Exhibit 10.1
------------
CREDIT AGREEMENT
Dated as of August 17, 2005
among
ACCO BRANDS CORPORATION,
ACCO BRANDS EUROPE LTD.,
FURLON HOLDING B.V.
(to be renamed ACCO NEDERLAND HOLDINGS B.V.)
as Borrowers
and
THE LENDERS and ISSUERS PARTY HERETO
and
CITICORP NORTH AMERICA, INC.
as Administrative Agent
and
ABN AMRO BANK, N.V.
as Syndication Agent
and
GOLDMAN SACHS CREDIT PARTNERS L.P.,
GENERAL ELECTRIC CAPITAL CORPORATION
and
HARRIS N.A.
as Co-Documentation Agents
and
CITIGROUP GLOBAL MARKETS, INC.
and
ABN AMRO INCORPORATED
as Joint Lead Arrangers and Joint Book-Running Managers
CAHILL GORDON & REINDEL LLP
80 PINE STREET
NEW YORK, NEW YORK 10005
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
Section 1.1 Defined Terms................................................................................1
Section 1.2 Computation of Time Periods.................................................................42
Section 1.3 Accounting Terms and Principles.............................................................42
Section 1.4 Conversion of Currencies....................................................................43
Section 1.5 Certain Terms...............................................................................43
ARTICLE II
THE FACILITIES
Section 2.1 The Commitments.............................................................................44
Section 2.2 Borrowing Procedures........................................................................45
Section 2.3 Swing Loans.................................................................................47
Section 2.4 Letters of Credit...........................................................................49
Section 2.5 Reduction and Termination of the Commitments................................................54
Section 2.6 Repayment of Loans..........................................................................55
Section 2.7 Promissory Notes............................................................................57
Section 2.8 Optional Prepayments........................................................................58
Section 2.9 Mandatory Prepayments.......................................................................59
Section 2.10 Interest....................................................................................60
Section 2.11 Conversion/Continuation Option..............................................................61
Section 2.12 Fees........................................................................................62
Section 2.13 Payments and Computations...................................................................63
Section 2.14 Special Provisions Governing Eurocurrency Rate Loans........................................65
Section 2.15 Increased Costs.............................................................................67
Section 2.16 Capital Adequacy............................................................................68
Section 2.17 Taxes.......................................................................................68
Section 2.18 Substitution of Lenders; Change of Lending Office...........................................71
Section 2.19 Increase in Commitments.....................................................................72
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
Section 3.1 Conditions Precedent to Initial Loans.......................................................74
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit......................................78
Section 3.3 Determinations of Initial Borrowing Conditions..............................................79
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Corporate Existence; Compliance with Law....................................................80
Section 4.2 Corporate Power; Authorization; Enforceable Obligations.....................................81
Section 4.3 Ownership of Subsidiaries...................................................................82
Section 4.4 Financial Statements........................................................................82
Section 4.5 Material Adverse Effect.....................................................................83
Section 4.6 Solvency....................................................................................83
Section 4.7 Litigation..................................................................................83
Section 4.8 Taxes.......................................................................................83
Section 4.9 Full Disclosure.............................................................................83
Section 4.10 Margin Regulations..........................................................................84
Section 4.11 No Burdensome Restrictions..................................................................84
Section 4.12 Investment Company Act; Public Utility Holding Company Act..................................84
Section 4.13 Use of Proceeds.............................................................................84
Section 4.14 Insurance...................................................................................85
Section 4.15 Labor Matters...............................................................................85
Section 4.16 ERISA.......................................................................................85
Section 4.17 Environmental Matters.......................................................................85
Section 4.18 Intellectual Property.......................................................................87
Section 4.19 Title; Real Property........................................................................87
Section 4.20 Collateral Documents........................................................................87
Section 4.21 U.K. Pensions...............................................................................89
Section 4.22 Dutch Banking Act...........................................................................89
ARTICLE V
FINANCIAL COVENANTS
Section 5.1 Maximum Leverage Ratio......................................................................89
Section 5.2 Minimum Interest Coverage Ratio.............................................................90
Section 5.3 Maximum Capital Expenditures................................................................91
ARTICLE VI
REPORTING COVENANTS
Section 6.1 Financial Statements........................................................................92
Section 6.2 Default Notices.............................................................................93
Section 6.3 Litigation..................................................................................93
Section 6.4 Asset Sales.................................................................................94
Section 6.5 SEC Filings.................................................................................94
Section 6.6 Labor Relations.............................................................................94
Section 6.7 Insurance...................................................................................94
Section 6.8 ERISA Matters...............................................................................94
Section 6.9 Environmental Matters.......................................................................95
Section 6.10 UK Pension Matters..........................................................................96
Section 6.11 Know Your Customer Regulations..............................................................96
Section 6.12 Other Information...........................................................................97
ARTICLE VII
AFFIRMATIVE COVENANTS
Section 7.1 Preservation of Corporate Existence, Etc....................................................97
Section 7.2 Compliance with Laws, Etc...................................................................97
Section 7.3 Payment of Taxes, Etc.......................................................................97
Section 7.4 Maintenance of Insurance....................................................................97
Section 7.5 Access......................................................................................98
Section 7.6 Keeping of Books............................................................................98
Section 7.7 Maintenance of Properties, Etc .............................................................98
Section 7.8 Application of Proceeds.....................................................................99
Section 7.9 Environmental...............................................................................99
Section 7.10 Additional Collateral and Guaranties........................................................99
Section 7.11 Post-Closing Covenants.....................................................................101
Section 7.12 UK Pension Matters.........................................................................101
Section 7.13 Ratings....................................................................................102
Section 7.14 Dutch Banking Act..........................................................................102
ARTICLE VIII
NEGATIVE COVENANTS
Section 8.1 Indebtedness...............................................................................103
Section 8.2 Liens, Etc.................................................................................105
Section 8.3 Investments................................................................................106
Section 8.4 Sale of Assets.............................................................................108
Section 8.5 Restricted Payments........................................................................109
Section 8.6 Prepayment of Subordinated Debt............................................................111
Section 8.7 Restriction on Fundamental Changes.........................................................111
Section 8.8 Change in Nature of Business...............................................................111
Section 8.9 Transactions with Affiliates...............................................................111
Section 8.10 Limitations on Restrictions on Subsidiary Distributions; No New Negative Pledge............112
Section 8.11 Modification of Constituent Documents......................................................113
Section 8.12 Modification of Acquisition Documents......................................................113
Section 8.13 Modification of Debt Agreements............................................................114
Section 8.14 Accounting Changes; Fiscal Year............................................................114
Section 8.15 Margin Regulations.........................................................................114
Section 8.16 No Speculative Transactions................................................................114
Section 8.17 Designated Senior Debt.....................................................................114
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default..........................................................................114
Section 9.2 Remedies...................................................................................117
Section 9.3 Actions in Respect of Letters of Credit....................................................117
Section 9.4 Rescission.................................................................................117
Section 9.5 Collection Allocation Mechanism............................................................118
ARTICLE X
THE ADMINISTRATIVE AGENT; THE AGENTS
Section 10.1 Authorization and Action...................................................................118
Section 10.2 Administrative Agent's Reliance, Etc.......................................................119
Section 10.3 Posting of Approved Electronic Communications..............................................120
Section 10.4 The Agents as Lenders......................................................................121
Section 10.5 Lender Credit Decision.....................................................................121
Section 10.6 Indemnification............................................................................121
Section 10.7 Successor Administrative Agent.............................................................122
Section 10.8 Concerning the Collateral and the Collateral Documents.....................................122
Section 10.9 Collateral Matters Relating to Related Obligations.........................................124
Section 10.10 Representation by Euro Term Lenders........................................................124
Section 10.11 German Security............................................................................124
Section 10.12 Parallel Debt (Covenant to pay the Administrative Agent)...................................125
Section 10.13 French Law Parallel Debt (Covenant to pay the Administrative Agent)........................125
ARTICLE XI
MISCELLANEOUS
Section 11.1 Amendments, Waivers, Etc...................................................................126
Section 11.2 Assignments and Participations.............................................................129
Section 11.3 Costs and Expenses.........................................................................131
Section 11.4 Indemnities................................................................................132
Section 11.5 Limitation of Liability....................................................................133
Section 11.6 Right of Set-off...........................................................................134
Section 11.7 Sharing of Payments, Etc...................................................................134
Section 11.8 Notices, Etc...............................................................................135
Section 11.9 No Waiver; Remedies........................................................................137
Section 11.10 Binding Effect.............................................................................137
Section 11.11 Governing Law..............................................................................137
Section 11.12 Submission to Jurisdiction; Service of Process.............................................137
Section 11.13 Waiver of Jury Trial.......................................................................138
Section 11.14 Marshaling; Payments Set Aside.............................................................139
Section 11.15 Section Titles.............................................................................139
Section 11.16 Execution in Counterparts..................................................................139
Section 11.17 Entire Agreement...........................................................................139
Section 11.18 Confidentiality............................................................................139
Section 11.19 Patriot Act................................................................................140
Schedules
Schedule I - Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule III - Initial Domestic Guarantors
Schedule IV - Initial Foreign Guarantors
Schedule V - Foreign Mortgaged Properties
Schedule VI - Mandatory Costs
Schedule VII - Specified Restructuring Transactions
Schedule VIII - Existing Letters of Credit
Schedule 3.1-1 - Foreign Collateral Documents: Secured Obligations
Schedule 3.1(v) - Title Insurance Amounts
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.19 - Real Property
Schedule 7.11 - Post-Closing Documents
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
Exhibits
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Revolving Credit Note
Exhibit B-2 - Form of Term Note
Exhibit B-3 - Form of Swing Loan Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Swing Loan Request
Exhibit E - Form of Letter of Credit Request
Exhibit F - Form of Notice of Conversion or Continuation
Exhibit G - Form of Opinion of Counsel for the Domestic Loan Parties
Exhibit H-1 - Form of Domestic Guaranty
Exhibit H-2 - Form of U.K./Dutch Guaranty
Exhibit H-3 - Form of Australian Guaranty
Exhibit I - Form of Domestic Security Agreement
Exhibit J - Form of Mortgage
Exhibit K - Form of Exemption Certificate
Exhibit L - Omitted
Exhibit M - Form of Trust Agreement
CREDIT AGREEMENT, dated as of August 17, 2005, among ACCO
BRANDS CORPORATION, a Delaware corporation (the "Company" or the "U.S.
Borrower"), FURLON HOLDINGS B.V. (to be renamed ACCO NEDERLAND HOLDINGS B.V.),
a private company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid) organized under the laws of The Netherlands (the "Dutch
Borrower"), ACCO BRANDS EUROPE LTD., a limited company organized under the laws
of England and Wales with registered number 5532999 (the "U.K. Borrower") and,
together with the U.S. Borrower and the Dutch Borrower, the "Borrowers"), the
Lenders (as defined below), the Issuers (as defined below) and CITICORP NORTH
AMERICA, INC. ("Citicorp"), as administrative agent, collateral agent and
trustee for the Lenders and the Issuers (in such capacities, the
"Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrowers have requested that the Lenders and
Issuers make available, for the purposes specified in this Agreement, credit
facilities consisting of term loans, revolving credit advances and letters of
credit; and
WHEREAS, the Lenders and Issuers are willing to make
available to the Borrowers such credit facilities upon the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
Section 1.1 Defined Terms
As used in this Agreement, the following terms have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Acquired Dutch Guarantor" means GBC Nederland B.V., a
private company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid) organized under the laws of The Netherlands.
"Acquisition Agreement" means the Agreement and Plan of
Merger, dated as of March 15, 2005, by and among GBC, the Company, Acquisition
Sub and the Seller.
"Acquisition Documents" means the Acquisition Agreement,
together with the schedules thereto and the other Transaction Agreements (as
defined in the Acquisition Agreement).
"Acquisition Sub" means Gemini Acquisition Sub, Inc., a
Delaware corporate subsidiary of the Company.
"Administrative Agent" has the meaning specified in the
preamble to this Agreement.
"Affected Lender" has the meaning specified in Section
2.18(a) (Substitution of Lenders; Change of Lending Office).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling or that is controlled by or is under
common control with such Person and each Person that is the beneficial owner of
20% or more of any class of Voting Stock of such Person. For the purposes of
this definition, "control" means the possession of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent Affiliate" has the meaning specified in Section
10.3(c) (Posting of Approved Electronic Communications).
"Agents" means the Administrative Agent, the Arrangers, the
Documentation Agents and the Syndication Agent.
"Agreement" means this Credit Agreement.
"Agreement Currency" has the meaning specified in Section
11.12(d) (Submission to Jurisdiction; Service of Process).
"Alternative Currency" means any lawful currency other than
Dollars that is freely transferable into Dollars.
"Applicable Lending Office" means, with respect to each
Lender, (a) its U.S. Lending Office in the case of a Loan to the U.S. Borrower,
(b) its U.K. Lending Office in the case of a Loan to the U.K. Borrower, and (c)
its Dutch Lending Office in the case of a Loan to the Dutch Borrower.
"Applicable Margin" means:
(a) For U.S. Term Loans, with respect to (A) Base Rate
Loans, a rate equal to 0.75% per annum and (B) Eurocurrency Rate Loans, a rate
equal to 1.75% per annum; provided, that at any time following delivery to the
Administrative Agent of the Financial Statements for the Fiscal Quarter ending
on March 31, 2006 required to be delivered pursuant to Section 6.1(a)
(Financial Statements), if the then applicable Leverage Ratio (determined on
the last day of the most recent Fiscal Quarter for which Financial Statements
have been delivered pursuant to Section 6.1(a) or (b) (Financial Statements))
is less than 3.50 to 1, then the Applicable Margin with respect to (A) Base
Rate Loans, shall be equal to 0.50% and (B) with respect to Eurocurrency Rate
Loans, shall be equal to 1.50%. Changes in the Applicable Margin resulting from
a change in the Leverage Ratio on the last day of any subsequent Fiscal Quarter
shall become effective as to all U.S. Term Loans upon delivery by the Company
to the Administrative Agent of new Financial Statements pursuant to Section
6.1(a) or (b) (Financial Statements), as applicable. Notwithstanding anything
to the contrary set forth in this Agreement (including the then effective
Leverage Ratio), (i) if the Company shall fail to deliver such Financial
Statements within any of the time periods specified in Section 6.1(a) or (b)
(Financial Statements), the Applicable Margin from and including the first day
following the date by which such Financial Statements were required to be
delivered, to but not including the date the Company delivers to the
Administrative Agent such Financial Statements shall equal the greatest
possible Applicable Margin provided for by this definition and (ii) for so long
as an Event of Default under clause (a), (b) or (f) of Section 9.1 (Events of
Default) shall have occurred and is continuing then, at the option of the
Requisite Class Lenders under the U.S. Term Loan Facility, the Applicable
Margin shall equal the greatest possible Applicable Margin provided for by this
clause (a); and
(b) For all Loans other than U.S. Term Loans:
(i) prior to the date on which the Administrative
Agent is in receipt of Financial Statements for the Fiscal
Quarter ending on March 31, 2006 required to be delivered
pursuant to Section 6.1(a) (Financial Statements), with
respect to (A) Swing Loans and Revolving Loans that are Base
Rate Loans, a rate equal to 1.00% per annum and (B) Sterling
Term Loans, Euro Term Loans and Revolving Loans that are
Eurocurrency Rate Loans, a rate equal to 2.00% per annum; and
(ii) following delivery of the financial statements
referred to in clause (i) above, a per annum rate equal to
the rate set forth below opposite the then applicable
Leverage Ratio (determined on the last day of the most recent
Fiscal Quarter for which Financial Statements have been
delivered pursuant to Section 6.1(a) or (b) (Financial
Statements)) set forth below:
----------------------------------------------------------- -------------- -----------------------
Base Rate Eurocurrency Rate
Leverage Ratio Loans Loans
----------------------------------------------------------- -------------- -----------------------
Greater than or equal to 4.25 to 1 1.00% 2.00%
----------------------------------------------------------- -------------- -----------------------
Less than 4.25 to 1 and equal to or greater than 3.5 to 1 0.75% 1.75%
----------------------------------------------------------- -------------- -----------------------
Less than 3.5 to 1 0.50% 1.50%
----------------------------------------------------------- -------------- -----------------------
Changes in the Applicable Margin resulting from a change in the Leverage Ratio
on the last day of any subsequent Fiscal Quarter shall become effective as to
all Sterling Term Loans, Euro Term Loans, Revolving Loans and Swing Loans upon
delivery by the Company to the Administrative Agent of new Financial Statements
pursuant to Section 6.1(a) or (b) (Financial Statements), as applicable.
Notwithstanding anything to the contrary set forth in this Agreement (including
the then effective Leverage Ratio), (i) if the Company shall fail to deliver
such Financial Statements within any of the time periods specified in Section
6.1(a) or (b) (Financial Statements), the Applicable Margin from and including
the first day following the date by which such Financial Statements were
required to be delivered, to but not including the date the Company delivers to
the Administrative Agent such Financial Statements shall equal the greatest
possible Applicable Margin provided for by this definition or (ii) for so long
as an Event of Default under clause (a), (b) or (f) of Section 9.1 (Events of
Default) shall have occurred and is continuing, then the Applicable Margin with
respect to any Facility at the option of the Requisite Class Lenders shall
equal the greatest possible Applicable Margin provided for by this definition.
"Approved Electronic Communications" means each notice,
demand, communication, information, document and other material that any Loan
Party is obligated to, or otherwise chooses to, provide to the Administrative
Agent pursuant to any Loan Document or the transactions contemplated therein,
including (a) any supplement, joinder or amendment to the Collateral Documents
and any other written Contractual Obligation delivered or required to be
delivered in respect of any Loan Document or the transactions contemplated
therein and (b) any Financial Statement, financial and other report, notice,
request, certificate and other information material; provided, however, that
"Approved Electronic Communication" shall exclude (i) any notice pursuant to
Section 2.8 (Optional Prepayments) and Section 2.9 (Mandatory Prepayments) and
any other notice relating to the payment of any principal or other amount due
under any Loan Document prior to the scheduled date therefor and (ii) all
notices of any Default.
"Approved Electronic Platform" has the meaning specified in
Section 10.3(a) (Posting of Approved Electronic Communications).
"Approved Fund" means any Fund that is advised, administered
or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or
Affiliate of an entity that advises, administers or manages a Lender.
"Arrangers" means Citigroup Global Markets Inc., and ABN Amro
Incorporated, in their capacities as joint lead arrangers and joint bookrunning
managers.
"Asset Sale" has the meaning specified in Section 8.4 (Sale
of Assets).
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible Assignee, and accepted by
the Administrative Agent, in substantially the form of Exhibit A (Form of
Assignment and Acceptance).
"Australian Guaranty" means the guaranty made by the Foreign
Loan Parties organized under the laws of Australia of the Secured Obligations,
substantially in the form of Exhibit H-3 (Form of Australian Guaranty),
together with each supplement thereto delivered pursuant to Section 7.10
(Additional Collateral and Guaranties).
"Available Credit" means, at any time, with respect to (a)
the U.S. Borrower, the Dollar Revolving Available Credit and (b) the U.K.
Borrower, the Euro Revolving Available Credit.
"Base Amount" has the meaning specified in Section 5.3
(Maximum Capital Expenditures).
"Base Rate" means for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall
be equal at all times to the higher of the following:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate; and
(b) 0.5% per annum plus the Federal Funds Rate.
"Base Rate Loan" means (i) except as otherwise agreed to by a
Swing Loan Lender as provided in Section 2.3 (Swing Loans), any Swing Loan and
(ii) any Dollar Revolving Loan or U.S. Term Loan during any period in which it
bears interest based on the Base Rate.
"Borrowers" has the meaning specified in the preamble to this
Agreement.
"Borrowing" means a Revolving Credit Borrowing or a Term Loan
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and (a) if the applicable
Business Day relates to notices, determinations, fundings and payments in
connection with the Eurocurrency Rate for any Eurocurrency Rate Loan
denominated in Dollars or Sterling, a day on which banks are open for general
business in London; or (b) if the applicable Business Day relates to notices,
determinations, fundings and payments in connection with EURIBOR or any
Eurocurrency Rate Loan denominated in Euro, any day (i) on which banks are open
for general business in London and (ii) which is a TARGET Day.
"CAM Exchange" means the exchange of the Lenders' interests
provided for in Section 9.5 (Collection Allocation Mechanism).
"CAM Exchange Date" means the first date after the Closing
Date on which there shall occur (a) any Event of Default under clause (f)(ii)
of Section 9.1 (Events of Default) with respect to a Borrower or (b) an
acceleration of Loans pursuant to Section 9.2 (Remedies).
"Capital Expenditures" means, for any Person for any period,
the aggregate of amounts that would in accordance with GAAP be reflected as
additions to property, plant and equipment on a Consolidated balance sheet of
such Person, excluding any Permitted Acquisition.
"Capital Lease" means, with respect to any Person, any lease
of, or other arrangement conveying the right to use, property by such Person as
lessee that would be accounted for as a capital lease on a balance sheet of
such Person prepared in conformity with GAAP.
"Capital Lease Obligations" means, with respect to any
Person, the capitalized amount of all obligations under Capital Leases that
should in accordance with GAAP be reflected as such on a Consolidated balance
sheet of such Person.
"Cash Equivalents" means (a) securities issued or fully
guaranteed or insured by the federal government of the United States or any
agency of the foregoing, (b) marketable direct obligations issued by any state
of the United States or the District of Columbia or any political subdivision
or instrumentality thereof that, at the time of the acquisition, are rated one
of the two highest possible ratings by S&P or Moody's, (c) certificates of
deposit, eurocurrency time deposits, overnight bank deposits and bankers'
acceptances of any commercial bank organized under the laws of the United
States, any state thereof, the District of Columbia, any non-U.S. bank, or any
branches or agencies of any such bank that, at the time of acquisition, are
rated at least "A-1" by S&P or "P-1" by Moody's or the equivalent rating by any
other nationally recognized ratings agency, (d) commercial paper of an issuer
rated at least "A-1" by S&P or "P-1" by Moody's, respectively, or the
equivalent rating by any other nationally recognized ratings agency, (e)
repurchase obligations with a term of not more than one month for underlying
securities of the types described in clause (a) above entered into with any
bank meeting the qualifications specified in clause (d) above, and (f) shares
of any money market fund that (i) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (a) through (e)
above, (ii) has net assets, the Dollar Equivalent of which exceeds $500,000,000
and (iii) is rated at least "A-1" by S&P or "P-1" by Moody's; provided,
however, that the maturities of all obligations of the type specified in
clauses (a), (b) and (c) above shall not exceed 365 days; provided, further,
that, to the extent any cash is generated through operations in a jurisdiction
outside of the United States, such cash may be retained and invested in
obligations comparable to the type described in clauses (a) through (f) to the
extent that such obligations have either (x) a comparable credit rating to
those provided above or (y) a credit rating at least equal to the sovereign
credit rating of such jurisdiction.
"Cash Interest Expense" means, with respect to any Person for
any period, the Consolidated Interest Expense of such Person for such period
less the Consolidated Non-Cash Interest Expense of such Person for such period.
"Cash Management Obligation" means any direct or indirect
liability, contingent or otherwise, of the Company or any Subsidiary in respect
of cash management services (including treasury, depository, overdraft, credit
or debit card, electronic funds transfer and other similar arrangements)
provided after the date hereof by any Qualified Party, including obligations
for the payment of fees, interest, charges, advances, expenses, attorneys' fees
and disbursements in connection therewith.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et seq.
"Change in Law" shall mean the occurrence, after the date of
this Agreement, of any of the following: (a) the adoption or taking into effect
of any law, treaty, order, policy, rule or regulation, (b) any change in any
law, treaty, order, policy, rule or regulation or in the administration,
interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive (whether or not
having the force of law) by any Governmental Authority.
"Change of Control" means the occurrence of any of the
following: (a) any person or group of persons (within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended) of more than 35% of the issued and outstanding Voting
Stock of the Company, (b) during any period of twelve consecutive calendar
months, individuals who, at the beginning of such period, constituted the board
of directors of the Company (together with any new directors whose election by
the board of directors of the Company or whose nomination for election by the
stockholders of the Company was approved by a vote of at least a majority of
the directors then still in office who either were directors at the beginning
of such period or whose elections or nomination for election was previously so
approved) cease for any reason other than death or disability to constitute a
majority of the directors then in office or (c) the Company shall cease to own,
directly or indirectly, 100% of the outstanding Stock of the Dutch Borrower and
the U.K. Borrower.
"Citibank" means Citibank, N.A., a national banking
association.
"Citicorp" has the meaning specified in the preamble to this
Agreement.
"Closing Date" means the date on which the first Loan is made
or any Letter of Credit is Issued hereunder.
"Code" means the U.S. Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is or is purported to be granted under any Collateral Document.
"Collateral Documents" means the Domestic Collateral
Documents and the Foreign Collateral Documents.
"Commitment" means, with respect to any Lender, such Lender's
Revolving Credit Commitment, if any, and such Lender's Term Loan Commitment, if
any.
"Commitment Fee Rate" means 0.50% per annum; provided that,
at any time following delivery to the Administrative Agent of the Financial
Statements for the Fiscal Quarter ending on March 31, 2006 required to be
delivered pursuant to Section 6.1(a) (Financial Statements), for any period
that the Leverage Ratio (determined on the last day of the most recent Fiscal
Quarter for which Financial Statements have been delivered pursuant to Section
6.1(a) or (b) (Financial Statements)) is less than 3.5 to 1.0, the Commitment
Fee Rate shall be 0.375% per annum. Notwithstanding anything to the contrary
set forth in this Agreement (including the then effective Leverage Ratio), (i)
if the Company shall fail to deliver such Financial Statements within any of
the time periods specified in Section 6.1(a) or (b) (Financial Statements), the
Commitment Fee Rate from and including the first day following the date by
which such Financial Statements were required to be delivered, to but not
including the date the Company delivers to the Administrative Agent such
Financial Statements shall equal 0.50% per annum or (ii) for so long as an
Event of Default under clause (a), (b) or (f) of Section 9.1 (Events of
Default) shall have occurred and is continuing, then, at the option of the
Requisite Class Lenders under the Revolving Credit Facilities, the Commitment
Fee Rate shall equal 0.50% per annum.
"Commitments" means the aggregate Revolving Credit
Commitments and Term Loan Commitments of all Lenders.
"Company" has the meaning specified in the preamble to this
Agreement.
"Company's Accountants" means PricewaterhouseCoopers LLP or
other independent nationally-recognized public accountants acceptable to the
Administrative Agent.
"Compliance Certificate" has the meaning specified in Section
6.1(c) (Compliance Certificate).
"Consolidated" means, with respect to any Person, the
consolidation of accounts of such Person and its subsidiaries in accordance
with GAAP.
"Consolidated Current Assets" means, with respect to any
Person at any date, all assets of such Person and its Subsidiaries at such date
that should be classified as current assets on a Consolidated balance sheet of
such Person, but excluding cash and Cash Equivalents.
"Consolidated Current Liabilities" means, with respect to any
Person at any date, all liabilities of such Person and its Subsidiaries at such
date that should be classified as current liabilities on a Consolidated balance
sheet of such Person, but excluding the sum of (a) the principal amount of any
current portion of long-term Financial Covenant Debt and (b) (without
duplication of clause (a) above) the then outstanding principal amount of the
Loans.
"Consolidated Net Income" means, for any Person for any
period, the Consolidated net income (or loss) of such Person for such period
determined in accordance with GAAP; provided, however, that (a) the net income
of any other Person in which such Person or one of its Subsidiaries has a joint
interest with a third party (other than the Company or any of its Subsidiaries
or any director holding qualifying shares) shall be included only to the extent
of the amount of dividends or distributions paid to such Person or Subsidiary
and (b) the net income (but not loss) of any Subsidiary of such Person that is
subject to any restriction or limitation on the payment of dividends or the
making of other distributions shall be excluded to the extent of such
restriction or limitation.
"Constituent Documents" means, with respect to any Person,
(a) the articles of incorporation, certificate of incorporation, constitution
or certificate of formation (or the equivalent organizational documents) of
such Person, (b) the by-laws, operating agreement (or the equivalent governing
documents) of such Person and (c) any document setting forth the manner of
election and duties of the directors or managing members of such Person (if
any) and the designation, amount or relative rights, limitations and
preferences of any class or series of such Person's Stock.
"Contaminants" means any material, substance or waste that is
classified, regulated or otherwise characterized or could result in liability
under any Environmental Law as hazardous, toxic, a contaminant or a pollutant
or by other words of similar meaning or regulatory effect, including any
petroleum or petroleum-derived substance or waste, asbestos and polychlorinated
biphenyls.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which
any of its property is subject.
"Contribution Notice" means a contribution notice issued by
the Pensions Regulator under section 38 or section 47 of the UK Pensions Act
2004.
"Controlled Foreign Corporation" means any Subsidiary that is
a "controlled foreign corporation" as defined in Section 957 of the Code and
any entity owned by any such controlled foreign corporation that is a
disregarded entity for United States federal income tax purposes and whose
assets are therefore treated as owned directly by such controlled foreign
corporation.
"Corporate Chart" means a corporate organizational chart,
list or other similar document in each case in form reasonably acceptable to
the Administrative Agent and setting forth, for each Person that is a Loan
Party or that is a Subsidiary of any of them (other than any Inactive
Subsidiary), (a) the full legal name of such Person, (b) the jurisdiction of
organization, the organizational number (if any) and the tax identification
number (if any) of such Person and (c) the location of such Person's principal
executive offices (or sole place of business).
"Customary Permitted Liens" means, with respect to any
Person, any of the following Liens:
(a) Liens with respect to the payment of taxes, assessments,
statutory obligations, governmental charges or levies in each case
that are not yet due and payable or that are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained to the
extent required by GAAP; provided that such proceedings contesting
such Lien shall stay the sale or forfeiture on account of such Lien,
(i) in the case of Mortgaged Property, of all or any portion of such
Mortgaged Property constituting the Premises and (ii) in the case of
any other Collateral, of any material portion of the Collateral taken
as a whole;
(b) Liens of landlords arising by statute and Liens of
suppliers, processors, mechanics, carriers, materialmen, repairmen,
warehousemen or workmen and other Liens imposed by law or pursuant to
customary reservations or retentions of title in each case created in
the ordinary course of business for amounts that are not overdue for
more than 90 days or that are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves
or other appropriate provisions are being maintained to the extent
required by GAAP; provided that such proceedings contesting such Lien
shall stay the sale or forfeiture on account of such Lien, (i) in the
case of Mortgaged Property, of all or any portion of such Mortgaged
Property constituting the Premises and (ii) in the case of any other
Collateral, of any material portion of the Collateral taken as a
whole;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, self-insurance
arrangements, unemployment insurance or similar benefits or to secure
the performance of bids, tenders, statutory obligations, sales,
contracts (other than for the repayment of borrowed money) and
deposits granted in the ordinary course of business with respect to
operating leases; and Liens securing surety, indemnity, appeal,
release, customs or performance bonds and other obligations of a like
nature;
(d) Liens arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar encumbrances on
the use of Real Property not in the aggregate materially detracting
from the value or marketability of such Real Property or not
individually or in the aggregate materially interfering with the
ordinary conduct of the business conducted and proposed to be
conducted at such Real Property;
(e) encumbrances arising under leases or subleases of Real
Property in each case entered into in the ordinary course of the
Borrowers' business so long as such leases, in the case of any
Mortgaged Property, are subordinate to the Liens evidenced by the
Collateral Documents to the extent that the Administrative Agent may
reasonably require and which do not, in the aggregate, materially
detract from the value of such Real Property or interfere with the
ordinary conduct of the business conducted and proposed to be
conducted at such Real Property;
(f) any interest or title of a lessor under any lease (other
than a lease of Real Property) entered into in the ordinary course of
business; provided that any such Liens attach only to the property or
assets so leased;
(g) 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;
(h) licenses of patents, trademarks and other intellectual
property rights granted in the ordinary course of business;
(i) customary restrictions and conditions on properties or
assets to be disposed of pursuant to executory agreements relating to
the disposition of such property or asset, to the extent such
disposal, restrictions and conditions are not prohibited by the Loan
Documents;
(j) attachment, judgment, writs or warrants of attachment or
other similar Liens arising in connection with court or arbitration
proceedings which do not constitute an Event of Default under Section
9.1(g) (Events of Default); provided that such proceedings contesting
such Lien shall stay the sale or forfeiture on account of such Lien,
(i) in the case of Mortgaged Property, of all or any portion of such
Mortgaged Property constituting the Premises and (ii) in the case of
any other Collateral, of any material portion of the Collateral taken
as a whole;
(k) receipt of progress payments and advances from customers
in the ordinary course of business to the extent the same creates a
Lien on the related inventory and proceeds thereof;
(l) Liens arising out of consignment or similar arrangements
for the sale of goods through third parties in the ordinary course of
business;
(m) Liens of seller of goods to the Company and any of its
Subsidiaries arising under Article 2 of the UCC (or similar
provisions of law) in the ordinary course of business, covering only
the goods sold and securing only the unpaid purchase price for such
goods and related expenses;
(n) licenses, leases or subleases granted in accordance with
Section 8.4(c) (Sale of Assets);
(o) customary rights of set-off, revocation, refund or
chargeback or similar rights under deposit disbursement,
concentration account agreements or under the UCC (or comparable
foreign law) or arising by operation of law of banks or other
financial institutions where the Company or any Subsidiary maintains
deposit, disbursement or concentration accounts in the ordinary
course of business and Liens of a collection bank arising under
Section 4-210 of the UCC on items in the course of collection, and
Liens created pursuant to the general conditions of a bank operating
in the Netherlands based on the general conditions drawn up by the
Netherlands Bankers' Association and the Consumers Union; and
(p) with respect to each Mortgaged Property, those Liens set
forth in Schedule B to the Mortgage encumbering such Mortgaged
Property which shall be reasonably acceptable to the Administrative
Agent.
"Debt Issuance" means (i) the incurrence of any Indebtedness
not permitted to be incurred pursuant to Section 8.1 (Indebtedness) and (ii)
the incurrence of Indebtedness by a Securitization Subsidiary in respect of a
Permitted Receivables Financing to the extent funds are advanced to such
Securitization Subsidiary from a third party in respect of receivables and
related assets of a Loan Party.
"Default" means any Event of Default or any event that, with
the passing of time or the giving of notice or both, in accordance with the
requirements of Section 9.1 (Events of Default), would become an Event of
Default.
"Default Rate" has the meaning specified in Section 2.10(c)
(Interest).
"Deferred Prepayment Amount" means, with respect to any Net
Cash Proceeds of any Deferred Prepayment Event, the portion of such Net Cash
Proceeds subject to a Deferred Prepayment Notice.
"Deferred Prepayment Date" means, with respect to any Net
Cash Proceeds of any Deferred Prepayment Event, the earlier of (a) the date
occurring 365 days after such Deferred Prepayment Event or, if a definitive
letter of intent or agreement has been executed by the Company or a Subsidiary
during such 365 day period with respect to the reinvestment of such Net Cash
Proceeds, the date occurring six months after the date of such letter of intent
or agreement, as the case may be, and (b) the date that is five Business Days
after the date on which a Borrower shall have notified the Administrative Agent
of such Borrower's determination not to acquire replacement assets useful in
the Company's or a Subsidiary's business (or, in the case of a Property Loss
Event, not to effect repairs).
"Deferred Prepayment Event" means any Asset Sale or Property
Loss Event in respect of which a Borrower has delivered a Deferred Prepayment
Notice.
"Deferred Prepayment Notice" means a written notice executed
by a Responsible Officer of the Company stating that no Event of Default has
occurred and is continuing and that the Company (directly or indirectly through
one of its Subsidiaries) intends and expects to use all or a specified portion
of the Net Cash Proceeds of an Asset Sale or Property Loss Event to acquire
replacement assets useful in its or one of its Subsidiaries' businesses or, in
the case of a Property Loss Event, to effect repairs.
"Disclosure Documents" means, collectively, (i) the
Confidential Information Memorandum dated June 30, 2005 prepared in connection
with the syndication of the Facilities and (ii) Amendment No. 2 to the
Registration on Form S-4 filed by the Company with the Securities and Exchange
Commission, on July 18, 2005.
"Disqualified Stock" means with respect to any Person, any
Stock that, by its terms (or by the terms of any Security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is exchangeable for Indebtedness of such Person, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the U.S. Term Loan Maturity Date.
"Distribution Agreement" means the Distribution Agreement
dated March 15, 2005, between the Seller and the Company.
"Dividend Notes" means the promissory notes in an aggregate
amount equal to $625.0 million issued by the Company to the holders of record
of common stock of the Company as of the Special Dividend Record Date (as
defined in the Distribution Agreement) in accordance with the Distribution
Agreement.
"Documentation Agents" means Goldman Sachs Credit Partners
L.P., General Electric Capital Corporation and Harris N.A.
"Dollar Equivalent" of any amount means, at the time of
determination thereof (including, without limitation, the CAM Exchange Date),
(a) if such amount is expressed in Dollars, such amount, (b) if such amount is
expressed in an Alternative Currency, the equivalent of such amount in Dollars
determined by using the rate of exchange quoted by Citibank in New York, New
York at 11:00 a.m. (New York time) on the date of determination (or, if such
date is not a Business Day, the last Business Day prior thereto) to prime banks
in New York for the spot purchase in the New York currency exchange market of
such amount of Dollars with such Alternative Currency and (c) if such amount is
denominated in any other currency, the equivalent of such amount in Dollars as
determined by the Administrative Agent using any method of determination it
deems appropriate acting reasonably.
"Dollar Revolving Available Credit" means, at any time, (a)
the then effective aggregate Dollar Revolving Commitments minus (b) the
aggregate Dollar Revolving Outstandings at such time.
"Dollar Revolving Borrowing" means Dollar Revolving Loans
made on the same day by the Dollar Revolving Lenders ratably according to their
respective Dollar Revolving Commitments.
"Dollar Revolving Commitment" means, with respect to each
Dollar Revolving Lender, the commitment of such Dollar Revolving Lender to make
Dollar Revolving Loans and acquire interests in other Dollar Revolving
Outstandings in the aggregate principal amount set forth opposite such Dollar
Revolving Lender's name on Schedule I (Commitments) under the caption "Dollar
Revolving Commitment," as amended to reflect each Assignment and Acceptance
executed by such Revolving Lender and as such amount may be reduced pursuant to
this Agreement, and "Dollar Revolving Commitments" shall mean the aggregate
Dollar Revolving Commitments of all Dollar Revolving Lenders, which amount,
initially as of the Closing Date, shall be $130,000,000.
"Dollar Revolving Facility" means the Dollar Revolving
Commitments and the provisions herein related to the Dollar Revolving Loans,
the Swing Loans and Letters of Credit.
"Dollar Revolving Lender" means a Lender with a Dollar
Revolving Commitment, in its capacity as such.
"Dollar Revolving Loan" has the meaning specified in Section
2.1(a)(i) (The Commitments).
"Dollar Revolving Outstandings" means, at any particular
time, the sum of (a) the principal amount of the Dollar Revolving Loans
outstanding at such time, (b) the Letter of Credit Undrawn Amount and all
Reimbursement Obligations outstanding at such time and (c) the principal amount
of the Swing Loans outstanding at such time.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Domestic Collateral Documents" shall mean the Domestic
Security Agreement, the Domestic Mortgages and each other security document or
pledge agreement delivered in accordance with applicable local law to grant a
valid security interest or lien in any property as collateral for the Secured
Obligations and any other document or instrument utilized to pledge or grant or
purporting to pledge or grant a security interest or lien on any property as
collateral for the Secured Obligations.
"Domestic Guarantor" means (i) the Subsidiaries of the
Company listed on Schedule III (Initial Domestic Guarantors) and (ii) each
other Subsidiary that becomes a Domestic Guarantor pursuant to Section 7.10
(Additional Collateral and Guaranties), until in each case, such Person ceases
to be a Domestic Guarantor in accordance with the Loan Documents.
"Domestic Guaranty" means, collectively, the guaranty made by
the Domestic Loan Parties of the Secured Obligations, substantially in the form
of Exhibit H-1 (Form of Domestic Guaranty), together with each other supplement
thereto delivered pursuant to Section 7.10 (Additional Collateral and
Guaranties).
"Domestic Loan Parties" means the U.S. Borrower and the
Domestic Guarantors.
"Domestic Mortgaged Property" shall mean (a) each Real
Property identified as a Mortgaged Property on Schedule 8(a)(3) to the
Perfection Certificate dated the Closing Date and (b) each Real Property, if
any, which shall be subject to a Domestic Mortgage delivered after the Closing
Date pursuant to Section 7.10 (Additional Collateral and Guaranties).
"Domestic Mortgage" means an agreement, including, but not
limited to, a mortgage, deed of trust or any other document, creating and
evidencing a Lien on a Mortgaged Property, which shall be substantially in the
form of Exhibit J (Form of Mortgage) or other form reasonably satisfactory to
the Administrative Agent, in each case, with such schedules and including such
provisions as shall be necessary to conform such document to applicable local
law or as shall be customary under applicable local law.
"Domestic Obligations" means (i) all obligations from time to
time arising under or in respect of the due and punctual payment of the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the U.S. Term Loans, Dollar Revolving Loans, Swing Loans and
Letters of Credit when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise, (ii) to the extent not
constituting Foreign Obligations, all other monetary obligations, including
fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding)
under this Agreement and the other Loan Documents and (iii) any Cash Management
Obligations and Hedging Obligations of the Company or any Domestic Subsidiary
of the Company.
"Domestic Security Agreement" means a security agreement
substantially in the form of Exhibit I (Form of Domestic Security Agreement)
among the Domestic Loan Parties and the Administrative Agent for the benefit of
the Secured Parties.
"Domestic Subsidiary" means any Subsidiary of the Company
that is organized under the laws of the United States, any state thereof or the
District of Columbia.
"Dutch Banking Act": the Dutch 1992 Act on the Supervision of
the Credit System (Wet toezicht kredietwezen 1992), as amended from time to
time.
"Dutch Borrower" has the meaning specified in the preamble to
this Agreement.
"Dutch Exemption Regulation": the Exemption regulation of the
Dutch Minister of Finance dated 26 June 2002 (Vrijstellingsregeling Wtk 1992),
as amended from time to time.
"Dutch Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Dutch Lending Office" opposite its name
on Schedule II (Applicable Lending Offices and Addresses for Notices) or on the
Assignment and Acceptance by which it became a Lender (or, if no such office is
specified, its U.S. Lending Office) or such other office of such Lender as such
Lender may from time to time specify to the Company and the Administrative
Agent.
"EBITDA" means, with respect to any Person for any period,
(a) Consolidated Net Income of such Person for such period plus (b) the sum of,
in each case to the extent included in the calculation of such Consolidated Net
Income for such period, but without duplication, (i) any provision for income
taxes, (ii) Interest Expense, (iii) losses from extraordinary items, (iv)
depreciation and amortization expenses, (v) all other non-cash expenses,
charges, write-downs and losses that are not payable in cash in such period or
any subsequent period, (vi) any aggregate net loss from the sale, exchange or
other disposition of capital assets of such Person, (vii) all fees, costs and
expenses incurred in connection with, or relating to, the negotiation,
execution and delivery of (x) the Loan Documents and (y) the agreements,
documents and instruments relating to the Transactions, and in each case the
consummation of the transactions contemplated thereby, (viii) the first
$40,000,000 of cash restructuring and related expenses, charges and losses of
the Company and its Subsidiaries following the Closing Date and prior to
December 31, 2009 relating to the integration of the businesses of the Company
and GBC as set forth in reasonable detail in a schedule to the applicable
Compliance Certificate, and (ix) up to $50,000,000 for items prior to December
31, 2009 which the Company expects on the Closing Date to be treated as
purchase accounting adjustments to the extent such items otherwise result in a
reduction of EBITDA as set forth in reasonable detail in a schedule to the
applicable Compliance Certificate minus (c) the sum of, in each case to the
extent included in the calculation of such Consolidated Net Income for such
period, but without duplication, (i) any credit for income tax, (ii) interest
income, (iii) gains from extraordinary items, (iv) any aggregate net gain from
the sale, exchange or other disposition of capital assets by such Person, and
(v) any other non-cash gains, write-ups or other items which have been added in
determining Consolidated Net Income; provided that EBITDA for the Company shall
be deemed to be $42,900,000 for the Fiscal Quarter ended March 31, 2005 and
$51,500,000 for the Fiscal Quarter ended June 30, 2005.
"Eligible Assignee" shall mean (a) if the assignment does not
include assignment of a Revolving Credit Commitment, (i) any Lender, (ii) an
Affiliate of any Lender, (iii) an Approved Fund, and (iv) any other Person
(other than a natural person) approved by the Administrative Agent and the
Company (each such approval not to be unreasonably withheld or delayed), and
(b) if the assignment includes assignment of a Revolving Commitment, (i) any
Revolving Lender, (ii) an Affiliate of any Revolving Lender, (iii) an Approved
Fund of a Revolving Lender and (iv) any other Person (other than a natural
person) approved by the Administrative Agent, the Issuers, the Swing Loan
Lenders and the Company (each such approval not to be unreasonably withheld or
delayed); provided that, notwithstanding clauses (a) and (b) above, (x) no
approval of the Company shall be required during the continuance of an Event of
Default or prior to the completion of the primary syndication of the
Commitments and Loans (as determined by the Administrative Agent in
consultation with the Company), (y) "Eligible Assignee" shall not include
Borrower or any of its Affiliates or Subsidiaries or any natural person and (z)
"Eligible Assignee" with respect to Euro Term Loans shall not include any
Person that is not a Professional Market Party.
"Environment" shall mean ambient or indoor air, surface water
and groundwater (including potable water, navigable water and wetlands), the
land surface or subsurface strata, natural resources, the workplace or as
otherwise defined under Environmental Laws.
"Environmental Action" shall mean (a) any notice, claim,
demand or other communication alleging liability for investigation,
remediation, removal, cleanup, response, corrective action or other costs,
damages to natural resources, personal injury, property damage, fines or
penalties resulting from, related to or arising out of (i) the presence,
Release or threatened Release in or into the Environment of Contaminants at any
location or (ii) any violation of Environmental Law, and shall include, without
limitation, any claim seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from, related to or
arising out of the presence, Release or threatened Release of Contaminants or
alleged injury or threat of injury to health, safety or the Environment and (b)
any Response Action undertaken, whether or not such activities are carried out
voluntarily.
"Environmental Laws" means all applicable Requirements of Law
now or hereafter in effect and as amended or supplemented from time to time,
relating to pollution, the release or threatened release of Contaminants,
natural resource damages or the regulation and protection of public or
occupational health, safety, the Environment or natural resources.
"Environmental Liabilities and Costs" means, with respect to
any Person, all liabilities, obligations, responsibilities, Response Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all fees, disbursements and expenses of counsel,
experts and consultants and costs of investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any claim or
demand by any other Person, whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute and whether arising under
any Environmental Law, Permit, order or agreement with any Governmental
Authority or other Person, in each case relating to any environmental, health
or safety condition or to any Release or threatened Release and resulting from
the past, present or future operations of, or ownership of property by, such
Person or any of its Subsidiaries.
"Environmental Lien" means any Lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.
"Equity Issuance" means the issue or sale of any Stock of the
Company.
"ERISA" means the United States Employee Retirement Income
Security Act of 1974, as amended.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Company or any of its Subsidiaries within the meaning of Section 414(b), (c),
(m) or (o) of the Code.
"ERISA Event" means (a) a reportable event described in
Section 4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with
respect to a Title IV Plan or a Multiemployer Plan, (b) the withdrawal of the
Company, any of its Subsidiaries or any ERISA Affiliate from a Title IV Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA, or the
"substantial cessation of operations" within the meaning of Section of 4062(e)
of ERISA with respect to a Title IV Plan, (c) the complete or partial
withdrawal of the Company, any of its Subsidiaries or any ERISA Affiliate from
any Multiemployer Plan, (d) notice of reorganization or insolvency of a
Multiemployer Plan, (e) the filing of a notice of intent to terminate a Title
IV Plan or the treatment of a plan amendment as a termination under Section
4041 of ERISA, (f) the institution of proceedings to terminate a Title IV Plan
or Multiemployer Plan by the PBGC, (g) the failure to make any required
contribution to a Title IV Plan or Multiemployer Plan or 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 Title IV Plan, (h)
the imposition of a lien under Section 412 of the Code or Section 302 of ERISA
on the Company or any of its Subsidiaries or any ERISA Affiliate, (i) any other
event or condition that might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Title IV Plan or Multiemployer Plan or the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, (j) or any similar
events with respect to any defined benefit pension plan subject to any funding
requirement under any Requirement of Law.
"EURIBOR" 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 its request quoted
by Reference Banks to leading banks in the European interbank market, at or
about 11 a.m. Brussels time on the second full Business Day next preceding the
first day of the relevant Interest Period in relation to which such rate is
calculated.
"Euro" and the sign "(euro)" each mean the single currency of
participating member States of the European Union.
"Euro Revolving Available Credit" means, at any time, (a) the
then effective Euro Revolving Commitments minus (b) the aggregate Euro
Revolving Outstandings at such time.
"Euro Revolving Borrowing" means Euro Revolving Loans made on
the same day by the Euro Revolving Lenders ratably according to their
respective Euro Revolving Commitments.
"Euro Revolving Commitment" means, with respect to each Euro
Revolving Lender, the commitment of such Euro Revolving Lender to make Euro
Revolving Loans in the aggregate principal amount equal to the Dollar
Equivalent of the amount set forth opposite such Euro Revolving Lender's name
on Schedule I (Commitments) under the caption "Euro Revolving Commitment," as
amended to reflect each Assignment and Acceptance executed by such Euro
Revolving Lender and as such amount may be reduced pursuant to this Agreement,
and "Euro Revolving Commitments" shall mean the aggregate Euro Revolving
Commitments of all Euro Revolving Lenders, which amount, initially as of the
Closing Date, shall be the Dollar Equivalent of $20,000,000.
"Euro Revolving Facility" means the Euro Revolving
Commitments and the provisions herein related to the Euro Revolving Loans.
"Euro Revolving Lender" means a Lender with a Euro Revolving
Commitment, in its capacity as such.
"Euro Revolving Loan" has the meaning specified in Section
2.1(a)(ii) (The Commitments).
"Euro Revolving Outstandings" means, at any particular time,
the Dollar Equivalent of the principal amount of the Euro Revolving Loans
outstanding at such time.
"Euro Term Commitment" means, with respect to any Euro Term
Lender, the commitment of such Euro Term Lender to make Euro Term-1 Loans and
Euro Term-2 Loans to the Dutch Borrower in the aggregate principal amount for
all such Loans set forth opposite such Lender's name on Schedule I
(Commitments) under the caption "Euro Term Commitment", and "Euro Term
Commitments" shall mean the aggregate Euro Term Commitments of all Euro Term
Lenders, which amount, initially as of the Closing Date, shall be
(euro)68,248,424.26.
"Euro Term-1 Commitment" means, with respect to any Euro Term
Lender, an amount equal to 9/85 of such Euro Term Lender's Euro Term
Commitment, and "Euro Term-1 Commitments" shall mean the aggregate Euro Term-1
Commitments of all Euro Term Lenders, which amount, initially as of the Closing
Date, shall be (euro)7,226,303.75.
"Euro Term-2 Commitment" means, with respect to any Euro Term
Lender, an amount equal to 76/85 of such Euro Term Lender's Euro Term
Commitment, and "Euro Term-2 Commitments" shall mean the aggregate Euro Term-2
Commitments of all Euro Term Lenders, which amount, initially as of the Closing
Date, shall be (euro)61,022,120.51.
"Euro Term Lender" means each Lender that has a Euro Term
Commitment or that holds a Euro Term Loan.
"Euro Term Loan" has the meaning specified in Section
2.1(b)(iii) (The Commitments).
"Euro Term-1 Loans" has the meaning specified in Section
2.1(b)(iii) (The Commitments).
"Euro Term-2 Loans" has the meaning specified in Section
2.1(b)(iii) (The Commitments).
"Euro Term Loan Facility" means the Euro Term Commitments and
the provisions herein related to the Euro Term Loans.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Federal Reserve Board.
"Eurocurrency Rate" means, (a) in relation to any
Eurocurrency Rate Loan denominated in Dollars or Sterling, the LIBOR Rate and
(b) in relation to any Eurocurrency Rate Loan denominated in Euro, EURIBOR.
"Eurocurrency Rate Loan" means any Loan that, for an Interest
Period, bears interest based on the Eurocurrency Rate.
