
contributed by FRC to the common equity of Holdings and Holdings will contribute
such amount to the common equity of Acquisition Corp. to be used by Acquisition
Corp. to fund the Acquisition;
WHEREAS, in connection with the consummation of the Acquisition, the
Domestic Borrower will simultaneously herewith issue a total of up to U.S.$420.0
million in aggregate principal amount of its Senior Subordinated Notes (as
defined herein) in a public offering or in a Rule 144A or other private
placement;
WHEREAS, as of the Closing Date, Acquisition Corp. will own,
directly or indirectly, 100% of the outstanding Equity Interests of the Initial
Foreign Borrowers and their respective direct and indirect subsidiaries,
including, without limitation, DR, Dresser-Rand Company, Dresser-Rand Canada,
Dresser-Rand France, Dresser-Rand Holding and Dresser-Rand Power;
WHEREAS, the Borrowers have requested the Lenders to extend credit
in the form of (a) Term Loans on the Closing Date, in an aggregate principal
amount not in excess of U.S.$395.0 million, and (b) Revolving Facility Loans and
Letters of Credit at any time and from time to time prior to the Revolving
Facility Maturity Date, in an aggregate principal amount at any time outstanding
not in excess of U.S.$300.0 million; and
WHEREAS, to facilitate the Acquisition and related transactions,
substantially simultaneously with the Closing, the transactions (and flow of
funds) described in Annex A shall occur, including, among other things, the use
of the proceeds from the Equity Financing, the Senior Subordinated Notes, the
Term Loans and the Revolving Loans to be extended on the Closing Date to fund
the Acquisition and pay related fees and expenses.
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NOW, THEREFORE, the Lenders are willing to extend such credit to the
Borrowers on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan or
Swingline Loan.
"ABR Revolving Facility Borrowing" shall mean a Borrowing comprised
of ABR Revolving Loans.
"ABR Revolving Loan" shall mean any Revolving Facility Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"ABR Term Loan" shall mean any Tranche B Dollar Term Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"Acquired Business" shall have the meaning assigned to such term in
the second recital hereto.
"Acquisition" shall mean the transactions described in the second
and third recital hereto.
"Acquisition Agreement" shall have the meaning assigned to such term
in the third recital hereto.
"Acquisition Agreement Payments" shall mean cash amounts received by
Holdings, any Borrower or any of their Affiliates in respect of any claim under
the Acquisition Agreement or as a direct or indirect result of any breach of any
term or provision of the Acquisition Agreement or otherwise in respect of any
claim by Holdings, any Borrower or any of their Affiliates arising out of the
Acquisition, in an aggregate amount in excess of U.S.$5.0 million; provided,
however, that Acquisition Agreement Payments shall not include any amounts
described on Schedule 1.01(c).
"Acquisition Documents" shall mean the collective reference to the
Acquisition Agreement, and all exhibits and schedules thereto.
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"Additional Foreign Borrower" shall mean any direct or indirect
wholly-owned Foreign Subsidiary of the Domestic Borrower that shall become a
party to this Agreement pursuant to Section 2.23.
"Additional Foreign Subsidiary Loan Party" shall mean with respect
to each Additional Foreign Borrower, each Wholly Owned Subsidiary of such
Additional Foreign Borrower that (a) is (i) a Foreign Subsidiary, (ii) a
Material Subsidiary and (iii) organized under the same jurisdiction as such
Additional Foreign Borrower and (b) is not (i) a Special Purpose Receivables
Subsidiary, (ii) listed on Schedule 1.01(a), or (iii) a Subsidiary whose
guarantee of the Obligations of such Additional Foreign Borrower is prohibited
under Section 9.23.
"Adjusted LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves applicable to such
Eurocurrency Borrowing, if any.
"Administrative Agent" shall have the meaning assigned to such term
in the introductory paragraph of this Agreement.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.12(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B.
"Affiliate" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
Person specified.
"Agent Parties" shall have the meaning assigned to such term in
Section 9.17(c).
"Agents" shall mean the Administrative Agent and the Collateral
Agent.
"Agreed Security Principles" shall mean any grant of a Lien or
provision of a guarantee by any Person that could:
(a) result in any breach of corporate benefit, financial assistance,
capital preservation, fraudulent preference, thin capitalization
rules, retention of title claims and similar laws or regulations (or
analogous restrictions) of the jurisdiction of organization of such
Person;
(b) result in any risk to the officers of such Person of
contravention of their fiduciary duties and/or of civil or criminal
liability;
(c) result in costs (tax, administrative or otherwise) that are
materially disproportionate to the benefit obtained by the
beneficiaries of such Lien and/or guarantee;
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(d) result in a breach of a material agreement binding on such
Person that may not be amended or otherwise modified using
commercially reasonable efforts to avoid such breach ; or
(e) result in a Lien being granted over assets, the acquisition of
which was financed from a subsidy or payments, the terms of which
prohibit any assets acquired with such subsidy or payment being used
as collateral.
"Agreement" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Alternate Base Rate" shall mean, for any day, a rate per annum
equal to the greater of (a) Citibank, N.A.'s Base Rate, (b) the three-month
certificate of deposit plus 1/2 of 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate,
including the failure of the Federal Reserve Bank of New York to publish rates
or the inability of the Administrative Agent to obtain quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (c) of the preceding sentence until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the Base Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Base Rate or the Federal
Funds Effective Rate, respectively.
"Applicable Margin" shall mean (i) for any day with respect to any
Eurocurrency Loan that is a Revolving Facility Loan denominated in Dollars or a
Foreign Currency and any ABR Loan that is a Revolving Facility Loan, the
applicable margin per annum set forth below under the caption "Revolving
Facility Loan Eurocurrency Spread," and "Revolving Facility Loan ABR Spread,"as
applicable, based upon the Leverage Ratio as of the last date of the most recent
fiscal quarter of the Domestic Borrower, (ii) for any day with respect to any
Eurocurrency Loan that is a Tranche B Euro Term Loan, 2.50% and (iii) for any
day with respect to any Eurocurrency Loan that is a Tranche B Dollar Term Loan
and any ABR Loan that is a Tranche B Dollar Term Loan, 2.00% and 1.00%,
respectively.
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Revolving Revolving Facility
Facility Loan Loan Eurocurrency
Leverage Ratio: ABR Spread Spread
- --------------- ------------- ------------------
Category 1
Equal to or
greater than
5.0 to 1.00 1.50% 2.50%
Category 2
Less than 5.0
to 1.00 but
equal to or
greater than
4.0 to 1.00 1.25% 2.25%
Category 3
Less than
4.0 to 1.00 1.00% 2.00%
For purposes of the foregoing, (1) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Domestic Borrower's
fiscal year based upon the consolidated financial information of the Domestic
Borrower and its Subsidiaries delivered pursuant to Section 5.04(a) or (b) and
(2) each change in the Applicable Margin resulting from a change in the Leverage
Ratio shall be effective on the first Business Day after the date of delivery to
the Administrative Agent of such consolidated financial information indicating
such change and ending on the date immediately preceding the effective date of
the next such change; provided that until the Trigger Date, the Leverage Ratio
shall be deemed to be in Category 1; provided further that the Leverage Ratio
shall be deemed to be in Category 1 at the option of the Administrative Agent or
the Required Lenders, at any time during which the Domestic Borrower fails to
deliver the consolidated financial information when required to be delivered
pursuant to Section 5.04(a) or (b), during the period from the expiration of the
time for delivery thereof until such consolidated financial information is
delivered.
"Approved Fund" shall have the meaning assigned to such term in
Section 9.04(b).
"Asset Acquisition" shall mean any Permitted Business Acquisition,
the aggregate consideration for which exceeds U.S.$5.0 million.
"Asset Disposition" shall mean any sale, transfer or other
disposition by Holdings or any Subsidiary to any Person other than Holdings or
any Subsidiary to the extent otherwise permitted hereunder of any asset or group
of related assets (other than inventory or other assets sold, transferred or
otherwise disposed of in the ordinary course of business) in one or a series of
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related transactions, the Net Proceeds from which exceed (a) $10.0 million
during the first six months after the Closing Date and (b) thereafter, $5.0
million.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent and the Borrowers (if required by such assignment and acceptance), in the
form of Exhibit A or such other form as shall be approved by the Administrative
Agent.
"Availability Period" shall mean the period from the Closing Date to
but excluding the earlier of the Revolving Facility Maturity Date and in the
case of each of the Revolving Facility Loans, Revolving Facility Borrowings,
Swingline Loans, Swingline Borrowings, and Letters of Credit, the date of
termination of the Revolving Facility Commitments.
"Available Investment Basket Amount" shall mean, on any date of
determination, an amount equal to (a) the Cumulative Retained Excess Cash Flow
Amount on such date plus the aggregate amount of proceeds received after the
Closing Date and prior to such date that would have constituted Net Proceeds
pursuant to clause (a) of the definition thereof except for the operation of
clause (x) or (y) of the second proviso thereof, minus (b) any amounts thereof
used to make Investments pursuant to Section 6.04(a), clause (ii) of Section
6.04(i) and/or clause (i)(y) of Section 6.04(j) and/or clause (iii) of Section
6.04(j) after the Closing Date and on or prior to such date, minus (c) the
aggregate amount of Capital Expenditures made after the Closing Date and on or
prior to such date pursuant to Section 6.10(c).
"Available Unused Commitment" shall mean, with respect to a
Revolving Facility Lender, at any time of determination, an amount equal to the
amount by which (a) the Revolving Facility Commitment of such Revolving Facility
Lender at such time exceeds (b) the Revolving Facility Credit Exposure of such
Revolving Facility Lender at such time (calculated in respect of any portion of
such Revolving Facility Lender's Revolving Facility Credit Exposure that is
denominated in a Foreign Currency on the Equivalent thereof in Dollars
determined at such time).
"Base Rate" shall mean the sum (adjusted to the nearest 0.25% or, if
there is no nearest 0.25% to the next higher 0.25%) of (i) 0.5% per annum, (ii)
the rate per annum obtained by dividing (A) the latest three-week moving average
of secondary market morning offering rates in the United States for three-month
certificates of deposit of major United States money market banks, such
three-week moving average being determined weekly on each Monday (or, if any
such day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank, N.A. on the basis
of such rates reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by Citibank, N.A.
from three New York certificate of deposit dealers of recognized standing
selected by Citibank, N.A., by (B) a percentage equal to 100% minus the average
of the daily percentages specified during such three-week period by the Federal
Reserve Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for Citibank,
N.A. in respect of liabilities consisting of or including (among other
liabilities) three-month U.S. dollar nonpersonal time deposits in the
7
United States and (iii) the average during such three-week period of the maximum
annual assessment rates estimated by Citibank, N.A. for determining the then
current annual assessment payable by Citibank, N.A. to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. Dollar deposits in
the United States.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowers" shall mean, collectively, the Domestic Borrower and the
Foreign Borrowers.
"Borrowing" shall mean a group of Loans of a single Type under a
single Facility and made on a single date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect.
"Borrowing Minimum" shall mean (a) in the case of an ABR Revolving
Facility Borrowing, U.S.$5.0 million (or the Equivalent determined on the date
of delivery of the applicable Borrowing Request or notice of repayment in the
applicable Foreign Currency of U.S. $5.0 million), (b) in the case of a
Eurocurrency Revolving Facility Borrowing, U.S.$5.0 million (or the Equivalent
determined on the date of delivery of the applicable Borrowing Request or notice
of repayment in the applicable Foreign Currency of U.S. $5.0 million), and (c)
in the case of a Swingline Borrowing, U.S.$500,000 (or the Equivalent determined
on the date of delivery of the applicable Swingline Borrowing Request in the
applicable Foreign Currency of U.S. $500,000).
"Borrowing Multiple" shall mean (a) in the case of a Revolving
Facility Borrowing, U.S.$1.0 million as applicable (or the Equivalent determined
on the date of delivery of the applicable Borrowing Request or notice of
repayment in the applicable Foreign Currency of U.S. $1.0 million) and (b) in
the case of a Swingline Borrowing, U.S.$500,000 (or the Equivalent determined on
the date of delivery of the applicable Swingline Borrowing Request or notice of
repayment in the applicable Foreign Currency of U.S. $500,000).
"Borrowing Request" shall mean a request by a Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C-1.
"Business" shall mean the business of, among other things, the
design, manufacture, sale, maintenance and repair of gas and steam compression
equipment (including centrifugal and reciprocating compressors and steam and gas
turbines), all as conducted by the Acquired Business on the Closing Date;
provided that "Business" shall not include the Seller's and its Subsidiaries'
high-capacity hoists and winch business.
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market and in case of a Loan denominated in Euros, the term
Business Day shall also exclude any day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer (TARGET) System is not open.
8
"Calculation Period" means, as of any date of determination, the
period of four consecutive fiscal quarters ending on such date or, if such date
is not the last day of a fiscal quarter, ending on the last day of the fiscal
quarter of the Domestic Borrower most recently ended prior to such date.
"Capital Expenditures" shall mean, for any Person in respect of any
period, the aggregate of all expenditures incurred by such Person during such
period that, in accordance with GAAP, are or should be included in "additions to
property, plant or equipment" or similar items reflected in the statement of
cash flows of such Person; provided, however, that Capital Expenditures for the
Domestic Borrower and its Subsidiaries shall not include:
(a) expenditures to the extent they are made with proceeds of the
issuance of Equity Interests of the Domestic Borrower after the Closing
Date to FRC, Holdings, any Fund or Fund Affiliate or with funds that would
have constituted Net Proceeds under clause (a) of the definition of the
term "Net Proceeds" (but that will not constitute Net Proceeds as a result
of the first proviso to such clause (a)),
(b) expenditures of proceeds of insurance settlements, condemnation
awards and other settlements in respect of lost, destroyed, damaged or
condemned assets, equipment or other property to the extent such
expenditures are made to replace or repair such lost, destroyed, damaged
or condemned assets, equipment or other property or otherwise to acquire,
maintain, develop, construct, improve, upgrade or repair assets or
properties useful in the business of the Domestic Borrower and the
Subsidiaries within 12 months of receipt of such proceeds,
(c) interest capitalized in accordance with GAAP during such period,
(d) expenditures that are accounted for as capital expenditures of
such Person and that actually are paid for by a third party (excluding the
Domestic Borrower or any Subsidiary) and for which neither the Domestic
Borrower nor any Subsidiary has provided or is required to provide or
incur, directly or indirectly, any consideration or obligation to such
third party or any other Person (whether before, during or after such
period),
(e) the book value of any asset owned by such Person prior to or
during such period to the extent that such book value is included as a
capital expenditure during such period as a result of such Person reusing
or beginning to reuse such asset during such period without a
corresponding expenditure actually having been made in such period,
provided that (i) any expenditure necessary in order to permit such asset
to be reused shall be included as a Capital Expenditure during the period
that such expenditure actually is made and (ii) such book value shall have
been included in Capital Expenditures when such asset was originally
acquired,
(f) the purchase price of equipment purchased during such period to
the extent the consideration therefor consists of any combination of (i)
used or surplus equipment traded in at the time of such purchase and (ii)
the proceeds of a concurrent sale of used or surplus equipment, in each
case, in the ordinary course of business,
9
(g) Investments in respect of a Permitted Business Acquisition, or
(h) the purchase price of equipment that is purchased substantially
contemporaneously with the trade-in of existing equipment to the extent
that the gross amount of such purchase price is reduced by the credit
granted by the seller of such equipment for the equipment being traded in
at such time.
"Capital Lease Obligations" of any Person shall mean the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for purposes hereof, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.
"Cash Interest Expense" shall mean, with respect to the Domestic
Borrower and its Subsidiaries on a consolidated basis for any period, Interest
Expense for such period, less the sum of (a) pay-in-kind Interest Expense or
other noncash Interest Expense (including as a result of the effects of purchase
accounting), (b) to the extent included in Interest Expense, the amortization of
any financing fees paid by, or on behalf of, the Domestic Borrower or any
Subsidiary, including such fees paid in connection with the Transactions, (c)
the amortization of debt discounts, if any, or fees in respect of Swap
Agreements and (d) cash interest income of the Domestic Borrower and its
Subsidiaries for such period; provided that (i) Cash Interest Expense shall
exclude any one-time financing fees paid in connection with the Transactions or
any amendment of this Agreement or upon entering into a Permitted Receivables
Financing and (ii) historical Cash Interest Expense shall be deemed to be (w)
for the fiscal quarter ended March 31, 2004, U.S.$13.5 million, (x) for the
fiscal quarter ended June 30, 2004, U.S.$13.5 million, (y) for the fiscal
quarter ended September 30, 2004, U.S.$13.5 million and (z) for the period
beginning October 1, 2004 through to and excluding the Closing Date, U.S.$13.5
million multiplied by a fraction the numerator of which equals the number of
days elapsed during such period and the denominator of which equals 90.
A "Change in Control" shall be deemed to occur if:
(a) at any time, (i) Holdings shall fail to own, directly or
indirectly, beneficially and of record 85% of the Domestic Borrower, (ii)
a majority of the seats (other than vacant seats) on the board of
directors of Holdings shall at any time be occupied by Persons who were
neither (A) nominated by the board of directors of Holdings or a Permitted
Holder, (B) appointed by directors so nominated nor (C) appointed by a
Permitted Holder or (iii) a "Change in Control" shall occur under the
Senior Subordinated Note Indenture or under any Permitted Senior Debt
Securities or Permitted Subordinated Debt Securities;
(b) at any time prior to an initial public offering of Equity
Interests of Holdings, any combination of Permitted Holders shall fail to
own beneficially (within the meaning of Rule 13d-5 of the Exchange Act as
in effect on the Closing Date), directly or indirectly, in the aggregate
Equity Interests representing at least 51% of (i) the aggregate ordinary
voting power represented by the issued and outstanding Equity Interests of
10
Holdings or (ii) the common economic interest represented by the issued
and outstanding Equity Interests of Holdings; or
(c) at any time from and after an initial public offering of Equity
Interests of (x) Holdings, (y) any Person who, directly or indirectly,
owns 100% of the issued and outstanding Equity Interests of Holdings (a
"Parent Company") or (z) any Subsidiary of Holdings who, directly or
indirectly, owns 85% of the issued and outstanding Equity Interests of the
Domestic Borrower (an "Intermediate Holding Company"), any Person or group
(within the meaning of Rule 13d-5 of the Exchange Act as in effect on the
Closing Date), other than any combination of the Permitted Holders, shall
own beneficially (as defined above), directly or indirectly, in the
aggregate Equity Interests representing 35% or more of the aggregate
ordinary voting power represented by the issued and outstanding Equity
Interests of Holdings, such Parent Company or such Intermediate Holding
Company, as applicable, and the Permitted Holders own beneficially (as
defined above), directly or indirectly, a smaller percentage of such
ordinary voting power at such time than the Equity Interests owned by such
other Person or group.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the Closing Date, (b) any change in law, rule or regulation or
in the interpretation or application thereof by any Governmental Authority after
the Closing Date or (c) compliance by any Lender or Issuing Bank (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's or Issuing Bank's holding company, if any) with any written request,
guideline or directive (whether or not having the force of law but if not having
the force of law, then being one with which the relevant party would customarily
comply) of any Governmental Authority made or issued after the Closing Date.
"Charges" shall have the meaning assigned to such term in
Section 9.09.
"Closing Agreement" shall mean the Closing Agreement, dated as of
October 29, 2004, by and among FRC, the Domestic Borrower, on behalf of itself
and the other buyers set forth on Exhibit A to the Acquisition Agreement, and
the Seller, on behalf of itself and the other sellers set forth on Exhibit A to
the Acquisition Agreement.
"Closing Date" shall mean October 29, 2004, and "Closing" shall mean
the making of the initial Loans on the Closing Date hereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document and shall also include the Mortgaged Properties.
"Collateral Agent" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Collateral Agreements" shall mean the Domestic Collateral
Agreement, the UK Collateral Agreement, the French Collateral Agreement and the
Foreign Collateral Agreement.
11
"Collateral and Guarantee Requirement" shall mean the requirement
that:
(a) on the Closing Date, the Collateral Agent shall have received
(i) from Holdings, the Domestic Borrower and each Domestic Subsidiary Loan
Party a counterpart of the Domestic Collateral Agreement duly executed and
delivered on behalf of such Person, (ii) from the Domestic Borrower a
counterpart of the UK Share Charge duly executed and delivered on behalf
of such Person together with share certificates and related stamped,
executed in blank stock transfer forms, (iii) from the UK Borrower a
counterpart of the UK Debenture duly executed and delivered on behalf of
such Person together with (or to be received by the Collateral Agent
promptly after the Closing Date) share certificates and related stamped,
executed in blank stock transfer forms, (iv) from the Domestic Borrower a
counterpart of the French Equity Pledge Agreement and the French Debt
Pledge Agreement, each duly executed and delivered on behalf of such
Person, (v) from the French Borrower, a counterpart of the French Equity
Pledge Agreement and the Foreign Guarantee, in each case, duly executed
and delivered on behalf of such Person and (vi) from the UK Borrower, a
counterpart of the Foreign Guarantee duly executed and delivered on behalf
of such Person.
(b) (i) within thirty (30) days after the Closing Date, the
Collateral Agent shall have received from each UK Subsidiary Loan Party a
counterpart of the UK Debenture and the Foreign Guarantee, each duly
executed and delivered on behalf of such Person; provided that any UK
Subsidiary Loan Party shall only guarantee the UK Obligations, and (ii) on
or prior to any date on which Revolving Facility Loans are made to the
French Borrower, from each French Subsidiary Loan Party a counterpart of
the Foreign Guarantee and the Foreign Collateral Agreement, each duly
executed and delivered on behalf of such Person; provided that any French
Subsidiary Loan Party shall only guarantee the French Subsidiary
Obligations.
(c) on the Closing Date, the Collateral Agent shall have received or
shall otherwise have received a pledge over all the issued and outstanding
Equity Interests of (i) the Borrowers, (ii) each Subsidiary Loan Party
directly owned on the Closing Date by any Loan Party and (iii) any other
Material Subsidiary directly owned on the Closing Date by any Loan Party,
except, in each case, to the extent that a pledge of such Equity Interests
is not permitted under Section 9.23; and the Collateral Agent shall have
received all certificates or other instruments (if any) representing such
Equity Interests, together with stock powers or other instruments of
transfer with respect thereto endorsed in blank; provided that Equity
Interests of the Material Subsidiaries listed on Schedule 1.01(d) shall be
pledged within 60 days after the Closing Date;
(d) in the case of any Person that becomes a Subsidiary Loan Party
after the Closing Date, the Collateral Agent shall have received (A) in
the case of a Domestic Subsidiary Loan Party, a supplement to the Domestic
Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such Domestic Subsidiary Loan Party, (B) in the
case of a UK Subsidiary Loan Party, a supplement to the UK Debenture and
the Foreign Guarantee, in the form specified therein, duly executed and
delivered on behalf of such UK Subsidiary Loan Party; provided that any UK
Subsidiary Loan Party shall only guarantee the UK Obligations, (C) in the
case of a French
12
Subsidiary Loan Party, a Foreign Collateral Agreement, in the form
specified therein, duly executed and delivered on behalf of such French
Subsidiary Loan Party and a Foreign Guarantee; provided that any French
Subsidiary Loan Party shall only guarantee the French Subsidiary
Obligations and (D) in the case of any other Foreign Subsidiary Loan
Party, a Foreign Guarantee and a Foreign Collateral Agreement, duly
executed and delivered on behalf of such Foreign Subsidiary Loan Party;
provided, in each case, that any Foreign Subsidiary Loan Party shall only
guarantee or support Obligations or pledge assets to the extent permitted
under Section 9.23; provided further, in each case, that if any Subsidiary
Loan Party owns Equity Interests of a Material Subsidiary which is a
Foreign Subsidiary, such Equity Interests may be pledged in lieu of the
foregoing pursuant to a foreign pledge agreement, duly executed and
delivered on behalf of such Subsidiary Loan Party;
(e) after the Closing Date and within the time period set forth in
Section 5.10(c), all the outstanding Equity Interests directly owned by a
Loan Party of any Person that becomes (i) a Subsidiary Loan Party or (ii)
a Material Subsidiary after the Closing Date, shall have been pledged
pursuant to the applicable Collateral Agreement, as applicable to the
extent permitted under Section 9.23, and the Collateral Agent shall have
received all certificates or other instruments (if any) representing such
Equity Interests, together with stock powers or other instruments of
transfer with respect thereto endorsed in blank or shall have otherwise
received a pledge over such Equity Interests;
(f) all Indebtedness of Holdings, any Borrower and each other
Subsidiary having an aggregate principal amount in excess of U.S.$10.0
million (other than intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management
operations of Holdings and the Subsidiaries) that is owing to any Loan
Party shall be evidenced by a promissory note or an instrument and shall
have been pledged pursuant to the applicable Collateral Agreement, and the
Collateral Agent shall have received all such promissory notes or
instruments, together with note powers or other instruments of transfer
with respect thereto endorsed in blank;
(g) all documents and instruments, including UCC financing
statements, required by law or reasonably requested by the Collateral
Agent to be filed, registered or recorded to create the Liens intended to
be created by the Security Documents (in each case, including any
supplements thereto) and perfect such Liens to the extent required by, and
with the priority required by, the Security Documents, shall have been
filed, registered or recorded or delivered to the Collateral Agent for
filing, registration or the recording concurrently with, or promptly
following, the execution and delivery of each such Security Document;
(h) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and
delivery of all Security Documents (or supplements thereto) to which it is
a party and the granting by it of the Liens thereunder and the performance
of its obligations thereunder; and
13
(i) the Collateral Agent shall receive from the applicable Loan
Parties the following documents and instruments relating to Material Real
Property located in the United States that constitutes Collateral on the
dates specified below:
(i) with respect to each Material Real Property located in the
United States, within 90 days following the Closing Date, in the
case of such Material Real Property, and on the date specified in
Section 5.10, in the case of such after-acquired Material Real
Property, a Mortgage duly authorized and executed, in form for
recording in the recording office of each jurisdiction where such
Material Real Property or such after-acquired Material Real Property
to be encumbered thereby is situated, in favor of the Collateral
Agent, for its benefit and the benefit of the Secured Parties,
together with such other instruments as shall be necessary or
appropriate (in the reasonable judgment of the Collateral Agent) to
create a Lien under applicable law, all of which shall be in form
and substance reasonably satisfactory to Collateral Agent, which
Mortgage and other instruments shall be effective to create and/or
maintain a first priority Lien on such Material Real Property or
such after-acquired Material Real Property, as the case may be,
subject to no Liens other than Prior Liens and Permitted
Encumbrances applicable to such Material Real Property or such
after-acquired Material Real Property, as the case may be;
(ii) within 90 days following the Closing Date, with respect
to each Material Real Property located in the United States,
policies or certificates of insurance of the type required by
Section 5.02;
(iii) within 90 days following the Closing Date, with respect
to each Material Real Property located in the United States, UCC,
judgment and tax Lien searches (in each case to the extent the same
exists in the relevant jurisdiction) in form and substance
satisfactory to Administrative Agent;
(iv) within 90 days following the Closing Date, evidence
acceptable to Administrative Agent of payment by Borrower of all
title insurance premiums, search and examination charges, mortgage,
filing and recording taxes, fees and related charges required for
the recording of the Mortgages and issuance of the title insurance
policies referred to in clause (vi) below;
(v) within 90 days following the Closing Date, with respect to
(a) each Material Real Property located in the United States, a
fully paid policy of title insurance (or marked up commitment having
the same effect of a title insurance policy) or a binding commitment
from the Title Company to issue such title insurance each in the
form approved by the Administrative Agent insuring the Lien of the
Mortgage encumbering such Material Real Property as a valid first
priority Lien (subject to this paragraph (v)) on the Material Real
Property and fixtures described therein. Each policy of title
insurance (or marked up commitment having the same effect of a title
insurance policy) shall be in an amount reasonably satisfactory to
the Administrative Agent and shall (a) be issued by the Title
Company, (b) include such coinsurance and reinsurance
14
arrangements (with provisions for direct access) as shall be
reasonably acceptable to Administrative Agent, (c) have been
supplemented by such endorsements or affirmative insurance (or,
where such endorsements are not available, opinions of special
counsel or other professionals reasonably acceptable to
Administrative Agent) as shall be reasonably requested by
Administrative Agent and shall be available in the applicable
jurisdiction at commercially reasonable rates (including, without
limitation, endorsements on matters relating to usury, first loss,
last dollar, zoning (or PZR report), revolving credit, doing
business, variable rate, address, separate tax lot, subdivision, tie
in or cluster, deletion of the creditors' rights exclusion,
contiguity, road access and so-called comprehensive coverage over
covenants and restrictions), (d) include such affidavits and
instruments of indemnifications by Borrower and the applicable
Subsidiary as shall be reasonably required to induce the Title
Company to issue the policy or policies (or commitment) and
endorsements contemplated in this paragraph and (e) contain no
exceptions to title other than exceptions for Prior Liens, Permitted
Encumbrances and other exceptions reasonably acceptable to
Administrative Agent. With respect to the legal descriptions
attached to the Mortgages encumbering the Material Real Properties
insured by the policies of title insurance described by this clause
(v), in the event the Administrative Agent determines that any
Mortgage does not include all of the real property which is owned by
Borrower or a Material Subsidiary at that particular site, then upon
written notice of the Administrative Agent, Borrower or its Material
Subsidiary shall execute and deliver (at the sole cost and expense
of Borrower) all necessary documentation, including without
limitation an amendment to the applicable Mortgage, to cause the
unencumbered portion of said real property to be included in such
Mortgage;
(vi) within 90 days following the Closing Date, American Land
Title Association/American Congress of Surveying and Mapping form
surveys for each Material Real Property for which all necessary fees
(where applicable) have been paid, and dated a date reasonably
acceptable to the Administrative Agent, certified to the Collateral
Agent and the issuer of the title insurance policies in a manner
satisfactory to the Administrative Agent by a land surveyor duly
registered and licensed in the states in which the property
described in such surveys is located and acceptable to the
Administrative Agent, showing all buildings and other improvements,
any off-site improvements, the location of any easements, parking
spaces, rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other than
encroachments and other defects acceptable to the Administrative
Agent; and
(vii) within 90 days following the Closing Date, with respect
to each Material Real Property located in the United States, all
such other items as shall be reasonably necessary in the opinion of
counsel to the Lenders to create a valid and perfected first
priority mortgage Lien on such Material Real Property subject only
to Permitted Encumbrances and Prior Liens. Without limiting the
generality of the foregoing, the Administrative Agent shall have
received, on behalf of itself,
15
the Collateral Agent, the Lenders and each Issuing Bank within 90
days following the Closing Date, opinions of local counsel for the
Loan Parties in states in which the Real Properties are located,
with respect to the enforceability and validity of the Mortgages and
any related fixture filings in form and substance reasonably
satisfactory to the Administrative Agent.
(j) the Collateral Agent shall receive from the applicable Loan
Parties documents and instruments relating to Material Real Property
located outside the United States that constitutes Collateral that are
customarily provided under the applicable law of the jurisdiction in which
such Material Real Property is located to create a valid and perfected
Lien on such Material Real Property under the applicable law of the
jurisdiction in which such Material Real Property is located; provided
that such Material Real Property shall only be pledged to the extent
permitted under Section 9.23, and provided further that the Administrative
Agent may, in its good faith discretion, consent to a waiver of the pledge
of such Material Real Property. With respect to Material Real Property
located outside the United States that constitutes Collateral, such
documents and instruments shall be provided within 90 days after the
Closing Date and with respect to each after-acquired Material Real
Property located outside the United States that constitutes Collateral,
such documents and instruments shall be provided within 90 days after the
acquisition of such Material Real Property.
(k) With respect to each of the items identified in this definition
of "Collateral and Guarantee Requirement" that are required to be
delivered on a date after the Closing Date, the Administrative Agent, in
each case, may (in its sole discretion) extend such date on two separate
occasions by up to 30 days on each such occasion.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.12(a).
"Commitments" shall mean (a) with respect to any Lender, such
Lender's Revolving Facility Commitment, and Tranche B Dollar Term Loan
Commitment and Tranche B Euro Term Loan Commitment and (b) with respect to any
Swingline Lender, its Swingline Commitment, as applicable.
"Communications" shall have the meaning assigned to such term in
Section 9.17.
"Companies Act" shall mean the Companies Act 1985 of England and
Wales (as amended).
"Consolidated Debt" at any date shall mean (without duplication) all
Indebtedness consisting of Capital Lease Obligations, Indebtedness for borrowed
money (other than letters of credit to the extent undrawn) and Indebtedness in
respect of the deferred purchase price of property or services of the Domestic
Borrower and its Subsidiaries determined on a consolidated basis on such date
plus (ii) any Receivables Net Investment.
"Consolidated Net Debt" at any date shall mean Consolidated Debt of
the Domestic Borrower and its Subsidiaries determined on a consolidated basis on
such date minus cash and Permitted Investments of Holdings and its Subsidiaries
on such date.
16
"Consolidated Net Income" shall mean, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its subsidiaries
for such period, on a consolidated basis; provided, however, that
(i) any net after-tax extraordinary, unusual or nonrecurring gains
or losses (less all fees and expenses related thereto) or income or
expenses or charges (including, without limitation, (A) income and
expenses from the New York state grant, SFAS 106 expense, pension expense,
excess corporate and tax department allocations from Ingersoll-Rand,
casualty losses, severance expenses, relocation expenses, other
restructuring expenses, special provisions to increase the OSMI reserve,
and losses on contracts in Nigeria, in each case, incurred prior to
January 1, 2006 and to the extent identified in the projections set forth
in the Information Memorandum and (B) any severance, relocation and other
restructuring expenses and fees, expenses or charges related to any
offering of Equity Interests of such Person, any Investment, acquisition
or Indebtedness permitted to be incurred hereunder (in each case, whether
or not successful), including all fees, expenses, charges and change in
control payments related to the Transactions), in each case, shall be
excluded; provided, that with respect to each nonrecurring item, the
Domestic Borrower shall have delivered to the Administrative Agent an
officers' certificate specifying and quantifying such item and stating
that such item is a nonrecurring item,
(ii) any net after-tax income or loss from discontinued operations
and any net after-tax gain or loss on disposal of discontinued operations
shall be excluded,
(iii) any net after-tax gain or loss (less all fees and expenses or
charges relating thereto) attributable to business dispositions or asset
dispositions other than in the ordinary course of business (as determined
in good faith by the Board of Directors of the Domestic Borrower) shall be
excluded,
(iv) any net after-tax income or loss (less all fees and expenses or
charges relating thereto) attributable to the early extinguishment of
indebtedness (including obligations under Swap Agreements) shall be
excluded,
(v) (A) the Net Income for such period of any Person that is not a
subsidiary of such Person, or that is accounted for by the equity method
of accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments paid in cash (or to the
extent converted into cash) to the referent Person or a subsidiary thereof
in respect of such period and (B) the Net Income for such period shall
include any dividend, distribution or other payment in respect of equity
paid in cash by such Person in excess of the amounts included in clause
(A),
(vi) the Net Income for such period of any subsidiary (that is not a
Loan Party) of such Person shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by such
subsidiary of its Net Income is not at the date of determination permitted
without any prior governmental approval (which has not been obtained) or,
directly or indirectly, by the operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule, or
governmental regulation
17
applicable to that subsidiary or its stockholders or members, unless such
restriction with respect to the payment of dividends or in similar
distributions has been legally waived (provided that the net loss of any
such subsidiary shall be included to the extent funds are disbursed by
such Person or any other subsidiary of such Person in respect of such loss
and that Consolidated Net Income of such Person shall be increased by the
amount of dividends or distributions or other payments that are actually
paid in cash (or to the extent converted into cash) by such subsidiary to
the Domestic Borrower or another Subsidiary in respect of such period to
the extent not already included therein),
(vii) Consolidated Net Income for such period shall not include the
cumulative effect of a change in accounting principles during such period,
(viii) any noncash charges from the application of the purchase
method of accounting in connection with the Transactions or any future
acquisition, to the extent such charges are deducted in computing such
Consolidated Net Income shall be excluded,
(ix) accruals and reserves that are established within twelve months
after the Closing Date and that are so required to be established in
accordance with GAAP shall be excluded,
(x) any non-cash impairment charges resulting from the application
of Statements of Financial Accounting Standards No. 142 and No. 144 and
the amortization of intangibles pursuant to Statement of Financial
Accounting Standards No. 141 shall be excluded, and
(xi) any long-term incentive plan accruals and any non-cash
compensation expense realized from grants of stock appreciation or similar
rights, stock options or other rights to officers, directors and employees
of such Person or any of its subsidiaries shall be excluded.
"Consolidated Total Assets" shall mean, as of any date, the total
assets of the Domestic Borrower and the consolidated Subsidiaries, determined in
accordance with GAAP, in each case as set forth on the consolidated balance
sheet of the Domestic Borrower as of such date.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Co-Syndication Agent" shall have the meaning assigned to such term
in the introductory paragraph of this Agreement.
"Credit Agreement Supplement" has the meaning specified in
Section 2.23.
"Credit Event" shall have the meaning assigned to such term in
Article IV.
18
"Cumulative Retained Excess Cash Flow Amount" shall mean, at any
date, an amount, not less than zero, determined on a cumulative basis equal to
the amount of Excess Cash Flow for all Excess Cash Flow Periods ending after the
Closing Date that is not (and, in the case of any Excess Cash Flow Period where
the respective required date of prepayment has not yet occurred pursuant to
Section 2.11(d), will not on such date of required prepayment be) required to be
applied in accordance with Section 2.11(d).
"Cure Amount" shall have the meaning assigned to such term in
Section 7.03(a).
"Cure Right" shall have the meaning assigned to such term in
Section 7.03(a).
"Current Assets" shall mean, with respect to the Domestic Borrower
and its Subsidiaries on a consolidated basis at any date of determination, the
sum of (a) all assets (other than cash and Permitted Investments or other cash
equivalents) that would, in accordance with GAAP, be classified on a
consolidated balance sheet of the Domestic Borrower and its Subsidiaries as
current assets at such date of determination, other than amounts related to
current or deferred Taxes based on income or profits, and (b) in the event that
a Permitted Receivables Financing is accounted for off-balance sheet, (x) gross
accounts receivable comprising part of the Receivables Assets subject to such
Permitted Receivables Financing less (y) collections against the amounts sold
pursuant to clause (x).
"Current Liabilities" shall mean, with respect to the Domestic
Borrower and its Subsidiaries on a consolidated basis at any date of
determination, all liabilities that would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Domestic Borrower and its
Subsidiaries as current liabilities at such date of determination, other than
(a) the current portion of any debt or Capital Lease Obligations, (b) accruals
of Interest Expense (excluding Interest Expense that is due and unpaid), (c)
accruals for current or deferred Taxes based on income or profits, (d) accruals,
if any, of transaction costs resulting from the Transactions, (e) accruals of
any costs or expenses related to (i) severance or termination of employees prior
to the Closing Date or (ii) bonuses, pension and other post-retirement benefit
obligations, and (f) accruals for add-backs to EBITDA included in clauses
(a)(iv) through (a)(ix) of the definition of such term.
"Debt Service" shall mean, with respect to the Domestic Borrower and
its Subsidiaries on a consolidated basis for any period, Cash Interest Expense
for such period plus scheduled principal amortization of Consolidated Debt for
such period.
"Default" shall mean any event or condition that upon notice, lapse
of time or both would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Borrower" shall have the meaning assigned to such term in
the introductory paragraph to this Agreement.
19
"Domestic Collateral Agreement" shall mean the Guarantee and
Collateral Agreement, as amended, supplemented or otherwise modified from time
to time, substantially in the form of Exhibit E-1, among Holdings, the Domestic
Borrower, each Domestic Subsidiary Loan Party and the Collateral Agent.
"Domestic Loan Parties" shall mean Holdings, the Domestic Borrower
and each Domestic Subsidiary Loan Party.
"Domestic Subsidiary" shall mean each Subsidiary that is not a
Foreign Subsidiary.
"Domestic Subsidiary Loan Party" shall mean each direct Wholly Owned
Subsidiary of Holdings that (a) is (i) a Domestic Subsidiary and (ii) a Material
Subsidiary, and (b) is not (i) a Special Purpose Receivables Subsidiary, (ii)
listed on Schedule 1.01(a), or (iii) a Subsidiary whose guarantee of the
Obligations is prohibited under Section 9.23.