"Event of Default" has the meaning specified in Section 9.1
(Events of Default).
"Excess Cash Flow" means, for any period, without
duplication, (a) EBITDA of the Company for such period plus (b) the excess, if
any, of the Working Capital of the Company at the beginning of such period over
the Working Capital of the Company at the end of such period plus (c) the
excess, if any, of (i) the amount of deferred charges and other assets minus
deferred credits and other liabilities of the Company at the beginning of such
period over (ii) the amount of deferred charges and other assets minus deferred
credits and other liabilities of the Company at the end of such period plus (d)
the amount of extraordinary cash gains in such period, minus (e) the sum of,
(i) scheduled mandatory cash principal payments on the Loans during such period
(but only, in the case of payment in respect of any Revolving Credit
Facilities, to the extent that the commitments thereunder are permanently
reduced by the amount of such payments), (ii) scheduled cash principal payments
made by the Company or any of its Subsidiaries during such period on other
Indebtedness to the extent such other Indebtedness and payments are permitted
by this Agreement, (iii) Capital Expenditures and Investments (other than
Investments in the Company or a Subsidiary) made by the Company or any of its
Subsidiaries during such period to the extent permitted by this Agreement, (iv)
scheduled payments made by the Company or any of its Subsidiaries on Capital
Lease Obligations to the extent such Capital Lease Obligations and payments are
permitted by this Agreement, (v) Cash Interest Expense of the Company for such
period, (vi) cash payments of federal, state, local and foreign income tax,
franchise taxes and state single business unitary and similar taxes imposed in
lieu of income tax made during such period by the Company or any of its
Subsidiaries, (vii) cash restructuring charges, extraordinary cash losses,
other non-recurring cash expenditures or losses and balance sheet translation
adjustments not included in EBITDA for such period; (viii) the excess, if any,
of the Working Capital of the Company at the end of such period over the
Working Capital of the Company at the beginning of such period, and (ix) the
excess, if any, of (x) the amount of deferred charges and other assets minus
deferred credits and other liabilities of the Company at the end of such period
over (y) the amount of deferred charges and other assets minus deferred credits
and other liabilities of the Company at the beginning of such period; provided,
however, Excess Cash Flow shall not be reduced by the amounts in clauses (e)(i)
through (iii) above to the extent such amounts were financed with proceeds of
debt or equity or any Deferred Prepayment Amount or other proceeds not included
in the calculation of EBITDA.
"Excess Amount" has the meaning specified in Section 2.9(e)
(Mandatory Prepayments).
"Excluded Issuance" means any Equity Issuance of Stock or
Stock Equivalents (other than Disqualified Stock) of the Company (i) pursuant
to employee benefit plans in the ordinary course or (ii) to the extent that on
or prior to the date of receipt of the Net Cash Proceeds from such Equity
Issuance, the Company delivers a certificate of a Responsible Officer to the
Administrative Agent stating that (A) no Event of Default has occurred and is
continuing and (B) the Company has elected to apply the Net Cash Proceeds from
such Equity Issuance within 365 days of the consummation of such Equity
Issuance to (x) repay Indebtedness pursuant to Section 8.6 (Prepayment of
Subordinated Debt), (y) make an Investment permitted by Section 8.3
(Investments) or (z) make a Capital Expenditure permitted by Section 5.3
(Maximum Capital Expenditures); provided that if such Net Cash Proceeds are not
so applied within 365 days from the date of such Equity Issuance, then on such
date, the Company shall be deemed to have received Net Cash Proceeds from an
Equity Issuance that is not an Excluded Issuance and shall apply such unused
Net Cash Proceeds as provided in Section 2.9 (Mandatory Prepayments).
"Excluded Taxes" means, in the case of each Lender, each
Issuer and the Administrative Agent, (a) taxes imposed on or measured by its
overall net income (however denominated) and franchise taxes imposed on it (in
lieu of net income taxes), by a jurisdiction (or any political subdivision
thereof) as a result of the recipient being organized or resident, conducting
business (other than a business deemed to arise from the Lender, Issuer or
Administrative Agent having executed, delivered or performed its obligations or
received a payment under, or enforced, or otherwise with respect to, this
Agreement or any other Loan Document) or having its principal office or
Applicable Lending Office in such jurisdiction and (b) in the case of a Foreign
Lender other than an assignee pursuant to a request by a Borrower under Section
2.18 (Substitution of Lenders; Change of Lending Office):
(i) with respect to any Swing Loan, Dollar Revolving Loan or
U.S. Term Loan, any U.S. federal withholding tax that is imposed on
amounts payable to a Foreign Lender at the time such Foreign Lender
becomes a party hereto (or designates a new lending office), except to
the extent that such Foreign Lender (or its assignor, if any) was
entitled, immediately prior to the time of designation of a new
lending office (or assignment), to receive additional amounts from the
U.S. Borrower with respect to such withholding tax pursuant to Section
2.17(a) (Taxes); provided that this clause (b)(i) shall not apply to
any tax imposed on a Foreign Lender in connection with an interest or
participation in any Loan or other obligation that such Foreign Lender
was required to acquire pursuant to Section 9.5 (Collection Allocation
Mechanism), or
(ii) any tax that is attributable to such Foreign Lender's
failure to comply with Section 2.17(f) (Taxes).
"Existing Letters of Credit" means those letters of credit
issued for the account of the Company or any of its Subsidiaries and identified
on Schedule VIII (Existing Letters of Credit).
"Facilities" means the U.S. Term Loan Facility, the Sterling
Term Loan Facility, the Euro Term Loan Facility, and the Revolving Credit
Facilities and "Facility" refers to any such Facility individually.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the
United States Federal Reserve System, or any successor thereto.
"Fee Letter" shall mean the amended and restated senior
secured credit facilities fee letter dated as of April 19, 2005, addressed to
ACCO World Corporation from Citicorp, Citigroup Global Markets Inc., ABN AMRO
Bank, N.V., ABN AMRO Incorporated and Goldman Sachs Credit Partners L.P.
"Financial Covenant Debt" of any Person means the amount of
Indebtedness of such Person and its Subsidiaries that would, in accordance with
GAAP, be required to be reflected as indebtedness on a Consolidated balance
sheet of such Person; provided, that (i) to the extent not required to be so
reflected as indebtedness on such balance sheet, all Indebtedness of such
Person and its Subsidiaries in respect of Permitted Receivables Financing shall
be added thereto and (ii) Financial Covenant Debt shall be (x) increased by any
positive amount (determined in accordance with Section 1.3(c) (Accounting Terms
and Principles) of any payments that such Person and its Subsidiaries would
have to make in the event of an early termination in respect of currency
Hedging Contracts of such Person and its Subsidiaries and (y) decreased by any
positive amount (determined in accordance with Section 1.3(c) (Accounting Terms
and Principles) of any payments that such Person and its Subsidiaries would be
entitled to receive in the event of an early termination in respect of currency
Hedging Contracts of such Person and its Subsidiaries.
"Financial Statements" means the financial statements of the
Company and its Subsidiaries delivered in accordance with Section 6.1
(Financial Statements).
"Financial Support Direction" means a financial support
direction issued by the Pensions Regulator under section 43 of the UK Pensions
Act 2004.
"Fiscal Quarter" means each of the three month periods ending
on March 31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve month period ending on
December 31.
"Flood Certificate" means a completed Federal Emergency
Management Agency Standard Flood Hazard Determination with respect to each
Domestic Mortgaged Property.
"Foreign Borrowers" means the U.K. Borrower and the Dutch
Borrower.
"Foreign Collateral Documents" shall mean the Trust
Agreement, the Foreign Mortgages and each other security document or pledge
agreement delivered in accordance with the Trust Agreement and Foreign
Mortgages and applicable laws to grant a valid security interest in any
property as collateral for the Foreign Obligations and any other document or
instrument utilized to pledge or grant or purporting to pledge or grant a
security interest or lien on any property as collateral for the Foreign
Obligations.
"Foreign Guarantors" means (i) the Subsidiaries of the
Company (other than the Foreign Borrowers) listed on Schedule IV (Initial
Foreign Guarantors) and (ii) each other Foreign Subsidiary that becomes a
Foreign Guarantor pursuant to Section 7.10 (Additional Collateral and
Guaranties).
"Foreign Guaranty" means, collectively, the Australian
Guaranty and the U.K./Dutch Guaranty.
"Foreign Lender" means, for purposes of the tax in question,
a Lender that is treated as foreign by the jurisdiction imposing such tax.
"Foreign Loan Parties" means, collectively, the Foreign
Borrowers and the Foreign Guarantors.
"Foreign Loan Party Jurisdiction" means any of Australia, the
Netherlands and the United Kingdom.
"Foreign Mortgaged Property" shall mean (a) each Real
Property identified as a Foreign Mortgaged Property on Schedule V (Foreign
Mortgaged Properties), and (b) each Real Property, if any, which shall be
subject to a Foreign Mortgage after the Closing Date pursuant to Section 7.10
(Additional Collateral and Guaranties).
"Foreign Mortgages" means an agreement, including, but not
limited to, a mortgage, deed of trust or any other document, creating and
evidencing a Lien on a Foreign Mortgaged Property, including the UK Debenture,
which shall be in such form reasonably satisfactory to the Administrative
Agent, in each case, with such schedules and including such provisions as shall
be necessary to conform such document to applicable foreign law or as shall be
customary under applicable foreign law.
"Foreign Obligations" means (i) all obligations from time to
time arising under or in respect of the due and punctual payment of the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Euro Revolving Loans, Euro Term Loans and Sterling Term
Loans, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise, (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Foreign Loan Parties under this Agreement and the other
Loan Documents and (iii) (x) any Cash Management Obligations and Hedging
Obligations of any Foreign Loan Party or any other Foreign Subsidiary of the
Company and (y) Indebtedness in an amount not to exceed 8,000,000 Australian
Dollars under the multi-option facility of ACCO Australia Pty. Limited referred
to on Schedule 8.1 (Existing Indebtedness) and any Permitted Refinancing in
respect thereof with a Person that was a Lender or an Affiliate of a Lender at
the time such Permitted Refinancing occurs.
"Foreign Secured Parties" means, collectively, (i) the
Agents, (ii) the Euro Revolving Lenders, Euro Term Lenders and Sterling Term
Lenders, (iii) the Qualified Parties owed Cash Management Obligations or
Hedging Obligations by any Foreign Loan Party or any other Foreign Subsidiary
of the Company and the holders of Foreign Obligations of the type described in
clause (iii)(y) of the definition of "Foreign Obligations" and (iv) the other
Persons named in Section 11.4 (Indemnities).
"Foreign Subsidiary" means any Subsidiary that is not a
Domestic Subsidiary.
"Fund" means any Person (other than a natural Person) that is
or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by
such other entity as may be in general use by significant segments of the
accounting profession, that are applicable to the circumstances as of the date
of determination.
"GBC" means General Binding Corporation, a Delaware
corporation.
"German Security" means any Security assumed and accepted by
or through the Administrative Agent or the Secured Parties, as the case maybe,
pursuant to any German Security Document and held or administered by the
Administrative Agent on behalf of or in trust for the Secured Parties hereunder
and any addition to or replacement or substitution thereof.
"German Security Documents" means all Domestic Collateral
Documents under which Security is created governed by German law and "German
Security Document" means any of them.
"Governmental Authority" means any nation, sovereign or
government, any state, province, canton or other political subdivision thereof
and any entity or authority exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
including any central bank or stock exchange.
"Governmental Real Property Disclosure Requirements" shall
mean any requirement of any Governmental Authority requiring notification of
the buyer, mortgagee or assignee of Real Property, or notification,
registration or filing to or with any Governmental Authority, in connection
with the sale, lease, mortgage, assignment or other transfer (including,
without limitation, any transfer of control) of any Real Property,
establishment or business, of the actual or threatened presence, Release or
threatened Release in or into the Environment, or the use, disposal or handling
of Contaminants on, at, under or near the Real Property, facility or business
to be sold, mortgaged, assigned or transferred.
"Group Pension Plans" means the ACCO Europe Pension Plan and
the GBC (United Kingdom) Limited Staff Pension Plan.
"Guarantors" means, collectively, the Domestic Guarantors and
the Foreign Guarantors.
"Guaranty" means the Domestic Guaranty and each Foreign
Guaranty.
"Guaranty Obligation" means, as applied to any Person, any
direct or indirect liability (other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection), contingent or
otherwise, of such Person with respect to any Indebtedness of another Person,
if the purpose or intent of such Person in incurring the Guaranty Obligation is
to provide assurance to the obligee of such Indebtedness that such Indebtedness
will be paid or discharged, that any agreement relating thereto will be
complied with, or that any holder of such Indebtedness will be protected (in
whole or in part) against loss in respect thereof, including (a) the direct or
indirect guaranty, endorsement (other than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of Indebtedness of another Person and (b) any liability
of such Person for Indebtedness of another Person through any agreement
(contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such
Indebtedness or any security therefor or to provide funds for the payment or
discharge of such Indebtedness (whether in the form of a loan, advance, stock
purchase, capital contribution or otherwise), (ii) to maintain the solvency or
any balance sheet item, level of income or financial condition of another
Person, (iii) to make take-or-pay or similar payments, if required, regardless
of non-performance by any other party or parties to an agreement, (iv) to
purchase, sell or lease (as lessor or lessee) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Indebtedness or to assure the holder of such Indebtedness against loss or
(v) to supply funds to, or in any other manner invest in, such other Person
(including to pay for property or services irrespective of whether such
property is received or such services are rendered), if in the case of any
agreement described under clause (b)(i), (ii), (iii), (iv) or (v) above the
primary purpose or intent thereof is to provide binding assurance that
Indebtedness of another Person will be paid or discharged, that any agreement
relating thereto will be complied with or that any holder of such Indebtedness
will be protected (in whole or in part) against loss in respect thereof. The
amount of any Guaranty Obligation shall be equal to the amount of the
Indebtedness so guaranteed or otherwise supported (or, if less, the stated
maximum amount (or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof) for which such Person may be liable
pursuant to the terms of the instrument embodying such Guaranty Obligation).
"Hedging Contracts" means all Interest Rate Contracts,
foreign exchange contracts, currency swap, option or forward purchase or sale
agreements, other forward contracts, commodity swap, purchase or option
agreements, other commodity price hedging arrangements and all other similar
non-speculative agreements or arrangements designed to alter the risks of any
Person arising from fluctuations in interest rates, currency values or
commodity prices.
"Hedging Obligations" means any and all obligations of the
Company or a Subsidiary under or in respect of Hedging Contracts entered into
with a Qualified Party and all obligations of the Company or a Subsidiary in
respect of Hedging Contracts entered into prior to the Closing Date with a
Person that is a Qualified Party on the Closing Date.
"Immaterial Subsidiary" means a Subsidiary (other than a Loan
Party) that neither (a) has (together with its Subsidiaries) consolidated total
assets that constitute more than 3% of consolidated total assets as of the
close of the current or any subsequent Fiscal Year of the Company for which
audited financial statements are available, nor (b) has (together with its
Subsidiaries) consolidated gross sales that constitute more than 3% of
consolidated gross sales of the Company and its Subsidiaries as of the close of
the current or any subsequent Fiscal Year of the Company for which audited
financial statements are available. Assets and sales of Foreign Subsidiaries
shall be converted into Dollars at the Dollar Equivalent as of the date of the
most recent audited financial statements furnished to the Lenders pursuant to
Section 6.1 (Financial Statements) hereof.
"Inactive Subsidiary" means any Subsidiary of the Company
that is not engaged in any substantial activities and has assets of less than
$1,000,000.
"Increase Effective Date" has the meaning set forth in
Section 2.19(a) (Increase in Commitments).
"Increase Joinder" has the meaning set forth in Section
2.19(c) (Increase in Commitments).
"Incremental U.S. Term Loan Commitment" has the meaning set
forth in Section 2.19(a) (Increase in Commitments).
"Incremental U.S. Term Loan Maturity Date" has the meaning
set forth in Section 2.19(c) (Increase in Commitments).
"Incremental U.S. Term Loans" has the meaning set forth in
Section 2.19(c) (Increase in Commitments).
"Indebtedness" of any Person means without duplication (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments, (c) the
face amount of all reimbursement obligations with respect to letters of credit,
bankers' acceptances, surety bonds and performance bonds, whether or not
matured, (d) all indebtedness for the deferred purchase price of property or
services, other than trade payables, customer deposits, advances and accrued
liabilities in each case incurred in the ordinary course of business, (e) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person other than customary reservation or retention of title under agreements
with vendors entered into in the ordinary course of business (even though the
rights and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (f) all
Capital Lease Obligations of such Person and the present value of future rental
payments under all synthetic leases, (g) all Guaranty Obligations of such
Person, (h) all Disqualified Stock, valued in the case of redeemable preferred
stock, at the greater of its voluntary liquidation preference and its
involuntary liquidation preference plus accrued and unpaid dividends, (i) 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 Hedging Contracts of such Person, (j) the principal component of a
Securitization Subsidiaries obligations in respect of Permitted Receivables
Financing and (k) all Indebtedness of the type referred to above secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property owned by such Person,
even though such Person has not assumed or become liable for the payment of
such Indebtedness; provided that (i) Indebtedness shall not include obligations
to make Restricted Payments permitted by Section 8.5 (Restricted Payments) or
payments under the Acquisition Documents to the extent any such payments are
not past due and (ii) obligations in respect of daylight overdrafts shall not
be deemed to be Indebtedness so long as the same are not past due.
"Indemnified Matter" has the meaning specified in Section
11.4(a) (Indemnities).
"Indemnified Taxes" means all Taxes other than Excluded Taxes.
"Indemnitee" has the meaning specified in Section 11.4(a)
(Indemnities).
"Insurance Policies" shall mean the insurance policies and
coverages required to be maintained by each Loan Party which is an owner of
Mortgaged Property with respect to the applicable Mortgaged Property pursuant
to Section 7.10 (Additional Collateral and Guaranties) and all renewals and
extensions thereof.
"Insurance Requirements" shall mean, collectively, all
provisions of the Insurance Policies, all requirements of the issuer of any of
the Insurance Policies and all orders, rules, regulations and any other
requirements of the National Board of Fire Underwriters (or any other domestic
or foreign body exercising similar functions) binding upon each Loan Party
which is an owner of Mortgaged Property and applicable to the Mortgaged
Property or any use or condition thereof.
"Interbank Rate" means, for any period, (i) in respect of
Loans denominated in Dollars, the Federal Funds Rate and (ii) in respect of
Loans denominated in any other currency, the Administrative Agent's cost of
funds (as reasonably determined by the Administrative Agent) for such period.
"Intercompany Note" means a promissory note evidencing
intercompany loans issued by a Subsidiary of the Company in favor of the
Company or another Subsidiary of the Company.
"Interest Coverage Ratio" means, for any period, the ratio of
(a) EBITDA of the Company for such period to (b) Cash Interest Expense of the
Company for such period.
"Interest Expense" means, for any Person for any period,
Consolidated total interest expense of such Person and its Subsidiaries for
such period and including, in any event, interest capitalized during such
period and net costs under Interest Rate Contracts for such period; provided,
with respect to the Company, for each of the Fiscal Quarters ending December
31, 2005, March 31, 2006 and June 30, 2006, Interest Expense for the relevant
period shall be deemed to equal Interest Expense for such Fiscal Quarter
(together with any previous Fiscal Quarter commencing on or after the Closing
Date) multiplied by 4, 2 and 4/3 respectively.
"Interest Period" means, in the case of any Eurocurrency Rate
Loan, (a) initially, the period commencing on the date such Eurocurrency Rate
Loan is made or on the date of conversion of a Base Rate Loan to such
Eurocurrency Rate Loan and ending (i) in the case of any such Loan made or
converted in the first 30 days following the Closing Date, one month thereafter
and (ii) in the case of any other Loan, one, two, three or six months (or if
agreed to by each applicable Lender, nine or twelve months) thereafter, as
selected by the applicable Borrower in its Notice of Borrowing or Notice of
Conversion or Continuation given to the Administrative Agent pursuant to
Section 2.2 (Borrowing Procedures) or Section 2.11 (Conversion/Continuation
Option) and (b) thereafter, if such Loan is continued, in whole or in part, as
a Eurocurrency Rate Loan pursuant to Section 2.11 (Conversion/Continuation
Option), a period commencing on the last day of the immediately preceding
Interest Period therefor and ending, one, two, three or six months thereafter
(or if agreed to by each applicable Lender, nine or twelve months), as selected
by the applicable Borrower in its Notice of Conversion or Continuation given to
the Administrative Agent pursuant to Section 2.11 (Conversion/Continuation
Option); provided, however, that all of the foregoing provisions relating to
Interest Periods in respect of Eurocurrency Rate Loans are subject to the
following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension
would be to extend such Interest Period into another calendar month,
in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period of one month or longer that begins
on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of a
calendar month;
(iii) no Borrower may select any Interest Period that ends
after the date of a scheduled principal payment on the Loans as set
forth in Article II (The Facilities) unless, after giving effect to
such selection, the aggregate unpaid principal amount of the Loans for
which Interest Periods end after such scheduled principal payment
shall be equal to or less than the principal amount to which the Loans
are required to be reduced after such scheduled principal payment is
made;
(iv) no Borrower may select any Interest Period in respect of
Loans having an aggregate principal amount of less than the Minimum
Currency Threshold; and
(v) there shall be outstanding at any one time no more than
the following number of Interest Periods: (i) for the U.S. Term
Facility, three, (ii) for the Sterling Term Facility, three, (iii) for
the Euro Term Facility, three and (iv) for the Revolving Credit
Facilities, eight.
"Interest Rate Contracts" means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance.
"Investment" means, with respect to any Person, (a) any
purchase or other acquisition by such Person of (i) any Security issued by,
(ii) a beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by such Person of all
or a significant part of the assets of a business conducted by any other
Person, or all or substantially all of the assets constituting the business of
a division, branch or other unit operation of any other Person, (c) any loan,
advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, extensions of
trade credit, advances to employees, directors, agents, customers and suppliers
for travel, relocation, entertainment and related expenses and similar items
made or incurred in the ordinary course of business) or capital contribution by
such Person to any other Person, including all Indebtedness of any other Person
owed to such Person or any Security of any other Person issued to such Person
in connection with a sale or transfer of property by such Person other than in
the ordinary course of its business, (d) any Guaranty Obligation incurred by
such Person in respect of Indebtedness of any other Person and (e) the making
of a Restricted Payment in reliance on Section 8.5(b)(z) (Restricted Payments);
provided that "Investments" shall not include the making of a Restricted
Payment in compliance with any other provision of Section 8.5 (Restricted
Payments); provided, further, that for purposes of determining the outstanding
amount of any Investment by a Loan Party at any time in any Subsidiary that is
not a Loan Party, the original amount of such Investment shall be reduced,
without duplication, by the amount of cash (and, to the extent any such
Investment by any Loan Party was in the form of property other than cash,
property substantially similar to the property originally invested) which is
returned to any Loan Party, directly or indirectly (including, without
limitation, through the making of a dividend, distribution, contribution or
other payment or series of any such payments by one or more Subsidiaries to a
Loan Party, the payment on or repayment of intercompany Indebtedness of one or
more Subsidiaries or the merger of a Subsidiary into a Loan Party), by the
Subsidiary in which such Investment was made.
"IRS" means the Internal Revenue Service of the United States
or any successor thereto.
"Issue" means, with respect to any Letter of Credit, to
issue, extend the expiry of, or increase the maximum face amount (including by
deleting or reducing any scheduled decrease in such maximum face amount) of,
such Letter of Credit. The terms "Issued" and "Issuance" shall have a
corresponding meaning.
"Issuer" means (a) Harris N.A. and LaSalle Bank National
Association and (b) any other Lender approved by the Administrative Agent (such
approval not to be unreasonably withheld or delayed) acting in its capacity as
an issuer of a Letter of Credit.
"Japanese Law Share Pledge" means a share pledge dated on or
about the date hereof between the Administrative Agent (in its capacity as
collateral agent) for and on behalf of the Secured Parties and GBC
International Inc.
"Judgment Currency" has the meaning specified in Section
11.12(d) (Submission to Jurisdiction; Service of Process).
"Land" of any Person means collectively, all right, title and
interest (including any leasehold, mineral or other estate) in all of those
plots, pieces or parcels of land now owned, leased or operated by any Person,
whether by lease, license, or other means or hereafter acquired or leased or
purported to be owned, leased or hereafter acquired, leased or operated by any
Person, whether by lease, license, or other means (including, in respect of the
Loan Parties, as reflected in the most recent Financial Statements) by such
Person.
"Lender" means each Swing Loan Lender and each other
financial institution or other entity that (a) is listed on the signature pages
hereof as a "Lender" or (b) from time to time becomes a party hereto by
execution of an Assignment and Acceptance.
"Letter of Credit" means any Existing Letter of Credit and
any letter of credit Issued pursuant to Section 2.4 (Letters of Credit).
"Letter of Credit Obligations" means, at any time, the
aggregate of all liabilities at such time of the U.S. Borrower to each Issuer
with respect to Letters of Credit, whether or not any such liability is
contingent, including, without duplication, the sum of (a) the Reimbursement
Obligations at such time and (b) the Letter of Credit Undrawn Amounts at such
time.
"Letter of Credit Reimbursement Agreement" has the meaning
specified in Section 2.4(a)(vi)(C) (Letters of Credit).
"Letter of Credit Request" has the meaning specified in
Section 2.4(c) (Letters of Credit).
"Letter of Credit Sublimit" means the lesser of (i)
$40,000,000 and (ii) the then outstanding amount of Dollar Revolving
Commitments.
"Letter of Credit Undrawn Amounts" means, at any time, the
aggregate undrawn face amount of all Letters of Credit outstanding at such
time.
"Leverage Ratio" means, as of any date, the ratio of (a)
Consolidated Financial Covenant Debt of the Company outstanding as of such date
to (b) EBITDA for the Company for the last four Fiscal Quarter period ending on
or before such date.
"LIBOR Base Rate" means, with respect to any Interest Period
for any Eurocurrency Rate Loan, the rate determined by the Administrative Agent
to be the offered rate for deposits in Dollars for the applicable Interest
Period appearing on the Reuters Screen Page LIBOR01 as of 11:00 a.m., London
time, on the second full Business Day next preceding the first day of each
Interest Period. In the event that such rate does not appear on such Reuters
Screen Page (or otherwise on the Reuters Screen), the Eurocurrency Base Rate
for the purposes of this definition shall be determined by reference to such
other comparable publicly available service for displaying eurocurrency rates
as may be selected by the Administrative Agent with the approval of the
Company.
"LIBOR Rate" means, with respect to any Interest Period for
any (i) Eurocurrency Rate Loan denominated in Dollars, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the LIBOR Base Rate
by (b) (I) a percentage equal to 100% minus (II) the reserve percentage
applicable two Business Days before the first day of such Interest Period under
regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which the
LIBOR Rate is determined) having a term equal to such Interest Period and (ii)
Eurocurrency Rate Loan denominated in Sterling, the applicable Screen Rate.
"Lien" means any mortgage, deed of trust, pledge, hypothec,
hypothecation, assignment, charge, deposit arrangement, claim, assignment,
encumbrance, lien (statutory or other), security interest or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever intended to assure payment of any Indebtedness or the
performance of any other obligation, including any conditional sale or other
title retention agreement, the interest of a lessor under a Capital Lease and
any financing lease having substantially the same economic effect as any of the
foregoing, any easement, right-of-way or other encumbrance on the Real
Property, in each of the foregoing cases, whether voluntary or imposed by law,
and any agreement to give any of the foregoing.
"Loan" means any loan made by any Lender pursuant to this
Agreement and including any Incremental U.S. Term Loans.
"Loan Documents" means, collectively, this Agreement, the
Notes, each Guaranty, the Fee Letter, each Letter of Credit Reimbursement
Agreement, the Collateral Documents and each agreement executed by a Loan Party
(or such Subsidiary, as applicable) and delivered to the Administrative Agent
or any Lender in connection with or pursuant to any of the foregoing.
"Loan Party" means any Domestic Loan Party or any Foreign
Loan Party.
"Local Time" means, with respect to (a) any Loan denominated
in Dollars, New York time and (b) any Loan denominated in Euros or Sterling,
London time.
"Mandatory Costs" means, with respect to a Loan or other
unpaid sum that is not denominated in Dollars, the rate per annum notified by
any Lender to the Administrative Agent to be the cost to that Lender of
compliance with all reserve asset, liquidity or cash margin or other like
requirements of the Bank of England, the Financial Services Authority or the
European Central Bank and which shall be determined in accordance with Schedule
VI (Mandatory Costs).
"Material Adverse Change" means a material adverse change in
(a) the business or condition (financial or other) of the Company and its
Subsidiaries, taken as a whole, (b) the enforceability of any material
provision of any Loan Document, (c) the perfection or priority of the Liens
granted pursuant to the Collateral Documents on Collateral aggregating in
excess of $20,000,000 (excluding assets on which no Lien under the Loan
Documents is required to be granted or perfected), or (d) the ability of the
Administrative Agent, the Lenders or the Issuers to enforce their rights and
remedies under the Loan Documents in any material respect.
"Material Adverse Effect" means an effect that results in or
causes, or could reasonably be expected to result in or cause, a Material
Adverse Change.
"Merger" means the merger of Acquisition Sub with and into
GBC, with GBC being the surviving corporation and a Wholly-Owned Subsidiary of
the Company.
"Minimum Currency Threshold" means (i) in the case of Base
Rate Loans, $2,000,000 or an integral multiple of $1,000,000 in excess thereof,
(ii) in the case of Eurocurrency Rate Loans denominated in Dollars, $5,000,000
or an integral multiple of $1,000,000 in excess thereof, (iii) in the case of
Loans denominated in Euro, (euro)2,000,000 or an integral multiple of
(euro)1,000,000 in excess thereof and (iii) in the case of Loans denominated in
Sterling, (pound)1,000,000 or an integral multiple of (pound)500,000 in excess
thereof.
"Moody's" means Moody's Investors Service, Inc.
"Mortgages" means, collectively, the Foreign Mortgages and
the Domestic Mortgages.
"Mortgaged Property" means, collectively, the Domestic
Mortgaged Property and the Foreign Mortgaged Property.
"Multiemployer Plan" means a multiemployer plan, as defined
in Section 400l(a)(3) of ERISA, subject to ERISA, to which the Company, any of
its Subsidiaries or any ERISA Affiliate has any obligation or liability.
"Net Cash Proceeds" means the proceeds received by the
Company or any of its Subsidiaries after the Closing Date in cash or Cash
Equivalents from any Person other than the Company or a Subsidiary from any (a)
Asset Sale as to which a mandatory prepayment of the Loans may be required
pursuant to clause (i) of Section 2.9(a) (Mandatory Prepayments), net of,
without duplication, (i) the cash costs of sale, assignment or other
disposition (including, without limitation, attorney's fees, accountants' fees,
investment bankers fees, commissions, survey costs, title insurance premiums
and other customary fees and expenses), (ii) federal, state, provincial,
foreign and local Taxes and other Taxes paid or reasonably estimated to be
payable in connection with such Asset Sale (including, without limitation, with
respect to the Company or any of its Subsidiaries that is treated as a
partnership or an entity disregarded as separate from its owner for federal,
state and local income Tax purposes, Taxes reasonably estimated to be payable
by, or with respect to the net income of, the members of such Person with
respect to such members' allocable shares of net income arising from such Asset
Sale) as a result thereof, (iii) any amount required to be paid or prepaid on
Indebtedness (other than the Obligations) secured by the property or assets
subject to such Asset Sale, (iv) any escrow of proceeds or similar contractual
or legal obligations relating to such Asset Sale required by the terms of such
sale to be held to satisfy indemnification claims or purchase price adjustments
(for so long as such amounts are so held), (v) all dividends and distributions
and other payments required to be made to minority interest holders in the
Company or any of its Subsidiaries or joint ventures as a result of such Asset
Sale and (vi) any reserves in accordance with GAAP (or against any liabilities
(including, without limitation, income Tax liabilities) associated with the
property or assets disposed of in such Asset Sale and, without duplication, any
reserves that the Company or its Subsidiaries determine in good faith should be
made in respect of the sale price of such property or assets for post-closing
adjustments), (b) Property Loss Event, net of (i) the cash costs of settling or
otherwise resolving such Property Loss Event, (ii) federal, state, provincial,
foreign and local Taxes and other Taxes paid or reasonably estimated to be
payable in connection with such Property Loss Event (including, without
limitation, with respect to the Company or any of its Subsidiaries that is
treated as a partnership or an entity disregarded as separate from its owner
for federal, state and local income Tax purposes, Taxes reasonably estimated to
be payable by, or with respect to the net income of, the members of such Person
with respect to such members' allocable shares of net income arising from such
Property Loss Event) as a result thereof, (iii) any amount required to be paid
or prepaid on Indebtedness (other than the Obligations) secured by the property
or assets subject to such Property Loss Event, and (iv) amounts which the
Company or any Subsidiary of the Company is contractually obligated to expend
as a result of such Property Loss Event, or (c) (i) Equity Issuance or (ii)
Debt Issuance, in each case net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other customary
fees, costs, commissions, premiums and expenses incurred in connection with
such transaction; provided that in the case of any Permitted Receivables
Financing, only the incremental amount of advances to a Securitization
Subsidiary from a third party in respect of receivables and related assets of a
Loan Party over the highest amount of such advances that was previously
outstanding following the Closing Date shall be included in Net Cash Proceeds.
"Non-Cash Interest Expense" means, with respect to any Person
for any period, the sum of the following amounts to the extent included in the
definition of Interest Expense: (a) the amount of debt discount and debt
issuance costs amortized, (b) charges relating to write-ups or write-downs in
the book or carrying value of existing Financial Covenant Debt, (c) interest
payable in evidences of Indebtedness or by addition to the principal of the
related Indebtedness and (d) other non-cash interest.
"Non-Consenting Lender" has the meaning specified in Section
11.1(e) (Amendments, Waivers, Etc.).
"Non-Funding Lender" has the meaning specified in Section
2.2(e) (Borrowing Procedures).
"Non-U.S. Lender" means each Lender or Issuer (or the
Administrative Agent) that is a Non-U.S. Person.
"Non-U.S. Person" means any Person that is not a U.S. Person.
"Note" means any Revolving Credit Note, Term Loan Note or
Swing Loan Note.
"Notice of Borrowing" has the meaning specified in Section
2.2(a)(i) (Borrowing Procedures).
"Notice of Conversion or Continuation" has the meaning
specified in Section 2.11(a) (Conversion/Continuation Option).
"Obligations" means all obligations of the Loan Parties
specified in clauses (i) and (ii) of the definitions of Domestic Obligations
and Foreign Obligations.
"OFAC" has the meaning specified in Section 11.2(h)
(Assignments and Participations).
"Other Taxes" has the meaning specified in Section 2.17(b)
(Taxes).
"Parallel Obligations" shall have the meaning assigned
thereto in Section 10.12 (Parallel Debt (Covenant to pay the Administrative
Agent)).
"Patriot Act" has the meaning specified in Section 11.19
(Patriot Act).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Pensions Regulator" means the body corporate called the
Pensions Regulator established under Part I of the UK Pensions Act 2004.
"Perfection Certificate" means a certificate in form and
substance satisfactory to the Administrative Agent.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Acquisition" means any Proposed Acquisition
subject to the satisfaction of each of the following conditions:
(a) in the case of any Proposed Acquisition involving
consideration in excess of $20,000,000, the Administrative Agent shall
receive at least 15 Business Days' (or such shorter period as may be
acceptable to the Administrative Agent) written notice of such
Proposed Acquisition prior to the consummation thereof, which notice
shall include a reasonably detailed description of such Proposed
Acquisition;
(b) such Proposed Acquisition shall be consensual and shall
have been approved by the Proposed Acquisition Target's or the
Proposed Acquisition Target's parent's board of directors or
shareholders;
(c) the Dollar Equivalent of the sum of all consideration
payable in connection with such Proposed Acquisition and all other
Permitted Acquisitions consummated on or prior to the date of the
consummation of such Proposed Acquisition (including all transaction
costs and all Indebtedness, liabilities and Guaranty Obligations
incurred or assumed in connection therewith or otherwise reflected in
a Consolidated balance sheet of the Company and the Proposed
Acquisition Target) shall not exceed $50,000,000 in any Fiscal Year or
$100,000,000 in the aggregate (or $75,000,000 in any Fiscal Year or
$150,000,000 in the aggregate, if at the time of any such Permitted
Acquisition on a Pro Forma Basis, the Leverage Ratio as of the date of
the most recently delivered Financial Statements pursuant to Section
6.1(a) or (b) (Financial Statements) would have been less than 3.5 to
1.0);
(d) at or prior to the closing of such Proposed Acquisition,
the Company (or the Subsidiary making such Proposed Acquisition) and
the Proposed Acquisition Target shall have executed such documents and
taken such actions as may be required under Section 7.10 (Additional
Collateral and Guaranties);
(e) at the time of such Proposed Acquisition and after giving
effect thereto, (A) no Default shall have occurred and be continuing,
(B) the Borrowers are in pro forma compliance with each of the
financial covenants contained in Article V (Financial Covenants) as of
the last day of the most recent Fiscal Quarter or Fiscal Year for
which a Compliance Certificate has been delivered pursuant to clause
(c) of Section 6.1 (Financial Statements) and a Responsible Officer
shall have delivered an officer's certificate to the Administrative
Agent certifying as to such compliance, and (C) the sum of (x) the
aggregate amount of the Available Credit under the Revolving Credit
Facility and (y) the aggregate unrestricted cash balance (including
Cash Equivalents) of the Company and its Subsidiaries as reflected on
the balance sheet of Company and its Subsidiaries at such time is not
less than $50,000,000.
"Permitted Asset Swaps" means any exchange of property or
assets (including Stock or Stock Equivalents of a Subsidiary to be
transferred), liabilities and/or employees of the Company and its Subsidiaries
(and, if applicable, any cash true-up) for assets (including Stock or Stock
Equivalents of a Person that becomes a Subsidiary of the Company), liabilities
and/or employees (and, if applicable, any cash true-up) of another Person which
are to be used in the business of the Company and its Subsidiaries taken as a
whole; provided that the fair market value of all such property and assets of
the Company and its Subsidiaries so transferred does not exceed the Dollar
Equivalent of (x) $100,000,000 (or $150,000,000 in the aggregate, if at the
time of any such Permitted Asset Swaps on a Pro Forma Basis, the Leverage Ratio
as of the date of the most recently delivered Financial Statements pursuant to
Section 6.1(a) or (b) (Financial Statements) would have been less than 3.5 to
1.0).
"Permitted Collateral Liens" means (a) in the case of
Collateral other than Mortgaged Property, the Liens described in clauses (a),
(b), (c), (d), (e), (f), (g), (i), (j) and (k), of Section 8.2 (Liens, Etc.)
and (b) in the case of Mortgaged Property, "Permitted Collateral Liens" shall
mean the Liens described in clauses (a), (b)and (e) of Section 8.2 (Liens,
Etc.) and the liens described in clauses (a), (b), (d), (e),(f), (i), (j), (n)
and (p) of the definition of "Customary Permitted Liens"; provided, however, on
the Closing Date, Permitted Collateral Liens shall mean only those Liens set
forth in Schedule B to the applicable Mortgage and such other Liens which shall
be reasonably satisfactory to the Administrative Agent.
"Permitted Receivables Financing" means any financing
transaction in which (i) the Company or a Subsidiary transfers receivables and
related assets to a Securitization Subsidiary in exchange for an equity
interest or intercompany obligation of such Securitization Subsidiary, (ii)
such Securitization Subsidiary may but shall not be required to pledge its
assets to secure advances from a third party, (iii) such third party advances
amounts to such Securitization Subsidiary in anticipation of collection of the
receivables held by such Securitization Subsidiary and (iv) any amounts
collected in respect of such receivables in excess of the amount of advances to
such Receivables Subsidiary from such third party are retained by such
Receivables Subsidiary or distributed to the Company or a Subsidiary; provided
that the aggregate outstanding amount of advances in respect of receivables
transferred to Securitization Subsidiaries by (x) Loan Parties shall not exceed
the Dollar Equivalent of $75,000,000 and (y) Foreign Subsidiaries that are not
Loan Parties, shall not exceed the Dollar Equivalent of $60,000,000.
"Permitted Refinancing" means, with respect to any Person,
any modification, refinancing, refunding, renewal or extension of any
Indebtedness of such Person (or any successor of such Person); provided,
however, that (a) the principal amount (or accreted value, if applicable)
thereof does not exceed the sum of (i) the outstanding principal amount (or
accreted value, if applicable) of the Indebtedness so modified, refinanced,
refunded, renewed or extended plus (ii) an amount equal to unpaid accrued
interest and premium thereon plus (iii) other reasonable amounts paid, and fees
and expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal or extension plus (iv) an amount equal to any
existing commitments unutilized thereunder or as otherwise permitted pursuant
to Section 8.1 (Indebtedness), (b) such modification, refinancing, refunding,
renewal or extension has (i) a final maturity date equal to or later than the
earlier of (A) the date six months after the U.S. Term Loan Maturity Date and
(B) the final maturity date of the Indebtedness being modified, refinanced,
refunded, renewed or extended and (ii) a weighted average life to maturity
equal to or greater than the weighted average life to maturity of the
Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if
the Indebtedness being modified, refinanced, refunded, renewed or extended is
subordinated in right of payment to the Obligations, such modification,
refinancing, refunding, renewal or extension is subordinated in right of
payment to the Obligations on terms at least as favorable, taken as a whole, to
the Lenders as those contained in the documentation governing the Indebtedness
being modified, refinanced, refunded, renewed or extended, (d) the terms and
conditions (including, if applicable, as to collateral) of any such modified,
refinanced, refunded, renewed or extended Indebtedness are not materially less
favorable, taken as a whole, to the interests of the Lenders under the Loan
Documents than the terms and conditions of the Indebtedness being modified,
refinanced, refunded, renewed or extended and (e) the lender with respect to
any modification, refinancing, refunding, renewal or extension of any
Indebtedness solely among the Company and /or the Subsidiaries shall be the
Company or a Subsidiary; provided that, notwithstanding the foregoing,
Permitted Refinancing Indebtedness in respect of Guaranty Obligations of any
Loan Party of obligations of a Subsidiary that are originally outstanding on
the Closing Date shall only be required to comply with clause (a) of this
definition.
"Person" means an individual, partnership, limited
partnership, corporation (including a business trust), joint stock company,
estate, trust, limited liability company, unincorporated association, joint
venture or other entity or a Governmental Authority.
"Premises" shall have the meaning assigned thereto in the
applicable Mortgage.
"Principal Obligations" shall have the meaning assigned
thereto in Section 10.12 (Parallel Debt (Covenant to pay the Administrative
Agent)).
"Pro Forma Basis" means, with respect to any determination
for any period, that such determination shall be made giving pro forma effect
to each acquisition or disposition of a Person or line of business consummated
during such period, together with all transactions relating thereto consummated
during such period (including any incurrence, assumption, refinancing or
repayment of Indebtedness), as if such acquisition or disposition and related
transactions had been consummated on the first day of such period, in each case
based on historical results accounted for in accordance with GAAP and, to the
extent applicable, reasonable assumptions that are specified in details in the
relevant Compliance Certificate, Financial Statement or other document provided
to the Administrative Agent or any Lender in connection herewith in accordance
with Regulation S-X of the Securities Act of 1933 and the Securities Exchange
Act of 1934.
"Process Agent" has the meaning specified in Section 11.12(b)
(Submission to Jurisdiction; Service of Process).
"Professional Market Party" means a professional market party
(professionele marktpartij) within the meaning of the Dutch Exemption
Regulation.
"Prohibition" has the meaning specified in Section 11.4
(Indemnification).
"Projections" means those financial projections, financial
assumptions and forecasts dated June 2005, covering the Fiscal Years ending in
2005 through 2013 inclusive, delivered by the Company to the Lenders on
IntraLinks(TM) under the heading "PRIVATE Supplement to the Confidential
Information Memorandum."
"Property Loss Event" means any loss of title or any loss of
or damage to or destruction of, or any condemnation or other taking (including
by any Governmental Authority) of, any property of the Borrowers or any
Subsidiary of the Borrowers. "Property Loss Event" shall include but not be
limited to any taking of all or any part of any Real Property of any Person or
any part thereof, in or by condemnation or other eminent domain proceedings
pursuant to any Requirement of Law, or by reason of the temporary requisition
of the use or occupancy of all or any part of any Real Property of any Person
or any part thereof by any Governmental Authority, civil or military, or any
settlement in lieu thereof.
"Proposed Acquisition" means the proposed acquisition by the
Company or any of its Subsidiaries of all or substantially all of the Stock of
any Proposed Acquisition Target or the proposed acquisition by the Company or
any of its Subsidiaries of all or a significant part of the assets of a
business conducted by any Proposed Acquisition Target, or all or substantially
all of the assets constituting the business of a division, branch or other unit
operation of any Proposed Acquisition Target, or the merger of any Proposed
Acquisition Target with or into the Company or any Subsidiary of the Company
(and, in the case of a merger with the Company, with the Company being the
surviving corporation).
"Proposed Acquisition Target" means any Person subject to a
Proposed Acquisition.
"Qualified Party" means, with respect to any Hedging Contract
or Cash Management Obligation, a Person that was a Lender or an Affiliate of a
Lender at the time such Hedging Contract or arrangement giving rise to such
Cash Management Obligation was entered into (or, in the case of Hedging
Contracts existing on the Closing Date, a Person that was a Lender or an
Affiliate of a Lender on the Closing Date).
"Qualifying Lender" is a Lender which is (a) a UK Treaty
Lender; (b) a company resident in the United Kingdom for United Kingdom tax
purposes which is beneficially entitled to interest payable or a company not so
resident which carries on a trade in the United Kingdom through a permanent
establishment and which brings into account in computing its chargeable profits
(for the purposes of section 11(2) of the Taxes Act) the whole of any share of
interest payable in respect of that advance; (c) a bank (as defined for the
purpose of section 349 of the Taxes Act) making an advance under a Loan
Document and which is within the charge to United Kingdom corporation tax as
respects any payments of interest made in respect of that advance; (d) a
partnership each member of which is a company so resident in the United Kingdom
or a partnership each member of which is a company not so resident in the
United Kingdom which carries on a trade in the United Kingdom through a
permanent establishment and which brings into account in computing its
chargeable profits (for the purposes of section 11(2) of the Taxes Act) the
whole of any share of interest payable in respect of that advance that falls to
it by reason of sections 114 and 115 of the Taxes Act.
"Ratable Portion" or (other than in the expression "equally
and ratably") "ratably" means, for any Lender:
(a) with respect to the Dollar Revolving Facility, the
percentage obtained by dividing (i) the Dollar Revolving Commitment of
such Lender by (ii) the aggregate Dollar Revolving Commitments of all
Lenders (or, at any time after the Revolving Credit Termination Date,
the percentage obtained by dividing the aggregate outstanding
principal balance of the Dollar Revolving Outstandings owing to such
Lender by the aggregate outstanding principal balance of the Dollar
Revolving Outstandings owing to all Lenders);
(b) with respect to the Euro Revolving Facility, the
percentage obtained by dividing (i) the Euro Revolving Commitment of
such Lender by (ii) the aggregate Euro Revolving Commitments of all
Lenders (or, at any time after the Revolving Credit Termination Date,
the percentage obtained by dividing the aggregate outstanding
principal balance of the Euro Revolving Outstandings owing to such
Lender by the aggregate outstanding principal balance of the Euro
Revolving Outstandings owing to all Lenders);
(c) with respect to any Term Loan Facility, the percentage
obtained by dividing (i) the Term Loan Commitment of such Lender under
such Term Loan Facility by (ii) the aggregate Term Loan Commitments of
all Lenders under such Term Loan Facility (or, at any time after the
Closing Date, the percentage obtained by dividing the principal amount
of such Lender's Term Loans under such Term Loan Facility by the
aggregate Term Loans of all Lenders under such Term Loan Facility);
(d) with respect to the Revolving Credit Facility, the
percentage obtained by dividing (i) the Revolving Credit Commitment of
such Lender by (ii) the aggregate Revolving Credit Commitments of all
Lenders (or, at any time after the Revolving Credit Termination Date,
the percentage obtained by dividing the aggregate outstanding
principal balance of the Revolving Credit Outstandings owing to such
Lender by the aggregate outstanding principal balance of the Revolving
Credit Outstandings owing to all Lenders); and
(e) for purposes of Section 9.5 (Collection Allocation
Mechanism), the percentage obtained by dividing (i) the Dollar
Equivalent of the amount of Obligations in respect of Loans,
participations in Letters of Credit and Swing Loans and accrued
interest and fees owed to a Lender by (ii) the aggregate Dollar
Equivalent of the amount of Obligations in respect of Loans,
participations in Letters of Credit and Swing Loans and accrued
interest and fees thereon owed to all of the Lenders, all as
determined on the CAM Exchange Date.
"Real Property" of any Person means the Land of such Person,
together with the right, title and interest of such Person, if any, in and to
any and all of the following: the streets, the Land lying in the bed of any
streets, roads or avenues, opened or proposed, in front of, the air space and
development rights pertaining to the Land and the right to use such air space
and development rights, all rights of way, privileges, liberties, tenements,
hereditaments and appurtenances belonging or in any way appertaining thereto,
all fixtures, all easements now or hereafter benefiting the Land and all
royalties and rights appertaining to the use and enjoyment of the Land,
including all alley, vault, drainage, mineral, water, oil and gas rights,
together with all of the buildings and other improvements now or hereafter
erected on the Land and any fixtures appurtenant thereto, including all general
intangible and contract rights and other property and rights incidental to the
ownership, lease or operation thereof.
"Reference Bank" means the principal office in Brussels of
Citibank or any Affiliate thereof.
"Register" has the meaning specified in Section 2.7(b)(i)
(Promissory Notes).
"Reimbursement Date" has the meaning specified in Section
2.4(h) (Letters of Credit).
"Reimbursement Obligations" means, as and when matured, the
obligation of the U.S. Borrower to pay, on the date payment is made or
scheduled to be made to the beneficiary under each such Letter of Credit (or at
such earlier date as may be specified in the applicable Letter of Credit
Reimbursement Agreement), all amounts of each draft and other requests for
payments drawn under Letters of Credit, and all other matured reimbursement or
repayment obligations of the U.S. Borrower to any Issuer with respect to
amounts drawn under Letters of Credit, in each case, until the Reimbursement
Date, in Dollars, and in each case only to the extent that any such obligations
remain unpaid.
"Related Obligations" has the meaning specified in Section
10.9 (Collateral Matters Relating to Related Obligations).
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration of any Contaminant in, into or onto the indoor or outdoor Environment
or into or out of any property including, without limitation, the movement of
Contaminants through or in the air, soil, surface water, ground water or
property.
"Requirement of Law" means, with respect to any Person, the
common law and all federal, state, provincial, local and foreign laws,
treaties, rules and regulations, orders, ordinances, rules, regulations,
statutes, case law, judgments, decrees and other determinations of,
concessions, grants, franchises, licenses with, any Governmental Authority or
arbitrator, applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Requisite Class Lenders" means (i) with respect to any Term
Loan Facility, Lenders holding more than 50% of the Term Loan Commitments and
Term Loans under such Term Loan Facility, (ii) with respect to the Euro
Revolving Facility, Lenders holding more than 50% of the Euro Revolving
Commitments or, if the Revolving Credit Termination Date has occurred, more
than 50% of the Euro Revolving Outstandings, (iii) with respect to the Dollar
Revolving Facility, Lenders holding more than 50% of the Dollar Revolving
Commitments or, if the Revolving Credit Termination Date has occurred, more
than 50% of the Dollar Revolving Outstandings and (iv) with respect to the
Revolving Credit Facilities, the Requisite Revolving Lenders.
"Requisite Lenders" means, collectively, Lenders having more
than fifty percent (50%) of the sum of the Dollar Equivalent of (a) the
aggregate outstanding amount of the Dollar Revolving Commitments or, after the
Revolving Credit Termination Date, the Dollar Revolving Outstandings, (b) the
aggregate outstanding amount of the Euro Revolving Commitments or, after the
Revolving Credit Termination Date, the Euro Revolving Outstandings, and (c) the
aggregate outstanding amount of the Term Commitments or, after the Closing
Date, the aggregate principal amount of all Term Loans then outstanding. A
Non-Funding Lender shall not be included in the calculation of "Requisite
Lenders."