"EBITDA" shall mean, with respect to the Domestic Borrower and its
Subsidiaries on a consolidated basis for any period, the Consolidated Net Income
of the Domestic Borrower and its Subsidiaries for such period plus (a) the sum
of (in each case without duplication and to the extent the respective amounts
described in subclauses (i) through (viii) of this clause (a) reduced such
Consolidated Net Income for the respective period for which EBITDA is being
determined):
(i) provision for Taxes based on income, profits or capital of the
Domestic Borrower and its Subsidiaries for such period to the extent that
such provision for taxes was deducted in calculating Consolidated Net
Income),
(ii) Interest Expense of the Domestic Borrower and its Subsidiaries
for such period (net of interest income of the Domestic Borrower and its
Subsidiaries for such period),
(iii) depreciation, amortization (including amortization of
intangibles, deferred financing fees and any amortization expense included
in pension, OPEB or other employee benefit expenses) and other non-cash
expenses (including, without limitation write-downs and impairment of
property, plant, equipment and intangibles and other long-lived assets and
the impact of purchase accounting on the Domestic Borrower and its
Subsidiaries for such period,
(iv) the amount of any restructuring charges (which, for the
avoidance of doubt, shall include retention, severance, systems
establishment cost or excess pension, other post-employment benefits,
curtailment or other excess charges); provided that with respect to each
such restructuring charge, the Domestic Borrower shall have delivered to
the Administrative Agent an officers' certificate specifying and
quantifying such expense or charge and stating that such expense or charge
is a restructuring charge,
(v) equity earnings losses in Affiliates unless funds have been
disbursed to such Affiliates by the Domestic Borrower or any Subsidiary of
the Domestic Borrower,
20
(vi) other non-operating expenses,
(vii) the minority interest expense consisting of subsidiary income
attributable to minority equity interests of third parties in any
non-Wholly Owned Subsidiary in such period or any prior period, except to
the extent of dividends declared or paid on Equity Interests held by third
parties, and
(viii) accretion of asset retirement obligations in accordance with
SFAS No. 143, Accounting for Asset Retirement Obligations, and any similar
accounting in prior periods;
minus (b) the sum of (in each case without duplication and to the extent the
respective amounts described in subclause (i) of this clause (b) increased such
Consolidated Net Income for the respective period for which EBITDA is being
determined):
(i) noncash items increasing Consolidated Net Income of the Domestic
Borrower and its Subsidiaries for such period (but excluding any such
items which represent the reversal in such period of any accrual of, or
cash reserve for, anticipated cash charges in any prior period where such
accrual or reserve is no longer required).
For purposes of determining EBITDA under this Agreement, EBITDA will
be deemed to be U.S.$25,456,000 for the three months ended March 31, 2004,
U.S.$59,451,000 for the six months ended June 30, 2004, U.S.$98,388,000 for the
nine months ended September 30, 2004.
"EMU" shall mean the Economic and Monetary Union as contemplated by
the Treaty on European Union.
"Environment" shall mean ambient and indoor air, surface water and
groundwater (including potable water, navigable water and wetlands), the land
surface or subsurface strata or sediment, natural resources such as flora and
fauna, the workplace or as otherwise defined in any Environmental Law.
"Environmental Claim" shall mean any and all actions, suits,
demands, demand letters, claims, liens, notices of non-compliance or violation,
notices of liability or potential liability, investigations, proceedings,
consent orders or consent agreements relating in any way to any Environmental
Law or any Hazardous Material.
"Environmental Law" shall mean, collectively, all federal, state,
local or foreign laws, including common law, ordinances, regulations, rules,
codes, orders, judgments or other requirements or rules of law that relate to
(a) the prevention, abatement or elimination of pollution, or the protection of
the Environment, natural resources or human health, or natural resource damages,
and (b) the use, generation, handling, treatment, storage, disposal, Release,
transportation or regulation of or exposure to Hazardous Materials, including
the Comprehensive Environmental Response Compensation and Liability Act, 42
U.S.C. Sections 9601 et seq., the Endangered Species Act, 16 U.S.C. Sections
1531 et seq., the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq., the Clean Air
Act, 42 U.S.C. Sections 7401 et seq., the Clean Water Act, 33 U.S.C. Sections
1251 et seq., the Toxic Substances
21
Control Act, 15 U.S.C. Sections 2601 et seq., the Emergency Planning and
Community Right to Know Act, 42 U.S.C. Sections 11001 et seq., each as amended,
and their foreign, state or local counterparts or equivalents.
"Equity Commitment Letters" shall mean the letter agreement among
First Reserve Fund IX, L.P., First Reserve Fund X, L.P. and FRC, dated as of
August 25, 2004, which collectively provide for the contribution of the Equity
Financing to FRC by the Funds.
"Equity Financing" shall have the meaning assigned to such term in
the third recital hereto.
"Equity Interests" of any Person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such Person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest.
"Equivalent" in Dollars of any Foreign Currency on any date shall
mean the equivalent in Dollars of such Foreign Currency determined by using the
quoted spot rate at which the Sub-Agent's principal office in London offers to
exchange Dollars for such Foreign Currency in London prior to 4:00 p.m. (London
time) (unless otherwise indicated by the terms of this Agreement) on such date
as is required pursuant to the terms of this Agreement, and the "Equivalent" in
any Foreign Currency of Dollars shall mean the equivalent in such Foreign
Currency of Dollars determined by using the quoted spot rate at which the
Sub-Agent's principal office in London offers to exchange such Foreign Currency
for Dollars in London prior to 4:00 p.m. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required pursuant
to the terms of this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with Holdings, any Borrower or any other
Subsidiary, is treated as a single employer under Section 414(b) or (c) of the
Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any Reportable Event; (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan, the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan; (d) the incurrence by Holdings, the
Domestic Borrower, any other Subsidiary or any ERISA Affiliate of any liability
under Title IV of ERISA; (e) the receipt by Holdings, any Borrower, any other
Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or to appoint a trustee to
administer any Plan under Section 4042 of ERISA, or the occurrence of any event
or
22
condition which could be reasonably be expected to constitute grounds under
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan; (f) the incurrence by Holdings, any Borrower, any other Subsidiary or any
ERISA Affiliate of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; (g) the receipt by Holdings, any
Borrower, any other Subsidiary or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from Holdings, any Borrower, a Subsidiary or
any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA; or (h)
the occurrence of a nonexempt prohibited transaction (within the meaning of
Section 4975 of the Code or Section 406 of ERISA) which could reasonably be
expected to result in liability to Holdings, any Borrower or any other
Subsidiary.
"EURIBO Rate" means, in relation to any Loan in Euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of
that Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Administrative Agent at the
request quoted by Citibank International, N.A. to leading banks in
the European interbank market,
as of 11:00 am London time on the Quotation Day for the offering of deposits in
Euro for a period comparable to the Interest Period of the relevant Loan.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Eurocurrency Term Loan or
Eurocurrency Revolving Loan.
"Eurocurrency Revolving Facility Borrowing" shall mean a Borrowing
comprised of Eurocurrency Revolving Loans.
"Eurocurrency Revolving Loan" shall mean any Revolving Facility Loan
denominated in Dollars or a Foreign Currency bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Eurocurrency Term Loan" shall mean any Term Loan bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in accordance with
the provisions of Article II.
"Euros" shall mean the single currency unit of the member states of
the European Community that adopt or have adopted that currency unit as its
lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union.
"Event of Default" shall have the meaning assigned to such term in
Section 7.01.
23
"Excess Cash Flow" shall mean, with respect to the Domestic Borrower
and its Subsidiaries on a consolidated basis for any Excess Cash Flow Period,
EBITDA of the Domestic Borrower and its Subsidiaries on a consolidated basis for
such Excess Cash Flow Period, minus, without duplication,
(a) Debt Service for such Excess Cash Flow Period,
(b) (i) any voluntary prepayments of Term Loans during such Excess
Cash Flow Period, (ii) any permanent voluntary reductions during such
Excess Cash Flow Period of Revolving Facility Commitments to the extent
that an equal amount of Revolving Facility Loans was simultaneously repaid
and (iii) any voluntary prepayment permitted hereunder of term
Indebtedness during such Excess Cash Flow Period to the extent not
financed, or intended to be financed, using the proceeds of the incurrence
of Indebtedness or the issuance of Equity Interests, so long as the amount
of such prepayment is not already reflected in Debt Service,
(c) (i) Capital Expenditures by the Domestic Borrower and its
Subsidiaries on a consolidated basis during such Excess Cash Flow Period
(excluding Capital Expenditures made in such Excess Cash Flow Period where
a certificate in the form contemplated by the following clause (d) was
previously delivered) that are paid in cash, and (ii) the aggregate
consideration paid in cash during such Excess Cash Flow Period in respect
of Permitted Business Acquisitions and other Investments permitted
hereunder (less any amounts received in respect thereof as a return of
capital),
(d) Capital Expenditures that the Domestic Borrower or any
Subsidiary shall, during such Excess Cash Flow Period, become obligated to
make but that are not made during such Excess Cash Flow Period, provided
that the Domestic Borrower shall deliver a certificate to the
Administrative Agent not later than 90 days after the end of such Excess
Cash Flow Period, signed by a Responsible Officer of the Domestic Borrower
and certifying that such Capital Expenditures and the delivery of the
related equipment will be made in the following Excess Cash Flow Period,
(e) Taxes paid in cash by the Domestic Borrower and its Subsidiaries
on a consolidated basis during such Excess Cash Flow Period or that will
be paid within six months after the close of such Excess Cash Flow Period
(provided that any amount so deducted that will be paid after the close of
such Excess Cash Flow Period shall not be deducted again in a subsequent
Excess Cash Flow Period) and for which reserves have been established,
including income tax expense and withholding tax expense incurred in
connection with cross-border transactions involving the Foreign
Subsidiaries,
(f) an amount equal to any increase in Working Capital of the
Domestic Borrower and its Subsidiaries for such Excess Cash Flow Period,
(g) cash expenditures made in respect of Swap Agreements during such
Excess Cash Flow Period, to the extent not reflected in the computation of
EBITDA or Interest Expense,
24
(h) permitted dividends or distributions or repurchases of its
Equity Interests paid in cash by the Domestic Borrower during such Excess
Cash Flow Period and permitted dividends paid by any Borrower or by any
Subsidiary to any Person other than Holdings, any Borrower or any of the
Subsidiaries during such Excess Cash Flow Period, in each case in
accordance with Section 6.06,
(i) amounts paid in cash during such Excess Cash Flow Period on
account of (x) items that were accounted for as noncash reductions of Net
Income in determining Consolidated Net Income or as noncash reductions of
Consolidated Net Income in determining EBITDA of the Domestic Borrower and
its Subsidiaries in a prior Excess Cash Flow Period and (y) reserves or
accruals established in purchase accounting,
(j) to the extent not deducted in the computation of Net Proceeds in
respect of any asset disposition or condemnation giving rise thereto, the
amount of any mandatory prepayment of Indebtedness (other than
Indebtedness created hereunder or under any other Loan Document), together
with any interest, premium or penalties required to be paid (and actually
paid) in connection therewith,
(k) the amount related to items that were added to or not deducted
from Net Income in calculating Consolidated Net Income or were added to or
not deducted from Consolidated Net Income in calculating EBITDA to the
extent such items represented a cash payment (which had not reduced Excess
Cash Flow upon the accrual thereof in a prior Excess Cash Flow Period), or
an accrual for a cash payment, by the Domestic Borrower and its
Subsidiaries or did not represent cash received by the Domestic Borrower
and its Subsidiaries, in each case on a consolidated basis during such
Excess Cash Flow Period,
plus, without duplication,
(l) an amount equal to any decrease in Working Capital for such
Excess Cash Flow Period,
(m) all proceeds received during such Excess Cash Flow Period of
Capital Lease Obligations, purchase money Indebtedness, Sale and
Lease-Back Transactions pursuant to Section 6.03 and any other
Indebtedness, in each case to the extent used to finance any Capital
Expenditure (other than Indebtedness under this Agreement to the extent
there is no corresponding deduction to Excess Cash Flow above in respect
of the use of such Borrowings),
(n) all amounts referred to in clause (c) above to the extent funded
with the proceeds of the issuance of Equity Interests of, or capital
contributions to, the Domestic Borrower after the Closing Date (to the
extent not previously used to prepay Indebtedness (other than Revolving
Facility Loans or Swingline Loans), made in any investment or capital
expenditure or otherwise for any purpose resulting in a deduction to
Excess Cash Flow in any prior Excess Cash Flow Period) or any amount that
would have constituted Net Proceeds under clause (a) of the definition of
the term "Net Proceeds" if not so spent,
25
in each case to the extent there is a corresponding deduction from Excess
Cash Flow above,
(o) to the extent any permitted Capital Expenditures and the
corresponding delivery of equipment referred to in clause (d) above do not
occur in the Excess Cash Flow Period of the Domestic Borrower specified in
the certificate of the Domestic Borrower provided pursuant to clause (d)
above, the amount of such Capital Expenditures that were not so made in
the Excess Cash Flow Period of the Domestic Borrower specified in such
certificates,
(p) cash payments received in respect of Swap Agreements during such
Excess Cash Flow Period to the extent (i) not included in the computation
of EBITDA or (ii) such payments do not reduce Cash Interest Expense,
(q) any extraordinary or nonrecurring gain realized in cash during
such Excess Cash Flow Period (except to the extent such gain consists of
Net Proceeds subject to Section 2.11(c)),
(r) to the extent deducted in the computation of EBITDA, cash
interest income, and
(s) the amount related to items that were deducted from or not added
to Net Income in connection with calculating Consolidated Net Income or
were deducted from or not added to Consolidated Net Income in calculating
EBITDA to the extent either (x) such items represented cash received by
the Domestic Borrower or any Subsidiary thereof or (y) does not represent
cash paid by the Domestic Borrower or any Subsidiary thereof, in each case
on a consolidated basis during such Excess Cash Flow Period.
"Excess Cash Flow Period" shall mean (i) the period taken as one
accounting period beginning on January 1, 2005 and ending on December 31, 2005,
and (ii) each fiscal year of the Domestic Borrower ended thereafter.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Indebtedness" shall mean all Indebtedness permitted to be
incurred under Section 6.01 (other than Sections 6.01(o) and (r)).
"Excluded Taxes" shall mean, with respect to any Agent, any Lender,
any Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of any Loan Party hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income or net profits by the United
States of America or by the jurisdiction under the laws of which such recipient
is organized or in which its principal office (or other fixed place of business)
is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits tax or any similar tax that is imposed by any
jurisdiction described in clause (a) above and (c) other than in the case of an
assignee pursuant to a request by such Loan Party under Section 2.19(b), any
withholding tax imposed by the United States or by the jurisdiction under the
laws of which such Loan Party is organized or in which its principal office (or
other fixed place of business) is located that is in effect and would apply to
amounts payable hereunder to such
26
Lender or other recipient at the time such Lender or other recipient becomes a
party to any Loan Document (or designates a new lending office), except to the
extent that such Lender or other recipient (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from a Loan Party with respect to such withholding
tax pursuant to Section 2.17(a) or Section 2.17(c), and (d) any withholding
taxes attributable to such Lender's or such other recipient's failure (other
than as a result of a Change in Law) to comply with Section 2.17(e); provided,
however, that the term "Excluded Taxes" shall not include any taxes that are
imposed or otherwise due as a result of any action undertaken by one or more of
such Agent, Lender or Issuing Bank to collect funds due hereunder or under any
other Loan Document or enforce or exercise its rights or pursue any remedy
provided hereunder or under any other Loan Document.
"Facility" shall mean the respective facility and commitments
utilized in making Loans and credit extensions hereunder, it being understood
that as of the date of this Agreement there are three Facilities, i.e., the
Tranche B Dollar Facility, Tranche B Euro Facility and the Revolving Facility.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upward, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average (rounded upward, if
necessary, to the next 1/100 of 1%) of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" shall mean that certain Fee Letter dated August 25,
2004 by and among FRC, the Administrative Agent, the Joint Lead Arrangers and
UBS Loan Finance LLC.
"Fees" shall mean the Commitment Fees, the L/C Participation Fees,
the Issuing Bank Fees and the Administrative Agent Fees.
"Financial Officer" of any Person shall mean the Chief Financial
Officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such Person.
"Financial Performance Covenants" shall mean the covenants of
Holdings set forth in Sections 6.11 and 6.12.
"Flow Through Entity" shall mean an entity that is treated as a
partnership not taxable as a corporation, a grantor trust or a disregarded
entity for United States federal income tax purposes or subject to treatment on
a comparable basis for purposes of state, local or foreign tax law.
"Foreign Borrower" shall mean, collectively, the Initial Foreign
Borrowers and each Additional Foreign Borrower.
"Foreign Collateral Agreement" shall mean with respect to any
Person, such collateral agreements and other agreements necessary under
applicable foreign law to grant to
27
the Collateral Agent a security interest in such assets of such Person of the
type identified in the Domestic Collateral Agreement; provided that no security
interest shall be granted on all or any portion of such assets if the Domestic
Borrower demonstrates to the Collateral Agent and the Collateral Agent
determines (in its reasonable discretion) that the cost of granting such
security interest exceeds the value of the security offered thereby.
"Foreign Currency" shall mean Euros and Sterling.
"Foreign Guarantee" shall mean, collectively, one or more guarantee
agreements, as amended, supplemented or otherwise modified from time to time,
each substantially in the form of Exhibit E-4 with such other modifications or
in such other form as may be necessary to comply with applicable foreign laws
and regulations and otherwise reasonably satisfactory to the Collateral Agent,
among the applicable Foreign Subsidiary Loan Party and the Collateral Agent.
"Foreign Lender" shall mean any Lender that is organized under the
laws of a jurisdiction other than the United States of America. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Loan Parties" shall mean each Foreign Borrower and each
Foreign Subsidiary Loan Party.
"Foreign Subsidiary" shall mean any Subsidiary that is incorporated
or organized under the laws of any jurisdiction other than the United States of
America, any State thereof or the District of Columbia and any Subsidiary of a
Foreign Subsidiary.
"Foreign Subsidiary Loan Party" shall mean, collectively, the UK
Subsidiary Loan Parties, the French Subsidiary Loan Parties and the Additional
Foreign Subsidiary Loan Parties.
"French Borrower" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"French Debt Pledge Agreement" shall mean, collectively, one or more
pledge agreements between the applicable French Loan Party and the Collateral
Agent, as amended, supplemented or otherwise modified from time to time,
substantially in the form of Exhibit E-3A or in such other form reasonably
satisfactory to the Collateral Agent and with such modifications related to the
applicable French Loan Party.
"French Equity Pledge Agreement" shall mean, collectively, one or
more equity pledge agreements between the applicable French Loan Party and the
Collateral Agent, as amended, supplemented or otherwise modified from time to
time, substantially in the form of Exhibit E-3B or in such other form reasonably
satisfactory to the Collateral Agent and with such modifications related to the
applicable French Loan Party.
"French Loan Party" shall mean the French Borrower and each French
Subsidiary Loan Party.
28
"French Obligations" shall mean all amounts owing to any of the
Agents or any Lender by any French Loan Party pursuant to the terms of this
Agreement or any other Loan Document.
"French Subsidiary Obligations" shall mean at any time, with respect
to any French Subsidiary Loan Party, the aggregate unpaid principal amount at
such time of the loan made by the French Borrower to such French Subsidiary Loan
Party from the proceeds of the Revolving Facility Loans made to the French
Borrower.
"French Subsidiary Loan Party" shall mean each direct Wholly Owned
Subsidiary of the French Borrower that (a) is (i) organized under the same
jurisdiction as the French Borrower, (ii) a Foreign Subsidiary and (iii) a
Material Subsidiary, and (b) is not (i) a Special Purpose Receivables
Subsidiary, (ii) listed on Schedule 1.01(a), or (iii) a Subsidiary whose
guarantee of the French Obligations is prohibited under Section 9.23; provided
that Dresser-Rand France shall not be a French Subsidiary Loan Party unless it
has satisfied the requirement set forth in clause (b)(ii) of the definition of
Collateral and Guarantee Requirement.
"Fund Affiliate" shall mean (i) each Affiliate of the Funds that is
neither a portfolio company nor a company controlled by a portfolio company and
(ii) each general partner of the Funds or any Fund Affiliate who is a partner or
employee of First Reserve Corporation.
"Funds" shall have the meaning assigned to such term in the first
recital hereto.
"GAAP" shall mean generally accepted accounting principles in effect
from time to time in the United States, applied on a consistent basis, subject
to the provisions of Section 1.02.
"Governmental Authority" shall mean any federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
or legislative body, including, without limitation, any agency of the European
Union or similar monetary or multinational authority.
"Guarantee" of or by any Person (the "guarantor") shall mean (a) any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay or
otherwise) or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment thereof, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness, (iv)
entered into for the purpose of assuring in any other manner the holders of such
Indebtedness of the payment thereof or to protect such holders against loss in
respect thereof (in whole or in part) or (v) as an account party in respect of
any
29
letter of credit or letter of guaranty issued to support such Indebtedness, or
(b) any Lien on any assets of the guarantor securing any Indebtedness (or any
existing right, contingent or otherwise, of the holder of Indebtedness to be
secured by such a Lien) of any other Person, whether or not such Indebtedness is
assumed by the guarantor; provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit, in either case in the ordinary
course of business, or customary and reasonable indemnity obligations in effect
on the Closing Date or entered into in connection with any acquisition or
disposition of assets permitted under this Agreement.
"Hazardous Materials" shall mean all pollutants, contaminants,
wastes, chemicals, materials, substances and constituents, including, without
limitation, explosive or radioactive substances or petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls or radon gas, of any nature, in each case subject to regulation or
which can give rise to liability under any Environmental Law.
"Holdings" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Holdings LLC Agreement" shall mean the operating agreement entered
into by Holdings on the Closing Date.
"Improvements" shall have the meaning assigned to such term in the
Mortgages.
"Increased Amount Date" shall have the meaning assigned to such term
in Section 2.21.
"Indebtedness" of any Person shall mean, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property or assets purchased by such Person, (d) all
obligations of such Person issued or assumed as the deferred purchase price of
property or services (other than trade liabilities and intercompany liabilities
incurred in the ordinary course of business and maturing within 365 days after
the incurrence thereof), (e) all Guarantees by such Person of Indebtedness of
others, (f) all Capital Lease Obligations of such Person, (g) all payments that
such Person would have to make in the event of an early termination, on the date
Indebtedness of such Person is being determined in respect of outstanding Swap
Agreements (such payments in respect of any Swap Agreement with a counterparty
being calculated net of amounts owing to such Person by such counterparty in
respect of other Swap Agreements), (h) the principal component of all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit (other than any letters of credit, bank guarantees
or similar instrument in respect of which a back-to-back letter of credit has
been issued under or permitted by this Credit Agreement) and (i) the principal
component of all obligations of such Person in respect of bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any partnership
in which such Person is a general partner, other than to the extent that the
instrument or agreement evidencing such Indebtedness expressly limits the
liability of such Person in respect thereof. To the extent not otherwise
included, Indebtedness shall include the amount of any Permitted Receivables
Financing.
30
"Indemnified Taxes" shall mean all Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning assigned to such term in Section
9.05(b).
"Information Memorandum" shall mean (a) the Confidential Information
Memorandum dated October, 2004, as modified or supplemented prior to the Closing
Date, and (b) the Offering Memorandum.
"Initial Foreign Borrowers" shall have the meaning assigned to it in
the recitals hereof.
"Installment Date" shall mean a Tranche B Dollar Installment Date
and a Tranche B Euro Installment Date.
"Interest Coverage Ratio" shall have the meaning assigned to such
term in Section 6.11.
"Interest Election Request" shall mean a request by a Borrower to
convert or continue a Tranche B Dollar Term Borrowing, a Tranche B Euro Term
Borrowing or a Revolving Facility Borrowing in accordance with Section 2.07.
"Interest Expense" shall mean, with respect to any Person for any
period, the sum of (a) gross interest expense of such Person for such period on
a consolidated basis, including (i) the amortization of debt discounts, (ii) the
amortization of all fees (including fees with respect to Swap Agreements)
payable in connection with the incurrence of Indebtedness to the extent included
in interest expense, (iii) the portion of any payments or accruals with respect
to Capital Lease Obligations allocable to interest expense and (iv) commissions,
discounts, yield and other fees and charges incurred in connection with any
Permitted Receivables Financing which are payable to any Person other than
Holdings, the Borrowers or a Subsidiary Loan Party, and (b) capitalized interest
of such Person. For purposes of the foregoing, gross interest expense shall be
determined after giving effect to any net payments made or received and costs
incurred by the Domestic Borrower and its Subsidiaries with respect to Swap
Agreements.
"Interest Payment Date" shall mean (a) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
that would have been an Interest Payment Date had successive Interest Periods of
three months' duration been applicable to such Borrowing and, in addition, the
date of any refinancing or conversion of such Borrowing with or to a Borrowing
of a different Type, (b) with respect to any ABR Loan, the last day of each
calendar quarter and (c) with respect to any Swingline Loan, the day that such
Swingline Loan is required to be repaid pursuant to Section 2.09(a).
"Interest Period" shall mean, as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as
applicable, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter (or 9 or 12 months, if at the time of the
31
relevant Borrowing, all Lenders make interest periods of such length available),
as the applicable Borrower may elect, or the date any Eurocurrency Borrowing is
converted to an ABR Borrowing in accordance with Section 2.07 or repaid or
prepaid in accordance with Section 2.09, 2.10 or 2.11; provided, unless the
Administrative Agent shall otherwise agree, that prior to the earlier of the
31st day after the Closing Date and the date on which the Administrative Agent
has notified the Borrowers that the primary syndication of the Facilities has
been completed, the Borrowers shall only be permitted to request Interest
Periods of seven days (it being understood that notwithstanding anything else in
this Agreement to the contrary, if on the last day of any such seven day
Interest Period the primary syndication of the Facilities shall not have been
completed, a new seven day Interest Period will begin on such day with respect
to each such Borrowing and no notice by any Borrower shall be required with
respect thereto); provided further, however, that if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day. Interest shall accrue from and including
the first day of an Interest Period to but excluding the last day of such
Interest Period.
"IR Letter of Credit" shall mean a letter of credit issued by
Citibank, N. A. in favor of Ingersoll-Rand Company Limited on the Closing Date
in the form attached as Exhibit J hereto.
"Issuing Bank" shall mean Citibank, N.A. and each other Issuing Bank
designated pursuant to Section 2.05(k), in each case in its capacity as an
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i). An Issuing Bank may, in its discretion, arrange for
one or more Letters of Credit to be issued by Affiliates of such Issuing Bank,
in which case the term "Issuing Bank" shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.12(b).
"Joint Lead Arrangers" shall have the meaning assigned to such term
in the introductory paragraph of this Agreement.
"L/C Disbursement" shall mean a payment or disbursement made by an
Issuing Bank pursuant to a Letter of Credit, including, for the avoidance of
doubt, a payment or disbursement made by an Issuing Bank pursuant to a Letter of
Credit upon or following the reinstatement of such Letter of Credit.
"L/C Participation Fee" shall have the meaning assigned such term in
Section 2.12(b).
"Lender" shall mean each financial institution listed on Schedule
2.01, as well as any Person that becomes a "Lender" hereunder pursuant to
Section 9.04.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing, to
acquire participations in a Swingline Loan pursuant to Section 2.04 or to fund
its portion of any unreimbursed payment under Section
32
2.05(e), or (ii) a Lender having notified in writing any Borrower and/or the
Administrative Agent that it does not intend to comply with its obligations
under Section 2.04, 2.05 or 2.06.
"Letter of Credit" shall mean any letter of credit issued pursuant
to Section 2.05.
"Leverage Ratio" shall mean, on any date, the ratio of (a)
Consolidated Net Debt as of such date to (b) EBITDA for the period of four
consecutive fiscal quarters of the Domestic Borrower most recently ended as of
such date, all determined on a consolidated basis in accordance with GAAP;
provided that to the extent any Asset Disposition or any Asset Acquisition (or
any similar transaction or transactions that require a waiver or a consent of
the Required Lenders pursuant to Section 6.04 or Section 6.05) or incurrence or
repayment of Indebtedness (excluding normal fluctuations in revolving
Indebtedness incurred for working capital purposes) has occurred during the
relevant Test Period, EBITDA shall be determined for the respective Test Period
on a Pro Forma Basis for such occurrences.
"LIBO Rate" means (i) in relation to any Eurocurrency Borrowing
denominated in Dollars or any Foreign Currency (other than Euro):
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Eurocurrency Borrowing) the arithmetic mean of the rates
(rounded upwards to four decimal places) as supplied to the Administrative
Agent at its request quoted by Citicorp North America, Inc. to leading
banks in the London interbank market,
as of 11:00 am London time on the Quotation Day for the offering of deposits in
the currency of that Eurocurrency Borrowing and for a period comparable to the
Interest Period for that Eurocurrency Borrowing and (ii) with respect to any
Eurocurrency Borrowing denominated in Euros, the EURIBO Rate.
"License Agreement" shall mean the License Agreement, dated October
29, 2004 by and between Dresser-Rand Company, Dresser-Rand A.S., Ingersoll-Rand
Energy Systems Corporation, and the Energy Systems Division of Ingersoll-Rand
Company.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, hypothecation, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities (other than
securities representing an interest in a joint venture that is not a
Subsidiary), any purchase option, call or similar right of a third party with
respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit,
the Security Documents, each Credit Agreement Supplement entered into by an
Additional Foreign Borrower and any promissory note issued under Section
2.09(e).
"Loan Parties" shall mean each Domestic Loan Party and each Foreign
Loan Party.
33
"Loans" shall mean the Term Loans, the Revolving Facility Loans and
the Swingline Loans (and shall include any Replacement Term Loans and any Loans
under the New Revolving Facility Commitments or New Term B Commitments).
"Local Time" shall mean (i) in the case of Loans and Letters of
Credit denominated in Dollars, New York City time and (ii) in the case of Loans
and Letters of Credit denominated in Euros or any other Foreign Currency, London
time.
"Majority Lenders" of any Facility shall mean, at any time, Lenders
under such Facility having Loans and unused Commitments representing more than
50% of the sum of all Loans outstanding under such Facility and unused
Commitments under such Facility at such time, in each case calculated on the
Equivalent in Dollars at such time. The Loans and Commitment of any Defaulting
Lender shall be disregarded in determining Majority Lenders at any time.
"Management Group" shall mean the group consisting of the directors,
executive officers and other management personnel of the Domestic Borrower and
Holdings, as the case may be, on the Closing Date together with (1) any new
directors whose election by such boards of directors or whose nomination for
election by the shareholders of the Domestic Borrower or Holdings, as the case
may be, was approved by a vote of a majority of the directors of the Domestic
Borrower or Holdings, as the case may be, then still in office who were either
directors on the Closing Date or whose election or nomination was previously so
approved and (2) executive officers and other management personnel of the
Domestic Borrower or Holdings, as the case may be, hired at a time when the
directors on the Closing Date together with the directors so approved
constituted a majority of the directors of the Domestic Borrower or Holdings, as
the case may be.
"Management Notes" shall mean the subordinated notes issued by
Holdings, any Subsidiary or any Parent Company to existing or former employees,
officers, consultants or directors of Holdings, any Subsidiary or any Parent
Company in consideration for such Person's Equity Interests in Holdings, any
Subsidiary or any Parent Company, in each case subordinated to the Obligations
on terms and conditions reasonably satisfactory to the Administrative Agent.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean the existence of events,
conditions and/or contingencies that have had or are reasonably likely to have
(a) a materially adverse effect on the business, operations, properties, assets
or financial condition of Holdings and the Subsidiaries, taken as a whole, or
(b) a material impairment of the validity or enforceability of, or a material
impairment of the material rights, remedies or benefits available to the
Lenders, any Issuing Bank, the Administrative Agent or the Collateral Agent
under, any Loan Document; provided that, solely for purposes of determining
whether or not there has been a Material Adverse Effect on the Closing Date,
"Material Adverse Effect" shall mean any event, occurrence or development of a
state of circumstances or facts that, individually, or together with any other
event, occurrence or development of a state of circumstances or facts, has a
material adverse effect on the business, operations, assets, liabilities (except
to the extent assumed or retained by the Sellers), results of operations or
condition (financial or otherwise) of the Business, taken as a
34
whole; provided further that a "Material Adverse Effect" does not include any
effect caused by a change, occurrence or development in (i) events affecting the
United States, European or global economy or capital or financial markets
generally, (ii) conditions in the industries in which the Acquired Business
conducts business, except to the extent such changes, occurrences or
developments impact the Business in a materially disproportionate fashion, (iii)
laws, regulations or GAAP, or in the authoritative interpretations thereof or in
regulatory guidance related thereto, (iv) earthquakes or similar catastrophes,
or acts of war, sabotage, terrorism, hostilities, military action or any
escalation or worsening thereof (other than actual damage or casualty loss to
any member of the Acquired Business or its properties or assets) or (v) the
Acquisition Agreement, the announcement thereof and the consummation of the
transactions contemplated by the Acquisition Agreement.
"Material Indebtedness" shall mean Indebtedness (other than Loans
and Letters of Credit) of any one or more of Holdings or any Subsidiary in an
aggregate principal amount exceeding U.S.$20.0 million.
"Material Real Property" shall mean any Real Property owned by a
Loan Party on the Closing Date having a fair market value exceeding $5,000,000
and any after-acquired Real Property owned by a Loan Party having a gross
purchase price exceeding $5,000,000 at the time of acquisition.
"Material Subsidiary" shall mean each Subsidiary of Holdings now
existing or hereafter acquired or formed by Holdings which, on a consolidated
basis for such Subsidiary and its Subsidiaries, (a) for the applicable
Calculation Period accounted for more than 1.5% of the consolidated revenues of
the Domestic Borrower and its Subsidiaries or (b) as of the last day of such
Calculation Period, was the owner of more than 1.5% of the Consolidated Total
Assets of the Domestic Borrower and its Subsidiaries; provided that at no time
shall the total assets of all Subsidiaries that are not Material Subsidiaries
exceed, for the applicable Calculation Period, 5.0% of the Consolidated Total
Assets of the Domestic Borrower and its Subsidiaries.
"Maximum Rate" shall have the meaning assigned to such term in
Section 9.09.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgaged Properties" shall mean all Material Real Property which
shall be subject to a Mortgage that is delivered pursuant to the terms of this
Agreement.
"Mortgages" shall mean the mortgages, deeds of trust, assignments of
leases and rents and other security documents delivered on the Closing Date
pursuant to Section 4.02(e) or after the Closing Date pursuant to Section 5.10,
as amended, supplemented or otherwise modified from time to time, with respect
to Mortgaged Properties, each substantially in the form of Exhibit D, with such
changes thereto as shall be acceptable to the Collateral Agent, including all
such changes as may be required to account for local law matters.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA with respect to which Holdings, any Borrower, any
other Subsidiary or any ERISA Affiliate (a) is making or has an obligation to
make contributions, (b) has within any of
35
the preceding six plan years made or had an obligation to make contributions or
(c) otherwise could incur liability.
"Net Income" shall mean, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends.
"Net Proceeds" shall mean:
(a) 100% of the cash proceeds actually received by Holdings, or any
Wholly-Owned Subsidiary (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable
or purchase price adjustment receivable or otherwise and including
casualty insurance settlements and condemnation awards, but only as and
when received) from any loss, damage, destruction or condemnation of, or
any sale, transfer or other disposition (including any sale and leaseback
of assets) to any Person of any asset or assets of Holdings or any
Subsidiary (other than those pursuant to Section 6.05(a), (b), (c), (e),
(f), (g), (i) or (j)), net of (i) attorneys' fees, accountants' fees,
investment banking fees, sales commissions, survey costs, title insurance
premiums, and related search and recording charges, transfer taxes, deed
or mortgage recording taxes, required debt payments and required payments
of other obligations relating to the applicable asset (other than pursuant
hereto or pursuant to the Senior Subordinated Notes or any Permitted
Senior Debt Securities or Permitted Subordinated Debt Securities) and any
cash reserve for adjustment in respect of the sale price of such asset
established in accordance with GAAP, including without limitation, pension
and post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations
associated with such transaction, other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection
therewith and (ii) Taxes paid or payable as a result thereof, provided
that, except in the case of the sale, transfer or other disposition of an
asset or group of related assets resulting in Net Proceeds in excess of
U.S.$50.0 million, if no Event of Default exists and Holdings shall
deliver a certificate of a Responsible Officer of Holdings to the
Administrative Agent promptly following receipt of any such proceeds
setting forth Holdings' intention to use any portion of such proceeds, to
acquire, maintain, develop, construct, improve, upgrade or repair assets
useful in the business of Holdings and the Subsidiaries, or make
investments pursuant to Section 6.04(j), in each case within 12 months of
such receipt, such portion of such proceeds shall not constitute Net
Proceeds except to the extent (1) not so used within such 12-month period
and (2) not contracted to be used within such 12-month period and not used
within 18 months of such receipt, and provided further that (x) no
proceeds realized in a single transaction or series of related
transactions shall constitute Net Proceeds unless such proceeds shall
exceed U.S.$5.0 million and (y) no proceeds shall constitute Net Proceeds
in any fiscal year until the aggregate amount of all such proceeds in such
fiscal year shall exceed U.S.$10.0 million, and
(b) 100% of the cash proceeds from the incurrence, issuance or sale
by Holdings or any Subsidiary of any Indebtedness (other than Excluded
Indebtedness), net
36
of all taxes and fees (including investment banking fees), commissions,
costs and other expenses, in each case incurred in connection with such
issuance or sale.
For purposes of calculating the amount of Net Proceeds, fees, commissions and
other costs and expenses payable to Holdings or any Borrower or any Affiliate of
any of them shall be disregarded, except for financial advisory fees customary
in type and amount paid to Affiliates of the Funds.
"New Commitments" shall have the meaning assigned to such term in
Section 2.21.
"New Lender" shall have the meaning assigned to such term in Section
2.21.
"New Revolving Facility Commitments" shall have the meaning assigned
to such term in Section 2.21.
"New Revolving Facility Lender" shall have the meaning assigned to
such term in Section 2.21.
"New Tranche B Term Commitments" shall have the meaning assigned to
such term in Section 2.21.
"New Tranche B Term Lender" shall have the meaning assigned to such
term in Section 2.21.
"New Tranche B Term Loan" shall have the meaning assigned to such
term in Section 2.21.
"Non-Consenting Lender" shall have the meaning assigned to such term
in Section 2.19(c).
"Obligations" shall mean all amounts owing to any of the Agents or
any Lender pursuant to the terms of this Agreement or any other Loan Document.
"Offering Memorandum" shall mean the Offering Memorandum, dated
October 14, 2004, in respect of the Senior Subordinated Notes.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property, intangible or mortgage
recording taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with
respect to, the Loan Documents, and any and all interest and penalties related
thereto.
"Parent Company" shall have the meaning assigned to such term in
clause (c) of the definition of "Change in Control" in Section 1.01.
"Participant" shall have the meaning assigned to such term in
Section 9.04(c).
37
"Participating Member State" means, any member state of the European
community that adopts or has adopted the Euro as its lawful currency in
accordance with legislation of the European community relating to Economic and
Monetary Union.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"Perfection Certificate" shall mean a certificate in the form of
Annex I to the Domestic Collateral Agreement or any other form approved by the
Collateral Agent.
"Permitted Business Acquisition" shall mean any acquisition of all
or substantially all the assets of, or all the Equity Interests (other than
directors' qualifying shares) in, a Person or division or line of business of a
Person (or any subsequent investment made in a Person, division or line of
business previously acquired in a Permitted Business Acquisition) if (a) such
acquisition was not preceded by, or effected pursuant to, an unsolicited or
hostile offer and (b) immediately after giving effect thereto: (i) no Event of
Default shall have occurred and be continuing or would result therefrom; (ii)
all transactions related thereto shall be consummated in accordance with
applicable laws; and (iii) (A) the Domestic Borrower and its Subsidiaries shall
be in compliance, on a Pro Forma Basis after giving effect to such acquisition
or formation, with the covenants contained in Sections 6.11 and 6.12 recomputed
as at the last day of the most recently ended fiscal quarter of the Domestic
Borrower and its Subsidiaries, and the Domestic Borrower shall have delivered to
the Administrative Agent a certificate of a Responsible Officer of the Domestic
Borrower to such effect, together with all relevant financial information for
such Subsidiary or assets, and (B) any acquired or newly formed Subsidiary shall
not be liable for any Indebtedness (except for Indebtedness permitted by Section
6.01).