"Requisite Revolving Lenders" means, collectively, Lenders
having more than fifty percent (50%) of the sum of the Dollar Equivalent of (a)
the aggregate outstanding amount of the Dollar Revolving Commitments or, after
the Revolving Credit Termination Date, the Dollar Revolving Outstandings and
(b) the aggregate outstanding amount of the Euro Revolving Commitments or,
after the Revolving Credit Termination Date, the Euro Revolving Outstandings. A
Non-Funding Lender shall not be included in the calculation of "Requisite
Revolving Lenders."
"Reserve Account" has the meaning specified in Section 2.4(k)
(Letters of Credit).
"Response Action" means all actions required or voluntarily
undertaken to (a) clean up, remove, treat or in any other way address any
Contaminant in the indoor or outdoor Environment, (b) prevent the Release or
threat of Release or minimize the further Release so that a Contaminant does
not migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment or (c) perform pre-remedial studies and
investigations and post-remedial monitoring and care.
"Responsible Officer" means, with respect to any Person, any
of the principal executive officers, managing members or general partners of
such Person but, in any event, with respect to financial matters, the chief
financial officer, treasurer or controller of such Person.
"Restricted Payment" means (a) any dividend, distribution or
any other payment whether direct or indirect, on account of any Stock or Stock
Equivalent of the Company or any of its Subsidiaries now or hereafter
outstanding and (b) any redemption, retirement or similar payment, purchase or
other acquisition for value, direct or indirect, of any Stock or Stock
Equivalent of the Company or any of its Subsidiaries now or hereafter
outstanding.
"Revolving Credit Borrowing" means any Dollar Revolving
Borrowing or any Euro Revolving Borrowing.
"Revolving Credit Commitment" means the Dollar Revolving
Commitments and the Euro Revolving Commitments.
"Revolving Credit Facilities" means the Dollar Revolving
Facility and the Euro Revolving Facility.
"Revolving Credit Note" means a promissory note of the U.S.
Borrower or the U.K. Borrower, as applicable, substantially in the form of
Exhibit B-1 (Form of Revolving Credit Note).
"Revolving Credit Outstandings" means, at any particular
time, the sum of (a) the Dollar Revolving Outstandings and (b) the Euro
Revolving Outstandings.
"Revolving Credit Termination Date" shall mean the earliest
of (a) the Scheduled Termination Date, (b) the date of termination of all of
the Revolving Credit Commitments pursuant to Section 2.5 (Reduction and
Termination of the Commitments) and (c) the date on which the Obligations
become due and payable pursuant to Section 9.2 (Remedies).
"Revolving Lender" means each Dollar Revolving Lender or Euro
Revolving Lender.
"Revolving Loan" means the Dollar Revolving Loans and the
Euro Revolving Loans.
"S&P" means Standard & Poor's Rating Services.
"Sanctioned Entity" shall mean (i) an agency of the
government of, (ii) an organization directly or indirectly controlled by, or
(iii) a person resident in a country that is subject to a sanctions program
identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise
published from time to time as such program may be applicable to such agency,
organization or person.
"Sanctioned Person" shall mean a person named on the list of
Specially Designated Nationals or Blocked Persons maintained by OFAC available
at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise
published from time to time.
"Sarbanes-Oxley Act" means the United States Sarbanes-Oxley
Act of 2002.
"Scheduled Termination Date" means the fifth anniversary of
the Closing Date.
"Screen Rate" means, (i) in relation to EURIBOR, the
percentage rate per annum determined by the Banking Federation of the European
Union for the relevant period, in each case displayed on the appropriate page
of the Telerate screen and (ii) in relation to the LIBOR Rate for any
Eurocurrency Rate Loan in Sterling, the British Bankers' Association Settlement
Rate for the relevant currency and period. 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
Company.
"SEC" means the Securities and Exchange Commission.
"Secured Obligations" means (a) in the case of any Domestic
Loan Party, the Domestic Obligations and the Foreign Obligations, (b) in the
case of any Foreign Loan Party (other than the Acquired Dutch Guarantor or any
Foreign Loan Party organized under the laws of Australia), the Foreign
Obligations, (c) in the case of the Acquired Dutch Guarantor, the Foreign
Obligations but excluding any Obligations with respect to the Euro Term-2 Loans
and (d) in the case of any Foreign Loan Party organized under the laws of
Australia, the Foreign Obligations other than Foreign Obligations consisting of
obligations to pay principal on a Loan, or any other loan (other than where the
lender is an Australian resident not operating through a permanent
establishment outside Australia), with respect to which notes or debentures
have not been issued.
"Secured Parties" means (i) the Agents, (ii) each Issuer,
(iii) the Lenders, (iv) the Qualified Parties and (v) the other Persons named
in Section 11.4 (Indemnities).
"Securitization Subsidiary" means any Wholly-Owned Subsidiary
of the Company (other than a Loan Party) created solely for the purpose of
engaging only in activities reasonably related to or in connection with a
Permitted Receivables Financing and for which neither the Company nor any of
its Subsidiaries provides credit support; provided that if any Loan Party
transfers receivables and related assets to such Securitization Subsidiary,
then the equity interests of such Securitization Subsidiary shall have been
pledged to secure the Secured Obligations of such Loan Party.
"Security" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness, whether
secured, unsecured, convertible or subordinated, or any certificate of
interest, share or participation in, any temporary or interim certificate for
the purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing, but shall not include any evidence of the
Obligations.
"Seller" means Fortune Brands, Inc., a Delaware corporation.
"Solvent" means, with respect to any Person as of any date of
determination, that, as of such date, (a) the present fair saleable value of
the assets of such Person is greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such Person, (b) such
Person is able to pay all liabilities of such Person as such liabilities mature
in the ordinary course of business considering all financing alternatives and
potential assets sales reasonably available to them and (c) such Person does
not have unreasonably small capital in relation to their business as then
conducted.
"Specified Restructuring Transactions" means each of the
transactions described on Schedule VII (Specified Restructuring Transactions).
"Spin-Off" means the distribution by Seller of all of the
shares of capital stock of the Company owned by the Seller to the stockholders
of Seller on the terms set forth in the Distribution Agreement.
"Sterling" and the sign "(pound)"each mean the lawful money
of United Kingdom.
"Sterling Term Commitment" means, with respect to each
Sterling Term Lender, the commitment of such Sterling Term Lender to make
Sterling Term Loans to the U.K. Borrower in the aggregate principal amount set
forth opposite such Lender's name on Schedule I (Commitments) under the caption
"Sterling Term Commitment" as amended to reflect each Assignment and Acceptance
executed by such Lender and as such amount may be reduced pursuant to this
Agreement, and "Sterling Term Commitments" shall mean the aggregate Sterling
Term Commitments of all Sterling Term Lenders, which amount, initially as of
the Closing Date, shall be (pound)63,572,790.85.
"Sterling Term Lender" means each Lender that has a Sterling
Term Commitment or that holds a Sterling Term Loan.
"Sterling Term Loan" has the meaning specified in Section
2.1(b)(ii) (The Commitments).
"Sterling Term Loan Facility" means the Sterling Term
Commitments and the provisions herein related to the Sterling Term Loans.
"Stock" means shares of capital stock (whether denominated as
common stock or preferred stock), beneficial, partnership or membership
interests or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity,
whether voting or non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
"Subordinated Debt" means the Subordinated Notes and any
Permitted Refinancing thereof.
"Subordinated Notes" means those certain 7 5/8% Senior
Subordinated Notes due 2015 in the aggregate principal amount of $350,000,000
issued by ACCO Finance I on August 5, 2005 pursuant to the Subordinated Notes
Documents (the obligations of which were assumed by the U.S. Borrower on the
Closing Date), which term shall include and shall constitute the notes issued
in exchange therefor as contemplated by the Subordinated Notes Documents.
"Subordinated Notes Documents" means the Indenture, dated as
of August 5, 2005, between ACCO Finance I, Inc. and Wachovia Bank, National
Association, pursuant to which the Subordinated Notes were issued (as amended
and supplemented from time to time), including the Supplemental Indenture,
dated as of the Closing Date, by and among the U.S. Borrower, the Guarantors
(as defined therein) and Wachovia Bank, National Association, pursuant to which
the U.S. Borrower assumed the obligations of the Subordinated Notes and, on the
Closing Date, the related escrow agreement referred to in such Indenture.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other business entity of
which an aggregate of more than 50% of the outstanding Voting Stock is, at the
time, directly or indirectly, owned or controlled by such Person or one or more
Subsidiaries of such Person. Unless otherwise specified herein, any reference
to a "Subsidiary" refers to a Subsidiary of the Company.
"Substitute Institution" has the meaning specified in Section
2.18(a) (Substitution of Lenders; Change of Lending Office).
"Substitute Interest Rate" has the meaning specified in
Section 2.14(b)(i) (Special Provisions Governing Eurocurrency Rate Loans).
"Substitution Notice" has the meaning specified in Section
2.18(a) (Substitution of Lenders; Change of Lending Office).
"Survey" means a survey of any Mortgaged Property (and all
improvements thereon) which is (a) (i) prepared by a surveyor or engineer
licensed to perform surveys in the jurisdiction where such Mortgaged Property
is located, (ii) dated (or redated) not earlier than six months prior to the
date of delivery thereof (or, with respect to the Mortgaged Property located in
Addison, Illinois or Northbrook, Illinois, dated March 7, 2003 and January 3,
2003, respectively) unless there shall have occurred within six months prior to
such date of delivery any exterior construction on the site of such Mortgaged
Property or any easement, right of way or other interest in the Mortgaged
Property has been granted or become effective through operation of law or
otherwise with respect to such Mortgaged Property which, in either case, can be
depicted on a survey, in which events, as applicable, such survey shall be
dated (or redated) after the completion of such construction or if such
construction shall not have been completed as of such date of delivery, not
earlier than 20 days prior to such date of delivery, or after the grant or
effectiveness of any such easement, right of way or other interest in the
Mortgaged Property, (iii) certified by the surveyor (in a manner reasonably
acceptable to the Administrative Agent) to the Administrative Agent and the
Title Company, (iv) in the case of each Domestic Mortgaged Property, complying
in all respects with the minimum detail requirements of the American Land Title
Association as such requirements are in effect on the date of preparation of
such survey, (v) sufficient for the Title Company to remove all standard survey
exceptions from the title insurance policy (or commitment) relating to such
Mortgaged Property and issue the endorsements of the type required by Section
3.1(a)(v)(Conditions Precedent to Initial Loans) and (vi) otherwise acceptable
to the Administrative Agent.
"Swing Loan" has the meaning specified in Section 2.3(a)
(Swing Loans).
"Swing Loan Lender" means (a) LaSalle Bank National
Association, General Electric Capital Corporation and their respective
successors until such time as either such entity shall provide that it has
elected to cease to act in such capacity pursuant to Section 2.3(g) (Swing
Loans)and (b) any other Revolving Lender that, with the approval of the
Administrative Agent and the Company, agrees to act as Swing Loan Lender
hereunder.
"Swing Loan Note" means a promissory note of the U.S.
Borrower substantially in the form of Exhibit B-3 (Form of Swing Loan Note)
"Swing Loan Request" has the meaning specified in Section
2.3(b) (Swing Loans).
"Swing Loan Sublimit" means $30,000,000.
"Syndication Agent" means ABN AMRO Incorporated in its
capacity as syndication agent for the Lenders and the Issuers.
"TARGET" means Trans-European Automated Real-time Gross
Settlement Express Transfer payment system.
"TARGET Day" any day on which TARGET is open for the
settlement of payments in Euro.
"Tax Affiliate" means, with respect to any Person (the
"Reference Person"), (a) any Subsidiary of the Reference Person and (b) any
Person for whose taxes the Reference Person is or could be liable, whether by
reason of being a member of an affiliated, consolidated, combined or unitary or
similar group for tax purposes, by reason of being a successor or member, by
agreement or otherwise.
"Tax Confirmation" means a confirmation by a Lender that the
Person beneficially entitled to interest payable to that Lender in respect of
an advance under a Loan Document is either:
(a) a company resident in the United Kingdom for United
Kingdom tax purposes;
(b) a partnership each member of which is:
(i) a company so resident in the United Kingdom; or
(ii) a company not so resident in the United Kingdom
which carries on a trade in the United Kingdom through a
permanent establishment and which brings into account in
computing its chargeable profits (for the purposes of section
11(2) of the Taxes Act) the whole of any share of interest
payable in respect of that advance that falls to it by reason
of sections 114 and 115 of the Taxes Act; or
(c) a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a permanent
establishment and which brings into account interest payable in
respect of that advance in computing the chargeable profits (for the
purposes of section 11(2) of the Taxes Act) of that company.
"Tax Returns" has the meaning specified in Section 4.8
(Taxes).
"Taxes" means all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
"Taxes Act" means the UK Income and Corporation Taxes Act
1988.
"Term Loan" means each of the U.S. Term Loans, the Sterling
Term Loans and the Euro Term Loans.
"Term Loan A Maturity Date" means the five year anniversary
of the Closing Date.
"Term Loan Borrowing" means a borrowing consisting of Term
Loans under a particular Term Loan Facility.
"Term Loan Commitment" means each of the U.S. Term
Commitments, the Sterling Term Commitments and the Euro Term Commitments.
"Term Loan Facility" means, as the context requires, the U.S.
Term Loan Facility, the Sterling Term Loan Facility or the Euro Term Loan
Facility.
"Term Loan Lender" means each Lender that has a Term Loan
Commitment or that holds a Term Loan.
"Term Loan Note" means a promissory note of the applicable
Borrower substantially in the form of Exhibit B-2 (Form of Term Note).
"Title Company" shall mean any title insurance company or
foreign equivalent thereof, if any, as shall be retained by the Borrowers and
reasonably acceptable to the Administrative Agent.
"Title Policy" shall have the meaning assigned to such term
in Section 3.1(a)(v) (Conditions Precedent to Initial Loans) or the foreign
equivalent thereof, if any.
"Title IV Plan" means a defined benefit pension plan, other
than a Multiemployer Plan, covered by Title IV of ERISA or any non-United
States laws that require funding of such plan's accrued liabilities and to
which the Company, any of its Subsidiaries or any ERISA Affiliate has any
obligation or liability.
"Transactions" means (i) the issuance of the Dividend Note,
(ii) the Spin-Off, (iii) the closing of the Merger as contemplated by the
Acquisition Documents, (iv) the closing and initial funding of the Facilities,
(v) the merger of ACCO Finance I into the Company and the assumption by the
Company of the obligations of ACCO Finance I under the Subordinated Notes
Documents, (vi) the repayment of the Dividend Notes and all other Financial
Covenant Debt of the Company, GBC and their respective Subsidiaries other than
Indebtedness described on Schedule 8.1 (Existing Indebtedness), (vii) the other
transactions contemplated by the Acquisition Documents, (viii) the payment of
the costs and expenses relating to the foregoing and (ix) the use of proceeds
hereunder in accordance with Section 4.13 (Use of Proceeds).
"Treaty State" means 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.
"Trust Agreement" means the trust agreement among Citicorp,
in its capacity as collateral trustee, on behalf of the Foreign Secured
Parties, the Foreign Loan Parties and certain other Foreign Subsidiaries of the
Company which shall be in form reasonably satisfactory to the Administrative
Agent in substantially the form of Exhibit M (Form of Trust Agreement).
"UCC" has the meaning specified in the Domestic Security
Agreement.
"U.K. Borrower" has the meaning specified in the preamble to
this Agreement.
"U.K. Borrower Intra-Group Loan Agreement" means the
Intercompany Note between the U.K. Borrower and certain other subsidiaries of
the U.S. Borrower pursuant to which those members of the group have or will
make available a facility to the U.K. Borrower.
"U.K. Debenture" means the debenture between, among others,
Citicorp, as collateral trustee and the Loan Parties organized under the laws
of the United Kingdom to be delivered pursuant to Section 7.11 (Post-Closing
Covenants)) in form reasonably acceptable to the Administrative Agent.
"U.K./Dutch Guaranty" means the guaranty made by the Foreign
Loan Parties organized under the laws of the United Kingdom or The Netherlands
of certain of the Secured Obligations, substantially in the form of Exhibit H-2
(Form of U.K./Dutch Guaranty), together with each supplement thereto delivered
pursuant to Section 7.10 (Additional Collateral and Guaranties).
"U.K. Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "U.K. Lending Office" opposite its name
on Schedule II (Applicable Lending Offices and Addresses for Notices) or on the
Assignment and Acceptance by which it became a Lender (or, if no such office is
specified, its U.S. Lending Office) or such other office of such Lender as such
Lender may from time to time specify to the Company and the Administrative
Agent.
"UK Treaty Lender" is a Lender which (a) is treated as a
resident of a Treaty State for the purposes of the Treaty; and (b) 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.
"Unused Commitment Fee" has the meaning specified in Section
2.12(a) (Unused Commitment Fee). "U.S. Borrower" has the meaning specified in
the preamble to this Agreement.
"U.S. Lender" means each Lender or Issuer (or the
Administrative Agent) that is a U.S. Person.
"U.S. Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "U.S. Lending Office" opposite its name
on Schedule II (Applicable Lending Offices and Addresses for Notices) or on the
Assignment and Acceptance by which it became a Lender or such other office of
such Lender as such Lender may from time to time specify to the Borrowers and
the Administrative Agent.
"U.S. Person" means any "United States person" under and as
defined in Section 770l(a)(30) of the Code.
"U.S. Term Commitment" means, with respect to each U.S. Term
Lender, the commitment of such Lender to make U.S. Term Loans to the U.S.
Borrower in the aggregate principal amount set forth opposite such Lender's
name on Schedule I (Commitments) under the caption "U.S. Term Loan Commitment"
as amended to reflect each Assignment and Acceptance executed by such Lender
and as such amount may be reduced pursuant to this Agreement, and "U.S. Term
Commitments" shall mean the aggregate U.S. Term Commitments of all U.S. Term
Lenders, which amount, initially as of the Closing Date, shall be $400,000,000.
"U.S. Term Lender" means each Lender that has a U.S. Term
Commitment or that holds a U.S. Term Loan.
"U.S. Term Loan" has the meaning specified in Section
2.1(b)(i) (The Commitments).
"U.S. Term Loan Facility" means the U.S. Term Commitments and
the provisions herein related to the U.S. Term Loans.
"U.S. Term Loan Maturity Date" means the seven year
anniversary of the Closing Date.
"Voting Stock" means Stock of any Person having ordinary
power to vote in the election of members of the board of directors, managers,
trustees or other controlling Persons, of such Person (irrespective of whether,
at the time, Stock of any other class or classes of such entity shall have or
might have voting power by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" of any Person means any Subsidiary
of such Person, all of the Stock of which (other than director's or other
qualifying shares, as may be required by law) is owned by such Person, either
directly or indirectly through one or more Wholly-Owned Subsidiaries of such
Person.
"Withdrawal Liability" means 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 or
any substantially similar event under applicable non-United States laws.
"Working Capital" means, for any Person at any date, the
amount, if any, by which the Consolidated Current Assets of such Person at such
date exceeds the Consolidated Current Liabilities of such Person at such date.
Section 1.2 Computation of Time Periods
In this Agreement, in the computation of periods of time from
a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
Section 1.3 Accounting Terms and Principles
(a) Except as set forth below, all accounting terms not
specifically defined herein shall be construed in conformity with GAAP and all
accounting determinations required to be made pursuant hereto (including for
purpose of measuring compliance with Article V (Financial Covenants)) shall,
unless expressly otherwise provided herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in Section 6.1
(Financial Statements) is hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or any
successors thereto) and such change is adopted by the Company with the
agreement of the Company's Accountants and results in a change in any of the
calculations required by Article V (Financial Covenants) or VIII (Negative
Covenants) that would not have resulted had such accounting change not
occurred, the parties hereto agree to enter into negotiations in good faith in
order to amend such provisions so as to equitably reflect such change such that
the criteria for evaluating compliance with such covenants by the Borrowers
shall be the same after such change as if such change had not been made;
provided, however, that no change in GAAP that would affect a calculation that
measures compliance with any covenant contained in Article V (Financial
Covenants) or VIII (Negative Covenants) shall be given effect until such
provisions are amended to reflect such changes in GAAP. Without limiting the
generality of the foregoing, the Borrowers shall neither be deemed to be in
compliance with any financial covenant or negative covenant hereunder nor out
of compliance with any financial covenant hereunder if such state of compliance
or noncompliance, as the case may be, would not exist but for the occurrence of
a change in accounting principles after the date hereof.
(c) For purposes of making all financial calculations to
determine compliance with Article V (Financial Covenants), all components of
such calculations shall be adjusted to include or exclude, as the case may be,
without duplication, such components of such calculations attributable to any
Person or line of business that have been acquired or disposed of by the
Company or any of its Subsidiaries (including through Permitted Acquisitions)
after the first day of the applicable period of determination and prior to the
end of such period, as determined in good faith by the Company on a Pro Forma
Basis.
Section 1.4 Conversion of Currencies
(a) Financial Covenant Debt. Financial Covenant Debt
denominated in any currency other than Dollars shall be translated into Dollars
using the average of the foreign exchange rates quoted on each day during the
two Fiscal Quarters then ending by the source used by the Company to translate
items appearing in its statement of income during such Fiscal Quarter.
(b) Dollar Equivalents. The Administrative Agent shall
determine the Dollar Equivalent of any amount as required hereby, and a
determination thereof by the Administrative Agent shall be conclusive absent
manifest error. The Administrative Agent may, but shall not be obligated to,
rely on any determination made by any Loan Party in any document delivered to
the Administrative Agent. Unless otherwise specified herein, the Administrative
Agent may determine or redetermine the Dollar Equivalent of any amount on any
date in its reasonable discretion.
(c) Rounding-Off. The Administrative Agent may set up
appropriate rounding off mechanisms or otherwise round-off amounts hereunder to
the nearest higher or lower amount in whole Dollar or cent to ensure amounts
owing by any party hereunder or that otherwise need to be calculated or
converted hereunder are expressed in whole Dollars or in whole cents, as may be
necessary or appropriate.
(d) Negative Covenants, Etc. The Borrowers shall not be
deemed to have violated any of the covenants set forth in Article VIII
(Negative Covenants) or Section 5.3 (Maximum Capital Expenditures) solely as a
result of currency fluctuations following the date any action is taken if such
action was permitted on the date on which it was taken.
Section 1.5 Certain Terms
(a) The terms "herein," "hereof," "hereto" and "hereunder"
and similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in, this Agreement.
(b) Unless otherwise expressly indicated herein, (i)
references in this Agreement to an Exhibit, Schedule, Article, Section, clause
or sub-clause refer to the appropriate Exhibit or Schedule to, or Article,
Section, clause or sub-clause in this Agreement and (ii) the words "above" and
"below", when following a reference to a clause or a sub-clause of any Loan
Document, refer to a clause or sub-clause within, respectively, the same
Section or clause.
(c) Each agreement defined in this Article I shall include
all appendices, exhibits and schedules thereto. Unless the prior written
consent of the Requisite Lenders is required hereunder for an amendment,
restatement, supplement or other modification to any such agreement and such
consent is not obtained, references in this Agreement to such agreement shall
be to such agreement as so amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to
such statute as amended or modified from time to time and to any successor
legislation thereto, in each case as in effect at the time any such reference
is operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
(f) The terms "Lender," "Issuer" and "Administrative Agent"
include, without limitation, their respective permitted successors.
(g) Upon the appointment of any successor Administrative
Agent pursuant to Section 10.7 (Successor Administrative Agent), references to
Citicorp in Section 10.4 (The Agents as Lenders) and to Citibank in the
definitions of Dollar Equivalent and Base Rate shall be deemed to refer to the
financial institution then acting as the Administrative Agent or one of its
Affiliates if it so designates.
(h) Unless the context requires otherwise, all references to
a "Subsidiary" of the Company shall include GBC and its Subsidiaries.
ARTICLE II
THE FACILITIES
Section 2.1 The Commitments
(a) Revolving Credit Commitments.
(i) Dollar Revolving Commitments. On the terms and subject to
the conditions contained in this Agreement, each Dollar Revolving Lender
severally agrees to make loans in Dollars to the U.S. Borrower (each a "Dollar
Revolving Loan") from time to time on any Business Day during the period from
the date hereof until the Revolving Credit Termination Date in an aggregate
principal amount at any time outstanding for all such loans by such Dollar
Revolving Lender not to exceed such Revolving Lender's Dollar Revolving
Commitment; provided, however, that at no time shall any Dollar Revolving
Lender be obligated to make a Dollar Revolving Loan in excess of such Revolving
Lender's Ratable Portion of the Dollar Revolving Available Credit. Within the
limits of the Dollar Revolving Commitment of each Dollar Revolving Lender and
the Dollar Revolving Available Credit, amounts of Dollar Revolving Loans repaid
may be reborrowed by the U.S. Borrower under this Section 2.1(a)(i).
(ii) Euro Revolving Commitments. On the terms and subject to
the conditions contained in this Agreement, each Euro Revolving Lender
severally agrees to make loans in Euro (each a "Euro Revolving Loan") to the
U.K. Borrower from time to time on any Business Day during the period from the
date hereof until the Revolving Credit Termination Date in an aggregate
principal amount at any time outstanding for all such loans by such Euro
Revolving Lender not to exceed such Revolving Lender's Euro Revolving
Commitment; provided, however, that at no time shall any Euro Revolving Lender
be obligated to make a Euro Revolving Loan in excess of such Euro Revolving
Lender's Ratable Portion of the Euro Revolving Available Credit. Within the
limits of the Euro Revolving Commitment of each Euro Revolving Lender and the
Euro Revolving Available Credit, amounts of Euro Revolving Loans repaid may be
reborrowed by the U.K. Borrower under this Section 2.1(a)(ii).
Notwithstanding the foregoing, in no event shall the
Borrowers be permitted to borrow in excess of the Dollar Equivalent of
$10,000,000 of Revolving Loans and Swing Loans on the Closing Date.
(b) Term Loan Commitments.
(i) U.S. Term Commitments. On the terms and subject to the
conditions contained in this Agreement, each U.S. Term Lender severally agrees
to make a loan (each a "U.S. Term Loan") in Dollars to the U.S. Borrower on the
Closing Date, in an amount equal to such Lender's U.S. Term Commitment. Amounts
of U.S. Term Loans repaid or prepaid may not be reborrowed.
(ii) Sterling Term Commitments. On the terms and subject to
the conditions contained in this Agreement, each Sterling Term Lender severally
agrees to make a loan (each a "Sterling Term Loan") in Sterling to the U.K.
Borrower on the Closing Date, in an amount equal to such Sterling Term Lender's
Sterling Term Commitment. Amounts of Sterling Term Loans repaid or prepaid may
not be reborrowed.
(iii) Euro Term Commitments. On the terms and subject to the
conditions contained in this Agreement, each Euro Term Lender severally agrees
to (x) make a loan to the Dutch Borrower on the Closing Date (the "Euro Term-1
Loans") in Euro in an amount equal to such Lender's Euro Term-1 Commitment and
(y) make a loan to the Dutch Borrower on the Closing Date (the "Euro Term-2
Loans" and together with the Euro Term-1 Loans, the "Euro Term Loans") in Euros
in an amount equal to such Lender's Euro Term-2 Commitment. For the avoidance
of doubt, the Euro Term-1 Loans, on the one hand, and the Euro Term-2 Loans, on
the other hand, may not be separately assigned by any Euro Term Lender and each
Euro Term Lender shall at all times hold Euro Term-1 Loans and Euro Term-2
Loans in proportion to such Lender's Ratable Portion of the Euro Term Facility.
Amounts of Euro Term Loans repaid or prepaid may not be reborrowed.
Section 2.2 Borrowing Procedures
(a) Revolving Credit Borrowings.
(i) Dollar Revolving Facility. Each Dollar Revolving
Borrowing shall be made on notice given by the U.S. Borrower to the
Administrative Agent not later than 2:00 p.m. (New York time) (i) one
Business Day, in the case of a Borrowing of Base Rate Loans and (ii)
three Business Days, in the case of a Borrowing of Eurocurrency Rate
Loans, prior to the date of the proposed Borrowing. Each such notice
shall be in substantially the form of Exhibit C (Form of Notice of
Borrowing) (a "Notice of Borrowing") and shall specify (A) the date of
such proposed Borrowing, (B) the aggregate amount of such proposed
Borrowing, (C) whether any portion of the proposed Borrowing will be
of Base Rate Loans or Eurocurrency Rate Loans, (D) for each
Eurocurrency Rate Loan, the initial Interest Period or Interest
Periods thereof and (E) the Dollar Revolving Available Credit (after
giving effect to the proposed Borrowing). Dollar Revolving Loans shall
be made as Base Rate Loans unless, subject to Section 2.14 (Special
Provisions Governing Eurocurrency Rate Loans), the Notice of Borrowing
specifies that all or a portion thereof shall be Eurocurrency Rate
Loans. Each Borrowing shall be in an aggregate amount of not less than
the Minimum Currency Threshold.
(ii) Euro Revolving Facility. Each Borrowing of Euro
Revolving Loans shall be made on a Notice of Borrowing given by the
U.K. Borrower to the Administrative Agent not later than 2:00 p.m.
(New York time) three Business Days prior to the date of the proposed
Borrowing. Each such Notice of Borrowing shall specify (A) the date of
such proposed Borrowing, (B) the aggregate amount of such proposed
Borrowing, (C) the initial Interest Period or Interest Periods thereof
and (D) the Euro Revolving Available Credit (after giving effect to
the proposed Borrowing). Each Borrowing shall be in an aggregate
amount of not less than the Minimum Currency Threshold.
(b) Term Loan Borrowings. All Term Loan Borrowings shall be
made on the Closing Date upon receipt of a Notice of Borrowing given by the
applicable Borrower to the Administrative Agent not later than 12:00 noon (New
York time) (i) one Business Day prior to the Closing Date, in the case of Base
Rate Loans and (ii) three Business Days prior to the Closing Date, in the case
of a Borrowing of Eurocurrency Rate Loans. The Notice of Borrowing shall
specify (A) the Closing Date, (B) the aggregate amount of such proposed
Borrowing denominated in the currency in which such Term Loan is to be made,
(C) in the case of U.S. Term Loans, whether any portion of the proposed
Borrowings will be Base Rate Loans or Eurocurrency Rate Loans and (D) the
initial Interest Period or Interest Periods for any such Eurocurrency Rate
Loans. U.S. Term Loans shall be made as Base Rate Loans unless, subject to
Section 2.14 (Special Provisions Governing Eurocurrency Rate Loans), the Notice
of Borrowing specifies that all or a portion thereof shall be Eurocurrency Rate
Loans. Each such Term Loan Borrowing shall be in an aggregate amount of not
less than the Minimum Currency Threshold. The Dutch Borrower may request by
written notice to the Administrative Agent that any Euro Term Lender confirm in
writing to the Dutch Borrower that it is a Professional Market Party.
(c) Notice to Lenders. The Administrative Agent shall give to
each applicable Lender prompt notice of the Administrative Agent's receipt of a
Notice of Borrowing and, if Eurocurrency Rate Loans are properly requested in
such Notice of Borrowing, the applicable interest rate determined pursuant to
Section 2.14(a) (Determination of Interest Rate). Each Lender shall, before
11:00 a.m. Local Time on the date of the proposed Borrowing, make available to
the Administrative Agent at its address referred to in Section 11.8 (Notices,
Etc.), in immediately available funds, such Lender's Ratable Portion of such
proposed Borrowing. Upon fulfillment (or due waiver in accordance with Section
11.1 (Amendments, Waivers, Etc.)) (i) on the Closing Date, of the applicable
conditions set forth Section 3.1 (Conditions Precedent to Initial Loans) and
(ii) at any time (including the Closing Date), of the applicable conditions set
forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit),
and after the Administrative Agent's receipt of such funds, the Administrative
Agent shall make such funds available to the applicable Borrower.
(d) Funding by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the date
of any proposed Borrowing that such Lender will not make available to the
Administrative Agent such Lender's Ratable Portion of such Borrowing (or any
portion thereof), the Administrative Agent may assume that such Lender has made
such Ratable Portion available to the Administrative Agent on the date of such
Borrowing in accordance with this Section 2.2 and the Administrative Agent may,
in reliance upon such assumption, make available to the applicable Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such Ratable Portion available to the Administrative Agent,
such Lender and the applicable Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the applicable Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of a Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, the Interbank Rate for the first Business Day and
thereafter at the interest rate applicable at the time to the Loans comprising
such Borrowing. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's Loan
as part of such Borrowing for purposes of this Agreement. If the applicable
Borrower shall repay to the Administrative Agent such corresponding amount,
such payment shall not relieve such Lender of any obligation it may have
hereunder to such Borrower.
(e) Non-Funding Lender. The failure of any Lender to make on
the date specified any Loan or any payment required by it (such Lender, during
the period of such failure, being a "Non-Funding Lender"), including any
payment in respect of its participation in Swing Loans and Letter of Credit
Obligations, shall not relieve any other Lender of its obligations to make such
Loan or payment on such date but no such other Lender shall be responsible for
the failure of any Non-Funding Lender to make a Loan or payment required under
this Agreement. Until a Non-Funding Lender cures its failure to make any
payment required to be made by it, such Non-Funding Lender shall not be
entitled to any portion of the fees payable to such Non-Funding Lender under
Section 2.12(a) (Fees) and no fees shall accrue on any portion of such
Non-Funding Lender's Commitments.
Section 2.3 Swing Loans
(a) On the terms and subject to the conditions contained in
this Agreement, each Swing Loan Lender severally agrees to make loans in
Dollars to the U.S. Borrower (each a "Swing Loan") otherwise available to the
U.S. Borrower under the Dollar Revolving Facility from time to time on any
Business Day during the period from the date hereof until the Revolving Credit
Termination Date in an aggregate principal amount at any time outstanding
(together with the aggregate outstanding principal amount of any other Swing
Loan made by any other Swing Loan Lender) not to exceed the Swing Loan
Sublimit; provided, however, that at no time shall any Swing Loan Lender make a
Swing Loan to the extent that, after giving effect to such Swing Loan, the
principal amount of the Swing Loans outstanding at such time would exceed the
Swing Loan Sublimit or the aggregate Dollar Revolving Outstandings would exceed
the then effective aggregate Dollar Revolving Commitments. Each Swing Loan
shall be a Base Rate Loan (except that, in the sole discretion of any Swing
Loan Lender, a Swing Loan made by such Swing Loan Lender may bear interest at a
rate equal to the rate that would be applicable to a Dollar Revolving Loan that
is a Eurocurrency Rate Loan with an Interest Period of one week; provided that
from and after the time of any funding by Revolving Lenders of their risk
participations in such Swing Loan as provided below, such Swing Loan shall
automatically become a Base Rate Loan) and must be repaid in full within seven
days after its making or, if sooner, upon any Dollar Revolving Borrowing
hereunder. Each Swing Loan shall in any event mature no later than the
Revolving Credit Termination Date. Within the limits set forth in the first
sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed
under this clause (a). Each Borrowing shall be in an aggregate amount of not
less than the $1,000,000.
(b) In order to request a Swing Loan, the U.S. Borrower shall
telecopy (or forward by electronic mail or similar means) to the Administrative
Agent a duly completed request, in substantially the form of Exhibit D (Form of
Swing Loan Request) (each a "Swing Loan Request"), setting forth the name of
the Swing Loan Lender that will make such Swing Loan, the requested amount and
the date of such Swing Loan, to be received by the Administrative Agent and not
later than 1:00 p.m. (New York time) on the day of the proposed Borrowing. The
Administrative Agent shall promptly notify the applicable Swing Loan Lender of
the details of the requested Swing Loan. Subject to the terms of this
Agreement, the specified Swing Loan Lender shall make a Swing Loan in an amount
equal to the amount of the requested Borrowing in Dollars available to the
Administrative Agent not later than 3:00 p.m. (New York time) on the date of
the proposed Borrowing and, in turn, the Administrative Agent shall make such
amounts available to the U.S. Borrower. No Swing Loan Lender shall make any
Swing Loan in the period commencing on the first Business Day after it receives
written notice from the Administrative Agent or any Revolving Lender that one
or more of the conditions precedent contained in Section 3.2 (Conditions
Precedent to Each Loan and Letter of Credit) shall not on such date be
satisfied, and ending when such conditions are satisfied. Subject to the
foregoing, no Swing Loan Lender shall otherwise be required to determine
whether the conditions precedent set forth in Section 3.2 (Conditions Precedent
to Each Loan and Letter of Credit) have been satisfied in connection with the
making of any Swing Loan.
(c) Each Swing Loan Lender shall notify the Administrative
Agent in writing (which writing may be a telecopy) weekly, by no later than
10:00 a.m. (New York time) on the first Business Day of each week, of the
aggregate principal amount of its Swing Loans made by it then outstanding.
(d) Each Swing Loan Lender may demand at any time that each
Dollar Revolving Lender pay to the Administrative Agent, for the account of
such Swing Loan Lender, in the manner provided in clause (e) below, such Dollar
Revolving Lender's Ratable Portion of all or a portion of the Swing Loans then
outstanding, which demand shall be made through the Administrative Agent, shall
be in writing and shall specify the outstanding principal amount of such Swing
Loans demanded to be paid, and, whether or not any such notice shall have been
given by a Swing Lender, on the CAM Exchange Date immediately before the
exchange of participations referred to in Section 9.5 (Collection Allocation
Mechanism), each Dollar Revolving Lender shall immediately acquire, without
recourse or warranty, an undivided participation in each specified Swing Loan
(or, on the CAM Exchange Date, all Swing Loans), and shall make a payment to
the Administrative Agent, in immediately available funds, an amount equal to
such Dollar Revolving Lender's Ratable Portion of such Swing Loan or Swing
Loans pursuant to clause (e) below; provided that no Dollar Revolving Lender
shall be required to make such payment in respect of a Swing Loan if a Swing
Loan Lender made such Swing Loan after receiving notice from the Administrative
Agent or such Lender that a Default has occurred and is continuing.
(e) The Administrative Agent shall forward each notice or
demand referred to in clause (c) or (d) above to each Dollar Revolving Lender
on the day such notice or such demand is received by the Administrative Agent
(and on the CAM Exchange Date, the Administrative Agent shall notify the Dollar
Revolving Lenders) (except that any such notice or demand received by the
Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any
such demand received on a day that is not a Business Day shall not be required
to be forwarded to the Dollar Revolving Lenders by the Administrative Agent
until the next succeeding Business Day), together with a statement prepared by
the Administrative Agent specifying the amount of each such Dollar Revolving
Lender's Ratable Portion of the aggregate principal amount of the Swing Loans
stated to be outstanding in such notice or demanded to be paid pursuant to such
demand, and, notwithstanding whether or not the conditions precedent set forth
in Sections 3.2 (Conditions Precedent to Each Loan and Letter of Credit) and
2.1(a) (Revolving Credit Commitments) shall have been satisfied (which
conditions precedent the Revolving Lenders hereby irrevocably waive), each such
Dollar Revolving Lender shall, without regard to any right of set-off or other
claim of such Lender against the applicable Swing Loan Lender, be
unconditionally obligated to (except as provided above if a Swing Loan Lender
made a Swing Loan after receiving notice from the Administrative Agent or such
Lender that a Default has occurred and is continuing), and shall, before 11:00
a.m. (New York time) on the Business Day next succeeding the date of such
Dollar Revolving Lender's receipt of such notice (other than any notice
delivered under clause (c) above) or demand, make available to the
Administrative Agent, in immediately available funds in Dollars, for the
account of each Swing Loan Lender, the amount specified in such statement. Upon
such payment by a Dollar Revolving Lender, such Dollar Revolving Lender shall,
except on the CAM Exchange Date, be deemed to have made a Dollar Revolving Loan
to the U.S. Borrower. Upon the occurrence of the CAM Exchange Date, each Dollar
Revolving Lender shall immediately acquire, without recourse or warranty, an
undivided participation in each Swing Loan, by payment to the Administrative
Agent, in immediately available funds, an amount equal to such Dollar Revolving
Lender's Ratable Portion of each Swing Loan. The Administrative Agent shall use
such funds to repay the Swing Loans to the applicable Swing Loan Lenders. To
the extent that any Dollar Revolving Lender fails to make such payment
available to the Administrative Agent for the account of the applicable Swing
Loan Lender, the U.S. Borrower shall repay the portion of such Swing Loan equal
to the amount of such non-payment on demand. If all or part of such amount is
not in fact made available by such Dollar Revolving Lender to the applicable
Swing Loan Lender on such date, such Swing Loan Lender shall be entitled to
recover any such unpaid amount on demand from such Dollar Revolving Lender
together with interest accrued from such date at the Interbank Rate for the
first Business Day after such payment was due and thereafter at the rate of
interest then applicable to Base Rate Loans that are Dollar Revolving Loans.
(f) From and after the date on which any Dollar Revolving
Lender is deemed to have made a Dollar Revolving Loan or purchases an undivided
participation interest with respect to any Swing Loan pursuant to clause (e)
above, each Swing Loan Lender shall, subject to Section 9.5 (Collection
Allocation Mechanism), promptly distribute to such Dollar Revolving Lender such
Dollar Revolving Lender's Ratable Portion of all payments of principal of and
interest received by such Swing Loan Lender on account of such Swing Loan
(other than those received from a Dollar Revolving Lender pursuant to clause
(e) above).
(g) Each Swing Loan Lender may resign at any time by giving
written notice thereof to the Administrative Agent and the Borrowers. Such
resignation shall be effective on the eighth day following such notice, and the
resigning Swing Loan Lender shall be discharged from all of its duties and
obligations hereunder on and after such date.
Section 2.4 Letters of Credit
(a) On the terms and subject to the conditions contained in
this Agreement, each Issuer agrees to Issue at the request of the U.S. Borrower
and for the account of the U.S. Borrower (or any Subsidiary) one or more
Letters of Credit denominated in Dollars from time to time on any Business Day
during the period commencing on the Closing Date and ending on the earlier of
the Revolving Credit Termination Date and 30 days prior to the Scheduled
Termination Date; provided, however, that each of the Existing Letters of
Credit shall be deemed to be a Letter of Credit issued hereunder for all
purposes of the Loan Documents and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof; provided, further,
however, that no Issuer shall be under any obligation to Issue (and, upon the
occurrence of any of the events described in clauses (ii), (iii), (iv) and (v)
below, shall not Issue) any Letter of Credit upon the occurrence of any of the
following:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator having binding powers shall purport by its
terms to enjoin or restrain such Issuer from Issuing such Letter of
Credit or any Requirement of Law applicable to such Issuer from any
Governmental Authority with jurisdiction over such Issuer shall
prohibit the Issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such Issuer with respect to
such Letter of Credit any restriction or reserve or capital
requirement (for which such Issuer is not otherwise compensated) not
in effect on the date of this Agreement or result in any unreimbursed
loss, cost or expense that was not applicable, in effect or known to
such Issuer as of the date of this Agreement and, in each case, such
Issuer in good faith deems such restriction, reserve, capital
requirement, unreimbursed loss, cost or expense material to such
Issuer;
(ii) such Issuer shall have received any written notice of
the type described in clause (d) below;
(iii) after giving effect to the Issuance of such Letter of
Credit, the aggregate Dollar Revolving Outstandings would exceed the
aggregate Dollar Revolving Commitments in effect at such time;
(iv) after giving effect to the Issuance of such Letter of
Credit, the sum of (i) the Letter of Credit Undrawn Amounts at such
time and (ii) the Reimbursement Obligations at such time for all
Letters of Credit issued by such Issuer exceeds the Letter of Credit
Sublimit;
(v) such Letter of Credit is requested to be denominated in
any currency other than Dollars; or
(vi) (A) any fees due in connection with a requested Issuance
have not been paid, (B) such Letter of Credit is requested to be
Issued in a form that is not reasonably acceptable to such Issuer or
(C) such Issuer shall not have received, in form and substance
reasonably acceptable to it and, if applicable, duly executed by the
U.S. Borrower, applications, agreements and other documentation
(collectively with any such agreements in effect on the Closing Date
with respect to the Existing Letters of Credit, a "Letter of Credit
Reimbursement Agreement") such Issuer generally employs in the
ordinary course of its business for the Issuance of letters of credit
of the type of such Letter of Credit.
None of the Revolving Lenders (other than the Issuers in their capacity as
such) shall have any obligation to Issue any Letter of Credit.
(b) In no event shall the expiration date of any Letter of
Credit (i) be more than one year after the date of issuance thereof or (ii) be
less than five days prior to the Scheduled Termination Date; provided, however,
that, with the consent of the relevant Issuer, any Letter of Credit with a term
less than or equal to one year may provide for the renewal thereof for
additional periods less than or equal to one year, as long as, (x) on or before
the expiration of each such term and each such period, such Issuer shall have
the option to prevent such renewal by giving notice on or prior to a date to be
agreed between such Issuer and the U.S. Borrower at the time such Letter of
Credit is issued and (y) such Issuer shall not permit any such renewal (A) to
extend the expiration date of any Letter of Credit beyond the date set forth in
clause (ii) above or (B) if prior to the date that is two Business Days prior
to the date which such Issuer would be required to provide notice in order to
prevent such Letter of Credit from being extended, such Issuer shall have
received notice from any Loan Party, the Administrative Agent or any Dollar
Revolving Lender that one or more of the conditions precedent set forth in
Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) is not met
unless such Issuer has subsequently received notice prior to the date on which
such notice of non-renewal is required to be provided that such conditions
precedent are satisfied.
(c) In connection with the Issuance of each Letter of Credit,
the U.S. Borrower shall give the relevant Issuer and the Administrative Agent
at least two Business Days' prior written notice, in substantially the form of
Exhibit E (Form of Letter of Credit Request) (or in such other written or
electronic form as is acceptable to the Issuer), of the requested Issuance of
such Letter of Credit (a "Letter of Credit Request"). Such notice shall be
irrevocable and shall specify the face amount of the Letter of Credit requested
(which shall not be less than $50,000 or such lesser amount acceptable to such
Issuer), the date of Issuance of such requested Letter of Credit, the date on
which such Letter of Credit is to expire (which date shall be a Business Day)
and, in the case of an Issuance, the Person for whose benefit the requested
Letter of Credit is to be issued. Such notice, to be effective, must be
received by the relevant Issuer and the Administrative Agent not later than
1:00 p.m. (New York time) on the second Business Day prior to the requested
Issuance of such Letter of Credit.
(d) Subject to the satisfaction of the conditions set forth
in this Section 2.4, the relevant Issuer shall, on the requested date, Issue a
Letter of Credit on behalf of the U.S. Borrower in accordance with such
Issuer's usual and customary business practices. No Issuer shall Issue any
Letter of Credit in the period commencing on the first Business Day after it
receives written notice from any Dollar Revolving Lender that one or more of
the conditions precedent contained in Section 3.2 (Conditions Precedent to Each
Loan and Letter of Credit) are not on such date satisfied or duly waived and
ending when such conditions are satisfied or duly waived. No Issuer shall
otherwise be required to determine that, or take notice whether, the conditions
precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and
Letter of Credit) have been satisfied in connection with the Issuance of any
Letter of Credit.
(e) In the event of any conflict between the terms of any
Letter of Credit Reimbursement Agreement and this Agreement, the terms of this
Agreement shall govern.
(f) Each Issuer shall:
(i) give the Administrative Agent written notice (or
telephonic notice confirmed promptly thereafter in writing), which
writing may be a telecopy or electronic mail, of the Issuance of any
Letter of Credit by it, of all drawings under any Letter of Credit
Issued by it and of the payment (or the failure to pay when due) by
the U.S. Borrower of any Reimbursement Obligation when due (which
notice the Administrative Agent shall promptly transmit by telecopy,
electronic mail or similar transmission to each Dollar Revolving
Lender);
(ii) upon the request of any Dollar Revolving Lender, furnish
to such Dollar Revolving Lender copies of any Letter of Credit
Reimbursement Agreement to which such Issuer is a party and such other
documentation as may reasonably be requested by such Dollar Revolving
Lender;
(iii) no later than 10 Business Days following the last day
of each calendar month, provide to the Administrative Agent (and the
Administrative Agent shall provide a copy to each Dollar Revolving
Lender requesting the same) and the Company a schedule for Letters of
Credit issued by it, in form and substance reasonably satisfactory to
the Administrative Agent, setting forth the aggregate Letter of Credit
Obligations, in each case outstanding at the end of each month and any
information requested by the Company or the Administrative Agent
relating thereto; and
(iv) give the Company and the Administrative Agent prompt
written notice of all drawings under any Letter of Credit Issued by
it.
(g) Immediately upon the issuance of a Letter of Credit in
accordance with the terms and conditions of this Agreement, the relevant Issuer
shall be deemed to have sold and transferred to each Dollar Revolving Lender
and each Dollar Revolving Lender shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuer, without
recourse or warranty, an undivided interest and participation, to the extent of
such Dollar Revolving Lender's Ratable Portion of the Dollar Revolving
Commitments in such Letter of Credit and the obligations of the U.S. Borrower
with respect thereto (including all Letter of Credit Obligations with respect
thereto) and any security therefor and guaranty pertaining thereto.
(h) The U.S. Borrower agrees to pay to any Issuer the amount
of all Reimbursement Obligations owing to such Issuer under any Letter of
Credit no later than the date that is the next succeeding Business Day after
the U.S. Borrower receives written notice from such Issuer that payment has
been made under such Letter of Credit (the "Reimbursement Date"), irrespective
of any claim, set-off, defense or other right that the U.S. Borrower may have
at any time against such Issuer or any other Person. In the event that such
Issuer makes any payment under any Letter of Credit then, until such time as
the U.S. Borrower shall have repaid such amount to such Issuer pursuant to this
clause (h) or any such payment by the U.S. Borrower is rescinded or set aside
for any reason, such Reimbursement Obligation shall be payable on demand
(except for the one Business Day grace period referred to above) with interest
thereon computed (i) from the date on which such Reimbursement Obligation arose
to the Reimbursement Date, at the rate of interest applicable during such
period to Base Rate Loans that are Dollar Revolving Loans and (ii) from the
Reimbursement Date until the date of repayment in full, at the rate of interest
applicable during such period to past due Base Rate Loans that are Dollar
Revolving Loans, and such Issuer shall promptly notify the Administrative
Agent, which shall promptly notify each Dollar Revolving Lender of such
failure, and each Dollar Revolving Lender shall promptly and unconditionally
pay to the Administrative Agent for the account of such Issuer the amount of
such Dollar Revolving Lender's Ratable Portion of such payment in immediately
available funds in Dollars. If the Administrative Agent so notifies such Dollar
Revolving Lender prior to 11:00 a.m. (New York time) on any Business Day, such
Dollar Revolving Lender shall make available to the Administrative Agent for
the account of such Issuer such Dollar Revolving Lender's Ratable Portion of
the amount of such payment on such Business Day in immediately available funds.
Upon such payment by a Dollar Revolving Lender, such Dollar Revolving Lender
shall, except on the CAM Exchange Date, whether or not the conditions precedent
set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of
Credit) shall have been satisfied (which conditions precedent the Dollar
Revolving Lenders hereby irrevocably waive), be deemed to have made a Base Rate
Loan that is a Dollar Revolving Loan to the U.S. Borrower in the principal
amount of such payment. Whenever any such Issuer receives from the U.S.
Borrower (whether directly or indirectly through the Administrative Agent) a
payment of a Reimbursement Obligation as to which the Administrative Agent has
received for the account of such Issuer any payment from a Dollar Revolving
Lender pursuant to this clause (h), such Issuer shall, subject to Section 9.5
(Collection Allocation Mechanism), pay over to the Administrative Agent any
amount received in excess of such Reimbursement Obligation and, upon receipt of
such amount, the Administrative Agent shall promptly pay over to each Dollar
Revolving Lender, in immediately available funds, an amount equal to such
Dollar Revolving Lender's Ratable Portion of the amount of such payment
adjusted, if necessary, to reflect the respective amounts all Dollar Revolving
Lenders have paid in respect of such Reimbursement Obligation.
(i) If and to the extent a Dollar Revolving Lender shall not
have so made its Ratable Portion of the amount of the payment required by
clause (h) above available to the Administrative Agent for the account of such
Issuer, such Dollar Revolving Lender agrees to pay to the Administrative Agent
for the account of such Issuer forthwith on demand any such unpaid amount
together with interest thereon, for the first Business Day after payment was
first due at the Interbank Rate and, thereafter, until such amount is repaid to
the Administrative Agent for the account of such Issuer, at a rate per annum
equal to the rate applicable to Base Rate Loans under the Dollar Revolving
Facility.