"Permitted Business Acquisition Step-Up Period" shall mean (a) any
period commencing on the first day on which the Leverage Ratio on a Pro Forma
Basis is less than 4.25 to 1.00 (but greater than or equal to 3.25 to 1.00) and
ending on the first day thereafter on which the Leverage Ratio on a Pro Forma
Basis is either (i) greater than or equal to 4.25 to 1.00 or (ii) less than 3.25
to 1.00 or (b) any period commencing on the first day on which the Leverage
Ratio on a Pro Forma Basis is less than 3.25 to 1.00 and ending on the first day
thereafter on which the Leverage Ratio on a Pro Forma Basis is greater than or
equal to 3.25 to 1.00.
"Permitted Cure Security" shall mean (i) a common equity security of
Holdings or (ii) any other equity security of Holdings having no mandatory
redemption, repurchase or similar requirements prior to 91 days after the
Tranche B Dollar Maturity Date, and upon which all dividends or distributions
(if any) shall be payable solely in additional shares of such equity security.
"Permitted Encumbrances" shall mean (i) with respect to each Real
Property, those Liens and other encumbrances permitted by paragraphs (b), (d),
(h), (m) and (o) of Section 6.02 and (ii) with respect to each Real Property
acquired after the Closing Date, those Liens and other encumbrances permitted by
paragraphs (b), (d), (e), (h), (k), (m) and (o) of Section 6.02, provided,
however, that in the case of those Liens and other encumbrances permitted by
clause (o) of Section 6.02 and as described in clauses (i) and (ii) of this
definition, in the event any Loan Party shall constitute the lessor under any
such lease or sublease, no Lien created or permitted to
38
be incurred thereby shall be permitted hereunder except to the extent such Lien
would otherwise constitute a Permitted Encumbrance.
"Permitted Holder" shall mean each of (i) the Funds and the Fund
Affiliates and (ii) with respect to not more than 15% of the total voting power
of the Equity Interests of Holdings or the Domestic Borrower, the Management
Group.
"Permitted Investments" shall mean:
(a) direct obligations of the United States of America or any agency
thereof or obligations guaranteed by the United States of America or any
agency thereof, in each case with maturities not exceeding two years;
(b) time deposit accounts, certificates of deposit and money market
deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company that is organized under the laws of the
United States of America, or any state thereof having capital, surplus and
undivided profits in excess of U.S.$500.0 million and whose long-term
debt, or whose parent holding company's long-term debt, is rated A (or
such similar equivalent rating or higher) by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under
the Securities Act);
(c) repurchase obligations with a term of not more than 180 days for
underlying securities of the types described in clause (a) above entered
into with a bank meeting the qualifications described in clause (b) above;
(d) commercial paper, maturing not more than one year after the date
of acquisition, issued by a corporation (other than an Affiliate of any
Borrower) organized and in existence under the laws of the United States
of America or any foreign country recognized by the United States of
America with a rating at the time as of which any investment therein is
made of P-1 (or higher) according to Moody's, or A-1 (or higher) according
to S&P;
(e) securities with maturities of two years or less from the date of
acquisition issued or fully guaranteed by any State, commonwealth or
territory of the United States of America, or by any political subdivision
or taxing authority thereof, and rated at least A by S&P or A-2 by
Moody's;
(f) shares of mutual funds whose investment guidelines restrict 95%
of such funds' investments to those satisfying the provisions of clauses
(a) through (e) above;
(g) money market funds that (i) comply with the criteria set forth
in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P and Aaa by Moody's and (iii) have portfolio assets of at least
U.S.$500.0 million; and
(h) time deposit accounts, certificates of deposit and money market
deposits in an aggregate face amount not in excess of 1/2 of 1% of the
total assets of Holdings and the Subsidiaries, on a consolidated basis, as
of the end of Holdings' most recently completed fiscal year.
39
"Permitted Receivables Documents" shall mean all documents and
agreements evidencing, relating to or otherwise governing a Permitted
Receivables Financing.
"Permitted Receivables Financing" shall mean one or more
transactions pursuant to which (i) Receivables Assets or interests therein are
sold to or financed by one or more Special Purpose Receivables Subsidiaries, and
(ii) such Special Purpose Receivables Subsidiaries finance their acquisition of
such Receivables Assets or interests therein, or the financing thereof, by
selling or borrowing against such Receivables Assets; provided that (A) recourse
to Holdings or any Subsidiary (other than the Special Purpose Receivables
Subsidiaries) and any obligations or agreements of Holdings or any Subsidiary
(other than the Special Purpose Receivables Subsidiaries) in connection with
such transactions shall be limited to the extent customary for similar
transactions in the applicable jurisdictions (including, to the extent
applicable, in a manner consistent with the delivery of a "true sale"/"absolute
transfer" opinion with respect to any transfer by Holdings or any Subsidiary
(other than a Special Purpose Receivables Subsidiary), (B) the aggregate
Receivables Net Investment since the Closing Date shall not exceed U.S.$75.0
million at any time, (C) the Board of Directors of the Domestic Borrower shall
have determined in good faith that each such Permitted Receivables Financing
(including financing terms, covenants, termination events and other provisions)
is in the aggregate economically fair and reasonable to the Domestic Borrower
and the applicable Special Purpose Receivables Subsidiary, (D) all sales of
Receivables Assets or interests therein to any Special Purpose Receivables
Subsidiary are made at fair market value (as determined in good faith by the
Domestic Borrower), and (E) the financing terms, covenants, termination events
and other provisions thereof will be market terms (as determined in good faith
by the Domestic Borrower) and may include representations, warranties,
covenants, indemnities and guarantees of performance which the Domestic Borrower
has determined in good faith to be customary in a receivables financing
including, without limitation, those relating to the servicing of the assets of
a Special Purpose Receivables Subsidiary, it being understood and agreed that
any obligation of a seller of receivables to repurchase receivables arising as a
result of a breach of a representation, warranty or covenant or otherwise,
including as a result of a receivable or portion thereof becoming subject to any
asserted defense, dispute, off-set or counterclaim of any kind as a result of
any action taken by, any failure to take action by or by other event relating to
the seller, shall be deemed customary.
"Permitted Refinancing Indebtedness" shall mean any Indebtedness
issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund (collectively, to "Refinance"), the
Indebtedness being Refinanced (or previous refinancings thereof constituting
Permitted Refinancing Indebtedness); provided that (a) the principal amount (or
accreted value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness so Refinanced (plus unpaid accrued interest and premium thereon),
(b) the average life to maturity of such Permitted Refinancing Indebtedness is
greater than or equal to that of the Indebtedness being Refinanced, (c) if the
Indebtedness being Refinanced is subordinated in right of payment to the
Obligations under this Agreement, such Permitted Refinancing Indebtedness shall
be subordinated in right of payment to such Obligations on terms at least as
favorable to the Lenders as those contained in the documentation governing the
Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness shall
have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced is
40
secured by any collateral (whether equally and ratably with, or junior to, the
Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be
secured by such collateral (including in respect of working capital facilities
of Foreign Subsidiaries otherwise permitted under this Agreement only, any
collateral pursuant to after-acquired property clauses to the extent any such
collateral secured the Indebtedness being Refinanced) on terms no less favorable
to the Secured Parties than those contained in the documentation governing the
Indebtedness being Refinanced.
"Permitted Senior Debt Securities" shall mean unsecured senior notes
issued by the Domestic Borrower, (i) the terms of which do not provide for any
scheduled repayment, mandatory redemption or sinking fund obligation prior to
the Tranche B Dollar Maturity Date, (ii) the covenants (other than the lien
covenant and the subsidiary debt covenant), events of default, subsidiary
guarantees and other terms of which (other than interest rate and redemption
premiums), taken as a whole, are not more restrictive to the Domestic Borrower
and its Subsidiaries than those in the Senior Subordinated Notes, (iii) the lien
covenant and the subsidiary debt covenant are on market terms for similar
issuers at the time of issuance and (iv) of which no subsidiary of the Domestic
Subsidiary (other than a Domestic Subsidiary Loan Party) is an obligor under
such notes that is not an obligor under the Senior Subordinated Notes.
"Permitted Subordinated Debt Securities" shall mean unsecured
subordinated notes issued by the Domestic Borrower, (i) the terms of which do
not provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to the date on which the final maturity of the Senior
Subordinated Notes occurs (as in effect on the Closing Date), (ii) the
covenants, events of default, Subsidiary guarantees and other terms of which
(other than interest rate and redemption premiums), taken as a whole, are not
more restrictive to the Domestic Borrower and its Subsidiaries than those in the
Senior Subordinated Notes and (iii) of which no Subsidiary of the Domestic
Subsidiary (other than a Domestic Subsidiary Loan Party) is an obligor under
such notes that is not an obligor under the Senior Subordinated Notes.
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
government, individual or family trusts, or any agency or political subdivision
thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA which is maintained or contributed to by
Holdings, any Borrower, any other Subsidiary or any ERISA Affiliate or with
respect to which Holdings, any Borrower or any other Subsidiary could incur
liability (including under Section 4069 of ERISA).
"Platform" shall have the meaning assigned to such term in
Section 9.17(b).
"Pledged Collateral" shall have the meaning assigned to such term in
the applicable Collateral Agreement.
"primary obligor" shall have the meaning given such term in the
definition of the term "Guarantee."
41
"Prior Liens" shall mean Liens which, pursuant to the provisions of
any Security Document, are or may be superior to the Lien of such Security
Document.
"Pro Forma Adjusted EBITDA" shall mean, with respect to the Domestic
Borrower and its Subsidiaries on a consolidated basis for any period, the EBITDA
for such period adjusted (a) as required or permitted by Regulation S-X of the
Securities Act, (b) to reflect FRC's good faith estimate of the additional costs
that would have been incurred by the Domestic Borrower (i) as a stand-alone
entity and/or (ii) to implement the Domestic Borrower's business plan previously
described to the Joint Lead Arrangers (in each case such adjustments shall be in
form and substance reasonably satisfactory to the Joint Lead Arrangers) and (c)
as shall be reasonably acceptable to the Joint Lead Arrangers.
"Pro Forma Basis" shall mean, as to any Person, for any events as
described in clauses (i) and (ii) below that occur subsequent to the
commencement of a period for which the financial effect of such events is being
calculated, and giving effect to the events for which such calculation is being
made, such calculation as will give pro forma effect to such events as if such
events occurred on the first day of the four consecutive fiscal quarter period
ended on or before the occurrence of such event (the "Reference Period"):
(i) in making any determination of EBITDA, pro forma effect shall be
given to any Asset Disposition and to any Asset Acquisition (or any
similar transaction or transactions that require a waiver or consent of
the Required Lenders pursuant to Section 6.04 or 6.05), in each case that
occurred during the Reference Period (or, in the case of determinations
made pursuant to the definition of the term "Asset Acquisition," occurring
during the Reference Period or thereafter and through and including the
date upon which the respective Asset Acquisition is consummated); and
(ii) in making any determination on a Pro Forma Basis, (x) all
Indebtedness (including Indebtedness incurred or assumed and for which the
financial effect is being calculated, whether incurred under this
Agreement or otherwise, but excluding normal fluctuations in revolving
Indebtedness incurred for working capital purposes and amounts outstanding
under any Permitted Receivables Financing, in each case, not to finance
any acquisition) incurred or permanently repaid during the Reference
Period (or, in the case of determinations made pursuant to the definition
of the term "Asset Acquisition," occurring during the Reference Period or
thereafter and through and including the date upon which the respective
Asset Acquisition is consummated) shall be deemed to have been incurred or
repaid at the beginning of such period and (y) Interest Expense of such
Person attributable to interest on any Indebtedness, for which pro forma
effect is being given as provided in preceding clause (x), bearing
floating interest rates shall be computed on a pro forma basis as if the
rates that would have been in effect during the period for which pro forma
effect is being given had been actually in effect during such periods.
Pro forma calculations made pursuant to the definition of the term "Pro Forma
Basis" shall be determined in good faith by a Responsible Officer of the
Domestic Borrower and, for any fiscal period ending on or prior to the first
anniversary of an Asset Acquisition or Asset Disposition (or any similar
transaction or transactions that require a waiver or consent of the Required
Lenders
42
pursuant to Section 6.04 or 6.05), may include adjustments to reflect operating
expense reductions and other operating improvements or synergies reasonably
expected to result from such Asset Acquisition, Asset Disposition or other
similar transaction, to the extent that the Domestic Borrower delivers to the
Administrative Agent (i) a certificate of a Financial Officer of the Domestic
Borrower setting forth such operating expense reductions and other operating
improvements or synergies and (ii) information and calculations supporting in
reasonable detail such estimated operating expense reductions and other
operating improvements or synergies.
"Projections" shall mean the projections of the Domestic Borrower
and its Subsidiaries included in the Information Memorandum and any other
projections and any forward-looking statements (including statements with
respect to booked business) of such entities furnished to the Lenders or the
Administrative Agent by or on behalf of Holdings, the Borrowers or any of their
Subsidiaries prior to the Closing Date.
"Qualifying Lender" means a Lender that is beneficially entitled to
amounts payable to such Lender in respect of an advance under a Loan Document
and is:
(a) a Lender:
(i) which is a bank (as defined for the purpose of section
349 of the United Kingdom Income and Corporation Taxes
Act 1988) making an advance under a Loan Document; or
(ii) in respect of an advance made under a Loan Document by a
person that was a bank (as defined for the purpose of
section 349 of the United Kingdom Income and Corporation
Taxes Act 1988) at the time that that advance was made,
and which is within the charge to United Kingdom corporation tax as
respects any payments of interest made in respect of that advance;
or
(b) a Lender which is treated as a resident of a jurisdiction having
a double taxation agreement (a "Treaty") with the United Kingdom which
makes provision for full exemption from tax imposed by the United Kingdom
on interest and which does not carry on a business in the United Kingdom
through a permanent establishment with which that Lender's participation
in the Loan is effectively connected (a "Treaty Lender").
"Quotation Day" means, in relation to any period for which an
interest rate is to be determined:
(a) (if the currency is Sterling) the first day of that period;
(b) (if the currency is Euro) two TARGET Days before the first day
of that period; or
(c) (for any other currency) two Business Days before the first day
of that period, unless market practice differs in the Relevant Interbank
Market for a currency, in which case the Quotation Day for that currency
will be determined by the Administrative
43
Agent in accordance with market practice in the Relevant Interbank Market
(and if quotations would normally be given by leading banks in the
Relevant Interbank Market on more than one day, the Quotation Day will be
the last of these days).
"Real Property" shall mean, collectively, all right, title and
interest of any Borrower or any other Subsidiary in and to any and all parcels
of real property owned or operated by any Borrower or any other Subsidiary
together with all Improvements and appurtenant fixtures, equipment, personal
property, easements and other property and rights incidental to the ownership,
lease or operation thereof.
"Receivables Assets" shall mean accounts receivable (including any
bills of exchange) and related assets and property from time to time originated,
acquired or otherwise owned by the Domestic Borrower or any Subsidiary.
"Receivables Net Investment" shall mean the aggregate cash amount
paid by the lenders or purchasers under any Permitted Receivables Financing in
connection with their purchase of, or the making of loans secured by,
Receivables Assets or interests therein, as the same may be reduced from time to
time by collections with respect to such Receivables Assets or otherwise in
accordance with the terms of the Permitted Receivables Documents; provided,
however, that if all or any part of such Receivables Net Investment shall have
been reduced by application of any distribution and thereafter such distribution
is rescinded or must otherwise be returned for any reason, such Receivables Net
Investment shall be increased by the amount of such distribution, all as though
such distribution had not been made.
"Reference Period" shall have the meaning assigned to such term in
the definition of the term "Pro Forma Basis."
"Refinance" shall have the meaning assigned to such term in the
definition of the term "Permitted Refinancing Indebtedness," and "Refinanced"
shall have a meaning correlative thereto.
"Refinanced Term Loans" shall have the meaning assigned to such term
in Section 9.08(e).
"Register" shall have the meaning assigned to such term in Section
9.04(b).
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
44
"Release" shall mean any placing, spilling, leaking, seepage,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, disposing or depositing in, into or onto the Environment.
"Relevant Interbank Market" means, in relation to the LIBO Rate, the
principal London offices of Citibank International plc and, in relation to the
EURIBO Rate, the principal office in New York City of Citibank, N.A. or such
other banks as may be appointed by the Administrative Agent with the consent of
the Borrowers.
"Remaining Present Value" shall mean, as of any date with respect to
any lease, the present value as of such date of the scheduled future lease
payments with respect to such lease, determined with a discount rate equal to a
market rate of interest for such lease reasonably determined at the time such
lease was entered into.
"Replacement Term Loans" shall have the meaning assigned to such
term in Section 9.08(e).
"Reportable Event" shall mean any reportable event as defined in
Section 4043(c) of ERISA or the regulations issued thereunder, other than those
events as to which the 30-day notice period referred to in Section 4043(c) of
ERISA has been waived, with respect to a Plan.
"Required Lenders" shall mean, at any time, Lenders having (a) Loans
(other than Swingline Loans) outstanding (calculated in respect of Loans
denominated in a Foreign Currency on the Equivalent thereof in Dollars at such
time), (b) Revolving L/C Exposures, (c) Swingline Exposures, and (d) Available
Unused Commitments, that taken together, represent more than 50% of the sum of
(w) all Loans (other than Swingline Loans) outstanding (calculated in respect of
Loans denominated in a Foreign Currency on the Equivalent thereof in Dollars at
such time), (x) Revolving L/C Exposures, (y) Swingline Exposures, and (z) the
total Available Unused Commitments at such time. The Loans, Revolving L/C
Exposures, Swingline Exposures and Available Unused Commitment of any Defaulting
Lender shall be disregarded in determining Required Lenders at any time.
"Required Percentage" shall mean, with respect to an Excess Cash
Flow Period, (i) 75%, if the Leverage Ratio at the end of such Excess Cash Flow
Period is greater than 5.00 to 1.00, (ii) 50%, if the Leverage Ratio at the end
of such Excess Cash Flow Period is greater than 4.00 to 1.00 but less than or
equal to 5.00 to 1.00, (iii) 25%, if the Leverage Ratio at the end of such
Excess Cash Flow Period is greater than 3.00 to 1.00 and equal to or less than
4.00 to 1.00, and (iv) 0%, if the Leverage Ratio at the end of such Excess Cash
Flow Period is equal to or less than 3.00 to 1.00.
"Responsible Officer" of any Person shall mean any executive officer
or Financial Officer of such Person and any other officer or similar official
thereof responsible for the administration of the obligations of such Person in
respect of this Agreement.
"Revolving Facility" shall mean the Revolving Facility Commitments
and the extensions of credit made hereunder by the Revolving Facility Lenders.
45
"Revolving Facility Borrowing" shall mean a Borrowing comprised of
Revolving Facility Loans.
"Revolving Facility Commitment" shall mean, with respect to each
Revolving Facility Lender, the commitment of such Revolving Facility Lender to
make Revolving Facility Loans pursuant to Section 2.01, expressed as a Dollar
amount representing the maximum aggregate permitted amount of such Revolving
Facility Lender's Revolving Facility Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender under Section 9.04. The initial Dollar amount of each Revolving Facility
Lender's Revolving Facility Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Revolving Facility Lender shall
have assumed its Revolving Facility Commitment, as applicable. The aggregate
Dollar amount of the Revolving Facility Commitments on the date hereof is
U.S.$300.0 million.
"Revolving Facility Credit Exposure" shall mean, at any time, the
sum of (a) the aggregate principal amount of the Revolving Facility Loans
outstanding at such time (calculated in respect of Loans denominated in a
Foreign Currency on the Equivalent thereof in Dollars at such time), (b) the
Swingline Exposure at such time and (c) the Revolving L/C Exposure at such time
(calculated in respect of Revolving L/C Exposure denominated in a Foreign
Currency on the Equivalent thereof in Dollars at such time). The Revolving
Facility Credit Exposure of any Revolving Facility Lender at any time shall be
the sum of (a) the aggregate principal amount of such Revolving Facility
Lender's Revolving Facility Loans outstanding at such time (calculated in
respect of Loans denominated in a Foreign Currency on the Equivalent thereof in
Dollars at such time) and (b) such Revolving Facility Lender's Revolving
Facility Percentage of the Swingline Exposure and Revolving L/C Exposure at such
time (calculated in respect of Revolving L/C Exposure denominated in a Foreign
Currency on the Equivalent thereof in Dollars at such time).
"Revolving Facility Lender" shall mean a Lender with a Revolving
Facility Commitment or with outstanding Revolving Facility Loans (including any
New Revolving Facility Lenders).
"Revolving Facility Loan" shall mean a Loan made by a Revolving
Facility Lender pursuant to Section 2.01(b) or a New Revolving Facility Lender
pursuant to Section 2.21. Each Revolving Facility Revolving Loan shall be a
Eurocurrency Loan or an ABR Revolving Loan.
"Revolving Facility Maturity Date" shall mean October 29, 2009.
"Revolving Facility Percentage" shall mean, with respect to any
Revolving Facility Lender, the percentage of the total Revolving Facility
Commitments represented by such Lender's Revolving Facility Commitment. If the
Revolving Facility Commitments have terminated or expired, the Revolving
Facility Percentages shall be determined based upon the Revolving Facility
Commitments most recently in effect, giving effect to any assignments pursuant
to Section 9.04.
46
"Revolving L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit outstanding at such time
(calculated in respect of Letters of Credit denominated in a Foreign Currency on
the Equivalent thereof in Dollars at such time) and (b) the aggregate principal
amount of all L/C Disbursements that have not yet been reimbursed at such time
(calculated in respect of L/C Disbursements denominated in a Foreign Currency on
the Equivalent thereof in Dollars at such time). The Revolving L/C Exposure of
any Revolving Facility Lender at any time shall mean its Revolving Facility
Percentage of the aggregate Revolving L/C Exposure at such time.
"S&P" shall mean Standard & Poor's Ratings Group, Inc.
"Sale and Lease-Back Transaction" shall have the meaning assigned to
such term in Section 6.03.
"Screen Rate" means:
(a) in relation to the LIBO Rate, the British Bankers' Association
Interest Settlement Rate for the relevant currency and period; and
(b) in relation to the EURIBO Rate, the percentage rate per annum
determined by the Banking Federation of the European Union for the
relevant period,
displayed on the appropriate page of the Telerate screen. If the agreed page is
replaced or service ceases to be available, the Administrative Agent may specify
another page or service displaying the appropriate rate after consultation with
the Foreign Borrowers and the Lenders.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Secured Parties" shall mean the "Secured Parties" as defined in the
Collateral Agreements.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Documents" shall mean the Mortgages, the Collateral
Agreements and each of the security agreements and other instruments and
documents executed and delivered pursuant to any of the foregoing or pursuant to
Section 5.10.
"Seller" shall have the meaning assigned to such term in the first
recital hereto.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Notes and the Senior Subordinated Note Indenture.
"Senior Subordinated Note Indenture" shall mean the Indenture dated
as of October 29, 2004 under which the Senior Subordinated Notes were issued,
among the Domestic Borrower and Citibank, N.A., as trustee, as in effect on the
Closing Date and as amended, restated, supplemented or otherwise modified from
time to time in accordance with the requirements thereof and of this Agreement.
47
"Senior Subordinated Notes" shall mean the Domestic Borrower's
7-3/8% Senior Subordinated Notes due 2014 issued pursuant to the Senior
Subordinated Note Indenture and any notes issued by the Domestic Borrower in
exchange for, and as contemplated by, the Senior Subordinated Notes and the
related registration rights agreement with substantially identical terms as the
Senior Subordinated Notes.
"Special Purpose Receivables Subsidiary" shall mean a direct or
indirect Subsidiary of Holdings established in connection with a Permitted
Receivables Financing for the acquisition of Receivables Assets or interests
therein, and which is organized in a manner intended to reduce the likelihood
that it would be substantively consolidated with Holdings or any of the
Subsidiaries (other than Special Purpose Receivables Subsidiaries) in the event
Holdings or any such Subsidiary becomes subject to a proceeding under the U.S.
Bankruptcy Code (or other insolvency law).
"Statutory Reserves" shall mean, with respect to any currency, any
reserve, liquid asset or similar requirements established by any Governmental
Authority of the United States of America or of the jurisdiction of such
currency or any jurisdiction in which Loans in such currency are made to which
banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to
which interest rates applicable to Loans in such currency are determined.
"Sterling" shall mean the lawful currency of the United Kingdom of
Great Britain and Northern Ireland.
"Sub-Agent" shall mean Citibank International plc.
"Subordinated Intercompany Debt" shall have the meaning assigned to
such term in Section 6.01(e).
"subsidiary" shall mean, with respect to any Person (herein referred
to as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, directly or indirectly, owned, Controlled or held by such Person.
"Subsidiary" shall mean a subsidiary; provided that unless the
context otherwise requires, "Subsidiary" shall mean a subsidiary of Holdings.
"Subsidiary Loan Party" shall mean a Domestic Subsidiary Loan Party
or a Foreign Subsidiary Loan Party.
"Supply Agreement" shall mean the Supply Agreement, dated October
29, 2004 by and between Dresser-Rand Company and Ingersoll-Rand Company Limited.
"Swap Agreement" shall mean any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value
48
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 Holdings or any of its Subsidiaries shall be a Swap Agreement.
"Swingline Borrowing" shall mean a Borrowing comprised of Swingline
Loans.
"Swingline Borrowing Request" shall mean a request by any Borrower
substantially in the form of Exhibit C-2.
"Swingline Commitment" shall mean, with respect to each Swingline
Lender, the commitment of such Swingline Lender to make Swingline Loans pursuant
to Section 2.04. The aggregate amount of the Swingline Commitments on the
Closing Date is U.S.$30.0 million.
"Swingline Exposure" shall mean at any time the aggregate principal
amount of all outstanding Swingline Borrowings at such time. The Swingline
Exposure of any Revolving Facility Lender at any time shall mean its Revolving
Facility Percentage of the aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean Citicorp North America, Inc., in its
capacity as a lender of Swingline Loans, and/or any other Revolving Facility
Lender designated as such by the Domestic Borrower after the Closing Date that
is reasonably satisfactory to the Domestic Borrower and the Administrative Agent
and executes a counterpart to this Agreement as a Swingline Lender.
"Swingline Loans" shall mean the swingline loans made to any
Borrower pursuant to Section 2.04.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties (including stamp duties), deductions, charges (including ad
valorem charges) or withholdings imposed by any Governmental Authority and any
and all interest and penalties related thereto.
"Term Loan" shall mean any Tranche B Dollar Term Loan and any
Tranche B Euro Term Loan.
"Test Period" shall mean, on any date of determination, the period
of four consecutive fiscal quarters of the Domestic Borrower then most recently
ended (taken as one accounting period).
"Title Company" shall mean Title Associates Inc., as agent for
Stewart Title Insurance Company, or such other nationally recognized title
company as shall be selected by the Administrative Agent.
"Tranche B Dollar Facility" shall mean the Tranche B Dollar Term
Loan Commitments and the Tranche B Dollar Term Loans made hereunder.
"Tranche B Dollar Installment Date" shall have the meaning assigned
to such term in Section 2.10(a)(i).
49
"Tranche B Dollar Maturity Date" shall mean October 29, 2011.
"Tranche B Dollar Term Borrowing" shall mean a Borrowing comprised
of Tranche B Dollar Term Loans.
"Tranche B Dollar Term Lender" shall mean a Lender with a Tranche B
Dollar Term Loan Commitment or with outstanding Tranche B Dollar Term Loans
(including any New Tranche B Dollar Term Lender).
"Tranche B Dollar Term Loan Commitment" shall mean with respect to
each Lender, the amount set forth on Schedule 2.01. The aggregate amount of the
Tranche B Dollar Term Loan Commitments on the Closing Date is U.S.$295.0
million.
"Tranche B Dollar Term Loans" shall mean the term loans denominated
in Dollars made by the Lenders to the Domestic Borrower pursuant to Section
2.01(a) or 2.21 (including New Tranche B Term Loans denominated in Dollars).
"Tranche B Euro Facility" shall mean the Tranche B Euro Term Loan
Commitments and the Tranche B Euro Term Loans made hereunder.
"Tranche B Euro Installment Date" shall have the meaning assigned to
such term in Section 2.10(a)(ii).
"Tranche B Euro Maturity Date" shall mean October 29, 2011.
"Tranche B Euro Term Borrowing" shall mean a Borrowing comprised of
Tranche B Euro Term Loans.
"Tranche B Euro Term Lender" shall mean a Lender with a Tranche B
Euro Term Loan Commitment or with outstanding Tranche B Euro Term Loans
(including any New Tranche B Euro Term Lender).
"Tranche B Euro Term Loan Commitment" shall mean with respect to
each Lender, the amount set forth on Schedule 2.01. The Equivalent in Dollars of
the aggregate amount of the Tranche B Euro Term Loan Commitments on the Closing
Date is U.S.$100,032,550.
"Tranche B Euro Term Loans" shall mean the term loans denominated in
Euros made by the Lenders to the Foreign Borrowers pursuant to Section 2.01(a)
or 2.21 (including New Tranche B Term Loans denominated in Euro).
"Tranche B Term Borrowings" shall mean Tranche B Dollar Term
Borrowings and Tranche B Euro Term Borrowings.
"Tranche B Term Loans" shall mean Tranche B Dollar Term Loans and
Tranche B Euro Term Loans.
50
"Transaction Documents" shall mean the Acquisition Documents, the
Senior Subordinated Note Documents, the Equity Financing Documents and the Loan
Documents.
"Transactions" shall mean, collectively, the transactions to occur
on or prior to the Closing Date pursuant to the Transaction Documents, including
(a) the consummation of the Acquisition; (b) the restructuring described in
Annex A, (c) the execution and delivery of the Loan Documents and the initial
borrowings hereunder; (d) the Equity Financing; (e) the issuance of the Senior
Subordinated Notes; and (f) the payment of all fees and expenses owing in
connection with the foregoing.
"Transition Services Agreement" shall mean the Transition Services
Agreement, dated October 29, 2004 by and between Ingersoll-Rand Company Limited
and Dresser-Rand Holdings, LLC.
"Trigger Date" shall mean the date of delivery of financial
statements for the first fiscal quarter ending at least six months after the
Closing Date.
"Type," when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate and the Alternate Base Rate.
"UCC" shall mean (i) the Uniform Commercial Code as in effect in the
applicable state of jurisdiction and (ii) certificate of title or other similar
statutes relating to "rolling stock" or barges as in effect in the applicable
jurisdiction.
"UK Borrower" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"UK Debenture" shall mean, collectively, one or more debentures, as
amended, supplemented or otherwise modified from time to time, substantially in
the form of Exhibit E-2A, among the UK Loan Parties and the Collateral Agent.
"UK Obligations" shall mean all amounts owing to any of the Agents
or any Lender by any UK Loan Party pursuant to the terms of this Agreement or
any other Loan Document.
"UK Loan Party" shall mean the UK Borrower and each UK Subsidiary
Loan Party.
"UK Share Charge" shall mean the charge entered into by the Domestic
Borrower over its shares in the UK Borrower, substantially in the form of
Exhibit E-2B.
"UK Subsidiary Loan Party" shall mean each direct Wholly Owned
Subsidiary of the UK Borrower that (a) is (i) organized under the same
jurisdiction as the UK Borrower, (ii) a Foreign Subsidiary and (iii) a Material
Subsidiary, and (b) is not (i) a Special Purpose Receivables Subsidiary, (ii)
listed on Schedule 1.01(a), or (iii) a Subsidiary whose guarantee of the UK
Obligations is prohibited under Section 9.23; provided that neither Dresser-Rand
UK1
51
nor Dresser-Rand UK2 shall be a UK Subsidiary Loan Party unless it has satisfied
the requirement set forth in clause (b)(i) of the definition of Collateral and
Guarantee Requirement.
"U.S. Bankruptcy Code" shall mean Title 11 of the United States
Code, as amended, or any similar federal or state law for the relief of debtors.
"U.S. Patriot Act" shall have the meaning assigned to such term in
Section 3.08(a).
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
such Person, all of the Equity Interests of which (other than directors'
qualifying shares or nominee or other similar shares required pursuant to
applicable law) are owned by such Person or another Wholly Owned Subsidiary of
such Person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Capital" shall mean, with respect to the Domestic Borrower
and its Subsidiaries on a consolidated basis at any date of determination,
Current Assets at such date of determination minus Current Liabilities at such
date of determination; provided that, for purposes of calculating Excess Cash
Flow, increases or decreases in Working Capital shall be calculated without
regard to any changes in Current Assets or Current Liabilities as a result of
(a) any reclassification in accordance with GAAP of assets or liabilities, as
applicable, between current and noncurrent or (b) the effects of purchase
accounting.
SECTION 1.02. Terms Generally. The definitions set forth or referred
to in Section 1.01 shall apply equally to both the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require. Except
as otherwise expressly provided herein, any reference in this Agreement to any
Loan Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Domestic Borrower notifies the Administrative Agent that the Domestic Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Closing Date in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Domestic Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
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SECTION 1.03. Effectuation of Transfers. Each of the representations
and warranties of Holdings and the Borrowers contained in this Agreement (and
all corresponding definitions) are made after giving effect to the Transactions
(other than those referred in clause (b) of the definition thereof which are
indicated to be concluded after the Closing Date), unless the context otherwise
requires.
SECTION 1.04. Financial Assistance. None of the proceeds of any Loan
under this Agreement may be used in any way that infringes Section 151 of the
Companies Act unless the use of such proceeds is lawfully permitted by virtue of
the procedure set out in Sections 155 to 158 of the Companies Act.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees
(a) (i) to make Tranche B Dollar Term Loans to the Domestic Borrower
and the UK Borrower on the Closing Date in Dollars in a principal amount that
will not result in the aggregate amount of such Lender's Tranche B Dollar Term
Loans exceeding such Lender's Tranche B Dollar Term Loan Commitment and (ii) to
make Tranche B Euro Term Loans to the French Borrower on the Closing Date in
Euros in an aggregate principal amount that will not result in the aggregate
amount of such Lender's Tranche B Euro Term Loans exceeding such Lender's
Tranche B Euro Term Loan Commitment;
(b) to make Revolving Facility Loans denominated in Dollars or in a
Foreign Currency to any Borrower, in each case from time to time during the
Availability Period in an aggregate principal amount that will not result in (i)
such Lender's Revolving Facility Credit Exposure exceeding such Lender's
Revolving Facility Commitment, (ii) the Revolving Facility Credit Exposure
exceeding the total Revolving Facility Commitments, (iii) the Revolving Credit
Exposure denominated in Euros exceeding the Equivalent in Dollars determined on
the date of delivery of the applicable Borrowing Request of U.S.$200 million,
(iv) the Revolving Credit Exposure denominated in Sterling exceeding the
Equivalent in Dollars determined on the date of delivery of the applicable
Borrowing Request of U.S.$75 million, (v) the aggregate Revolving Facility Loans
exceeding the sum of U.S.$15 million (plus working capital adjustments resulting
in an increased purchase price for the Acquisition identified to the Lenders at
least three days prior to the Closing Date) on the Closing Date, and (vi) the
Revolving L/C Exposure exceeding U.S.$180 million on the Closing Date. Within
the foregoing limits and subject to the terms and conditions set forth herein,
each Borrower may borrow, prepay and reborrow Revolving Facility Loans.
Amounts repaid or prepaid in respect of Tranche B Dollar Term Loans
or Tranche B Euro Term Loans may not be reborrowed.
53
SECTION 2.02. Loans and Borrowings(a) Each Loan shall be made as
part of a Borrowing consisting of Loans under the same Facility and of the same
Type and in the same currency made by the Lenders ratably in accordance with
their respective Commitments under the applicable Facility (or, in the case of
Swingline Loans, in accordance with their respective Swingline Commitments);
provided, however, that Revolving Facility Loans shall be made by the Revolving
Facility Lenders ratably in accordance with their respective Revolving Facility
Percentages on the date such Loans are made hereunder. The failure of any Lender
to make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Borrowing denominated in Dollars
shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Domestic
Borrower may request in accordance herewith. Unless and until exchanged into the
Equivalent in Dollars thereof and converted into ABR Loans in accordance with
Section 2.07(e), 2.14 or 2.22, each Borrowing denominated in a Foreign Currency
shall be comprised entirely of Eurocurrency Loans. Each Lender at its option may
make any ABR Loan or Eurocurrency Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of any Borrower to repay such Loan
in accordance with the terms of this Agreement and such Lender shall not be
entitled to any amounts payable under Section 2.15, 2.17 or 2.20 solely in
respect of increased costs resulting from such exercise and existing at the time
of such exercise.
(c) At the commencement of each Interest Period for any Eurocurrency
Revolving Facility Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum; provided that a Eurocurrency Revolving Facility Borrowing may
be in an aggregate amount that is equal to the entire unused balance of the
Revolving Facility Commitments or that is required to finance the reimbursement
of an L/C Disbursement as contemplated by Section 2.05(e). At the time that each
ABR Revolving Facility Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of the Borrowing Multiple and not
less than the Borrowing Minimum; provided that an ABR Revolving Facility
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Revolving Facility Commitments or that is required to finance the
reimbursement of an L/C Disbursement as contemplated by Section 2.05(e). Each
Swingline Borrowing shall be in an amount that is an integral multiple of the
Borrowing Multiple and not less than the Borrowing Minimum. Borrowings of more
than one Type and under more than one Facility may be outstanding at the same
time; provided that there shall not at any time be more than a total of (i)
three (3) Eurocurrency Borrowings outstanding under each of the Tranche B Dollar
Facility and the Tranche B Euro Facility and (ii) twenty (20) Eurocurrency
Borrowings outstanding under the Revolving Facility.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Facility Maturity Date, the Tranche B Dollar Maturity Date or the
Tranche B Euro Maturity Date, as applicable.
54
SECTION 2.03. Requests for Borrowings. To request a Revolving
Facility Borrowing and/or a Tranche B Dollar Term Borrowing and/or a Tranche B
Euro Term Borrowing, the applicable Borrower shall notify the Administrative
Agent (and, in the case of a Revolving Facility Borrowing consisting of Loans
denominated in a Foreign Currency or a Tranche B Euro Term Borrowing,
simultaneously to the Sub-Agent) of such request by telephone (a) in the case of
a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time, three (3)
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 12:00 noon, Local Time, one (1) Business Day
before the date of the proposed Borrowing; provided that any such notice of an
ABR Revolving Facility Borrowing to finance the reimbursement of an L/C
Disbursement as contemplated by Section 2.05(e) may be given not later than
10:00 a.m., Local Time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower making such Borrowing Request. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Facility
Borrowing;
(ii) the aggregate amount of the requested Borrowing (expressed in
Dollars);
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) in the case of a Borrowing denominated in Dollars, whether such
Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(v) in the case of a Eurocurrency Borrowing, the currency and the
initial Interest Period to be applicable thereto; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed.
If no election as to the Type of Revolving Facility Borrowing is specified, then
the requested Revolving Facility Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with respect to any requested Eurocurrency
Borrowing, then the Borrower requesting such Eurocurrency Borrowing shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, each Swingline Lender agrees to make Swingline
Loans to any of the Borrowers from time to time during the Availability Period,
in an aggregate principal amount at any time outstanding that will not result in
(x) the aggregate principal amount of outstanding Swingline Loans exceeding the
Swingline Commitment or (y) the Revolving Facility Credit Exposure exceeding the
total Revolving Facility Commitments; provided that no Swingline Lender shall be
required to make a Swingline Loan to refinance an outstanding Swingline
Borrowing. Interest on Swingline Loans denominated in Foreign Currency will be
calculated based on the overnight
55
EURIBO Rate. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Borrowing, the applicable Borrower shall
notify the Administrative Agent and the Swingline Lenders of such request by
telephone (confirmed by a Swingline Borrowing Request by telecopy) (x) in the
case of a Swingline Borrowing denominated in Euros or Sterling, not later than
11:00 a.m., Local Time, one (1) Business Day before the date of the proposed
Swingline Borrowing or (y) in the case of a Swingline Borrowing denominated in
Dollars, not later than 11:00 a.m., Local Time on the day of the proposed
Swingline Borrowing. Each such notice and Swingline Borrowing Request shall be
irrevocable and shall specify (i) the requested date (which shall be a Business
Day), (ii) the amount of the requested Swingline Borrowing (expressed in
Dollars), (iii) in the case of a Swingline Borrowing denominated in Euros or
Sterling, the currency requested, (iv) the term of such Swingline Loan (which,
in the case of a Swingline Borrowing denominated in Euros or Sterling, shall not
be more than 7 Business Days) and (v) the location and number of the Borrower's
account to which funds are to be disbursed. Each Swingline Lender shall make
each Swingline Loan to be made by it hereunder in accordance with Section
2.02(a) on the proposed date thereof by wire transfer of immediately available
funds by 3:00 p.m., Local Time, to the account of the applicable Borrower (or,
in the case of a Swingline Borrowing made to finance the reimbursement of an L/C
Disbursement as provided in Section 2.05(e), by remittance to the applicable
Issuing Bank).
(c) A Swingline Lender may by written notice given to the
Administrative Agent (and to the other Swingline Lenders) not later than 10:00
a.m., Local Time on any Business Day, require the Revolving Facility Lenders to
acquire participations on such Business Day in all or a portion of the
outstanding Swingline Loans made by it. Such notice shall specify the aggregate
amount of such Swingline Loans in which the Revolving Facility Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each such Lender, specifying in such notice such Lender's
Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving
Facility Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent for the account of
the applicable Swingline Lender, such Revolving Facility Lender's Revolving
Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility
Lender acknowledges and agrees that its respective obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Facility Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Revolving Facility Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the applicable
Swingline Lender the amounts so received by it from the Revolving Facility
Lenders. The Administrative Agent shall notify the applicable Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph (c),
and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the applicable Swingline Lender. Any amounts
received by a Swingline Lender from the applicable Borrower (or other party on
behalf of such Borrower) in respect of a Swingline Loan after receipt by such
56
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Facility Lenders that shall have made their payments pursuant to
this paragraph and to such Swingline Lender, as their interests may appear;
provided that any such payment so remitted shall be repaid to such Swingline
Lender or to the Administrative Agent, as applicable, if and to the extent such
payment is required to be refunded to the applicable Borrower for any reason.
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Borrowers of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. On the Closing Date,
Citibank, N.A., in its capacity as an Issuing Bank shall issue the IR Letter of
Credit. Subject to the terms and conditions set forth herein, each Borrower may
request the issuance of Letters of Credit for its own account in a form
reasonably acceptable to the applicable Issuing Bank, at any time and from time
to time during the Availability Period and prior to the date that is five (5)
Business Days prior to the Revolving Facility Maturity Date. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by any Borrower to, or entered into by such Borrower with, an Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal (other than an automatic renewal in accordance with
paragraph (c) of this Section) or extension of an outstanding Letter of
Credit), a Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved
by the applicable Issuing Bank) to the applicable Issuing Bank and the
Administrative Agent (two (2) Business Days in advance of the requested
date of issuance, amendment, renewal or extension) a notice requesting the
issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date
on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit and
the currency (either in Dollars or a Foreign Currency) in which it is
denominated, the name and address of the beneficiary thereof and such
other information as shall be necessary to issue, amend, renew or extend
such Letter of Credit. If requested by the applicable Issuing Bank, a
Borrower also shall submit a letter of credit application on such Issuing
Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended
only if (and upon issuance, amendment, renewal or extension of each Letter
of Credit the applicable Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or
extension, (i) the Revolving L/C Exposure shall not exceed U.S.$300.0
million, (ii) the Revolving Facility Credit Exposure shall not exceed the
total Revolving Facility Commitments and (iii) the Equivalent in Dollars
of the Revolving L/C Exposure denominated in a Foreign Currency determined
on the date of such issuance, amendment, renewal or extension shall not
exceed (A) in the case such Foreign Currency is Euros, U.S.$200 million,
and (B) in the case such Foreign Currency is Sterling, U.S.$75 million.
57
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (A) the date one (1) year after
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension)
and (B) the date that is five (5) Business Days prior to the Revolving
Facility Maturity Date; provided that any Letter of Credit with a one-year
tenor may provide for the automatic renewal thereof for additional
one-year periods (which, in no event, shall extend beyond the date
referred to in clause (B) of this paragraph (c)).
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the
Revolving Facility Lenders, such Issuing Bank hereby grants to each
Revolving Facility Lender, and each Revolving Facility Lender hereby
acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Revolving Facility Lender's Revolving Facility Percentage of
the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Facility
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent in Dollars or the Foreign Currency in which such
Letter of Credit is denominated, as the case may be, for the account of
the applicable Issuing Bank, such Revolving Facility Lender's Revolving
Facility Percentage of each L/C Disbursement made by such Issuing Bank not
reimbursed by the applicable Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment required to
be refunded to the applicable Borrower for any reason. Each Revolving
Facility Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit
is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the applicable Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, the Borrower for which such
Letter of Credit was issued shall reimburse such L/C Disbursement by
paying to the Administrative Agent an amount equal to such L/C
Disbursement in Dollars or the Foreign Currency in which such Letter of
Credit is denominated, as the case may be, not later than 5:00 p.m., Local
time, on the Business Day immediately following the date such Borrower
receives notice under paragraph (g) of this Section of such L/C
Disbursement, provided that such Borrower may, subject to the conditions
to borrowing set forth herein, request in accordance with Section 2.03 or
2.04 that such payment be financed with an ABR Revolving Facility
Borrowing or a Swingline Borrowing or an Eurocurrency Revolving Loan
denominated in the applicable Foreign Currency, as applicable, in an
equivalent amount and, to the extent so financed, such Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Facility Borrowing or Swingline Borrowing or
Eurocurrency Revolving Loan. If any Borrower fails to reimburse any L/C
Disbursement when due, then the Administrative Agent shall promptly notify
the applicable Issuing Bank and each other
58
Revolving Facility Lender of the applicable L/C Disbursement, the payment
then due from such Borrower and, in the case of a Revolving Facility
Lender, such Lender's Revolving Facility Percentage thereof. Promptly
following receipt of such notice, each Revolving Facility Lender shall pay
to the Administrative Agent in Dollars or such Foreign Currency, as the
case may be, its Revolving Facility Percentage of the payment then due
from such Borrower, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Facility
Lenders), and the Administrative Agent shall promptly pay to the
applicable Issuing Bank in Dollars or such Foreign Currency, as the case
may be, the amounts so received by it from the Revolving Facility Lenders.
Promptly following receipt by the Administrative Agent of any payment from
such Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the applicable Issuing Bank or, to the extent
that Revolving Facility Lenders have made payments pursuant to this
paragraph to reimburse such Issuing Bank, then to such Lenders and such
Issuing Bank as their interests may appear. Any payment made by a
Revolving Facility Lender pursuant to this paragraph to reimburse an
Issuing Bank for any L/C Disbursement (other than the funding of an ABR
Revolving Loan or a Swingline Borrowing or an Eurocurrency Revolving Loan
as contemplated above) shall not constitute a Loan and shall not relieve
any Borrower of its obligation to reimburse such L/C Disbursement.
(f) Obligations Absolute. The obligation of each Borrower to
reimburse L/C Disbursements as provided in paragraph (e) of this Section
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the applicable Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing,
that might, but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, any
Borrower's obligations hereunder; provided that, in each case, payment by
the Issuing Bank shall not have constituted gross negligence or willful
misconduct. Neither the Administrative Agent, the Lenders nor any Issuing
Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer
of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay
in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required
to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of such
Issuing Bank; provided that the foregoing shall not be construed to excuse
the applicable Issuing Bank from liability to any Borrower to the extent
of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by each Borrower to the extent
permitted by applicable law) suffered by such
59
Borrower that are determined by a court having jurisdiction to have been
caused by (i) such Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof or (ii) such Issuing Bank's refusal
to issue a Letter of Credit in accordance with the terms of this
Agreement. The parties hereto expressly agree that, in the absence of
gross negligence or willful misconduct on the part of the applicable
Issuing Bank, such Issuing Bank shall be deemed to have exercised care in
each such determination and each refusal to issue a Letter of Credit. In
furtherance of the foregoing and without limiting the generality thereof,
the parties agree that, with respect to documents presented which appear
on their face to be in substantial compliance with the terms of a Letter
of Credit, the applicable Issuing Bank may, in its sole discretion, either
accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such
documents are not in strict compliance with the terms of such Letter of
Credit.
(g) Disbursement Procedures. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. Such Issuing
Bank shall promptly notify the Administrative Agent and the applicable
Borrower by telephone (confirmed by telecopy) of such demand for payment
and whether such Issuing Bank has made or will make a L/C Disbursement
thereunder; provided that any failure to give or delay in giving such
notice shall not relieve any Borrower of its obligation to reimburse such
Issuing Bank and the Revolving Facility Lenders with respect to any such
L/C Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any L/C
Disbursement, then, unless the applicable Borrower shall reimburse such
L/C Disbursement in full on the date such L/C Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including
the date such L/C Disbursement is made to but excluding the date that such
Borrower reimburses such L/C Disbursement, at the rate per annum then
applicable to ABR Revolving Loans or Eurocurrency Revolving Loans
denominated in the applicable Foreign Currency, as applicable; provided
that, if such L/C Disbursement is not reimbursed by such Borrower when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall
apply; provided further that any L/C Disbursement that is reimbursed after
the date such L/C Disbursement is required to be reimbursed under
paragraph (e) of this Section, (A) be payable in Dollars or the Foreign
Currency in which such Letter of Credit is denominated, as the case may
be, (B) bear interest at the rate per annum then applicable to ABR
Revolving Loans or Eurocurrency Revolving Loans denominated in the
applicable Foreign Currency, as applicable, and (C) Section 2.13(c) shall
apply. Interest accrued pursuant to this paragraph shall be for the
account of the applicable Issuing Bank, except that interest accrued on
and after the date of payment by any Revolving Facility Lender pursuant to
paragraph (e) of this Section to reimburse such Issuing Bank shall be for
the account of such Revolving Facility Lender to the extent of such
payment.
(i) Replacement of an Issuing Bank. An Issuing Bank may be replaced
at any time by written agreement among the Borrowers, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the
60
Lenders of any such replacement of an Issuing Bank. At the time any such
replacement shall become effective, each Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12. From and after the effective date of any such replacement,
(i) the successor Issuing Bank shall have all the rights and obligations
of the replaced Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of such Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior
to such replacement but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
be continuing, (i) in the case of an Event of Default described in Section
7.01(h) or (i), on the Business Day or (ii) in the case of any other Event
of Default, on the third Business Day, in each case, following the date on
which any Borrower receives notice from the Administrative Agent (or, if
the maturity of the Loans has been accelerated, Revolving Facility Lenders
with Revolving L/C Exposure representing greater than 50% of the total
Revolving L/C Exposure) demanding the deposit of cash collateral pursuant
to this paragraph, such Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in Dollars in cash equal to the
Revolving L/C Exposure as of such date plus any accrued and unpaid
interest thereon; provided that, upon the occurrence of any Event of
Default with respect to any Borrower described in clause (h) or (i) of
Section 7.01, the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable in Dollars or such Foreign Currency, without demand or other
notice of any kind. Each Borrower also shall deposit cash collateral
pursuant to this paragraph as and to the extent required by Section
2.11(b). Each such deposit pursuant to this paragraph or pursuant to
Section 2.11(b) shall be held by the Administrative Agent as collateral
for the payment and performance of the obligations of the applicable
Borrower under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option
and sole discretion of (i) for so long as an Event of Default shall be
continuing, the Administrative Agent and (ii) at any other time, the
applicable Borrower, in each case, in Permitted Investments and at the
risk and expense of such Borrower, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative
Agent to reimburse each Issuing Bank for L/C Disbursements for which such
Issuing Bank has not been reimbursed and, to the extent not so applied,
shall be held for the satisfaction of the reimbursement obligations of the
applicable Borrower for the Revolving L/C Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Revolving Facility Lenders with Revolving L/C Exposure representing
greater than 50% of the total Revolving L/C Exposure), be applied to
satisfy other obligations of such Borrower under this Agreement. If any
Borrower is required to provide an amount of cash collateral hereunder as
a result of the occurrence of
61
an Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to such Borrower within three (3) Business Days after
all Events of Default have been cured or waived. If any Borrower is
required to provide an amount of cash collateral hereunder pursuant to
Section 2.11(b), such amount (to the extent not applied as aforesaid)
shall be returned to such Borrower as and to the extent that, after giving
effect to such return, such Borrower would remain in compliance with
Section 2.11(b) and no Event of Default shall have occurred and be
continuing.
(k) Additional Issuing Banks. From time to time, the Borrowers may
by notice to the Administrative Agent designate up to three Lenders (in
addition to Citibank, N.A.) that agree (in their sole discretion) to act
in such capacity and are reasonably satisfactory to the Administrative
Agent as Issuing Banks. Each such additional Issuing Bank shall execute a
counterpart of this Agreement upon the approval of the Administrative
Agent (which approval shall not be unreasonably withheld) and shall
thereafter be an Issuing Bank hereunder for all purposes.
(l) Reporting. Unless otherwise requested by the Administrative
Agent, each Issuing Bank shall (i) provide to the Administrative Agent
copies of any notice received from any Borrower pursuant to Section
2.05(b) no later than the next Business Day after receipt thereof and (ii)
report in writing to the Administrative Agent (A) on or prior to each
Business Day on which such Issuing Bank expects to issue, amend, renew or
extend any Letter of Credit, the date of such issuance, amendment, renewal
or extension, and the aggregate face amount of the Letters of Credit to be
issued, amended, renewed or extended by it and outstanding after giving
effect to such issuance, amendment, renewal or extension occurred (and
whether the amount thereof changed), and the Issuing Bank shall be
permitted to issue, amend, renew or extend such Letter of Credit if the
Administrative Agent shall not have advised the Issuing Bank that such
issuance, amendment renewal or extension would not be in conformity with
the requirements of this Agreement, (B) on each Business Day on which such
Issuing Bank makes any L/C Disbursement, the date of such L/C Disbursement
and the amount of such L/C Disbursement and (C) on any other Business Day,
such other information as the Administrative Agent shall reasonably
request, including but not limited to prompt verification of such
information as may be requested by the Administrative Agent. If requested
by any Lender, the Administrative Agent shall provide copies to such
Lender of the reports referred to in clause (ii) of the preceding sentence
and a summary of such reports on a monthly basis.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds, (i) in the case of a Loan denominated in Dollars,
in Dollars, by 12:00 noon, Local Time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders,
and (ii) in the case of a Loan denominated in a Foreign Currency, in the
applicable Foreign Currency, by 12:00 noon, Local Time, to the account of the
Sub-Agent most recently designated by the Administrative Agent for such purpose
by notice to the Lenders, as the case may be; provided that Swingline Loans
shall be made as provided in Section 2.04. The Administrative Agent will make
such Loans available to the applicable Borrower by promptly crediting the
amounts so received, in like funds, to an account of such
62
Borrower maintained with the Administrative Agent in New York City or as
otherwise agreed between such Borrower and the Administrative Agent, and
designated by such Borrower in the Borrowing Request; provided that ABR
Revolving Loans, Swingline Borrowings and Eurocurrency Revolving Loans made to
finance the reimbursement of a L/C Disbursement and reimbursements as provided
in Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank.
(b) Unless the Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand (without duplication) such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to such Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender, (A) for
Loans denominated in Dollars, the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation and (B) for Loans denominated in a Foreign Currency,
the greatest of the Federal Funds Rate, the cost of funds incurred by the
Administrative Agent or Sub-Agent in respect of such amount and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of such Borrower, (A) for Loans
denominated in Dollars, the interest rate applicable to ABR Loans and (B) for
Loans denominated in a Foreign Currency, the greater of the interest rate
applicable to ABR Loans and the cost of funds incurred by the Administrative
Agent or Sub-Agent in respect of such amount. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Borrowing denominated in
Dollars initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, each
Borrower may elect, in the case of a Borrowing denominated in Dollars, to
convert such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all
as provided in this Section. Each Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, a Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if such Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by
63
hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the applicable Borrower.
(b) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) in the case of a Borrowing denominated in Dollars, whether the
resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election.
If any such Interest Election Request made by any Borrower requests a
Eurocurrency Borrowing but does not specify an Interest Period, then such
Borrower shall be deemed to have selected an Interest Period of one month's
duration.
(c) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender to which such Interest Election
Request relates of the details thereof and of such Lender's portion of each
resulting Borrowing.
(d) If any Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period, (i) if such Borrowing is
denominated in Dollars, such Borrower shall be deemed to have converted such
Borrowing to an ABR Borrowing, and (ii) if such Borrowing is denominated in a
Foreign Currency, such Borrower shall be deemed to have selected a one-month
Interest Period for such Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the written request (including a request through
electronic means) of the Required Lenders, so notifies such Borrower, then, so
long as an Event of Default is continuing, (i) no outstanding Borrowing may be
converted to or continued as a Eurocurrency Borrowing, (ii) unless repaid, each
Eurocurrency Borrowing denominated in Dollars shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto and (iii) unless
repaid, each Eurocurrency Borrowing denominated in a Foreign Currency shall bear
interest calculated on the one-week EURIBO Rate.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Revolving Facility Commitments shall terminate on the
Revolving Facility Maturity Date. The parties hereto acknowledge that the
Tranche B Term Loan Commitments will terminate at 5 p.m. New York City time on
the Closing Date.
64
(b) Each Borrower may at any time terminate, or from time to time
reduce, the Commitments under any Facility; provided that (i) each reduction of
the Commitments under any Facility shall be in an amount that is an integral
multiple of U.S.$1.0 million and not less than U.S.$5.0 million (or, if less,
the remaining amount of the Revolving Facility Commitments) and (ii) no Borrower
shall terminate or reduce the Revolving Facility Commitments if, after giving
effect to any concurrent prepayment of the Revolving Facility Loans in
accordance with Section 2.11, the Revolving Facility Credit Exposure would
exceed the total Revolving Facility Commitments.
(c) Each Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Facility Commitments under
paragraph (b) of this Section at least three (3) Business Days prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the applicable Lenders of the contents
thereof. Each notice delivered by any Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving Facility
Commitments delivered by such Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by such Borrower (by notice to the Administrative Agent on or prior
to the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent. Each reduction
of the Commitments under any Facility shall be made ratably among the Lenders in
accordance with their respective Commitments under such Facility.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Revolving Facility Lender the then unpaid principal
amount of each Revolving Facility Loan to such Borrower on the Revolving
Facility Maturity Date, (ii) to the Administrative Agent for the account of each
Tranche B Dollar Term Lender the then unpaid principal amount of each Tranche B
Dollar Term Loan of such Lender to such Borrower on such dates and in such
amounts as provided in Section 2.10, (iii) to the Administrative Agent for the
account of each Tranche B Euro Term Lender the then unpaid principal amount of
each Tranche B Euro Term Loan of such Lender to such Borrower on such dates and
in such amounts as provided in Section 2.10 and (iv) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan made to such Borrower on the
earlier of the Revolving Facility Maturity Date and the first date after such
Swingline Loan is made that is the 15th or last day of a calendar month and is
at least seven Business Days after such Swingline Loan is made; provided that on
each date that a Revolving Facility Borrowing (other than a Borrowing that is
required to finance the reimbursement of an L/C Disbursement as contemplated by
Section 2.05(e)) is made by the Domestic Borrower, the Domestic Borrower shall
repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Facility and Type
thereof and the Interest
65
Period (if any) applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) any amount received by such Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it to any Borrower be
evidenced by a promissory note substantially in the form of Exhibit L-1 or
Exhibit L-2, as applicable. In such event, each such Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Repayment of Term Loans and Revolving Facility Loans.
(a) (i) Subject to adjustment pursuant to paragraph (c) of this Section, the
Domestic Borrower and the UK Borrower shall repay Tranche B Dollar Term
Borrowings on each date set forth below in the aggregate principal amount set
forth opposite such date in respect of such Borrower (each such date being
referred to as a "Tranche B Dollar Installment Date"):
Domestic Borrower UK Borrower
Date Amount Amount
- ------------------------------ ----------------- ---------------
December 31, 2004 U.S.$ 700,000 U.S.$ 37,500
March 31, 2005 U.S.$ 700,000 U.S.$ 37,500
June 30, 2005 U.S.$ 700,000 U.S.$ 37,500
September 30, 2005 U.S.$ 700,000 U.S.$ 37,500
December 31, 2005 U.S.$ 700,000 U.S.$ 37,500
March 31, 2006 U.S.$ 700,000 U.S.$ 37,500
June 30, 2006 U.S.$ 700,000 U.S.$ 37,500
September 30, 2006 U.S.$ 700,000 U.S.$ 37,500
December 31, 2006 U.S.$ 700,000 U.S.$ 37,500
March 31, 2007 U.S.$ 700,000 U.S.$ 37,500
June 30, 2007 U.S.$ 700,000 U.S.$ 37,500
September 30, 2007 U.S.$ 700,000 U.S.$ 37,500
December 31, 2007 U.S.$ 700,000 U.S.$ 37,500
March 31, 2008 U.S.$ 700,000 U.S.$ 37,500
June 30, 2008 U.S.$ 700,000 U.S.$ 37,500
September 30, 2008 U.S.$ 700,000 U.S.$ 37,500
December 31, 2008 U.S.$ 700,000 U.S.$ 37,500
March 31, 2009 U.S.$ 700,000 U.S.$ 37,500
66
Domestic Borrower UK Borrower
Date Amount Amount
- ------------------------------ ----------------- ---------------
June 30, 2009 U.S.$ 700,000 U.S.$ 37,500
September 30, 2009 U.S.$ 700,000 U.S.$ 37,500
December 31, 2009 U.S.$ 700,000 U.S.$ 37,500
March 31, 2010 U.S.$ 700,000 U.S.$ 37,500
June 30, 2010 U.S.$ 700,000 U.S.$ 37,500
September 30, 2010 U.S.$ 700,000 U.S.$ 37,500
December 31, 2010 U.S.$ 700,000 U.S.$ 37,500
March 31, 2011 U.S.$ 700,000 U.S.$ 37,500
June 30, 2011 U.S.$ 700,000 U.S.$ 37,500
Tranche B Dollar Maturity Date U.S.$261,100,000 U.S.$13,987,500
In the event that any New Tranche B Term Loans denominated in Dollars are made
on an Increased Amount Date, the amount due on each Tranche B Dollar Installment
Date (other than the Tranche B Dollar Maturity Date) occurring after the
Increased Amount Date shall increase by an amount equal to 1/4 of 1% per annum
of the principal amount of such New Tranche B Term Loans, with the remaining
principal amount of such New Tranche B Term Loans being repaid on the Tranche B
Dollar Maturity Date.
(ii) Subject to adjustment pursuant to paragraph (c) of this
Section, the French Borrower shall repay Tranche B Euro Term Borrowings on
each date set forth below in the aggregate principal amount set forth
opposite such date (each such date being referred to as a "Tranche B Euro
Installment Date"):
Date French Borrower Amount
- ---------------------------- ----------------------
December 31, 2004 (euro) 196,250
March 31, 2005 (euro) 196,250
June 30, 2005 (euro) 196,250
September 30, 2005 (euro) 196,250
December 31, 2005 (euro) 196,250
March 31, 2006 (euro) 196,250
June 30, 2006 (euro) 196,250
September 30, 2006 (euro) 196,250
December 31, 2006 (euro) 196,250
March 31, 2007 (euro) 196,250
June 30, 2007 (euro) 196,250
September 30, 2007 (euro) 196,250
December 31, 2007 (euro) 196,250
March 31, 2008 (euro) 196,250
June 30, 2008 (euro) 196,250
September 30, 2008 (euro) 196,250
December 31, 2008 (euro) 196,250
March 31, 2009 (euro) 196,250
June 30, 2009 (euro) 196,250
September 30, 2009 (euro) 196,250
67
Date French Borrower Amount
- ---------------------------- ----------------------
December 31, 2009 (euro) 196,250
March 31, 2010 (euro) 196,250
June 30, 2010 (euro) 196,250
September 30, 2010 (euro) 196,250
December 31, 2010 (euro) 196,250
March 31, 2011 (euro) 196,250
June 30, 2011 (euro) 196,250
Tranche B Euro Maturity Date (euro)73,201,250
In the event that any New Tranche B Term Loans denominated in Euros are made on
an Increased Amount Date, the amount due on each Tranche B Euro Installment Date
(other than the Tranche B Euro Maturity Date) occurring after the Increased
Amount Date shall increase by an amount equal to 1/4 of 1% per annum of the
principal amount of such New Tranche B Term Loans, with the remaining principal
amount of such New Tranche B Term Loans being repaid on the Tranche B Euro
Maturity Date.
(b) To the extent not previously paid, all Tranche B Dollar Term
Loans shall be due and payable on the Tranche B Dollar Maturity Date and to the
extent not previously paid, all Tranche B Euro Term Loans shall be due and
payable on the Tranche B Euro Maturity Date.
(c) Prepayment of the Tranche B Term Borrowings from:
(i) all Net Proceeds or Acquisition Agreement Payments pursuant to
Section 2.11(c) or 2.11(e), respectively, shall be applied ratably
(determined by the Equivalent in Dollars three (3) Business Days prior to
the date of payment) to the Tranche B Dollar Facility and the Tranche B
Euro Facility and, in respect of each such Facility, shall be applied to
reduce on a pro rata basis (based on the amount of such amortization
payments) the remaining scheduled amortization payments in respect of such
Term Borrowings; and
(ii) Excess Cash Flow pursuant to Section 2.11(d) and any optional
prepayments pursuant to Section 2.11(a) shall be applied to the Tranche B
Dollar Facility and the Tranche B Euro Facility as directed by the
Domestic Borrower or the Foreign Borrowers, as applicable.
(d) Any Lender holding Term Loans may elect, on not less than two
Business Days' prior written notice to the Administrative Agent with respect to
any mandatory prepayment made pursuant to Section 2.11(c), Section 2.11(d) or
Section 2.11(e), not to have such prepayment applied to such Lender's Term
Loans, in which case, the full amount not so applied shall be retained by the
Domestic Borrower or the Foreign Borrowers, as applicable.
(e) Prior to any repayment of any Borrowing under any Facility
hereunder, a Borrower shall select the Borrowing or Borrowings under the
applicable Facility to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 2:00 p.m.,
Local Time, (i) in the case of an ABR Borrowing, one Business Day before
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the scheduled date of such repayment and (ii) in the case of a Eurocurrency
Borrowing, three Business Days before the scheduled date of such repayment. Each
repayment of a Borrowing (x) in the case of the Revolving Facility, shall be
applied to the Revolving Facility Loans included in the repaid Borrowing such
that each Revolving Facility Lender receives its ratable share of such repayment
(based upon the respective Revolving Facility Credit Exposures of the Revolving
Facility Lenders at the time of such repayment) and (y) in all other cases,
shall be applied ratably to the Loans included in the repaid Borrowing.
Notwithstanding anything to the contrary in the immediately preceding sentence,
prior to any repayment of a Swingline Borrowing hereunder, the Domestic Borrower
shall select the Borrowing or Borrowings to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 1:00 p.m., Local Time, on the scheduled date of such repayment.
Repayments of Borrowings shall be accompanied by accrued interest on the amount
repaid.
SECTION 2.11. Prepayment of Loans. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, without premium or penalty (but subject to Section 2.16), in an aggregate
principal amount that is an integral multiple of the Borrowing Multiple and not
less than the Borrowing Minimum or, if less, the amount outstanding, subject to
prior notice in accordance with Section 2.10(e).
(b) If on any date, the Administrative Agent notifies the Domestic
Borrower that, on the last day of any month, the sum of (A) the sum of aggregate
principal amount of all Revolving Facility Loans denominated in Dollars plus the
aggregate principal amount of all Letters of Credit denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (determined on the third Business
Day prior to such interest payment date) of the sum of the aggregate principal
amount of all Revolving Facility Loans denominated in Foreign Currencies plus
the aggregate principal amount of all Letters of Credit denominated in Foreign
Currencies then outstanding exceeds 105% of the aggregate Revolving Facility
Commitments of the Lenders on such date, the Domestic Borrower and each other
Borrower shall, as soon as practicable and in any event within two Business Days
following such date, prepay the outstanding principal amount of any Revolving
Facility Loans owing by such Borrower in an aggregate amount (or deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.05(j)) sufficient to reduce such sum to an amount not to exceed 100% of the
aggregate Revolving Facility Commitments of the Lenders on such date together
with any interest accrued to the date of such prepayment on the aggregate
principal amount of Revolving Facility Loans prepaid. The Administrative Agent
shall give prompt notice of any prepayment required under this Section 2.11(b)
to the Domestic Borrower and the Lenders.
(c) Each Borrower shall apply all Net Proceeds upon receipt thereof
to prepay Tranche B Term Borrowings in accordance with paragraphs (c) and (d) of
Section 2.10.
(d) Not later than 90 days after the end of each Excess Cash Flow
Period, the Domestic Borrower shall calculate Excess Cash Flow for such Excess
Cash Flow Period and the Domestic Borrower or any Foreign Borrower, as
applicable, shall apply an aggregate amount equal to the Required Percentage of
such Excess Cash Flow to prepay Tranche B Term Borrowings in accordance with
paragraphs (c) and (d) of Section 2.10. Not later than the date on which the
Domestic Borrower is required to deliver financial statements with respect to
the end of each Excess Cash Flow Period under Section 5.04(a), the Domestic
Borrower will deliver to
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the Administrative Agent a certificate signed by a Financial Officer of the
Domestic Borrower setting forth the amount, if any, of Excess Cash Flow for such
fiscal year and the calculation thereof in reasonable detail.
(e) Following the receipt of any Acquisition Agreement Payments,
each Borrower shall prepay, or cause to be prepaid, Term Borrowings in
accordance with paragraphs (c) and (d) of Section 2.10.
SECTION 2.12. Fees. (a) The Domestic Borrower agrees to pay to each
Lender (other than any Defaulting Lender), through the Administrative Agent, 10
Business Days after the last day of March, June, September and December in each
year, and three Business Days after the date on which the Revolving Facility
Commitments of all the Lenders shall be terminated as provided herein, a
commitment fee (a "Commitment Fee") on the daily amount of the Available Unused
Commitment of such Lender during the preceding quarter (or other period
commencing with the Closing Date and ending with the date on which the last of
the Commitments of such Lender shall be terminated) at the rate per annum set
forth under the caption "Commitment Fee" below based upon the Leverage Ratio as
of the most recent determination date; provided that until the Trigger Date, the
Leverage Ratio shall be deemed to be Category 1.
Leverage Ratio Commitment Fee
-------------- --------------
Category 1
Equal to or greater than 4.00 to 1.00 0.50%
Category 2
Less than 4.00 to 1.00 0.375%
All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. For the purpose of calculating any
Lender's Commitment Fee, the outstanding Swingline Loans during the period for
which such Lender's Commitment Fee is calculated shall be deemed to be zero. The
Commitment Fee due to each Lender shall begin to accrue on the Closing Date and
shall cease to accrue on the date on which the last of the Commitments of such
Lender shall be terminated as provided herein.
(b) The Domestic Borrower from time to time agrees to pay to each
Revolving Facility Lender (other than any Defaulting Lender), through the
Administrative Agent, 10 Business Days after the last day of March, June,
September and December of each year and three Business Days after the date on
which the Revolving Facility Commitments of all the Lenders shall be terminated
as provided herein, a fee (an "L/C Participation Fee") on such Lender's
Revolving Facility Percentage of the daily aggregate Revolving L/C Exposure
(excluding the portion thereof attributable to unreimbursed L/C Disbursements),
during the preceding quarter (or shorter period commencing with the Closing Date
and ending with the Revolving Facility Maturity Date or the date on which the
Revolving Facility Commitments shall be terminated) at the rate per annum equal
to the Applicable Margin for Eurocurrency Revolving Facility Borrowings
effective for each day in such period. Each Borrower from time to time agrees to
pay to each Issuing Bank, for its own account, (x) 10 Business Days after the
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last day of March, June, September and December of each year and three Business
Days after the date on which the Revolving Facility Commitments of all the
Lenders shall be terminated as provided herein, a fronting fee in respect of
each Letter of Credit issued by such Issuing Bank at the request of such
Borrower for the period from and including the date of issuance of such Letter
of Credit to and including the termination of such Letter of Credit (computed at
a rate equal to 1/4 of 1% per annum of the daily average stated amount of such
Letter of Credit), plus (y) in connection with the issuance, amendment or
transfer of any such Letter of Credit or any L/C Disbursement thereunder, such
Issuing Bank's customary documentary and processing charges (collectively,
"Issuing Bank Fees"). All L/C Participation Fees and Issuing Bank Fees that are
payable on a per annum basis shall be computed on the basis of the actual number
of days elapsed in a year of 360 days.
(c) The Domestic Borrower agrees to pay to the Administrative Agent,
for the account of the Administrative Agent, the fees set forth in the Fee
Letter, dated as of August 25, 2004, as amended, restated, supplemented or
otherwise modified from time to time, at the times specified therein (the
"Administrative Agent Fees").
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that Issuing Bank Fees shall be paid
directly to the applicable Issuing Banks. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.13. Interest. (a) Each Borrower shall pay interest on the
unpaid principal amount of each ABR Loan made to such Borrower at the Alternate
Base Rate plus the Applicable Margin.
(b) Each Borrower shall pay interest on the unpaid principal amount
of each Eurocurrency Loan made to such Borrower at the Adjusted LIBO Rate for
the Interest Period in effect for such Eurocurrency Loan plus the Applicable
Margin.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any Fees or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
Borrower shall pay interest on such overdue amount, after as well as before
judgment, at a rate per annum equal to (x) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (y) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided in paragraph (a) of this
Section; provided that this paragraph (c) shall not apply to any Event of
Default that has been waived by the Lenders pursuant to Section 9.08.
(d) Accrued interest on each Loan shall be payable by the applicable
Borrower in arrears (i) on each Interest Payment Date for such Loan, (ii) in the
case of Revolving Facility Loans, upon termination of the Revolving Facility
Commitments, (iii) in the case of the Tranche B Dollar Term Loans, on the
Tranche B Dollar Maturity Date and (iv) in the case of the Tranche B Euro Term
Loans, on the Tranche B Euro Maturity Date; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan
71
prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurocurrency Loan
prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that (i) all interest on Loans denominated in Sterling shall
be computed on the basis of a year of 365 days (or 366 days in a leap year) and
(ii) interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the Base Rate shall be computed on the basis of
a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate,
LIBO Rate or EURIBO Rate shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the LIBO Rate or the EURIBO Rate,
as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders or
the Majority Lenders under the Revolving Facility that the Adjusted LIBO Rate,
the LIBO Rate or the EURIBO Rate, as applicable, for such Interest Period will
not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective
and such Borrowing, if denominated in Dollars, shall be converted to, and if
denominated in Euros, shall be exchanged into the Equivalent thereof in Dollars
and converted to, an ABR Borrowing, in each case on the last day of the Interest
Period applicable thereto, and (ii) if any Borrowing Request requests a
Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing or
shall be made as a Borrowing bearing interest at such rate as the Majority
Lenders under the Revolving Facility shall agree adequately reflects the costs
to the Revolving Facility Lenders of making the Loans comprising such Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by,
72
any Lender (except any such reserve requirement reflected in the Adjusted
LIBO Rate or those for which payment has been requested pursuant to
Section 2.20) or Issuing Bank; or
(ii) impose on any Lender or Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurocurrency Loans
made by such Lender or any Letter of Credit or participation therein
(except those for which payment has been requested pursuant to Section
2.20);
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) to any Borrower or to increase the cost to
such Lender or Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or Issuing Bank hereunder (whether of principal, interest or
otherwise), then such Borrower will pay to such Lender or Issuing Bank, as
applicable, such additional amount or amounts as will compensate such Lender or
Issuing Bank, as applicable, for such additional costs incurred or reduction
suffered.
(b) If any Lender or Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or Issuing Bank's capital or on the capital of such
Lender's or Issuing Bank's holding company, if any, as a consequence of this
Agreement or any of the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect to
capital adequacy), then from time to time each Borrower to which such Loans were
made or are to be made shall pay to such Lender or such Issuing Bank, as
applicable, such additional amount or amounts as will compensate such Lender or
such Issuing Bank or such Lender's or such Issuing Bank's holding company for
any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) of this
Section shall be delivered to the applicable Borrower and shall be conclusive
absent manifest error. Each Borrower shall pay such Lender or Issuing Bank, as
applicable, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Promptly after any Lender or any Issuing Bank has determined
that it will make a request for increased compensation pursuant to this Section
2.15, such Lender or Issuing Bank shall notify the Borrowers thereof. Failure or
delay on the part of any Lender or Issuing Bank to demand compensation pursuant
to this Section shall not constitute a waiver of such Lender's or Issuing Bank's
right to demand such compensation; provided that no Borrower shall be required
to compensate a Lender or an Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that
such Lender or Issuing Bank, as applicable, notifies such Borrower of the Change
in Law giving rise to such increased costs or reductions and of such Lender's or
Issuing Bank's intention to claim compensation
73
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurocurrency Loan on the date specified in any notice
delivered pursuant hereto or (d) the assignment of any Eurocurrency Loan other
than on the last day of the Interest Period applicable thereto as a result of a
request by any Borrower pursuant to Section 2.19, then, in any such event, such
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, such loss, cost
or expense to any Lender shall be deemed to be the amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue a
Eurocurrency Loan, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for deposits in Dollars
if such Loan is denominated in Dollars or the applicable Foreign Currency if
such Loan is denominated in such Foreign Currency, as the case may be, of a
comparable amount and period from other banks in the Eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to such
Borrower and shall be conclusive absent manifest error. Such Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of
any obligation of any Loan Party under any Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if a Loan Party shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) any Agent, Lender or
Issuing Bank, as applicable, receives an amount equal to the sum it would have
received had no such deductions for Indemnified Taxes and Other Taxes been made,
(ii) such Loan Party shall make such deductions and (iii) such Loan Party shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, each Loan Party shall pay any Other Taxes payable
on account of any obligation of such Loan Party to the relevant Governmental
Authority in accordance with applicable law.
(c) Each Loan Party shall indemnify each Agent, each Lender and each
Issuing Bank, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes (other than Indemnified Taxes or Other
Taxes resulting from
74
gross negligence or willful misconduct of such Agent, Lender or Issuing Bank and
without duplication of any amounts indemnified under Section 2.17(a)) paid by
such Agent, Lender or Issuing Bank, as applicable, on or with respect to any
payment by or on account of any obligation of such Loan Party under any Loan
Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability and setting forth in reasonable detail the calculation for such
payment or liability delivered to such Loan Party by a Lender or an Issuing
Bank, or by the Administrative Agent on its own behalf, on behalf of another
Agent or on behalf of a Lender or an Issuing Bank, shall be conclusive absent
manifest error of the Lender, the Issuing Bank or the Administrative Agent.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by a Loan Party to a Governmental Authority, such Loan Party shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Lender, Agent or Issuing Bank that is entitled to an
exemption from or reduction of withholding Tax otherwise indemnified against by
a Loan Party pursuant to this Section 2.17 with respect to payments under any
Loan Document shall deliver to the relevant Borrower or the relevant
Governmental Authority (with a copy to the Administrative Agent), to the extent
such Lender, Agent or Issuing Bank is legally entitled to do so, at the time or
times prescribed by applicable law such properly completed and executed
documentation prescribed by applicable law as may reasonably be requested by
such Borrower to permit such payments to be made without such withholding tax or
at a reduced rate; provided that no Lender shall have any obligation under this
paragraph (e) with respect to any withholding Tax imposed by any jurisdiction
other than the United States or the jurisdiction under the laws of which any
Borrower is organized or in which it is treated as a tax resident if in the
reasonable judgment of such Lender such compliance would subject such Lender to
any material cost or expense not reimbursed or indemnified by the Loan Parties
or would otherwise prejudice such Lender's interest in any material respect.
(f) If an Agent, Lender or Issuing Bank determines, in good faith
and in its sole discretion, that it has received a refund of any taxes in
respect of or calculated with reference to Indemnified Taxes or Other Taxes as
to which it has been indemnified by a Loan Party or with respect to which a Loan
Party has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to such Loan Party (but only to the extent of indemnity
payments made, or additional amounts paid, by such Loan Party under this Section
2.17 with respect to the Indemnified Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Agent, Lender or Issuing Bank
(including any Taxes imposed with respect to such refund) as is determined by
the Agent, Lender or Issuing Bank in good faith and in its sole discretion, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that such Loan Party, upon the
request of such Agent, Lender or Issuing Bank, agrees to repay as soon as
reasonably practicable the amount paid over to such Loan Party (plus any
penalties, interest or other charges imposed
75
by the relevant Governmental Authority) to such Agent, Lender or Issuing Bank in
the event such Agent, Lender or Issuing Bank is required to repay such refund to
such Governmental Authority. This Section shall not be construed to require any
Agent, Lender or Issuing Bank to make available its tax returns (or any other
information relating to its Taxes which it deems confidential) to the Loan
Parties or any other Person.