(j) The U.S. Borrower's obligation to pay each Reimbursement
Obligation and the obligations of the Dollar Revolving Lenders to make payments
to the Administrative Agent for the account of the applicable Issuer 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, including the occurrence of any Default, and irrespective of any of
the following:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, set-off, defense or other
right that the U.S. Borrower, any other party guaranteeing, or
otherwise obligated with, the U.S. Borrower, any Subsidiary or other
Affiliate thereof or any other Person may at any time have against the
beneficiary under any Letter of Credit, any Issuer, the Administrative
Agent or any Lender or any other Person, whether in connection with
this Agreement, any other Loan Document or any other related or
unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by an Issuer 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; and
(vi) any other act or omission to act or delay of any kind of
an Issuer, the Lenders, the Administrative Agent or any other Person
or any other event or circumstance whatsoever, whether similar to any
of the foregoing, that might, but for the provisions of this Section
2.4, constitute a legal or equitable discharge of the U.S. Borrower's
obligations hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not result in any liability of
such Issuer to any Loan Party or any Lender. In determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof, such Issuer may, if it acts with the absence of gross negligence or
willful misconduct, accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of
Credit, such Issuer may, if it acts with the absence of gross negligence or
willful misconduct, rely exclusively on the documents presented to it under
such Letter of Credit as to any and all matters set forth therein, including
reliance on the amount of any draft presented under such Letter of Credit,
whether or not the amount due to the beneficiary thereunder equals the amount
of such draft and whether or not any document presented pursuant to such Letter
of Credit proves to be insufficient in any respect, if such document on its
face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever.
(k) Matters Relating to Letters of Credit on CAM Exchange
Date.
(i) On the CAM Exchange Date immediately prior to the
exchange referred to in Section 9.5 (Collection Allocation Mechanism),
each Dollar Revolving Lender shall promptly pay over to the
Administrative Agent, in immediately available funds, an amount in
Dollars equal to such Lender's Ratable Portion of the Letter of Credit
Undrawn Amount, together with interest thereon from the CAM Exchange
Date to the date on which such amounts shall be paid to the
Administrative Agent, for the first Business Day after payment was
first due at the Interbank Rate and, thereafter, until such amount is
paid to the Administrative Agent, at a rate per annum equal to the
rate applicable to Base Rate Loans under the Dollar Revolving
Facility. The Administrative Agent shall establish an account (a
"Reserve Account") (in which each Lender shall have an interest as
provided herein equal to its Ratable Portion (after giving effect to
the CAM Exchange) of the funds on deposit in the Reserve Account) in
which it shall deposit all funds received by it with respect to the
Letter of Credit Undrawn Amount pursuant to the preceding sentence.
The Administrative Agent shall have sole dominion and control over the
Reserve Account, and the amounts deposited in the Reserve Account
shall be held in the Reserve Account until withdrawn as provided in
subparagraph (ii), (iii) or (iv) below. The Administrative Agent shall
maintain records enabling it to determine the amounts paid over to it
and deposited in the Reserve Account in respect of each Letter of
Credit and the amounts on deposit in respect of each Letter of Credit
attributable to each Lender's Ratable Portion. The amounts held in the
Reserve Account shall be held as a reserve against the Letter of
Credit Undrawn Amount and shall not constitute Loans to or give rise
to any claim of or against any Loan Party and shall not give rise to
any additional obligation on the part of any Loan Party to pay
interest to the Lenders, it being agreed that fees shall continue to
accrue on all outstanding Letters of Credit as otherwise provided in
this Section 2.4.
(ii) In the event that after the CAM Exchange Date any
drawing shall be made in respect of a Letter of Credit, (i) the
Administrative Agent shall, at the request of the applicable Issuer,
withdraw from the Reserve Account any remaining funds on deposit and
deliver such amounts to such Issuer in complete satisfaction of the
reimbursement obligations of the Dollar Revolving Lenders under clause
(h) above (but not of the U.S. Borrower). In the event that any Dollar
Revolving Lender shall default on its obligation to pay over any
amount to the Administrative Agent as provided in subparagraph (i) of
this clause (k), the applicable Issuer shall have a claim against such
Lender to the same extent as if such Lender had defaulted on its
obligations under clause (i) above, but shall have no claim against
any other Lender in respect of such defaulted amount, notwithstanding
the CAM Exchange. Each other Lender shall have a claim against such
Defaulting Lender for any damages sustained by it as a result of such
default, including, in the event that such Letter of Credit shall
expire undrawn, its CAM Percentage of the defaulted amount.
(iii) In the event that after the CAM Exchange Date any
Letter of Credit shall expire undrawn, the Administrative Agent shall
distribute from the Reserve Account to the Lenders their Ratable
Portions of any amount remaining on deposit therein.
(iv) Pending any withdrawal of any amount from the Reserve
Account as contemplated above, the Administrative Agent will, in its
sole discretion, invest such amounts in cash equivalents as may be
reasonably selected by it (it being understood that the Administrative
Agent shall have no liability for any loss resulting from the sale of
any cash equivalent prior to maturity for purposes of making any
payment required above).
Section 2.5 Reduction and Termination of the Commitments
(a) The U.S. Borrower or the U.K. Borrower may, upon at least
three Business Days' prior notice to the Administrative Agent and without
premium or penalty (but subject to Section 2.14 (Special Provisions Governing
Eurocurrency Rate Loans)), terminate in whole or reduce in part the unused
portions of the respective Revolving Credit Commitments of the Revolving
Lenders under the Dollar Revolving Facility or the Euro Revolving Facility or,
prior to the Closing Date, the unused portions the Term Loan Commitments of the
Term Loan Lenders; provided, however, that each partial reduction shall be in
an aggregate amount of not less than the Minimum Currency Threshold. Any unused
Term Loan Commitment shall terminate at 5:00 p.m. (New York time) on the
Closing Date.
(b) The then current Revolving Credit Commitments shall be
reduced ratably among the Revolving Credit Facilities on each date on which a
prepayment of Revolving Loans or Swing Loans is made pursuant to Section 2.9(a)
(Mandatory Prepayments) or would be required to be made had the outstanding
Revolving Loans and Swing Loans equaled the Revolving Credit Commitments then
in effect, in each case, in the amount of such prepayment (or deemed
prepayment) (and the Revolving Credit Commitment of each Revolving Lender shall
be reduced by its Ratable Portion of such amount).
Section 2.6 Repayment of Loans
(a) The U.S. Borrower promises to repay in Dollars the entire
unpaid principal amount of the Dollar Revolving Loans and the Swing Loans on
the Revolving Credit Termination Date. The U.K. Borrower promises to repay in
Euros the entire unpaid principal amount of the Euro Revolving Loans on the
Revolving Credit Termination Date.
(b) The U.S. Borrower promises to repay the U.S. Term Loans
at the dates and in the amounts set forth below:
- --------------------------------------- --------------------------------------
Date Amount
- --------------------------------------- --------------------------------------
12/31/05 $1,000,000
- --------------------------------------- --------------------------------------
03/31/06 $1,000,000
- --------------------------------------- --------------------------------------
06/30/06 $1,000,000
- --------------------------------------- --------------------------------------
09/30/06 $1,000,000
- --------------------------------------- --------------------------------------
12/31/06 $1,000,000
- --------------------------------------- --------------------------------------
03/31/07 $1,000,000
- --------------------------------------- --------------------------------------
06/30/07 $1,000,000
- --------------------------------------- --------------------------------------
09/30/07 $1,000,000
- --------------------------------------- --------------------------------------
12/31/07 $1,000,000
- --------------------------------------- --------------------------------------
03/31/08 $1,000,000
- --------------------------------------- --------------------------------------
06/30/08 $1,000,000
- --------------------------------------- --------------------------------------
09/30/08 $1,000,000
- --------------------------------------- --------------------------------------
12/31/08 $1,000,000
- --------------------------------------- --------------------------------------
03/31/09 $1,000,000
- --------------------------------------- --------------------------------------
06/30/09 $1,000,000
- --------------------------------------- --------------------------------------
09/30/09 $1,000,000
- --------------------------------------- --------------------------------------
12/31/09 $1,000,000
- --------------------------------------- --------------------------------------
03/31/10 $1,000,000
- --------------------------------------- --------------------------------------
06/30/10 $1,000,000
- --------------------------------------- --------------------------------------
09/30/10 $1,000,000
- --------------------------------------- --------------------------------------
12/31/10 $1,000,000
- --------------------------------------- --------------------------------------
03/31/11 $1,000,000
- --------------------------------------- --------------------------------------
06/30/11 $1,000,000
- --------------------------------------- --------------------------------------
09/30/11 $1,000,000
- --------------------------------------- --------------------------------------
12/31/11 $1,000,000
- --------------------------------------- --------------------------------------
03/31/12 $1,000,000
- --------------------------------------- --------------------------------------
06/30/12 $1,000,000
- --------------------------------------- --------------------------------------
U.S. Term Loan Maturity Date $373,000,000
- --------------------------------------- --------------------------------------
provided, however, that the U.S. Borrower shall repay the entire unpaid
principal amount of the U.S. Term Loans on the U.S. Term Loan Maturity Date.
(c) The U.K. Borrower promises to repay in Sterling the
Sterling Term Loans at the dates and in the amounts set forth below:
- ------------------------------------- ------------------------------------------
Date Amount
- ------------------------------------- ------------------------------------------
12/31/05 (pound)1,589,319.77
- ------------------------------------- ------------------------------------------
03/31/06 (pound)1,589,319.77
- ------------------------------------- ------------------------------------------
06/30/06 (pound)1,589,319.77
- ------------------------------------- ------------------------------------------
09/30/06 (pound)1,589,319.77
- ------------------------------------- ------------------------------------------
12/31/06 (pound)1,589,319.77
- ------------------------------------- ------------------------------------------
03/31/07 (pound)1,589,319.77
- ------------------------------------- ------------------------------------------
06/30/07 (pound)1,589,319.77
- ------------------------------------- ------------------------------------------
09/30/07 (pound)1,589,319.77
- ------------------------------------- ------------------------------------------
12/31/07 (pound)3,178,639.54
- ------------------------------------- ------------------------------------------
03/31/08 (pound)3,178,639.54
- ------------------------------------- ------------------------------------------
06/30/08 (pound)3,178,639.54
- ------------------------------------- ------------------------------------------
09/30/08 (pound)3,178,639.54
- ------------------------------------- ------------------------------------------
12/31/08 (pound)4,370,629.37
- ------------------------------------- ------------------------------------------
03/31/09 (pound)4,370,629.37
- ------------------------------------- ------------------------------------------
06/30/09 (pound)4,370,629.37
- ------------------------------------- ------------------------------------------
09/30/09 (pound)4,370,629.37
- ------------------------------------- ------------------------------------------
12/31/09 (pound)5,165,289.26
- ------------------------------------- ------------------------------------------
03/31/10 (pound)5,165,289.26
- ------------------------------------- ------------------------------------------
06/30/10 (pound)5,165,289.26
- ------------------------------------- ------------------------------------------
Term Loan A Maturity Date (pound)5,165,289.27
- ------------------------------------- ------------------------------------------
provided, however, that the U.K. Borrower shall repay the entire unpaid
principal amount of the Sterling Term Loans on the Term Loan A Maturity Date.
(d) The Dutch Borrower promises to repay in Euros the Euro
Term Loans at the dates and in the amounts set forth below:
- ------------------------------------- ------------------------------------------
Date Amount
- ------------------------------------- ------------------------------------------
12/31/05 (euro)1,706,210.61
- ------------------------------------- ------------------------------------------
03/31/06 (euro)1,706,210.61
- ------------------------------------- ------------------------------------------
06/30/06 (euro)1,706,210.61
- ------------------------------------- ------------------------------------------
09/30/06 (euro)1,706,210.61
- ------------------------------------- ------------------------------------------
12/31/06 (euro)1,706,210.61
- ------------------------------------- ------------------------------------------
03/31/07 (euro)1,706,210.61
- ------------------------------------- ------------------------------------------
06/30/07 (euro)1,706,210.61
- ------------------------------------- ------------------------------------------
09/30/07 (euro)1,706,210.61
- ------------------------------------- ------------------------------------------
12/31/07 (euro)3,412,421.21
- ------------------------------------- ------------------------------------------
03/31/08 (euro)3,412,421.21
- ------------------------------------- ------------------------------------------
06/30/08 (euro)3,412,421.21
- ------------------------------------- ------------------------------------------
09/30/08 (euro)3,412,421.21
- ------------------------------------- ------------------------------------------
12/31/08 (euro)4,692,079.17
- ------------------------------------- ------------------------------------------
03/31/09 (euro)4,692,079.17
- ------------------------------------- ------------------------------------------
06/30/09 (euro)4,692,079.17
- ------------------------------------- ------------------------------------------
09/30/09 (euro)4,692,079.17
- ------------------------------------- ------------------------------------------
12/31/09 (euro)5,545,184.47
- ------------------------------------- ------------------------------------------
03/31/10 (euro)5,545,184.47
- ------------------------------------- ------------------------------------------
06/30/10 (euro)5,545,184.47
- ------------------------------------- ------------------------------------------
Term Loan A Maturity Date (euro)5,545,184.45
- ------------------------------------- ------------------------------------------
provided, however, that the Dutch Borrower shall repay the entire unpaid
principal amount of the Euro Term Loans on the Term Loan A Maturity Date;
provided, further, that any prepayment pursuant to this clause (d) shall first
be applied to the prepayment of the Euro Term-2 Loans prior to being applied to
any prepayment of the Euro Term-1 Loans.
Section 2.7 Promissory Notes
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing Indebtedness of each Borrower to
such Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(b) (i) The Administrative Agent, acting as agent of the
Borrowers solely for this purpose and for tax purposes, shall establish and
maintain at its address referred to in Section 11.8 (Notices, Etc.) a record of
ownership (the "Register") in which the Administrative Agent agrees to register
by book entry the Administrative Agent's, each Lender's and each Issuer's
interest in each Loan, each Letter of Credit and each Reimbursement Obligation,
and in the right to receive any payments hereunder and any assignment of any
such interest or rights. In addition, the Administrative Agent, acting as agent
of the Borrowers solely for this purpose and for tax purposes, shall establish
and maintain accounts in the Register in accordance with its usual practice in
which it shall record (i) the names and addresses of the Lenders and the
Issuers, (ii) the Commitments of each Lender from time to time, (iii) the
amount of each Loan made and, if a Eurocurrency Rate Loan, the Interest Period
applicable thereto, (iv) the amount of any principal or interest due and
payable, and paid, by each Borrower to, or for the account of, each Lender
hereunder, (v) the amount that is due and payable, and paid, by each Borrower
to, or for the account of, each Issuer, including the amount of Letter Credit
Obligations (specifying the amount of any Reimbursement Obligations) due and
payable to an Issuer, and (vi) the amount of any sum received by the
Administrative Agent hereunder from each Borrower, whether such sum constitutes
principal or interest (and the type of Loan to which it applies), fees,
expenses or other amounts due under the Loan Documents and each Lender's and
Issuer's, as the case may be, share thereof, if applicable.
(ii) Notwithstanding anything to the contrary contained in
this Agreement, the Loans (including the Notes in respect of such Loans) and
the Reimbursement Obligations are registered obligations and the right, title,
and interest of the Lenders and the Issuers and their assignees in and to such
Loans or Reimbursement Obligations, as the case may be, shall be transferable
only upon notation of such transfer in the Register and in compliance with
Section 11.2 (Assignments and Participations). In no event is any Note to be
considered a bearer instrument or bearer obligation. This Section 2.7(b) and
Section 11.2 (Assignments and Participations) shall be construed so that the
Loans and Reimbursement Obligations are at all times maintained in "registered
form" within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the
Code and any related regulations (or any successor provisions of the Code or
such regulations).
(c) The entries made in the Register and in the accounts
therein maintained pursuant to clauses (a) and (b) above shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided, however, 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 obligations of each Borrower to repay the Loans in accordance with their
terms. In addition, the Loan Parties, the Administrative Agent, the Lenders and
the Issuers shall treat each Person whose name is recorded in the Register as a
Lender or as an Issuer, as applicable, for all purposes of this Agreement.
Information contained in the Register with respect to any Lender or Issuer
shall be available for inspection by the Borrowers, the Administrative Agent,
such Lender or such Issuer at any reasonable time and from time to time upon
reasonable prior notice.
(d) The U.K. Borrower and the Dutch Borrower will execute and
deliver a Note or Notes into the Administrative Agent which shall be issued
outside of Australia in respect of the Loans to such Borrower by each Lender,
substantially in the forms of Exhibit B-1 (Form of Revolving Credit Note) or
Exhibit B-2 (Form of Term Note), respectively. Notwithstanding any other
provision of the Agreement, in the event that any Lender requests that any
Borrower execute and deliver a promissory note or notes payable to such Lender
in order to evidence the Indebtedness owing to such Lender by such Borrower
hereunder, such Borrower shall promptly execute and deliver a Note or Notes (in
the case of a Note executed by the U.K. Borrower or the Dutch Borrower, such
Notes to be issued outside of Australia) to such Lender evidencing any Term
Loans and Revolving Loans, as the case may be, of such Lender to such Borrower,
substantially in the forms of Exhibit B-1 (Form of Revolving Credit Note) or
Exhibit B-2 (Form of Term Note), respectively; provided, that the principal
amount of the applicable Notes issued to the Administrative Agent in respect of
the Loans of such Lender shall be automatically appropriately reduced in
connection with the delivery to a Lender of Notes in respect of such Lender's
Loans to the U.K. Borrower or the Dutch Borrower.
(e) If requested by any Swing Loan Lender, the U.S. Borrower
will execute and deliver a Swing Loan Note in respect of the Swing Loans to the
U.S. Borrower by such Swing Loan Lender.
Section 2.8 Optional Prepayments
(a) Revolving Loans. The U.S. Borrower and the U.K. Borrower
may prepay without premium or penalty the outstanding principal amount of any
or all of the Dollar Revolving Loans, Euro Revolving Loans and Swing Loans, as
applicable, in whole or in part at any time in the applicable currencies;
provided, however, that if any prepayment of any Eurocurrency Rate Loan is made
by a Borrower other than on the last day of an Interest Period for such Loan,
such Borrower shall also pay all interest and fees accrued to the date of such
prepayment on the principal amount prepaid and any amount owing pursuant to
Section 2.14(d) (Special Provisions Governing Eurocurrency Rate Loans);
provided, further, that each partial prepayment shall be an aggregate principal
amount not less than the applicable Minimum Currency Threshold. Upon the giving
of such notice of prepayment, the principal amount of Revolving Loans specified
to be prepaid shall become due and payable on the date specified for such
prepayment.
(b) Term Loans. Any Borrower may, upon at least three
Business Days' prior notice to the Administrative Agent stating the proposed
date and aggregate principal amount of the prepayment, prepay without premium
or penalty in the applicable currency the outstanding principal amount of the
U.S. Term Loans, Sterling Term Loans and the Euro Term Loans, in whole or in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that if any prepayment of any
Eurocurrency Rate Loan is made by a Borrower other than on the last day of an
Interest Period for such Loan, such Borrower shall also pay any amounts owing
pursuant to Section 2.14(d) (Special Provisions Governing Eurocurrency Rate
Loans); provided, further, that each partial prepayment shall be in an
aggregate amount not less than the Minimum Currency Threshold and that any such
partial prepayment shall be applied to reduce the remaining installments of the
outstanding principal amount of the Term Loans as directed by the Company; and
provided, further, that any optional prepayment of Euro Term Loans shall first
be applied to prepay the Euro Term-2 Loans prior to being applied to any
prepayment of the Euro Term-1 Loans. Upon the giving of such notice of
prepayment, the principal amount of the Term Loans specified to be prepaid
shall become due and payable on the date specified for such prepayment.
Section 2.9 Mandatory Prepayments
(a) Net Cash Proceeds. The Borrowers shall immediately prepay
the Loans in accordance with clause (c) below upon receipt by any Borrower or
any of its Subsidiaries of Net Cash Proceeds arising from:
(i) subject to clause (c) below, any Asset Sale (other than
an Asset Sale permitted by clause (a), (c), (d), (e), (h), (k), (l),
(m), (n) or (o) of Section 8.4 (Asset Sales)), or Property Loss Event,
in an amount equal to 100% of such Net Cash Proceeds in excess of the
Dollar Equivalent of $5,000,000 in the aggregate in any Fiscal Year;
(ii) any Debt Issuance (x) under clause (i) of the definition
thereof in an amount equal to 100% of such Net Cash Proceeds and (y)
under clause (ii) of the definition thereof in an amount equal to 50%
of such Net Cash Proceeds; and
(iii) any Equity Issuance (other than an Excluded Issuance),
in an amount equal to 50% of such Net Cash Proceeds.
(b) Excess Cash Flow. The Borrowers shall prepay the Term
Loans in accordance with clause (c) below, within 100 days after the last day
of each Fiscal Year commencing with the Fiscal Year ending December 31, 2006,
in an amount equal to 50% of Excess Cash Flow for the previous Fiscal Year;
provided, however, that, if the Leverage Ratio as of the last day of such
Fiscal Year is less than (i) 3.25 to 1, then such percentage shall be reduced
to 25% or (ii) 2.75 to 1.0, then such percentage shall be further reduced to
0%; provided, further, that the Borrowers' obligations to prepay Term Loans
pursuant to this clause (b) shall be reduced in an amount equal to the
aggregate Dollar Equivalent amount of Term Loans optionally prepaid by the
Borrowers pursuant to Section 2.8(b) (Optional Prepayments) during such Fiscal
Year.
(c) Application of Payments. Subject to the provisions of
Section 2.13(g) (Payments and Computations), any prepayments made by the
Borrowers required to be applied in accordance with this clause (c) shall be
applied as follows: first, to repay the outstanding principal balance of the
Term Loans (and with respect to any Facility, pro rata to remaining scheduled
amortization thereunder), on a pro rata basis based on the then outstanding
Dollar Equivalent amount among the U.S. Term Loans, the Sterling Term Loans and
the Euro Term Loans until such Term Loans shall have been prepaid in full;
second, to repay the outstanding principal balance of any Swing Loan until such
Swing Loan shall have been repaid in full; third, to repay the outstanding
principal balance of the Revolving Loans until such Revolving Loans shall have
been paid in full; and fourth, to provide cash collateral for any Letter of
Credit Obligations in an amount equal to 105% of such Letter of Credit
Obligations in the manner set forth in Section 9.3 (Actions in Respect of
Letters of Credit) until all such Letter of Credit Obligations have been fully
cash collateralized in the manner set forth therein; provided, however, that
(A) upon a Deferred Prepayment Event, the prepayments required under clauses
first through fourth above shall be reduced by the Deferred Prepayment Amount
in respect of such Deferred Prepayment Event and (B) on the Deferred Prepayment
Date, the remaining balance of such Deferred Prepayment Amount shall be applied
in accordance with clauses first through fourth above.
(d) Overadvance. If at any time, (i) the aggregate principal
amount of Dollar Revolving Outstandings exceeds the aggregate Dollar Revolving
Commitments at such time, the U.S. Borrower shall forthwith prepay the Swing
Loans first and then the Dollar Revolving Loans then outstanding in an amount
equal to such excess or (ii) the Euro Revolving Outstandings exceeds the
aggregate Euro Revolving Commitments at such time, the U.K. Borrower shall
forthwith prepay the Euro Revolving Loans then outstanding in an amount equal
to such excess; provided, however, that in the case of this clause (ii), to the
extent such excess results solely by reason of a change in exchange rates, the
U.K. Borrower shall not be required to make such prepayment unless the amount
of such excess causes the Euro Revolving Outstandings to exceed 105% of the
Euro Revolving Commitments. If any such excess remains after repayment in full
of the aggregate outstanding Swing Loans and Dollar Revolving Loans, the U.S.
Borrower shall provide cash collateral for the Letter of Credit Obligations in
the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit)
in an amount equal to 105% of such excess.
(e) Notwithstanding clause (c) above, if the amount of any
prepayment of Loans required under this Section 2.9 is required to be applied
to prepay any Loans (other than U.S. Term Loans and Dollar Revolving Loans that
are Base Rate Loans) (an "Excess Amount"), only the portion of the amount of
such prepayment as is equal to the amount required to be applied to prepay such
Base Rate Loans shall be immediately prepaid and, at the election of the
Company, the Excess Amount shall be either (A) deposited in an escrow account
on terms reasonably satisfactory to the Administrative Agent and applied to the
prepayment of Eurocurrency Loans on the last day of the then next-expiring
Interest Period for each applicable class of Eurocurrency Loans; provided that
(i) interest in respect of such Excess Amount shall continue to accrue thereon
at the rate provided hereunder for the Loans which such Excess Amount is
intended to repay until such Excess Amount shall have been used in full to
repay such Loans and (ii) at any time while an Event of Default has occurred
and is continuing, the Administrative Agent may, and upon written direction
from the Requisite Facility Lenders under the applicable Facility shall, apply
any or all proceeds then on deposit to the payment of such Loans under the
applicable Facility in an amount equal to such Excess Amount or (B) prepaid
immediately, together with any amounts owing to the Lenders under Section 2.14
(Special Provisions Governing Eurocurrency Rate Loans).
Section 2.10 Interest
(a) Rate of Interest.
(i) Subject to the terms and conditions set forth in this
Agreement, at the option of the U.S. Borrower, all Dollar Revolving Loans and
U.S. Term Loans shall be made as Base Rate Loans or Eurocurrency Rate Loans;
provided, however, that all such Loans shall be made as Base Rate Loans unless,
subject to Section 2.14 (Special Provisions Governing Eurocurrency Rate Loans),
the Notice of Borrowing specifies that all or a \portion thereof shall be
Eurocurrency Rate Loans. All Swing Loans shall, except as provided in Section
2.3 (Swing Loans), be made as Base Rate Loans, and all Euro Revolving Loans,
Sterling Term Loans and Euro Term Loans shall be made as Eurocurrency Rate
Loans.
(ii) All Loans and the outstanding amount of all other
Obligations shall bear interest, in the case of Loans, on the unpaid principal
amount thereof from the date such Loans are made and, in the case of such other
Obligations, from the date such other Obligations are due and payable until, in
all cases, paid in full, except as otherwise provided in clause (c) below, as
follows:
(A) if a Base Rate Loan, at a rate per annum equal to the sum
of (A) the Base Rate as in effect from time to time and (B) the
Applicable Margin;
(B) if a Eurocurrency Rate Loan, at a rate per annum equal to
the sum of (x) the Eurocurrency Rate determined for the applicable
Interest Period, (y) the Applicable Margin in effect from time to time
during such Interest Period and (z) in the case of any such Loan made
by a Lender from an office located in the United Kingdom, Mandatory
Costs;
(C) for all other Obligations, at a rate per annum equal to
the sum of (x) the Base Rate as in effect from time to time and (y)
the Applicable Margin for U.S. Term Loans.
(b) Interest Payments. (i) Interest accrued on each Base Rate
Loan (other than Swing Loans) shall be payable in arrears (A) on the first
Business Day of each calendar quarter, commencing on the first such day
following the making of such Base Rate Loan, (B) in the case of Base Rate Loans
that are Term Loans, upon the payment or prepayment thereof in full or in part
and (C) if not previously paid in full, at maturity (whether by acceleration or
otherwise) of such Base Rate Loan, (ii) interest accrued on Swing Loans shall
be payable in arrears on the first Business Day of the immediately succeeding
calendar quarter, (iii) interest accrued on each Eurocurrency Rate Loan shall
be payable in arrears (A) on the last day of each Interest Period applicable to
such Loan and, if such Interest Period has a duration of more than three
months, on each date during such Interest Period occurring every three months
from the first day of such Interest Period, (B) upon the payment or prepayment
thereof in full or in part and (C) if not previously paid in full, at maturity
(whether by acceleration or otherwise) of such Eurocurrency Rate Loan, and (iv)
interest accrued on the amount of all other Obligations shall be payable
promptly on demand from and after the time such Obligation becomes due and
payable (whether by acceleration or otherwise).
(c) Default Interest. Notwithstanding the rates of interest
specified in clause (a) above or elsewhere herein, during the continuance of an
Event of Default arising under clause (a) or (b) of Section 9.1 (Events of
Default), the past due amount of principal and interest of all Loans and the
amount of all other Obligations then due and payable shall bear interest at a
rate (the "Default Rate") that is two percent per annum in excess of the rate
of interest applicable to such Loans or other Obligations from time to time.
Such interest shall be payable on the date that would otherwise be applicable
to such interest pursuant to clause (b) above or otherwise on demand.
Section 2.11 Conversion/Continuation Option
(a) The U.S. Borrower may elect at any time on any Business
Day to convert Base Rate Loans (other than Swing Loans) or any portion thereof
to Eurocurrency Rate Loans and at the end of any applicable Interest Period, to
convert Eurocurrency Rate Loans or any portion thereof into Base Rate Loans or
to continue such Eurocurrency Rate Loans or any portion thereof for an
additional Interest Period; provided, however, that the aggregate amount of the
Eurocurrency Rate Loans for each Interest Period must be not less than the
Minimum Currency Threshold. The U.K. Borrower and the Dutch Borrower may elect
the length of the new Interest Period or Interest Periods with respect to such
Borrower's Eurocurrency Rate Loans at the end of the then current Interest
Period with respect to such Loans; provided, however, that the aggregate amount
of the Eurocurrency Rate Loans for each Interest Period must be not less than
the Minimum Currency Threshold. Each conversion or continuation shall be
allocated among the Loans of each Lender in accordance with such Lender's
Ratable Portion. Each such election shall be in substantially the form of
Exhibit F (Form of Notice of Conversion or Continuation) (a "Notice of
Conversion or Continuation") and shall be made by giving the Administrative
Agent at least three Business Days' prior written notice specifying (A) the
amount and type of Loan being converted or continued, (B) in the case of a
conversion to or a continuation of Eurocurrency Rate Loans, the applicable
Interest Period and (C) in the case of a conversion, the date of such
conversion.
(b) The Administrative Agent shall promptly notify each
applicable Lender of its receipt of a Notice of Conversion or Continuation and
of the options selected therein. Notwithstanding the foregoing, no conversion
in whole or in part of Base Rate Loans to Eurocurrency Rate Loans, and no
continuation in whole or in part of Dollar Revolving Loans or U.S. Term Loans
that are Eurocurrency Rate Loans upon the expiration of any applicable Interest
Period shall be permitted at any time at which (A) an Event of Default shall
have occurred and be continuing or (B) the continuation of, or conversion into,
a Eurocurrency Rate Loan would violate any provision of Section 2.14 (Special
Provisions Governing Eurocurrency Rate Loans). If, within the time period
required under the terms of this Section 2.11, the Administrative Agent does
not receive a Notice of Conversion or Continuation from the applicable Borrower
containing a permitted election to continue any Eurocurrency Rate Loans for an
additional Interest Period or to convert any such Loans (and, in the case of
Loans to the U.K. Borrower or the Dutch Borrower, if an Event of Default shall
have occurred and is continuing at the end of any Interest Period), then, upon
the expiration of the applicable Interest Period, Loans denominated in Dollars
shall be automatically converted to Base Rate Loans and Loans denominated in
Euros or Sterling shall be automatically continued as Eurocurrency Rate Loans
with an Interest Period of one month. Each Notice of Conversion or Continuation
shall be irrevocable.
Section 2.12 Fees
(a) Unused Commitment Fees. (i) The U.S. Borrower agrees to
pay, in immediately available funds in Dollars, to each Dollar Revolving Lender
a commitment fee on the actual daily amount by which the Dollar Revolving
Commitment of such Dollar Revolving Lender exceeds such Lender's Ratable
Portion of the sum of (A) the aggregate outstanding principal amount of Dollar
Revolving Loans and (B) the Letter of Credit Undrawn Amounts and (ii) the Dutch
Borrower and the U.K. Borrower, jointly and severally, agree to pay to each
Euro Revolving Lender a commitment fee on the actual daily amount by which the
Euro Revolving Commitment of such Euro Revolving Lender exceeds such Euro
Revolving Lender's Ratable Portion of the aggregate outstanding principal
amount of Euro Revolving Loans (each an "Unused Commitment Fee"), in each case,
from the date hereof through the Revolving Credit Termination Date at the
Commitment Fee Rate, payable in arrears (x) on the first Business Day of each
calendar quarter, commencing on the first such Business Day following the
Closing Date and (y) on the Revolving Credit Termination Date. For the
avoidance of doubt, any Swing Loans outstanding shall reduce the Dollar
Revolving Commitment of each respective Swing Loan Lender in its capacity as a
Dollar Revolving Lender for the purpose of calculating the Unused Commitment
Fee with respect to the Dollar Revolving Facility.
(b) Letter of Credit Fees. The U.S. Borrower agrees to pay,
in immediately available funds in Dollars, the following amounts with respect
to Letters of Credit issued by each Issuer:
(i) to the Administrative Agent for the account of any Issuer
an issuance fee equal to 0.25% per annum of the average daily maximum
undrawn face amount of such Letter of Credit issued by such Issuer,
for the immediately preceding calendar quarter (or portion thereof),
payable in arrears (A) on the first Business Day of each calendar
quarter, commencing on the first such Business Day following the
issuance of such Letter of Credit and (B) on the Revolving Credit
Termination Date;
(ii) to the Administrative Agent for the ratable benefit of
the Dollar Revolving Lenders and, with respect to each Letter of
Credit, a fee accruing at a rate per annum equal to the Applicable
Margin for Revolving Loans that are Eurocurrency Rate Loans on the
average daily maximum undrawn face amount of such Letter of Credit for
the immediately preceding calendar quarter (or portion thereof),
payable in arrears (A) on the first Business Day of each calendar
quarter, commencing on the first such Business Day following the
issuance of such Letter of Credit and (B) on the Revolving Credit
Termination Date; and
(iii) to each Issuer, with respect to the issuance, amendment
or transfer of each Letter of Credit issued by such Issuer and each
drawing made thereunder, documentary and processing charges in
accordance with such Issuer's standard schedule for such charges in
effect at the time of issuance, amendment, transfer or drawing, as the
case may be.
(c) Additional Fees. Each Borrower has agreed to pay to the
Administrative Agent and the Arrangers additional fees, the amount and dates of
payment of which are embodied in the Fee Letter when and to the extent due and
payable thereunder.
Section 2.13 Payments and Computations
(a) Each Borrower shall make each payment hereunder
(including fees and expenses) not later than 1:00 p.m. (New York time) on the
day when due, in the currency specified herein (or, if no such currency is
specified, in Dollars) to the Administrative Agent at the account specified by
the Administrative Agent from time to time in immediately available funds
without set-off or counterclaim. The Administrative Agent shall promptly
thereafter cause to be distributed immediately available funds relating to the
payment of principal, interest, fees or other amounts to the Lenders, in
accordance with the application of payments set forth in clause (f) or (g)
below, as applicable, for the account of their respective Applicable Lending
Offices; provided, however, that amounts payable pursuant to Section 2.14(c) or
(d) (Special Provisions Governing Eurocurrency Rate Loans), Section 2.16
(Capital Adequacy), or Section 2.17 (Taxes) shall be paid only to the affected
Lender or Lenders and amounts payable with respect to Swing Loans shall be paid
only to the affected Swing Loan Lender. Payments received by the Administrative
Agent after 1:00 p.m. (New York time) shall be deemed to be received on the
next Business Day.
(b) All computations of (i) interest on Eurocurrency Rate
Loans (other than Sterling Term Loans) shall be made by the Administrative
Agent on the basis of a year of 360 days and (ii) all fees payable hereunder
and interest for Base Rate Loans and Sterling Term Loans shall be made by the
Administrative Agent on the basis of 365 or 366 days, as the case may be, in
each case, for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest and fees are
payable. Each determination by the Administrative Agent of a rate of interest
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(c) Each payment by a Borrower of any Loan, Reimbursement
Obligation (including interest or fees (but excluding Unused Commitment Fees
which shall be paid in Dollars) in respect thereof) and each reimbursement of
various costs, expenses or other Obligation shall be made in the currency in
which such Loan was made, such Letter of Credit issued or such cost, expense or
other Obligation was incurred; provided, however, that other than for payments
in respect of a Loan or Reimbursement Obligation, Loan Documents duly executed
by the Administrative Agent may specify other currencies of payment for
Obligations created by or directly related to such Loan Document.
(d) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and such extension of time shall
in such case be included in the computation of payment of interest or fees, as
the case may be; provided, however, that if such extension would cause payment
of interest on or principal of any Eurocurrency Rate Loan to be made in the
next calendar month, such payment shall be made on the immediately preceding
Business Day. All repayments of any Dollar Revolving Loans or U.S. Term Loans
shall be applied as follows: first, to repay such Loans outstanding as Base
Rate Loans and then, to repay such Loans outstanding as Eurocurrency Rate
Loans, with those Eurocurrency Rate Loans having earlier expiring Interest
Periods being repaid prior to those having later expiring Interest Periods.
(e) Unless the Administrative Agent shall have received
notice from any Borrower to the Lenders prior to the date on which any payment
is due hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each applicable
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent that such Borrower shall not have made such payment in full
to the Administrative Agent, each applicable Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
together with interest thereon (at the Interbank Rate for the first Business
Day, and, thereafter, at the rate applicable to Base Rate Loans) for each day
from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent.
(f) Except for payments and other amounts received by the
Administrative Agent and applied in accordance with the provisions of clause
(g) below (or required to be applied in accordance with Section 2.8 (Optional
Prepayments) or Section 2.9 (Mandatory Prepayments)), all payments and any
other amounts received by the Administrative Agent from or for the benefit of
any Borrower shall be applied as follows: first, to pay principal of, and
interest on, any portion of the Loans the Administrative Agent may have
advanced to such Borrower pursuant to the express provisions of this Agreement
on behalf of any Lender, for which the Administrative Agent has not then been
reimbursed by such Lender or such Borrower, second, to pay all other
Obligations of such Borrower then due and payable as set forth in the following
sentence and third, as the Company so designates. Payments in respect of Swing
Loans received by the Administrative Agent shall be distributed to the Swing
Loan Lender that has made such Swing Loans; payments in respect of any
Revolving Loan received by the Administrative Agent shall be distributed to
each Revolving Lender in accordance with such Lender's Ratable Portion of the
applicable Revolving Credit Commitments; payments in respect of any Term Loan
received by the Administrative Agent shall be distributed to each applicable
Term Lender in accordance with such Lender's Ratable Portion thereof; and all
payments of fees and all other payments in respect of any other Obligation
shall be allocated among such of the Lenders and Issuers as are entitled
thereto and, for such payments allocated to the Lenders, in proportion to their
respective Ratable Portions.
(g) Each Borrower hereby irrevocably waives the right to
direct the application of any and all payments in respect of the Secured
Obligations and any proceeds of Collateral after the occurrence and during the
continuance of an Event of Default and agrees that, notwithstanding the
provisions of Section 2.8 (Optional Prepayments), Section 2.9 (Mandatory
Prepayments) or clause (f) above, the Administrative Agent upon the
acceleration of the Obligations pursuant to Section 9.2 (Remedies) shall apply
all payments received through the enforcement of any Loan Document against any
Loan Party in the following order:
(i) first, to pay interest on and then principal of any
portion of the Loans that are Secured Obligations of such Loan Party
that the Administrative Agent may have advanced on behalf of any
Lender for which the Administrative Agent has not then been reimbursed
by such Lender or any Loan Party;
(ii) second, to pay Secured Obligations that are Secured
Obligations of such Loan Party in respect of any expense
reimbursements or indemnities then due to the Administrative Agent;
(iii) third, to pay Secured Obligations that are Secured
Obligations of such Loan Party in respect of any expense
reimbursements or indemnities then due to the Lenders and Issuers;
(iv) fourth, to the ratable payment of all other Secured
Obligations of such Loan Party (including any Cash Management
Obligations and Hedging Obligations that are Secured Obligations of
such Loan Party);
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any Secured Obligations of the applicable
Loan Party described in any of clauses (i) through (iv) above, the available
funds being applied with respect to any such Secured Obligations of each Loan
Party (unless otherwise specified in such clause) shall be allocated to the
payment of such Secured Obligations ratably, based on the proportion of the
Administrative Agent's, each Lender's or Issuer's and any other holder's of
Secured Obligations interest in the aggregate outstanding Secured Obligations
described in the applicable clause. In providing for such allocation, the
Administrative Agent shall take into account the provisions of Section 9.5
(Collection Allocation Mechanism) and the CAM Exchange. Notwithstanding the CAM
Exchange, any amount received by the Administrative Agent in an Alternate
Currency that would otherwise be distributed to any Lender which immediately
prior to the CAM Exchange held only Commitments and/or Loans denominated in
Dollars shall be converted to Dollars at the then applicable exchange rate by
the Administrative Agent prior to being distributed to such Lenders. The order
of priority set forth in clauses (i) through (iv) above may at any time and
from time to time be changed with the consent of each Lender whose consent
would be required pursuant to Section 11.1 (Amendments, Waivers, Etc.) without
necessity of notice to or consent of or approval by the Borrowers, any Secured
Party that is not a Lender or Issuer or by any other Person that is not a
Lender or Issuer. The order of priority set forth in clauses (i) through (iv)
above may be changed only with the prior written consent of the Administrative
Agent in addition to that of the Lenders whose consent is required by Section
11.1 (Amendments, Waivers, Etc.).
(h) A payment of interest on a Note satisfies the applicable
Borrower's obligation to pay an equivalent amount of interest under Section
2.10 (Interest).
Section 2.14 Special Provisions Governing Eurocurrency Rate
Loans
(a) Determination of Interest Rate. The Eurocurrency Rate for
each Interest Period for any Eurocurrency Rate Loans shall be determined by the
Administrative Agent in good faith pursuant to the procedures set forth in the
definition of "Eurocurrency Rate" and the definitions contained therein. The
Administrative Agent shall notify the Borrowers of such determination and the
Administrative Agent's good faith determination shall be conclusive and binding
for all purposes.
(b) Interest Rate Unascertainable, Inadequate or Unfair. In
the event that (i) the Administrative Agent determines in good faith that by
reason of circumstances affecting the relevant market generally adequate and
fair means do not exist for ascertaining the applicable interest rate by
reference to which the Eurocurrency Rate then being determined is to be fixed
or (ii) the Requisite Class Lenders under the affected Facility notify the
Administrative Agent that the Eurocurrency Rate for any Interest Period will
not adequately reflect the cost to such Lenders as certified by such Lenders
and expressed as a rate per annum of making or maintaining such Loans in the
applicable currency for such Interest Period, the Administrative Agent shall
forthwith send a copy of such notice and certificate to the Company and the
Lenders, whereupon (x) each affected Eurocurrency Rate Loan denominated in
Dollars shall automatically, on the last day of the current Interest Period for
such Loan, convert into a Base Rate Loan and the obligations of the Dollar
Revolving Lenders and the U.S. Term Loan Lenders to make Eurocurrency Rate
Loans or to convert Base Rate Loans into Eurocurrency Rate Loans shall be
suspended until the Administrative Agent shall notify the Borrowers that the
Requisite Class Lenders under the affected Facility have determined that the
circumstances causing such suspension no longer exist and (y) each Eurocurrency
Rate Loan that is denominated in Euros or Sterling, the affected Eurocurrency
Rate Loans shall be made or continued, as the case may be, but with an Interest
Period of one month and the amount of interest payable in respect of any such
Eurocurrency Loan shall be determined in accordance with the following
provisions:
(i) if the Administrative Agent so requires, within five days
of such notification the Administrative Agent and the U.K. Borrower or
the Dutch Borrower, as applicable, shall enter into negotiations with
a view to agreeing on a substitute basis for determining the rate of
interest (a "Substitute Interest Rate") which may be applicable to
affected Eurocurrency Rate Loans in the future and any such Substitute
Interest Rate that is agreed shall take effect in accordance with its
terms and be binding on each party hereto; provided that the
Administrative Agent may not agree on any such Substitute Interest
Rate without the prior consent of the Required Class Lenders under
each affected Facility;
(ii) if no Substitute Interest Rate is agreed pursuant to
clause (i) above, any affected Eurocurrency Rate Loan shall bear
interest during the subsequent Interest Period at the rate per annum
otherwise applicable to Eurocurrency Rate Loans under such Facility,
except that in the place of the Eurocurrency Rate, in respect of
Eurocurrency Loans denominated in Euros or Sterling, the
Administrative Agent shall use the cost to the applicable Lender (as
conclusively certified by such Lender in a certificate to the
Administrative Agent and the Company and expressed as a rate per
annum) and containing a general description of the source selected of
funding such Loan from whatever source it shall reasonably select; and
(iii) if the Administrative Agent has required the U.K.
Borrower or the Dutch Borrower to enter into negotiations pursuant to
clause (i) above, the Administrative Agent may (acting on the
instructions of the Requisite Class Lenders under the affected
Facility) declare that no further Eurocurrency Rate Loans in Euros or
Sterling, as applicable, shall be converted, continued or made unless
a Substitute Interest Rate has been agreed by the applicable Borrower
and the Administrative Agent within 30 days of the Administrative
Agent having so required negotiations.
(c) Illegality. Notwithstanding any other provision of this
Agreement, if any Lender determines that the introduction of, or any change in
or in the interpretation of, any applicable law, treaty or governmental rule,
regulation or order after the date of this Agreement shall make it unlawful, or
any central bank or other Governmental Authority shall assert that it is
unlawful, for any Lender or its Applicable Lending Office to make Eurocurrency
Rate Loans or to continue to fund or maintain Eurocurrency Rate Loans, then, on
notice thereof and demand therefor by such Lender to the Company through the
Administrative Agent, (x) in the case of U.S. Term Loan or Dollar Revolving
Loan, (i) the obligation of such Lender to make or to continue Eurocurrency
Rate Loans and to convert Base Rate Loans into Eurocurrency Rate Loans shall be
suspended, and each such Lender shall make a Base Rate Loan as part of any
requested Borrowing of Eurocurrency Rate Loans and (ii) if the affected
Eurocurrency Rate Loans are then outstanding, the U.S. Borrower shall
immediately convert each such Loan into a Base Rate Loan; provided that if, at
any time after a Lender gives notice under this clause (c), such Lender
determines that it may lawfully make Eurocurrency Rate Loans, such Lender shall
promptly give notice of that determination to the Company and the
Administrative Agent, and the Administrative Agent shall promptly transmit the
notice to each other Lender and the U.S. Borrower's right to request, and such
Lender's obligation, if any, to make Eurocurrency Rate Loans shall thereupon be
restored and (y) in the case of any Loan to the U.K. Borrower or the Dutch
Borrower, each such Loan shall be repaid at the end of the then current
Interest Period.
(d) Breakage Costs. In addition to all amounts required to be
paid by the Borrowers pursuant to Section 2.10 (Interest), the applicable
Borrower shall compensate each Lender, promptly upon written request, for all
losses, expenses and liabilities (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund or maintain such Lender's Eurocurrency Rate Loans to the
Borrowers) that such Lender may sustain (i) if for any reason (other than
solely by reason of such Lender being a Non-Funding Lender) a proposed
Borrowing, conversion into or continuation of Eurocurrency Rate Loans does not
occur on a date specified therefor in a Notice of Borrowing or a Notice of
Conversion or Continuation given by a Borrower or in a telephonic request by a
Borrower for borrowing or conversion or continuation or a successive Interest
Period does not commence after notice therefor is given pursuant to Section
2.11 (Conversion/Continuation Option), (ii) if for any reason any Eurocurrency
Rate Loan is prepaid (including mandatorily pursuant to Section 2.9 (Mandatory
Prepayments)) on a date that is not the last day of the applicable Interest
Period or (iii) as a consequence of a required conversion of a Eurocurrency
Rate Loan to a Base Rate Loan as a result of any of the events indicated in
clause (b) or (c) above. Such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Eurocurrency Rate that would
have been applicable to such Loan, for the period from the date of such event
to the last day of the then current Interest Period therefor (or, in the case
of a failure to borrow, convert or continue, for the period that would have
been the Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the applicable
Eurocurrency Rate for such period. The Lender making demand for such
compensation shall deliver to the Company concurrently with such demand a
certificate which includes calculations in reasonable detail as to such losses,
expenses and liabilities, and this statement shall be conclusive as to the
amount of compensation due to such Lender, absent manifest error.
(e) Delay in Requests. Notwithstanding anything to the
contrary in this Section 2.14, the Borrowers shall not be required to
compensate any Person pursuant to this Section 2.14 for any amounts incurred
more than ninety days prior to the date that such Person notifies the Borrowers
of such Person's intention to claim compensation therefor.
Section 2.15 Increased Costs
If at any time any Lender determines that the introduction
of, or any change in or in the interpretation of, any law, treaty or
governmental rule, regulation or order (other than any change by way of
imposition or increase of reserve requirements included in determining the
Eurocurrency Rate) or the compliance by such Lender with any guideline, request
or directive from any central bank or other Governmental Authority (whether or
not having the force of law), shall (i) have the effect of increasing the cost
to such Lender of agreeing to make or making, funding or maintaining any
Eurocurrency Rate Loans, or (ii) subject any Lender to any Tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Loan made by it, or change the basis
of taxation of payments to such Lender in respect thereof (except for
Indemnified Taxes or Other Taxes, which are covered solely by Section 2.17
(Taxes) or the imposition of, or any change in the rate of, any Excluded Tax),
then the applicable Borrowers shall from time to time, within ten Business Days
after demand by such Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased
cost. A certificate setting forth in reasonable detail as to the amount of such
increased cost, submitted to the Company and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest
error. Notwithstanding anything to the contrary in this Section 2.15, the
Borrowers shall not be required to compensate any entity pursuant to this
Section 2.15 for any amounts incurred more than ninety days prior to the date
that such entity notifies the Borrowers of such entity's intention to claim
compensation therefor.
Section 2.16 Capital Adequacy
Without duplication of any amounts set forth in Section 2.14
(Special Provisions Governing Eurocurrency Rate Loans), if at any time any
Lender determines that (a) the adoption of, or any change in or in the
interpretation of, any law, treaty or governmental rule, regulation or order
after the date of this Agreement regarding capital adequacy, (b) compliance
with any such law, treaty, rule, regulation or order adopted or modified after
the date of this Agreement (or as to which interpretation has changed after the
date of this Agreement) or (c) compliance with any guideline or request or
directive from any central bank or other Governmental Authority (whether or not
having the force of law) given after the date of this Agreement shall have the
effect of reducing the rate of return on such Lender's (or any corporation
controlling such Lender's) capital as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or such corporation could have achieved but for such
adoption, change, compliance or interpretation, then, within ten Business Days
after demand from time to time by such Lender (with a copy of such demand to
the Administrative Agent), the applicable Borrowers shall pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender for such reduction. A certificate setting forth such amounts in
reasonable detail submitted to the Company and the Administrative Agent by such
Lender shall be conclusive and binding for all purposes absent manifest error.
Notwithstanding anything to the contrary in this Section 2.16, the Borrowers
shall not be required to compensate any entity pursuant to this Section 2.16
for any amounts incurred more than ninety days prior to the date that such
entity notifies the Borrowers of such entity's intention to claim compensation
therefor.
Section 2.17 Taxes
(a) Except as otherwise provided in this Section 2.17, any
and all payments by any Loan Party under each Loan Document shall be made free
and clear of and without deduction for any and all Indemnified Taxes. If any
Indemnified Taxes shall be required by law to be withheld or deducted from or
in respect of any sum payable under any Loan Document to any Lender, any Issuer
or the Administrative Agent (w) an additional amount shall be payable as may be
necessary so that, after making all required withholdings or deductions
(including withholdings or deductions applicable to additional sums payable
under this Section 2.17) such Lender, such Issuer or the Administrative Agent
(as the case may be) receives an amount equal to the sum it would have received
had no such withholdings or deductions been made, (x) the relevant Loan Party
shall make such withholdings or deductions, (y) the relevant Loan Party shall
pay the full amount withheld or deducted to the relevant taxing authority or
other authority in accordance with applicable law and (z) the relevant Loan
Party shall deliver to the Administrative Agent evidence of such payment.
(b) In addition, each Loan Party agrees to pay any present or
future stamp, registration, notarization, documentary or similar taxes or any
other excise or property taxes, charges or similar levies of the United States
or any political subdivision thereof or any applicable foreign jurisdiction,
and all interest, penalties or other liabilities with respect thereto, in each
case arising from any payment made under any Loan Document or from the
execution, delivery, registration or enforcement of, or otherwise with respect
to, any Loan Document (collectively, "Other Taxes").