(g) A Loan Party is not required to pay an increased amount to a
Lender or Agent under clause (a) of this Section 2.17 in respect of any
Indemnified Tax that is required by the United Kingdom to be deducted from any
payment by that Loan Party of interest on a Loan to a Borrower incorporated in
the United Kingdom, if on the date on which the payment falls due (i) the
payment could have been made to the relevant Lender or Agent without deduction
of the relevant Indemnified Tax if the relevant Lender was a Qualifying Lender,
but on that date that Lender is not or has ceased to be a Qualifying Lender
other than as a result of any change after the date it became a Lender under
this Agreement in (or in the interpretation, administration, or application of)
any law or Treaty, or any published practice or concession of any relevant
Governmental Authority; or (ii) the relevant Lender is a Treaty Lender (as
defined in the definition of Qualifying Lender) and the Loan Party making the
payment is able to demonstrate that the payment could have been made to the
relevant Lender or Agent without deduction of the relevant Indemnified Tax had
the relevant Lender complied with its obligations under clause (e) of this
Section 2.17.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Unless otherwise specified, each Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of L/C Disbursements, or of amounts payable under Section 2.15,
2.16, 2.17 or 2.20, or otherwise) prior to 2:00 p.m., Local Time, on the date
when due, in immediately available funds, without condition or deduction for any
defense, recoupment, set-off or counterclaim. Any amounts received after such
time on any date may, in the discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent to the applicable account designated to the Borrowers by
the Administrative Agent, except payments to be made directly to the applicable
Issuing Bank or the applicable Swingline Lender as expressly provided herein and
except that payments pursuant to Sections 2.15, 2.16, 2.17, 2.20 and 9.05 shall
be made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. Except for Loans denominated in any Foreign Currency (the
principal of and interest on which hereunder shall be paid in such Foreign
Currency) and except for reimbursement obligations with respect to any Letter of
Credit denominated in any Foreign Currency (which shall be paid in such Foreign
Currency), all payments hereunder of (i) principal or interest in respect of any
Loan, (ii) reimbursement obligations with respect to any Letter of Credit or
(iii) any other amount due hereunder or under any other Loan Document shall be
made in Dollars. Any payment required to be made by the Administrative Agent
hereunder shall be deemed to have been made by the time required if such
Administrative Agent shall, at or before such time, have taken the necessary
steps to make such payment in accordance with the regulations or operating
76
procedures of the clearing or settlement system used by such Administrative
Agent to make such payment.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent from any Borrower to pay fully all amounts of
principal, unreimbursed L/C Disbursements, interest and fees then due from such
Borrower hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due from such Borrower hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal and
unreimbursed L/C Disbursements then due from such Borrower hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim, through the application of any proceeds of Collateral or
otherwise, obtain payment in respect of any principal of or interest on any of
its Term Loans, Revolving Facility Loans or participations in L/C Disbursements
or Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Term Loans, Revolving Facility Loans
and participations in L/C Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Term Loans, Revolving Facility Loans and participations in
L/C Disbursements and Swingline Loans of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective Term Loans, Revolving Facility Loans and participations in L/C
Disbursements and Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph (c) shall not be construed to apply to any payment
made by any Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in L/C Disbursements to any assignee or participant, other than to such Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph (c) shall apply). Each Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the applicable Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the applicable Issuing
Bank hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the applicable Issuing Bank, as applicable, the amount due. In such
event, if such Borrower has not in fact made such payment, then each of the
Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay
to the Administrative Agent
77
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
(f) To the extent that the Administrative Agent receives funds for
application to the amounts owing by any Borrower under or in respect of this
Agreement in currencies other than the currency or currencies required to enable
the Administrative Agent to distribute funds to the Lenders in accordance with
the terms of this Section 2.18, the Administrative Agent shall be entitled to
convert or exchange such funds into Dollars or into a Foreign Currency or from
Dollars to a Foreign Currency or from a Foreign Currency to Dollars, as the case
may be, to the extent necessary to enable the Agent to distribute such funds in
accordance with the terms of this Section 2.18; provided that each Borrower and
each of the Lenders hereby agree that the Administrative Agent shall not be
liable or responsible for any loss, cost or expense suffered by such Borrower or
such Lender as a result of any conversion or exchange of currencies affected
pursuant to this Section 2.18(f) or as a result of the failure of the
Administrative Agent to effect any such conversion or exchange; and provided
further that each applicable Borrower agrees to indemnify the Administrative
Agent and each Lender, and hold the Administrative Agent and each Lender
harmless, for any and all losses, costs and expenses incurred by the
Administrative Agent or any Lender for any conversion or exchange of currencies
(or the failure to convert or exchange any currencies) in accordance with this
Section 2.18(f).
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15 or 2.20, or if any Loan
Party is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15, 2.17 or 2.20, as
applicable, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender in any material respect. The relevant Loan Party hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15 or 2.20,
or if any Loan Party is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
2.17, or is a Defaulting Lender, then such Loan Party may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in
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accordance with and subject to the restrictions contained in Section 9.04), all
its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) such Loan Party shall have received
the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in L/C
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or such Loan Party (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or 2.20 or payments
required to be made pursuant to Section 2.17, such assignment will result in a
reduction in such compensation or payments. Nothing in this Section 2.19 shall
be deemed to prejudice any rights that any Loan Party may have against any
Lender that is a Defaulting Lender.
(c) If any Lender (such Lender, a "Non-Consenting Lender") has
failed to consent to a proposed amendment, waiver, discharge or termination
which pursuant to the terms of Section 9.08 requires the consent of all of the
Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then provided no Event of Default then exists, such
Borrower shall have the right (unless such Non-Consenting Lender grants such
consent) to replace such Non-Consenting Lender by requiring such Non-Consenting
Lender to assign its Loans, and its Commitments hereunder to one or more
assignees reasonably acceptable to the Administrative Agent, provided that: (a)
all Obligations of Borrowers owing to such Non-Consenting Lender being replaced
shall be paid in full to such Non-Consenting Lender concurrently with such
assignment, and (b) the replacement Lender shall purchase the foregoing by
paying to such Non-Consenting Lender a price equal to the principal amount
thereof plus accrued and unpaid interest thereon. In connection with any such
assignment each Borrower, Administrative Agent, such Non-Consenting Lender and
the replacement Lender shall otherwise comply with Section 9.04.
SECTION 2.20. Additional Reserve Costs. (a) For so long as any
Lender is required to make special deposits with the Bank of England or comply
with reserve assets, liquidity, cash margin or other requirements of the Bank of
England, to maintain reserve asset ratios or to pay fees, in each case in
respect of such Lender's Eurocurrency Loans, each Borrower shall pay,
contemporaneously with each payment of interest on each of such Loans made to
such Borrower, additional interest on such Loan at a rate per annum equal to the
Mandatory Costs Rate calculated in accordance with the formula and in the manner
set forth in Exhibit F hereto.
(b) Any additional interest owed pursuant to paragraph (a) above
shall be determined by the applicable Lender, which determination shall be
conclusive absent manifest error, and notified to the applicable Borrower (with
a copy to the Administrative Agent) at least five Business Days before each date
on which interest is payable for the applicable Loan, and such additional
interest so notified to such Borrower by such Lender shall be payable to the
Administrative Agent for the account of such Lender on each date on which
interest is payable for such Loan.
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SECTION 2.21. Increase in Revolving Facility Commitments and/or
Tranche B Term Loan Commitments. (a) New Commitments. At any time following the
completion of the syndication of the Facilities (as reasonably determined by the
Administrative Agent), either Borrower may by written notice to the
Administrative Agent elect to request an increase to the existing Revolving
Facility Commitments (any such increase, the "New Revolving Facility
Commitments") and/or the Tranche B Dollar Term Loan Commitments and/or the
Tranche B Euro Term Loan Commitments (any such increase, the "New Tranche B Term
Commitments" and together with the New Revolving Facility Commitments, if any,
the "New Commitments"), by an amount not in excess of U.S.$200.0 million (or the
Equivalent thereof in Euros on the date of such request) in the aggregate or a
lesser amount in integral multiples of U.S.$10.0 million (or the Equivalent
thereof in Euros on the date of such request). Such notice shall (A) specify the
date (an "Increased Amount Date") on which such Borrower proposes that the New
Commitments and, in the case of New Tranche B Term Commitments, the date for
borrowing, as applicable, be made available, which shall be a date not less than
5 Business Days after the date on which such notice is delivered to the
Administrative Agent, and (B) offer each Revolving Facility Lender (in the case
of New Revolving Facility Commitments) and/or Tranche B Dollar Term Lender (in
the case of New Tranche B Term Commitments denominated in Dollars) and/or
Tranche B Euro Term Lender (in the case of New Tranche B Term Commitments
denominated in Euros) the right to increase its Revolving Facility Commitment
and/or Tranche B Dollar Term Loan Commitment and/or Tranche B Euro Term Loan
Commitment, as applicable, on a pro rata basis. The applicable Borrower shall
notify the Administrative Agent in writing of the identity of each Revolving
Facility Lender, Tranche B Dollar Term Lender, Tranche B Euro Term Loan
Commitment or other financial institution reasonably acceptable to the
Administrative Agent (each, a "New Revolving Facility Lender," a "New Tranche B
Term Lender" or generally, a "New Lender") to whom the New Commitments have been
(in accordance with the prior sentence) allocated and the amounts of such
allocations; provided that any Lender approached to provide all or a portion of
the New Commitments may elect or decline, in its sole discretion, to provide a
New Commitment. Such New Commitments shall become effective as of such Increased
Amount Date, and in the case of New Tranche B Term Commitments, such new Term
Loans in respect hereof ("New Tranche B Term Loans") shall be made on such
Increased Amount Date; provided that (1) no Default or Event of Default shall
exist on such Increased Amount Date before or after giving effect to such New
Commitments and Loans; (2) such increase in the Revolving Facility Commitments
and/or the Tranche B Dollar Term Loan Commitments and/or Tranche B euro Term
Commitments shall be evidenced by one or more joinder agreements executed and
delivered to Administrative Agent by each New Lender, as applicable, and each
shall be recorded in the register, each of which shall be reasonably
satisfactory to the Administrative Agent and subject to the requirements set
forth in Section 2.17(e); and (3) the Borrowers shall make any payments required
pursuant to Section 2.16 in connection with the provisions of the New
Commitments.
(b) On any Increased Amount Date on which New Revolving Facility
Commitments are effected, subject to the satisfaction of the foregoing terms and
conditions, (i) each of the existing Revolving Facility Lenders shall assign to
each of the New Revolving Facility Lenders, and each of the New Revolving
Facility Lenders shall purchase from each of the existing Revolving Facility
Lenders, at the principal amount thereof, such interests in the outstanding
Revolving Facility Loans and participations in Letters of Credit and Swingline
Loans outstanding on such Increased Amount Date that will result in, after
giving effect to all
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such assignments and purchases, such Revolving Facility Loans and participations
in Letters of Credit and Swingline Loans being held by existing Revolving
Facility Lenders and New Revolving Facility Lenders ratably in accordance with
their Revolving Facility Commitments after giving effect to the addition of such
New Revolving Facility Commitments to the Revolving Facility Commitments, (ii)
each New Revolving Facility Commitment shall be deemed for all purposes a
Revolving Facility Commitment and each Loan made thereunder shall be deemed, for
all purposes, a Revolving Facility Loan and have the same terms as any existing
Revolving Facility Loan and (iii) each New Revolving Facility Lender shall
become a Lender with respect to the Revolving Facility Commitments and all
matters relating thereto.
(c) On any Increased Amount Date on which New Tranche B Term Loan
Commitments denominated in Dollars are effected and borrowed, subject to the
satisfaction of the foregoing terms and conditions, (i) each New Tranche B Term
Loan Commitment shall be deemed for all purposes a Tranche B Dollar Term Loan
Commitment and each Loan made thereunder shall be deemed, for all purposes, a
Tranche B Dollar Term Loan, (ii) each New Tranche B Term Lender shall become a
Lender with respect to the Tranche B Dollar Term Loan Commitments and all
matters relating thereto and (iii) the New Tranche B Term Loans shall have the
same terms as the existing Tranche B Dollar Term Loans and be made by each New
Tranche B Term Lender on the Increased Amount Date. On any Increased Amount Date
on which New Tranche B Term Loan Commitments denominated in Euros are effected
and borrowed, subject to the satisfaction of the foregoing terms and conditions,
(i) each New Tranche B Term Loan Commitment shall be deemed for all purposes a
Tranche B Euro Term Loan and each Loan made thereunder shall be deemed, for all
purposes, a Tranche B Euro Term Loan, (ii) each New Tranche B Term Lender shall
become a Lender with respect to the Tranche B Euro Term Loan Commitments and all
matters relating thereto and (iii) the New Tranche B Term Loans shall have the
same terms as the existing Tranche B Euro Term Loans and be made by each New
Tranche B Term Lender on the Increased Amount Date. All New Tranche B Term Loans
made on any Increased Amount Date will be made in accordance with the procedures
set forth in Section 2.03.
(d) The Administrative Agent shall notify the Lenders promptly upon
receipt of a Borrower's notice of an Increased Amount Date and, in respect
thereof, the New Commitments and the New Lenders.
SECTION 2.22. Illegality. If any Lender reasonably determines that
any change in law has made it unlawful, or that any Governmental Authority has
asserted after the Closing Date that it is unlawful, for any Lender or its
applicable lending office to make or maintain any Eurocurrency Loans in Dollars
or Euros or any other Foreign Currency, then, on notice thereof by such Lender
to any Borrower through the Administrative Agent, any obligations of such Lender
to make or continue Eurocurrency Loans in Dollars or Euros or such other Foreign
Currency, or to convert ABR Borrowings to Eurocurrency Borrowings denominated in
Dollars, as the case may be, shall be suspended until such Lender notifies the
Administrative Agent and such Borrower that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, such Borrower
shall upon demand from such Lender (with a copy to the Administrative Agent), if
such Eurocurrency Borrowings are denominated in Dollars, convert all such
Eurocurrency Borrowings of such Lender made to such Borrower to ABR Borrowings,
and if such Eurocurrency Borrowings are denominated in a Foreign Currency,
exchange all such
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Eurocurrency Borrowings into the Equivalent thereof in Dollars and convert such
Borrowings to ABR Borrowings, in each case either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Borrowings to such day, or immediately, if such Lender may not
lawfully continue to maintain such Loans. Upon any such prepayment or
conversion, such Borrower shall also pay accrued interest on the amount so
prepaid or converted.
SECTION 2.23. Additional Borrowers. Upon the execution and delivery
by any Additional Foreign Borrower acceptable to the Administrative Agent in its
reasonable judgment of a supplement to this Agreement, in substantially the form
of Exhibit I hereto (a "Credit Agreement Supplement") with such changes and
modifications thereto as may be required by the laws of any applicable foreign
jurisdiction, (i) such Person shall be referred to as a "Foreign Borrower" and
shall be and become a Foreign Borrower, and each reference in this Agreement to
a "Foreign Borrower" shall also mean and be a reference to such Foreign Borrower
and each reference in any other Loan Document to a "Foreign Borrower" or a "Loan
Party" shall also mean and be a reference to such Foreign Borrower, and (ii)
such Person shall assume all of the Obligations of a Foreign Borrower which is
organized in the same jurisdiction as such Additional Foreign Borrower. The
Administrative Agent shall promptly notify each Lender of each such additional
Foreign Borrower.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrowers represents and warrants to each
of the Lenders with respect to itself and each of its respective Subsidiaries
that:
SECTION 3.01. Organization; Powers. Except as set forth on Schedule
3.01, each of Holdings, the Borrowers and each of the other Subsidiaries (a) is
duly organized, validly existing and (if applicable) in good standing under the
laws of the jurisdiction of its organization except for such failures to be in
good standing which could not reasonably be expected to have a Material Adverse
Effect, (b) has all requisite power and authority to own its property and assets
and to carry on its business as now conducted, (c) is qualified to do business
in each jurisdiction where such qualification is required, except where the
failure to so qualify could not reasonably be expected to have a Material
Adverse Effect, and (d) has the power and authority to execute, deliver and
perform its obligations under each of the Loan Documents and each other
agreement or instrument contemplated thereby to which it is or will be a party
and, in the case of each Borrower, to borrow and otherwise obtain credit
hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance
by Holdings, each Borrower, and each of the other Subsidiaries of each of the
Loan Documents to which it is a party, and the borrowings hereunder and the
Transactions (a) have been duly authorized by all corporate, stockholder,
limited liability company or partnership action required to be obtained by
Holdings, each Borrower and such Subsidiaries and (b) will not (i) violate (A)
any provision of law, statute, rule or regulation, or of the certificate or
articles of incorporation or other constitutive documents or by-laws of
Holdings, any Borrower or any such Subsidiary, (B)
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any applicable order of any court or any rule, regulation or order of any
Governmental Authority or (C) any provision of any indenture, lease, agreement
or other instrument to which Holdings, any Borrower or any such Subsidiary is a
party or by which any of them or any of their respective property is or may be
bound, (ii) be in conflict with, result in a breach of or constitute (alone or
with notice or lapse of time or both) a default under, give rise to a right of
or result in any cancellation or acceleration of any right or obligation
(including any payment) or to a loss of a material benefit under any such
indenture, lease, agreement or other instrument, where any such conflict,
violation, breach or default referred to in clause (i) or (ii) of this Section
3.02, could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (iii) result in the creation or imposition of any
Lien upon or with respect to any property or assets now owned or hereafter
acquired by Holdings, any Borrower or any such Subsidiary, other than the Liens
created by the Loan Documents.
SECTION 3.03. Enforceability. This Agreement has been duly executed
and delivered by Holdings and each Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party that is party thereto
will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii)
implied covenants of good faith and fair dealing.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions except for
(a) the filing of UCC financing statements, (b) filings with the United States
Patent and Trademark Office and the United States Copyright Office or, with
respect to Intellectual Property which is the subject of registration or
application outside the United States, such applicable patent, trademark or
copyright office or other intellectual property authority, (c) recordation of
the Mortgages, (d) such consents, authorizations, filings or other actions that
have either (i) been made or obtained and are in full force and effect or (ii)
are listed on Schedule 3.04, and (e) such actions, consents and approvals the
failure to be obtained or made which could not reasonably be expected to have a
Material Adverse Effect.
SECTION 3.05. Financial Statements. (a) There has heretofore been
furnished to the Lenders:
(i) The audited consolidated balance sheets as of December 31, 2003
and the related audited combined statements of income and cash flows for
the years ended December 31, 2003 of the Acquired Business, were prepared
in accordance with GAAP consistently applied not only during such periods
but also as compared to the periods covered by the financial statements of
Acquired Business referred to in paragraph (ii) of this Section 3.05
(except as may be indicated in the notes thereto) and fairly present the
consolidated financial position of the Acquired Business as of the dates
thereof and its consolidated results of operations and cash flows for the
period then ended; and
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(ii) The unaudited interim consolidated balance sheet as of June 30,
2004, and the related unaudited interim combined statements of income and
cash flows for the six months ended June 30, 2004 of the Acquired
Business, were prepared in accordance with GAAP consistently applied not
only during such periods but also as compared to the periods covered by
the financial statements of the Acquired Business referred to in paragraph
(i) of this Section 3.05 (except as may be indicated in the notes thereto)
and fairly present the consolidated financial position of the Acquired
Business as of the dates thereof and its consolidated results of
operations and cash flows for the periods then ended (subject to normal
year-end adjustments).
(b) There has heretofore been furnished to the Lenders the pro forma
consolidated balance sheet of Holdings as of June 30, 2004, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same assumptions used to prepare the pro forma financial statements
included in the Offering Memorandum (which assumptions are believed by Holdings
and the Borrowers to have been reasonable at the time made and to be reasonable
as of the Closing Date (it being understood that such assumptions are based on
good faith estimates with respect to certain items and that the actual amounts
of such items on the Closing Date is subject to variation)) and calculated in
the manner set forth in Schedule 1.01(b), (ii) subject to the assumptions and
qualifications described in the Offering Memorandum, accurately reflects all
adjustments necessary to give effect to the Transactions and (iii) subject to
the assumptions and qualifications described in the Offering Memorandum presents
fairly, in all material respects, the pro forma financial position of Holdings
and its Subsidiaries as of June 30, 2004, as if the Transactions had occurred on
such date.
SECTION 3.06. No Material Adverse Effect. Since December 31, 2003,
there has been no event or occurrence which has resulted in or would reasonably
be expected to result in, individually or in the aggregate, any Material Adverse
Effect.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each
of Holdings, the Borrowers and the other Subsidiaries has good and valid record
fee simple title to, all Mortgaged Properties, subject solely to Permitted
Encumbrances and except where the failure to have such title could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. The Borrowers and the other Subsidiaries have maintained, in all
material respects and in accordance with normal industry practice, all of the
machinery, equipment, vehicles, facilities and other tangible personal property
now owned or leased by the Borrowers and the other Subsidiaries that is
necessary to conduct their business as it is now conducted. All such Mortgaged
Properties are free and clear of Liens, other than Liens expressly permitted by
Section 6.02 or arising by operation of law.
(b) Each of Holdings, the Borrowers and the other Subsidiaries has
complied with all obligations under all leases to which it is a party, except
where the failure to comply would not have a Material Adverse Effect, and all
such leases are in full force and effect, except leases in respect of which the
failure to be in full force and effect could not reasonably be expected to have
a Material Adverse Effect. Each of Holdings, the Borrowers and the other
Subsidiaries enjoys peaceful and undisturbed possession under all such leases,
other than leases
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in respect of which the failure to enjoy peaceful and undisturbed possession
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(c) As of the Closing Date, Holdings, the Borrowers and the other
Subsidiaries have good title to or valid leasehold interests in all real
property set forth on Schedule 3.17, and all such real property is reasonably
necessary for the conduct of the business and operations of Borrower and the
other Subsidiaries as currently conducted.
(d) Each of Holdings, the Borrowers and the other Subsidiaries owns
or possesses, or could obtain ownership or possession of, on terms not
materially adverse to it, all patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary for the present
conduct of its business, without any known conflict with the rights of others,
and free from any burdensome restrictions, except where such conflicts and
restrictions could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(e) As of the Closing Date, none of Holdings, the Borrowers and
their Subsidiaries has received any notice of any pending or contemplated
condemnation proceeding affecting any of the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnation that remains unresolved as of the
Closing Date, except as set forth on Schedule 3.07(e).
(f) None of Holdings, the Borrowers and their Subsidiaries is
obligated on the Closing Date under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Mortgaged Property
or any interest therein, except as permitted under Section 6.02 or 6.05.
(g) Schedule 3.07(g) sets forth as of the Closing Date the name and
jurisdiction of incorporation, formation or organization of each Subsidiary of
Holdings and, as to each such Subsidiary, the percentage of each class of Equity
Interests owned by Holdings or by any such Subsidiary, indicating the ownership
thereof.
(h) As of the Closing Date, there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
stock options granted to employees or directors and directors' qualifying
shares) of any nature relating to any Equity Interests of Holdings, or any of
the Subsidiaries, except rights of employees to purchase Equity Interests of the
Domestic Borrower in connection with the Transactions or as set forth on
Schedule 3.07(h).
SECTION 3.08. Litigation; Compliance with Laws. (a) Except as set
forth on Schedule 3.08(a), there are no actions, suits, investigations or
proceedings at law or in equity or by or on behalf of any Governmental Authority
or in arbitration now pending against, or, to the knowledge of Holdings or the
Borrowers, threatened in writing against or affecting, Holdings or any Borrower
or any of the other Subsidiaries or any business, property or rights of any such
Person (i) as of the Closing Date, that involve any Loan Document or the
Transactions or (ii) which individually could reasonably be expected to have a
Material Adverse Effect or which could reasonably be expected, individually or
in the aggregate, to materially adversely affect the
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Transactions. Neither the Borrowers nor, to the knowledge of any of the Loan
Parties, any of its Affiliates is in violation of any laws relating to terrorism
or money laundering, including Executive Order No. 13224 on Terrorist Financing,
effective September 23, 2001, and the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Public Law 107-56 (signed into law on October 26, 2001) (the "U.S. Patriot
Act").
(b) Except as set forth in Schedule 3.08(b), none of Holdings, the
Borrowers, the other Subsidiaries and their respective properties or assets is
in violation of (nor will the continued operation of their material properties
and assets as currently conducted violate) any currently applicable law, rule or
regulation (including any zoning, building, Environmental Law, ordinance, code
or approval or any building permit) or any restriction of record or agreement
affecting any Mortgaged Property, or is in default with respect to any judgment,
writ, injunction or decree of any Governmental Authority, where such violation
or default could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
SECTION 3.09. Federal Reserve Regulations. (a) None of Holdings, the
Borrowers and the other Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, (i)
to purchase or carry Margin Stock or to extend credit to others for the purpose
of purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose that entails a violation of,
or that is inconsistent with, the provisions of the Regulations of the Board,
including Regulation U or Regulation X.
SECTION 3.10. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, the Borrowers or any other Subsidiary is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, or (b) a "holding company" as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935, as amended.
SECTION 3.11. Use of Proceeds. The Borrowers will use the proceeds
of the Revolving Facility Loans and Swingline Loans, and may request the
issuance of Letters of Credit, solely for general corporate purposes (including,
without limitation, the consummation of the Acquisition and the Transactions).
The Borrowers may use proceeds of Term Loans solely to consummate the
Acquisition and the Transactions.
SECTION 3.12. Tax Returns. Except as set forth on Schedule 3.12:
(a) Each of Holdings, the Borrowers and their Subsidiaries (i) has
timely filed or caused to be timely filed all federal, state, local and non-U.S.
Tax returns required to have been filed by it that are material to such
companies taken as a whole and each such Tax return is true and correct in all
material respects and (ii) has timely paid or caused to be timely paid all
material Taxes shown thereon to be due and payable by it and all other material
Taxes or assessments, except Taxes or assessments that are being contested in
good faith by appropriate
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proceedings in accordance with Section 5.03 and for which Holdings, the
Borrowers or any of their Subsidiaries (as the case may be) has set aside on its
books adequate reserves;
(b) Each of Holdings, the Borrowers and their Subsidiaries has paid
in full or made adequate provision (in accordance with GAAP) for the payment of
all Taxes due with respect to all periods or portions thereof ending on or
before the Closing Date, which Taxes, if not paid or adequately provided for,
could individually or in the aggregate reasonably be expected to have a Material
Adverse Effect; and
(c) Other than as could not be, individually or in the aggregate,
reasonably expected to have a Material Adverse Effect: as of the Closing Date,
with respect to each of Holdings, the Borrowers and their Subsidiaries, (i)
there are no claims being asserted in writing with respect to any Taxes, (ii) no
presently effective waivers or extensions of statutes of limitation with respect
to Taxes have been given or requested and (iii) no Tax returns are being
examined by, and no written notification of intention to examine has been
received from, the Internal Revenue Service or any other Taxing authority.
SECTION 3.13. No Material Misstatements. (a) All written information
(other than the Projections, estimates and information of a general economic
nature) (the "Information") concerning Holdings, the Borrowers, their
Subsidiaries, the Transactions and any other transactions contemplated hereby
included in the Information Memorandum or otherwise prepared by or on behalf of
the foregoing or their representatives and made available to any Lenders or the
Administrative Agent in connection with the Transactions or the other
transactions contemplated hereby, when taken as a whole, were true and correct
in all material respects, as of the date such Information was furnished to the
Lenders and as of the Closing Date and did not contain any untrue statement of a
material fact as of any such date or omit to state a material fact necessary in
order to make the statements contained therein not materially misleading in
light of the circumstances under which such statements were made.
(b) The Projections and estimates and information of a general
economic nature prepared by or on behalf of the Borrowers or any of their
representatives and that have been made available to any Lenders or the
Administrative Agent in connection with the Transactions or the other
transactions contemplated hereby (i) have been prepared in good faith based upon
assumptions believed by the Borrowers to be reasonable as of the date thereof,
as of the date such Projections and estimates were furnished to the Initial
Lenders and as of the Closing Date, and (ii) as of the Closing Date, have not
been modified in any material respect by any Borrower.
SECTION 3.14. Employee Benefit Plans. (a) Each of Holdings, the
Borrowers, the other Subsidiaries and the ERISA Affiliates is in compliance with
the applicable provisions of ERISA and the provisions of the Code relating to
Plans (and the regulations and published interpretations thereunder), except for
such noncompliance that could not reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, the excess of the present value of all
benefit liabilities under each Plan of Holdings, the Borrowers, and each other
Subsidiary and the ERISA Affiliates (based on those assumptions used to fund
such Plan), as of the last annual valuation date applicable thereto for which a
valuation is available, over the value of the assets of such Plan could not
reasonably be expected to have a Material Adverse Effect, and the excess of
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the present value of all benefit liabilities of all underfunded Plans (based on
those assumptions used to fund each such Plan) as of the last annual valuation
dates applicable thereto for which valuations are available, over the value of
the assets of all such under funded Plans could not reasonably be expected to
have a Material Adverse Effect. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other ERISA Events which
have occurred or for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect.
(b) All foreign pension schemes operated by Holdings and each of its
Subsidiaries is operated in accordance with the requirements of applicable
foreign law, except where noncompliance could not reasonably be expected to have
a Material Adverse Effect.
SECTION 3.15. Environmental Matters. Except as to matters that could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect (i) no written notice, request for information, order, complaint,
Environmental Claim or penalty has been received by Holdings, any Borrower or
any of the other Subsidiaries, and there are no judicial, administrative or
other actions, suits or proceedings pending or threatened against Holdings,
Borrower or any of the other Subsidiaries which allege a violation of or
liability under any Environmental Laws, in each case relating to any Borrower or
any of its Subsidiaries, (ii) each of the Borrowers and the other Subsidiaries
has all environmental, health and safety permits necessary for its operations as
currently conducted to comply with all applicable Environmental Laws and is, and
has been, in compliance with the terms of such permits and with all other
applicable Environmental Laws except for non-compliances which have been
resolved and the costs of such resolution have been paid, (iii) Holdings, the
Borrowers and the other Subsidiaries have made available to the Administrative
Agent prior to the date hereof the most recent environmental assessment with
respect to the operations of each of Holdings, the Borrowers and the other
Subsidiaries, (iv) to the knowledge of Holdings and the Subsidiaries, no
Hazardous Material is located at any property currently owned, operated or
leased by any Borrower or any of the other Subsidiaries that would reasonably be
expected to give rise to any liability or Environmental Claim of any Borrower or
any of its Subsidiaries under any Environmental Laws, and no Hazardous Material
has been generated, owned or controlled by any Borrower or any of the other
Subsidiaries and transported to or Released at any location in a manner that
would reasonably be expected to give rise to any liability or Environmental
Claim of any Borrower or any of its Subsidiaries under any Environmental Laws,
(v) to the knowledge of Holdings and the Subsidiaries, there are no acquisition
agreements pursuant to which any Borrower or any of its Subsidiaries has
expressly assumed or undertaken responsibility for any liability or obligation
of any other Person arising under or relating to Environmental Laws, which in
any such case has not been made available to the Administrative Agent prior to
the date hereof, (vi) to the knowledge of Holdings and the Subsidiaries, there
are no landfills or disposal areas located at, on, in or under the assets of
Holdings or any Subsidiary, and (vii) to the knowledge of Holdings and the
Subsidiaries, except as listed on Schedule 3.15(vii), there are not currently
and there have not been any underground storage tanks "owned" or "operated" (as
defined by applicable Environmental Law) by any Holdings, Borrower or any other
Subsidiary or present or located on the Holdings', any Borrower's or any other
Subsidiary's Real Property. For purpose of Section 7.01(a), each of the
representations and warranties contained in parts (iv), (v), (vi) and (vii) of
this Section 3.15 that are qualified by the knowledge of Holdings and the
Subsidiaries shall be deemed not to be so qualified.
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SECTION 3.16. Mortgages. The Mortgages executed and delivered after
the Closing Date pursuant to clause (i) of the Collateral and Guarantee
Requirement and Section 5.10 shall be effective to create in favor of the
Collateral Agent (for the benefit of the Secured Parties) a legal, valid and
enforceable security interest on all of the Loan Parties' right, title and
interest in and to the Mortgaged Property thereunder and the proceeds thereof,
and when such Mortgages are filed or recorded in the proper real estate filing
or recording offices, the Collateral Agent (for the benefit of the Secured
Parties) shall have a fully perfected first priority Lien on, and security
interest in, all right, title and interest of the Loan Parties in such Mortgaged
Property and, to the extent applicable, subject to Section 9-315 of the UCC, the
proceeds thereof, in each case prior and superior in right to any other Person,
other than with respect to Permitted Encumbrances.
SECTION 3.17. Location of Real Property . (a) Schedule 3.17(a) lists
completely and correctly as of the Closing Date each Real Property owned by
Holdings, the Borrowers and the Subsidiary Loan Parties, the address or location
thereof and the state in which such property is located.
(b) Schedule 3.17(b) lists completely and correctly as of the
Closing Date each Real Property leased by Holdings, the Borrowers and the
Subsidiary Loan Parties, the address or location thereof.
SECTION 3.18. Solvency. (a) Immediately after giving effect to the
Transactions (i) the fair value of the assets of each Borrower (individually)
and Holdings and its Subsidiaries on a consolidated basis, at a fair valuation,
will exceed the debts and liabilities, direct, subordinated, contingent or
otherwise, of such Borrower (individually) and Holdings and its Subsidiaries on
a consolidated basis, respectively; (ii) the present fair saleable value of the
property of each Borrower (individually) and Holdings and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to pay
the probable liability of such Borrower (individually) and Holdings and its
Subsidiaries on a consolidated basis, respectively, on their debts and other
liabilities, direct, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (iii) each Borrower
(individually) and Holdings and its Subsidiaries on a consolidated basis will be
able to pay their debts and liabilities, direct, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (iv)
each Borrower (individually) and Holdings and its Subsidiaries on a consolidated
basis will not have unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are now conducted and
are proposed to be conducted following the Closing Date.
(b) None of Holdings or the Borrowers intends to, and does not
believe that it or any of its Subsidiaries will, incur debts beyond its ability
to pay such debts as they mature, taking into account the timing and amounts of
cash to be received by it or any such subsidiary and the timing and amounts of
cash to be payable on or in respect of its Indebtedness or the Indebtedness of
any such subsidiary.
SECTION 3.19. Labor Matters. There are no strikes pending or
threatened against Holdings, any Borrower or any of their Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. The hours worked and
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payments made to employees of Holdings, the Borrowers and their Subsidiaries
have not been in violation in any material respect of the Fair Labor Standards
Act or any other applicable law dealing with such matters. All material payments
due from Holdings, any Borrower or any of their Subsidiaries or for which any
claim may be made against Holdings, any Borrower or any of their Subsidiaries,
on account of wages and employee health and welfare insurance and other benefits
have been paid or accrued as a liability on the books of Holdings, such Borrower
or such Subsidiary to the extent required by GAAP. Except as set forth on
Schedule 3.19, consummation of the Transactions will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which Holdings, any Borrower or any of their
Subsidiaries (or any predecessor) is a party or by which Holdings, any Borrower
or any of their Subsidiaries (or any predecessor) is bound, other than
collective bargaining agreements that, individually or in the aggregate, are not
material to Holdings, the Borrowers and their Subsidiaries, taken as a whole.
SECTION 3.20. Insurance. Schedule 3.20 sets forth a true, complete
and correct description of all material insurance maintained by or on behalf of
Holdings, the Borrowers or their Subsidiaries as of the Closing Date. As of such
date, such insurance is in full force and effect. Each Borrower believes that
the insurance maintained by or on behalf of Holdings, such Borrower and their
Subsidiaries is adequate.
SECTION 3.21. Representations and Warranties in Acquisition
Agreement. All representations and warranties of each of the Loan Parties set
forth in the Acquisition Agreement were true and correct in all material
respects as of the time such representations and warranties were made and, to
the extent required to be made on the Closing Date under the Acquisition
Agreement, shall be true and correct in all material respects as of the Closing
Date as if such representations and warranties were made on and as of such date,
unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of (a) the Lenders (including the Swingline Lenders)
to make Loans and (b) any Issuing Bank to issue Letters of Credit or increase
the stated amounts of Letters of Credit hereunder (each, a "Credit Event") are
subject to the satisfaction of the following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing
(other than a Borrowing on the Closing Date (except with respect to clause (a)
below)) and on the date of each issuance, amendment, extension or renewal of a
Letter of Credit:
(a) The Administrative Agent shall have received, in the case of a
Borrowing, a Borrowing Request as required by Section 2.03 (or a Borrowing
Request shall have been deemed given in accordance with the last paragraph of
Section 2.03) or, in the case of the issuance of a
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Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall
have received a notice requesting the issuance of such Letter of Credit as
required by Section 2.05(b).
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the date
of such Borrowing or issuance, amendment, extension or renewal of a Letter of
Credit (other than an amendment, extension or renewal of a Letter of Credit
without any increase in the stated amount of such Letter of Credit), as
applicable, with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date).
(c) At the time of and immediately after such Borrowing or issuance,
amendment, extension or renewal of a Letter of Credit (other than an amendment,
extension or renewal of a Letter of Credit without any increase in the stated
amount of such Letter of Credit), as applicable, no Event of Default or Default
shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, extension or renewal of
a Letter of Credit (other than an amendment, extension or renewal of a Letter of
Credit without any increase in the stated amount of such Letter of Credit) made
by any Borrower shall be deemed to constitute a representation and warranty by
such Borrower on the date of such Borrowing, issuance, amendment, extension or
renewal as applicable, as to the matters specified in paragraphs (b) and (c) of
this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of
itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing
Date, favorable written opinions of (i) Skadden, Arps, Slate, Meagher & Flom
LLP, special counsel for the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent and (ii) special counsel to the
Administrative Agent in the United Kingdom and France, in each case (A) dated
the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the
Administrative Agent, the Collateral Agent and the Lenders and (C) in form and
substance reasonably satisfactory to the Administrative Agent and covering such
other matters relating to the Loan Documents as the Administrative Agent shall
reasonably request, and each Loan Party hereby instructs its counsel to deliver
such opinions.
(c) All legal matters incident to this Agreement, the borrowings and
extensions of credit hereunder and the other Loan Documents shall be reasonably
satisfactory to the Administrative Agent, to the Lenders and to each Issuing
Bank on the Closing Date.
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(d) The Administrative Agent shall have received in the case of each
Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv)
below:
(i) a copy of the certificate or articles of incorporation,
partnership agreement or limited liability agreement, including all
amendments thereto, or other relevant constitutional documents under
applicable law of each Loan Party, (A) in the case of a corporation,
certified as of a recent date by the Secretary of State (or other
similar official) or, with respect to any Foreign Subsidiary other
than a Subsidiary organized under the laws of England, an officer or
director or, with respect to any Subsidiary organized under the law
of England, a director of the jurisdiction of its organization, and
a certificate as to the good standing (to the extent such concept or
a similar concept exists under the laws of such jurisdiction) of
each such Loan Party as of a recent date from such Secretary of
State (or other similar official) or (B) in the case of a
partnership of or limited liability company, certified by the
Secretary or Assistant Secretary of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or
similar officer of each Loan Party other than the Initial Foreign
Borrowers, and in the case of the UK Borrower a certificate of a
director of the UK Borrower, and in the case of the French Borrower,
a certificate of the President of the French Borrower, in each case
dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of
the by-laws (or partnership agreement, memorandum and articles
of association, limited liability company agreement or other
equivalent governing documents) of such Loan Party as in
effect on the Closing Date and at all times since a date prior
to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors (or
equivalent governing body) of such Loan Party (or its managing
general partner or managing member) authorizing the execution,
delivery and performance of the Loan Documents to which such
Person is a party and, in the case of a Borrower, the
borrowings hereunder, and in the case of the UK Borrower that
neither the borrowings nor the grant of a guarantee or
security hereunder will breach any borrowing, guarantee,
security or other limit binding on the UK Borrower, and that
such resolutions have not been modified, rescinded or amended
and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation,
partnership agreement or limited liability agreement of such
Loan Party has not been amended since the date of the last
amendment thereto disclosed pursuant to clause (i) above,
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(D) as to the incumbency and specimen signature of each
officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party,
and
(E) as to the absence of any pending proceeding for the
dissolution or liquidation of such Loan Party or, to the
knowledge of such Person, threatening the existence of such
Loan Party;
(iii) a certificate of another officer or, with respect to the
French Borrower, a third party reasonably acceptable to the
Administrative Agent as to the incumbency and specimen signature of
the Secretary or Assistant Secretary or similar officer executing
the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent may
reasonably request (including without limitation, tax identification
numbers and addresses).