(c) Each Loan Party shall to the extent that a loss,
liability or cost is not compensated for under Sections 2.17(a) and (b),
jointly and severally, indemnify each Lender, each Issuer and the
Administrative Agent for the full amount of Indemnified Taxes and Other Taxes
(including any Indemnified Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.17) payable by such Lender, such Issuer or
the Administrative Agent (as the case may be) and any reasonable expenses
arising therefrom or with respect thereto whether or not such Indemnified Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall
be made within 30 days from the date such Lender, such Issuer or the
Administrative Agent (as the case may be) makes written demand therefor by
providing a certificate that sets forth in reasonable detail the basis and
calculations of such Indemnified or Other Taxes.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes by any Loan Party, the relevant Loan Party shall furnish to the
Administrative Agent, at its address referred to in Section 11.8 (Notices,
Etc.), the original or a certified copy of a receipt evidencing payment thereof
or such other evidence of payment reasonably satisfactory to the Administrative
Agent.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any Guaranty, the agreements and
obligations of such Loan Party contained in this Section 2.17 shall survive the
payment in full of the Obligations.
(f) Each Non-U.S. Lender with respect to any Swing Loan,
Dollar Revolving Loan or U.S. Term Loan that is legally entitled at such time
to an exemption from United States withholding tax, or that is subject to such
tax at a reduced rate under an applicable tax treaty, shall (v) on or prior to
the Closing Date in the case of each Non-U.S. Lender that is a signatory
hereto, (w) on or prior to the date of the Assignment and Acceptance pursuant
to which such Non-U.S. Lender becomes a Lender the date a successor Issuer
becomes an Issuer or the date a successor Administrative Agent becomes the
Administrative Agent hereunder, (x) on or prior to the date on which any such
form or certification expires or becomes obsolete, (y) after the occurrence of
any event requiring a change in the most recent form or certification
previously delivered by it to the Company and the Administrative Agent, and (z)
from time to time if requested by the Company or the Administrative Agent,
provide the Administrative Agent and the Company with two completed originals
of each of the following, as applicable:
(A) IRS Form W-8ECI (claiming exemption from U.S. withholding
tax because the income is effectively connected with a U.S. trade or
business) or any successor form;
(B) IRS Form W-8BEN (claiming exemption from, or a reduction
of, U.S. withholding tax under an income tax treaty) or any successor
form;
(C) in the case of a Non-U.S. Lender claiming exemption under
Sections 871(h) or 881(c) of the Code, an IRS Form W-8BEN (claiming
exemption from U.S. withholding tax under the portfolio interest
exemption) or any successor form and a certificate substantially in
the form of Exhibit K; or
(D) any other applicable form, certificate or document
prescribed by the IRS certifying as to such Non-U.S. Lender's
entitlement to such exemption from United States withholding tax or
reduced rate with respect to all payments to be made to such Non-U.S.
Lender under the Loan Documents.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.17 shall use its reasonable efforts (consistent with
its internal policies and Requirements of Law) to change the jurisdiction of
its Applicable Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such additional amounts that would be
payable or may thereafter accrue and would not, in the sole determination of
such Lender, be otherwise disadvantageous to such Lender.
(h) If the Administrative Agent or any Lender receives a
refund of any taxes (whether received in cash or constructively received as a
credit against another tax liability imposed by the same taxing authority) as
to which it has been indemnified by the Borrowers or in respect of which
additional amounts have been paid under Section 2.17(a) or 2.17(b), it shall
pay to the applicable Borrower the portion of such refund that it determines in
its sole discretion will leave it, after such payment, in no better or worse
after-tax financial position (taking into account all out-of-pocket expenses of
the Administrative Agent or such Lender, as the case may be) than if the
Indemnified Tax giving rise to the payment had not been imposed in the first
instance; provided, however, that the Borrowers, upon the request of the
Administrative Agent or such Lender, agree to repay the amount paid over to the
Borrowers (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This clause (h) shall not be construed
to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes that it deems
confidential) to the Borrowers or any other Person.
(i) The U.K. Borrower shall not be required to make an
increased payment or indemnity payment to any Lender, any Issuer or the
Administrative Agent under Section 2.17(a) or 2.17(c) above in respect of
Indemnified Taxes imposed by the United Kingdom as a deduction or withholding
from a payment of interest, if on the date on which the payment falls due:
(A) the payment could have been made to the relevant Lender,
the relevant Issuer or the Administrative Agent without a deduction or
withholding in respect of Indemnified Taxes imposed by the United
Kingdom as a deduction or withholding if the 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 taxing authority; or
(B) (i) the relevant Lender is a Qualifying Lender solely
under subparagraph (b) or subparagraph (d) of the definition of
Qualifying Lender;
(ii) the Board of the HM Revenue and Customs has given (and
not revoked) a direction (a "Direction") under section 349C of the
Taxes Act (as that provision has effect on the date on which the
relevant Lender became a Party) which relates to that payment and that
Lender has received from the Company a certified copy of that
Direction; and
(iii) the payment could have been made to the Lender without
any Tax Deduction in the absence of that Direction; or
(C) the relevant Lender is a Qualifying Lender solely under
subparagraph (b) or (d) of the definition of Qualifying Lender and it
has not, other than by reason of any change after the date of this
Agreement in (or in the interpretation, administration, or application
of) any law, or any published practice or concession of any relevant
taxing authority, given a Tax Confirmation to the Company; or
(D) the relevant Lender is a UK Treaty Lender and the U.K.
Borrower making the payment that is able to demonstrate that the
payment could have been made to the Lender without deduction or
withholding in respect of UK tax had that Lender complied with its
obligations under Section 2.17(j) below.
(j) A Sterling Term Lender or Euro Revolving Lender which is
a UK Treaty Lender in respect of Loan to the U.K. Borrower shall (v) within ten
Business Days of the Closing Date in the case of each UK Treaty Lender that is
a signatory hereto, (w) within ten Business Days of the date of the Assignment
and Acceptance pursuant to which such UK Treaty Lender becomes a Lender the
date a successor Issuer becomes an Issuer or the date a successor
Administrative Agent becomes the Administrative Agent hereunder, (x) on or
prior to the date on which any such form or certification is stated on its face
to expire, and (y) from time to time if requested by the Company or the
Administrative Agent, submit to the tax authorities in its country of
incorporation (or, if different, its country of residence for the purposes of
the applicable tax treaty) such documents as it is necessary for it to submit
in order to apply to HM Revenue and Customs for a direction under any relevant
double tax treaty authority that in accordance with such treaty, the U.K.
Borrower, need not deduct or withhold from any sum payable to the Lender and,
if the tax authorities return the documents to the Lender after certification,
the Lender shall reasonably promptly file the documents with HM Revenue &
Customs' Centre for Non-Residents.
(k) Any Lender making a Euro Term Loan that is entitled to an
exemption from or reduction of withholding tax (including backup withholding),
with respect to payments under this Agreement shall, at the reasonable request
of the Dutch Borrower, deliver to the Dutch Borrower (with a copy to the
Administrative Agent), such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate; provided, in each case that a Lender shall
not be required to provide any documentation unless it is legally able to do
so.
Section 2.18 Substitution of Lenders; Change of Lending
Office
(a) In the event that (i) (A) any Lender makes a claim under
Section 2.15 (Increased Costs) or Section 2.16 (Capital Adequacy), (B) it
becomes illegal for any Lender to continue to fund or make any Eurocurrency
Rate Loan and such Lender notifies the Borrowers pursuant to Section 2.14(c)
(Illegality), (C) any Loan Party is required to make any payment pursuant to
Section 2.17 (Taxes) (after application of Section 2.17(g)) that is
attributable to a particular Lender or (D) any Lender becomes a Non-Funding
Lender or, in the case of a Euro Term Lender, ceases to be a Professional
Market Party and (ii) in the case of clause (i)(A) above, as a consequence of
increased costs in respect of which such claim is made, the effective rate of
interest payable to such Lender under this Agreement with respect to its Loans
materially exceeds the effective average annual rate of interest payable to the
Requisite Class Lenders under the applicable Facility under this Agreement (any
such Lender, an "Affected Lender"), the Borrowers may substitute, without
novation, any Lender, any other Eligible Assignee or any other Person
reasonably acceptable to the Administrative Agent (a "Substitute Institution")
for such Affected Lender hereunder, after delivery of a written notice (a
"Substitution Notice") by the Borrowers to the Administrative Agent and the
Affected Lender within a reasonable time (in any case not to exceed 90 days)
after a Responsible Officer of the Company obtains notice of the occurrence of
any of the events described in clause (i) above that the Borrowers intend to
make such substitution.
(b) If the Substitution Notice was properly issued under this
Section 2.18, the Affected Lender shall sell, and the Substitute Institution
shall purchase at par plus accrued interest and fees, all rights and claims of
such Affected Lender under the Loan Documents and the Substitute Institution
shall assume, and the Affected Lender shall be relieved of, the Affected
Lender's Commitments and all other prior unperformed obligations of the
Affected Lender under the Loan Documents (other than in respect of any damages
(other than exemplary or punitive damages, to the extent permitted by
Requirements of Law) in respect of any such unperformed obligations). Such
purchase and sale (and the corresponding assignment of all rights and claims
hereunder) shall be recorded in the Register maintained by the Administrative
Agent and shall be effective on (and not earlier than) the later of (i) the
receipt by the Affected Lender of its Ratable Portion of the Revolving Credit
Outstandings and the Term Loans, together with any other Obligations owing to
it, (ii) the receipt by the Administrative Agent of an agreement in form and
substance satisfactory to it and the Borrowers whereby the Substitute
Institution shall agree to be bound by the terms hereof and (iii) the payment
in full to the Affected Lender in cash of all fees, unreimbursed costs and
expenses and indemnities accrued and unpaid through such effective date. Upon
the effectiveness of such sale, purchase and assumption, the Substitute
Institution shall become a "Lender" hereunder for all purposes of this
Agreement having a Commitment in the amount of, or increased by, as applicable,
such Affected Lender's Commitment assumed by it and such Commitment of the
Affected Lender shall be terminated; provided, however, that all indemnities
under the Loan Documents shall continue in favor of such Affected Lender.
(c) Each Lender agrees that, if it becomes an Affected Lender
and its rights and claims are assigned hereunder to a Substitute Institution
pursuant to this Section 2.18, it shall execute and deliver to the
Administrative Agent an Assignment and Acceptance to evidence such assignment,
together with any Note issued in respect of the Loans subject to such
Assignment and Acceptance; provided, however, that the failure of any Affected
Lender to execute an Assignment and Acceptance shall not render such assignment
invalid.
(d) Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 2.14 (Illegality), 2.15 (Increased
Costs), 2.16 (Capital Adequacy) or Section 2.17 (Taxes) with respect to such
Lender, it shall, if requested by the Borrowers, use its commercially
reasonable efforts to designate another lending office for any Loans or
Commitments affected by such event or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, with the object of
avoiding the consequences of such event; provided that such designation is made
on terms that, in the reasonable judgment of such Lender, cause that Lender and
its respective lending offices to suffer no economic, legal or regulatory
disadvantage.
Section 2.19 Increase in Commitments
(a) Borrower Request. The U.S. Borrower may by written notice
to the Administrative Agent elect to request the establishment of one or more
new term loan commitments (each, an "Incremental U.S. Term Loan Commitment") by
an amount not in excess of $150,000,000 in the aggregate and not less than
$50,000,000 individually. Each such notice shall specify the date (each, an
"Increase Effective Date") on which the U.S. Borrower proposes that the
increased or new Commitments shall be effective, which shall be a date not less
than 10 Business Days after the date on which such notice is delivered to the
Administrative Agent and which shall be a date on or prior to the fourth
anniversary of the Closing Date. The Administrative Agent shall promptly notify
each U.S. Term Lender of the such notice and of the proposed terms and
conditions therefor agreed between the U.S. Borrower and the Administrative
Agent. Each such Lender (and each of their Affiliates and Approved Funds) may,
in its sole discretion, commit to participate in such Incremental U.S. Term
Loan Commitment by forwarding its commitment therefor to the Administrative
Agent in form and substance reasonably satisfactory to the Administrative
Agent. The Administrative Agent shall allocate, in its sole discretion but in
amounts not to exceed for each such Lender the commitment received from such
Lender, Affiliate or Approved Fund, the Incremental U.S. Term Loan Commitments
to be made on the Increase Effective Date to the U.S. Term Lenders from which
it has received such written commitments. If the Administrative Agent does not
receive enough commitments from existing U.S. Term Lenders or their respective
Affiliates or Approved Funds, the Administrative Agent may, after consultation
with the U.S. Borrower, allocate to Eligible Assignees any excess of the
proposed amount of such Incremental U.S. Term Loan Commitment agreed with the
U.S. Borrower over the aggregate amounts of the commitments received from
existing U.S. Term Lenders.
(b) Conditions. The increased or new Commitments shall become
effective, as of such Increase Effective Date; provided that:
(i) each of the conditions set forth in Section 3.2
(Conditions Precedent to Each Loan and Letter of Credit) shall be
satisfied;
(ii) no Default shall have occurred and be continuing or
would result from the borrowings to be made on the Increase Effective
Date;
(iii) after giving pro forma effect to the borrowings to be
made on the Increase Effective Date and to any change in EBITDA
concurrently with such borrowings as of the date of the most recent
financial statements delivered pursuant to Section 6.1(a) or (b), the
U.S. Borrower shall be in compliance with each of the covenants set
forth in Article V (Financial Covenants); and
(iv) The U.S. Borrower shall deliver or cause to be delivered
any legal opinions or other documents reasonably requested by the
Administrative Agent in connection with any such transaction.
(c) Terms of Incremental Term Loans and Incremental Term Loan
Commitments. The terms and provisions of the Incremental U.S. Term Loans made
pursuant to the Incremental U.S. Term Loan Commitments shall be as follows:
(i) terms and provisions of Loans made pursuant to
Incremental U.S. Term Loan Commitments ("Incremental U.S. Term Loans")
shall be, except as otherwise set forth herein or in the Increase
Joinder, identical to the U.S. Term Loans (it being understood that
Incremental U.S. Term Loans may be part of the existing tranche of
U.S. Term Loans);
(ii) the weighted average life to maturity of all new
Incremental U.S. Term Loans shall be no shorter than the weighted
average life to maturity of the existing U.S. Term Loans;
(iii) the maturity date of Incremental U.S. Term Loans (the
"Incremental Term Loan Maturity Date") shall not be earlier than the
U.S. Term Loan Maturity Date;
(iv) the Applicable Margins and any fees payable to the new
U.S. Lenders for the Incremental U.S. Term Loans shall be determined
by the U.S. Borrower and the applicable new U.S. Lenders; provided,
however, that in the event that the "all-in yield" (on a
marked-to-market basis) of the Incremental Term Loans exceeds the
"all-in yield" for the U.S. Term Loans by more than 50 basis points,
the Applicable Margin for the U.S. Term Loans shall be increased such
that, after giving effect to such increase, the "all-in-yield" of the
U.S. Terms Loans is equal to 50 basis points less than the
"all-in-yield" on the Incremental Term Loans.
The Incremental U.S. Term Loan Commitments shall be effected
by a joinder agreement (the "Increase Joinder") executed by the U.S. Borrower,
the Administrative Agent and each Lender making such Incremental U.S. Term Loan
Commitment, in form and substance satisfactory to each of them. The Increase
Joinder may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section 2.19. In addition, unless otherwise specifically
provided herein, all references in the Loan Documents to U.S. Term Loans shall
be deemed, unless the context otherwise requires, to include references to
Incremental U.S. Term Loans that are U.S. Term Loans made pursuant to this
Agreement.
(d) Making of Incremental U.S. Term Loans. On any Increase
Effective Date on which Incremental U.S. Term Loan Commitments are effective,
subject to the satisfaction of the foregoing terms and conditions, each Lender
with an Incremental U.S. Term Loan Commitment shall make an Incremental U.S.
Term Loan to the U.S. Borrower in an amount equal to its Incremental U.S. Term
Loan Commitment.
(e) Equal and Ratable Benefit. The Incremental U.S. Term
Loans and Incremental U.S. Term Loan Commitments established pursuant to this
paragraph shall constitute Loans and Commitments under, and shall be entitled
to all the benefits afforded by, this Agreement and the other Loan Documents,
and shall, without limiting the foregoing, benefit equally and ratably from the
Domestic Guarantees and security interests created by the Domestic Collateral
Documents. The Domestic Loan Parties shall take any actions reasonably required
by the Administrative Agent to ensure and/or demonstrate that the Lien and
security interests granted by the Domestic Collateral Documents continue to be
perfected under the UCC or otherwise after giving effect to the establishment
of any such class of Incremental U.S. Term Loans or any such Incremental U.S.
Term Loan Commitments.
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
Section 3.1 Conditions Precedent to Initial Loans
The obligation of each Lender to make the Loans requested to
be made by it on the Closing Date and the effectiveness of this Agreement with
respect to the Existing Letters of Credit are subject to the satisfaction of
each of the following conditions precedent on or before November 30, 2005:
(a) Certain Documents. Except for items required to be
delivered following the Closing Date pursuant to Section 7.11 (Post-Closing
Documents), the Administrative Agent shall have received on or prior to the
Closing Date (and, to the extent any Borrowing of any Eurocurrency Rate Loans
is requested to be made on the Closing Date, with respect of the Notice of
Borrowing for such Eurocurrency Rate Loans, at least three Business Days prior
to the Closing Date) each of the following, each dated the Closing Date unless
otherwise indicated or agreed to by the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent:
(i) this Agreement, duly executed and delivered by the
Borrowers;
(ii) the Domestic Guaranty duly executed and delivered by
each Domestic Guarantor and each Foreign Guaranty duly executed and
delivered by each Foreign Guarantor;
(iii) the Domestic Security Agreement, duly executed and
delivered by each Domestic Loan Party, together with each of the
following, to the extent required by the Domestic Security Agreement:
(A) evidence (including a Perfection Certificate
certified by a Responsible Officer of the Company) reasonably
satisfactory to the Administrative Agent that, upon the
filing and recording of instruments delivered at the closing,
the Administrative Agent (for the benefit of the Secured
Parties) shall have a valid and perfected first priority
security interest in all material Collateral of the Domestic
Loan Parties (subject to Permitted Collateral Liens) to the
extent required by the Domestic Security Agreement, including
(x) such documents duly executed and/or delivered, as
applicable, by each Domestic Loan Party as the Administrative
Agent may reasonably request with respect to the perfection
of its security interests in such Collateral (including
financing statements under the UCC, patent, trademark and
copyright security agreements suitable for filing with the
United States Patent and Trademark Office or the United
States Copyright Office, as the case may be, and other
applicable documents under the laws of any jurisdiction with
respect to the perfection of Liens created by such Domestic
Collateral Documents) and (y) copies of lien search reports
as of a recent date listing all recorded Liens on the assets
of each Domestic Loan Party;
(B) all certificates, instruments and other
documents representing all Stock being pledged pursuant to
the Domestic Security Agreement required to be delivered to
the Administrative Agent pursuant to the Domestic Security
Agreement and stock powers for such certificates, instruments
and other documents executed in blank;
(C) all instruments representing debt instruments,
including all Intercompany Notes required to be delivered to
the Administrative Agent pursuant to the Domestic Security
Agreement duly endorsed in favor of the Administrative Agent
or in blank;
(D) all Deposit Account Control Agreements (as
defined in the Domestic Security Agreement) required by the
Domestic Security Agreement, duly executed by the
corresponding deposit account bank and the applicable
Domestic Loan Party; and
(E) all Securities Account Control Agreements (as
defined in the Domestic Security Agreement) required by the
Domestic Security Agreement duly executed by the appropriate
Domestic Loan Party and all relevant "securities
intermediaries" (as defined in the UCC);
(iv) with respect to each Mortgaged Property, such consents,
approvals, amendments, supplements, estoppels, tenant subordination
agreements or other instruments as necessary to consummate the
Transactions or as shall reasonably be deemed necessary by the
Administrative Agent in order for the owner or holder of the fee or
leasehold interest constituting such Mortgaged Property to grant the
Lien contemplated by the Mortgage with respect to such Mortgaged
Property;
(v) with respect to each Domestic Mortgage, a policy of title
insurance (or marked up title insurance commitment having the effect
of a policy of title insurance) insuring the Lien of such Mortgage as
a valid first mortgage Lien on the Mortgaged Property and fixtures
described therein in the amounts set forth on Schedule 3.1(v) (Title
Insurance Amounts) which policy (or such marked-up commitment) (each,
a "Title Policy") shall (A) be issued by the Title Company, (B) to the
extent necessary, include such reinsurance arrangements (with
provisions for direct access, if necessary) as shall be reasonably
acceptable to the Administrative Agent, (C) contain a "tie-in" or
"cluster" endorsement, if available under applicable law (i.e.,
policies which insure against losses regardless of location or
allocated value of the insured property up to a stated maximum
coverage amount), (D) have been supplemented by such endorsements (if
such endorsements are available in the applicable jurisdiction, and to
the extent a zoning endorsement is not available, in the case of
Domestic Mortgaged Property owned in fee a report by the Planning and
Zoning Resource Corporation and in the case of Domestic Mortgages
which are leasehold mortgages, use commercially reasonable efforts to
obtain a zoning letter from the applicable municipality as shall be
reasonably requested by the Administrative Agent (including
endorsements on matters relating to usury, first loss, last dollar,
zoning, contiguity, revolving credit, doing business, non-imputation,
public road access, survey, variable rate, environmental lien,
subdivision, mortgage recording tax, separate tax lot, revolving
credit, and so-called comprehensive coverage over covenants and
restrictions), and (E) contain no exceptions to title other than
Permitted Collateral Liens and any other exceptions reasonably
acceptable to the Administrative Agent;
(vi) with respect to each Domestic Mortgaged Property, such
affidavits, certificates, information (including financial data) and
instruments of indemnification (including a so-called "gap"
indemnification) as shall be required to induce the Title Company to
issue the Title Policy/ies and endorsements contemplated above;
(vii) evidence reasonably acceptable to the Administrative
Agent of payment by the Company of all Title Policy premiums, search
and examination charges, escrow charges and related charges, mortgage
recording taxes, fees, charges, costs and expenses required for the
recording of the Mortgages and issuance of the Title Policies referred
to above;
(viii) with respect to each Mortgaged Property, the Company
shall have made all notifications, registrations and filings, to the
extent required by, and in accordance with, all Governmental Real
Property Disclosure Requirements applicable to such Mortgaged
Property;
(ix) Surveys with respect to each Mortgaged Property in which
a Domestic Loan Party has a fee interest and with respect to those
Mortgaged Properties in which a Foreign Loan Party has a fee interest
as the Administrative Agent may reasonably request; and
(x) a Flood Certificate with respect to each Domestic
Mortgaged Property.
(xi) the Foreign Collateral Documents listed on Schedule
3.1-1 (Foreign Collateral Documents: Secured Obligations), duly
executed and delivered by each applicable Foreign Loan Party, together
with all items required by such Foreign Collateral Documents to be
delivered to the Administrative Agent and any other items reasonably
requested by the Administrative Agent for the purpose of confirming
that all actions reasonably necessary or desirable to perfect the
security interest created by the Foreign Collateral Documents have
been taken;
(xii) a favorable opinion of (1) Skadden, Arps, Slate,
Meagher & Flom LLP, U.S. outside counsel to the Company, in
substantially the form of Exhibit G (Form of Opinion of Counsel for
the Domestic Loan Parties), (2) outside counsels in the U.K. and
Australia and (3) local U.S. counsel to the Loan Parties, in each
case, addressed to the Administrative Agent and the Lenders and
addressing such matters as the Administrative Agent may reasonably
request;
(xiii) a copy of the articles or certificate of incorporation
(or equivalent Constituent Document) of each Loan Party, certified, to
the extent relevant, as of a recent date by the Secretary of State of
the state of organization of such Loan Party (or, if not applicable,
by the Secretary or an Assistant Secretary of such Loan Party),
together with certificates of such official attesting to the good
standing of each such Loan Party (to the extent relevant), or such
other evidence of status reasonably satisfactory to the Administrative
Agent under the jurisdiction under which such Loan Party is organized;
(xiv) a certificate of the Secretary or an Assistant
Secretary or a Managing Director of each Loan Party (to the extent
relevant) certifying (A) articles or certificates of incorporation (or
equivalent Constituent Document) of such Loan Party, (B) the names and
true signatures of each officer of such Loan Party that has been
authorized to execute and deliver any Loan Document or other document
required hereunder to be executed and delivered by or on behalf of
such Loan Party, (C) the by-laws (or equivalent Constituent Document)
of such Loan Party as in effect on the date of such certification and
(D) the resolutions of such Loan Party's Board of Directors, Board of
Supervisory Directors (if any) or shareholders (or equivalent
governing bodies) approving and authorizing (in accordance with local
law requirements) the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party;
(xv) a certificate of a Responsible Officer of the Company,
stating that the Company (on a Consolidated basis with its
Subsidiaries) is Solvent immediately after giving effect to the
initial Loans and the application of the proceeds thereof in
accordance with Section 7.8 (Application of Proceeds);
(xvi) evidence reasonably satisfactory to the Administrative
Agent that the insurance policies required by Section 7.4 (Maintenance
of Insurance) and any Collateral Document are in full force and
effect, together with, unless otherwise agreed by the Administrative
Agent, endorsements naming the Administrative Agent, on behalf of the
applicable Secured Parties, as an additional insured or loss payee
under all insurance policies to be maintained with respect to the
properties of each Loan Party;
(xvii) Confirmation in writing by each Dutch Loan Party that
there is no (central) works council ((centrale) ondernemingsraad) with
jurisdiction over the transactions as envisaged by the Loan Documents
or that all consultation obligations in respect of the (central) works
council with jurisdiction over the transactions as envisaged by the
Loan Documents have been complied with and that positive advice has
been obtained from such (central) works council as well (in case of
the latter) a copy of the an unconditional positive works council
advice (advies) as well as the request for the advice from the board
of managing directors;
(xviii) the Notes required to be issued by the U.K. Borrower
and the Dutch Borrower pursuant to Section 2.7(d) (Promissory Notes)
(or arrangements satisfactory to the Administrative Agent with respect
thereto shall have been made); and
(xix) such other certificates, documents, agreements and
information respecting any Loan Party as any Lender through the
Administrative Agent may reasonably request.
(b) Fee and Expenses Paid. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent, the
Arrangers and the Lenders, as applicable, all fees and expenses due and payable
on or before the Closing Date (including all such fees described in the Fee
Letter).
(c) Transactions. The Transactions (including the merger of ACCO
Finance I into the Company and the release to the Company of the Net Cash
Proceeds of the Subordinated Notes from the escrow account established pursuant
to the Subordinated Notes Documents) shall have been consummated or shall be
consummated simultaneously with or immediately following the initial extensions
of credit under the Credit Agreement, in accordance in all material respects,
with the Acquisition Documents (without material amendment, modification or
waiver thereof unless approved by the Administrative Agent and the Requisite
Lenders) and in accordance with the all applicable Requirements of Law.
(d) Consents, Etc. Each of the Borrowers and their respective
Subsidiaries, as applicable, shall have received all consents and
authorizations required pursuant to any material Contractual Obligation with
any other Person and shall have obtained all Permits of, and effected all
notices to and filings with, any Governmental Authority, in each case, as may
be necessary to allow each of the Borrowers and their respective Subsidiaries
lawfully (i) to execute, deliver and perform, in all material respects, their
respective obligations hereunder and under the Loan Documents to which each of
them, respectively, is, or shall be, a party and each other agreement or
instrument to be executed and delivered on or before the Closing Date by each
of them, respectively, pursuant thereto or in connection therewith, (ii) to
create and perfect the Liens on the Collateral to be owned by each of them as
contemplated by the Loan Documents and (iii) to consummate the Transactions
(other than those contemplated in the Loan Documents), except where the failure
to obtain such consent, authorization or Permit or to give such notice or make
such filing would not reasonably be expected to restrain, prevent or impose
materially burdensome conditions on such Transactions.
Section 3.2 Conditions Precedent to Each Loan and Letter of
Credit
The obligation of each Lender on any date (including the
Closing Date) to make any Loan and of each Issuer on any date (including the
Closing Date) to Issue any Letter of Credit is subject to the satisfaction of
each of the following conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit.
With respect to any Loan, the Administrative Agent shall have received a duly
executed Notice of Borrowing (or, in the case of Swing Loans, a duly executed
Swing Loan Request), and, with respect to any Letter of Credit, the
Administrative Agent and the relevant Issuer shall have received a duly
executed Letter of Credit Request.
(b) Representations and Warranties; No Defaults. On the date
of such Loan or Issuance, both before and after giving effect thereto and, in
the case of any Loan, to the application of the proceeds thereof:
(i) the representations and warranties set forth in Article
IV (Representations and Warranties) and in the other Loan Documents
shall be true and correct in all material respects 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 have
been true and correct in all material respects as of such earlier
date; and
(ii) no Default shall have occurred and be continuing.
(c) No Legal Impediments. The making of the Loans or the
Issuance of such Letter of Credit on such date does not violate in any material
respect any Requirement of Law on the date of or immediately following such
Loan or Issuance of such Letter of Credit and is not enjoined, temporarily,
preliminarily or permanently.
Each submission by any Borrower to the Administrative Agent
of a Notice of Borrowing or a Swing Loan Request and the acceptance by such
Borrower of the proceeds of each Loan requested therein, and each submission by
any Borrower to an Issuer of a Letter of Credit Request, and the Issuance of
each Letter of Credit requested therein, shall be deemed to constitute a
representation and warranty by such Borrower as to the matters specified in
clause (b) above on the date of the making of such Loan or the Issuance of such
Letter of Credit (except that no opinion need be expressed as to the
Administrative Agent's or the Requisite Lenders' satisfaction with any
document, instrument or other matter).
Section 3.3 Determinations of Initial Borrowing Conditions
If at any time after 4:00 p.m., New York time, on August 16,
2005, the Administrative Agent is satisfied that all documents required to be
delivered in order to demonstrate that the conditions precedent set forth in
Section 3.1 (Conditions Precedent to Initial Loans) (other than the conditions
set forth in clause (c) of such Section) and Section 3.2 (Conditions Precedent
to Each Loan and Letter of Credit) have been satisfied, then unless the
Administrative Agent shall have received notice prior to such time to the
contrary from any Lender or any Issuer, the Administrative Agent shall, upon
request by the Company, confirm to the Company that the Administrative Agent
does not require further documentation to demonstrate that such conditions
precedent have been met. Upon provision of such notice by the Administrative
Agent to the Company, such conditions precedent shall be deemed for all
purposes of this Agreement to be satisfied in connection with the borrowing of
the Loans to be made on the Closing Date (provided that the conditions
precedent set forth in the following paragraph are satisfied prior to 2:00 pm
New York time on August 17, 2005) and such notification shall be binding on the
Borrowers, the Administrative Agent, each Issuer and each Lender for all
purposes of this Agreement (it being understood that nothing contained in this
Section 3.3 shall operate as a waiver of any remedy available following the
funding of the Loans to be made on the Closing Date as a result of a breach of
a representation or warranty by any Borrower).
Upon provision by the Administrative Agent of the
confirmation contemplated above, the condition set forth in Section 3.1(c)
(Conditions Precedent to Initial Loans) shall be deemed to be satisfied upon
receipt by the Administrative Agent prior to 2:00 pm New York time on August
17, 2005 of (i) an officer's certificate of a Responsible Officer of the
Company (x) attaching true and complete copies of the Acquisition Documents,
(y) attaching copies of the officers' certificates delivered by Seller and GBC
pursuant to the Acquisition Agreement relating to the accuracy of the
representations and warranties and perfomance of covenants contained therein,
and (z) stating that the merger of Acquistion Sub into GBC has occurred and
(ii) such other confirmations as the Administrative Agent may reasonably
request to demonstrate that (x) the Net Cash Proceeds of the Subordinated Notes
will be released from the escrow account substantially concurrently with the
funding of the Term Loans, (y) all indebtedness of the Company, GBC and their
Subsidiaries to be repaid or called for redemption on the date of funding of
the Loans to be made on the Closing Date will be repaid (or funds deposited
with the trustee, in the case of a redemption) substantially contemporaneously
with the funding of the Loans and (z) the merger of Acquisition Sub into GBC
has occurred.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Administrative
Agent to enter into this Agreement, each Borrower represents and warrants each
of the following to the Lenders, the Issuers and the Administrative Agent, on
and as of the Closing Date and after giving effect to the Transactions to be
consummated on the Closing Date (and, to the extent relating to ownership,
capitalization and matters reasonably related thereto, the Transactions to be
consummated within the time periods specified on Exhibit A to Schedule VII
(Specified Restructuring Transactions) which the Borrowers represent and
warrant shall be completed within the time periods specified therein) and the
making of the Loans and the other financial accommodations on the Closing Date
and on and as of each date as required by Section 3.2(b)(i) (Conditions
Precedent to Each Loan and Letter of Credit) (except to the extent such
representations and warranties are expressly made as of a specified date, in
which case such representations and warranties shall be true as of such
specified date).
Section 4.1 Corporate Existence; Compliance with Law
Each of the Borrowers and their respective Subsidiaries (a)
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization (to the extent that such concept exists in
such jurisdiction), (b) is duly qualified to do business as a foreign entity
and in good standing (to the extent that such concept exists in such
jurisdiction) under the laws of each jurisdiction where such qualification is
necessary, except where the failure to be so qualified or in good standing
would not, in the aggregate, have a Material Adverse Effect, (c) has all
requisite corporate or other organizational power and authority to own, pledge,
mortgage and operate its properties, to lease the property it operates under
lease and to conduct its business as now or currently proposed to be conducted
and to pledge and mortgage (or, at the time of its execution and delivery of
the Collateral Documents to which its is a party, will have requisite corporate
or organizational power and authority to pledge and mortgage) its properties
constituting Collateral, (d) is in compliance with all applicable Requirements
of Law except where the failure to be in compliance would not, in the
aggregate, have a Material Adverse Effect and (e) has all necessary Permits
from or by, has made all necessary filings with, and has given all necessary
notices to, each Governmental Authority having jurisdiction, to the extent
required for such ownership, operation and conduct, except for Permits, filings
or notices that can be obtained or made by the taking of ministerial action to
secure the grant or transfer thereof or the failure to obtain or make would
not, in the aggregate, have a Material Adverse Effect.
None of the Borrower, any Subsidiary of the Borrower or any
Affiliate of the Borrower or any Guarantor (i) is a Sanctioned Person, (ii) has
more than 10% of its assets in Sanctioned Entities, or (iii) derives more than
10% of its operating income from investments in, or transactions with
Sanctioned Persons. The proceeds of any Loan will not be used and have not been
used to fund any operations in, finance any investments or activities in or
make any payments to, a Sanctioned Person or a Sanctioned Entity.
Section 4.2 Corporate Power; Authorization; Enforceable
Obligations
(a) The execution, delivery and performance by each Loan
Party of the Loan Documents to which such Loan Party is a party and the
consummation of the Transactions:
(i) are (or at the time it is required to execute and deliver
the Loan Documents to which it is a party, will be) within such Loan
Party's corporate, limited liability company, partnership or other
comparable powers;
(ii) have been or, at the time of delivery thereof pursuant
to Article III (Conditions To Loans And Letters Of Credit), will have
been duly authorized by all necessary action, including the consent of
shareholders, partners and members where required;
(iii) do not (or at the time it is required to execute and
deliver the Loan Documents to which it is a party, will not) and will
not (A) contravene such Loan Party's Constituent Documents, (B)
violate any other material Requirement of Law applicable to such Loan
Party (including Regulations T, U and X of the Federal Reserve Board),
or any material order or decree of any Governmental Authority or
arbitrator applicable to such Loan Party, (C) result in the breach of,
or constitute a default under, or result in or permit the termination
or acceleration of, any Acquisition Document or any other Contractual
Obligation of such Loan Party except for any breach, default,
termination or acceleration that would not, in the aggregate, result
in a Material Adverse Effect or (D) result in the creation or
imposition of any Lien upon any property of such Loan Party or any of
its Subsidiaries, other than those in favor of the Secured Parties
pursuant to the Collateral Documents or that would be permitted by
Section 8.2 (Liens, Etc.); and
(iv) do not require the consent of, authorization by,
approval of, notice to, or filing or registration with, any
Governmental Authority or any other Person other than those listed on
Schedule 4.2 (Consents) and those that have been or will be, prior to
the Closing Date, obtained or made, and each of which on the Closing
Date will be in full force and effect in all material respects and,
with respect to the Collateral, filings and any customary fees in
respect thereto required to be paid to perfect the Liens created by
the Collateral Documents.
(b) This Agreement has been, and each of the other Loan
Documents will have been upon delivery thereof pursuant to the terms of this
Agreement, duly executed and delivered by each Loan Party party thereto. This
Agreement is, and the other Loan Documents will be, when delivered, the valid
and binding obligation of each Loan Party party thereto, enforceable against
such Loan Party in accordance with its terms, except to the extent that the
enforceability thereof may be limited by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and by applicable
bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
Section 4.3 Ownership of Subsidiaries
Set forth on Schedule 4.3 (Ownership of Subsidiaries) is a
complete and accurate list showing, as of the Closing Date, all Subsidiaries
(other than Inactive Subsidiaries) of the Company and, as to each such
Subsidiary, the jurisdiction of its organization, and the percentage of the
outstanding shares of each class of Stock owned (directly or indirectly) by the
Company. Except as set forth on Schedule 4.3 (Ownership of Subsidiaries), as of
the Closing Date no Stock of any Subsidiary of the Company is subject to any
outstanding option, warrant, right of conversion or purchase of any similar
right. All of the outstanding Stock of each Subsidiary of the Company (other
than any Inactive Subsidiary) owned (directly or indirectly) by the Company has
been validly issued, is fully paid and non-assessable (to the extent
applicable) and is owned by the Company or a Subsidiary of the Company, free
and clear of all Liens (other than Liens permitted by Section 8.2 (Liens,
Etc.)), and as of the Closing Date, options, warrants, rights of conversion or
purchase or any similar rights. No Borrower owns or holds, directly or
indirectly, any Stock of any Person other than Inactive Subsidiaries and
Investments permitted by Section 8.3 (Investments).
Section 4.4 Financial Statements
(a) The (i) balance sheets of each of (x) GBC and its
Subsidiaries as of December 31, 2004 and (y) the Company and its Subsidiaries
as of December 27, 2004, together, in each case, with the related combined
statements of income, stockholders' equity, retained earnings and cash flows of
each of GBC and its Subsidiaries and the Company and its Subsidiaries,
respectively, for the three most recent Fiscal Years ended on such dates,
certified, in each case, by PricewaterhouseCoopers LLP and (ii) unaudited
balance sheets of each of (x) GBC and its Subsidiaries as of March 31, 2005 and
March 31, 2004 and (y) the Company and its Subsidiaries as of March 25, 2005
and March 25, 2004, together, in each case, with the related statements of
income, stockholder's equity, retained earnings and cash flows of GBC and its
Subsidiaries and the Company and its Subsidiaries, respectively, for the
three-month periods ending on such dates, fairly present in all material
respects (subject to, in the case of the unaudited financial statements
referred to above, normal year-end audit adjustments and the absence of certain
footnotes) the financial condition of GBC and its Subsidiaries and the Company
and its Subsidiaries, respectively, as at such dates and the results of the
operations of GBC and its Subsidiaries and the Company and its Subsidiaries,
respectively, for the period ended on such dates, all in conformity with GAAP
and Regulation S-X under the Securities Act of 1933 and the Securities Exchange
Act of 1934.
(b) None of the Company or any of its Subsidiaries has any
obligation, contingent liability or liability for taxes, long-term leases or
unusual forward or long-term commitment that is not reflected in the financial
statements referred to in clause (a) above or in the notes thereto and not
otherwise permitted by this Agreement which could reasonably be expected to
have a Material Adverse Effect.
(c) The Company has heretofore delivered to the Lenders its
unaudited pro forma Consolidated balance sheet and statements of income,
stockholder's equity and cash flows as of and for (x) the twelve months ended
December 27, 2004 and (y) as of and for the three months ended March 25, 2005,
in each case prepared giving effect to the Transactions as if they had
occurred, with respect to such balance sheet, on such date and, with respect to
such other financial statements, on the first day of the period ending on such
date. Such pro forma financial statements (i) have been prepared in good faith
by the Company and GBC, in accordance with Regulation S-X and based on the
assumptions used to prepare the pro forma financial information contained in
the Disclosure Documents and (ii) are based on assumptions believed reasonable
by the Company as of the date of delivery thereof.
Section 4.5 Material Adverse Effect
Since December 27, 2004 there has been no Material Adverse
Effect.
Section 4.6 Solvency
Immediately after giving effect to (a) the Loans and Letter
of Credit Obligations to be made or extended on the Closing Date or such other
date as Loans and Letter of Credit Obligations requested hereunder are made or
extended, (b) the disbursement of the proceeds of such Loans pursuant to the
instructions of any Loan Party and (c) the Transactions, the Company
individually, and on a Consolidated basis with its Subsidiaries, is Solvent.
Section 4.7 Litigation
There are no pending or, to the knowledge of any Borrower,
threatened actions, investigations or proceedings affecting the Company or any
of its Subsidiaries before any court, Governmental Authority or arbitrator as
to which there is a reasonable probability of an adverse determination and
that, if adversely determined in the aggregate, would have a Material Adverse
Effect.
Section 4.8 Taxes
All federal and material state, provincial, local and foreign
income, franchise and other tax returns, reports and statements (collectively,
the "Tax Returns") required to be filed by any Borrower or any of its Tax
Affiliates have been filed with the appropriate Governmental Authorities in all
jurisdictions in which such Tax Returns are required to be filed, all such Tax
Returns are true and correct in all material respects, and material Taxes
whether or not reflected therein that are due and payable have been timely paid
except where contested in good faith and by appropriate proceedings if adequate
reserves therefor have been established on the books of such Borrower or such
Tax Affiliate in conformity with GAAP. All material amounts have been withheld
by the Borrowers and each of its Tax Affiliates from their respective employees
for all periods in full and complete compliance with the tax, social security
and unemployment withholding provisions of applicable Requirements of Law and
such withholdings have been timely paid to the respective Governmental
Authorities.
None of the Loan Parties or their respective Tax Affiliates
has ever been a party to any understanding or arrangement constituting a "tax
shelter" within the meaning of Section 6662(d)(2)(C)(iii) of the Code or within
the meaning of Section 6111(c) or Section 6111(d) of the Code as in effect
immediately prior to the enactment of the American Jobs Creation of 2004, or
has ever "participated" in a "reportable transaction" within the meaning of
Treasury Regulation Section 1.6011-4, except as could not be reasonably
expected to, individually or in the aggregate, result in a Material Adverse
Effect.
Section 4.9 Full Disclosure
The information (other than financial projections and other
forward-looking information) prepared or furnished by or on behalf of the
Company or any of its Subsidiaries in connection with this Agreement or the
consummation of the Transactions, including on the Closing Date the information
contained in the Disclosure Documents, taken as a whole, is complete and
correct in all material respects and did not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained therein not materially misleading, in each case in light of all other
information provided and the circumstances under which such statements were
made. All financial projections and other forward-looking information, if any,
that have been or will be prepared by or on behalf of the Borrowers, have been
or will be prepared in good faith based upon estimates and assumptions that are
believed by management of the Borrowers, to be reasonable at the time made (it
being understood that (1) no assurance has been or will be given that any
projections or forward-looking information will be achieved, (2) the
projections and forward-looking information are not a guaranty of future
performance, and (3) actual results may differ from projected or
forward-looking results and such differences may be material).
Section 4.10 Margin Regulations
No Borrower is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U of the Federal Reserve Board), and no proceeds of any Loan will be
used to purchase or carry any such margin stock or to extend credit to others
for the purpose of purchasing or carrying any such margin stock in
contravention of Regulation T, U or X of the Federal Reserve Board.
Section 4.11 No Burdensome Restrictions
(a) None of the Borrowers or any of their respective
Subsidiaries (i) is a party to any Contractual Obligation the compliance with
one or more of which would have, in the aggregate, a Material Adverse Effect or
(ii) is subject to one or more charter or corporate restrictions that would, in
the aggregate, have a Material Adverse Effect;
(b) None of the Borrowers or any of their respective
Subsidiaries is in default
under or with respect to any Contractual Obligation owed by it and, to the
knowledge of such Borrower, no other party is in default under or with respect
to any Contractual Obligation owed to any Loan Party or to any Subsidiary of
any Loan Party, other than, in either case, those defaults that, in the
aggregate, would not have a Material Adverse Effect; and
(c) To the best knowledge of each Borrower, there are no
Requirements of Law applicable to any Loan Party or any Subsidiary of any Loan
Party the compliance with which by such Loan Party or such Subsidiary, as the
case may be, would, in the aggregate, have a Material Adverse Effect.
Section 4.12 Investment Company Act; Public Utility Holding
Company Act
Neither the Company nor any of its Subsidiaries is required
to register as (a) an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended or (b) a "holding company" such term
is defined and used in the Public Utility Holding Company Act of 1935, as
amended.
Section 4.13 Use of Proceeds
The proceeds of the Loans and the Letters of Credit are being
used by the Borrowers solely (a) to finance the Transactions (including payment
of fees and expenses in connection therewith) and (b) for working capital and
general corporate purposes, including without limitation to make Permitted
Acquisitions and other Investments permitted by Section 8.3 (Investments).
Section 4.14 Insurance
The certificates of insurance delivered pursuant to Section
3.1 (Conditions Precedent to Initial Loans) represent all material insurance
maintained by the Company and the Subsidiaries as of the Closing Date with
respect to the Loan Parties or the Collateral. All material insurance
maintained by the Company and the Subsidiaries is in full force and effect, all
premiums then due and payable have been duly paid, the Premises, and the use,
occupancy and operation thereof, comply in all material respects with all
Insurance Requirements, and there exists no default under any Insurance
Requirement. The Company and the Subsidiaries have insurance in such amounts
and generally covering such risks and liabilities as are customary for
companies of a similar size engaged in similar businesses in similar locations.
Section 4.15 Labor Matters
(a) There are no strikes, work stoppages, slowdowns or
lockouts pending or to the knowledge of any Borrower, threatened against or
involving any of the Borrowers or any of their respective Subsidiaries, other
than those that, in the aggregate, would not have a Material Adverse Effect.
(b) There are no unfair labor practices, labor grievances,
labor complaints or labor arbitrations pending, or, to any Borrower's
knowledge, threatened, against or involving any Borrower or any of its
Subsidiaries, other than those that, in the aggregate, would not have a
Material Adverse Effect.
Section 4.16 ERISA
(a) Each employee benefit plan of each Borrower or any of its
Subsidiaries intended to qualify under Section 401 of the Code does so qualify,
and any trust created thereunder is exempt from tax under the provisions of
Section 501 of the Code, except where such failures, in the aggregate, would
not have a Material Adverse Effect.
(b) Each Borrower, each of their Subsidiaries and each of
their ERISA Affiliates are in compliance with applicable provisions of ERISA,
the Code and other Requirements of Law with respect to their employee benefit
plans, except for noncompliances that, in the aggregate, would not have a
Material Adverse Effect.
(c) There has been no, nor is there reasonably expected to
occur, any ERISA Event other than those that, in the aggregate, would not have
a Material Adverse Effect.
(d) None of the Borrowers or any of their respective
Subsidiaries or any ERISA Affiliate would have any Withdrawal Liability as a
result of a complete withdrawal as of the date hereof from any Multiemployer
Plan, except for liability that, in the aggregate, would not have a Material
Adverse Effect.
Section 4.17 Environmental Matters
(a) The operations of the Borrowers and each of their
respective Subsidiaries have been and are in substantial compliance with all
Environmental Laws, which compliance includes obtaining, maintaining and
complying with all Permits required pursuant to Environmental Laws, other than
non-compliance that could not have a reasonable likelihood of any of the
Borrowers or their respective Subsidiaries incurring material Environmental
Liabilities and Costs after the date hereof.
(b) There has been no Release or threatened Release on, at,
under or from any Real Property or facility presently or formerly owned, leased
or operated by any of the Borrowers or any of their respective Subsidiaries,
or, to the knowledge of any Borrower, any of their respective predecessors in
interest, or in connection with the operations of any such entities that could
have a reasonable likelihood of any of the Borrowers or any of their respective
Subsidiaries incurring material Environmental Liabilities and Costs.
(c) There is no material Environmental Action pending or, to
the knowledge of any Borrower, threatened against any Borrower or any of their
respective Subsidiaries, or any of their respective predecessors in interest,
or relating to the Real Property currently or formerly owned, leased or
operated by any of such entity or relating to the operations of any such
entity, and, to the knowledge of any Borrower, there are no actions, omissions,
activities, circumstances, conditions, events or incidents that could
reasonably be expected to form the basis of such an Environmental Action
against any Borrower or any of their respective Subsidiaries or any of their
respective predecessors in interest.
(d) (1) None of the Borrowers or any of their respective
Subsidiaries, or, to the knowledge of any Borrower, any of their respective
predecessors in interest, is obligated to perform any material Response Action
or otherwise incur any material Environmental Cost or Liability pursuant to any
order, decree, judgment or agreement by which it is bound or has assumed by
contract, agreement or operation of law, and no such entity is conducting or
financing any material Response Action pursuant to any Environmental Law with
respect to any location, (2) all known material Environmental Actions involving
any such entity or any of their Real Property, facilities, assets or operations
have been resolved without ongoing obligations or costs and (3) no
circumstances exist that would reasonably be expected to (A) form the basis of
a material Environmental Action against any such entity or any of their Real
Property, facilities, assets or operations, or (B) cause any such Real
Property, facilities, assets or operation to be subject to any restriction on
the ownership, occupancy, use or transferability under Environmental Law except
for restrictions on occupancy or use which are consistent with the actual
occupancy or use of such Real Property as of the Closing Date.
(e) No Real Property or facility presently or, to the
knowledge of any Borrower, formerly owned, operated or leased by any Borrower
or any of their respective Subsidiaries, or any of their respective
predecessors in interest, and, to the knowledge of any Borrower, no Real
Property or facility presently or formerly used by any such entity is (1)
listed or proposed for listing on the National Priorities List promulgated
pursuant to CERCLA, (2) listed on the Comprehensive Environmental Response,
Compensation, and Liability Information System promulgated pursuant to CERCLA
or (3) included on any similar list maintained by any Governmental Authority
including, without limitation, any such list relating to petroleum, in each
case, which would reasonably be expected to result in material Environmental
Liabilities and Costs to any Borrower or any of their respective Subsidiaries.
(f) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not affect
the validity or require the transfer of any Environmental Permit held by any of
the Borrowers or any of their respective Subsidiaries under Environmental Law,
and will not require any notification, registration, filing, reporting,
disclosure, investigation, remediation or cleanup pursuant to any Environmental
Real Property Disclosure Requirements.
(g) There are no facts, circumstances or conditions arising
out of or relating to the current or former operations of the Borrowers or any
of their respective Subsidiaries or any Real Property of such entity or, to the
knowledge of any Borrower, any of their respective predecessors in interest or
of Real Property owned, operated or leased by any such entity that are
reasonably likely to result in any such entity incurring material Environmental
Liabilities and Costs.
(h) On the Closing Date, no Environmental Lien has attached
to any property of any Borrower or any of its Subsidiaries and, to the
knowledge of such Borrower, no facts, circumstances or conditions exist that
could reasonably be expected to result in any such Lien attaching to any such
property.
(i) On the Closing Date, the Borrowers and each of their
respective Subsidiaries have made available to the Lenders copies of all
material environmental, health or safety audits, studies, assessments,
inspections, investigations or other environmental health and safety reports
relating to the operations of each Borrower or any of its Subsidiaries or any
Real Property of any of them that are in the possession, custody or control of
such Borrower or any of its Subsidiaries.
Section 4.18 Intellectual Property
The Borrowers and each of their respective Subsidiaries own
or license or otherwise have the right to use all material patents, patent
applications, trademarks, trademark applications, service marks, trade names,
copyrights, copyright applications, Internet domain names and other
intellectual property rights that are necessary for the operations of their
respective businesses, taken as a whole, as currently conducted, without
infringement upon or conflict with the rights of any other Person with respect
thereto, except, in each case, where the failure to own, license or hold such
rights would not, in the aggregate have a Material Adverse Effect.
Section 4.19 Title; Real Property
(a) Each of the Company and its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all material Real
Property including, without limitation, all Mortgaged Property, and good title
to all material personal property, in each case that is purported to be owned
or leased by it, including those reflected on the most recent Financial
Statements delivered by the Company, and none of such properties and assets is
subject to any Lien, except Permitted Collateral Liens. The Company and each of
its Subsidiaries have received all deeds, assignments, waivers, consents,
non-disturbance and recognition or similar agreements, bills of sale and other
documents in respect of, and have duly effected all recordings, filings and
other actions necessary to establish, protect and perfect, the Company's and
its Subsidiaries' right, title and interest in and to all such material
property, including, without limitation, all Mortgaged Property.
(b) Set forth on Schedule 4.19 (Real Property) is a complete
and accurate list as of the Closing Date of all Real Property owned or leased
by each Loan Party, showing the current street address (including, the
applicable state and other relevant jurisdictions), a designation of whether
the Real Property is owned or leased and the Loan Party that is the record
owner or lessee (as applicable) thereof.
(c) Neither the Company nor any of its Subsidiaries has
received any notice, or has any knowledge, of any pending, threatened or
contemplated condemnation proceeding affecting any Mortgaged Property of the
Company or any of its Subsidiaries or any part thereof.
Section 4.20 Collateral Documents
(a) The Domestic Collateral Documents are effective to create
in favor of the Administrative Agent for the benefit of the Secured Parties,
legal, valid and enforceable Liens on, and security interests in, the
Collateral described therein and, when (i) UCC financing statements and other
filings in appropriate form are filed in the appropriate filing offices and
(ii) upon the taking of possession or control by the Administrative Agent of
the Collateral with respect to which a security interest may be perfected only
by possession or control (which possession or control shall be given to the
Administrative Agent to the extent possession or control by the Administrative
Agent is required by the Domestic Security Agreement), the Liens created by the
Domestic Collateral Documents shall (to the extent provided therein) be
perfected in, all right, title and interest of each Domestic Loan Party in the
Collateral of such Domestic Loan Party to the extent that a security interest
may be perfected by the filing of a UCC financing statement, fixture filings
with respect to each Domestic Mortgaged Property, recordation of a mortgage
with respect to each Domestic Mortgaged Property, the execution of a control
agreement or the taking of possession of the Collateral in each case subject to
no Liens other than Liens permitted by Section 8.2 (Liens, Etc.) and in the
case of Mortgaged Properties, Permitted Collateral Liens.
(b) The Foreign Collateral Documents are (or, when entered
into, will be) effective to create in favor of the Administrative Agent for the
benefit of the Foreign Secured Parties, legal, valid and enforceable Liens on,
and security interests in, the applicable Collateral described therein and,
when the actions required to be taken by the Foreign Collateral Documents have
been taken, the Liens created by the Foreign Collateral Documents shall (to the
extent provided therein) constitute perfected first priority Liens on, and
security interests in, all right, title and interest of the grantors in the
applicable Collateral.
(c) When the Domestic Security Agreement or a notice thereof
is recorded in the United States Copyright Office, the Liens created by such
Domestic Security Agreement shall be perfected (to the extent applicable) in,
all right, title and interest of each Domestic Loan Party thereunder in the
registered copyrights and registered copyright licenses of such Domestic Loan
Party to the extent that a security interest may be perfected by the
recordation of such security interest in the United States Copyright Office, in
each case subject to no Liens other than Liens permitted by Section 8.2 (Liens,
Etc.) and only to the extent that priority can be obtained by filing.
(d) Each Domestic Mortgage is effective to create, in favor
of the Administrative Agent, for its benefit and the benefit of the Secured
Parties, legal, valid and enforceable first priority Liens on, and security
interests in, all of the applicable Domestic Loan Party's right, title and
interest in and to the Domestic Mortgaged Properties thereunder and the
proceeds thereof, subject only to Liens permitted by the applicable Mortgage,
and when the Mortgages are filed in the offices specified in the local counsel
opinion delivered with respect thereto or such other actions are taken as
specified in such local counsel opinions in accordance with the provisions of
Section 3.1(a)(xiv) (Conditions Precedent to Initial Loans) hereof, the
applicable Domestic Mortgages shall constitute fully perfected (to the extent
applicable) first priority Liens on, and security interests in, all right,
title and interest of the Domestic Loan Parties in the Domestic Mortgaged
Properties and the proceeds thereof, in each case prior in right to any other
Person, other than Liens permitted by such Mortgage.
(e) Each Collateral Document delivered pursuant to Section
7.10 (Additional Collateral and Guaranties) will, upon execution and delivery
thereof, be effective to create in favor of the Administrative Agent, for the
benefit of the applicable Secured Parties, legal, valid and enforceable Liens
on, and security interests in, all of the applicable Loan Parties' right, title
and interest in and to the Collateral thereunder, and when all appropriate
filings or recordings are made in the appropriate offices or such other actions
are taken as may be required under applicable law, the Liens created by such
Collateral Documents will constitute fully perfected (to the extent applicable)
first priority Liens on, and security interests in, all right, title and
interest of the applicable Loan Parties in such Collateral, in each case
subject to Permitted Collateral Liens.
Section 4.21 U.K. Pensions
Except for the Group Pension Plans:
(a) neither the U.K. Borrower nor any of its Subsidiaries is
or has at any time been an employer (for the purposes of sections 38 to 51 of
the UK Pensions Act 2004) of an occupational pension scheme which is not a
money purchase scheme (both terms as defined in the UK Pension Schemes Act
1993); and
(b) neither the U.K. Borrower nor any of its Subsidiaries is
or has at any time since April 27, 2004 been "connected" with or an "associate"
(as those terms are used in sections 39 and 43 of the UK Pensions Act 2004) of
such an employer.
Section 4.22 Dutch Banking Act
(a) Assuming that the representation of the Euro Term Lenders
in Section 10.10 (Representation by Euro Term Lenders) is true and correct none
of the Dutch Loan Parties require a license as a credit institution
(kredietinstelling) under Section 6 of the Dutch Banking Act.
(b) Each Dutch Loan Party is in compliance with all
applicable provisions of the Dutch Banking Act and any implementing
regulations, including without limitation the Dutch Exemption Regulation.
ARTICLE V
FINANCIAL COVENANTS
Each Borrower agrees with the Lenders, the Issuers and the
Administrative Agent to each of the following as long as any Obligation (other
than any contingent indemnification obligation) remains unpaid or any Revolving
Credit Commitment remains in effect and, in each case, unless the Requisite
Lenders otherwise consent in writing:
Section 5.1 Maximum Leverage Ratio
The Company shall maintain a Leverage Ratio, as determined as
of the last day of each Fiscal Quarter set forth below, of not more than the
maximum ratio set forth below opposite such Fiscal Quarter:
- --------------------------------------- ----------------------------------------
Fiscal Quarter Ending Maximum Leverage Ratio
- --------------------------------------- ----------------------------------------
December 31, 2005 5.00 to 1
- --------------------------------------- ----------------------------------------
March 31, 2006 5.00 to 1
- --------------------------------------- ----------------------------------------
June 30, 2006 5.00 to 1
- --------------------------------------- ----------------------------------------
September 30, 2006 5.00 to 1
- --------------------------------------- ----------------------------------------
December 31, 2006 4.75 to 1
- --------------------------------------- ----------------------------------------
March 31, 2007 4.75 to 1
- --------------------------------------- ----------------------------------------
June 30, 2007 4.75 to 1
- --------------------------------------- ----------------------------------------
September 30, 2007 4.75 to 1
- --------------------------------------- ----------------------------------------
December 31, 2007 4.25 to 1
- --------------------------------------- ----------------------------------------
March 31, 2008 4.25 to 1
- --------------------------------------- ----------------------------------------
June 30, 2008 4.25 to 1
- --------------------------------------- ----------------------------------------
September 30, 2008 4.25 to 1
- --------------------------------------- ----------------------------------------
December 31, 2008 3.75 to 1
- --------------------------------------- ----------------------------------------
March 31, 2009 3.75 to 1
- --------------------------------------- ----------------------------------------
June 30, 2009 3.75 to 1
- --------------------------------------- ----------------------------------------
September 30, 2009 3.75 to 1
- --------------------------------------- ----------------------------------------
December 31, 2009 3.50 to 1
- --------------------------------------- ----------------------------------------
March 31, 2010 3.50 to 1
- --------------------------------------- ----------------------------------------
June 30, 2010 3.50 to 1
- --------------------------------------- ----------------------------------------
September 30, 2010 3.50 to 1
- --------------------------------------- ----------------------------------------
December 31, 2010 3.25 to 1
- --------------------------------------- ----------------------------------------
March 31, 2011 3.25 to 1
- --------------------------------------- ----------------------------------------
June 30, 2011 3.25 to 1
- --------------------------------------- ----------------------------------------
September 30, 2011 3.25 to 1
- --------------------------------------- ----------------------------------------
December 31, 2011 3.25 to 1
- --------------------------------------- ----------------------------------------
March 31, 2012 3.25 to 1
- --------------------------------------- ----------------------------------------
June 30, 2012 3.25 to 1
- --------------------------------------- ----------------------------------------
Section 5.2 Minimum Interest Coverage Ratio
The Company shall maintain an Interest Coverage Ratio, as
determined as of the last day of each Fiscal Quarter set forth below, for the
four Fiscal Quarters ending on such day, of at least the minimum ratio set
forth below opposite such Fiscal Quarter:
- ---------------------------------------- ---------------------------------------
Fiscal Quarter Ending Minimum Interest Coverage Ratio
- ---------------------------------------- ---------------------------------------
December 31, 2005 2.75 to 1
- ---------------------------------------- ---------------------------------------
March 31, 2006 2.75 to 1
- ---------------------------------------- ---------------------------------------
June 30, 2006 2.75 to 1
- ---------------------------------------- ---------------------------------------
September 30, 2006 2.75 to 1
- ---------------------------------------- ---------------------------------------
December 31, 2006 2.75 to 1
- ---------------------------------------- ---------------------------------------
March 31, 2007 2.75 to 1
- ---------------------------------------- ---------------------------------------
June 30, 2007 2.75 to 1
- ---------------------------------------- ---------------------------------------
September 30, 2007 2.75 to 1
- ---------------------------------------- ---------------------------------------
December 31, 2007 3.00 to 1
- ---------------------------------------- ---------------------------------------
March 31, 2008 3.00 to 1
- ---------------------------------------- ---------------------------------------
June 30, 2008 3.00 to 1
- ---------------------------------------- ---------------------------------------
September 30, 2008 3.00 to 1
- ---------------------------------------- ---------------------------------------
December 31, 2008 3.00 to 1
- ---------------------------------------- ---------------------------------------
March 31, 2009 3.00 to 1
- ---------------------------------------- ---------------------------------------
June 30, 2009 3.00 to 1
- ---------------------------------------- ---------------------------------------
September 30, 2009 3.00 to 1
- ---------------------------------------- ---------------------------------------
December 31, 2009 3.00 to 1
- ---------------------------------------- ---------------------------------------
March 31, 2010 3.00 to 1
- ---------------------------------------- ---------------------------------------
June 30, 2010 3.00 to 1
- ---------------------------------------- ---------------------------------------
September 30, 2010 3.00 to 1
- ---------------------------------------- ---------------------------------------
December 31, 2010 3.00 to 1
- ---------------------------------------- ---------------------------------------
March 31, 2011 3.00 to 1
- ---------------------------------------- ---------------------------------------
June 30, 2011 3.00 to 1
- ---------------------------------------- ---------------------------------------
September 30, 2011 3.00 to 1
- ---------------------------------------- ---------------------------------------
December 31, 2011 3.00 to 1
- ---------------------------------------- ---------------------------------------
March 31, 2012 3.00 to 1
- ---------------------------------------- ---------------------------------------
June 30, 2012 3.00 to 1
- ---------------------------------------- ---------------------------------------
Section 5.3 Maximum Capital Expenditures
The Borrowers will not, and will not permit any of their
Subsidiaries to, make any Capital Expenditures, except that the Borrowers and
their Subsidiaries may make Capital Expenditures not exceeding, on a
Consolidated basis for the Company and its Subsidiaries, the amount set forth
below (the "Base Amount") for each of the Fiscal Years of the Company set forth
below:
Fiscal Year Ended Base Amount
December 31, 2005 $80,000,000
December 31, 2006 $80,000,000
December 31, 2007 $70,000,000
December 31, 2008 $70,000,000
December 31, 2009 $70,000,000
December 31, 2010 $70,000,000
December 31, 2011 $70,000,000
December 31, 2012 $70,000,000
provided that for any period set forth above, the Base Amount set forth above
shall be increased by a maximum of 100% of the Base Amount for any such period
by carrying over to any such period any portion of the Base Amount (without
giving effect to any increase) not spent in the immediately preceding period;
provided, further, that (i) any amount carried forward from the previous Fiscal
Year shall be deemed to have been utilized prior to the Base Amount for the
next Fiscal Year, (ii) for avoidance of doubt, Capital Expenditures for the
Fiscal Year ended December 31, 2005 shall include Capital Expenditures made or
committed to be made by the Company and its Subsidiaries prior to the Closing
Date and (iii) the maximum amount of Capital Expenditures as set forth above
may be increased by the amount of Net Cash Proceeds from Asset Sales, Property
Loss Events and Excluded Issuances to the extent such amounts, if not
reinvested, would otherwise be required to be applied to prepay Loans pursuant
to Section 2.9 (Mandatory Prepayments).
ARTICLE VI
REPORTING COVENANTS
Each Borrower agrees with the Lenders, the Issuers and the
Administrative Agent to each of the following, as long as any Obligation (other
than any contingent indemnification obligation) remains unpaid or any Revolving
Credit Commitment remains in effect and, in each case, unless the Requisite
Lenders otherwise consent in writing:
Section 6.1 Financial Statements
The Company shall furnish to the Administrative Agent for
delivery to each Lender each of the following:
(a) Quarterly Reports. Within 50 days after the end of each
of the first three Fiscal Quarters of each Fiscal Year (or, if earlier, the
date on which such information is required to be filed with the SEC), financial
information regarding the Company and its Subsidiaries consisting of a
Consolidated unaudited balance sheet as of the close of such quarter and the
related statements of income, stockholders' equity and cash flow for such
quarter and that portion of the Fiscal Year ending as of the close of such
quarter, and, following the one year anniversary of the Closing Date, setting
forth in comparative form the figures for the corresponding period in the prior
year, in each case certified by a Responsible Officer of the Company as fairly
presenting in all material respects the Consolidated financial position of the
Company and its Subsidiaries as at the dates indicated and the results of their
operations and cash flow for the periods indicated in accordance with GAAP
(subject to the absence of certain footnote disclosure and normal year-end
audit adjustments).
(b) Annual Reports. Within 100 days after the end of each
Fiscal Year (or, if earlier, the date on which such information is required to
be filed with the SEC), financial information regarding the Company and its
Subsidiaries consisting of a Consolidated balance sheet of the Company and its
Subsidiaries as of the end of such year and related statements of income,
stockholders' equity and cash flows of the Company and its Subsidiaries for
such Fiscal Year, all prepared in conformity with GAAP and certified, without
qualification as to the scope of the audit or as to the Company being a going
concern by the Company's Accountants, together with the report of such
accounting firm stating that (i) such Financial Statements fairly present in
all material respects the Consolidated financial position of the Company and
its Subsidiaries as at the dates indicated and the results of their operations
and cash flow for the periods indicated in conformity with GAAP and (ii) the
examination by the Company's Accountants in connection with such Financial
Statements has been made in accordance with generally accepted auditing
standards, and (to the extent permitted by generally accepted auditing and
professional standards) accompanied by a certificate (which may contain
disclaimers reasonably acceptable to the Administrative Agent) stating that, in
the course of such examination, such accounting firm has obtained no knowledge
that the Company failed to comply with the terms, covenants, provisions or
conditions of Article V (Financial Covenants) hereof insofar as they relate to
accounting matters or, if in the opinion of such accounting firm, a failure to
comply with such provisions has occurred and is continuing, a statement as to
the nature thereof.
(c) Compliance Certificate. Within five Business Days after
each delivery of any Financial Statement pursuant to clause (a) or (b) above, a
certificate of a Responsible Officer of the Company (each, a "Compliance
Certificate") (i) showing in reasonable detail the calculations used in
determining the Leverage Ratio (for purposes of determining the Applicable
Margin), demonstrating compliance with each of the financial covenants
contained in Article V (Financial Covenants) that is tested on a quarterly
basis and (ii) stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, stating the nature thereof and the
action that the Company proposes to take with respect thereto.
(d) Collateral Updates. Together with each delivery of any
Financial Statement pursuant to clause (a) or (b) above, a certificate of a
Responsible Officer of the Company stating that such Responsible Officer has
reviewed Section 7.10 (Additional Collateral and Guaranties) and the relevant
provisions of the Collateral Documents and that based upon such review, such
Responsible Officer believes that the Loan Parties have complied with their
obligations under such Section and the Collateral Documents in all material
respects (or, if applicable, setting forth any failure to comply with any such
obligations)
(e) Projections. Not later than March 31 of each Fiscal Year,
financial forecasts prepared by management of the Company for each Fiscal
Quarter in such Fiscal Year.
(f) SEC Website. Reports required to be delivered pursuant to
clauses (a) and (b) above shall be deemed to have been delivered on the date on
which such report is posted on the SEC's website at www.sec.gov and the Company
notifies the Administrative Agent thereof and such posting and notification
shall be deemed to satisfy the reporting requirements of clauses (a) and (b)
above.
Section 6.2 Default Notices
As soon as practicable, and in any event within five Business
Days after a Responsible Officer of any Loan Party has actual knowledge of the
existence of any Default or the occurrence of an event having had or having a
reasonable likelihood of causing a Material Adverse Change, the Company shall
give the Administrative Agent notice specifying the nature of such Default or
other event, including the anticipated effect thereof, which notice, if given
by telephone, shall be promptly confirmed in writing on the next Business Day.
Section 6.3 Litigation
As soon as practicable, and in any event within five Business
Days after a Responsible Officer of any Loan Party becomes aware thereof, the
Company shall give the Administrative Agent written notice of (x) the
commencement of all actions, suits and proceedings before any U.S. or non-U.S.
Governmental Authority or arbitrator affecting the Borrowers or any of their
respective Subsidiaries that (i) seeks injunctive or similar relief which would
be reasonably likely to have a Material Adverse Effect or (ii) in the
reasonable judgment of the Borrowers or such Subsidiary, expose the Borrowers
or such Subsidiary to liability in an amount would reasonably likely to have a
Material Adverse Effect or (y) the settlement of any litigation which would be
reasonably likely to have a Material Adverse Effect.
Section 6.4 Asset Sales
Prior to any Asset Sale (other than intercompany Asset
Sales), the Net Cash Proceeds of which (or the Dollar Equivalent thereof) are
anticipated to exceed $10,000,000 the Company shall send the Administrative
Agent a notice (a) containing a brief description of such Asset Sale and (b)
stating the estimated Net Cash Proceeds anticipated to be received by the
Company or any of its Subsidiaries.
Section 6.5 SEC Filings
Promptly after the sending or filing thereof, the Company
shall send the Administrative Agent copies (which may be electronic copies) or
(or may notify the Administrative Agent of the posting of the same to the SEC
website (www.sec.gov) of (a) all reports that Company sends to its security
holders generally and (b) all reports and registration statements that Company
or any of its Subsidiaries files with the SEC or any U.S. or non-U.S.
securities regulatory authority or securities exchange or the National
Association of Securities Dealers, Inc.
Section 6.6 Labor Relations
Promptly after becoming aware of the same, the Company shall
give the Administrative Agent written notice of (a) any labor dispute to which
the Company or any of its Subsidiaries is or may become a party, including any
strikes, lockouts or other disputes relating to any of such Person's plants and
other facilities which is reasonably likely to result in a material disruption
of the business of the Company and its Subsidiaries, taken as a whole, and (b)
any Worker Adjustment and Retraining Notification Act or related liability
incurred with respect to the closing of any plant or other facility of any such
Person that is likely to result in a liability to the Company or any of its
Subsidiaries in excess of $20,000,000.
Section 6.7 Insurance
As soon as is practicable and in any event within 90 days
after the end of each Fiscal Year, the Company shall furnish the Administrative
Agent with a report in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders outlining all material insurance coverage
maintained as of the date of such report by the Company or any Subsidiary of
the Company and the duration of such coverage.
Section 6.8 ERISA Matters
The Company shall furnish the Administrative Agent (for
delivery to each the Lenders) each of the following:
(a) promptly and in any event within 10 Business Days after
the Company, any Subsidiary of the Company or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, written notice describing
such event;
(b) promptly and in any event within 10 Business Days after
the Company, any Subsidiary of the Company or any ERISA Affiliate knows or has
reason to know that a request for a minimum funding waiver under Section 412 of
the Code has been filed with respect to any Title IV Plan or Multiemployer
Plan, a written statement of a Responsible Officer of the Company describing
such ERISA Event or waiver request and the action, if any, the Company, its
Subsidiaries and ERISA Affiliates propose to take with respect thereto and a
copy of any notice filed with the PBGC or the IRS pertaining thereto;
(c) simultaneously with the date that the Company, any
Subsidiary of the Company or any ERISA Affiliate files a notice of intent to
terminate any Title IV Plan, if such termination would require material
additional contributions in order to be considered a standard termination
within the meaning of Section 4041(b) of ERISA, a copy of each notice; and
(d) upon reasonable 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
Title IV Plan; (ii) the most recent actuarial valuation report for each Title
IV Plan; and (iii) such other documents or governmental reports or filings
relating to any employee benefit plan as the Administrative Agent shall
reasonably request.
Section 6.9 Environmental Matters
The Company shall provide the Administrative Agent promptly
and in any event within 10 days of the Company or any Subsidiary of the Company
learning of any of the following, written notice of each of the following:
(a) that the Company or any of its Subsidiaries is or may be
liable to any Person as a result of a Release or threatened Release that could
reasonably be expected to subject such Loan Party to Environmental Liabilities
and Costs the Dollar Equivalent of which individually or in the aggregate with
other Releases shall exceed $20,000,000;
(b) the receipt by the Company or any of its Subsidiaries of
notification that any real or personal property of such Loan Party is or is
reasonably likely to be subject to any Environmental Lien;
(c) the receipt by the Company or any of its Subsidiaries of
any notice of any judicial or administrative proceeding or investigation under
any Environmental Law or violation of or potential liability under, or
knowledge by such Person that there exists a condition that could reasonably be
expected to result in a violation of or liability under, any Environmental Law,
except for violations and liabilities the consequence of which, in the
aggregate, would not be reasonably likely to subject the Company and its
Subsidiaries collectively to Environmental Liabilities and Costs the Dollar
Equivalent of which individually or in the aggregate with other proceedings,
investigations, violations or liabilities under Environmental Law shall exceed
$20,000,000;
(d) any proposed acquisition of stock, assets or real estate,
any proposed leasing of property or any other action by any Loan Party or any
of its Subsidiaries other than those the consequences of which, in the
aggregate, do not have a reasonable likelihood of subjecting the Loan Parties
collectively to Environmental Liabilities and Costs the Dollar Equivalent of
which shall exceed $20,000,000;
(e) any proposed action by any Loan Party or any of its
Subsidiaries or any proposed change in Environmental Laws that, in the
aggregate, have a reasonable likelihood of requiring the Loan Parties or any of
their respective Subsidiaries to obtain additional environmental, health or
safety Permits or make additional capital improvements to obtain compliance
with Environmental Laws that, in the aggregate, would have cost the Dollar
Equivalent of $20,000,000 or more or that shall subject the Loan Parties or any
of their respective Subsidiaries to additional Environmental Liabilities and
Costs the Dollar Equivalent of which shall exceed $20,000,000;
(f) upon written request by any Lender through the
Administrative Agent, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue
identified in any notice or report delivered pursuant to this Agreement; and
(g) with respect to clauses (a) through and including (f) of
this Section, it being understood that the timeliness and adequacy of any such
notice to the Administrative Agent which is consistent with applicable
Environmental Laws or which has been agreed to in writing by any Governmental
Authority having jurisdiction thereof shall constitute compliance with respect
to the timeliness and adequacy of such notice to the Administrative Agent.
Section 6.10 UK Pension Matters
The U.K. Borrower shall furnish to the Administrative Agent
promptly, and in any event within 10 days, any actuarial reports relating to
pension schemes operated by or maintained for the benefit of the U.K. Borrower
or any of its Subsidiaries and/or any of their employees.
Section 6.11 Know Your Customer Regulations
(a) If:
(i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
regulation made after the Closing Date;
(ii) any change in the status of a Borrower or the
composition of the shareholders of a Borrower after the date of this
Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of
its rights and/or obligations under this Agreement to a party that is
not a Lender prior to such assignment or transfer
obliges the Administrative Agent or any Lender (or, in the case of clause (iii)
above, any prospective new Lender) to comply with "know your customer" or
similar identification procedures in circumstances where the necessary
information is not already available to it, each Borrower shall promptly upon
the request of the Administrative Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Administrative Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of the event described in clause (iii) above, on
behalf of any prospective new Lender) in order for the Administrative Agent,
such Lender or, in the case of the event described in clause (iii) above, any
prospective new Lender to carry out and be satisfied with the results of all
necessary "know your customer" or other similar checks under all applicable
laws and regulations pursuant to the transactions contemplated in the Loan
Documents.
(b) Each Lender shall promptly upon the request of the
Administrative Agent supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Administrative Agent (for
itself) in order for the Administrative Agent to carry out and be satisfied
with the results of all necessary "know your customer" or other similar checks
under all applicable laws and regulations pursuant to the transactions
contemplated in the Loan Documents.
Section 6.12 Other Information
The Borrowers shall provide the Administrative Agent or any
Lender with such other information respecting the business, properties,
financial condition or results of operations of the Company or any Subsidiary
of the Company as the Administrative Agent or such Lender through the
Administrative Agent may from time to time reasonably request.
ARTICLE VII
AFFIRMATIVE COVENANTS
Each Borrower agrees with the Lenders, the Issuers and the
Administrative Agent to each of the following, as long as any Obligation (other
than any contingent indemnification obligation) remains unpaid or any Revolving
Credit Commitment remains in effect and, in each case, unless the Requisite
Lenders otherwise consent in writing:
Section 7.1 Preservation of Corporate Existence, Etc.
Each Borrower shall, and shall cause each of its Subsidiaries
to, preserve and maintain its legal existence, rights (charter and statutory)
and franchises, except as permitted by Sections 8.4 (Sale of Assets) and 8.7
(Restriction on Fundamental Changes) and except as would not, in the aggregate,
have a Material Adverse Effect.
Section 7.2 Compliance with Laws, Etc.
Each Borrower shall, and shall cause each of its Subsidiaries
to, comply with all applicable Requirements of Law, Contractual Obligations and
Permits, except where the failure so to comply would not, in the aggregate,
have a Material Adverse Effect.
Section 7.3 Payment of Taxes, Etc.
Each Borrower shall, and shall cause each of its Subsidiaries
to, pay and discharge before the same shall become delinquent, all lawful
governmental claims, Taxes, assessments, charges and levies, except where
contested in good faith, by proper proceedings and such proceeding contesting
such Lien shall stay the sale or forfeiture of any material portion of the
Collateral (including any Mortgaged Property) on account of such Lien. To the
extent the Dollar Equivalent of the Revolving Credit Outstandings at any time
is less than $17,600,000, the Borrowers shall promptly take all actions as may
be required (including the payment of any additional mortgage recording taxes,
fees, charges, costs and expenses) in order to grant, preserve, protect or
perfect the Liens created by each Mortgage on a Mortgaged Property located in
the State of New York for the maximum amount of Indebtedness by its terms
secured thereby.
Section 7.4 Maintenance of Insurance
(a) Each Borrower shall (i) maintain for itself, and each
Borrower shall cause to be maintained for each of its Subsidiaries, insurance
(including flood insurance) with responsible and reputable insurance companies
or associations in such amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning similar properties in the
same general areas in which such Borrower or such Subsidiary operates and, in
any event, all insurance required by any Collateral Document and (ii) cause all
such insurance policies relating to any Loan Party to name the Administrative
Agent on behalf of the applicable Secured Parties as additional insured or loss
payee, as appropriate, and to provide that no cancellation, material addition
in amount or material change in coverage shall be effective until after 30
days' written notice thereof (or such shorter period as may be agreed to by the
Administrative Agent) to the Administrative Agent and to name the
Administrative Agent as mortgagee (in the case of property insurance) or
additional insured on behalf of the applicable Secured Parties (in the case of
liability insurance) or loss payee (in the case of property insurance), as
applicable.
(b) Notice to Agents. Each Borrower shall notify the
Administrative Agent immediately whenever any separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained
under this Section 7.4 is taken out by any Borrower or any Subsidiary and
promptly deliver to the Administrative Agent a duplicate original copy of such
policy or policies.
(c) Flood Insurance. The Company shall, with respect to each
Domestic Mortgaged Property obtain flood insurance in such amount as the
Administrative Agent or the Requisite Lenders shall reasonably require, if at
any time the area in which any improvements located on any Domestic Mortgaged
Property is designated a "flood hazard area" in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any successor agency),
and otherwise comply with the National Flood Insurance Program as set forth in
the Flood Disaster Protection Act of 1973, as amended from time to time.
(d) Broker's Report. Each Borrower shall, deliver to the
Administrative Agent a report of a reputable insurance broker with respect to
such insurance and such supplemental reports with respect thereto as the
Administrative Agent may from time to time reasonably request.
Section 7.5 Access
Each Borrower shall, and shall cause each of its Subsidiaries
to, permit the Administrative Agent and the Lenders, or any agents or
representatives thereof (at reasonable times and as often as reasonably
requested during normal business hours to (a) examine and make copies of and
abstracts from the records and books of account of the Company and its
Subsidiaries, (b) visit the properties of the Company and its Subsidiaries and
(c) discuss the affairs, finances and accounts of the Company and its
Subsidiaries with any of their respective officers or employees of the Company.
All such visits shall be coordinated by the Administrative Agent and in no
event shall the Company be required to pay expenses of more than one such visit
per calendar year except during the continuance of an Event of Default.
Section 7.6 Keeping of Books
The Company shall, and shall cause each of its Subsidiaries
to, keep adequate books of record and account, in which complete entries shall
be made of all financial transactions and the assets and business of the
Company and each such Subsidiary.
Section 7.7 Maintenance of Properties, Etc .
Each Borrower shall, and shall cause each of its Subsidiaries
to, maintain and preserve (a) in good working order and condition, ordinary
wear and tear and insured peril excepted, all of its properties necessary in
the conduct of its business, (b) all rights, permits, licenses, approvals and
privileges (including all Permits) used or useful or necessary in the conduct
of its business and (c) all registered patents, trademarks, trade names,
copyrights and service marks used in its business, except where failure to so
maintain and preserve the items set forth in clauses (a), (b) and (c) above
would not, in the aggregate, have a Material Adverse Effect.
Section 7.8 Application of Proceeds
The Borrowers (and, to the extent distributed to them by any
Borrower, each of its Subsidiaries) shall use the entire amount of the proceeds
of the Loans as provided in Section 4.13 (Use of Proceeds).
Section 7.9 Environmental
Each Borrower shall, and shall cause each of its Subsidiaries
to, comply in all material respects with Environmental Laws and, without
limiting the foregoing, any Borrower shall, at its sole cost and expense, upon
receipt of any notification or otherwise obtaining knowledge of any Release or
other event that has any reasonable likelihood of resulting in such Borrower or
any Subsidiary of such Borrower incurring material Environmental Liabilities
and Costs take such Response Action and undertake such investigation or other
action as required by Environmental Laws or any Governmental Authority or as is
appropriate and consistent with good business practice to address the Release
or threatened Release or event and otherwise ensure compliance in all material
respects with Environmental Laws, and keep the Administrative Agent and the
Requisite Lenders reasonably and promptly informed, in writing, of the
aforementioned circumstances and responsive actions, it being understood that
the timeliness and adequacy of any such response which is consistent with
applicable Environmental Law or which has been agreed to in writing by any
Governmental Authority having jurisdiction thereof shall constitute compliance
with this Section 7.9 with respect to the timeliness and adequacy of any such
response, including the timeliness of informing the Administrative Agent of
such circumstances and responsive actions.
Section 7.10 Additional Collateral and Guaranties
(a) With respect to any property existing on the Closing Date
or acquired after the Closing Date by any Loan Party that is required pursuant
to the terms of any Loan Document to be subject to a perfected Lien in favor of
the Administrative Agent but is not so subject, promptly (and in any event
within 30 days after the acquisition thereof unless the Administrative Agent
agrees to a longer period) (i) execute and deliver to the Administrative Agent
such amendments or supplements to the relevant Collateral Documents or such
other documents as the Administrative Agent shall reasonably request that are
reasonably necessary or advisable to grant to the Administrative Agent, for its
benefit and for the benefit of the applicable other Secured Parties, a first
priority Lien on such property subject to no Liens other than Permitted
Collateral Liens, and (ii) take all actions necessary to cause such Lien to be
duly perfected to the extent required by such Collateral Documents in
accordance with applicable Requirements of Law, including the filing of
financing statements or other documents in such jurisdictions as may be
reasonably requested by the Administrative Agent.
(b) With respect to any Person that becomes a Subsidiary
after the Closing Date, promptly:
(i) in the case of any Domestic Subsidiary other than a
Securitization Subsidiary, (A) deliver to the Administrative Agent the
certificates, if any, representing the Stock of such Subsidiary owned
by any Domestic Loan Party, together with undated stock powers or
other appropriate instruments of transfer executed and delivered in
blank by a duly authorized officer of the holder(s) of such Stock, and
all intercompany notes owing from such Subsidiary to any Domestic Loan
Party together with instruments of transfer executed and delivered in
blank by a duly authorized officer of such Loan Party, (B) cause such
new Subsidiary to execute joinder agreements to the Domestic Guaranty
and the Domestic Security Agreement and (C) take and cause such
Subsidiary to take all actions requested by the Administrative Agent
that are reasonably necessary or advisable to cause the Liens created
by the Domestic Security Agreement to be duly perfected to the extent
required by such agreement in accordance with applicable Requirements
of Law, including the filing of financing statements in such
jurisdictions as may be reasonably requested by the Administrative
Agent;
(ii) in the case of any Foreign Subsidiary organized under
the laws of any Foreign Loan Party Jurisdiction other than a
Securitization Subsidiary and (unless otherwise agreed by the Company)
any limited purpose holding company formed in connection with the
Specified Restructuring Transactions, except to the extent counsel to
the Loan Parties reasonably acceptable to the Administrative Agent
determines that other action is advisable in order to guarantee, or
create or perfect Liens to secure, the applicable Obligations (in
which case, such other actions shall be taken unless the
Administrative Agent determines in its reasonable discretion that the
benefits afforded thereby are outweighed by the hardship of taking
such action), (A) take such action as may be required to perfect the
Lien of the Collateral Documents in the Stock of such Foreign
Subsidiary and (B) enter into supplements to the applicable Foreign
Guaranty and the applicable Foreign Collateral Documents in order to
guarantee or grant or perfect security interests in the assets of a
Subsidiary from such jurisdiction or comparable additional Foreign
Collateral Documents in order to guarantee and create and perfect
security interests in the assets of such Foreign Subsidiary to secure
the Foreign Obligations to substantially the same extent as was
required for the Foreign Loan Parties on the Closing Date;
(iii) in the case of any Foreign Subsidiary organized under
the laws of any jurisdiction other than a Foreign Loan Party
Jurisdiction (other than a Securitization Subsidiary) the Stock of
which is owned by any Domestic Loan Party, to the extent required by
the Domestic Security Agreement, take such action as may be required
to perfect the Lien of the Collateral Documents in the Stock of such
Foreign Subsidiary; and
(iv) in the case of any Securitization Subsidiary, pledge the
Stock of such Securitization Subsidiary to secure the Secured
Obligations to the extent required by the definition of
"Securitization Subsidiary."
(c) Promptly grant to the Administrative Agent, within 60
days of the acquisition thereof, a security interest in and Mortgage on (i)
each domestic Real Property owned in fee by any Loan Party as is acquired by
such Loan Party after the Closing Date and that, together with any improvements
thereon, individually has a fair market value of at least the Dollar Equivalent
of $3.0 million, and (ii) unless the Administrative Agent otherwise consents,
each leased domestic Real Property of such Loan Party which lease individually
has a fair market value of at least the Dollar Equivalent of $3.0 million (as
reasonably agreed upon by the applicable Loan Party and the Administrative
Agent), in the case of the Domestic Loan Parties, as additional security for
the Secured Obligations (in each case unless the subject property is already
mortgaged to a third party to the extent permitted by Section 8.2(e) and a
subordinate lien is not permitted on such Real Property pursuant to the terms
of the Indebtedness evidenced by such Mortgage; provided that, with respect to
leased domestic Real Property only, such Loan Party shall be required only to
use commercially reasonable efforts to do so. Such Mortgages shall be granted
pursuant to documentation reasonably satisfactory in form and substance to the
Administrative Agent but in any event substantially similar to the Mortgages
executed on the Closing Date except for changes necessitated by Requirement of
Law and shall constitute valid and enforceable Liens subject only to Permitted
Collateral Liens. The Mortgages or instruments related thereto shall be duly
recorded or filed in such manner and in such places as are required by law to
establish, perfect, preserve and protect the Liens in favor of the
Administrative Agent required to be granted pursuant to the Mortgages and all
taxes, fees and other charges payable in connection therewith shall be paid in
full. Such Loan Party shall otherwise take such actions and execute and/or
deliver to the Administrative Agent such documents as the Administrative Agent
shall reasonably require to confirm the validity, perfection and priority of
the Lien of any existing Mortgage or new Mortgage against such after-acquired
Real Property (including a Title Policy, a Survey (in the case of any domestic
Real Property owned in fee), Flood Certificate, and local counsel opinion (in
form and substance reasonably satisfactory to the Administrative Agent) in
respect of such Mortgage).
(d) Notwithstanding anything in this Agreement to the
contrary, in no event shall (A) more than 65% of the outstanding Voting Stock
of any Controlled Foreign Corporation be required to be pledged (either
directly or indirectly) as security for the Domestic Obligations or (B) the
assets of any Controlled Foreign Corporation (including any Stock owned by such
Controlled Foreign Corporation) be required to be pledged as security for the
Domestic Obligations.
(e) The Company may, at its option (but shall not be required
to), cause any Subsidiary which is organized under the laws of any Foreign Loan
Party Jurisdiction but which is not a Foreign Guarantor and which is not
required to become a Foreign Guarantor pursuant to clause (b) above, to become
a "Foreign Guarantor" for all purposes hereunder by complying with the
applicable provisions of clause (b) above; provided that any Liens on assets of
such Subsidiary and Indebtedness of such Subsidiary that is outstanding on the
date such Subsidiary becomes a Foreign Guarantor shall be deemed to have been
incurred by such Subsidiary on the date such Subsidiary becomes a Foreign
Guarantor and no Default may arise as a result of such Subsidiary becoming a
Foreign Guarantor.
Section 7.11 Post-Closing Covenants(1)
Not later than the date set forth on Schedule 7.11
(Post-Closing Documents) (unless the Administrative Agent shall have extended
such date in its sole discretion), the Borrowers shall deliver to the
Administrative Agent each of the documents set out in Schedule 7.11
(Post-Closing Documents), in form and substance reasonably satisfactory to the
Administrative Agent.
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(1) Note--will include at least (i) UK guarantees/security (which require
whitewash procedures under UK financial assistance laws) that will be
completed within 45 days of closing, (ii) certain foreign equity
pledges and (iii) certain US real estate matters.
Section 7.12 UK Pension Matters
(a) The U.K. Borrower shall ensure that in relation to each
pension scheme operated by or maintained for the benefit of the U.K. Borrower
or any of its Subsidiaries and/or any of its employees employer contributions
are made:
(i) in accordance with the provisions of the UK Pensions Act
1995 relating to the minimum funding requirement as defined in section
56 of that Act, and in particular in compliance with the schedule of
contributions under section 58, until the minimum funding requirement
ceases to apply; and
(ii) in accordance with the provisions of the UK Pensions Act
2004 relating to scheme funding, as they apply, and in particular in
compliance with any schedule of contributions in force under section
227 of that Act.
(b) The U.K. Borrower shall use reasonable endeavors to
ensure that no action or omission is taken by the U.K. Borrower or any of its
Subsidiaries in relation to a pension scheme within (a) above (including,
without limitation, the triggering of a winding-up of any such pension scheme)
which has or is reasonably likely to have a Material Adverse Effect.
(c) Except for the Group Pension Plans, the U.K. Borrower
shall ensure that neither it nor any of its Subsidiaries is or has at any time:
(i) been an employer (for the purpose of sections 38 to 51 of
the UK Pensions Act 2004 of a UK occupational pension scheme which is
neither a money purchase scheme nor a scheme for the provision of
death benefits only (as defined in the UK Pension Schemes Act 1993);
or
(ii) since April 27, 2004, been "connected" with or an
"associate" (as defined in sections 39 and 43 of the UK Pensions Act
2004) of such an employer (as described in sub-paragraph (i) above).
(d) The U.K. Borrower shall deliver to the Administrative
Agent promptly once they are available, such actuarial reports (whether
addressed to the trustees of any relevant schemes or to the U.K. Borrower or
any of its Subsidiaries) as are prepared in order to comply with the then
current statutory or auditing requirements in relation to all pension schemes
mentioned in (a) above.
(e) The U.K. Borrower shall promptly notify the
Administrative Agent of any material change in the rate of contributions to any
pension schemes mentioned in (a) above, paid, recommended to be paid (whether
by the scheme actuary or otherwise) or required by law to be paid.
(f) Each Borrower shall promptly notify the Administrative
Agent of any investigation by the Pensions Regulator which may expressly lead
to the issue of a Financial Support Direction or a Contribution Notice to any
member of the Group.
(g) Each Borrower shall promptly notify the Administrative
Agent if it receives a Financial Support Direction or a Contribution Notice
from the Pensions Regulator.
Section 7.13 Ratings
The Borrowers shall use commercially reasonable efforts to
ensure that Moody's and S&P continue to rate the Facilities until payment in
full of the Obligations, cancellation or expiration of all Letters of Credit
and termination of all the Commitments.
Section 7.14 Dutch Banking Act
The Dutch Borrower shall comply with all applicable
provisions of the Dutch Banking Act and any implementing regulations, including
without limitation the Dutch Exemption Regulation.
ARTICLE VIII
NEGATIVE COVENANTS
Each Borrower agrees with the Lenders, the Issuers and the
Administrative Agent to each of the following, as long as any Obligation (other
than any contingent indemnification obligation) remains unpaid or any
Commitment remains in effect and, in each case, unless the Requisite Lenders
otherwise consent in writing:
Section 8.1 Indebtedness
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, create, incur, assume or otherwise become or
remain liable with respect to any Indebtedness, except for the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Company under the Subordinated Notes
in an aggregate principal amount not to exceed $350,000,000 at any time;
(c) Indebtedness existing on the date of this Agreement and
disclosed on Schedule 8.1 (Existing Indebtedness);
(d) Indebtedness of Securitization Subsidiaries in respect of
Permitted Receivables Financing;
(e) Indebtedness, including Capital Lease Obligations and
purchase money Indebtedness incurred by the Borrowers or any of their
respective Subsidiaries to finance the acquisition, construction or improvement
of any fixed or capital assets or personal property; provided, however, that
the Dollar Equivalent of the aggregate outstanding principal amount of all such
Capital Lease Obligations and purchase money Indebtedness, together with all
Permitted Refinancings thereof, shall not exceed $25,000,000 at any time;
(f) Indebtedness arising from intercompany loans and
Guarantees among (or for the benefit of) the Company and its Subsidiaries
permitted under Section 8.3 (Investments); provided, that any loan owed by (x)
a Domestic Loan Party to a Foreign Loan Party or (y) a Loan Party to a
Subsidiary that is not a Loan Party is subordinated following an Event of
Default to the prior payment in full of the Obligations of such Loan Party;
(g) (i) Indebtedness arising under any completion guaranty,
performance, bid or surety bond, any bond related to worker's compensation or
any self insurance obligations, in each case entered into in the ordinary
course of business and (ii) Indebtedness arising under appeal bonds in
connection with judgments which do not constitute an Event of Default under
clause (g) of Section 9.1 (Events of Default);
(h) Obligations under Hedging Contracts unless prohibited
under Section 8.16 (No Speculative Transactions);
(i) Indebtedness not otherwise permitted under this Section
8.1; provided, however, that the Dollar Equivalent of the aggregate outstanding
principal amount of all such Indebtedness permitted pursuant to this clause (i)
shall not exceed $15,000,000 at any time;
(j) Indebtedness of any Person existing at the time such
Person is acquired in connection with a Permitted Acquisition; provided,
however, that (i) such Indebtedness is not incurred in connection with or in
contemplation of such Permitted Acquisition and (ii) the Dollar Equivalent of
the aggregate amount of all outstanding Indebtedness and Permitted Refinancing
Indebtedness in respect thereof shall not exceed $15,000,000 at the time of any
incurrence of Indebtedness pursuant to this clause (j));
(k) Indebtedness consisting of working capital facilities,
lines of credit, letter of credit facilities or cash management arrangements
for Foreign Subsidiaries (other than any Foreign Loan Party); provided,
however, that the Dollar Equivalent of the aggregate principal amount of such
Indebtedness outstanding at any time of all such Subsidiaries shall not exceed
$50,000,000;
(l) Indebtedness in respect of indemnification obligations or
obligations in respect of purchase price adjustments or similar obligations
incurred or assumed by the Company and its Subsidiaries in connection with an
Asset Sale or sale of Stock of the Company or its Subsidiaries otherwise
permitted under this Agreement or in connection with the sale of goods by the
Company or its Subsidiaries;
(m) Indebtedness incurred solely to finance insurance
premiums;
(n) Indebtedness of the Company or any of its Subsidiaries
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn by the Company or such
Subsidiary in the ordinary course of business against insufficient funds, so
long as such Indebtedness is repaid within five Business Days;
(o) Indebtedness in respect of (i) deposits held under
forward purchasing arrangements entered into with customers in the ordinary
course of business and (ii) take or pay obligations contained in supply
agreements entered into in the ordinary course of business;
(p) any Permitted Refinancing of the Indebtedness permitted
by clause (b), (c), (e) or (j) above or this clause (p);
(q) Indebtedness of any Loan Party or any of their respective
Subsidiaries owed to (including obligations in respect of letters of credit for
the benefit of and reimbursement of indemnification obligations to) any Person
in connection with workers' compensation or self-insurance obligations, in each
case incurred in the ordinary course of business;
(r) unsecured Indebtedness arising by reason of endorsement
of negotiable instruments or other items or similar transactions in the
ordinary course of business; and
(s) Indebtedness in respect of tax sharing agreements by and
among the Company and any of its Subsidiaries (or by and among Subsidiaries of
the Company) that are permitted by Section 8.9 (Transactions with Affiliates).
Section 8.2 Liens, Etc.
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, create or suffer to exist, any Lien upon or
with respect to any of their respective properties or assets, whether now owned
or hereafter acquired, except for the following:
(a) Liens created pursuant to the Loan Documents;
(b) Liens existing on the date of this Agreement which (i) as
to each Mortgaged Property are disclosed on Schedule B to the applicable
Mortgage and (ii) as to any other Collateral, disclosed on Schedule 8.2
(Existing Liens) as of the Closing Date;
(c) Customary Permitted Liens;
(d) Liens (including the interest of a lessor under a Capital
Lease) securing Indebtedness permitted under Section 8.1(e) (Indebtedness)
provided such Liens do not encumber any property or assets other than the
property or assets acquired, constructed or improved with such Indebtedness;
(e) Liens on property or assets of any Person at the time
such assets are acquired or such Person becomes a Subsidiary or is merged,
amalgamated or consolidated with or into the Company or its Subsidiaries,
provided, however, that any such Lien is not incurred in connection with
Indebtedness incurred in contemplation of such Permitted Acquisition and does
not extend to property not subject to such Lien at the time of acquisition or
merger, amalgamation or consolidation;
(f) Liens securing Indebtedness of Subsidiaries of the
Company permitted under Section 8.1(k) (Indebtedness) on the assets of the
Subsidiaries that are obligors with respect to such Indebtedness;
(g) any Lien securing the Permitted Refinancing of any
Indebtedness secured by any Lien permitted by clause (b), (d) or (e) above or
this clause (g) provided that such Liens do not encumber additional assets;
(h) Liens on accounts receivable, chattel paper and other
related assets of a Securitization Subsidiary in connection with any Permitted
Receivables Financing;
(i) Liens on cash or Cash Equivalents, not to exceed the
Dollar Equivalent of $15,000,000 in the aggregate at any time, securing
reimbursement obligations with respect to letters of credit, cash management
obligations or obligations under Hedging Contracts not prohibited by Section
8.16 (No Speculative Transactions);
(j) Liens securing Indebtedness permitted pursuant to clause
(m) of Section 8.1 (Indebtedness) provided that such Liens attach only to
amounts payable under the insurance policies financed by such Indebtedness and
any premiums returnable under such policies;
(k) Liens not otherwise permitted by this Section 8.2
securing obligations in an amount outstanding from time to time not to exceed
the Dollar Equivalent of $25,000,000; and
(l) Liens securing pension obligations of the U.K. Borrower
and any Subsidiary formed under the laws of the United Kingdom on any assets of
any such Person that do not extend to property constituting Collateral.
Section 8.3 Investments
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to make or maintain, directly or indirectly, any
Investment, except for the following:
(a) Investments existing on the date of this Agreement and
disclosed on Schedule 8.3 (Existing Investments) and any extensions or renewals
thereof which do not increase the amount thereof;
(b) Investments in cash and Cash Equivalents;
(c) Investments in payment intangibles, chattel paper and
accounts (each as defined in the UCC), notes receivable and similar items
arising or acquired in the ordinary course of business;
(d) Investments received in settlement of amounts due to the
Borrowers or any of their respective Subsidiaries effected in the ordinary
course of business, including without limitation Investments received in
connection with the bankruptcy or reorganization of suppliers and customers and
other Persons having obligations in favor of the Company or its subsidiaries in
settlement of delinquent obligations of, and other disputes with, customers and
suppliers and such other Persons and Investments received in connection with
the settlement, release or surrender of a contract, tort or litigation claim;
(e) Investments (including, without limitation, Guaranty
Obligations) made by:
(i) any Domestic Loan Party to or for the benefit of any
other Domestic Loan Party;
(ii) any Foreign Loan Party to or for the benefit of any
other Loan Party;
(iii) any Loan Party to or for the benefit of the Company or
any Subsidiary of the Company; provided, however, that the aggregate
amount of all such Investments outstanding at any time pursuant to
this clause (iii) shall not exceed the Dollar Equivalent of
$75,000,000;
(iv) any Subsidiary of the Company that is not a Loan Party
to (x) any Loan Party or (y) to another Subsidiary of the Company that
is not a Loan Party; and
(v) any Loan Party to or for the benefit of any other
Subsidiary of the Company in the form of intercompany loans; provided
that the aggregate amount of intercompany loans at any time
outstanding under this clause (v) shall not (when taken together with
any such intercompany loans outstanding on the Closing Date that
remain outstanding at such time) exceed the aggregate amount of such
intercompany loans to Subsidiaries of the Company that are not Loan
Parties set forth on Schedule 8.3 (Existing Investments).
(f) loans or advances to employees, officers and directors of
the Borrowers or any of their respective Subsidiaries in the ordinary course of
business other than any loans or advances that would be in violation of Section
402 of the Sarbanes-Oxley Act; provided, however, that the Dollar Equivalent of
the aggregate principal amount of all loans and advances permitted pursuant to
this clause (f) shall not exceed $20,000,000 at any time;
(g) Investments (A) made by any Loan Party in connection with
a Permitted Acquisition, and (B) in promissory notes or other assets received
in consideration from Asset Sales permitted under clauses (f), (g) and (h) of
Section 8.4 (Sale of Assets);
(h) Investments required pursuant to Permitted Receivables
Financing (including with respect to the establishment and capitalization of
Securitization Subsidiaries);
(i) Deposits of cash with banks or other depository
institutions in the ordinary course of business;
(j) Investments in Hedging Contracts to the extent not
prohibited by Section 8.16 (No Speculative Transactions);
(k) Investments resulting from the Transactions in accordance
with the terms of the Acquisition Documents;
(l) advances, prepayments, pledges or deposits made in the
ordinary course of business and endorsements of negotiable instruments for
collection in the ordinary course of business;
(m) Investments of a Person at the time such Person becomes a
Subsidiary of the Company which were not acquired in contemplation of such
Person becoming a Subsidiary of the Company;
(n) purchases or acquisitions of licenses in the ordinary
course of business;
(o) (i) any Domestic Loan Party may create a Subsidiary that
becomes a Domestic Guarantor under the terms of Section 7.10(b)(Additional
Collateral and Guaranties), (ii) any Foreign Subsidiary may create a
Subsidiary, provided that if such Foreign Subsidiary is a Loan Party and such
newly created Subsidiary is organized under the laws of any Foreign Loan Party
Jurisdiction, such Subsidiary shall, except as otherwise provided therein,
become a Foreign Guarantor under the applicable Foreign Guaranty under the
terms of Section 7.10(b) (Additional Collateral and Guaranties);
(p) Investments not otherwise permitted hereby, including
without limitation other Investments in any Subsidiary of the Company or any
joint venture; provided, however, that (i) the Dollar Equivalent of the
aggregate outstanding amount of all such Investments (calculated by subtracting
any dividends or distributions or repayment of principal received in respect
thereof) shall not exceed $50,000,000 at any time;
(q) Investments resulting from the Specified Restructuring
Transactions; and
(r) guaranty obligations in respect of obligations of Foreign
Subsidiaries arising in the ordinary course of business in an amount not to
exceed the Dollar Equivalent of $25,000,000 at any time outstanding.