(e) The Collateral and Guarantee Requirement with respect to items
to be completed as of the Closing Date shall have been satisfied and the
Administrative Agent shall have received completed Perfection Certificates dated
the Closing Date and signed by a Responsible Officer of the Domestic Borrower,
together with all attachments contemplated thereby, including the results of a
search of the UCC (or equivalent) filings made with respect to the Domestic Loan
Parties in the jurisdictions contemplated by the Perfection Certificates and
copies of the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 or have been released.
(f) The Transactions shall have been consummated or shall be
consummated simultaneously with or immediately following the closing under this
Agreement in accordance with the Acquisition Agreement and all other related
documentation (without material amendment, modification or waiver thereof which
is adverse to the Lenders (as reasonably determined by the Administrative Agent)
without the prior consent of the Administrative Agent), including each of the
following:
(i) The Equity Financing shall have been consummated or shall
be consummated simultaneously with or immediately following the
closing under this Agreement. The terms and conditions of the Equity
Financing shall be as set forth in the Equity Commitment Letters or
otherwise reasonably satisfactory in all respects to the
Administrative Agent;
(ii) The Domestic Borrower shall have received or shall
receive simultaneously net cash proceeds from the issuance of
U.S.$420.0 million of Senior Subordinated Notes pursuant to the
Senior Subordinated Note Indenture; and
(iii) The terms and conditions of the Senior Subordinated
Notes (including terms and conditions relating to the interest rate,
fees, amortization, maturity, subordination, covenants, defaults and
remedies) shall be as set forth in
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the Offering Memorandum or otherwise reasonably satisfactory to the
Administrative Agent.
(g) The Lenders shall have received:
(i) the financial statements referred to in Section 3.05; and
(ii) any additional financial statements received by
Acquisition Corp. on or prior to the Closing pursuant to the
Acquisition Agreement.
(h) After giving effect to the Transactions and the other
transactions contemplated hereby, Holdings and their Subsidiaries shall have
outstanding no Indebtedness other than (i) the Loans and other extensions of
credit under this Agreement, (ii) the Senior Subordinated Notes and (iii) other
Indebtedness permitted pursuant to Section 6.01.
(i) The Lenders shall have received (i) a solvency certificate
substantially in the form of Exhibit G and signed by the chief financial officer
or another Responsible Officer of the Domestic Borrower confirming the solvency
of each Borrower and its Subsidiaries on a consolidated basis after giving
effect to the Transactions and (ii) a solvency certificate substantially in the
form of Exhibit H and signed by the chief financial officer or another
Responsible Officer of Holdings confirming the solvency of Holdings and its
Subsidiaries on a consolidated basis after giving effect to the Transactions.
(j) There has not been any Material Adverse Effect, after giving
effect to the Transactions, taken as a whole, since December 31, 2003.
(k) Except as set forth in Schedule 4.02(k), no provision of any
applicable law or regulation, and no judgment, injunction, order or decree shall
prohibit the consummation of the Transactions, and all material actions by or in
respect of or material filings with any Governmental Authority required to
permit the consummation of the Transactions shall have been taken, made or
obtained, except for any such actions or filings the failure to take, make or
obtain would not be material to each Borrower and its Subsidiaries, taken as a
whole.
(l) The Agents shall have received all fees payable thereto or to
any Lender on or prior to the Closing Date and, to the extent invoiced, all
other amounts due and payable pursuant to the Loan Documents on or prior to the
Closing Date, including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses (including reasonable fees, charges and
disbursements of Shearman & Sterling LLP and local counsel) required to be
reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(m) The representations and warranties set forth in Sections 3.02,
3.03 and 3.04 hereof shall be true and correct in all material respects on and
as of the Closing Date.
(n) The ratio of Consolidated Debt to Pro Forma Adjusted EBITDA for
the trailing four quarters ended immediately prior to the Closing Date shall not
be greater than 6.25 to 1.00.
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(o) The Administrative Agent shall have received copies of the Phase
I and Phase II assessments reports being generated by Environ Corporation on
behalf of the Borrowers.
(p) The Administrative Agent shall have received a certificate
signed by a Responsible Officer of each of Holdings and the Domestic Borrower as
to the matters set forth in clauses (f), (h), (j), (k), (m) and (n) of this
Section 4.02.
(q) The Administrative Agent shall have received copies of each of
the License Agreement, the Supply Agreement and the Transition Services
Agreement, in each case, in form and substance in form and substance reasonably
satisfactory to the Administrative Agent.
(r) The French Borrower shall have received a TEG letter
substantially in the form of Exhibit K from the Administrative Agent.
SECTION 4.03. Conditions Precedent to the Initial Borrowing of Each
Additional Borrower. The obligation of any Lender to make an initial advance of
any Loan to, or any Issuing Bank to make an initial issuance of any Letter of
Credit for the account of, each Additional Foreign Borrower following its
designation as a Borrower hereunder pursuant to Section 2.23, is subject to the
following:
(a) The Administrative Agent (or its counsel) shall have received a
counterpart of the Credit Agreement Supplement signed on behalf of such
Borrower, in substantially the form of Exhibit I hereto.
(b) The Administrative Agent shall have received, on behalf of
itself, the Collateral Agent, the Lenders and each Issuing Bank, favorable legal
opinions, dated as of the date of such initial advance or issuance, relating to
such Borrower and as otherwise described in Section 4.02(b).
(c) The Administrative Agent shall have received each of the items
referred to in clauses (i), (ii), (iii) and (iv) of Section 4.02(d) with respect
to such Borrower, each certified and dated as of the date of such initial
advance or issuance.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of Holding and the Borrowers covenants and agrees with each
Lender that so long as this Agreement shall remain in effect and until the
commitments have been terminated and the principal of and interest on each Loan,
all Fees and all other expenses or amounts payable under any Loan Document shall
have been paid in full and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in full, unless
the Required Lenders shall otherwise consent in writing, each of Holdings and
the Borrowers will, and will cause each of their Subsidiaries to:
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SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05, and except for the liquidation or dissolution of Subsidiaries if
the assets of such Subsidiaries to the extent they exceed estimated liabilities
are acquired by Holdings or a Wholly Owned Subsidiary of Holdings in such
liquidation or dissolution; provided that Subsidiaries that are Loan Parties may
not be liquidated into Subsidiaries that are not Loan Parties.
(b) Do or cause to be done all things necessary to (i) obtain,
preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business, (ii) comply in all material respects with all material
applicable laws, rules, regulations (including any zoning, building, ordinance,
code or approval or any building permits or any restrictions of record or
agreements affecting the Mortgaged Properties) and judgments, writs,
injunctions, decrees and orders of any Governmental Authority, whether now in
effect or hereafter enacted and (iii) at all times maintain and preserve all
property necessary to the normal conduct of its business and keep such property
in good repair, working order and condition and from time to time make, or cause
to be made, all needful and proper repairs, renewals, additions, improvements
and replacements thereto necessary in order that the business carried on in
connection therewith, if any, may be properly conducted at all times (in each
case except as expressly permitted by this Agreement); in each case in this
paragraph (b) except where the failure would not reasonably be expected to have
a Material Adverse Effect.
SECTION 5.02. Insurance. (a) Keep its insurable properties insured
at all times by financially sound and reputable insurers in such amounts as
shall be customary for similar businesses and maintain such other reasonable
insurance (including, to the extent consistent with past practices,
self-insurance), of such types, to such extent and against such risks, as is
customary with companies in the same or similar businesses and maintain such
other insurance as may be required by law or any other Loan Document.
(b) Cause all such property and casualty insurance policies with
respect to the Mortgaged Properties located in the United States to be endorsed
or otherwise amended to include a "standard" or "New York" lender's loss payable
endorsement, in form and substance reasonably satisfactory to the Administrative
Agent and the Collateral Agent, which endorsement shall provide that, from and
after the Closing Date, if the insurance carrier shall have received written
notice from the Administrative Agent or the Collateral Agent of the occurrence
of an Event of Default, the insurance carrier shall pay all proceeds otherwise
payable to any Borrower or the Loan Parties under such policies directly to the
Collateral Agent; cause all such policies to provide that neither any Borrower,
the Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a "Replacement Cost Endorsement," without
any deduction for depreciation, and such other provisions as the Administrative
Agent or the Collateral Agent may reasonably (in light of a Default or a
material development in respect of the insured Mortgaged Property) require from
time to time to protect their interests; deliver original or certified copies of
all such policies or a certificate of an insurance broker to the Collateral
Agent; cause each such policy to provide that it shall not be canceled or not
renewed upon less than 30 days' prior written notice thereof by the insurer to
the Administrative Agent
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and the Collateral Agent; deliver to the Administrative Agent and the Collateral
Agent, prior to the cancellation or nonrenewal of any such policy of insurance,
a copy of a renewal or replacement policy (or other evidence of renewal of a
policy previously delivered to the Administrative Agent and the Collateral
Agent), or insurance certificate with respect thereto, together with evidence
satisfactory to the Administrative Agent and the Collateral Agent of payment of
the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such reasonable total amount as the
Administrative Agent or the Collateral Agent may from time to time reasonably
require, and otherwise to ensure compliance with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as it may be
amended from time to time.
(d) With respect to each Mortgaged Property located in the United
States, carry and maintain comprehensive general liability insurance including
the "broad form CGL endorsement" (or equivalent coverage) and coverage on an
occurrence basis against claims made for personal injury (including bodily
injury, death and property damage) and umbrella liability insurance against any
and all claims, in each case in amounts and against such risks as are
customarily maintained by companies engaged in the same or similar industry
operating in the same or similar locations naming the Collateral Agent as an
additional insured, on forms reasonably satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
promptly whenever any separate insurance concurrent in form or contributing in
the event of loss with that required to be maintained under this Section 5.02 is
taken out by Holdings, any Borrower or any of their Subsidiaries; and promptly
deliver to the Administrative Agent and the Collateral Agent a duplicate
original copy of such policy or policies, or an insurance certificate with
respect thereto.
(f) In connection with the covenants set forth in this Section 5.02,
it is understood and agreed that:
(i) none of the Agents, the Lenders, the Issuing Bank and their
respective agents or employees shall be liable for any loss or damage
insured by the insurance policies required to be maintained under this
Section 5.02, it being understood that (A) each Borrower and the other
Loan Parties shall look solely to their insurance companies or any parties
other than the aforesaid parties for the recovery of such loss or damage
and (B) such insurance companies shall have no rights of subrogation
against the Agents, the Lenders, any Issuing Bank or their agents or
employees. If, however, the insurance policies do not provide waiver of
subrogation rights against such parties, as required above, then each of
Holdings, and the Borrowers hereby agree, to the extent permitted by law,
to waive, and to cause each of their Subsidiaries to waive, its right of
recovery, if any, against the Agents, the Lenders, any Issuing Bank and
their agents and employees; and
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(ii) the designation of any form, type or amount of insurance
coverage by the Administrative Agent, the Collateral Agent under this
Section 5.02 shall in no event be deemed a representation, warranty or
advice by the Administrative Agent, the Collateral Agent or the Lenders
that such insurance is adequate for the purposes of the business of
Holdings, the Borrowers and their Subsidiaries or the protection of their
properties.
SECTION 5.03. Taxes. Pay and discharge promptly when due all
material Taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such Tax, assessment,
charge, levy or claim so long as (a) the validity or amount thereof shall be
contested in good faith by appropriate proceedings, and Holdings, the affected
Borrower or the affected Subsidiary, as applicable, shall have set aside on its
books reserves in accordance with GAAP with respect thereto or (b) the aggregate
amount of such Taxes, assessments, charges, levies or claims does not exceed
U.S.$5 million.
SECTION 5.04. Financial Statements, Reports, etc. Furnish to the
Administrative Agent (which will promptly furnish such information to the
Lenders):
(a) within 120 days after the end of the fiscal year ended December
31, 2004, and within 90 days (or such shorter period as the SEC shall specify
for the filing of Annual Reports on Form 10-K) after the end of each subsequent
fiscal year, a consolidated balance sheet and related statements of operations,
cash flows and owners' equity showing the financial position of Domestic
Borrower and its Subsidiaries as of the close of such fiscal year and the
consolidated results of their operations during such year and setting forth in
comparative form the corresponding figures for the prior fiscal year, all
audited by independent public accountants of recognized national standing
reasonably acceptable to the Administrative Agent and accompanied by an opinion
of such accountants (which shall not be qualified in any material respect) to
the effect that such consolidated financial statements fairly present, in all
material respects, the financial position and results of operations of Domestic
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP
(it being understood that the delivery by Domestic Borrower of Annual Reports on
Form 10-K of Domestic Borrower and its consolidated Subsidiaries shall satisfy
the requirements of this Section 5.04(a) to the extent such Annual Reports
include the information specified herein).
(b) within 45 days (or such shorter period as the SEC shall specify
for the filing of Quarterly Reports on Form 10-Q) after the end of each of the
first three fiscal quarters of each fiscal year, a consolidated balance sheet
and related statements of operations and cash flows showing the financial
position of Domestic Borrower and its Subsidiaries as of the close of such
fiscal quarter and the consolidated results of their operations during such
fiscal quarter and the then-elapsed portion of the fiscal year and setting forth
in comparative form the corresponding figures for the corresponding periods of
the prior fiscal year, all certified by a Financial Officer of Domestic
Borrower, on behalf of Domestic Borrower, as fairly presenting, in all material
respects, the financial position and results of operations of Domestic Borrower
and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to
normal year-end
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audit adjustments and the absence of footnotes) (it being understood that the
delivery by Domestic Borrower of Quarterly Reports on Form 10-Q of Domestic
Borrower and its consolidated Subsidiaries shall satisfy the requirements of
this Section 5.04(b) to the extent such Quarterly Reports include the
information specified herein);
(c) (x) concurrently with any delivery of financial statements under
(a) or (b) above, a certificate of a Financial Officer of Domestic Borrower (i)
certifying that no Event of Default or Default has occurred or, if such an Event
of Default or Default has occurred, specifying the nature and extent thereof and
any corrective action taken or proposed to be taken with respect thereto and
(ii) commencing with the fiscal period ending December 31, 2004 setting forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and
6.12 and (y) concurrently with any delivery of financial statements under (a)
above, a certificate of the accounting firm opining on or certifying such
statements stating whether they obtained knowledge during the course of their
examination of such statements of any Default or Event of Default (which
certificate may be limited to accounting matters and disclaims responsibility
for legal interpretations);
(d) promptly after the same become publicly available, copies of all
periodic and other publicly available reports, proxy statements and, to the
extent requested by the Administrative Agent, other materials filed by Holdings,
any Borrower or any of the Subsidiaries with the SEC, or after an initial public
offering, distributed to its stockholders generally, as applicable;
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the Closing Date, the consolidated financial
statements of Domestic Borrower and its Subsidiaries delivered pursuant to
paragraphs (a) or (b) above will differ in any material respect from the
consolidated financial statements that would have been delivered pursuant to
such clauses had no such change in accounting principles and policies been made,
then, together with the first delivery of financial statements pursuant to
paragraph (a) and (b) above following such change, a schedule prepared by a
Financial Officer on behalf of Domestic Borrower reconciling such changes to
what the financial statements would have been without such changes;
(f) within 90 days after the beginning of each fiscal year, an
operating and capital expenditure budget, in form satisfactory to the
Administrative Agent prepared by Holdings for each of the four fiscal quarters
of such fiscal year prepared in reasonable detail, of Holdings and the
Subsidiaries, accompanied by the statement of a Financial Officer of Holdings to
the effect that, to the best of his knowledge, the budget is a reasonable
estimate for the period covered thereby;
(g) annually, upon the reasonable request of the Administrative
Agent, updated Perfection Certificates (or, to the extent such request relates
to specified information contained in the Perfection Certificates, such
information) reflecting all changes since the date of the information most
recently received pursuant to this paragraph (g) or Section 5.10(d);
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(h) promptly, a copy of all reports submitted to the Board of
Directors (or any committee thereof) of any of Holdings, any Borrower or any
Subsidiary in connection with any material interim or special audit made by
independent accountants of the books of Holdings, any Borrower or any
Subsidiary;
(i) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of Holdings, any
Borrower or any of the Subsidiaries, or compliance with the terms of any Loan
Document, or such consolidating financial statements, as in each case the
Administrative Agent may reasonably request (for itself or on behalf of any
Lender); and
(j) promptly upon request by the Administrative Agent, copies of:
(i) each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the
most recent actuarial valuation report for any Plan; (iii) all notices received
from a Multiemployer Plan sponsor or a Plan sponsor or any governmental agency
concerning an ERISA Event; and (iv) such other documents or governmental reports
or filings relating to any Plan or Multiemployer Plan as the Administrative
Agent shall reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of Holdings or any Borrower obtains actual knowledge
thereof:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any written threat or written
notice of intention of any Person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority or in arbitration, against Holdings, any Borrower or any of the
Subsidiaries as to which an adverse determination is reasonably probable and
which, if adversely determined, could reasonably be expected to have a Material
Adverse Effect;
(c) any other development specific to Holdings, any Borrower or any
of the Subsidiaries that is not a matter of general public knowledge and that
has had, or could reasonably be expected to have, a Material Adverse Effect; and
(d) the occurrence of any ERISA Event, that together with all other
ERISA Events that have occurred, could reasonably be expected to have a Material
Adverse Effect.
SECTION 5.06. Compliance with Laws. Comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property (owned or leased), except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect; provided that this Section 5.06 shall not apply to Environmental
Laws, which are the subject of Section 5.09, or to laws related to Taxes, which
are the subject of Section 5.03.
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SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any Persons designated by the Administrative Agent or, upon the occurrence and
during the continuance of an Event of Default, any Lender to visit and inspect
the financial records and the properties of Holdings, any Borrower or any of the
Subsidiaries at reasonable times, upon reasonable prior notice to Holdings or
such Borrower, and as often as reasonably requested and to make extracts from
and copies of such financial records, and permit any Persons designated by the
Agents or, upon the occurrence and during the continuance of an Event of
Default, any Lender upon reasonable prior notice to Holdings or such Borrower to
discuss the affairs, finances and condition of Holdings, such Borrower or any of
the Subsidiaries with the officers thereof and independent accountants therefor
(subject to reasonable requirements of confidentiality, including requirements
imposed by law or by contract).
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and the
issuance of Letters of Credit solely for the purposes described in Section 3.11.
SECTION 5.09. Compliance with Environmental Laws. Comply, and make
commercially reasonable efforts to cause all lessees and other Persons occupying
its properties to comply, with all Environmental Laws applicable to its
operations and properties; and obtain and renew all material authorizations and
permits required pursuant to Environmental Law for its operations and
properties, in each case in accordance with Environmental Laws, except, in each
case with respect to this Section 5.09, to the extent the failure to do so could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
SECTION 5.10. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, Mortgages and other documents and recordings of Liens in stock
registries), that may be required under any applicable law, or that the
Administrative Agent may reasonably request, to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the
applicable Loan Parties and provide to the Administrative Agent, from time to
time upon reasonable request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(b) In the case of the Domestic Borrower, grant and cause each of
the Domestic Subsidiary Loan Parties to grant to the Collateral Agent security
interests and Mortgages in such Material Real Property located in the United
States of the Domestic Borrower or such Domestic Subsidiary Loan Party as are
acquired after the Closing Date and satisfy the requirements of clause (i) of
the definition of Collateral and Guarantee Requirement (other than clause (iii))
with respect to such Material Real Properties within ninety (90) days after the
date such Material Real Property is acquired. In the case of any Foreign
Borrower, grant and cause each of its respective Foreign Subsidiary Loan Parties
to grant to the Collateral Agent security interests and Mortgages in such
Material Real Property of the Foreign Borrower or such Foreign Subsidiary Loan
Party as are acquired after the Closing Date to the extent and in the manner set
forth in clause (j) of the definition of Collateral and Guarantee Requirement
with respect to such Material Real Properties within ninety (90) days after the
date such Material Real Property is acquired. With respect to each of the items
identified in this clause (b) that are required to be
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delivered within ninety (90) days after the date the applicable Material Real
Property is acquired, the Administrative Agent, in each case, may (in its sole
discretion) extend such date on two separate occasions by up to 30 days on each
such occasion.
(c) If any additional direct or indirect Subsidiary of Holdings
becomes a Material Subsidiary or a Subsidiary Loan Party after the Closing Date
within five Business Days after the date such Subsidiary becomes a Material
Subsidiary or a Subsidiary Loan Party, notify the Administrative Agent and the
Lenders thereof and, within sixty (60) Business Days after the date such
Subsidiary becomes a Material Subsidiary or a Subsidiary Loan Party, cause the
Collateral and Guarantee Requirement to be satisfied with respect to such
Subsidiary and with respect to any Equity Interest in or Indebtedness of such
Subsidiary owned by or on behalf of any Loan Party.
(d) In the case of any Loan Party, (i) furnish to the Collateral
Agent prompt written notice of any change (A) in such Loan Party's corporate or
organization name, (B) in such Loan Party's identity or organizational structure
or (C) in such Loan Party's organizational identification number; provided that
no Loan Party shall effect or permit any such change unless all filings have
been made, or will have been made within any statutory period, under the UCC or
otherwise that are required in order for the Collateral Agent to continue at all
times following such change to have a valid, legal and perfected security
interest in all the Collateral for the benefit of the Secured Parties and (ii)
promptly notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.
(e) In the case of each UK Subsidiary Loan Party, the UK Borrower
shall procure that each UK Subsidiary Loan Party shall use all reasonable
endeavours to:
(i) complete the financial assistance whitewash procedures
under Sections 155-159 of the English Companies Act
1985;
(ii) execute and deliver a guarantee in substantially the
same form as the guarantee granted by the UK Borrower
pursuant to which such UK Subsidiary Loan Party will
become a guarantor of the UK Obligations;
(iii) grant a debenture in substantially the same form as the
UK Debenture which is granted by the UK Borrower on the
Closing Date; and
(iv) deliver the following documents in each case certified
by a director of such UK Subsidiary Loan Party:
(A) in relation to the matters described in clause (i)
above, copies of the statutory declarations,
auditor's report and net assets letter (addressed,
where possible, to the Administrative Agent, on
behalf of itself and each of the Lenders) and
copies of the registers of directors and
shareholders of such UK Subsidiary Loan Party; and
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(B) in relation to the matters described in clauses
(ii) and (iii) above:
(1) a copy of the certificate of incorporation,
including all amendments thereto, of such UK
Subsidiary Loan Party;
(2) a true and complete copy of the memorandum
and articles of association of such UK
Subsidiary Loan Party as in effect on the
date that the matters described in clauses
(ii) and (iii) above are completed and at
all times since a date prior to the date of
the resolutions described in the following
clause (3) below;
(3) a true and complete copy of resolutions duly
adopted by the Board of Directors of such UK
Subsidiary Loan Party authorizing the
execution, delivery and performance of the
Loan Documents to which such UK Subsidiary
Loan Party is a party and, in the case that
such UK Subsidiary Loan Party is an
Additional Foreign Borrower, the borrowings
hereunder, and that neither the borrowings
nor the grant of a guarantee or security
hereunder will breach any borrowing,
guarantee, security or other limit binding
on such UK Subsidiary Loan Party, and that
such resolutions have not been modified,
rescinded or amended and are in full force
and effect on the date that the matters
described in clauses (ii) and (iii) above
are completed;
(4) confirmation that the certificate of
incorporation of such UK Subsidiary Loan
Party has not been amended since the date of
the last amendment thereto disclosed
pursuant to clause (1) above;
(5) confirmation as to the incumbency and
specimen signature of the Director each
officer executing any Loan Document or any
other document delivered in connection
herewith on behalf of such UK Subsidiary
Loan Party;
(6) confirmation as to the absence of any
pending proceeding for the dissolution or
liquidation of such UK Subsidiary Loan Party
or, to the knowledge of such director,
threatening the existence of such UK
Subsidiary Loan Party;
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(7) a certificate of another officer as to the
incumbency and specimen signature of the
director executing the certificate pursuant
to clause (iv) above; and
(8) such other documents as the Administrative
Agent may reasonably request (including
without limitation, tax identification
numbers and addresses),
in each case as soon as possible and in any event by the date falling 30 days
after the Closing Date. The Domestic Borrower shall instruct its auditors and
shall procure that the UK Subsidiary Loan Parties instruct their auditors to
carry out all necessary reviews to meet this timetable and will keep the
Administrative Agent informed as to the progress with the satisfaction of the
requirements set forth in Section 5.10(e)(i).
(f) The Collateral and Guarantee Requirement and the other
provisions of this Section 5.10 need not be satisfied if such action would
violate Section 9.23 hereof. In addition, the Collateral and Guarantee
Requirement and the other provisions of this Section 5.10 need not be satisfied
with respect to (i) any Equity Interests acquired after the Closing Date in
accordance with this Agreement if, and to the extent that, and for so long as
(A) doing so would violate applicable law or a contractual obligation binding on
such Equity Interests and (B) such law or obligation existed at the time of the
acquisition thereof and was not created or made binding on such Equity Interests
in contemplation of or in connection with the acquisition of such Subsidiary
(provided that the foregoing clause (B) shall not apply in the case of a joint
venture, including a joint venture that is a Subsidiary), (ii) any assets
acquired after the Closing Date, to the extent that, and for so long as, taking
such actions would violate a contractual obligation binding on such assets that
existed at the time of the acquisition thereof and was not created or made
binding on such assets in contemplation or in connection with the acquisition of
such assets (except in the case of assets acquired with Indebtedness permitted
pursuant to Section 6.01(i) that is secured by a Lien permitted pursuant to
Section 6.02(i)) or (iii) any Equity Interests in or any asset of a Foreign
Subsidiary if the Domestic Borrower demonstrates to the Collateral Agent and the
Collateral Agent determines (in its reasonable discretion) that the cost of the
satisfaction of the Collateral and Guarantee Requirement of this Section 5.10
with respect thereto exceeds the value of the security offered thereby; provided
that, upon the reasonable request of the Collateral Agent, Holdings shall, and
shall cause any applicable Subsidiary to, use commercially reasonable efforts to
have waived or eliminated any contractual obligation of the types described in
clauses (i) and (ii) above, other than those set forth in a joint venture
agreement to which Holdings or any Subsidiary is a party.
SECTION 5.11. Fiscal Year. In the case of Holdings and the
Subsidiaries, cause their fiscal year to end on December 31.
SECTION 5.12. Interest Rate Protection Agreements. As promptly as
practicable and in any event within 90 days after the Closing Date, enter into,
and for a period of not less than three years after the Closing Date maintain in
effect, one or more Swap Agreements with one or more of the Lenders (or
Affiliates thereof), the effect of which is that at least 50% of Consolidated
Debt (other than any Indebtedness under Revolving Facility Borrowings) will bear
interest at a fixed or capped rate or the interest cost in respect of which will
be fixed or capped,
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in each case on terms and conditions reasonably acceptable, taking into account
current market conditions, to the Administrative Agent.
SECTION 5.13. Proceeds of Certain Dispositions. If, as a result of
the receipt of any cash proceeds by any Borrower or any Subsidiary in connection
with any sale, transfer, lease or other disposition of any asset, including any
Equity Interest, the Domestic Borrower would be required by the terms of the
Senior Subordinated Note Indenture to make an offer to purchase any Senior
Subordinated Notes, as applicable, then, in the case of a Borrower or a
Subsidiary, prior to the first day on which the Domestic Borrower would be
required to commence such an offer to purchase, (i) prepay Loans in accordance
with Section 2.11 or (ii) acquire assets, Equity Interests or other securities
in a manner that is permitted by Section 6.04 or Section 6.05, in each case in a
manner that will eliminate any such requirement to make such an offer to
purchase.
SECTION 5.14. Post-Closing Transactions. Notwithstanding anything to
the contrary set forth in this Agreement or any other Loan Document, Holdings
and its Subsidiaries shall be permitted to take any and all actions (including,
without limitation, taking any such actions that may otherwise be prohibited
pursuant to the terms of this Agreement or omitting to take any actions that may
otherwise be required pursuant to the terms of this Agreement) to consummate the
transactions described on Annex A hereto; provided that Holdings and the
Borrowers shall use their commercially reasonable efforts to cause the
transactions described on Annex A to be completed as soon as reasonably
practicable after the Closing.
SECTION 5.15. Post-Closing Matters. Execute and deliver the
documents and complete the tasks set forth in the definition of "Collateral and
Guarantee Requirement," in each case within the time periods specified therein
(including any extension of such time periods permitted by the Administrative
Agent pursuant to paragraph (k) of the definition of "Collateral and Guarantee
Requirement").
NEGATIVE COVENANTS
Each of Holdings and the Borrowers covenants and agrees with each
Lender that, so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each Loan,
all Fees and all other expenses or amounts payable under any Loan Document have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, neither Holdings nor any
Borrower will, or will cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness existing on the Closing Date and (other than in the
case of any existing letters of credit to be replaced with Letters of Credit
issued hereunder) set forth on Schedule 6.01 and any Permitted Refinancing
Indebtedness incurred to Refinance such Indebtedness (other than intercompany
Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with
Holdings or any Subsidiary);
105
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) Indebtedness of Holdings and the Subsidiaries pursuant to Swap
Agreements permitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of
letters of credit or bank guarantees or similar instruments for the benefit of)
any Person providing workers' compensation, health, disability or other employee
benefits or property, casualty or liability insurance to Holdings or any
Subsidiary, pursuant to reimbursement or indemnification obligations to such
Person, provided that upon the incurrence of Indebtedness with respect to
reimbursement obligations regarding workers' compensation claims, such
obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of any Borrower or any Subsidiary to the extent
permitted by Section 6.04, provided that Indebtedness of any Loan Party to any
Subsidiary that is not a Loan Party (the "Subordinated Intercompany Debt") shall
be subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds,
bid bonds, appeal bonds, surety bonds and completion or performance guarantees
and similar obligations, in each case provided in the ordinary course of
business, including those incurred to secure health, safety and environmental
obligations in the ordinary course of business and Indebtedness arising out of
advances on exports, advances on imports, advances on trade receivables,
customer prepayments and similar transactions in the ordinary course of business
and consistent with past practice;
(g) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business or other cash management
services in the ordinary course of business, provided that (x) such Indebtedness
(other than credit or purchase cards) is extinguished within three Business Days
of its incurrence and (y) such Indebtedness in respect of credit or purchase
cards is extinguished within 60 days from its incurrence;
(h) (i) Indebtedness of a Subsidiary acquired after the Closing Date
or a Person merged into or consolidated with a Borrower or any Subsidiary after
the Closing Date and Indebtedness assumed in connection with the acquisition of
assets, which Indebtedness in each case, exists at the time of such acquisition,
merger or consolidation and is not created in contemplation of such event and
where such acquisition, merger or consolidation is permitted by this Agreement
and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such
Indebtedness, provided that the aggregate principal amount of such Indebtedness
at the time of, and after giving effect to, such acquisition, merger or
consolidation, such assumption or such incurrence, as applicable (together with
Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this
Section 6.01 and the Remaining Present Value of outstanding leases permitted
under Section 6.03), would not exceed 3.75% of Consolidated Total Assets as of
the end of the fiscal quarter immediately prior to the date of such acquisition,
merger or consolidation, such assumption or such incurrence, as applicable, for
which financial statements have been delivered pursuant to Section 5.04;
106
(i) Capital Lease Obligations, mortgage financings and purchase
money Indebtedness incurred by Holdings or any Subsidiary prior to or within 270
days after the acquisition, lease or improvement of the respective asset
permitted under this Agreement in order to finance such acquisition or
improvement, and any Permitted Refinancing Indebtedness in respect thereof, in
an aggregate principal amount that at the time of, and after giving effect to,
the incurrence thereof (together with Indebtedness outstanding pursuant to
paragraph (h) of this Section 6.01, this paragraph (i) and the Remaining Present
Value of leases permitted under Section 6.03) would not exceed 3.75% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such incurrence for which financial statements have been
delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by Holdings or any Subsidiary
in respect of any Sale and Lease-Back Transaction that is permitted under
Section 6.03;
(k) other Indebtedness, in an aggregate principal amount at any time
outstanding pursuant to this paragraph (k) not in excess of U.S.$40.0 million;
(l) Indebtedness of the Domestic Borrower pursuant to the Senior
Subordinated Notes in an aggregate principal amount that is not in excess of the
sum of U.S.$420.0 million and any Permitted Refinancing Indebtedness incurred to
Refinance such Indebtedness in the form of Permitted Subordinated Debt
Securities;
(m) Guarantees (i) by the Loan Parties of the Indebtedness of the
Domestic Borrower described in paragraph (l), (ii) by any Loan Party of any
Indebtedness of any Borrower or any Loan Party expressly permitted to be
incurred under this Agreement, (iii) by any Borrower or any Subsidiary of
Indebtedness otherwise expressly permitted hereunder of any Borrower or any
Subsidiary that is not a Loan Party to the extent permitted by Section 6.04,
(iv) by any Subsidiary that is not a Loan Party of Indebtedness of another
Subsidiary that is not a Loan Party; provided that all Foreign Subsidiaries may
guarantee obligations of other Foreign Subsidiaries under ordinary course cash
management obligations, and (v) by any Borrower of Indebtedness of Foreign
Subsidiaries incurred for working capital purposes in the ordinary course of
business on ordinary business terms so long as such Indebtedness is permitted to
be incurred under 6.01(a), (k) or (s); provided that Guarantees by any Loan
Party under this Section 6.01(m) of any other Indebtedness of a Person that is
subordinated to other Indebtedness of such Person shall be expressly
subordinated to the Obligations on terms consistent with those used, or to be
used, for Subordinated Intercompany Debt;
(n) Indebtedness arising from agreements of Holdings or any
Subsidiary providing for indemnification, adjustment of purchase price, earn
outs or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, assets or a Subsidiary, other than
Guarantees of Indebtedness incurred by any Person acquiring all or any portion
of such business, assets or a Subsidiary for the purpose of financing such
acquisition;
(o) Indebtedness in connection with Permitted Receivables
Financings; provided that the proceeds thereof are applied in accordance with
Section 2.11(c);
107
(p) letters of credit or bank guarantees (other than Letters of
Credit issued pursuant to Section 2.05) having an aggregate face amount not in
excess of U.S.$40.0 million;
(q) Indebtedness supported by a Letter of Credit, in a principal
amount not in excess of the stated amount of such Letter of Credit;
(r) Indebtedness consisting of Permitted Subordinated Debt
Securities or Permitted Senior Debt Securities to the extent, in each case, the
Net Proceeds in respect thereof are actually utilized to repay Term Borrowings;
(s) Indebtedness of Foreign Subsidiaries (including letters of
credit or bank guarantees (other than Letters of Credit issued pursuant to
Section 2.05)) for working capital purposes incurred in the ordinary course of
business on ordinary business terms in an aggregate amount not to exceed
U.S.$40.0 million outstanding at any time;
(t) Indebtedness of Holdings or any of its Subsidiaries in respect
of the Management Notes in an aggregate amount not to exceed $20 million
outstanding at any time; and
(u) all premium (if any), interest (including post-petition
interest), fees, expenses, charges and additional or contingent interest on
obligations described in paragraphs (a) through (s) above.
(v) intercompany Indebtedness of any Borrower or any other
Subsidiary to the extent described on Annex A.
Notwithstanding anything to the contrary herein, Holdings shall not
be permitted to incur any Indebtedness other than Indebtedness under Sections
6.01(b), (c) and (m).
SECTION 6.02. Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
Person, including any Subsidiary) at the time owned by it or on any income or
revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of Holdings and the Subsidiaries
existing on the Closing Date and set forth on Schedule 6.02(a); provided that
such Liens shall secure only those obligations that they secure on the Closing
Date (and extensions, renewals and refinancings of such obligations permitted by
Section 6.01(a)) and shall not subsequently apply to any other property or
assets of Holdings or any Subsidiary;
(b) any Lien created under the Loan Documents or permitted in
respect of any Mortgaged Property by the terms of the applicable Mortgage;
(c) any Lien on any property or asset of Holdings or any Subsidiary
securing Indebtedness or Permitted Refinancing Indebtedness permitted by Section
6.01(h), provided that (i) such Lien does not apply to any other property or
assets of Holdings or any of the Subsidiaries not securing such Indebtedness at
the date of the acquisition of such property or asset (other than after-acquired
property subjected to a Lien securing Indebtedness and other obligations
incurred prior to such date and which Indebtedness and other obligations are
permitted hereunder that
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require a pledge of after-acquired property, it being understood that such
requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition), (ii) such Lien is
not created in contemplation of or in connection with such acquisition and (iii)
in the case of a Lien securing Permitted Refinancing Indebtedness, such Lien is
permitted in accordance with clause (e) of the definition of the term "Permitted
Refinancing Indebtedness";
(d) Liens for Taxes, assessments or other governmental charges or
levies not yet delinquent or that are being contested in compliance with Section
5.03;
(e) Liens imposed by law (including, without limitation, Liens in
favor of customers for equipment under order or in respect of advances paid in
connection therewith) such as landlord's, carriers', warehousemen's, mechanics',
materialmen's, repairmen's, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not overdue by
more than 60 days or that are being contested in good faith by appropriate
proceedings and in respect of which, if applicable, Holdings or any Subsidiary
shall have set aside on its books reserves in accordance with GAAP;
(f) (i) pledges and deposits made in the ordinary course of business
in compliance with the Federal Employers Liability Act or any other workers'
compensation, unemployment insurance and other social security laws or
regulations and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements in respect of such obligations and (ii)
pledges and deposits securing liability for reimbursement or indemnification
obligations of (including obligations in respect of letters of credit or bank
guarantees for the benefit of) insurance carriers providing property, casualty
or liability insurance to Holdings or any Subsidiary;
(g) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance and return of money
bonds, warranty bonds, bids, leases, government contracts, trade contracts,
completion or performance guarantees and other obligations of a like nature
incurred in the ordinary course of business, including those incurred to secure
health, safety and environmental obligations in the ordinary course of business;
(h) zoning restrictions, easements, trackage rights, leases (other
than Capital Lease Obligations), licenses, special assessments, rights-of-way,
restrictions on use of real property and other similar encumbrances incurred in
the ordinary course of business that do not render title unmarketable and that,
in the aggregate, do not interfere in any material respect with the ordinary
conduct of the business of Holdings or any Subsidiary or would result in a
Material Adverse Effect;
(i) purchase money security interests in equipment or other property
or improvements thereto hereafter acquired (or, in the case of improvements,
constructed) by Holdings or any Subsidiary (including the interests of vendors
and lessors under conditional sale and title retention agreements); provided
that (i) such security interests secure Indebtedness permitted by Section
6.01(i) (including any Permitted Refinancing Indebtedness in respect thereof),
(ii) such security interests are incurred, and the Indebtedness secured thereby
is created,
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within 270 days after such acquisition (or construction), (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of such equipment or other
property or improvements at the time of such acquisition (or construction),
including transaction costs incurred by Holdings or any Subsidiary in connection
with such acquisition (or construction) and (iv) such security interests do not
apply to any other property or assets of Holdings or any Subsidiary (other than
to accessions to such equipment or other property or improvements); provided
further that individual financings of equipment provided by a single lender may
be cross-collateralized to other financings of equipment provided solely by such
lender;
(j) Liens arising out of capitalized lease transactions permitted
under Section 6.03, so long as such Liens attach only to the property sold and
being leased in such transaction and any accessions thereto or proceeds thereof
and related property;
(k) Liens securing judgments that do not constitute an Event of
Default under Section 7.01(j);
(l) other Liens with respect to property or assets of Holdings or
any Subsidiary not constituting Collateral for the Obligations with an aggregate
fair market value (valued at the time of creation thereof) of not more than
U.S.$40.0 million at any time;
(m) Liens disclosed by the title insurance policies and any
replacement, extension or renewal of any such Lien; provided that such
replacement, extension or renewal Lien shall not cover any property other than
the property that was subject to such Lien prior to such replacement, extension
or renewal; provided further that the Indebtedness and other obligations secured
by such replacement, extension or renewal Lien are permitted by this Agreement;
(n) Liens in respect of Permitted Receivables Financings;
(o) any interest or title of, or Liens created by, a lessor under
any leases or subleases entered into by Holdings or any Subsidiary, as tenant,
in the ordinary course of business;
(p) Liens that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection with
the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts
of Holdings or any Subsidiary to permit satisfaction of overdraft or similar
obligations incurred in the ordinary course of business of Holdings and the
Subsidiaries or (iii) relating to purchase orders and other agreements entered
into with customers of Holdings or any Subsidiary in the ordinary course of
business;
(q) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights;
(r) Liens securing obligations in respect of trade-related letters
of credit permitted under Section 6.01(f) or (p) and covering the goods (or the
documents of title in respect of such goods) financed by such letters of credit
and the proceeds and products thereof;
(s) licenses of intellectual property granted in the ordinary course
of business;
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(t) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(u) Liens on the assets of a Foreign Subsidiary that do not
constitute Collateral and which secure Indebtedness of such Foreign Subsidiary
that is not otherwise secured by a Lien on the Collateral under the Loan
Documents and that is permitted to be incurred under Section 6.01(a) or (k);
(v) Liens upon specific items of inventory or other goods and
proceeds of Holdings or any of the Subsidiaries securing such Person's
obligations in respect of bankers' acceptances issued or created for the account
of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;
(w) Liens solely on any cash earnest money deposits made by Holdings
or any of the Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;
(x) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered into by Holdings
or any of the Subsidiaries in the ordinary course of business;
(y) Liens securing insurance premium financing arrangements in an
aggregate principal amount not to exceed 1% of Consolidated Total Assets,
provided that such Lien is limited to the applicable insurance contracts; and
(z) Liens on the assets of a Foreign Subsidiary which secure
Indebtedness of such Foreign Subsidiary that is permitted to be incurred under
Section 6.01(p) or (s); provided, however, that if such Liens are on assets that
constitute Collateral, such Liens may be pari passu with, but not prior to, the
Liens granted in favor of the Collateral Agent under the Collateral Agreements
unless such Liens secure letters of credit or bank guarantees and such assets
constitute the rights of such Foreign Subsidiary under the contracts and
agreements in respect of which such Indebtedness was incurred.