Section 8.4 Sale of Assets
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, sell, convey, transfer, lease or otherwise
dispose of, any of their respective assets (including the sale or factoring at
maturity or collection of any accounts) to any Person, or in the case of any
Subsidiary, issue or sell any shares of their Stock or any Stock Equivalents
but excluding (x) any Property Loss Event, (y) the granting of a Lien permitted
by Section 8.2 (Liens, Etc.) or (z) the making of a Restricted Payment
permitted by Section 8.5 (Restricted Payments) (any such disposition being an
"Asset Sale"), except for the following:
(a) the sale, conveyance, transfer or other disposition of
cash, Cash Equivalents or Inventory, in each case in the ordinary course of
business;
(b) the sale, conveyance, transfer or other disposition in
the ordinary course of business (or which become obsolete, uneconomical or no
longer useful in the business of the Company or its Subsidiaries as a result of
the Specified Restructuring Transactions) of obsolete, uneconomical, excess or
worn out property or assets or property or assets (in each case, other than
Mortgaged Property) no longer used or useful in the business of the Company and
its Subsidiaries;
(c) leases, occupancy agreements or subleases, license and
sublicense of property or assets of any Borrower and its Subsidiaries in the
ordinary course of business; provided that any such arrangement is not
substantially the equivalent of a sale; provided further that, in the case of
any such arrangement relating to any Mortgaged Property, such arrangement (i)
shall be subordinate in all respects to the Liens granted and evidenced by the
Collateral Documents (ii) shall not, individually or in the aggregate,
interfere in any material respect with the ordinary conduct of the business of
the Company and its Subsidiaries taken as a whole, (iii) shall require any such
leases, occupancy agreements or subleases, licenses or sublicenses of any
portion of any Mortgaged Property to provide pursuant to customary commercially
reasonable arms length provisions that the tenant's use of the premises shall
not violate any applicable zoning or other Requirement of Law relating to the
use thereof and Borrower and its Subsidiaries shall use commercially reasonably
efforts to enforce same, and (iv) such leases, occupancy agreements or
subleases, licenses or sublicenses of any portion of any Mortgaged Property
shall not materially impair the value of the property subject thereto;
(d) assignments and licenses of intellectual property of any
Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale (i) by and among Domestic Loan Parties,
(ii) by and among Foreign Loan Parties, (iii) by and among Subsidiaries that
are not Loan Parties, (iv) from any Subsidiary to any Domestic Loan Party or
(v) from any Subsidiary that is not a Loan Party to any Loan Party; provided
that any Collateral transferred to any Loan Party in any such Asset Sale shall
be made subject to the Lien of the applicable Collateral Documents to the
extent required by the Loan Documents;
(f) as long as no Default is continuing or would result
therefrom, any other Asset Sale not otherwise permitted by this Section 8.4,
for fair market value, with at least 75% of the consideration received for all
such Asset Sales payable in cash upon such sale; provided, however, that with
respect to any such Asset Sale pursuant to this clause (f), the Dollar
Equivalent of the aggregate consideration received during any Fiscal Year for
all such Asset Sales shall not exceed $50,000,000;
(g) Permitted Asset Swaps for fair market value;
(h) Asset Sales constituting Specified Restructuring
Transactions;
(i) any transaction permitted by Section 8.7 (Restriction on
Fundamental Changes) may be structured as an Asset Sale;
(j) the sale, conveyance, transfer or other disposition of
assets in sale leaseback, synthetic lease or similar transactions; provided
that the principal component of the obligations of the Company and its
Subsidiaries with respect thereto shall not at any time exceed $25,000,000;
(k) the sale, conveyance, transfer or other disposition of,
or discount of, delinquent notes or accounts receivable arising in the ordinary
course of business (i) which are overdue or (ii) which the Company or its
Subsidiaries reasonably determine are difficult to collect, but only in
connection with the compromise or collection thereof (and not as part of any
bulk sale or financing of receivables);
(l) the Company and its Subsidiaries may enter into
consignment arrangements (as consignor or as consignee) or similar arrangements
for the sale of goods in the ordinary course of business;
(m) the Company and its Subsidiaries may make Investments
permitted by Section 8.3 (Investments);
(n) dispositions of accounts receivables, chattel paper and
other related assets in connection with any Permitted Receivables Financing;
(o) the Company or any Subsidiary of the Company may
surrender or waive contractual rights or settle, release or surrender any
contract, tort or litigation claim in the ordinary course of business;
(p) the sale, conveyance, transfer or other disposition of
property or assets of the type described in clauses (d) or (g)(B) of Section
8.3 (Investments); and
(q) the sale, conveyance, transfer or other disposition of
property or assets subject to a Property Event Loss subject however to
compliance with the provision of Section 2.9 hereof.
In the event that the Requisite Lenders waive the provisions of this Section
8.4 with respect to the sale, transfer or other disposition of any Collateral,
or any Collateral is sold, transferred or otherwise disposed of as permitted by
this Section 8.4 (other than to a Loan Party), such Collateral shall be sold
free and clear of the Liens created by the Loan Documents, and the
Administrative Agent shall be authorized to take any actions deemed appropriate
in order to effect the foregoing.
Section 8.5 Restricted Payments
The Borrowers shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, declare, order, pay or make
any Restricted Payment, except for the following:
(a) Restricted Payments (i) by any Domestic Loan Party to any
other Domestic Loan Party, (ii) by any Foreign Loan Party to any other Loan
Party, (iii) by any Subsidiary that is not a Loan Party to the Company or any
other Subsidiary;
(b) Subsidiaries of the Company may make Restricted Payments
ratably with respect to their Stock or Stock Equivalents; provided that in the
case of any Restricted Payment by a Loan Party to a Subsidiary that is not a
Loan Party, the amount received by such Subsidiary that is not a Loan Party is
(x) promptly applied to pay any taxes or expenses attributable to the existence
of such Subsidiary or the maintenance of such Subsidiary's ownership of such
Foreign Loan Party (including accountants' expenses and attorneys' fees to the
extent relating to such Foreign Loan Party), (y) promptly applied to make a
dividend, distribution, contribution or other payment to a Loan Party
(including, without limitation, through any series of substantially concurrent
dividends, distributions, contributions or other payments to one or more other
Subsidiaries or through payments on or the repayment of intercompany
Indebtedness) or (z) an Investment that is permitted by Section 8.3
(Investments);
(c) Subsidiaries of the Company may make Restricted Payments
that are used by the Company or its Subsidiaries to pay federal, state and
local income taxes then due and owing, franchise taxes and other similar
expenses incurred in the ordinary course of business;
(d) dividends and distributions declared and paid on the
Stock and Stock Equivalents of the Company and payable only in Stock or Stock
Equivalents (other than Disqualified Stock) of the Company;
(e) any repurchase, retirement, redemption or other
acquisition for value of Stock or Stock Equivalents of the Company or its
Subsidiaries held by any future, present or former employee, officer, director
or consultant of the Company or any Subsidiary of the Company (or such Person's
heirs or assignees) pursuant to any equity compensation plan, retirement plan
or stock option plan or any other management or employee benefit plan,
incentive plan or other agreement or arrangement; provided, however, that the
aggregate amount paid under this clause (e) does not exceed $3,000,000 in any
calendar year;
(f) repurchases of Stock deemed to occur upon the exercise of
Stock Equivalents if such Stock Equivalent represents a portion of the exercise
price thereof;
(g) the Company and its Subsidiaries may make Restricted
Payments in connection with the Transaction in accordance with the terms of the
Acquisition Documents;
(h) dividends and distributions may be paid within 60 days
after the date of declaration thereof, if at the date of declaration such
payment would have been permitted hereunder;
(i) the Company and its Subsidiaries may make payments
required to be made pursuant to the terms of the Acquisition Documents;
(j) so long as no Default has occurred and is continuing at
the time of any such Restricted Payment, Restricted Payments not otherwise
permitted above in an amount not to exceed $50,000,000 in any Fiscal Year
(increased by an amount, not to exceed $50,000,000 from the preceding Fiscal
Year that was available for Restricted Payments pursuant to this clause (j) but
that was not so applied), if at the time any such Restricted Payment is
declared the Leverage Ratio as at the end of the most recent Fiscal Quarter was
less than 2.75 to 1.00, both before and immediately after giving effect to such
Restricted Payment; and
(k) any Subsidiary of the Company may accept capital
contributions from its parent to the extent permitted under Section 8.3
(Investments).
Section 8.6 Prepayment of Subordinated Debt
(a) None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, prepay, redeem, purchase, defease or
otherwise satisfy ("prepay") prior to the scheduled maturity thereof in any
manner, or make any payment in contravention of any subordination terms of, any
Subordinated Debt; provided, that, notwithstanding the foregoing, so long as no
Event of Default has occurred and is continuing at the time of any such
prepayment, the Company may prepay Subordinated Debt (i) in connection with a
Permitted Refinancing of such Subordinated Debt pursuant to Section 8.1(p)
(Indebtedness) or (ii) out of the Net Cash Proceeds of an Excluded Issuance
within 365 days of the consummation of such Excluded Issuance.
Section 8.7 Restriction on Fundamental Changes
The Borrowers will not, and will not permit any of their
Subsidiaries to merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with them, or liquidate or dissolve,
except that (i) any Domestic Loan Party (other than the Company) may be merged
or consolidated with or liquidated or dissolved into any other Domestic Loan
Party, (ii) any Foreign Loan Party may be merged or consolidated with or
liquidated or dissolved into any other Loan Party; provided, that if a Borrower
is a party to any such transaction, such Borrower is the surviving Person in
such transaction, (iii) any Subsidiary that is not a Loan Party may be merged
or consolidated with or dissolved into any other Subsidiary that is not a Loan
Party, (iv) any Subsidiary may merge or consolidate with or into an entity in a
Permitted Acquisition; provided, that if, a (X) Domestic Loan Party is a party
to any such transaction, the surviving entity is a Domestic Loan Party, and (Y)
if a Foreign Loan Party is a party to any such transaction, the surviving
entity is a Loan Party, (v) any Asset Sale permitted by Section 8.4 (Sale of
Assets) may be structured as a merger or consolidation with or liquidation or
dissolution of a Subsidiary (other than any Borrower) into the acquiring
Person, and (vi) any Subsidiary of the Company that is not a Loan Party may
liquidate or dissolve if such liquidation or dissolution is, in the judgment of
the Company, desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole.
Section 8.8 Change in Nature of Business
The Borrowers shall not, and shall not permit any of their
respective Subsidiaries to engage in any business other than the business of
the Company and its Subsidiaries described in the Disclosure Documents and any
business that is a reasonable extension thereof or reasonably complimentary or
reasonably related thereto if, as a result, the general nature of the business
of the Company and its Subsidiaries, taken as a whole, would be substantially
changed from that conducted on the date hereof.
Section 8.9 Transactions with Affiliates
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, enter into any transaction with any Affiliate
of the Company unless such transaction is on terms at least as favorable to
such Borrower or such Subsidiary as could be obtained on an arms' length basis
from a Person that was not an Affiliate of the Company other than:
(a) transactions between or among (i) any Domestic Loan Party
and any other Domestic Loan Party, (ii) any Foreign Loan Party and any other
Loan Party; provided that if such transaction is with a Domestic Loan Party,
such transaction is at least as favorable to the Domestic Loan Party as could
be obtained on an arms' length basis from a Person that was not an Affiliate of
the Company, and (iii) any Subsidiary that is not a Loan Party with the Company
or any Subsidiary; provided that if such transaction is with a Loan Party, such
transaction is at least as favorable to the Loan Party as could be obtained on
an arms' length basis from a Person that was not an Affiliate of the Company;
(b) any Restricted Payment permitted by Section 8.5
(Restricted Payments);
(c) fees and compensation, benefits and incentive
arrangements paid or provided to, and any indemnity or insurance provided on
behalf of employees, officers and directors of the Company, and any agreement
related to the foregoing entered into in the ordinary course of business);
(d) Investments by (x) Domestic Loan Parties in Foreign Loan
Parties, (y) Loan Parties in Subsidiaries that are not Loan Parties and (z) the
Company and its Subsidiaries in Persons other than the Company and its
Subsidiaries, in each case, permitted by clauses (e), (f), (h) (k), (n), (o)
and (p) of Section 8.3 (Investments) and corollary Sections of this Agreement;
(e) transactions pursuant to the Acquisition Documents;
(f) purchases and sales of goods and services among the
Company and the Subsidiaries in the ordinary course of business; and
(g) the Specified Restructuring Transactions.
Section 8.10 Limitations on Restrictions on Subsidiary
Distributions; No New Negative Pledge
The Borrowers shall not, and shall not permit any of their
Subsidiaries to, (i) enter into or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of such
Subsidiary to pay dividends or make any other distribution with respect to its
Stock or transfer of funds or assets or make loans or advances to or other
Investments in, or pay any Indebtedness owed to, such Borrower or any other
Subsidiary of such Borrower or (ii) enter into or suffer to exist or become
effective any agreement prohibiting or limiting the ability of such Borrower or
any Subsidiary of such Borrower to create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, to secure the Obligations, including any agreement
requiring any other Indebtedness or Contractual Obligation to be equally and
ratably secured with the Obligations other than:
(a) conditions imposed by Requirement of Law or by any Loan
Document;
(b) clause (ii) above shall not apply to assets encumbered by
Customary Permitted Liens as long as such restriction applies only to the asset
encumbered by such Customary Permitted Lien and the above shall not apply to
any Indebtedness outstanding in reliance on Section 8.1(k) (Indebtedness) that
does not apply to any other Loan Party or any other Subsidiary of the Company
other than any Subsidiary that is an obligor under such Indebtedness;
(c) restrictions contained in the Subordinated Notes
Documents or any other agreements governing indebtedness so long as not
materially more restrictive, taken as a whole, than the Senior Subordinated
Notes Documents and restrictions in effect on the Closing Date in agreements
permitted pursuant to Section 8.1(c) (Indebtedness);
(d) any agreement in effect at the time any Person becomes a
Subsidiary of the Company; provided that such agreement was not entered into in
contemplation of such Person becoming a Subsidiary;
(e) customary restrictions and conditions contained in
agreements relating to the sale or other disposition of assets pending such
sale or disposition; provided such restrictions and conditions apply only to
the assets to be sold or disposed of and such sale or disposition is permitted
hereunder;
(f) clause (ii) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness;
(g) the foregoing shall not apply to any Indebtedness
described in clause (p) of Section 8.1 (Indebtedness), provided that the
restrictions contained in the agreements governing such Indebtedness are not
materially more restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced;
(h) the foregoing shall not apply to restrictions on cash or
other deposits or net worth imposed by customers under contracts entered into
in the ordinary course of business;
(i) clause (i) shall not apply to customary provisions in
leases (including without limitation those with respect to subletting and
assignment) and contracts entered into in the ordinary course of business of
the Company and its Subsidiaries with their landlords, lessees, sublessees,
customers, landlords, suppliers and similar Persons, and other contracts
restricting the assignment thereof; and
(j) the foregoing shall not apply to restrictions on joint
venture entities contained in joint venture agreements entered into in
compliance with Section 8.3 (Investments).
Section 8.11 Modification of Constituent Documents
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, amend its Constituent Documents (including
without limitation by filing or modification of any certificate of
designation), except for changes and amendments that are not, taken as a whole,
materially adverse to the interests of the Lenders under the Loan Documents or
in the Collateral.
Section 8.12 Modification of Acquisition Documents
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, (a) alter, rescind, terminate, amend,
supplement, waive or otherwise modify any provision of any Acquisition Document
(except for modifications that do not materially and adversely affect the
rights and privileges of the Borrowers or any of their respective Subsidiaries
under such Acquisition Document and that do not materially and adversely affect
the interests of the Lenders under the Loan Documents or in any material
Collateral) or (b) waive any rights or permit any breach or default to exist
under any Acquisition Document, if to do so could reasonably be expected to
have a Material Adverse Effect.
Section 8.13 Modification of Debt Agreements
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, change or amend the terms of the Subordinated
Notes Documents or any Permitted Refinancing thereof if the effect of such
amendment is to (a) change the dates upon which payments of principal or
interest are due on such Indebtedness other than to extend such dates, (b)
change any default or event of default other than to delete or make less
restrictive any default provision therein, (c) change the subordination
provisions of such Indebtedness in any manner materially adverse to the Lenders
or (d) change or amend any other material term if such change or amendment
would materially increase the obligations of the obligor or confer additional
material rights to the holder of such Indebtedness in a manner materially
adverse to the interests of the Lenders under the Loan Documents.
Section 8.14 Accounting Changes; Fiscal Year
The Company shall cause its Fiscal Year to end on December 31
of each year and its Fiscal Quarters to end on March 31, June 30, September 30
and December 31, respectively, of each year.
Section 8.15 Margin Regulations
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, use all or any portion of the proceeds of any
credit extended hereunder to purchase or carry margin stock (within the meaning
of Regulation U of the Federal Reserve Board) in contravention of Regulation U
of the Federal Reserve Board.
Section 8.16 No Speculative Transactions
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, engage in any transaction involving Hedging
Contracts, except for non-speculative hedging in the ordinary course of
business.
Section 8.17 Designated Senior Debt
None of the Borrowers shall, nor shall they permit any of
their respective Subsidiaries to, designate any Indebtedness (other than the
Obligations) of any Borrowers or any of its Subsidiaries as "Designated Senior
Indebtedness" (or any comparable term) under, and as defined in, any
documentation with respect to Subordinated Debt.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default
Each of the following events shall be an Event of Default:
(a) any Borrower shall fail to pay any principal of any Loan
or any Reimbursement Obligation when the same becomes due and payable; or
(b) any Borrower shall fail to pay any interest on any Loan,
any fee under any of the Loan Documents or any other Obligation (other than one
referred to in clause (a) above) and such non-payment continues for a period of
five Business Days after the due date therefor; or
(c) any representation or warranty made or deemed made by any
Loan Party in any Loan Document or by any Loan Party or that is contained in
any certificate, document or financial or other written statement furnished by
it under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made or deemed made; or
(d) any Loan Party shall fail to perform or observe (i) any
covenant or agreement contained in Article V (Financial Covenants), Section 6.2
(Default Notices), Section 7.1 (Preservation of Corporate Existence, Etc.) or
Article VIII (Negative Covenants) or (ii) any other term, covenant or agreement
contained in this Agreement or in any other Loan Document if such failure under
this clause (ii) shall remain unremedied for 30 days after the earlier of (A)
the date on which a Responsible Officer of any Loan Party becomes aware of such
failure and (B) the date on which written notice thereof shall have been given
to the Company by the Administrative Agent or any Lender; or
(e) (i) any Borrower or any of Subsidiary of such Borrower
(other than an Immaterial Subsidiary (so long as all such Subsidiaries as to
which such condition applies would not, if aggregated as a single Subsidiary,
cease to meet the definition of "Immaterial Subsidiary")) shall fail to make
any payment on any Indebtedness of such Borrower or any such Subsidiary (other
than the Obligations) or any Guaranty Obligation in respect of Indebtedness of
any other Person, and, in each case, such failure relates to Indebtedness
having an aggregate principal amount the Dollar Equivalent of which is
$20,000,000 or more, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise and
after giving effect to applicable grace periods, if any, provided in the
instrument or agreement under which such Indebtedness relates), or (ii) any
other event shall occur or condition shall exist (beyond the period of grace,
if any, provided and after the giving of notice, if required, in the instrument
or agreement under which such Indebtedness relates) under any agreement or
instrument relating to any such Indebtedness, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness; or
(f) (i) any Borrower or any Subsidiary of such Borrower
(other than an Immaterial Subsidiary (so long as all such Subsidiaries as to
which such condition applies would not, if aggregated as a single Subsidiary,
cease to meet the definition of "Immaterial Subsidiary")) shall generally not
pay its debts as such debts become due, shall admit in writing its inability to
pay its debts generally or shall make a general assignment for the benefit of
creditors, (ii) any proceeding shall be instituted by or against any Borrower
or any Subsidiary of such Borrower (other than an Immaterial Subsidiary (so
long as all such Subsidiaries as to which such condition applies would not, if
aggregated as a single Subsidiary, cease to meet the definition of "Immaterial
Subsidiary")) seeking to adjudicate it as bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts, under any Requirement of Law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a custodian, receiver,
trustee, administrator or other similar official for it or for any substantial
part of its property; provided, however, that, in the case of any such
proceedings instituted against any Borrower or any such Subsidiary of such
Borrower (but not instituted by or consented to by such Borrower or any such
Subsidiary of such Borrower) either such proceedings shall remain undismissed
or unstayed for a period of 60 days or more or an order or decree approving any
of the foregoing shall occur, (iii) (x) the appointment of a Controller (as
defined in the Corporations Act (2001) Commonwealth of Australia), liquidator,
provisional liquidator or administrator to any Foreign Loan Party organized
under the laws of Australia, (y) a receiver or receiver and manager to any
substantial portion of the property of any Foreign Loan Party organized under
the laws of Australia shall be appointed; or (z) an Australian Foreign Loan
Party is taken (under section 459F(1) of the Corporations Act) to have failed
to have complied with a statutory demand or (iv) any Borrower or any Subsidiary
of such Borrower (other than an Immaterial Subsidiary (so long as all such
Subsidiaries as to which such condition applies would not, if aggregated as a
single Subsidiary, cease to meet the definition of "Immaterial Subsidiary"))
shall take any corporate action to authorize any action set forth in clauses
(i), (ii) or (iii) above; or
(g) one or more judgments or orders (or other similar
process) involving, in the case of money judgments, an aggregate amount whose
Dollar Equivalent exceeds $20,000,000 to the extent not paid, vacated,
discharged, covered by insurance or supported by a letter of credit or appeal
bonds posted in cash, shall be rendered against one or more of the Company and
its Subsidiaries (other than any Immaterial Subsidiary (so long as all such
Subsidiaries as to which such condition applies would not, if aggregated as a
single Subsidiary, cease to meet the definition of "Immaterial Subsidiary"))
and either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgments or orders or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgments or
orders, by reason of a pending appeal or otherwise, shall not be in effect; or
(h) (i) one or more events described in clauses (a) through
(i) of the definition of "ERISA Event" shall occur and the Dollar Equivalent of
the amount of all liabilities and deficiencies resulting therefrom, whether or
not assessed, exceeds $20,000,000 in the aggregate, (ii) one or more events
described in clause (j) of the definition of "ERISA Event" shall occur and the
amount of all liabilities and deficiencies resulting therefrom, whether or not
assessed, together with all other ERISA Events, could reasonably be likely to
have a Material Adverse Effect or (iii) the Pensions Regulator issues a
Financial Support Direction or a Contribution Notice to any member of the
group, unless the aggregate liability of the Loan Parties under all Financial
Support Directions and Contributions Notices is less than (pound)10,000,000; or
(i) any Loan Document after delivery thereof shall for any
reason (other than in accordance with the terms of the Loan Documents) fail or
cease to be valid and binding on, or enforceable against, any Loan Party
thereto, or any Loan Party shall so state in writing; or
(j) any Collateral Document shall for any reason cease to be
in full force and effect or cease to create a valid and enforceable Lien on any
Collateral (other than de minimus Collateral) purported to be covered thereby
(except as otherwise expressly provided in the Loan Documents) or, except as
permitted by the Loan Documents, such Lien shall fail or cease to be a
perfected and first priority Lien; or
(k) there shall occur any Change of Control; or
(l) any of the Obligations of any Loan Party under the Loan
Documents for any reason shall cease to be "Senior Indebtedness" or "Designated
Senior Indebtedness" (or any comparable term) under, and as defined in, any
documentation with respect to Subordinated Debt of such Loan Party.
Section 9.2 Remedies
During the continuance of any Event of Default, the
Administrative Agent (a) at the request of the Requisite Lenders, shall, by
notice to the Company declare that all or any portion of the Commitments be
terminated, whereupon the obligation of each Lender to make any Loan and each
Issuer to Issue any Letter of Credit shall immediately terminate and (b) at the
request of the Requisite Lenders, shall, by notice to the Company, declare the
Loans, all interest thereon and all other amounts and Obligations payable under
this Agreement to be forthwith due and payable, whereupon the Loans, all such
interest and all such amounts and Obligations shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrowers; provided,
however, that upon the occurrence of the Events of Default specified in clause
(f)(ii) of Section 9.1 (Events of Default) related to any Borrower, (x) the
Commitments of each Lender to make Loans and the commitments of each Lender and
Issuer to Issue or participate in Letters of Credit shall each automatically be
terminated and (y) the Loans, all such interest and all such amounts and
Obligations shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrowers. In addition to the remedies set forth above,
the Administrative Agent may exercise any remedies provided for by the
Collateral Documents in accordance with the terms thereof or any other remedies
provided by Requirements of Law.
Section 9.3 Actions in Respect of Letters of Credit
At any time (i) upon the Revolving Credit Termination Date,
(ii) after the Revolving Credit Termination Date when the aggregate funds on
deposit in cash collateral accounts securing the Letter of Credit Obligations
shall be less than 105% of the Letter of Credit Obligations, or (iii) as may be
required by Section 2.9(c) or (d) (Mandatory Prepayments), the Borrowers shall
pay to the Administrative Agent in immediately available funds to an account
directed by the Administrative Agent's office referred to in Section 11.8
(Notices, Etc.), for deposit in a cash collateral account to secure the Letter
of Credit Obligations, (x) in the case of clauses (i) and (ii) above, the
amount in Dollars required such that, after such payment, the aggregate funds
on deposit in the Cash Collateral Accounts equals or exceeds 105% of the sum of
all outstanding Letter of Credit Obligations and (y) in the case of clause
(iii) above, the amount required by Section 2.9(c) or (d) (Mandatory
Prepayments). The Administrative Agent may, from time to time after funds are
deposited in any Cash Collateral Account, apply funds then held in such Cash
Collateral Account to the payment of any amounts, in accordance with Section
2.9(c) or (d) (Mandatory Prepayments) and Section 2.13(g) (Payments and
Computations), as shall have become or shall become due and payable by the
Borrowers to the Issuers or Lenders in respect of the Letter of Credit
Obligations. The Administrative Agent shall promptly give written notice of any
such application; provided, however, that the failure to give such written
notice shall not invalidate any such application.
Section 9.4 Rescission
If at any time after termination of the Commitments or
acceleration of the maturity of the Loans, the Borrowers shall pay all arrears
of interest and all payments on account of principal of the Loans and
Reimbursement Obligations that shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law,
on overdue interest, at the rates specified herein) and all Defaults (other
than nonpayment of principal of and accrued interest on the Loans due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to Section 11.1 (Amendments, Waivers, Etc.), then upon the written consent of
the Requisite Lenders and written notice to the Company, the termination of the
Commitments or the acceleration and their consequences may be rescinded and
annulled; provided, however, that (i) such action shall not affect any
subsequent Event of Default or Default or impair any right or remedy consequent
thereon and (ii) no Revolving Lender's Revolving Credit Commitment shall be
reinstated unless such Revolving Lender consents thereto in its sole
discretion. The provisions of the preceding sentence are intended merely to
bind the Lenders and the Issuers to a decision that may be made at the election
of the Requisite Lenders, and such provisions are not intended to benefit the
Borrowers and do not give any Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
Section 9.5 Collection Allocation Mechanism.
On the CAM Exchange Date, each Lender shall immediately be
deemed to have sold and/or acquired (to the extent necessary, as determined by
the Administrative Agent, to give effect to the intent of this Section 9.5)
participations in the Loans (other than Swing Loans) and participations in
outstanding Letters of Credit and Swing Loans (and accrued and unpaid interest
and fees thereon) under each of the individual Facilities in an amount equal to
such Lender's Ratable Portion of the Facilities taken as a whole (based on the
Dollar Equivalent of the Loans on the CAM Exchange Date). Each Lender and each
Loan Party hereby consents and agrees to the CAM Exchange, and each Lender
agrees that the CAM Exchange shall be binding upon its successors and assigns
and any person that acquires a participation in its interests in any Loan or
any participation in any Swing Loan or Letter of Credit. Each Loan Party agrees
from time to time to execute and deliver to the Administrative Agent all such
promissory notes and other instruments and documents as the Administrative
Agent shall reasonably request to evidence and confirm the respective interests
of the Lenders after giving effect to the CAM Exchange, and each Lender agrees
to surrender any promissory notes originally received by it in connection with
its Loans hereunder to the Administrative Agent against delivery of any
promissory notes evidencing its interests in the Loans so executed and
delivered; provided, however, that the failure of any Loan Party to execute or
deliver or of any Lender to accept any such promissory note, instrument or
document shall not affect the validity or effectiveness of the CAM Exchange. As
a result of the CAM Exchange, upon and after the CAM Exchange Date, each
payment received by the Administrative Agent pursuant to any Loan Document in
respect of any of the Obligations subject to the exchange referred to above,
and each distribution made by the Administrative Agent in respect of such
Obligations, shall be distributed to the Lenders pro rata in accordance with
their respective Ratable Portions of the Facilities taken as a whole. Any
direct payment received by a Lender upon or after the CAM Exchange Date,
including by way of setoff, in respect of an Obligation subject to the exchange
referred to above shall be paid over to the Administrative Agent for
distribution to the Lenders in accordance herewith. The CAM Exchange is an
agreement between the Lenders and shall be enforceable as among Lenders
regardless of any automatic stay or comparable Requirement of Law resulting
from the application of any bankruptcy or insolvency law with respect to any
Loan Party.
ARTICLE X
THE ADMINISTRATIVE AGENT; THE AGENTS
Section 10.1 Authorization and Action
(a) Each Lender and each Issuer hereby appoints Citicorp as
the Administrative Agent hereunder and under the other Loan Documents and each
Lender and each Issuer authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to the Administrative Agent under such
agreements and to exercise such powers as are reasonably incidental thereto.
Without limiting the foregoing, each Lender and each Issuer hereby authorizes
the Administrative Agent to execute and deliver, and to perform its obligations
under, each of the Loan Documents to which the Administrative Agent is a party,
to exercise all rights, powers and remedies that the Administrative Agent may
have under such Loan Documents and, in the case of the Collateral Documents, to
act as agent for the Lenders, the Issuers and the other Secured Parties under
such Collateral Documents.
(b) As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including enforcement or collection),
the Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders, and such instructions shall be binding
upon all Lenders and Issuers; provided, however, that the Administrative Agent
shall not be required to take any action that the (i) Administrative Agent in
good faith believes exposes it to personal liability unless the Administrative
Agent receives an indemnification satisfactory to it from the Lenders and the
Issuers with respect to such action or (ii) is contrary to this Agreement or
applicable law. The Administrative Agent agrees to give to each Lender and each
Issuer prompt notice of each notice given to it by any Loan Party pursuant to
the terms of this Agreement or the other Loan Documents.
(c) In performing its functions and duties hereunder and
under the other Loan Documents, the Administrative Agent is acting solely on
behalf of the Lenders and Issuers, and its duties are entirely administrative
in nature. The Administrative Agent does not assume and shall not be deemed to
have assumed any obligation other than as expressly set forth herein and in the
other Loan Documents or any other relationship as the agent, fiduciary or
trustee of or for any Lender, any Issuer or holder of any other Obligation. The
Administrative Agent may perform any of its duties under any Loan Document by
or through its agents or employees, and all exculpatory provisions of this
Article shall apply to any such agents and employees.
(d) Duties of Certain Agents. Notwithstanding anything to the
contrary contained in this Agreement, the Syndication Agent and the
Documentation Agents are Lenders designated as such for title purposes only and
in such capacity shall have no obligations or duties whatsoever under this
Agreement or any other Loan Document to any Loan Party, any Lender or any
Issuer and shall have no rights separate from its rights as a Lender except as
expressly provided in this Agreement. Each Arranger shall have no obligations
or duties whatsoever in such capacity under this Agreement or any other Loan
Document and shall incur no liability hereunder or thereunder in such capacity.
Section 10.2 Administrative Agent's Reliance, Etc.
None of the Administrative Agent, any of its Affiliates or
any of their respective directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it, him, her or them
under or in connection with this Agreement or the other Loan Documents, except
for its, his, her or their own gross negligence or willful misconduct. Without
limiting the foregoing, the Administrative Agent (a) may treat the payee of any
Note as its holder until such Note has been assigned in accordance with Section
11.2 (Assignments and Participations), (b) may rely on the Register to the
extent set forth in Section 2.7 (Promissory Notes), (c) may consult with legal
counsel (including counsel to the Borrowers or any other Loan Party),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts, (d) makes
no warranty or representation to any Lender or any Issuer and shall not be
responsible to any Lender or any Issuer for any statements, warranties or
representations made by or on behalf of any Borrower or any of its Subsidiaries
in or in connection with this Agreement or any other Loan Document, (e) shall
not have any duty to ascertain or to inquire either as to the performance or
observance of any term, covenant or condition of this Agreement or any other
Loan Document, as to the financial condition of any Loan Party or as to the
existence or possible existence of any Default, (f) shall not be deemed to have
knowledge of any Event of Default unless and until notice describing such Event
of Default is given to an Agent or its Affiliates by a Borrower, a Lender or an
Issuer, (g) shall not be responsible to any Lender or any Issuer for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the attachment or priority of any Lien created or purported to be
created under or in connection with, this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto, (h)
shall incur no liability under or in respect of this Agreement or any other
Loan Document by acting or relying upon any notice, consent, certificate,
statement, report or other instrument or writing (which writing may be a
telecopy, electronic mail, Internet or intranet website posting or other
distribution) or any telephone message believed by it to be genuine and signed,
sent or otherwise authenticated by the proper party or parties, (i) shall not,
except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Company, any Borrower or any of their Affiliates
that is communicated to or obtained by any Agent or any of its Affiliates in
any capacity and (j) may presume that any condition hereunder that by its terms
must be fulfilled to the satisfaction of a Lender or an Issuer is satisfactory
to such Lender or such Issuer unless the Agent shall have received notice to
the contrary from such Lender or such Issuer prior to the making of any Loan or
the issuance of any Letter of Credit.
Section 10.3 Posting of Approved Electronic Communications
(a) Each of the Lenders, the Issuers and the Borrowers agree,
and the Borrowers shall cause each Subsidiary Guarantor to agree, that the
Administrative Agent may, but shall not be obligated to, make the Approved
Electronic Communications available to the Lenders and the Issuers by posting
such Approved Electronic Communications on IntraLinks(TM) or a substantially
similar electronic platform chosen by the Administrative Agent to be its
electronic transmission system (the "Approved Electronic Platform").
(b) Although the Approved Electronic Platform and its primary
web portal are secured with generally-applicable security procedures and
policies implemented or modified by the Administrative Agent from time to time
(including, as of the Closing Date, a dual firewall and a User ID/Password
Authorization System) and the Approved Electronic Platform is secured through a
single -user-per-deal authorization method whereby each user may access the
Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders,
the Issuers and the Borrowers acknowledges and agrees, and the Borrowers shall
cause each Subsidiary to acknowledge and agree, that the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution. In
consideration for the convenience and other benefits afforded by such
distribution and for the other consideration provided hereunder, the receipt
and sufficiency of which is hereby acknowledged, each of the Lenders, the
Issuers and the Borrowers hereby approve, and the Borrowers shall cause each
Subsidiary to approve, distribution of the Approved Electronic Communications
through the Approved Electronic Platform and understands and assumes, and the
Borrowers shall cause each Subsidiary to understand and assume, the risks of
such distribution.
(c) The Approved Electronic Communications and the Approved
Electronic Platform are provided "as is" and "as available". None of the
Administrative Agent or any of its Affiliates or any of their respective
officers, directors, employees, agents, advisors or representatives (the "Agent
Affiliates") warrant the accuracy, adequacy or completeness of the Approved
Electronic Communications and the Approved Electronic Platform and each
expressly disclaims liability for errors or omissions in the Approved
Electronic Communications and the Approved Electronic Platform. No warranty of
any kind, express, implied or statutory (including, without limitation, any
warranty of merchantability, fitness for a particular purpose, noninfringement
of third party rights or freedom from viruses or other code defects) is made by
the Agent Affiliates in connection with the approved electronic communications
or the approved electronic platform.
(d) Each of the Lenders, the Issuers, and the Borrowers
agrees, and the Borrowers shall cause each Subsidiary to agree, that the
Administrative Agent may, but (except as may be required by applicable law)
shall not be obligated to, store the Approved Electronic Communications on the
Approved Electronic Platform in accordance with the Administrative Agent's
generally-applicable document retention procedures and policies.
Section 10.4 The Agents as Lenders
With respect to its Ratable Portion, each Agent that is a
Lender shall have and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to the extent set forth
herein for any other Lender. The terms "Lenders", "Revolving Lenders", "Term
Loan Lenders", "Requisite Lenders" and any similar terms shall, unless the
context clearly otherwise indicates, include, without limitation, each Agent in
its individual capacity as a Lender, a Revolving Lender, Term Loan Lender or as
one of the Requisite Lenders. Each Agent and each of its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of banking, trust or
other business with, any Loan Party as if such Agent were not acting as Agent
and without any duty to account therefor to the Lenders.
Section 10.5 Lender Credit Decision
Each Lender and each Issuer acknowledges that it shall,
independently and without reliance upon any Agent or any other Lender conduct
its own independent investigation of the financial condition and affairs of the
Borrowers and each other Loan Party in connection with the making and
continuance of the Loans and with the issuance of the Letters of Credit. Each
Lender and each Issuer also acknowledges that it shall, independently and
without reliance upon any Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and
other Loan Documents.
Section 10.6 Indemnification
Each Lender agrees to indemnify each Agent and each of its
Affiliates, and each of their respective directors, officers, employees, agents
and advisors (to the extent not reimbursed by the Borrowers or another Loan
Party), from and against such Lender's aggregate Ratable Portion of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements (including reasonable fees, expenses
and disbursements of financial and legal advisors) of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against, such Agent
or any of its Affiliates, directors, officers, employees, agents and advisors
in any way relating to or arising out of this Agreement or the other Loan
Documents or any action taken or omitted by such Agent under this Agreement or
the other Loan Documents; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's or such Affiliate's gross negligence or willful misconduct. Without
limiting the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including reasonable fees, expenses and disbursements of financial and legal
advisors) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of its rights or responsibilities under, this
Agreement or the other Loan Documents, to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrowers or another Loan
Party.
Section 10.7 Successor Administrative Agent
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Requisite Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, selected from among the
Lenders. In either case, such appointment shall be subject to the prior written
approval of the Borrowers (which approval may not be unreasonably withheld and
shall not be required upon the occurrence and during the continuance of an
Event of Default). If the retiring Administrative Agent shall notify the
Borrowers and the Lenders that no qualifying Person has accepted such
appointment as Administrative Agent, then such resignation shall nonetheless
become effective in accordance with such notice and (i) the retiring Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held
by the Administrative Agent on behalf of the Lenders or the Issuers under any
of the Loan Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is
appointed) and (ii) all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be made by or
to each Lender and each Issuer directly, until such time as the Requisite
Lenders appoint a successor Administrative Agent as provided for above in this
Section 10.7. Upon the acceptance of any appointment as Administrative Agent by
a successor Administrative Agent, such successor Administrative Agent shall
succeed to, and become vested with, all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. Prior to any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the retiring Administrative
Agent shall take such action as may be reasonably necessary to assign to the
successor Administrative Agent its rights as Administrative Agent under the
Loan Documents. After such resignation, the retiring Administrative Agent shall
continue to have the benefit of this Article X and Sections 11.3 (Costs and
Expenses) and 11.4 (Indemnities) as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement and the other Loan
Documents.
Section 10.8 Concerning the Collateral and the Collateral
Documents
(a) Each Lender and each Issuer agrees that any action taken
by the Administrative Agent or the Requisite Lenders (or, where required by the
express terms of this Agreement, a different proportion of the Lenders) in
accordance with the provisions of this Agreement or of the other Loan
Documents, and the exercise by the Administrative Agent or the Requisite
Lenders (or, where so required, such greater proportion) of the powers set
forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Lenders,
the Issuers and other Secured Parties. Without limiting the generality of the
foregoing, the Administrative Agent shall have the sole and exclusive right and
authority to (i) act as the disbursing and collecting agent for the Lenders and
Issuers with respect to all payments and collections arising in connection
herewith and with the Collateral Documents, (ii) execute and deliver each
Collateral Document (including, without limitation, the Assignment and
Acceptance (Exhibit A) in respect of the Japanese Share Pledge for and on
behalf of each of the Secured Parties) and accept delivery of each such
agreement delivered by the Company or any of its Subsidiaries, (iii) act as
Administrative Agent for the Lenders, the Issuers and the other Secured Parties
for purposes of the perfection of all security interests and Liens created by
such agreements and all other purposes stated therein, provided, however, that
the Administrative Agent hereby appoints, authorizes and directs each Lender
and each Issuer to act as collateral sub-agent for the Administrative Agent,
the Lenders and the Issuers for purposes of the perfection of all security
interests and Liens with respect to the Collateral, including any deposit
accounts maintained by a Loan Party with, and cash held by, such Lender or such
Issuer, (iv) manage, supervise and otherwise deal with the Collateral, (v) take
such action as is necessary or desirable to maintain the perfection and
priority of the security interests and Liens created or purported to be created
by the Collateral Documents and (vi) except as may be otherwise specifically
restricted by the terms hereof or of any other Loan Document, exercise all
remedies given to the Administrative Agent, the Lenders, the Issuers and the
other Secured Parties with respect to the Collateral under the Loan Documents
relating thereto, applicable law or otherwise.
(b) Each of the Lenders and Issuers hereby consents to the
release and hereby directs, in accordance with the terms hereof, the
Administrative Agent to release (or, in the case of clause (ii) below, release
or subordinate) any Lien held by the Administrative Agent for the benefit of
the Lenders and Issuers against any of the following:
(i) all of the Collateral and all Loan Parties, upon
termination of the Commitments and payment and satisfaction in full of
all Loans, all Reimbursement Obligations and all other Obligations
(other than contingent obligations) that the Administrative Agent has
been notified in writing are then due and payable (and, in respect of
contingent Letter of Credit Obligations, cash collateral has been
deposited or a back-up letter of credit has been issued, in either
case in the appropriate currency, on terms and in an amount
satisfactory to the Administrative Agent and the applicable Issuer);
(ii) all Collateral of the Foreign Loan Parties, upon
termination of the Euro Revolving Commitments and payment and
satisfaction in full of all Loans and all other Obligations (other
than contingent obligations) of the Foreign Loan Parties that the
Administrative Agent has been notified in writing are then due and
payable;
(iii) any assets that are subject to a Lien permitted by
Section 8.2(d) or (e) (Liens, Etc.);
(iv) any part of the Collateral (including Stock or Stock
Equivalents) sold or disposed of by a Loan Party (other than a sale to
a Domestic Loan Party, in the case of a disposition by a Domestic Loan
Party, or a Loan Party, in the case of a disposition by a Foreign Loan
Party) if such sale or disposition is permitted by this Agreement (or
permitted pursuant to a waiver of or consent to a transaction
otherwise prohibited by this Agreement); and
(v) all assets of a Guarantor at the time such Guarantor is
released from its Guaranty as provided below.
Each of the Lenders and Issuers hereby directs the
Administrative Agent to execute and deliver or file such termination and
partial release statements and do such other things as are necessary to release
Liens to be released pursuant to this Section 10.8 promptly upon the
effectiveness of any such release, all of the foregoing which shall be at the
Company's expense.
In addition, each of the Lenders and Issuers hereby consents
to the termination and release of any Guaranty provided by a Subsidiary that is
a Guarantor upon the sale, transfer, conveyance or disposition of all or
substantially all of the Stock or Stock Equivalents of such Subsidiary (other
than to a Domestic Loan Party (or, in the case of the sale of a Foreign
Guarantor, any Loan Party)) in a transaction permitted by the Loan Documents
(but only with respect to the obligations of such Loan Party under such
Guaranty).
Section 10.9 Collateral Matters Relating to Related
Obligations
The benefit of the Loan Documents and of the provisions of
this Agreement relating to the Collateral shall extend to and be available in
respect of any Secured Obligation arising under any Hedging Contract or Cash
Management Obligation or that is otherwise owed to Persons other than the
Administrative Agent, the Lenders and the Issuers (collectively, "Related
Obligations") solely on the condition and understanding, as among the
Administrative Agent and all Secured Parties, that (a) the Related Obligations
shall be entitled to the benefit of the Loan Documents and the Collateral to
the extent expressly set forth in this Agreement and the other Loan Documents
and (b) the Collateral may be released from the Lien of the Collateral
Documents as provided in this Agreement and the Collateral Documents without
the consent of any holder of Related Obligations (in such holder's capacity as
a holder of Related Obligations). The provisions of the Loan Documents shall
not alter the terms of any Hedging Contract or Cash Management Document or
other agreement that is not a Loan Document entered into with any Qualified
Party or other Secured Party unless otherwise provided therein and no
acceleration of the Obligations shall affect any such agreement except to the
extent provided in such agreement.
Section 10.10 Representation by Euro Term Lenders
Each Euro Term Lender represents and warrants that (i) it is,
on the date hereof and on the Closing Date, a Professional Market Party and
acknowledges that the Dutch Borrower has relied on such representation and
warranty and (ii) on the date it became a Lender hereunder such Lender is a
Professional Market Party.
Section 10.11 German Security
(a) The Administrative Agent shall:
(i) hold and administer any German Security which is
security assigned
(Sicherungseigentum/Sicherungsabtretung) or
otherwise transferred under a non accessory security
right (nicht akzessorische Sicherheit) to it as
trustee (treuhanderisch) for the benefit of the
Secured Parties; and
(ii) administer any German Security which is pledged
(Verpfandung) or otherwise transferred to any
Secured Party under an accessory security right
(akzessorische Sicherheit).
(b) Each Secured Party hereby authorizes the Administrative
Agent to accept as its representative (Stellvertreter) any pledge or other
creation of any accessory security right made to such Secured Party in relation
to the Credit Agreement and to agree as its representative (Stellvertreter) to
amendments and alternations to any security document which creates a pledge or
any other accessory security right (akzessorische Sicherheit) including the
release of such security.
(c) Each Loan Party and the Secured Parties hereby relieves
the Administrative Agent from the restrictions of self dealing pursuant to
Section 181 of the German Civil Code (Burgerliches Gesetzbuch) to perform its
duties and obligations as Administrative Agent hereunder.
(d) Each Secured Party hereby ratifies and approves all acts
and declarations previously done by the Administrative Agent on such Secured
Party's behalf (including for the avoidance of doubt the declarations made by
the Administrative Agent as representative without power of attorney (Vertreter
ohne Vertretungsmacht) in relation to the creation of any pledge (Pfandrecht)
on behalf and for the benefit of any Secured Party).
(e) The Secured Parties shall not have any independent power
to enforce, or have recourse to, any of the German Security or to exercise any
rights or powers arising under the German Security Documents except through the
Administrative Agent.
Section 10.12 Parallel Debt (Covenant to pay the
Administrative Agent)
(a) For the purpose of taking and ensuring the continuing
validity of certain of the security under the Collateral Documents, each of the
Loan Parties hereby agrees and covenants with the Administrative Agent by way
of an abstract acknowledgement of debt (abstraktes Schuldanerkenntnis) that
each of them shall pay to the Administrative Agent sums equal to, and in the
currency of, any sums owing by it to a Secured Party (other than the
Administrative Agent) under any Loan Document (the "Principal Obligations") as
and when the same fall due for payment under the relevant Loan Document (the
"Parallel Obligations").
(b) Notwithstanding anything to the contrary in any Loan
Document, the Administrative Agent shall have its own independent right to
demand payment of the Parallel Obligations by the Loan Parties. The rights of
the Secured Parties to receive payment of the Principal Obligations are several
from the rights of the Administrative Agent to receive the Parallel
Obligations; provided that the payment by a Loan Party of its Parallel
Obligations to the Administrative Agent in accordance with this Section 10.12
shall be a good discharge of the corresponding Principal Obligations and the
payment by a Loan Party of its corresponding Principal Obligations in
accordance with the Loan Documents shall be a good discharge of the relevant
Parallel Obligations. In the event of a good discharge of the Principal
Obligations the Administrative Agent shall not be entitled any more to demand
payment of the corresponding Parallel Obligations and such Parallel Obligations
shall cease to exist. This shall apply accordingly in the event of a good
discharge of the Parallel Obligations to the corresponding Principal
Obligations. (c) Despite the foregoing, any payment under the Loan Documents
shall be made to the Administrative Agent, unless expressly stated otherwise in
the Secured Documents (save for this Section 10.12) or unless the
Administrative Agent directs such payment to be made to the Administrative
Agent.
Section 10.13 French Law Parallel Debt (Covenant to pay the
Administrative Agent)
(a) Notwithstanding any other provision of this Agreement,
each Borrower hereby irrevocably and unconditionally undertakes to pay to the
Administrative Agent, as creditor in its own right and not as representative of
the other Secured Parties, sums equal to and in the currency of each amount
payable by such Borrower to each of the Secured Parties under each of the Loan
Documents as and when that amount falls due for payment under the relevant Loan
Document or would have fallen due but for any discharge resulting from failure
of another Secured Party to take appropriate steps, in insolvency proceedings
affecting that Borrower, to preserve its entitlement to be paid that amount.
(b) The Administrative Agent shall have its own independent
right to demand payment of the amounts payable by each Borrower under this
Section 10.13, irrespective of any discharge of such Borrower's obligation to
pay those amounts to the other Secured Parties resulting from failure by them
to take appropriate steps, in insolvency proceedings affecting that Borrower,
to preserve their entitlement to be paid those amounts.
(c) Any amount due and payable by a Borrower to the
Administrative Agent under this Section 10.13 shall be decreased to the extent
that the other Secured Parties have received (and are able to retain) payment
in full of the corresponding amount under the other provisions of the Loan
Documents and any amount due and payable by a Borrower to the other Secured
Parties under those provisions shall be decreased to the extent that the
Administrative Agent has received (and is able to retain) payment in full of
the corresponding amount under this Section 10.13.
(d) The rights of the Secured Parties (other than the
Administrative Agent) to receive payment of amounts payable by each Loan Party
under the Loan Documents are several and are separate and independent from, and
without prejudice to, the rights of the Administrative Agent to receive payment
under this Section 10.13.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Amendments, Waivers, Etc.
(a) No failure or delay of the Administrative Agent, any
Issuer or any Lender in exercising any power or right 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, the Issuers and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies which they would otherwise have. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrowers therefrom shall in any event be effective unless the same shall be
permitted by clause (b) below or, if applicable clause (c) or (d) below, and
then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default regardless of whether an Agent, any Lender
or the Issuer may have had notice or knowledge of such Default at the time. No
notice or demand on any Borrower in any case shall entitle such Borrower to any
other or further notice or demand in similar or other circumstances.
(b) Subject to clauses (c) and (d) below, no amendment,
modification, termination or waiver of any provision of any Loan Document, or
consent to any departure by any Loan Party therefrom, shall in any event be
effective without the written concurrence of the Requisite Lenders.