Notwithstanding the foregoing, no Liens shall be permitted to exist,
directly or indirectly, on (1) Pledged Collateral, other than Liens in favor of
the Collateral Agent and Liens permitted by Section 6.02(d), (e), (q) or (z), or
(2) Mortgaged Property, in each case, other than Liens in favor of the
Collateral Agent, Prior Liens and Permitted Encumbrances.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "Sale and Lease-Back
Transaction"), provided that a Sale and Lease-Back Transaction shall be
permitted so long as at the time the lease in connection therewith is entered
into, and after giving effect to the entering into of such Lease, the Remaining
Present Value of such lease (together with Indebtedness outstanding pursuant to
paragraphs (h) and (i) of Section 6.01 and the Remaining Present Value of
outstanding leases previously entered into under this Section 6.03) would not
exceed 3.75% of
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Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date such lease is entered into for which financial statements have been
delivered pursuant to Section 5.04.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire (including pursuant to any merger with a Person that is not a Wholly
Owned Subsidiary immediately prior to such merger) any Equity Interests,
evidences of Indebtedness or other securities of, make or permit to exist any
loans or advances (other than intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management operations of
Holdings and the Subsidiaries) to or Guarantees of the obligations of, or make
or permit to exist any investment or any other interest in (each, an
"Investment"), in any other Person, except:
(a) Investments (including, but not limited to, Investments in
Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise
expressly permitted hereunder) after the Closing Date by (i) Loan Parties in
Subsidiaries that are not Loan Parties in an aggregate amount (valued at the
time of the making thereof and without giving effect to any write-downs or
write-offs thereof) not to exceed an amount equal to (x) U.S.$40.0 million (plus
any return of capital actually received by the respective investors in respect
of investments previously made by them pursuant to this paragraph a(i)), plus
(y) the portion, if any, of the Available Investment Basket Amount on the date
of such election that Holdings elects to apply to this Section 6.04(a), (ii)
Domestic Loan Parties in Foreign Loan Parties in an aggregate amount (valued at
the time of the making thereof and without giving effect to any write-downs or
write-offs thereof) not to exceed (x) U.S.$100.0 million (plus any return of
capital actually received by the respective investors in respect of investments
previously made by them pursuant to this paragraph a(ii)), plus (y) the portion,
if any, of the Available Investment Basket Amount on the date of such election
that Holdings elects to apply to this Section 6.04(a), (iii) Domestic Loan
Parties in other Domestic Loan Parties, (iv) Foreign Loan Parties in other
Foreign Loan Parties and (iv) Subsidiaries that are not Loan Parties in Loan
Parties.
(b) Permitted Investments and investments that were Permitted
Investments when made;
(c) Investments arising out of the receipt by Holdings or any
Subsidiary of noncash consideration for the sale of assets permitted under
Section 6.05;
(d) (i) loans and advances to employees of Holdings or any
Subsidiary in the ordinary course of business not to exceed U.S.$2.5 million in
the aggregate at any time outstanding (calculated without regard to write-downs
or write-offs thereof) and (ii) advances of payroll payments and expenses to
employees in the ordinary course of business;
(e) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss and any
prepayments and other credits to suppliers made in the ordinary course of
business;
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(f) Swap Agreements permitted pursuant to Section 6.13 and Capital
Expenditures permitted pursuant to Section 6.10;
(g) Investments existing on the Closing Date and set forth on Part I
of Schedule 6.04 and Investments set forth on Part II of Schedule 6.04;
(h) Investments resulting from pledges and deposits referred to in
Sections 6.02(f) and (g);
(i) other Investments by Holdings or any Subsidiary in an aggregate
amount (valued at the time of the making thereof, and without giving effect to
any write-downs or write-offs thereof) not to exceed (i) U.S.$25.0 million (plus
any returns of capital actually received by the respective investor in respect
of investments theretofore made by it pursuant to this paragraph (i)), plus (ii)
the portion, if any, of the Available Investment Basket Amount on the date such
election is made that the Borrowers elect to apply to this paragraph (i);
(j) Investments constituting Permitted Business Acquisitions in an
aggregate amount, which shall be deemed to include the principal amount of
Indebtedness that is assumed pursuant to Section 6.01 in connection with such
Permitted Business Acquisitions, not to exceed (i) U.S.$65.0 million (net of any
return representing return of capital in respect of any such investment and
valued at the time of the making thereof); provided that (x) such amount shall
be increased to (a) U.S.$130.0 million, during any period that is a Permitted
Business Acquisition Step Up Period pursuant to clause (a) of the definition
thereof, or (b) U.S.$200.0 million, during any period that is a Permitted
Business Acquisition Step Up Period pursuant to clause (b) of the definition
thereof, in each case plus (y) the portion, if any, of the Available Investment
Basket Amount on the date such election is made that the Borrowers elect to
apply to this paragraph (j), (ii) if any Person acquired in a Permitted Business
Acquisition is not merged into any Borrower or a Loan Party or does not become
upon consummation of such Permitted Business Acquisition a Loan Party, the
aggregate amount expended in respect thereof and for all such similar Permitted
Business Acquisitions shall not exceed an amount equal to 50% of the amount of
Permitted Business Acquisitions otherwise permitted under this Section 6.04(j)
and (iii) if the amount of Investments constituting Permitted Business
Acquisitions in accordance with this Section 6.04(j) and outstanding at the time
a Permitted Business Acquisition Step-Up Period ends exceeds the amount of
Investments constituting Permitted Business Acquisitions that would be permitted
under this Section 6.04(j) immediately after the end of such Permitted Business
Acquisition Step-Up Period, then the amount of such excess (less the amount by
which investments constituting Permitted Business Acquisitions are reduced from
such time until the commencement of the next Permitted Business Acquisition
Step-Up Period, if any) shall be deemed to be permitted under this Section
6.04(j); provided further that such excess, if any, shall be deemed an election
by the Borrowers to utilize the Available Investment Basket Amount in any amount
equal to such excess;
(k) additional Investments may be made from time to time to the
extent made with proceeds of Equity Interests (excluding proceeds received as a
result of the exercise of Cure Rights pursuant to Section 7.03) of Holdings,
which proceeds or Investments in turn are contributed (as common equity) to any
Loan Party;
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(l) Investments (including, but not limited to, Investments in
Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise
expressly permitted hereunder) after the Closing Date by Subsidiaries that are
not Loan Parties in any Loan Party or other Subsidiary.
(m) Investments arising as a result of Permitted Receivables
Financings;
(n) the Transactions;
(o) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with or
judgments against, customers and suppliers, in each case in the ordinary course
of business;
(p) Investments of a Subsidiary acquired after the Closing Date or
of a corporation merged into any Borrower or merged into or consolidated with a
Subsidiary in accordance with Section 6.05 after the Closing Date to the extent
that such Investments were not made in contemplation of or in connection with
such acquisition, merger or consolidation and were in existence on the date of
such acquisition, merger or consolidation;
(q) Guarantees by Holdings or any Subsidiary of operating leases
(other than Capital Lease Obligations) or of other obligations that do not
constitute Indebtedness, in each case entered into by any Subsidiary in the
ordinary course of business;
(r) Investments described on Annex A;
(s) any Investment related to Multiphase Power and Processing
Technologies, LLC and Dresser-Rand and Enserv Services Sdn. Bnd. in accordance
with the constitutive documents related thereto and in an aggregate amount not
to exceed U.S.$10 million.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any part of its assets (whether now owned or hereafter acquired), or issue,
sell, transfer or otherwise dispose of any Equity Interests of any Borrower or
any Subsidiary or preferred equity interests of Holdings, or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other Person, except that this Section
shall not prohibit:
(a) (i) the sale of inventory, supplies, materials and equipment and
the purchase and sale of contract rights or licenses or leases of intellectual
property, in each case in the ordinary course of business by Holdings or any
Subsidiary, (ii) the sale of any other asset in the ordinary course of business
by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out
equipment or other property in the ordinary course of business by Holdings or
any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course
of business;
(b) if at the time thereof and immediately after giving effect
thereto no Event of Default shall have occurred and be continuing, (i) the
merger of any Subsidiary into any Borrower in a transaction in which such
Borrower is the surviving corporation, (ii) the merger or
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consolidation of any Subsidiary into or with any Loan Party in a transaction in
which the surviving or resulting entity is a Loan Party and, in the case of each
of clauses (i) and (ii), no Person other than such Borrower or a Loan Party
receives any consideration, (iii) the merger or consolidation of any Subsidiary
that is not a Loan Party into or with any other Subsidiary that is not a Loan
Party or (iv) the liquidation or dissolution (other than the Borrowers) or
change in form of entity of Holdings or any Subsidiary if Holdings determines in
good faith that such liquidation or dissolution is in the best interests of
Holdings and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to Holdings or a
Subsidiary (upon voluntary liquidation or otherwise); provided that any sales,
transfers, leases or other dispositions by a Loan Party to a Subsidiary that is
not a Loan Party shall be made in compliance with Section 6.07; provided further
that the aggregate gross proceeds of any sales, transfers, leases or other
dispositions by a Loan Party to a Subsidiary that is not a Loan Party in
reliance upon this paragraph (c) and the aggregate gross proceeds of any or all
assets sold, transferred or leased in reliance upon paragraph (h) below shall
not exceed, in any fiscal year of the Domestic Borrower, 3.75% of Consolidated
Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by
Section 6.02 and Dividends permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital
contribution) of Receivables Assets pursuant to Permitted Receivables
Financings;
(g) the sale of defaulted receivables in the ordinary course of
business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not
otherwise permitted by this Section 6.05; provided that the aggregate gross
proceeds (including noncash proceeds) of any or all assets sold, transferred,
leased or otherwise disposed of in reliance upon this paragraph (h) and in
reliance upon the second proviso to paragraph (c) above shall not exceed, in any
fiscal year of the Domestic Borrower, 3.75% of Consolidated Total Assets as of
the end of the immediately preceding fiscal year; provided further that the Net
Proceeds thereof are applied in accordance with Section 2.11(c);
(i) any merger or consolidation in connection with a Permitted
Business Acquisition, provided that following any such merger or consolidation
(i) involving any Borrower, such Borrower is the surviving corporation, (ii)
involving a domestic Subsidiary, the surviving or resulting entity shall be a
domestic Loan Party that is a Wholly Owned Subsidiary and (iii) involving a
Foreign Subsidiary, the surviving or resulting entity shall be a Foreign
Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(j) licensing and cross-licensing arrangements involving any
technology or other intellectual property of any Borrower or any Subsidiary in
the ordinary course of business;
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(k) sales, leases or other dispositions of inventory of Holdings and
its Subsidiaries determined by the management of Holdings or any Borrower to be
no longer useful or necessary in the operation of the business of Holdings or
any of the Subsidiaries; provided that the Net Proceeds thereof are applied in
accordance with Section 2.11(c); and
(l) any sale, transfer or other disposition of assets related to
Multiphase Power and Processing Technologies, LLC and Dresser-Rand and Enserv
Services Sdn. Bnd. in accordance with the constitutive documents related thereto
and in an aggregate amount not to exceed U.S.$10 million.
Notwithstanding anything to the contrary contained in Section 6.05
above, (i) Holdings shall at all times own, directly or indirectly, 85% of the
Equity Interests of each Borrower free and clear of any Liens other than Liens
created by the Security Documents, (ii) no sale, transfer or other disposition
of assets shall be permitted by this Section 6.05 (other than sales, transfers,
leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof
and purchases, sales or transfers pursuant to paragraph (f) hereof) unless such
disposition is for fair market value, (iii) no sale, transfer or other
disposition of assets shall be permitted by paragraph (a), (d), (f) or (k) of
this Section 6.05 unless such disposition is for at least 75% cash consideration
and (vii) no sale, transfer or other disposition of assets in excess of
U.S.$10.0 million shall be permitted by paragraph (h) of this Section 6.05
unless such disposition is for at least 75% cash consideration; provided that
for purposes of clauses (ii) and (iii), the amount of any secured Indebtedness
or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on
Holdings' or such Subsidiary's most recent balance sheet or in the notes
thereto) of Holdings or any Subsidiary of Holdings that is assumed by the
transferee of any such assets shall be deemed cash.
SECTION 6.06. Dividends and Distributions. Declare or pay, directly
or indirectly, any dividend or make any other distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, with respect to any of its Equity Interests (other than dividends and
distributions on Equity Interests payable solely by the issuance of additional
shares of Equity Interests of the Person paying such dividends or distributions)
or directly or indirectly redeem, purchase, retire or otherwise acquire for
value (or permit any Subsidiary to purchase or acquire) any shares of any class
of its Equity Interests or set aside any amount for any such purpose; provided,
however, that:
(a) any Subsidiary of Holdings may declare and pay dividends to,
repurchase its Equity Interests from or make other distributions to, Holdings or
to any Wholly Owned Subsidiary of Holdings (or, in the case of non-Wholly Owned
Subsidiaries, to Holdings or any subsidiary that is a direct or indirect parent
of such subsidiary and to each other owner of Equity Interests of such
subsidiary on a pro rata basis (or more favorable basis from the perspective of
Holdings, or such subsidiary) based on their relative ownership interests);
(b) Holdings and each Subsidiary may declare and pay dividends or
make other distributions to any Parent Company in respect of overhead of such
Parent Company or its direct or indirect owners, including, without limitation,
legal, accounting and professional fees and other fees and expenses in
connection with the maintenance of its existence and its
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ownership of Holdings, in each case, to the extent attributable to the ownership
of such Parent Company in Holdings or such Subsidiary;
(c) Holdings and each Subsidiary may repurchase, redeem or otherwise
acquire or retire (or make dividends or distributions to any Parent Company to
finance any such repurchase, redemption or other acquisition or retirement) for
value any Equity Interests of Holdings, any Parent Company or any Subsidiary
held by any current or former officer, director, consultant or employee of
Holdings, any Parent Company or any Subsidiary pursuant to any equity
subscription agreement, stock option agreement, shareholders' or members'
agreement or similar agreement, plan or arrangement or any Plan and Subsidiaries
may declare and pay dividends to Holdings or any other Subsidiary the proceeds
of which are used for such purposes, provided that the aggregate amount of such
purchases or redemptions under this paragraph (c) shall not exceed in any fiscal
year U.S.$4.0 million (plus the amount of net proceeds (x) received by Holdings
during such calendar year from sales of Equity Interests of Holdings to
directors, consultants, officers or employees of Holdings or any Subsidiary in
connection with permitted employee compensation and incentive arrangements and
(y) of any key-man life insurance policies recorded during such calendar year)
which, if not used in any year, may be carried forward to any subsequent
calendar year
(d) noncash repurchases of Equity Interests deemed to occur upon
exercise of stock options if such Equity Interests represent a portion of the
exercise price of such options;
(e) so long as no Default or Event of Default shall have occurred
and is continuing, Holdings may declare and pay dividends or make other
distributions of up to 5% per calendar year of the net cash proceeds received by
Holdings from any public offering of the Equity Interests of Holdings;
(f) Holdings and each Subsidiary may declare and pay dividends or
make other distributions to any Parent Company to fund any payments contemplated
by the Transition Services Agreement, the Supply Agreement, the License
Agreement and Sections 1.2(c), 1.4(d), 1.8, 6.4, 6.5, 6.7, 6.8(n)(ii), 6.8(q),
6.18, 6.20, 8.1 and 9.1(b) of the Acquisition Agreement;
(g) The Domestic Borrower may make distributions to its members of
management that hold Equity Interests of the Domestic Borrower in respect of
such Equity Interests in an aggregate amount not to exceed in any fiscal year,
together with such amounts permitted under Section 6.06(h) for such fiscal year,
U.S.$3 million;
(h) Holding and the Domestic Borrower may make distributions to any
Parent Company solely in connection with distributions to members of management
of FRC that hold profit interests in FRC in an aggregate amount not to exceed in
any fiscal year, together with such amounts permitted under Section 6.06(g) for
such fiscal year, U.S.$3 million;
(i) Holdings and each Subsidiary may declare and pay dividends or
make other distributions described on Annex A; and
(j) Payments on Management Notes so long as such payments are in
accordance with the subordination provisions related thereto.
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SECTION 6.07. Transactions with Affiliates. (a) Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transaction with, any of its Affiliates, unless
such transaction is (i) otherwise permitted (or required) under this Agreement
(including in connection with any Permitted Receivables Financing) or (ii) upon
terms no less favorable to Holdings or such Subsidiary, as applicable, than
would be obtained in a comparable arm's-length transaction with a Person that is
not an Affiliate; provided that this clause (ii) shall not apply to the
indemnification of directors of Holdings and the Subsidiaries in accordance with
customary practice.
(b) The foregoing paragraph (a) shall not prohibit, to the extent
otherwise permitted under this Agreement,
(i) any issuance of securities, or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options, stock ownership plans and the
granting and performance of registration rights approved by the Board of
Directors of Holdings,
(ii) transactions among the Borrowers and the Loan Parties and
transactions among the non-Loan Parties otherwise permitted by this
Agreement,
(iii) any indemnification agreement or any similar arrangement
entered into with directors, officers, consultants and employees of
Holdings and the Subsidiaries or any Parent Company in the ordinary course
of business and the payment of fees and indemnities to directors,
officers, consultants and employees of Holdings and the Subsidiaries or
any Parent Company in the ordinary course of business,
(iv) transactions pursuant to permitted agreements in existence on
the Closing Date and set forth on Schedule 6.07 or any amendment thereto
to the extent such amendment is not adverse to the Lenders in any material
respect,
(v) any employment agreement or employee benefit plan entered into
by Holdings or any of the Subsidiaries in the ordinary course of business
or consistent with past practice and payments pursuant thereto,
(vi) transactions otherwise permitted under Section 6.04 and Section
6.06,
(vii) any purchase by the Funds or any Fund Affiliate of Equity
Interests of Holdings or any contribution by Holdings to, or purchase by
Holdings of, the equity capital of any Borrower; provided that any Equity
Interests of any Borrower purchased by Holdings shall be pledged to the
Collateral Agent on behalf of the Lenders pursuant to the applicable
Collateral Agreement,
(viii) payments by Holdings or any of the Subsidiaries to the Funds
or any Fund Affiliate made for any financial advisory, financing,
underwriting or placement services or in respect of other investment
banking activities, including in connection with acquisitions or
divestitures, which payments are approved by the majority of the board of
directors of Holdings, in good faith,
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(ix) the existence of, or the performance by Holdings, any Borrower
or any of the Subsidiaries of its obligations under the terms of, the
Acquisition Agreement, or any agreement contemplated thereunder to which
it is a party as of the Closing Date, or the Holdings LLC Agreement;
provided, however, that the existence of, or the performance by Holdings,
any Borrower or any subsidiary of obligations under any future amendment
to any such existing agreement or under any similar agreement entered into
after the Closing Date shall only be permitted by this clause (x) to the
extent that the terms of any such amendment or new agreement are not
otherwise disadvantageous to the Lenders in any material respect,
(x) transactions with any Affiliate for the purchase or sale of
goods, products, parts and services entered into in the ordinary course of
business in a manner consistent with past practice,
(xi) any transaction in respect of which Holdings delivers to the
Administrative Agent (for delivery to the Lenders) a letter addressed to
the Board of Directors of Holdings from an accounting, appraisal or
investment banking firm, in each case of nationally recognized standing
that is (A) in the good faith determination of Holdings qualified to
render such letter and (B) reasonably satisfactory to the Administrative
Agent, which letter states that such transaction is on terms that are no
less favorable to Holdings or such Subsidiary, as applicable, than would
be obtained in a comparable arm's-length transaction with a Person that is
not an Affiliate,
(xii) the payment of all fees, expenses, bonuses and awards related
to the Transactions contemplated by the Acquisition Documents, including
fees to the Funds or any Fund Affiliate,
(xiii) transactions described in Annex A,
(xiv) transactions pursuant to any Permitted Receivables Financing,
(xv) the issuance of Management Notes, and payments pursuant
thereto, so long as such payments are in accordance with the subordination
provisions related thereto,
(xvi) so long as not otherwise prohibited under this Agreement,
guarantees of performance by Holdings or any Subsidiary of any other
Subsidiary or Holdings that are not a Loan Party in the ordinary course of
business, except for guarantees of Indebtedness in respect of borrowed
money; and
(xvii) if such transaction is with a Person in its capacity as a
holder (A) of Indebtedness of Holdings or any Subsidiary where such Person
is treated no more favorably than the other holders of Indebtedness of
Holdings or any Subsidiary or (B) at any time after an initial public
offering of Equity Interests of Holdings, of Equity Interests of Holdings
or any Subsidiary where such Person is treated no more favorably than the
other holders of Equity Interests of Holdings or any Subsidiary.
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SECTION 6.08. Business of Holdings and the Subsidiaries. (a)
Notwithstanding any other provisions hereof, engage at any time in any business
or business activity other than any business or business activity conducted by
it on the Closing Date and any business or business activities incidental or
related thereto, or any business or activity that is reasonably similar thereto
or a reasonable extension, development or expansion thereof or ancillary
thereto, including the consummation of the Transactions.
(b) In the case of Holdings, conduct, transact or otherwise engage
in any business or operations other than those incidental to its ownership of
the Equity Interests of the Domestic Borrower, the performance of the
Transaction Documents and any transactions that Holdings is permitted to enter
into or consummate under this Article VI.
SECTION 6.09. Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc. (a) Amend or modify in any manner materially adverse to the
Lenders, or grant any waiver or release under or terminate in any manner (if
such granting or termination shall be materially adverse to the Lenders), the
articles or certificate of incorporation or by-laws or partnership agreement or
limited liability company operating agreement of Holdings, any Borrower or any
of the Subsidiaries or the Acquisition Agreement.
(b) (i) Make, or agree or offer to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on the Senior
Subordinated Notes or any Permitted Subordinated Debt Securities, or any payment
or other distribution (whether in cash, securities or other property), including
any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of the Senior Subordinated
Notes or any Permitted Subordinated Debt Securities (except for Refinancings
permitted by Section 6.01(l)), except for (A) payments of regularly scheduled
interest and (B) with respect to Permitted Subordinated Debt Securities,
payments made solely with the proceeds of contributions made in respect of
Equity Interests; or
(ii) Amend or modify, or permit the amendment or modification of,
any provision of any Senior Subordinated Note or any Permitted Senior Debt
Securities or Permitted Subordinated Debt Securities, any Permitted
Receivables Document or any agreement (including any Senior Subordinated
Notes Document or any document relating to any Permitted Senior Debt
Securities or Permitted Subordinated Debt Securities) relating thereto,
other than amendments or modifications that are not in any manner
materially adverse to Lenders and that do not affect the subordination
provisions thereof (if any) in a manner adverse to the Lenders.
(c) Permit any Subsidiary to enter into any agreement or instrument
that by its terms restricts (i) the payment of dividends or distributions or the
making of cash advances by such Subsidiary to Holdings or any Subsidiary that is
a direct or indirect parent of such Subsidiary or (ii) the granting of Liens by
such Subsidiary pursuant to the Security Documents, in each case other than
those arising under any Loan Document, except, in each case, restrictions
existing by reason of:
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(A) restrictions imposed by applicable law;
(B) restrictions contained in any Permitted Receivables Document
with respect to any Special Purpose Receivables Subsidiary;
(C) contractual encumbrances or restrictions in effect on the
Closing Date under (x) any Senior Subordinated Note Document or (y) any
agreements related to any permitted renewal, extension or refinancing of
any Indebtedness existing on the Closing Date that does not expand the
scope of any such encumbrance or restriction;
(D) restrictions imposed by any Permitted Senior Debt Securities
that are substantially similar to restrictions set forth in the Credit
Agreement;
(E) any restriction on a Subsidiary imposed pursuant to an agreement
entered into for the sale or disposition of all or substantially all the
Equity Interests or assets of a Subsidiary pending the closing of such
sale or disposition;
(F) customary provisions in joint venture agreements and other
similar agreements applicable to joint ventures entered into in the
ordinary course of business;
(G) any restrictions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement to the extent that such
restrictions apply only to the property or assets securing such
Indebtedness;
(H) customary provisions contained in leases or licenses of
intellectual property and other similar agreements entered into in the
ordinary course of business;
(I) customary provisions restricting subletting or assignment of any
lease governing a leasehold interest;
(J) customary provisions restricting assignment of any agreement
entered into in the ordinary course of business;
(K) customary restrictions and conditions contained in any agreement
relating to the sale of any asset permitted under Section 6.05 pending the
consummation of such sale; or
(L) any agreement in effect at the time such subsidiary becomes a
Subsidiary, so long as such agreement was not entered into in
contemplation of such Person becoming a Subsidiary.
SECTION 6.10. Capital Expenditures. Permit the Domestic Borrower or
its Subsidiaries to make any Capital Expenditure, except that:
(a) The Domestic Borrower and its Subsidiaries may make Capital
Expenditures so long as during (i) the fiscal quarter ended December 31, 2004,
Holdings of the aggregate amount thereof does not exceed U.S.$5.0 million and
during any fiscal year thereafter the aggregate amount thereof does not exceed
the amount set forth opposite such fiscal year below:
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Year Amount
- ---- ------
2005 U.S.$20.0 million
2006 U.S.$20.0 million
2007 U.S.$25.0 million
2008 U.S.$25.0 million
(b) Notwithstanding anything to the contrary contained in paragraph
(a) above, to the extent that the aggregate amount of Capital Expenditures made
by the Domestic Borrower and its Subsidiaries in any fiscal year of the Domestic
Borrower pursuant to Section 6.10(a) is less than the amount set forth for such
fiscal year, the amount of such difference may be carried forward and used to
make Capital Expenditures in the two succeeding fiscal years; provided that in
any fiscal year, the amount permitted to be applied to make Capital Expenditures
pursuant to this paragraph (b) shall in no event exceed an amount equal to 50%
of the amount set forth in Section 6.10(a) for such fiscal year.
(c) In addition to the Capital Expenditures permitted pursuant to
the preceding paragraphs (a) and (b), the Domestic Borrower and its Subsidiaries
may make additional Capital Expenditures at any time in an amount not to exceed
the portion, if any, of the Available Investment Basket Amount on the date of
such Capital Expenditure that the Borrowers elect to apply to this Section
6.10(c).
SECTION 6.11. Interest Coverage Ratio. Permit the ratio (the
"Interest Coverage Ratio") on the last day of the fiscal quarter set forth
below, for the four quarter period ended as of such day of (a) EBITDA to (b)
Cash Interest Expense to be less than the ratio set forth below for such period;
provided that to the extent any Asset Disposition or any Asset Acquisition (or
any similar transaction or transactions for which a waiver or a consent of the
Required Lenders pursuant to Section 6.05 has been obtained) or incurrence or
repayment of Indebtedness (excluding normal fluctuations in revolving
Indebtedness incurred for working capital purposes) has occurred during the
relevant Test Period, the Interest Coverage Ratio shall be determined for the
respective Test Period on a pro forma Basis for such occurrences.
Period Ended Ratio
------------ -----
December 31, 2004 1.750 to 1.000
March 31, 2005 1.750 to 1.000
June 30, 2005 1.875 to 1.000
September 30, 2005 1.875 to 1.000
December 31, 2005 2.000 to 1.000
March 31, 2006 2.000 to 1.000
June 30, 2006 2.125 to 1.000
September 30, 2006 2.125 to 1.000
December 31, 2006 2.125 to 1.000
March 31, 2007 2.125 to 1.000
June 30, 2007 2.250 to 1.000
September 30, 2007 2.250 to 1.000
December 31, 2007 2.250 to 1.000
March 31, 2008 2.250 to 1.000
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Period Ended Ratio
------------ -----
June 30, 2008 2.500 to 1.000
September 30, 2008 2.500 to 1.000
December 31, 2008 and thereafter 2.500 to 1.000
SECTION 6.12. Leverage Ratio. Permit the Leverage Ratio on the last
day of any fiscal quarter set forth below, to be in excess of the ratio set
forth below for such period.
Period Ended Ratio
------------ -----
December 31, 2004 6.85 to 1.000
March 31, 2005 6.75 to 1.000
June 30, 2005 6.50 to 1.000
September 30, 2005 6.50 to 1.000
December 31, 2005 6.25 to 1.000
March 31, 2006 6.00 to 1.000
June 30, 2006 5.75 to 1.000
September 30, 2006 5.50 to 1.000
December 31, 2006 5.25 to 1.000
March 31, 2007 5.00 to 1.000
June 30, 2007 4.75 to 1.000
September 30, 2007 4.50 to 1.000
December 31, 2007 4.50 to 1.000
March 31, 2008 4.25 to 1.000
June 30, 2008 4.00 to 1.000
September 30, 2008 4.00 to 1.000
December 31, 2008 and thereafter 4.00 to 1.000
SECTION 6.13. Swap Agreements. Enter into any Swap Agreement, other
than (a) Swap Agreements required by Section 5.12 or any Permitted Receivables
Financing, (b) Swap Agreements entered into in the ordinary course of business
to hedge or mitigate risks to which Holdings or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities, and (c) Swap
Agreements entered into in order to effectively cap, collar or exchange interest
rates (from fixed to floating rates, from one floating rate to another floating
rate or otherwise) with respect to any interest-bearing liability or investment
of Holdings or any Subsidiary.
SECTION 6.14. Designated Senior Debt. Designate any Indebtedness of
any Borrower or any of the Subsidiaries other than (i) the Obligations hereunder
and (ii) Permitted Senior Debt Securities as "Designated Senior Indebtedness"
under, and as defined in, the Senior Subordinated Notes Indenture.
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ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. In case of the happening of any of
the following events ("Events of Default"):
(a) any representation or warranty made or deemed made by Holdings,
any Borrower or any other Loan Party in any Loan Document, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in connection
with or pursuant to any Loan Document, shall prove to have been false or
misleading in any material respect when so made, deemed made or furnished by
Holdings, any Borrower or any other Loan Party;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or on any L/C Disbursement or in the payment of any Fee or any other amount
(other than an amount referred to in (b) above) due under any Loan Document,
when and as the same shall become due and payable, and such default shall
continue unremedied for a period of five (5) Business Days;
(d) default shall be made in the due observance or performance by
Holdings, any Borrower or any of the Subsidiaries of any covenant, condition or
agreement contained in Section 5.01(a) (with respect to Holdings or any
Borrower), 5.05(a), 5.08, 5.10(c) or in Article VI;
(e) default shall be made in the due observance or performance by
Holdings, any Borrower or any of the Subsidiaries of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
paragraphs (b), (c) and (d) above) and such default shall continue unremedied
for a period of 30 days after notice thereof from the Administrative Agent or
any Lender to any Borrower;
(f) (i) any event or condition occurs that (A) results in any
Material Indebtedness becoming due prior to its scheduled maturity or (B)
enables or permits (with all applicable grace periods having expired) the holder
or holders of any Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity or (ii) Holdings, any Borrower or any of the Subsidiaries shall fail to
pay the principal of any Material Indebtedness at the stated final maturity
thereof; provided that this clause (f) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness if such sale or transfer is permitted
hereunder and under the documents providing for such Indebtedness;
(g) there shall have occurred a Change in Control;
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(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in (or, with respect to any UK Loan Party, the
presentation of an application shall be made with) a court of competent
jurisdiction seeking (i) relief in respect of Holdings, any Borrower or any of
the Subsidiaries (other than a Borrower or Subsidiary incorporated in France),
or of a substantial part of the property or assets of Holdings, any Borrower or
any Subsidiary (other than a Borrower or Subsidiary incorporated in France),
under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official (or, with respect to
any UK Loan Party, an administration order) for Holdings, any Borrower or any of
the Subsidiaries (other than a Borrower or Subsidiary incorporated in France) or
for a substantial part of the property or assets of Holdings, any Borrower or
any of the Subsidiaries (other than a Borrower or Subsidiary incorporated in
France) or (iii) the winding-up or liquidation of Holdings, any Borrower or any
Subsidiary (other than a Borrower or Subsidiary incorporated in France) (except,
in the case of any Subsidiary (other than the Borrowers), in a transaction
permitted by Section 6.05); and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) Holdings, any Borrower or any Subsidiary (other than a Borrower
or Subsidiary incorporated in France) shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in paragraph (h)
above, (iii) apply for, request or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for Holdings,
any Borrower or any of the Subsidiaries (other than a Borrower or Subsidiary
incorporated in France) or for a substantial part of the property or assets of
Holdings, any Borrower or any Subsidiary (other than a Borrower or Subsidiary
incorporated in France), (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) become unable, admit in writing
its inability or fail generally to pay its debts as they become due;
(j) the failure by Holdings, any Borrower or any Subsidiary to pay
one or more final judgments aggregating in excess of U.S.$20.0 million (net of
any amounts which are covered by insurance or bonded), which judgments are not
discharged or effectively waived or stayed for a period of 30 consecutive days,
or any action shall be legally taken by a judgment creditor to levy upon assets
or properties of Holdings, any Borrower or any Subsidiary to enforce any such
judgment;
(k) one or more ERISA Events shall have occurred that, when taken
together with all other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;
(l) any Borrower or any Subsidiary incorporated in France (a) stops
or suspends or announces an intention to stop or suspend payment of its debts or
shall admit its inability to pay its debts as they fall due or shall for the
purpose of any applicable law be or be deemed to be unable to pay its debts or
shall otherwise be or be deemed to be insolvent for the
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purpose of any insolvency law or to be in a state of cessation de paiements, (b)
applies for the appointment of a mandataire ad hoc, (c) applies for or is
subject to the appointment of a conciliateur for a reglement amiable pursuant to
Articles L. 611-3 et seq. of the French Code de Commerce, (d) is the subject of
a judgment for redressement judiciaire, cession totale de l'entreprise or
liquidation judiciaire pursuant to Articles L. 620-1 et seq. of the French Code
de Commerce or (e) is the subject, in any jurisdiction other than France, of any
procedure or step analogous to those set out as items (b), (c) and (d) above;
(m) (i) any Loan Document shall for any reason be asserted in
writing by Holdings, any Borrower or any Subsidiary not to be a legal, valid and
binding obligation of any party thereto, (ii) any security interest purported to
be created by any Security Document and to extend to Collateral that is not
immaterial to Holdings, any Borrower and their Subsidiaries on a consolidated
basis shall cease to be, or shall be asserted in writing by any Borrower or any
other Loan Party not to be, a valid and perfected security interest (having the
priority required by this Agreement or the relevant Security Document) in the
securities, assets or properties covered thereby, except to the extent that (x)
any such loss of perfection or priority results from the failure of the
Collateral Agent to maintain possession of certificates actually delivered to it
representing securities pledged under the Collateral Agreements or to file UCC
continuation statements, (y) such loss is covered by a lender's title insurance
policy and the Administrative Agent shall be reasonably satisfied with the
credit of such insurer or (z) any such loss of validity, perfection or priority
is the result of any failure by the Collateral Agent or the Administrative Agent
to take any action necessary to secure the validity, perfection or priority of
the liens, or (iii) the Guarantees pursuant to the Security Documents by
Holdings or the Subsidiary Loan Parties of any of the Obligations shall cease to
be in full force and effect (other than in accordance with the terms thereof),
or shall be asserted in writing by Holdings or any Borrower or any Subsidiary
Loan Party not to be in effect or not to be legal, valid and binding
obligations;
then, and in every such event (other than an event with respect to any Borrower
described in paragraph (h), (i) or (l) above), and at any time thereafter during
the continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrowers, take any or all of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrowers accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrowers, anything contained herein or in any
other Loan Document to the contrary notwithstanding and (iii) demand cash
collateral pursuant to Section 2.05(j); and in any event with respect to the
Borrowers described in paragraph (h) or (i) above, the Commitments shall
automatically terminate, the principal of the Loans then outstanding, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder and under any other Loan
Document, shall automatically become due and payable and the Administrative
Agent shall be deemed to have made a demand for cash collateral to the full
extent permitted under Section 2.05(j), without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
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SECTION 7.02. Exclusion of Immaterial Subsidiaries. Solely for the
purposes of determining whether an Event of Default has occurred under clause
(h) or (i) of Section 7.01, any reference in any such clause to any Subsidiary
shall be deemed not to include any Subsidiary affected by any event or
circumstance referred to in any such clause that did not, as of the last day of
the fiscal quarter of the Domestic Borrower most recently ended, have assets
with a value in excess of 2.5% of the Consolidated Total Assets or 2.5% of total
revenues of the Domestic Borrower and its Subsidiaries as of such date; provided
that if it is necessary to exclude more than one Subsidiary from clause (h) or
(i) of Section 7.01 pursuant to this Section 7.02 in order to avoid an Event of
Default thereunder, all excluded Subsidiaries shall be considered to be a single
consolidated Subsidiary for purposes of determining whether the condition
specified above is satisfied.
SECTION 7.03. Holdings' Right to Cure. (a) Financial Performance
Covenants. Notwithstanding anything to the contrary contained in Section 7.01,
in the event that Holdings fails to comply with the requirements of any
Financial Performance Covenant, until the expiration of the 10th day subsequent
to the date the certificate calculating such Financial Performance Covenant is
required to be delivered pursuant to Section 5.04(c), Holdings shall have the
right to issue Permitted Cure Securities for cash or otherwise receive cash
contributions to the capital of Holdings, and, in each case, to contribute any
such cash to the capital of the Domestic Borrower (collectively, the "Cure
Right"), and upon the receipt by the Domestic Borrower of such cash (the "Cure
Amount") pursuant to the exercise by Holdings of such Cure Right such Financial
Performance Covenant shall be recalculated giving effect to the following pro
forma adjustments:
(i) EBITDA shall be increased, solely for the purpose of measuring
the Financial Performance Covenants and not for any other purpose under
this Agreement, by an amount equal to the Cure Amount; and
(ii) If, after giving effect to the foregoing recalculations,
Holdings shall then be in compliance with the requirements of all
Financial Performance Covenants, Holdings shall be deemed to have
satisfied the requirements of the Financial Performance Covenants as of
the relevant date of determination with the same effect as though there
had been no failure to comply therewith at such date, and the applicable
breach or default of the Financial Performance Covenants that had occurred
shall be deemed cured for this purposes of the Agreement.
(b) Limitation on Exercise of Cure Right. Notwithstanding anything
herein to the contrary, (a) in each four-fiscal-quarter period there shall
be at least one fiscal quarter in which the Cure Right is not exercised,
(b) in each eight-fiscal-quarter period, there shall be a period of at
least four consecutive fiscal quarters during which the Cure Right is not
exercised and (c) the Cure Amount shall be no greater than the amount
required for purposes of complying with the Financial Performance
Covenants.
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ARTICLE VIII
THE AGENTS
SECTION 8.01. Appointment. (a) In order to expedite the transactions
contemplated by this Agreement, (i) Citicorp North America, Inc. is hereby
appointed to act as Administrative Agent and Collateral Agent and (ii) Morgan
Stanley Senior Funding, Inc. and UBS Securities LLC are each hereby appointed to
act as a Co-Syndication Agent. Each of the Lenders and each assignee of any such
Lender hereby irrevocably authorizes the Administrative Agent to take such
actions on behalf of such Lender or assignee and to exercise such powers as are
specifically delegated to the Administrative Agent by the terms and provisions
hereof and of the other Loan Documents, together with such actions and powers as
are reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders and each Issuing Bank, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders and such Issuing Bank
all payments of principal of and interest on the Loans, all payments in respect
of L/C Disbursements and all other amounts due to the Lenders and such Issuing
Bank hereunder, and promptly to distribute to each Lender or such Issuing Bank
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders of any Event of Default specified in this Agreement of which
the Administrative Agent has actual knowledge acquired in connection with the
performance of its duties as Administrative Agent hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by any Borrower pursuant to this Agreement as received by
the Administrative Agent. Without limiting the generality of the foregoing, the
Collateral Agent is hereby expressly authorized to execute any and all documents
(including releases) with respect to the Collateral and the rights of the
Secured Parties with respect thereto, as contemplated by and in accordance with
the provisions of this Agreement and the Security Documents, and all rights and
remedies in respect of such Collateral shall be controlled by the Collateral
Agent.
(b) Neither the Agents nor any of their respective directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his own gross negligence or willful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrowers or any other Loan Party of any of the terms,
conditions, covenants or agreements contained in any Loan Document. The Agents
shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or any other Loan
Documents or other instruments or agreements. The Agents shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper Person. Neither the Agents nor any of their
respective directors, officers, employees or agents shall have any
responsibility to any Borrower or any other Loan Party or any other party hereto
or to any Loan Document on account of the failure, delay in performance or
breach by, or as a result of information provided by, any Lender or Issuing Bank
of any of its obligations hereunder or to any Lender or Issuing Bank on account
of
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the failure of or delay in performance or breach by any other Lender or Issuing
Bank or any Borrower or any other Loan Party of any of their respective
obligations hereunder or under any other Loan Document or in connection herewith
or therewith. Each Agent may execute any and all duties hereunder by or through
agents, employees or any sub-agent appointed by it and shall be entitled to rely
upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel.
SECTION 8.02. Nature of Duties. The Lenders hereby acknowledge that
no Agent shall be under any duty to take any discretionary action permitted to
be taken by it pursuant to the provisions of this Agreement unless it shall be
requested in writing to do so by the Required Lenders. The Lenders further
acknowledge and agree that so long as an Agent shall make any determination to
be made by it hereunder or under any other Loan Document in good faith, such
Agent shall have no liability in respect of such determination to any Person.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into the Loan Documents or otherwise exist against the
Administrative Agent. Each Lender recognizes and agrees that the Joint Lead
Arrangers shall have no duties or responsibilities under this Agreement or any
other Loan Document, or any fiduciary relationship with any Lender, and shall
have no functions, responsibilities, duties, obligations or liabilities for
acting as such hereunder.
SECTION 8.03. Resignation by the Agents. Subject to the appointment
and acceptance of a successor Agent as provided below, any Agent may resign at
any time by notifying the Lenders and the Borrowers. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor with the
consent of the Borrowers (not to be unreasonably withheld or delayed). If no
successor shall have been so appointed by the Required Lenders and approved by
the Borrowers and shall have accepted such appointment within 45 days after the
retiring Agent gives notice of its resignation, then the retiring Agent may, on
behalf of the Lenders with the consent of the Borrowers (not to be unreasonably
withheld or delayed), appoint a successor Agent which shall be a bank with an
office in New York, New York and an office in London, England (or a bank having
an Affiliate with such an office) having a combined capital and surplus that is
not less than U.S.$500.0 million or an Affiliate of any such bank. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Agent.
SECTION 8.04. Each Agent in Its Individual Capacity. With respect to
the Loans made by it hereunder, each Agent in its individual capacity and not as
Agent shall have the same rights and powers as any other Lender and may exercise
the same as though it were not an Agent, and the Agents and their Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with any Borrower or any of the Subsidiaries or other Affiliates thereof as if
it were not an Agent.
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SECTION 8.05. Indemnification. Each Lender agrees (a) to reimburse
the Agents, on demand, in the amount of its pro rata share (based on its
Commitments hereunder (or if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of its
applicable outstanding Loans or participations in L/C Disbursements, as
applicable)) of any reasonable expenses incurred for the benefit of the Lenders
by the Agents, including reasonable counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, which shall not
have been reimbursed by the Borrowers and (b) to indemnify and hold harmless
each Agent and any of its directors, officers, employees or agents, on demand,
in the amount of such pro rata share, from and against any and all liabilities,
Taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against it in its capacity as Agent or any
of them in any way relating to or arising out of this Agreement or any other
Loan Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have been
reimbursed by the Borrowers, provided that no Lender shall be liable to an Agent
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of such Agent or any of its directors,
officers, employees or agents.
SECTION 8.06. Lack of Reliance on Agents. Each Lender acknowledges
that it has, independently and without reliance upon the Agents and any Lender
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agents, any other Lender and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement or any other Loan
Document, any related agreement or any document furnished hereunder or
thereunder.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under
this Agreement to carry out duties of the Administrative Agent. The Sub-Agent
shall be subject to each of the obligations in this Agreement to be performed by
the Sub-Agent, and each of the Borrowers and the Lenders agrees that the
Sub-Agent shall be entitled to exercise each of the rights and shall be entitled
to each of the benefits of the Administrative Agent under this Agreement as
related to the performance of its obligations hereunder.
SECTION 8.08. Appointment of Supplemental Collateral Agents. (a) It
is the purpose of this Agreement and the other Loan Documents that there shall
be no violation of any law of any jurisdiction denying or restricting the right
of banking corporations or associations to transact business as agent or trustee
in such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case the Administrative Agent
deems that by reason of any present or future law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that the Administrative
Agent appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent, collateral sub-agent or collateral co-agent (any
such additional
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individual or institution being referred to herein individually as a
"Supplemental Collateral Agent" and collectively as "Supplemental Collateral
Agents").
(b) In the event that the Administrative Agent appoints a
Supplemental Collateral Agent with respect to any Collateral, (i) each and every
right, power, privilege or duty expressed or intended by this Agreement or any
of the other Loan Documents to be exercised by or vested in or conveyed to the
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either the Administrative Agent or such Supplemental Collateral Agent, and (ii)
the provisions of this Article and of Section 9.05 that refer to the
Administrative Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to the Administrative Agent shall be deemed to
be references to the Administrative Agent and/or such Supplemental Collateral
Agent, as the context may require.
(c) Should any instrument in writing from any Loan Party be required
by any Supplemental Collateral Agent so appointed by the Administrative Agent
for more fully and certainly vesting in and confirming to it such rights,
powers, privileges and duties, such Loan Party shall execute, acknowledge and
deliver any and all such instruments promptly upon request by the Administrative
Agent. In case any Supplemental Collateral Agent, or a successor thereto, shall
die, become incapable of acting, resign or be removed, all the rights, powers,
privileges and duties of such Supplemental Collateral Agent, to the extent
permitted by law, shall vest in and be exercised by the Administrative Agent
until the appointment of a new Supplemental Collateral Agent.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. (a) Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, as
follows:
(i) if to the Domestic Borrower, to it at Dresser-Rand Group Inc.,
Paul Clark Drive, Olean, NY 14760-0560, Attention to Steve Riordan
(telecopy (716) 375-3178) (e-mail: steve_riordan@dresser-rand.com) with a
copy to First Reserve Corporation, One Lafayette Place, Greenwich,
Connecticut 06830;
(ii) if to the UK Borrower, to it at 31, Boulevard Winston Churchill
76080 LE HAVRE Cedex 7013 France, Attention: M. Jean-Claude Matton
(telecopy +33 (0)2 35 25 53 66 (e-mail:
Jean-Claude_Matton@Dresser-Rand.com) with a copy to First Reserve
Corporation, One Lafayette Place, Greenwich, Connecticut 06830;
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(iii) if to the French Borrower, to it at D-R Holdings (France)
S.A.S. c/o DRESSER-RAND S.A., 31, Boulevard Winston Churchill 76080 LE
HAVRE Cedex 7013, Attention: Jean-Francois CHEVRIER (telecopy +33 235 25
5369 (e-mail: jean-francois_chevrier@dresser-rand.com) with a copy to
First Reserve Corporation, One Lafayette Place, Greenwich, Connecticut
06830;
(iv) if to the Administrative Agent or the Collateral Agent, to
Citicorp North America, Inc., 2 Penns Way, Suite 200, New Castle, Delaware
19720, attention: Keith Carter (telecopy: (212) 994-0961)
(e-mail:keith.j.carter@citigroup.com), with a copy to Shearman & Sterling
LLP, 599 Lexington Avenue, New York, New York 10022, attention: Maura O'
Sullivan, Esq. (telecopy: (646) 848-7897); and
(v) if to an Issuing Bank, to it at the address or telecopy number
set forth separately in writing.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. Each of the Administrative
Agent, the Collateral Agent and the Borrowers may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided further that
approval of such procedures may be limited to particular notices or
communications.
(c) All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service,
sent by telecopy or (to the extent permitted by paragraph (b) above) electronic
means or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
(d) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers and the Loan Parties
herein, in the other Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
and each Issuing Bank and shall survive the making by the Lenders of the Loans,
the execution and delivery of the Loan Documents and the issuance of the Letters
of Credit, regardless of any investigation made by such Persons or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or L/C Disbursement or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. Without prejudice to the survival of any other
agreements contained herein, indemnification and reimbursement obligations
contained herein
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(including pursuant to Sections 2.15, 2.17 and 9.05) shall survive the payment
in full of the principal and interest hereunder, the expiration of the Letters
of Credit and the termination of the Commitments or this Agreement.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by Holdings, the Borrowers and the Agents and
when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of Holdings, the
Borrowers, each Issuing Bank, the Agents and each Lender and their respective
permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i)
other than pursuant to a merger permitted by Section 6.05(b) or 6.05(i), no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agents, each Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of:
(A) the Borrowers; provided that no consent of any Borrower shall be
required for an assignment in respect of the primary syndication of the
Facilities (as reasonably determined by the Administrative Agent), so long
as the Domestic Borrower is consulted with respect to such assignments;
provided, further, that no consent of any Borrower shall be required for
an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or,
if an Event of Default has occurred and is continuing, any other assignee
(provided that any liability of the Borrowers to an assignee that is an
Approved Fund or Affiliate of the assigning Lender under Section 2.15,
2.17 or 2.20 shall be limited to the amount, if any, that would have been
payable hereunder by the Borrowers in the absence of such assignment); and
(B) the Administrative Agent and, in the case of Revolving Facility
Commitment, the Swingline Lenders; provided that no consent of the
Administrative Agent or the Swingline Lenders, as applicable, shall be
required for an assignment of (i) a Revolving Facility Commitment to an
assignee that is a Revolving Facility Lender immediately prior to giving
effect to such assignment, or (ii) a Term Loan to a Lender, an
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Affiliate of a Lender or Approved Fund 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, an assignment of the entire remaining amount
of the assigning Lender's Commitment or contemporaneous assignments to
related Approved Funds that equal at least U.S.$1.0 million in the
aggregate, the amount of the commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than U.S.$1.0 million, unless each
of the Borrowers and the Administrative Agent otherwise consent; provided
that no such consent of the Borrowers shall be required if an Event of
Default under paragraph (b), (c), (h) or (i) of Section 7.01 has occurred
and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of U.S.$3,500; provided that no such
recordation fee shall be due in connection with an assignment to an
existing Lender or Affiliate of a Lender or an Approved Fund of such
Lender or an assignment by the Administrative Agent and provided further
that only one such fee shall be payable in connection with contemporaneous
assignments to related Approved Funds; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the term "Approved Fund" shall
have the following meaning:
"Approved Fund" shall mean any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans
and similar extensions of credit in the ordinary course and that is
administered or managed by a Lender, an Affiliate of a Lender or an entity
or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender hereunder shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.05). Any assignment or transfer
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by a Lender of rights or obligations under this Agreement that does not comply
with this Section 9.04 shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrowers, shall maintain at one of its offices a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and L/C Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and each Borrower, the Agents, each Issuing Bank and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by any Borrower, any Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrowers, the
Administrative Agent, any Issuing Bank or any Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrowers, the
Agents, each Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument (oral or written)
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement and the other Loan Documents; provided that (x) such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in Section
9.04(a)(i) or clauses (i), (ii), (iii), (iv), (v) or (vi) of the first proviso
to Section 9.08(b) that affects such Participant and (y) no other agreement
(oral or written) with respect to such Participant may exist between such Lender
and such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.06 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender.
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(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15, 2.16 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrowers' prior written consent (which shall not be unreasonably
withheld). A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.17 to the extent such
Participant fails to comply with Section 2.17(e) as though it were a Lender.
(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) For the purposes of Article 1278 of the French Civil Code, it is
expressly agreed that upon any assignment of the rights and obligations of a
Lender, the security created or evidenced by any collateral agreement or
instrument governed by French law and/or with a French law party shall be
preserved for the benefit of the new Lender and each other Secured Party.
(f) A copy of the instrument evidencing the assignment of the rights
of a Lender in respect of any Loan to the French Borrower or any Additional
Foreign Borrower organized under the laws of France shall be notified through a
French bailiff (huissier) to such Borrower in accordance with Article 1690 of
the French Civil Code. The new Lender will be responsible for the fees of the
French bailiff (huissier) for so notifying the French Loan Party.
SECTION 9.05. Expenses; Indemnity. (a) The Domestic Borrower agrees
to pay all reasonable and documented out-of-pocket expenses (including Other
Taxes) incurred by the Agents in connection with the preparation of this
Agreement and the other Loan Documents, or by the Agents in connection with the
syndication of the Commitments or the administration of this Agreement
(including expenses incurred in connection with due diligence and initial and
ongoing Collateral examination to the extent incurred with the reasonable prior
approval of the Domestic Borrower and the reasonable fees, disbursements and the
charges for no more than one counsel in each jurisdiction where Collateral is
located) or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the Transactions hereby
contemplated shall be consummated) or incurred by the Agents or any Lender in
connection with the enforcement or protection of their rights in connection with
this Agreement and the other Loan Documents, in connection with the Loans made
or the Letters of Credit issued hereunder, including the reasonable fees,
charges and disbursements of Shearman & Sterling LLP, counsel for the Agents and
the Joint Lead Arrangers, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel)
(including the reasonable and documented allocated costs of internal counsel for
the Agents, the Joint Lead Arrangers, any Issuing Bank or any Lender (but no
more than one such counsel for any Lender)).
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(b) The Domestic Borrower agrees to indemnify the Agents, the Joint
Lead Arrangers, each Issuing Bank, each Lender and each of their respective
directors, trustees, officers, employees, investment advisors and agents (each
such Person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable and documented counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto and thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated hereby, (ii) the use of the proceeds of the
Loans or the use of any Letter of Credit or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses result primarily from the gross negligence or
willful misconduct of such Indemnitee (treating, for this purpose only, any
Agent, any Joint Lead Arranger, any Issuing Bank, any Lender and any of their
respective Related Parties as a single Indemnitee). Subject to and without
limiting the generality of the foregoing sentence, the Domestic Borrower agrees
to indemnify each Indemnitee against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
reasonable and documented counsel or consultant fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (A) any Environmental Claim related in any way
to Holdings, any Borrower or any of their Subsidiaries, or (B) any actual or
alleged presence, Release or threatened Release of Hazardous Materials at,
under, on or from any Property, any property owned, leased or operated by any
predecessor of Holdings, any Borrower or any of their Subsidiaries, or any
property at which Holdings, any Borrower or any of their Subsidiaries has sent
Hazardous Wastes for treatment, storage or disposal, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses result from the gross
negligence or willful misconduct of such Indemnitee or any of its Related
Parties. The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document, or any investigation made by or on
behalf of any Agent, any Issuing Bank or any Lender. All amounts due under this
Section 9.05 shall be payable on written demand therefor accompanied by
reasonable documentation with respect to any reimbursement, indemnification or
other amount requested.
(c) Unless an Event of Default shall have occurred and be
continuing, the Domestic Borrower shall be entitled to assume the defense of any
action for which indemnification is sought hereunder with counsel of their
choice at its expense (in which case the Domestic Borrower shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by an
Indemnitee except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to each such Indemnitee. Notwithstanding the
Domestic Borrower's election to assume the defense of such action, each
Indemnitee shall have the right to employ separate counsel and to participate in
the defense of such action, and the Domestic Borrower shall bear the reasonable
fees, costs and expenses of such separate counsel, if (i) the
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use of counsel chosen by the Domestic Borrower to represent such Indemnitee
would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both a Borrower
and such Indemnitee and such Indemnitee shall have reasonably concluded that
there may be legal defenses available to it that are different from or
additional to those available to the Borrowers (in which case the Domestic
Borrower shall not have the right to assume the defense or such action on behalf
of such Indemnitee); (iii) the Domestic Borrower shall not have employed counsel
reasonably satisfactory to such Indemnitee to represent it within a reasonable
time after notice of the institution of such action; or (iv) the Domestic
Borrower shall authorize in writing such Indemnitee to employ separate counsel
at the Domestic Borrower's expense. The Domestic Borrower will not be liable
under this Agreement for any amount paid by an Indemnitee to settle any claims
or actions if the settlement is entered into without the Domestic Borrower's
consent, which consent may not be withheld or delayed unless such settlement is
unreasonable in light of such claims or actions against, and defenses available
to, such Indemnitee.
(d) Except as expressly provided in Section 9.05(a) with respect to
Other Taxes, which shall not be duplicative with any amounts paid pursuant to
Section 2.17, this Section 9.05 shall not apply to Taxes.
SECTION 9.06. Right of Set-off. Subject to Section 9.23, if an Event
of Default shall have occurred and be continuing, each Lender and each Issuing
Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Issuing Bank to or for the
credit or the account of (a) any Domestic Loan Party or any other Domestic
Subsidiary, against any and all obligations of the Domestic Loan Parties, (b)
any UK Loan Party or any of its Subsidiaries, against any and all of the UK
Obligations, (c) any French Loan Party or any of its Subsidiaries, against any
and all of the French Obligations, and (d) any other Foreign Loan Party or any
of its Foreign Subsidiaries , against any and all of the obligations of such
Foreign Loan Party, in each case, now or hereafter existing under this Agreement
or any other Loan Document held by such Lender or such Issuing Bank,
irrespective of whether or not such Lender or such Issuing Bank shall have made
any demand under this Agreement or such other Loan Document and although the
obligations may be unmatured. The rights of each Lender and each Issuing Bank
under this Section 9.06 are in addition to other rights and remedies (including
other rights of set-off) that such Lender or such Issuing Bank may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Agents, any Issuing Bank or any Lender in exercising any right or power
hereunder or under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, each Issuing Bank and the
Lenders hereunder and under the
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other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by Holdings,
any Borrower or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on Holdings, any Borrower or any other Loan
Party in any case shall entitle such Person to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except (x) in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrowers and the Required Lenders and (y) in the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by each party thereto and the Collateral Agent and
consented to by the Required Lenders; provided, however, that no such agreement
shall
(i) decrease or forgive the principal amount of, or extend the final
maturity of, or decrease the rate of interest on, any Loan or any L/C
Disbursement, without the prior written consent of each Lender directly
affected thereby; provided that any amendment to the financial covenant
definitions in this Agreement shall not constitute a reduction in the rate
of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the
Commitment Fees or L/C Participation Fees or other fees of any Lender
without the prior written consent of such Lender (it being understood that
waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the aggregate Commitments
shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Installment Date or reduce the amount due
on any Installment Date or extend any date on which payment of interest on
any Loan or any L/C Disbursement or any Fees is due, without the prior
written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a
manner that would by its terms alter the pro rata sharing of payments
required thereby, without the prior written consent of each Lender
adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition
of the terms "Required Lenders," "Majority Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the prior written consent of each Lender
adversely affected thereby (it being understood that, with the consent of
the Required Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Lenders on
substantially the same basis as the Loans and Commitments are included on
the Closing Date),
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(vi) release all or substantially all the Collateral or release any
of Holdings or any Subsidiary Loan Party from its Guarantee under a
Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all
or substantially all the Equity Interests of such Subsidiary Loan Party is
sold or otherwise disposed of in a transaction permitted by this
Agreement, without the prior written consent of each Lender, or
(vii) effect any waiver, amendment or modification that by its terms
adversely affects the rights in respect of payments or collateral of
Lenders participating in any Facility differently from those of Lenders
participating in other Facilities, without the consent of the Majority
Lenders participating in the adversely affected Facility (it being agreed
that the Required Lenders may waive, in whole or in part, any prepayment
or Commitment reduction required by Section 2.11 so long as the
application of any prepayment or Commitment reduction still required to be
made is not changed);
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or an Issuing Bank hereunder
without the prior written consent of the Administrative Agent or such Issuing
Bank acting as such at the effective date of such agreement, as applicable. Each
Lender shall be bound by any waiver, amendment or modification authorized by
this Section 9.08 and any consent by any Lender pursuant to this Section 9.08
shall bind any assignee of such Lender.
(c) Without the consent of any Co-Syndication Agent, Joint Lead
Arranger or Lender, the Loan Parties and the Administrative Agent and/or
Collateral Agent may (in their respective sole discretion, or shall, to the
extent required by any Loan Document) enter into any amendment, modification or
waiver of any Loan Document, or enter into any new agreement or instrument, to
effect the granting, perfection, protection, expansion or enhancement of any
security interest in any Collateral or additional property to become Collateral
for the benefit of the Secured Parties, or as required by local law to give
effect to, or protect any security interest for the benefit of the Secured
Parties, in any property or so that the security interests therein comply with
applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Administrative Agent, Holdings and the Borrowers (a) to add one or more
additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Term Loans and the Revolving Facility Loans
and the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination of
the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may
be amended with the written consent of the Administrative Agent, Holdings, the
Borrowers and the Lenders providing the relevant Replacement Term Loans (as
defined below) to permit the refinancing of all outstanding Tranche B Term Loans
("Refinanced Term Loans") with a replacement "B" term loan tranche hereunder
which shall be Loans hereunder ("Replacement Term Loans"); provided that (a) the
aggregate principal amount of such Replacement Term Loans shall not exceed the
aggregate principal amount of such Refinanced Term Loans, (b) the
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Applicable Margin for such Replacement Term Loans shall not be higher than the
Applicable Margin for such Refinanced Term Loans, (c) the weighted average life
to maturity of such Replacement Term Loans shall not be shorter than the
weighted average life to maturity of such Refinanced Term Loans at the time of
such refinancing and (d) all other terms applicable to such Replacement Term
Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Term Loans than, those applicable to such Refinanced
Term Loans, except to the extent necessary to provide for covenants and other
terms applicable to any period after the latest final maturity of the Term Loans
in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming
modifications to the Loan Documents may be made with the consent of Holdings and
the Borrowers and the Administrative Agent to the extent necessary to integrate
any New Term B Commitments or New Revolving Facility Commitments on
substantially the same basis as the Tranche B Term Loans or Revolving Facility
Loans, as applicable.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges that are treated as interest under applicable law
(collectively, the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender or any Issuing Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") that may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate
of interest payable hereunder, together with all Charges payable to such Lender
or such Issuing Bank, shall be limited to the Maximum Rate, provided that such
excess amount shall be paid to such Lender or such Issuing Bank on subsequent
payment dates to the extent not exceeding the legal limitation.
SECTION 9.10. Entire Agreement. This Agreement, the other Loan
Documents and the agreements regarding certain Fees referred to herein
constitute the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among or representations from the parties
or their Affiliates with respect to the subject matter hereof is superseded by
this Agreement and the other Loan Documents. Notwithstanding the foregoing, the
Fee Letter shall survive the execution and delivery of this Agreement and remain
in full force and effect. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT
141
AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which,
when taken together, shall constitute but one contract, and shall become
effective as provided in Section 9.03. Delivery of an executed counterpart to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually signed original.
SECTION 9.14. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each
of Holdings and the Borrowers hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such federal court. Each Borrower further
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties thereto by registered or
certified mail, postage prepaid, to such Borrower at the address specified for
the Loan Parties in Section 9.01(a). Each Foreign Borrower hereby further agrees
that service of process in any such action or proceeding brought in any such New
York state court or in any such federal court may be made upon the Domestic
Borrower at its address specified in Section 9.01(a), and each Foreign Borrower
hereby irrevocably appoints the Domestic Borrower as its authorized agent to
accept such service of process, and hereby irrevocably agrees that the failure
of the Domestic Borrower to give any notice of such service to such Borrower
shall not impair or affect the validity of such service or of any judgment
rendered in any action or proceeding based thereon. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Lender or any Issuing Bank may otherwise have to bring any action
or proceeding relating to this Agreement or the other Loan Documents against
Holdings, any Borrower or any Loan Party or their properties in the courts of
any jurisdiction.
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(b) Each of Holdings and the Borrowers hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.16. Confidentiality. Each of the Lenders, each Issuing
Bank and each of the Agents agrees that it shall maintain in confidence any
information relating to Holdings, the Borrowers and the other Loan Parties
furnished to it by or on behalf of Holdings, the Borrowers or the other Loan
Parties (other than information that (a) has become generally available to the
public other than as a result of a disclosure by such party, (b) has been
independently developed by such Lender, such Issuing Bank or such Agent without
violating this Section 9.16 or (c) was available to such Lender, such Issuing
Bank or such Agent from a third party having, to such Person's knowledge, no
obligations of confidentiality to Holdings, any Borrower or any other Loan
Party) and shall not reveal the same other than to its directors, trustees,
officers, employees and advisors with a need to know or to any Person that
approves or administers the Loans on behalf of such Lender (so long as each such
Person shall have been instructed to keep the same confidential in accordance
with this Section 9.16), except: (A) to the extent necessary to comply with law
or any legal process or the requirements of any Governmental Authority, the
National Association of Insurance Commissioners or of any securities exchange on
which securities of the disclosing party or any Affiliate of the disclosing
party are listed or traded, (B) as part of normal reporting or review procedures
to Governmental Authorities or the National Association of Insurance
Commissioners, (C) to its parent companies, Affiliates or auditors (so long as
each such Person shall have been instructed to keep the same confidential in
accordance with this Section 9.16), (D) in order to enforce its rights under any
Loan Document in a legal proceeding, (E) to any prospective assignee of, or
prospective Participant in, any of its rights under this Agreement (so long as
such Person shall have been instructed to keep the same confidential in
accordance with this Section 9.16) and (F) to any direct or indirect contractual
counterparty in Swap Agreements or such contractual counterparty's professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual counterparty agrees to be bound by the provisions of this
Section).
SECTION 9.17. Citigroup Direct Website Communications. (a) Delivery.
(i) Each Loan Party hereby agrees that it will use all reasonable efforts to
provide to the Administrative Agent all information, documents and other
materials that it is obligated to furnish to the Administrative Agent pursuant
to this Agreement and any other Loan Document, including, without limitation,
all notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (A) relates to a request for a new, or a conversion of an
existing, borrowing or other extension of credit (including any election of an
interest rate or interest period relating thereto), (B) relates to the payment
of any principal or other amount due under this Agreement prior to the scheduled
date therefor, (C) provides notice of any Default or Event of Default under this
Agreement or (D) is required to be delivered to satisfy any condition precedent
to the effectiveness of this Agreement and/or any borrowing or other extension
of credit hereunder (all such non-excluded communications collectively, the
"Communications"), by transmitting the Communications in an
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electronic/soft medium in a format reasonably acceptable to the Administrative
Agent to oploanswebadmin@citigroup.com. Nothing in this Section 9.18 shall
prejudice the right of the Agents, the Co-Syndication Agents, the Joint Lead
Arrangers or any Lender or any Loan Party to give any notice or other
communication pursuant to this Agreement or any other Loan Document in any other
manner specified in this Agreement or any other Loan Document.
(ii) The Administrative Agent agrees that receipt of the
Communications by the Administrative Agent at its e-mail address set forth above
shall constitute effective delivery of the Communications to the Administrative
Agent for purposes of the Loan Documents. Each Lender agrees that notice to it
(as provided in the next sentence) specifying that the Communications have been
posted to the Platform (as defined below) shall constitute effective delivery of
the Communications to such Lender for purposes of the Loan Documents. Each
Lender agrees (A) to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Lender's e-mail address to
which the foregoing notice may be sent by electronic transmission and (B) that
the foregoing notice may be sent to such e-mail address.
(b) Posting. Each Loan Party further agrees that the Administrative
Agent may make the Communications available to the Lenders by posting the
Communications on Intralinks or a substantially similar electronic transmission
system (the "Platform").
(c) The Platform is provided "as is" and "as available." The Agent
Parties (as defined below) do not warrant the accuracy or completeness of the
Communications, or the adequacy of the Platform and expressly disclaim liability
for errors or omissions in the communications. No warranty of any kind, express,
implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by any Agent
Party in connection with the Communications or the Platform. In no event shall
the Administrative Agent or any of its affiliates or any of their respective
officers, directors, employees, agents advisors or representatives
(collectively, "Agent Parties") have any liability to the Loan Parties, any
Lender or any other Person or entity for damages of any kind, including, without
limitation, direct or indirect, special, incidental or consequential damages,
losses or expenses (whether in tort, contract or otherwise) arising out of any
Loan Party's or the Administrative Agent's transmission of communications
through the internet, except to the extent the liability of any Agent Party is
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted primarily from such Agent Party's gross negligence or willful
misconduct.
SECTION 9.18. Release of Liens and Guarantees. In the event that any
Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of
all or any portion of any of the Equity Interests or assets of any Subsidiary
Loan Party (other than the Equity Interests of a Borrower) to a Person that is
not (and is not required to become) a Loan Party in a transaction not prohibited
by Section 6.05, the Administrative Agent and the Collateral Agent shall
promptly (and the Lenders hereby authorize the Administrative Agent and the
Collateral Agent to) take such action and execute any such documents as may be
reasonably requested by Holdings or the Borrowers and at the Borrowers' expense
to release any Liens created by any Loan Document in respect of such Equity
Interests, and, in the case of a disposition of the Equity Interests of any
Subsidiary Loan Party that is not a Borrower in a transaction permitted by
Section 6.05 and as a
144
result of which such Subsidiary Loan Party would cease to be a Subsidiary,
terminate such Subsidiary Loan Party's obligations under its Guarantee. In
addition, the Administrative Agent and the Collateral Agent agree to take such
actions as are reasonably requested by Holdings or the Borrowers and at the
Borrowers' expense to terminate the Liens and security interests created by the
Loan Documents when all the Obligations are paid in full and all Letters of
Credit and Commitments are terminated. Any representation, warranty or covenant
contained in any Loan Document relating to any such Equity Interests, asset or
subsidiary of Holdings shall no longer be deemed to be made once such Equity
Interests or asset is so conveyed, sold, leased, assigned, transferred or
disposed of.
SECTION 9.19. U.S. Patriot Act. Each Lender hereby notifies each
Loan Party that pursuant to the requirements of the U.S. Patriot Act, it is
required to obtain, verify and record information that identifies Loan Parties,
which information includes the name and address of each Loan Party and other
information that will allow the Lenders to identify such Loan Party in
accordance with the U.S. Patriot Act.
SECTION 9.20. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency at Citibank, N.A.'s principal office
in London at 11:00 a.m. (London time) on the Business Day preceding that on
which final judgment is given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Foreign Currency into Dollars, the
parties agree to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase such Foreign Currency with
Dollars at Citibank, N.A.'s principal office in London at 11:00 a.m. (London
time) on the Business Day preceding that on which final judgment is given.
(c) The obligation of each Borrower in respect of any sum due from
it in any currency (the "Primary Currency") to any Lender or the Administrative
Agent hereunder shall, notwithstanding any judgment in any other currency, be
discharged only to the extent that on the Business Day following receipt by such
Lender or the Administrative Agent (as the case may be), of any sum adjudged to
be so due in such other currency, such Lender or the Administrative Agent (as
the case may be) may in accordance with normal banking procedures purchase the
applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such
Lender or the Administrative Agent (as the case may be) in the applicable
Primary Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent (as the case may be) against such loss, and if the amount
of the applicable Primary Currency so purchased exceeds such sum originally due
to any Lender or the Administrative Agent (as the case may be) in the applicable
Primary Currency, such Lender or the Administrative Agent (as the case may be)
agrees to remit to such Borrower such excess.
SECTION 9.21. Substitution of Currency. If a change in any Foreign
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or
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multi-national authority, this Agreement (including, without limitation, the
definition of Adjusted LIBO Rate) will be amended to the extent determined by
the Administrative Agent (acting reasonably and in consultation with the
Borrowers) to be necessary to reflect the change in currency and to put the
Lenders and the Borrowers in the same position, so far as possible, that they
would have been in if no change in such Foreign Currency had occurred.
SECTION 9.22. Termination or Release. The Security Documents, the
guarantees made therein, the Security Interest (as defined therein) and all
other security interests granted thereby shall terminate, and a Subsidiary Loan
Party shall automatically be released from its obligations thereunder and the
security interests in the Collateral granted by any Loan Party shall be
automatically released, in each case in accordance with Section 7.14 of the
Domestic Collateral Agreement or the comparable provisions of the other
Collateral Agreements.
SECTION 9.23. Pledge and Guarantee Restrictions. Notwithstanding any
provision of this Agreement or any other Loan Document to the contrary
(including any provision that would otherwise apply notwithstanding other
provisions or that is the beneficiary of other overriding language):
(a)(i) no more than 65% of the issued and outstanding Equity
Interests of (x) any Foreign Borrower or any Foreign Subsidiary or (y) any
Domestic Subsidiary substantially all of whose assets consist of the
Equity Interests in "controlled foreign corporations" under Section 957 of
the Code shall be pledged or similarly hypothecated to guarantee, secure
or support any Obligation of any Domestic Loan Party;
(ii) no Foreign Subsidiary or any Domestic Subsidiary
substantially all of whose assets consist of the Equity Interests in
"controlled foreign corporations" under Section 957 of the Code
shall guarantee or support any Obligation of any Domestic Loan
Party;
(iii) no security or similar interest shall be granted in the
assets of any Foreign Subsidiary or any Domestic Subsidiary
substantially all of whose assets consist of the Equity Interests in
"controlled foreign corporations under Section 957 of the Code
(including indirectly by way of an offset or otherwise) which
security or similar interests guarantees or supports any Obligation
of any Domestic Loan Party;
(b) no Subsidiary shall guarantee or support any Obligation of
any Loan Party if such guarantee or support would contravene the Agreed
Security Principles;
(c)(i) no Foreign Subsidiary shall guarantee or support any
Obligation of any Foreign Loan Party unless such Foreign Subsidiary
directly owns or is owned directly by such Foreign Loan Party and is
organized under the same jurisdiction as such Foreign Loan Party;
(ii) no security or similar interest shall be granted in the
assets of any Foreign Subsidiary (including indirectly by way of an
offset or otherwise) which security or similar interest guarantees
or supports any Obligation of any Foreign Loan Party unless such
Foreign Subsidiary directly owns or is owned directly by
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such Foreign Loan Party and is organized under the same jurisdiction
as such Foreign Loan Party.
The parties hereto agree that any pledge, guaranty or security or similar
interest made or granted in contravention of this Section 9.23 shall be void ab
initio.
SECTION 9.24. Matters Pertaining to the French Borrower and to any
Additional Foreign Borrower organized under the laws of France. (a) The Lenders
as of the Closing Date participating in any loan to the French Borrower and to
any Additional Foreign Borrower organized under the laws of France (if any)
represent and warrant (i) that they are duly authorized to carry out credit
transaction in France pursuant to applicable laws and regulations of France or
the European Union and (ii) that participations in loans to any French Borrower
and to any Additional Foreign Borrower organized under the laws of France (if
any) and commitments to lend to any French Borrower and to any Additional
Foreign Borrower organized under the laws of France (if any) under this
Agreement shall only be assigned or transferred to institutions that are duly
authorized to carry out credit transactions in France, or which may legally
acquire rights under loans to a French borrower under applicable laws and
regulations of France.
(b) To comply with the provisions of articles L.313-4 of the French
Monetary and Financial Code and articles L. 313-1 and L. 313-2 of the French
Code de la consommation, the French Borrower hereby acknowledges that the
effective global rate (taux effectif global or "TEG") for the Tranche B Euro
Term Loan made available to it and for the Revolving Facility Loans cannot be
calculated for the total duration of this agreement, primarily because of the
floating rate of interest applicable to such Loans and the ability of the French
Borrower to select the duration of each Interest Period. Accordingly, on the
date hereof, an example of calculation of the effective global rate, based upon
certain assumptions, is provided to the French Borrower by way of delivery of a
TEG letter by the Administrative Agent in the form attached hereto as Exhibit K.
In addition, in the event that any French Subsidiary Loan Party will become an
Additional Foreign Borrower under the Revolving Facility, the Credit Agreement
Supplement for such Additional Foreign Borrower shall contain an acknowledgement
of such Additional Foreign Borrower similar to the acknowledgement of the French
Borrower contained in this Section 9.24 and a TEG letter substantially in the
same form as the TEG letter delivered to the French Borrower. Any TEG letter
delivered pursuant to this Section 9.24 shall form an integral part of this
agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first written above.
D-R INTERHOLDING, LLC,
as Holdings
By: /s/ Thomas R. Denison
------------------------------------
Name: Thomas R. Denison
Title: President
DRESSER RAND GROUP INC., as the
Domestic Borrower
By: /s/ Thomas R. Denison
------------------------------------
Name: Thomas R. Denison
Title: President
D-R HOLDINGS (UK) LTD, as an Initial
Foreign Borrower
By: /s/ Jean-Francois Chevrier
------------------------------------
Name: Jean-Francois Chevrier
Title: President
D-R HOLDINGS (France) S.A.S., as an
Initial Foreign Borrower
By: /s/ Jean-Francois Chevrier
------------------------------------
Name: Jean-Francois Chevrier
Title: President
[Dresser-Rand Credit Agreement]
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arranger and Joint Book
Manager
By: /s/ Stephen P. Cunningham
------------------------------------
Name: Stephen P. Cunningham
Title: Managing Director
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as Lender
By: /s/ Stephen P. Cunningham
------------------------------------
Name: Stephen P. Cunningham
Title: Managing Director
CITIBANK INTERNATIONAL PLC,
as Lender
By: /s/ Alan Green
------------------------------------
Name: Alan Green
Title: Vice President
[Dresser-Rand Credit Agreement]
MORGAN STANLEY SENIOR FUNDING, INC.,
as Co-Syndication Agent, Joint Lead
Arranger and Joint Book Manager
By: /s/ Eugene F. Martin
------------------------------------
Name: Eugene F. Martin
Title: Vice President
[Dresser-Rand Credit Agreement]
UBS SECURITIES LLC,
as Co-Syndication Agent
By: /s/ David Juge
------------------------------------
Name: David Juge
Title: Managing Director
By: /s/ Oliver O. Trumbo II
------------------------------------
Name: Oliver O. Trumbo II
Title: Director
UBS LOAN FINANCE LLC, as Lender
By: /s/ David Juge
------------------------------------
Name: David Juge
Title: Managing Director
By: /s/ Oliver O. Trumbo II
------------------------------------
Name: Oliver O. Trumbo II
Title: Director
[Dresser-Rand Credit Agreement]
BEAR STEARNS CORPORATE LENDING INC.,
as Co-Documentation Agent
By: /s/ Victor Bulzacchelli
------------------------------------
Name: Victor Bulzacchelli
Title: Vice President
[Dresser-Rand Credit Agreement]
NATEXIS BANQUES POPULAIRES,
as Co-Documentation Agent
By: /s/ Renaud d'Herbes
------------------------------------
Name: Renaud d'Herbes
Title: Senior Vice President/
Regional Manager
By: /s/ Timothy Polvado
------------------------------------
Name: Timothy Polvado
Title: Vice President/Manager
[Dresser-Rand Credit Agreement]
SUMITOMO MITSUI BANKING CORP., NEW
YORK, as Lender
By: /s/ Leo E. Pagarigan
------------------------------------
Name: Leo E. Pagarigan
Title: Senior Vice President
[Dresser-Rand Credit Agreement]
SOCIETE GENERALE, NEW YORK BRANCH,
as Lender
By: /s/ Robert E. Woods
-----------------------------------
Name: Robert E. Woods
Title: Managing Director
[Dresser-Rand Credit Agreement]
SOVEREIGN BANK, as Lender
By: /s/ Daniel M. Grondin
------------------------------------
Name: Daniel M. Grondin
Title: Senior Vice President
[Dresser-Rand Credit Agreement]
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Lender
By: /s/ Chris Droussiotis
-----------------------------------
Name: Chris Droussiotis
Title: Vice President
[Dresser-Rand Credit Agreement]