(c) Without the written consent of each Lender that would be
directly affected thereby (whose consent shall be sufficient therefor without
the consent of the Requisite Lenders), no amendment, modification, termination,
waiver or consent shall be effective if the effect thereof would:
(i) extend the scheduled final maturity of any Loan;
(ii) waive, reduce or postpone any scheduled repayment (but
not prepayment, including without limitation any prepayment required
by Section 2.9 (Mandatory Prepayments));
(iii) extend the stated expiration date of any Letter of
Credit beyond the Scheduled Termination Date;
(iv) reduce or forgive the rate of interest on any Loan, fee
or other amount payable hereunder, it being understood that any
amendment or modification to the financial definitions in this
Agreement that are components of the Leverage Ratio shall not
constitute a reduction in the rate of interest for purposes of this
clause (iv);
(v) extend the time for payment of any such interest or fees;
(vi) reduce or forgive the principal amount of any Loan or
any Reimbursement Obligation;
(vii) amend, modify, terminate or waive any provision of
clauses (b), (c) or (d) of this Section 11.1 (except for technical
amendments with respect to additional extensions of credit pursuant to
this Agreement which afford the protections to such additional
extensions of credit of the type provided to the Revolving Credit
Commitments and the Term Commitments and Term Loans on the Closing
Date);
(viii) amend the definition of "Requisite Lenders" or
"Ratable Portion" or amend the provisions of Section 2.13(a) (Payments
and Computations) relating to pro rata treatment of Lenders or Section
11.7 (Sharing of Payments, Etc.); provided, with the consent of
Requisite Lenders, additional extensions of credit pursuant hereto may
be included in the determination of "Requisite Lenders" or "Ratable
Portion" on substantially the same basis as the Revolving Credit
Commitments, Revolving Loans, Term Commitments and Term Loans are
included on the Effective Date;
(ix) release all or substantially all of the Collateral or
release any material Guarantor from its Guarantee of the Obligations
except as expressly provided in the Loan Documents;
(x) modify any provision of Section 2.13(f) or (g) (Payments
and Computations) relating to the application of proceeds received by
the Administrative Agent;
(xi) consent to the assignment or transfer by any Loan Party
of any of its rights and obligations under any Loan Document (except
as contemplated by this Agreement); or
(xii) change the currency in which any amount is required to
be paid hereunder.
(d) No amendment, modification, termination, waiver or
consent with respect to any provision of the Loan Documents, or consent to any
departure by any Loan Party therefrom, shall:
(i) increase any Revolving Credit Commitment of any Lender
over the amount thereof then in effect without the consent of such
Lender; provided no amendment, modification, termination, waiver or
consent with respect to any condition precedent, covenant, Default or
Event of Default shall be construed as an increase in the Revolving
Credit Commitment of any Lender;
(ii) amend, modify, terminate or waive any provision hereof
relating to the Swing Loan Sublimit or the Swing Loans without the
consent of each Swing Loan Lender;
(iii) amend the definition of "Requisite Class Lenders"
without the consent of Requisite Class Lenders of each Class;
provided, with the consent of the Requisite Lenders, additional
extensions of credit pursuant hereto may be included in the
determination of such "Requisite Class Lenders" on substantially the
same basis as the Revolving Credit Commitments, Term Commitments and
Term Loans are included on the Closing Date;
(iv) alter the required application of any repayments or
prepayments as between Facilities pursuant to Section 2.9 (Mandatory
Prepayments) without the consent of the Requisite Class Lenders under
each Facility which is being allocated a lesser repayment or
prepayment as a result thereof; provided the Requisite Lenders may
waive, in whole or in part, any prepayment so long as the application,
as between Facilities, of any portion of such prepayment is still
required to be made is not altered and, if additional extensions of
term credit under this Agreement consented to by the Requisite Lenders
are made, such new term loans may be included on a pro rata basis in
the various prepayments required pursuant to Section 2.9 (Mandatory
Prepayments);
(v) amend, modify, terminate or waive any obligation of
Revolving Lenders relating to the issuance of or purchase of
participations in Letters of Credit without the written consent of the
Requisite Class Lenders under the Dollar Revolving Facility, the
Administrative Agent and each Issuer;
(vi) amend, modify, terminate or waive any provision of
Article X (The Administrative Agent; The Agents) as the same applies
to any Agent, or any other provision hereof as the same applies to the
rights or obligations of any Agent, in each case without the consent
of such Agent;
(vii) amend, modify, terminate or waive any provision of any
Loan Document specifying the number or percentage of Lenders (or
Lenders under any Facility) required to waive, amend or modify any
rights thereunder or make any determination to grant any consent
thereunder without the written consent of each Lender (or each Lender
under such Facility, as the case may be);
(viii) amend, modify, terminate or waive the manner of
application of any optional or mandatory prepayments of Loans to the
remaining amortization payments of the Term Loans without the written
consent of the Requisite Class Lenders under each affected Facility;
(ix) expressly amend, modify, supplement or waive any
condition precedent in Section 3.2 (Conditions Precedent to Each Loan
and Letter of Credit) without the written consent of the Requisite
Revolving Lenders; or
(x) increase the maximum duration of Interest Periods
hereunder without the consent of all affected Lenders.
(e) If, in connection with any proposed amendment,
modification, waiver or termination requiring the consent of any Revolving
Lenders or Term Loan Lenders, the consent of the Requisite Lenders, Requisite
Class Lenders, or Requisite Revolving Lenders is obtained but the consent of
any Revolving Lender or Term Loan Lender whose consent is required is not
obtained (any such Lender whose consent is not obtained as described in this
Section 11.1 being referred to as a "Non-Consenting Lender"), then, as long as
(i) the Lender acting as the Administrative Agent is not a Non-Consenting
Lender and (ii) all Non-Consenting Lenders are treated similarly, at the
Company's request, an Eligible Assignee that has consented to such amendment,
modification, waiver or termination reasonably acceptable to the Administrative
Agent shall have the right (but shall have no obligation) to purchase from such
Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall,
upon the Administrative Agent's request, sell and assign to such Eligible
Assignee, all of the Revolving Credit Commitments and Revolving Credit
Outstandings of such Non-Consenting Lender if such Non-Consenting Lender is a
Non-Consenting Lender in its capacity as a Revolving Lender and all of the Term
Loans under the applicable Facility of such Non-Consenting Lender if such
Non-Consenting Lender is a Non-Consenting Lender in its capacity as a Term Loan
Lender, in each case for an amount equal to the principal balance of all such
Revolving Loans or Term Loans, as applicable, held by the Non-Consenting Lender
and all accrued and unpaid interest and fees with respect thereto through the
date of sale; provided, however, that such purchase and sale shall be recorded
in the Register maintained by the Administrative Agent and not be effective
until (x) the Administrative Agent shall have received from such Eligible
Assignee an agreement in form and substance reasonably satisfactory to the
Administrative Agent and the Company whereby such Eligible Assignee shall agree
to be bound by the terms hereof together with the $3,500 assignment fee to the
extent such fee is required to be paid by Section 11.2 (Assignments and
Participations) and (y) such Non-Consenting Lender shall have received payments
of all Revolving Loans or Term Loans, as applicable, held by it and all accrued
and unpaid interest and fees with respect thereto and all other amounts then
due and owing through the date of the sale. Each Lender agrees that, if it
becomes a Non-Consenting Lender, it shall promptly execute and deliver to the
Administrative Agent an Assignment and Acceptance to evidence such sale and
purchase and shall deliver to the Administrative Agent any Note (if Notes have
been issued in respect of the Non-Consenting Lender's Loans) subject to such
Assignment and Acceptance; provided, however, that the failure of any
Non-Consenting Lender to execute an Assignment and Acceptance shall not render
such sale and purchase (and the corresponding assignment) invalid and such
assignment shall be recorded in the Register.
Section 11.2 Assignments and Participations
(a) Each Lender may sell, transfer or assign to one or more
Eligible Assignees all or a portion of its rights and obligations hereunder
(including all of its rights and obligations with respect to the Term Loans,
the Revolving Loans, the Swing Loans and the Letters of Credit); provided,
however, that (i) if any such assignment shall be of the assigning Lender's
Revolving Credit Outstandings and Revolving Credit Commitments under any
Revolving Credit Facility, such assignment shall cover the same percentage of
such Lender's Revolving Credit Outstandings and Revolving Credit Commitment
under such Revolving Credit Facility, and (ii) the aggregate amount being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event
(if less than the Assignor's entire interest) be, (x) in the case of any
Revolving Credit Facility, less than $2,500,000 or an integral multiple of
$1,000,000 in excess thereof and (y) in the case of the Term Facility, less
than $1,000,000 or an integral multiple of $1,000,000 in excess thereof (in the
case of U.S. Term Loans), (pound)500,000 or an integral multiple of
(pound)500,000 in excess thereof (in the case of Sterling Term Loans) or
(euro)1,000,000 or an integral multiple of (euro)1,000,000 in excess thereof
(in the case of Euro Term Loans), except, in either case, (A) with the consent
of the Company and the Administrative Agent or (B) if such assignment is being
made to a Lender or an Affiliate or Approved Fund of such Lender. Any such
assignment need not be ratable as among any of the Facilities (it being
understood, however, that assignments of Euro Term-1 Loans and Euro Term-2
Loans may only be made on a pro rata basis). Each Eligible Assignee of a Euro
Term Loan shall at any time while it is a requirement of Dutch law that each
Lender is a Professional Market Party by accepting such Euro Term Loan be
deemed to have represented to the Dutch Borrower that it is, or qualifies as, a
Professional Market Party.
(b) The parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note (if Notes have
been issued in respect of the assigning Lender's Loans) subject to such
assignment. Upon the execution, delivery, acceptance and recording in the
Register of any Assignment and Acceptance and, except for any primary
assignment by any Agent or any Affiliate of such Agent (in its capacity as a
Lender), the receipt by the Administrative Agent from the assignee of an
assignment fee in the amount of $3,500 (by a party to such Assignment and
Acceptance other than the Borrowers) from and after the effective date
specified in such Assignment and Acceptance, (i) the assignee thereunder shall
become a party hereto and, to the extent that rights and obligations under the
Loan Documents have been assigned to such assignee pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender, and if such Lender
were an Issuer, of such Issuer hereunder and thereunder, and (ii) the Notes (if
any) corresponding to the Loans assigned thereby shall be transferred to such
assignee by notation in the Register and (iii) the assignor thereunder shall,
to the extent that rights and obligations under this Agreement have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights (except for those surviving the payment in full of the Obligations) and
be released from its obligations under the Loan Documents, other than those
relating to events or circumstances occurring prior to such assignment (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under the Loan Documents, such
Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address
referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and
Acceptance delivered to and accepted by it and shall record in the Register, in
accordance with Section 2.7 (Promissory Notes), the names and addresses of the
Lenders and Issuers and the principal amount of the Loans and Reimbursement
Obligations owing to each Lender from time to time and the Commitments of each
Lender. Any assignment pursuant to this Section 11.2 shall not be effective
until such assignment is recorded in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed, (i) accept such Assignment and
Acceptance, (ii) record or cause to be recorded the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrowers.
Within five Business Days after its receipt of such notice, the Borrowers, at
their own expense, shall, if requested by such assignee, execute and deliver to
the Administrative Agent new Notes to the order of such assignee in an amount
equal to the Commitments and Loans assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has surrendered any Note for
exchange in connection with the assignment and has retained Commitments or
Loans hereunder, new Notes to the order of the assigning Lender in an amount
equal to the Commitments and Loans retained by it hereunder. Such new Notes
shall be dated the same date as the surrendered Notes and be in substantially
the form of Exhibit B-1 (Form of Revolving Credit Note) or Exhibit B-2 (Form of
Term Note), as applicable.
(e) Each Lender may sell participations to one or more
Persons in or to all or a portion of its rights and obligations under the Loan
Documents (including all its rights and obligations with respect to the Term
Loans, Revolving Loans and Letters of Credit). The terms of such participation
shall not, in any event, require the participant's consent to any amendments,
waivers or other modifications of any provision of any Loan Documents, the
consent to any departure by any Loan Party therefrom, or to the exercising or
refraining from exercising any powers or rights such Lender may have under or
in respect of the Loan Documents (including the right to enforce the
obligations of the Loan Parties), except if any such amendment, waiver or other
modification or consent would (i) reduce the amount, or postpone any regularly
scheduled date fixed for, any amount (whether of principal, interest or fees)
payable to such participant under the Loan Documents, to which such participant
would otherwise be entitled under such participation or (ii) result in the
release of all or substantially all of the Collateral other than in accordance
with Section 10.8(b) (Concerning the Collateral and the Collateral Documents).
In the event of the sale of any participation by any Lender, (w) such Lender's
obligations under the Loan Documents shall remain unchanged, (x) such Lender
shall remain solely responsible to the other parties for the performance of
such obligations, (y) such Lender shall remain the holder of such Obligations
for all purposes of this Agreement and (z) the Borrowers, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Each participant shall be entitled to the benefits of Sections
2.14(c) (Illegality), 2.16 (Capital Adequacy) and of 2.17 (Taxes) as if it were
a Lender; provided, however, that anything herein to the contrary
notwithstanding, the Borrowers shall not, at any time, be obligated to make
under Section 2.14(c) (Illegality), 2.16 (Capital Adequacy) or 2.17 (Taxes) to
the participants in the rights and obligations of any Lender (together with
such Lender) any payment in excess of the amount the Borrowers would have been
obligated to pay to such Lender in respect of such interest had such
participation not been sold unless the participation was made with a Borrower's
prior written consent or the right to a greater payment resulted from a Change
in Law after the Participant became a Participant; provided that the
Participant complies with the requirements of the Section under which it is
entitled to receive a greater payment and provided, further, that such
participant in the rights and obligations of such Lender shall have no direct
right to enforce any of the terms of this Agreement against the Borrowers, the
Administrative Agent or the other Lenders.
(f) Each Issuer may at any time assign its rights and
obligations hereunder to any other Lender by an instrument in form and
substance satisfactory to the Borrowers, the Administrative Agent, such Issuer
and such Lender, subject to the provisions of Section 2.7(b) (Promissory Notes)
relating to notations of transfer in the Register. If such Issuer ceases to be
a Lender hereunder by virtue of any assignment made pursuant to this Section
11.2, then, as of the effective date of such cessation, such Issuer's
obligations to Issue Letters of Credit pursuant to Section 2.4 (Letters of
Credit) shall terminate and such Issuer shall be an Issuer hereunder only with
respect to outstanding Letters of Credit issued prior to such date.
(g) Any Lender may, without the consent of the Company or the
Administrative Agent, 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; provided that no such pledge or assignment or the exercise by the
pledgee of its rights thereunder or with respect thereto shall release such
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary herein, no
Lender will assign or sell participations in all or a portion of its Loans or
Commitments to any Person who is (i) listed on the Specially Designated
Nationals and Blocked Persons List maintained by the U.S. Department of
Treasury Office of Foreign Assets Control ("OFAC") and/or on any other similar
list maintained by the OFAC pursuant to any authorizing statute, Executive
Order or regulation or (ii) either (A) included within the term "designated
national" as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part
515, or (B) designated under Sections 1(a), 1(b), 1(c) or 1(d) of Executive
Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) or similarly
designated under any related enabling legislation or any other similar
Executive Orders.
Section 11.3 Costs and Expenses
(a) The Borrowers agree upon demand to pay, or reimburse the
Administrative Agent, within five Business Days after demand for all of its
reasonable documented out-of-pocket costs and expenses in connection with: (i)
the Administrative Agent's investigation of the Company and its Subsidiaries in
connection with the preparation, negotiation or execution of any Loan Document,
including, all of the Administrative Agent's reasonable documented
out-of-pocket audit, legal, appraisal, valuation, filing, document duplication
and reproduction and investigation expenses and for all other reasonable
documented out-of-pocket costs and expenses of every type and nature (including
the reasonable fees, expenses and disbursements of the Agents' counsel, Cahill
Gordon & Reindel LLP, local legal counsel, auditors, accountants, appraisers,
insurance and environmental advisors, and other consultants and agents), (ii)
the preparation, negotiation, execution or interpretation of this Agreement,
any Loan Document or any proposal letter or commitment letter issued in
connection therewith, (iii) the creation, perfection or protection of the Liens
under any Loan Document (including any reasonable fees, disbursements and
expenses for local counsel in various jurisdictions), (iv) the ongoing
administration of this Agreement and the Loans, including consultation with
attorneys in connection therewith and with respect to such Agent's rights and
responsibilities hereunder and under the other Loan Documents, (v) the
protection, collection or enforcement of any Obligation or the enforcement of
any Loan Document, (vi) the commencement, defense or intervention in any court
proceeding relating in any way to the Obligations, any Loan Party, any of the
Borrower's Subsidiaries, the Transactions, the Acquisition Documents, this
Agreement or any other Loan Document, (vii) the response to, and preparation
for, any subpoena or request for document production with which the
Administrative Agent is served or deposition or other proceeding in which the
Administrative Agent is called to testify, in each case, relating in any way to
the Obligations, any Loan Party, any of the Borrower's Subsidiaries, the
Transactions, the Acquisition Documents, this Agreement or any other Loan
Document or (viii) any amendment, consent, waiver, assignment, restatement, or
supplement to any Loan Document or the preparation, negotiation and execution
of the same.
(b) The Borrowers further agree to pay or reimburse the
Administrative Agent and each of the Lenders and Issuers upon demand for all
out-of-pocket costs and expenses, including reasonable attorneys' fees,
incurred by the Administrative Agent, such Lenders or such Issuers in
connection with any of the following: (i) in enforcing any Loan Document or
Obligation or any security therefor or exercising or enforcing any other right
or remedy available by reason of an Event of Default, (ii) in connection with
any refinancing or restructuring of the credit arrangements provided hereunder
in the nature of a "work-out" or in any insolvency or bankruptcy proceeding,
(iii) in commencing, defending or intervening in any litigation or in filing a
petition, complaint, answer, motion or other pleadings in any legal proceeding
relating to the Obligations, any Loan Party, any of the Borrower's Subsidiaries
and related to or arising out of the transactions contemplated hereby or by any
other Loan Document or (iv) in taking any other action in or with respect to
any suit or proceeding (bankruptcy or otherwise) described in clause (i), (ii)
or (iii) above.
Section 11.4 Indemnities
(a) The Borrowers agree to indemnify and hold harmless each
Agent, Arranger, Lender and Issuer and each of their respective Affiliates, and
each of the directors, officers, employees, agents, trustees, representatives,
attorneys, consultants and advisors of or to any of the foregoing (each such
Person being an "Indemnitee") from and against any and all claims, damages,
liabilities, obligations, losses, penalties, actions, judgments, suits, costs,
disbursements and expenses, joint or several, of any kind or nature (including
reasonable out-of-pocket fees, disbursements and expenses of financial and
legal advisors to any such Indemnitee) that may be imposed on, incurred by or
asserted against any such Indemnitee in connection with or arising out of any
investigation, litigation or proceeding, whether or not such investigation,
litigation or proceeding is brought by any such indemnitee or any of its
directors, security holders or creditors or any such Indemnitee, director,
security holder or creditor is a party thereto, whether direct, indirect, or
consequential and whether based on any federal, state, provincial, local or
other statutory regulation, securities or commercial law or regulation, or
under common law or in equity, or on contract, tort or otherwise, in any manner
relating to or arising out of this Agreement, any other Loan Document, any
Obligation, any Letter of Credit, any Disclosure Document, or any act, event or
transaction related or attendant to any thereof, or the use or intended use of
the proceeds of the Loans or Letters of Credit (collectively, the "Indemnified
Matters") (including any civil penalty or fine assessed by OFAC against, and
all reasonable costs and expenses (including reasonably counsel fees and
disbursements) incurred in connection with defense thereof, by any Indemnitee
as a result of conduct of a Borrower that violates a sanction enforced by
OFAC); provided, however, that the Borrowers shall not have any liability under
this Section 11.4 to an Indemnitee with respect to any Indemnified Matter
solely to the extent that such liability has resulted from the gross negligence
or willful misconduct of that Indemnitee or from any breach of any of such
Indemnitee's obligations under the Loan Documents to which it is a party or
attributable to an action brought by one Indemnitee against another Indemnitee
(other than an action against an Agent, Arranger or Issuer, in their respective
capacities as such, unless such liability has resulted from the gross
negligence or willful misconduct of such Person). Without limiting the
foregoing, "Indemnified Matters" include (i) all Environmental Liabilities and
Costs arising from or connected with the past, present or future operations of
the Company or any of its Subsidiaries involving any property subject to a
Collateral Document, or damage to real or personal property or natural
resources or harm or injury alleged to have resulted from any Release of
Contaminants on, upon or into such property or any contiguous real estate, (ii)
any costs or liabilities incurred in connection with any Response Action
concerning the Company or any of its Subsidiaries, (iii) any Environmental
Liabilities or costs incurred in connection with any Environmental Lien and
(iv) any Environmental Liabilities or costs incurred in connection with any
other matter under any Environmental Law, including CERCLA and applicable
state, provincial or other property transfer laws, whether, with respect to any
such matter, such Indemnitee is a party hereto, a mortgagee pursuant to any
leasehold mortgage, a mortgagee in possession, the successor in interest to the
Company or any of its Subsidiaries, or the owner, lessee or operator of any
property of the Company or any of its Subsidiaries by virtue of foreclosure,
except, with respect to those matters referred to in clauses (i), (ii), (iii)
and (iv) above, to the extent (x) incurred following foreclosure by the
Administrative Agent, any Lender or any Issuer, or the Administrative Agent,
any Lender or Issuer having become the successor in interest to the Company or
any of its Subsidiaries and (y) attributable solely to acts of the
Administrative Agent, such Lender or such Issuer or any agent on behalf of the
Administrative Agent, such Lender or such Issuer.
(b) The Borrowers agree that any indemnification pursuant to
this Section 11.4 shall (i) survive the termination of this Agreement or
payment in full of the Obligations and (ii) inure to the benefit of any Person
that was at any time an Indemnitee under this Agreement or any other Loan
Document.
(c) Any indemnity, obligation, liability and undertaking
granted or assumed pursuant to this Agreement (including but not limited to
this Section 11.4 (Indemnification)) by any Loan Party organized under the laws
of the Netherlands shall be deemed not to be undertaken or incurred by such
Loan Party to the extent that the same would constitute unlawful financial
assistance within the meaning of Sections 2:207c of the Dutch Civil Code (the
"Prohibition") and the provisions of this Agreement shall be construed
accordingly. For the avoidance of doubt, the indemnities, obligations,
liabilities and undertakings granted or assumed pursuant to this Agreement will
continue to be in full force to the extent these would not constitute a
violation of the Prohibition.
Section 11.5 Limitation of Liability
The Borrowers agree that no Indemnitee shall have any
liability (whether in contract, tort or otherwise) to any Loan Party or any of
their respective Subsidiaries or any of their respective equity holders or
creditors for or in connection with the Transactions contemplated hereby and in
the other Loan Documents and Related Documents or arising out of any Loan
Party's or any Agent Affiliate's transmission or Approved Electronic
Communications through the internet or any use of the Approved Electronic
Platform. In no event, however, shall any Indemnitee be liable under Section
11.2(h) (Assignments and Participation) or on any theory of liability for any
special, indirect, consequential or punitive damages (including, without
limitation, any loss of profits, business or anticipated savings). Each of the
Borrowers hereby waives, releases and agrees (each for itself and on behalf of
its Subsidiaries) not to sue upon any such claim for any special, indirect,
consequential or punitive damages, whether or not accrued and whether or not
known or suspected to exist in its favor.
Section 11.6 Right of Set-off
Upon the occurrence and during the continuance of any Event
of Default each Lender and each Affiliate of a Lender may 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 its
Affiliates to or for the credit or the account of the Borrowers against any and
all of the Obligations now or hereafter existing whether or not such Lender
shall have made any demand under this Agreement or any other Loan Document and
even though such Obligations may be unmatured. Each Lender agrees promptly to
notify the Borrowers after any such set-off and application made by such Lender
or its Affiliates; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. Each Lender
agrees that it shall not, without the express consent of the Administrative
Agent or the Requisite Lenders (and that, it shall, to the extent lawfully
entitled to do so, upon the request of the Administrative Agent or the
Requisite Lenders) exercise its set-off rights under this Section 11.6 against
any deposit accounts of the Loan Parties and their Subsidiaries maintained with
such Lender or any Affiliate thereof. The rights of each Lender under this
Section 11.6 are in addition to the other rights and remedies (including other
rights of set-off) that such Lender may have.
Section 11.7 Sharing of Payments, Etc.
If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or other obligations hereunder resulting in such
Lender's receiving payment of a proportion of the aggregate amount of its Loans
and accrued interest thereon or other such obligations greater than its pro
rata share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the Loans and such other
obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them,
provided that:
(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 in the same currency as
received; and
(ii) the provisions of this paragraph shall not be construed
to apply to (x) any payment made by a Loan Party pursuant to and in
accordance with the express terms of the Loan Documents or (y) any
payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in
Reimbursement Obligations to any assignee or participant, other than
to a Borrower or any Subsidiary thereof (as to which the provisions of
this paragraph shall apply).
Each Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender acquiring
a participation pursuant to the foregoing arrangements may exercise against any
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
Section 11.8 Notices, Etc.
(a) Addresses for Notices. All notices, demands, requests,
consents and other communications provided for in this Agreement shall be given
in writing, or by any telecommunication device capable of creating a written
record (including electronic mail), and addressed to the party to be notified
as follows (or at such other address as may be notified by such party to the
Administrative Agent and the Company):
(i) If to the Company or any other Loan Party:
ACCO Brands Corporation
300 Tower Parkway
Lincolnshire, Illinois 60069
Attention: Thomas P. O'Neill
Anthony Giuliano
Email: Tom_O'Neill@acco.com; TGiuliano@gbc.com
Tel: (800) 222-6462
and
Attention: Steve Rubin
Email: SRubin@gbc.com
Tel: (800) 222-6462
with a copy to:
Skadden, Arps, Slate Meagher & Flom LLP
333 West Wacker Drive
Chicago, Illinois 60606
Attention: William R. Kunkel, Esq.
Randall J. Rademaker, Esq.
Tel: (312) 407-0700
(ii) if to any Lender, at its Applicable Lending Office
specified opposite its name on Schedule II (Applicable Lending Offices
and Addresses for Notices) or on the signature page of any applicable
Assignment and Acceptance;
(iii) if to an Issuer, at the address set forth under its
name on Schedule II (Applicable Lending Offices and Addresses for
Notices); and
(iv) if to the Administrative Agent:
(a) for notices pursuant to Article II and Article III:
Citicorp North America, Inc.
Global Loans Support Services
2 Penns Way, Suite 110
New Castle, Delaware 19720
Attention: Jacqueline Caine
Fax No.: 212-994-0961
E-Mail Address: jacqueline.caine@citigroup.com
(b) for all other notices:
Citicorp North America, Inc.
233 S. Wacker Dr., 86th Floor
Chicago, IL 60606
Attention: Carrie Stead
Fax No.: (312) 876-3283
E-Mail Address: caroline.a.stead@citigroup.com
with a copy to:
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
Attention: Michael E. Michetti
Fax No.: (212) 378-2313
E-Mail Address: mmichetti@cahill.com
or at such other address as shall be notified in writing (x) in the case of the
Borrowers, the Administrative Agent and the Swing Loan Lenders, to the other
parties and (y) in the case of all other parties, to the Borrowers and the
Administrative Agent.
(b) Effectiveness of Notices. All notices, demands, requests,
consents and other communications described in clause (a) above shall be
effective (i) if delivered by hand, including any overnight courier service,
upon personal delivery, (ii) if delivered by mail, three Business Days after
being deposited in the mails, postage prepaid, return receipt requested, (iii)
if delivered by posting to an Approved Electronic Platform, an Internet website
or a similar telecommunication device requiring a user prior access to such
Approved Electronic Platform, website or other device, when such notice,
demand, request, consent and other communication shall have been made generally
available on such Approved Electronic Platform, Internet website or similar
device to the class of Person being notified (regardless of whether any such
Person must accomplish, and whether or not any such Person shall have
accomplished, any action prior to obtaining access to such items, including
registration, disclosure of contact information, compliance with a standard
user agreement or undertaking a duty of confidentiality) and (iv) if delivered
by electronic mail or any other telecommunications device, when transmitted to
an electronic mail address (or by another means of electronic delivery) as
provided in clause (a) above; provided, however, that notices and
communications to the Administrative Agent pursuant to Article II (The
Facilities) or Article X (The Administrative Agent; The Agents) shall not be
effective until received by the Administrative Agent.
(c) Use of Electronic Platform. Notwithstanding clauses (a)
and (b) above (unless the Administrative Agent requests that the provisions of
clauses (a) and (b) above be followed) and any other provision in this
Agreement or any other Loan Document providing for the delivery of, any
Approved Electronic Communication by any other means, the Loan Parties shall
deliver all Approved Electronic Communications to the Administrative Agent by
properly transmitting such Approved Electronic Communications electronically
(in a format acceptable to the Administrative Agent) to
oploanswebadmin@citigroup.com or such other electronic mail address (or similar
means of electronic delivery) as the Administrative Agent may notify the
Borrower. Nothing in this clause (c) shall prejudice the right of the
Administrative Agent or any Lender or Issuer to deliver any Approved Electronic
Communication to any Loan Party in any manner authorized in this Agreement.
(d) Notices by or to the U.K. Borrower or the Dutch Borrower,
Etc. Each of the U.K. Borrower and the Dutch Borrower hereby agrees that any
notice to the U.K. Borrower or the Dutch Borrower required hereunder may be
provided by the Company and each of the U.K. Borrower and the Dutch Borrower
hereby authorizes the Company to provide borrowing and other notices to the
Administrative Agent on behalf of such Borrower. The Company hereby consents to
any Subsidiary of the Company organized under the laws of Australia providing
notice directly to the Administrative Agent an Issuer located in Australia with
respect to any Letter of Credit to be issued on behalf of such Subsidiary. Each
of the Borrowers agrees to be bound by any such notice provided by any party as
provided above as though such Borrower had directly provided such notice.
Section 11.9 No Waiver; Remedies
No failure on the part of any Lender, any Issuer or the
Administrative Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
Section 11.10 Binding Effect
This Agreement shall become effective when it shall have been
executed by the Borrowers and each Agent and when the Administrative Agent
shall have been notified by each Lender and each Issuer that such Lender or
Issuer has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrowers, each Agent and each Lender and each Issuer and, in
each case, their respective successors and assigns; provided, however, that no
Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
Section 11.11 Governing Law
This Agreement and the rights and obligations of the parties
hereto shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York.
Section 11.12 Submission to Jurisdiction; Service of Process
(a) Any legal action or proceeding with respect to this
Agreement or any other Loan Document may be brought in the courts of the State
of New York located in the City of New York or of the United States of America
for the Southern District of New York, and, by execution and delivery of this
Agreement, each Borrower hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The parties hereto hereby irrevocably waive any objection, including
any objection to the laying of venue or based on the grounds of forum non
conveniens, that any of them may now or hereafter have to the bringing of any
such action or proceeding in such respective jurisdictions.
(b) Each of the Borrowers hereby irrevocably designates,
appoints and empowers CT Corporation System ,111 Eighth Avenue, 13th Floor, New
York, New York 10011 (the "Process Agent"), in the case of any suit, action or
proceeding brought in the United States of America as its designee, appointee
and agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and all legal process, summons, notices
and documents that may be served in any action or proceeding arising out of or
in connection with this Agreement or any Loan Document. Such service may be
made by mailing (by registered or certified mail, postage prepaid) or
delivering a copy of such process to such Borrower in care of the Process Agent
at the Process Agent's above address, and each of the Borrowers hereby
irrevocably authorizes and directs the Process Agent to accept such service on
its behalf. As an alternative method of service, each of the Borrowers
irrevocably consents to the service of any and all process in any such action
or proceeding by the mailing (by registered or certified mail, postage prepaid)
of copies of such process to the Process Agent or such Borrower at its address
specified in Section 11.8 (Notices, Etc.). To the extent permitted by law, each
of the Borrowers 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.
(c) Nothing contained in this Section 11.12 shall affect the
right of the Administrative Agent or any Lender to serve process in any other
manner permitted by law or commence legal proceedings or otherwise proceed
against any Borrower or any other Loan Party in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in Dollars, Euros or Sterling 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, Euros or Sterling, as the case may be, with such other
currency at the spot rate of exchange quoted by the Administrative Agent at
11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for the purchase of Dollars, Euros or Sterling, as the case
may be, for delivery two Business Days thereafter. The obligation of each
Borrower in respect of any such sum due from it to the Administrative Agent or
the Lenders hereunder or under the other Loan Documents shall, notwithstanding
any judgment in a currency (the "Judgment Currency") other than that in which
sum is denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due to the Administrative Agent in the Agreement
Currency, each Borrower agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Administrative Agent or the Person to whom
such obligation was owing against such loss.
Section 11.13 Waiver of Jury Trial
EACH OF THE AGENTS, THE LENDERS, THE ISSUERS AND THE
BORROWERS IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
Section 11.14 Marshaling; Payments Set Aside
None of the Administrative Agent, any Lender or any Issuer
shall be under any obligation to marshal any assets in favor of any Borrower or
any other party or against or in payment of any or all of the Obligations. To
the extent that any Borrower makes a payment or payments to the Administrative
Agent, the Lenders or the Issuers or any such Person receives payment from the
proceeds of the Collateral or exercise their rights of setoff, and such payment
or payments or the proceeds of such enforcement or setoff or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, receiver or any other party, then
to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, right and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
Section 11.15 Section Titles
The section titles contained in this Agreement are and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto, except when used to reference
a section. Any reference to the number of a clause, sub-clause or subsection
hereof immediately followed by a reference in parenthesis to the title of the
Section containing such clause, sub-clause or subsection is a reference to such
clause, sub-clause or subsection and not to the entire Section; provided,
however, that, in case of direct conflict between the reference to the title
and the reference to the number of such Section, the reference to the title
shall govern absent manifest error. If any reference to the number of a Section
(but not to any clause, sub-clause or subsection thereof) is followed
immediately by a reference in parenthesis to the title of a Section, the title
reference shall govern in case of direct conflict absent manifest error.
Section 11.16 Execution in Counterparts
This Agreement may be executed in any number of counterparts
and by different parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so
that all signature pages are attached to the same document. Delivery of an
executed signature page of this Agreement by facsimile transmission or by
posting on the Approved Electronic Platform shall be as effective as delivery
of a manually executed counterpart hereof. A set of the copies of this
Agreement signed by all parties shall be lodged with the Company and the
Administrative Agent.
Section 11.17 Entire Agreement
This Agreement, together with all of the other Loan Documents
embodies the entire agreement of the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof. In the
event of any conflict between the terms of this Agreement and any other Loan
Document, the terms of this Agreement shall govern.
Section 11.18 Confidentiality
Each Lender and the Administrative Agent agree to keep
information obtained by it pursuant hereto and the other Loan Documents
confidential and agrees that it shall only use such information in connection
with the transactions contemplated by this Agreement and not disclose any such
information other than (a) to such Lender's or the Administrative Agent's, as
the case may be, employees, representatives, counsel, auditors and agents (and
Qualified Parties that are Affiliates of such Lenders) that are or are expected
to be involved in the evaluation of such information in connection with the
transactions contemplated by this Agreement and are advised of the confidential
nature of such information, (b) to the extent such information presently is or
hereafter becomes available to such Lender or the Administrative Agent, as the
case may be, on a non-confidential basis from a source other than the Company
or a Subsidiary thereof, (c) to the extent disclosure is required by law,
regulation or judicial order or requested or required by bank regulators or
auditors or in accordance with a Lender's regulatory compliance policy, (d) to
current or prospective assignees, participants (Assignments and Participations)
and to their respective legal or financial advisors, in each case and to the
extent such assignees, participants, grantees or counterparties agree to be
bound by, and to cause their advisors to comply with, the provisions of this
Section 11.18, (e) with the prior written consent of the Company, (f) to the
extent reasonably required in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder and (g) to the extent specifically provided in any
other agreement between a Secured Party, on the one hand, and the Company or a
Subsidiary, on the other.
Section 11.19 Patriot Act
The Lenders hereby notify the Borrowers that pursuant to the
requirements of the U.S.A. Patriot Act, Title III of Pub. L. 107-56 (signed
into law October 26, 2001) (the "Patriot Act"), each Lender is required to
obtain, verify and record information that identifies each Borrower, which
information includes the name, address, tax identification number and other
information regarding such Borrower that will allow such Lender to identify
such Borrower in accordance with the Patriot Act. This notice is given in
accordance with the requirements of the Patriot Act and is effective as to each
Lender.
[SIGNATURE PAGES FOLLOW]
(Credit Agreement Signature Page)
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ACCO BRANDS CORPORATION,
as U.S. Borrower
By: /s/ Neal V. Fenwick
-------------------
Name: Neal V. Fenwick
Title: Executive Vice President and
Chief Financial Officer
ACCO BRANDS EUROPE LTD.,
as U.K. Borrower
By: /s/ Paul Chapman
-----------------
Name: Paul Chapman
Title: Vice President - Finance
FURLON HOLDINGS B.V.,
as Dutch Borrower
By: /s/ C.H. van Manen
--------------------
Name: C. H. van Manen
Title: Director
CITICORP NORTH AMERICA, INC.,
as Adminstrative Agent
By: /s/ Myles Kassin
-----------------------------
Name: Myles Kassin
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Dollar Revolving Lender
By: /s/ Myles Kassin
-----------------------------
Name: Myles Kassin
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as U.S. Term Lender
By: /s/ Myles Kassin
-----------------------------
Name: Myles Kassin
Title: Vice President
ABN AMRO BANK N.V.,
as Syndication Agent
By: /s/ Terrence J. Ward
-----------------------------
Name: Terrence J. Ward
Title: Senior Vice President
By: /s/ John M. Pastore
-----------------------------
Name: John M. Pastore
Title: Vice President
ABN AMRO BANK N.V.,
as a Euro Term Lender
By: /s/ Terrence J. Ward
-----------------------------
Name: Terrence J. Ward
Title: Senior Vice President
By: /s/ John M. Pastore
-----------------------------
Name: John M. Pastore
Title: Vice President
ABN AMRO BANK N.V.,
as a Sterling Term Lender
By: /s/ Terrence J. Ward
-----------------------------
Name: Terrence J. Ward
Title: Senior Vice President
By: /s/ John M. Pastore
-----------------------------
Name: John M. Pastore
Title: Vice President
ABN AMRO BANK N.V.,
as a Euro Revolving Lender
By: /s/ Terrence J. Ward
-----------------------------
Name: Terrence J. Ward
Title: Senior Vice President
By: /s/ John M. Pastore
-----------------------------
Name: John M. Pastore
Title: Vice President
ABN AMRO BANK N.V.,
as a Dollar Revolving Lender
By: /s/ Terrence J. Ward
-----------------------------
Name: Terrence J. Ward
Title: Senior Vice President
By: /s/ John M. Pastore
-----------------------------
Name: John M. Pastore
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION, as
a Swing Loan Lender and Issuer
By: /s/ Jeffery B. Michalczyk
-------------------------------
Name: Jeffery B. Michalczyk
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION, as
a Dollar Revolving Lender
By: /s/ Jeffery B. Michalczyk
------------------------------
Name: Jeffery B. Michalczyk
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION, as
a Euro Revolving Lender
By: /s/ Jeffery B. Michalczyk
------------------------------
Name: Jeffery B. Michalczyk
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION, as
a Sterling Term Lender
By: /s/ Jeffery B. Michalczyk
------------------------------
Name: Jeffery B. Michalczyk
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION, as
a Euro Term Lender
By: /s/ Jeffery B. Michalczyk
------------------------------
Name: Jeffery B. Michalczyk
Title: Vice President
GOLDMAN SACHS CREDIT PARTNERS L.P., as
a U.S. Term Lender
By: /s/ William W. Archer
-----------------------------
Name: William W. Archer
Title: Managing Director
GOLDMAN SACHS CREDIT PARTNERS L.P., as
a Euro Term Lender
By: /s/ William W. Archer
-----------------------------
Name: William W. Archer
Title: Managing Director
GOLDMAN SACHS CREDIT PARTNERS L.P., as
a Dollar Revolving Lender
By: /s/ William W. Archer
-----------------------------
Name: William W. Archer
Title: Managing Director
GOLDMAN SACHS CREDIT PARTNERS L.P., as
a Sterling Term Lender
By: /s/ William W. Archer
-----------------------------
Name: William W. Archer
Title: Managing Director
GOLDMAN SACHS CREDIT PARTNERS L.P., as
a Euro Revolving Lender
By: /s/ William W. Archer
-----------------------------
Name: William W. Archer
Title: Managing Director
HARRIS N.A.,
as a Co-Documentation Agent and Issuer
By: /s/ Danjuma G. Gibson
-----------------------------
Name: Danjuma G. Gibson
Title: Vice President
HARRIS N.A.,
as a Dollar Revolving Lender
By: /s/ Danjuma G. Gibson
-----------------------------
Name: Danjuma G. Gibson
Title: Vice President
HARRIS N.A.,
as a Euro Revolving Lender
By: /s/ Danjuma G. Gibson
-----------------------------
Name: Danjuma G. Gibson
Title: Vice President
HARRIS N.A.,
as a Sterling Term Lender
By: /s/ Danjuma G. Gibson
-----------------------------
Name: Danjuma G. Gibson
Title: Vice President
HARRIS N.A.,
as a Euro Term Lender
By: /s/ Danjuma G. Gibson
-----------------------------
Name: Danjuma G. Gibson
Title: Vice President
GENERAL ELECTRIC CAPTIAL CORPORATION,
as a Co-Documentation Agent and a Swin
Loan Lender
By: /s/ Robert M. Kadlick
-----------------------------
Name: Robert M. Kadlick
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPTIAL CORPORATION,
as a Euro Term Lender
By: /s/ Robert M. Kadlick
-----------------------------
Name: Robert M. Kadlick
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPTIAL CORPORATION,
as a Sterling Term Lender
By: /s/ Robert M. Kadlick
-----------------------------
Name: Robert M. Kadlick
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPTIAL CORPORATION,
as a Euro Revolving Lender
By: /s/ Robert M. Kadlick
-----------------------------
Name: Robert M. Kadlick
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPTIAL CORPORATION,
as a Dollar Revolving Lender
By: /s/ Robert M. Kadlick
-----------------------------
Name: Robert M. Kadlick
Title: Duly Authorized Signatory
NATIONAL CITY BANK OF THE MIDWEST,
as a Euro Term Lender
By: /s/ Lynn Rosinsky
-----------------------------
Name: Lynn Rosinsky
Title: Senior Vice President
Regional Manager
NATIONAL CITY BANK OF THE MIDWEST,
as a Sterling Term Lender
By: /s/ Lynn Rosinsky
-----------------------------
Name: Lynn Rosinsky
Title: Senior Vice President
Regional Manager
NATIONAL CITY BANK OF THE MIDWEST,
as a Dollar Revolving Lender
By: /s/ Lynn Rosinsky
-----------------------------
Name: Lynn Rosinsky
Title: Senior Vice President
Regional Manager
NATIONAL CITY BANK OF THE MIDWEST,
as a Euro Revolving Lender
By: /s/ Lynn Rosinsky
-----------------------------
Name: Lynn Rosinsky
Title: Senior Vice President
Regional Manager
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Euro Term Lender
By: /s/ Beth Rue
-----------------------------
Name: Beth Rue
Title: AVP
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Sterling Term Lender
By: /s/ Beth Rue
-----------------------------
Name: Beth Rue
Title: AVP
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Euro Revolving Lender
By: /s/ Beth Rue
-----------------------------
Name: Beth Rue
Title: AVP
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Dollar Revolving Lender
By: /s/ Beth Rue
-----------------------------
Name: Beth Rue
Title: AVP
U.S. BANK NATIONAL ASSOCIATION,
as a Dollar Revolving Lender
By: /s/ Matthew J. Schultz
-----------------------------
Name: Matthew J. Schultz
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Sterling Term Lender
By: /s/ Matthew J. Schultz
-----------------------------
Name: Matthew J. Schultz
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Euro Term Lender
By: /s/ Matthew J. Schultz
-----------------------------
Name: Matthew J. Schultz
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Euro Revolving Lender
By: /s/ Matthew J. Schultz
-----------------------------
Name: Matthew J. Schultz
Title: Vice President
COMMONWEALTH BANK OF AUSTRALIA, as
a Euro Term Lender
By: /s/ Jeffery Heazlewood
-----------------------------
Name: Jeffery Heazlewood
Title: Relationship Executive
COMMONWEALTH BANK OF AUSTRALIA, as
a Sterling Term Lender
By: /s/ Jeffery Heazlewood
-----------------------------
Name: Jeffery Heazlewood
Title: Relationship Executive
COMMONWEALTH BANK OF AUSTRALIA, as
a Euro Revolving Lender
By: /s/ Jeffery Heazlewood
-----------------------------
Name: Jeffery Heazlewood
Title: Relationship Executive
COMMONWEALTH BANK OF AUSTRALIA, as
a Dollar Revolving Lender
By: /s/ Jeffery Heazlewood
-----------------------------
Name: Jeffery Heazlewood
Title: Relationship Executive
JPMORGAN CHASE BANK, N.A. LONDON BRANCH, as
a Euro Term Lender
By: /s/ Jason A. Rastovski
-----------------------------
Name: Jason A. Rastovski
Title: Vice President
JPMORGAN CHASE BANK, N.A. LONDON BRANCH, as
a Sterling Term Lender
By: /s/ Jason A. Rastovski
-----------------------------
Name: Jason A. Rastovski
Title: Vice President
JPMORGAN CHASE BANK, N.A. LONDON BRANCH, as
a Euro Revolving Lender
By: /s/ Jason A. Rastovski
-----------------------------
Name: Jason A. Rastovski
Title: Vice President
JPMORGAN CHASE BANK, N.A. LONDON BRANCH, as
a Dollar Revolving Lender
By: /s/ Jason A. Rastovski
-----------------------------
Name: Jason A. Rastovski
Title: Vice President
MIZUHO CORPORATE BANK LIMITED, as
a Dollar Revolving Lender
By: /s/ Robert Gallagher
-----------------------------
Name: Robert Gallagher
Title: Senior Vice President
MIZUHO CORPORATE BANK LIMITED, as
a Euro Revolving Lender
By: /s/ Robert Gallagher
-----------------------------
Name: Robert Gallagher
Title: Senior Vice President
MIZUHO CORPORATE BANK LIMITED, as
a Sterling Term Lender
By: /s/ Robert Gallagher
-----------------------------
Name: Robert Gallagher
Title: Senior Vice President
MIZUHO CORPORATE BANK LIMITED, as
a Euro Term Lender
By: /s/ Robert Gallagher
-----------------------------
Name: Robert Gallagher
Title: Senior Vice President
BANK OF TOKYO-MITSUBISHI, LTD., as
a Euro Revolving Lender
By: /s/ Andrew Trenouth
-----------------------------
Name: Andrew Trenouth
Title: Deputy General Manager
BANK OF TOKYO-MITSUBISHI, LTD., as
a Sterling Term Lender
By: /s/ Andrew Trenouth
-----------------------------
Name: Andrew Trenouth
Title: Deputy General Manager
BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH,
as a Dollar Revolving Lender
By: /s/ Kazuya Matsushita
-----------------------------
Name: Kazuya Matsushita
Title: General Manager
BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH,
as a Euro Term Lender
By: /s/ Kazuya Matsushita
-----------------------------
Name: Kazuya Matsushita
Title: General Manager
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Euro Term Lender
By: /s/ Isabel S. Ziessig
-----------------------------
Name: Isabel S. Zeissig
Title: Vice President
By: /s/ Charles W. Polet
-----------------------------
Name: Charles W. Polet
Title: Assistant Treasurer
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Sterling Term Lender
By: /s/ Isabel S. Ziessig
-----------------------------
Name: Isabel S. Zeissig
Title: Vice President
By: /s/ Charles W. Polet
-----------------------------
Name: Charles W. Polet
Title: Assistant Treasurer
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Dollar Revolving Lender
By: /s/ Isabel S. Ziessig
-----------------------------
Name: Isabel S. Zeissig
Title: Vice President
By: /s/ Charles W. Polet
-----------------------------
Name: Charles W. Polet
Title: Assistant Treasurer
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Euro Revolving Lender
By: /s/ Isabel S. Ziessig
-----------------------------
Name: Isabel S. Zeissig
Title: Vice President
By: /s/ Charles W. Polet
-----------------------------
Name: Charles W. Polet
Title: Assistant Treasurer
PNC BANK, NATIONAL ASSOCIATION, as
a Euro Revolving Lender
By: /s/ David B. Gookin
-----------------------------
Name: David B. Gookin
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as
a Dollar Revolving Lender
By: /s/ David B. Gookin
-----------------------------
Name: David B. Gookin
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as
a Euro Term Lender
By: /s/ David B. Gookin
-----------------------------
Name: David B. Gookin
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as
a Sterling Term Lender
By: /s/ David B. Gookin
-----------------------------
Name: David B. Gookin
Title: Senior Vice President
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK
BRANCH, as a Dollar Revolving Lender
By: /s/ Yoram Dankner
-----------------------------
Name: Yoram Dankner
Title: Managing Director
By: /s/ Patricia Grieve
-----------------------------
Name: Patricia Grieve
Title: Director
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK
BRANCH, as a Euro Revolving Lender
By: /s/ Yoram Dankner
-----------------------------
Name: Yoram Dankner
Title: Managing Director
By: /s/ Patricia Grieve
-----------------------------
Name: Patricia Grieve
Title: Director
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK
BRANCH, as a Sterling Term Lender
By: /s/ Yoram Dankner
-----------------------------
Name: Yoram Dankner
Title: Managing Director
By: /s/ Patricia Grieve
-----------------------------
Name: Patricia Grieve
Title: Director
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK
BRANCH, as a Euro Term Lender
By: /s/ Yoram Dankner
-----------------------------
Name: Yoram Dankner
Title: Managing Director
By: /s/ Patricia Grieve
-----------------------------
Name: Patricia Grieve
Title: Director
CREDIT INDUSTRIEL ET COMMERCIAL, as a Euro
Term Lender
By: /s/ Brian O'Leary
-----------------------------
Name: Brian O'Leary
Title: Vice President
By: /s/ Anthony Rock
-----------------------------
Name: Anthony Rock
Title: Vice President
CREDIT INDUSTRIEL ET COMMERCIAL, as a Sterling
Term Lender
By: /s/ Brian O'Leary
-----------------------------
Name: Brian O'Leary
Title: Vice President
By: /s/ Anthony Rock
-----------------------------
Name: Anthony Rock
Title: Vice President
CREDIT INDUSTRIEL ET COMMERCIAL, as a Euro
Revolving Lender
By: /s/ Brian O'Leary
-----------------------------
Name: Brian O'Leary
Title: Vice President
By: /s/ Anthony Rock
-----------------------------
Name: Anthony Rock
Title: Vice President
CREDIT INDUSTRIEL ET COMMERCIAL, as
a Dollar Revolving Lender
By: /s/ Brian O'Leary
-----------------------------
Name: Brian O'Leary
Title: Vice President
By: /s/ Anthony Rock
-----------------------------
Name: Anthony Rock
Title: Vice President
NATEXIS BANQUES POPULAIRES, as a Dollar
Revolving Lender
By: /s/ William J. Burke
-----------------------------
Name: William J. Burke
Title: Vice President
By: /s/ Jordan H. Levy
-----------------------------
Name: Jordan H. Levy
Title: Assistant Vice President
NATEXIS BANQUES POPULAIRES, as a Euro
Revolving Lender
By: /s/ William J. Burke
-----------------------------
Name: William J. Burke
Title: Vice President
By: /s/ Jordan H. Levy
-----------------------------
Name: Jordan H. Levy
Title: Assistant Vice President
NATEXIS BANQUES POPULAIRES, as a Sterling
Term Lender
By: /s/ William J. Burke
-----------------------------
Name: William J. Burke
Title: Vice President
By: /s/ Jordan H. Levy
-----------------------------
Name: Jordan H. Levy
Title: Assistant Vice President
NATEXIS BANQUES POPULAIRES, as a Euro
Term Lender
By: /s/ William J. Burke
-----------------------------
Name: William J. Burke
Title: Vice President
By: /s/ Jordan H. Levy
-----------------------------
Name: Jordan H. Levy
Title: Assistant Vice President
THE NORTHERN TRUST COMPANY, as a Euro
Revolving Lender
By: /s/ Melissa A. Whitson
-----------------------------
Name: Melissa A. Whitson
Title: Senior Vice President
THE NORTHERN TRUST COMPANY, as a Dollar
Revolving Lender
By: /s/ Melissa A. Whitson
-----------------------------
Name: Melissa A. Whitson
Title: Senior Vice President
THE NORTHERN TRUST COMPANY, as a Euro Term
Lender
By: /s/ Melissa A. Whitson
-----------------------------
Name: Melissa A. Whitson
Title: Senior Vice President
THE NORTHERN TRUST COMPANY, as a Sterling Term
Lender
By: /s/ Melissa A. Whitson
-----------------------------
Name: Melissa A. Whitson
Title: Senior Vice President